Request By:
Mr. Bill Stephens
Supervisor
County Fee Systems
Executive Department for Finance and Administration
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The office expenses, including travel reimbursements, of the sheriff, jailer and county clerk in counties with a population in excess of 75,000 are paid out of the state treasury through the County Fee Systems, Department of Finance, pursuant to KRS 64.345(4).
The Department of Finance has issued new travel regulations to be effective after May 1, 1980.
In the past you have paid the actual travel expenses of these county officials if they had receipts. If they had no receipts, you paid the per diem amounts allowed "other state employees".
Your question is whether or not these county officials are subject to the state travel regulations. We think they are.
While the new travel regulation [informational copy] does not refer to the statutes being implemented, we assume the final regulation will refer to KRS Chapters 42, 44, and 45, and specifically KRS 45.180. Section 2 of the new regulation states that "Except as otherwise provided by law, this regulation shall apply to all departments, agencies, boards, and commissions, and institutions of the Executive Branch of State Government."
Actually the key statute authorizing reimbursement for travel expenses is KRS 45.180. See also KRS 44.060 [mileage allowance for state officers, employees, etc.]. Under the literal terms of those statutes, provisions are made for the reimbursement of officers and employees of central state government for their travel expenses.
However, in considering that the state, under § 106 of the Kentucky Constitution and KRS 64.345, receives the fees of the county clerk, the sheriff and jailer in counties of 75,000 population or more, and pays their expenses out of the state treasury, it is our opinion that such constitutional officers are state officers for the purpose of paying their travel expenses. It would not make sense that the state is the paymaster but cannot apply state travel regulations to the payee. See also KRS 45.300 [providing for a unified and integrated system of accounts for state] and KRS 45.170 [disbursements of state appropriations].
The court, in Shamburger v. Commonwealth, Ky., 240 S.W.2d 636 (1951), in holding that for the purposes of social security legislation the county constitutional officers mentioned in § 106 of the Constitution are state officers, wrote that the legislature, in enacting KRS 64.345, "has thereby recognized that in counties of greater population those officers, so far as compensation is concerned, are not to be treated as county officers." (Emphasis added). The court stressed the fact that the state is the paymaster of those officers. Thus the state was liable for the employer's contributions for the sheriff, circuit clerk and county clerk of Jefferson County. Of course the circuit clerks, by constitutional amendment, have been removed from the operative effect of § 106, Constitution. In the companion case of Barnes v. Barnes, Ky., 241 S.W.2d 993 (1951) 994, the court observed that:
"There can be no absolute or clear line of distinction drawn between some offices as being wholly state or wholly county by considering the conditions of the election of the officers or their functions."
For reasons given above, it is our opinion that the state travel regulations should be lawfully applied to the constitutional officers mentioned in § 106 of the Constitution and involved in the application of KRS 64.345.