Request By:
Mr. Jimmie W. Greene
McCreary County Judge/Executive
Courthouse
Whitley City, Kentucky 42653
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The fiscal court has been paying the magistrates $200 (each) per month for expenses. This has been done for 15 months. We assume the $200 payments were made lump sum.
KRS 64.258 allows a maximum of $100 per month per justice of the peace for expenses. Standing alone, no documentation of such expenses is required. The excess over $100 is illegal unless the justices of the peace can document the entire sum of $200 as representing actual and necessary expenses of that office. See Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). Lump sum expense allowances are prohibited, except where provided by statute. KRS 64.710.
Question No. 1:
"Who would be liable for repayment to the County Treasure for the $12,000.00, if in fact the claims were illegally paid?"
Assume that $12,000 paid to the magistrates represented the second $100 (over and above the $100 allowed by statute). Assume that none of this $12,000 and the first $100 payments can be properly documented as being actual and necessary expenses. In other words, the full documentation of the first $100 per month and the second $100 per month cannot be made. Then clearly the receiving magistrates must return that money to the county treasury immediately. The receiving magistrates are personally liable for its repayment to the county treasury. If they fail or refuse to reimburse the county, the fiscal court and county attorney should take steps to recover it by filing a proper suit in circuit court. See KRS 69.210(1).
Any member of fiscal court who participated in voting an order allowing such illegal claims is personally liable therefor. If the county money disbursed unlawfully by members of the fiscal court cannot be recovered from the persons to whom those payments were made, then the members of the fiscal court so participating in the authorizing of the illegal expenditure are liable, jointly and severally. Fannin v. Davis, Ky., 385 S.W.2d 321 (1965) 326.
Question No. 2:
"If neither the fiscal court nor the county attorney take action to recover the second $100.00 expense allowance paid to each of the eight magistrates for 15 months, what is the extent of responsibility of the county judge/executive, (if any), in recovering this payment?"
Since the fiscal court has control of the county's financial affairs (see KRS 67.080(1)(c) and 67.083), the fiscal court has the initial burden to institute a suit for recovery of county money illegally expended. The county judge/executive, as such, has no authority to bring the suit for the county. Pike County v. Young, 266 Ky. 588, 99 S.W.2d 749 (1936).
It is well established that the fiscal court of a county, and not a taxpayer, is vested with the primany duty to bring suits for the recovery of money for the county. Further, a taxpayer is not permitted to bring suits in matters concerning public funds until he has first requested the fiscal court to do so and that body has refused to comply. There is an exception to that rule: A taxpayer (including the county judge/executive as a taxpayer) does have the right to bring such suitwhere it appears that demand of fiscal court would have been futile. Commonwealth v. Whayne Supply Company, Ky., 371 S.W.2d 26 (1963) 27. Here it could be reasoned that demand of the fiscal court to sue its own members might fall on deaf ears. Under that assumption, a taxpayer, which would include the county judge/executive as a taxpayer, may bring such a class action in circuit court. However, such futility of demand would have to be alleged. The point is that if the magistrates pay this back immediately, there is no need for a suit. If they do not, one can assume they would not authorize a suit against themselves. This sets the stage for a taxpayer's suit in the absence of their nonpayment of the money. Of course, the county judge/executive, as a taxpayer, is not required to initiate such suit. The point is: he may.