Request By:
Ms. Rhonda E. Morgan
Director of Investigations and
Legal Counsel
Auditor of Public Accounts
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As a result of audits, it was determined that the Pike County Clerk owed excess fees to the county in certain amounts for the calendar years of 1975, 1976, 1977, and 1978. The clerk has apparently paid the excess fees in full to the county, except for the year of 1975, which amounts to $80,564.95.
On October 13, 1980, the Pike Fiscal Court entered an order exonerating the clerk from paying the amount of $80,564.95 in excess fees for the year 1975. Your first question is whether such exoneration was legal.
Such county fee officer is required to pay over to the county, each year, the excess of receipts over and above the amounts allowable for his personal compensation, the compensation of his legally authorized deputies and assistants, and authorized official expenses. Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) 506.
Each calendar year of the clerk's term must be treated as a separate unit in determining proper credits to be given the clerk against the fees or receipts of his office. Ader v. Howard, Ky., 263 S.W.2d 491 (1954) 493.
Thus the cause of action on the part of the county accrues technically after the end of each calendar year of the clerk's term of office. The cause of action, as relates to 1975 excess fees, of Pike County at least came into existence on January 1, 1976. Here we are assuming that the actual surplus or excess fees, in terms of actual receipts of the clerk's office, is the amount of $80,564.95, as found in the audit.
In the case of Greenup County v. Millis, Ky., 303 S.W.2d 898 (1957), the court held, where the county's claim related to excess fees of the county clerk, that the claim was subject to the five-year statute of limitations, KRS 413.-120(1), upon the ground that there was an implied contract to pay such surplus to the county.
Assuming that the excess fee amount is legally correct, the county's claim would not be barred until after January 1, 1981.
Thus the county's claim, whatever amount it is, is not presently barred by the statute of limitations.
The fiscal court order of October 13, 1980, exonerating the clerk from paying the sum of "$80,564.95 excess fees" for the year 1975 recites that for the year of 1975 there were some "unintentional undercharges and clerical errors in collections and that several large charges made by (?) companies that have not been paid. It appears, too that several companies have become bankrupt and/or have since moved out of the state, thus making it almost impossible to collect said amounts due to the length of time involved and the market conditions at this time. It further appears that the county court clerk has agreed to turn over any collection made by him to the Pike County Fiscal Court as a credit on the excess fees and/or to turn over the collection of these bad debts to the county, if the court so desires." The clerk was required to turn over and assign to the fiscal court "any and all collections made of these fees."
Actually the county clerk is on a cash receipts basis. We do not know whether or not the so called $80,564.95 in excess fees is actually based on the clerk's receipts. The fiscal court order is general and vague.
Because of the factual element present in this situation, this office is not organized nor designed to make a determination of whether the exoneration is proper or legal under all of the pertinent circumstances. It is true that a fiscal court can effect a compromise in an "unliquidated claim" situation. However, in such an applicable case, the fiscal court must act in good faith in so compromising. Pulaski County v. Hall, Ky., 349 S.W.2d 676 (1961) 677. As we said, we are unable to determine, because of the factual and audit complexity, whether this situation is a proper application for compromise under the theory of an "unliquidated claim. " An unliquidated claim is one that is not fixed and certain. Steele v. Taylor, 272 Ky. 11, 113 S.W.2d 423 (1938) 424. Thus the matter of the exoneration of the sum of $80,564.95 is one properly for the courts to determine.
As to the second question, of whether fiscal court members are liable to the county if they illegally exonerated the clerk's payment of excess fees, the answer is that they would be individually liable to the county, provided that it is determined that they illegally exonerated a valid county claim [see Fannin v. Davis, Ky., 385 S.W.2d 321 (1964)] and provided the money determined to be properly recoverable by the county is not so recovered. But here the answer to the second question would hinge on the judicial courts' determination of the first question.