Request By:
Mr. John R. Elfers
Kenton County Attorney
Room 408 City County Building
Covington, Kentucky 41011
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your letter you mention the fact that the maximum rubber dollar amount of compensation which can be paid county attorneys for 1978 is $31,272.00. See KRS 15.765.
Specifically you ask whether or not such maximum includes the expense allowance under subsection (2) of KRS 15.765. That subsection provides that each county attorney shall be paid each month the sum of two hundred and fifty dollars ($250) which sum is declared to be the equivalent of the minimum sum that each county attorney will expend each month in the performance of his official duties directed to be performed for the Commonwealth. This is payable out of the state treasury.
It is our opinion that the courts would probably uphold the allowance as a lump sum expense allowance. It is couched in language very similar to that statute relating to an expense allowance of circuit judges as interpreted in Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577 (1948) 579. Thus the expense allowance would not be included in applying the maximum rubber dollar amount of $31,272.00.
Further, the expense allowance of KRS 15.765(2) relates to the "performance of his official duties directed to be performed for the Commonwealth", while KRS 15.750(3) relates to the reimbursement by the state for office "expenses incurred by the county attorney in the performance of his duties as criminal prosecutor." (Emphasis added). We must assume that the legislature had a meaningful purpose in providing for these two expense allowances. One narrowly relates to his prosecutorial work [KRS 15.750(3)]. The other necessarily has to be related to something other than his prosecutorial work, otherwise duplication could be involved and thus nominal expense money would be commuted into compensation. Thus it is our opinion that the legislature intended the $250 per month allowance to relate to residual civil functions performed for the state other than criminal prosecutions. Under this analysis the two expense allowances relate to two different categories of functions. Neither allowance is compensation, and no formal accountability is required, except that the expenses claimed under KRS 15.750(3) must be documented as required by the Department for Finance and Administration.