Request By:
Mr. Challen P. McCoy
Nelson County Attorney
113 W. Stephen Foster Avenue
Bardstown, Kentucky 40004
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question is whether any formal action on the part of fiscal court is necessary to effectuate a salary adjustment for the county judge/executive, considering that enough money for his adjustment was included in the budget.
The answer is that the inclusion in the budget is not enough to effectuate the salary adjustment.
The budget process, under KRS Chapter 68, is merely the appropriation device. See KRS 68.240. However, the actual allotment or final appropriation of county funds for expenditure for any authorized county purpose will require a formal action by way of an appropriate order or resolution of the fiscal court. The budget is merely a document providing appropriation for potential expenditure. The actual allotment and final appropriation and expenditure of county treasury funds requires a specific and formal order or resolution of fiscal court. See KRS 67.080(1)(c). The fact that the fiscal court has the power to regulate and control the fiscal affairs of the county under KRS 67.080(1)(c) carries with it implicitly the premise that fiscal court, as a body, must pass upon all claims against the county treasury.
Of course, the fiscal court cannot, in any year, authorize an expenditure in excess of the amount annually levied and collected for that year, or levied, collected or appropriated for any special purpose. KRS 68.110(1). Likewise, the fiscal court, under KRS 68.300, is prohibited from authorizing any expenditures in excess of budget funds. The budget process is not an exact science, since the available revenue of the county is only an estimate; and when the fiscal court gets into the fiscal year it may find that all the appropriations are not fully funded. This necessitates the practical business of dealing with expenditures on a case by case authorization.
Further, Section 157 of the Kentucky Constitution requires that no fiscal court can create any obligations or expend any county money in excess of the available current revenue for that year without a vote of the people. Section 158 of the Constitution imposes absolute restrictions on county expenditures. So it can be seen that the mere budgeting for some type of expense is only a potential for county expenditure; and any final disbursements require a specific and formal order or resolution of fiscal court. Morgantown Deposit Bank v. Johnson, 108 Ky. 507, 56 S.W. 825 (1900). The point is that when a claim is allowed against the county treasury, it cannot be a guessing game. The fiscal court, the county judge/executive, and the county treasurer must know positively that there is available money in the treasury to cover the vouchers. See Lawrence County v. Lawrence Fiscal Court, 130 Ky. 587, 113 S.W. 824 (1908).
The court wrote in Carman v. Hickman County, 185 Ky. 630, 215 S.W. 408 (1919), at page 414:
"Of course, the mere appropriation of funds by a fiscal court is not the creation of a debt, unless the order making the appropriation, or some other order to be used in connection with or as a part of it, contains matter showing that the real purpose of the appropriation was to create a debt in some manner or form."
See also Adair County Farm Bureau v. Fiscal Court of Adair County, 263 Ky. 23, 91 S.W.2d 537 (1936), relating to a specific order of fiscal court being an appropriation and creation of an indebtedness under Section 157, Constitution.
Since the answer to question no. 1 is in the negative, it is not necessary to answer question no. 2.