Request By:
Ms. Cattie Lou Miller
Deputy Secretary for Finance
Executive Department for
Finance and Administration
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to whether departments and agencies of the Kentucky central state government can legally pay the travel expenses of persons invited to Kentucky for screening interviews, looking toward possible employment in such departments and agencies. You note that, based on OAG 64-421, the State Division of Accounts has usually honored such claims from state universities and colleges for payment of round-trip expenses for prospective faculty or staff members being interviewed at those institutions. Many persons, apparently, invited to Kentucky for such interviews are not willing to pay for such expenses. We assume you refer to the recruitment for high level or cabinet positions in state government.
As we said in OAG 64-421, Section 230 of the Kentucky Constitution and KRS 41.110 require an appropriation or statute of the General Assembly before state money can be moved out of the state treasury. See also 63 Am.Jur.2d, Public Funds, § 45, p.p. 434-435. In that opinion we traced the statutory basis for such expense payments in connection with state universities and colleges. We must now look to the statutes and appropriations for authority in the situation you mention.
The appointing authority is generally vested in the department or agency heads. See KRS 12.040, 12.050, and 12.060.
The power of appointment implicitly carries with it the power of recruitment. The logic of this reasoning rests, we think, upon the premise that efficient state government must be based, to a great degree, upon procuring and recruiting various specialists, technicians and professional persons for the management level of state government. In 67 C.J.S., Officers, § 102, it is written that "In addition to powers expressly conferred on him by law, an officer has by implication such powers as are necessary for the due and efficient exercise of those expressly granted, or such as may be fairly implied therefrom."
All expenditures of the state and of its budget units are made under the authority of the biennial budget act. KRS 45.020. The allotment of appropriations is covered in KRS 45.160. It is our understanding that the budget unit work sheets of the departments and agencies are still required, in connection with the budget estimates submitted to the Department of Finance under KRS 45.070, to reflect a breakdown in terms of the historic budget classes, i.e., the 100 account [personal services], the 300 account [current operating account] and the 600 account [capital outlay].
The constitution lays down no precise rule as to the form which an appropriation must take, nor does it require that appropriations be detailed, definite or specific. Every line or appropriations breakdown of various budget units are not required to be in the Executive Budget or published appropriations bill of the General Assembly. Thus the "work sheets" are considered to be a part of the budget process. The matter of the formulation of he state budget act is left, of course, ultimately to the
General Assembly. Commonwealth v. Johnson, 292 Ky. 288, 166 S.W.2d 409 (1942) 414. As the court wrote in
Ferguson v. Oates, Ky., 314 S.W.2d 518 (1958), the purpose of § 230 of the constitution was to prevent the expenditure of the state's money without the consent of the General Assembly. See also
Hopkins v. Ford, Ky., 534 S.W.2d 792 (1976), reiterating the principle of constitutional appropriation, as enunciated in Commonwealth v. Johnson, above.
On the basis of the foregoing analysis and statutory authority, it is our opinion that departments and agencies of the central state government can legally pay the travel expenses of out of state persons invited to Kentucky for screening employment interviews, involving high level state management or cabinet positions, in the case in which the prospective employee will not agree to pay such expenses. Such payment can come out of the current operational account [300 account] of the applicable department or agency. The Commissioner of Finance would have the responsibility for monitoring this kind of claim [before travel is begun] to ensure that there is no abuse of this authority.
The payment of such expenses in this context would definitely be for a "public purpose", since an executive administration will be desirous of procuring the best possible qualified people for the high level management posts in central state government, in the interest of promoting efficient government. See §§ 3 and 171, Kentucky Constitution; and 63 Am.Jur.2d, Public Funds, § 59, p.p. 447-448.