Request By:
Mr. William Miles Arvin
Attorney at Law
Bronaugh Building
Nicholasville, Kentucky 40356
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem relates to arrest fees earned by city policemen and involving offenses against the state. Your letter reads:
"The City of Nicholasville is a fourth class city and is considering adopting an ordinance whereby arrest fees assessed for offenses against the state allowed to arresting city policemen are directed to be paid into the city treasury. City policemen are employed on a salary. The Board of Commissioners is in receipt of your opinion 79-276, whereby you prescribe the method of fee collection which is paid to the Department of Finance. However, there is no mention how this money is paid back to the city. In checking with the Department of Finance I find that there is no procedure to allow the arrest fees to be returned."
City policemen in fourth class cities have the same power of arrest for offenses against the state as a sheriff. Such policemen shall be entitled to the same fees allowed sheriffs, but the city legislative body may, by ordinance, direct that the fees so earned be paid into the city treasury where the chief of police and the other members of the police force are employed on a salary. KRS 64.090 and 95.740 (1) and (2).
Assuming that the city adopts the ordinance mentioned above, your question is how do such earned arrest fees get into the city treasury?
The arrest fee can be collected and paid to the arresting officer under these conditions: (1) the defendant is convicted; (2) the defendant, upon a judgment of conviction and costs being entered, pays the fee into the court clerk; (3) the court clerk, assuming conditions (1) and (2) are met, should pay over the fee to the arresting officer.
The arresting officer in turn should turn the fee money over to the city treasury if the proposed ordinance is in effect pursuant to KRS 95.740. See
Bell County v. Minton, 239 Ky. 840, 40 S.W.2d 379 (1931).
The Administrative Office of the Courts informs us that this local payment of such fees is precisely the method which the clerks have been directed to follow. Such fees paid into the court clerk are placed in their account labeled "money collected for others" and disbursed directly to the officers earning such arresting fees. This arrest fee money involves fees outside the range of KRS 30A.190. That statute provides that the circuit clerk shall collect all fees, fines, forfeitures and costs in any district or circuit court and pay them into the state treasury. However, such fees were intended to embrace court generated fees, not fees earned by local law enforcement officers. In this situation the court clerk is merely a conduit in connection with the payment of arrest fees (still provided by statute) into the district or circuit court. And the clerk, by using this direct method of disbursement, enforces the court orders as to payment of costs, which would include an arrest fee.
Even if the arrest fees were forwarded by the circuit clerks to the Finance Department for placing in the state treasury under the literal terms of KRS 30A. 190, there is no state appropriation out of which the arrest fees so paid into the state treasury could be paid out of the state treasury. Section 230 of the Constitution and KRS 41.110 require an appropriation where money is to be paid out of the state treasury.
Thus the local payment of such arrest fee by the court clerk is the only workable solution.
OAG 79-276 is modified accordingly.