Request By:
Mr. Bill Stephens
Supervisor
County Fee Systems
Executive Department for Finance and Administration
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions about a sheriff's advancement were stated as follows:
"My question relates to the situation where an outgoing sheriff is unable to repay funds advanced to him during the fourth year of his term of office due to being unable to get that years tax collections processed during that year. Is the succeeding sheriff liable for repayment? Is the sheriff who received the advancement liable for repayment?
"If the outgoing sheriff repays his advancements out of his own pocket does he have a claim against any tax commissions received by the incoming sheriff for collecting taxes applicable to the last year of the outgoing sheriffs' term of office. "
The first question is whether the succeeding sheriff is liable for the advancement made to his predecessor during the fourth year of the term, where the last year's tax collections could not be effected through no fault of the outgoing sheriff. Let us say that advancements are paid out of the state treasury under KRS 64.140 to the sheriff from January 1981 through September, 1981. The statute requires that all such advancement money must be expended by the sheriff for salaries for himself and his deputies and for necessary official expenses of his office.
In counties having a population of 75,000 or more, all fees and commissions of the sheriff are paid into the state treasury; and the sheriff's salary and that of his deputies and his office expenses are in turn paid out of the "75% account" [75% of the fees and commissions turned into the state treasury] . See Section 106, Kentucky Constitution and KRS 64.345. However, you have told us that advancements are not being made to sheriffs in the counties of 75,000 population or more, for the simple reason that the "75% account" is always adequate to fund the sheriff's office.
Thus your question narrows down to sheriffs in counties having less than 75,000 population. In such counties the sheriff's office is funded out of the fees and commissions of the sheriff or out of the county treasury, or out of both sources [see Funk v. Milliken, Ky., 317 S.W.2d 499 (1958)], or out of advancements, made by the State Department of Finance, from the state treasury, pursuant to KRS 64.140.
Of course the fiscal court can reimburse the state for such money advanced during that fourth year, subject to proper budgeting procedure and availability of money. See KRS 64.530, 67.083(3)(u), 67.080, and Barkley v. Gatewood, 285 Ky. 179, 147 S.W.2d 373 (1941). This is true since the sheriff's office can be directly funded out of the county treasury.
To the extent that the county does not fund the refunding of the advancements, the succeeding sheriff should, as an equitable matter, use tax commissions, which come in during his first year and involving tax collections that normally would have been made in the fourth year of the outgoing sheriff's term, to fund such reimbursement of advancements. The point is that the advancements should be charged against the total tax commissions which come in during the year the advancements are made. Where tax commissions in such year are not sufficient to fund the reimbursement of advancements, resort must be had to the tax commissions that normally would have come in during the fourth year of the outgoing sheriff's term, but which come in, through no fault of the outgoing sheriff, during the first year of the succeeding sheriff. See Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). In this manner we are giving an equitable and practical construction to KRS 64.140. The court said in Wesley v. Board of Education of Nicholas County, Ky., 403 S.W.2d 28 (1966) 30, that "Statutes will not be given a strict or literal reading where to do so would lead to an absurd or unreasonable conclusion."
The tax statutes are designed to encourage collection of taxes in the year of their assessment and levy. This generally insures a rather even spread of tax collection commissions over each calendar year of the sheriff's term of office. Where such tax collection scheme is delayed for any reason not attributable to the sheriff [for examples: assessment is delayed, or making of the tax bills is delayed because of litigation], the tax commission distribution will be grossly disturbed and dislocated. Thus fiscal courts, in accounting with the sheriff, may permit the delayed tax commissions to be applied to the year they would normally have been earned. See Talbott v. Burke, 287 Ky. 187, 152 S.W.2d 586 (1941), stressing that public officers are entitled to payment of their fees or salaries. Also see Hodges v. Daviess County, 285 Ky. 508, 148 S.W.2d 697 (1941) 699, observing that a term officer cannot be required to accept a salary or fees less than that prescribed by law. Here if the outgoing sheriff cannot use the advancement as a charge against delayed tax commissions, his compensation will be practically reduced.
Under 200 KAR 11:030, Section 3(7), a sheriff applying to the Finance Department for an advancement must execute a bond in favor of the Commonwealth for an amount not to exceed the total advance requested for the year. See also the refunding procedure in 200 KAR 11:050. The sheriff executing such a bond is personally liable thereon and is personally responsible for the full repayment of all monies advanced to him by the Commonwealth. However, the amount of the advancement, as reflected in his expenditures for the sheriff's salary, deputies' salaries and other necessary expenses of his office during the year in which the advancement was made, can be recovered by the sheriff or his personal representative as a charge against the total receipts of the sheriff's office for the calendar year [his fourth year] in question, and as a charge against the total tax commission receipts occurring in the first year of his successor's term which involve receipts that should normally have come in during the fourth year of the outgoing sheriff's term, as described above. The advancement is for the precise purpose of official office expenses and is thus a legitimate charge against the total tax commission receipts of the "sheriff's office" during the fourth year of the outgoing sheriff and tax commission receipts of the "sheriff's office" collected in the first year of the succeeding sheriff, but which under normal tax collecting procedures should have come in during the fourth year of the outgoing sheriff.
The outgoing sheriff who repays his advancements out of his own pocket has a charge against the tax commissions received by the incoming sheriff for collecting taxes applicable to the last year of the outgoing sheriff's term of office. We are not speaking of delinquent taxes, but taxes which normally would have been collected during the fourth year of the outgoing sheriff, but which collection was delayed through no fault of the sheriff.
In summary, where the tax collection procedure is delayed during the fourth year of the sheriff's term to the following year, through no fault of the incumbent sheriff, advancements to the outgoing sheriff during his fourth year may be refunded to the state by: (1) the fiscal court's payment out of the county treasury, if available; or (2) the tax commissions collected by the succeeding sheriff during the successor's first year of office, which commissions would normally have been earned during the fourth year of the outgoing sheriff's term; or (3) the payment by the outgoing sheriff out of his pocket for any balance of advancement remaining after exhausting sources (1) and (2) above. It must be understood that the succeeding sheriff is not personally liable for repayment of the advancements made to the outgoing sheriff. But such advancements are a proper charge against the tax commissions "of his office", to the extent that they represent taxes which would normally have been collected during the fourth year of the outgoing sheriff's term.