Request By:
Ms. Rhonda E. Morgan
Director of Investigations
and Legal Counsel
Auditor of Public Accounts
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You refer to OAG 80-579, concerning the Pike County Fiscal Court's Order "exonerating" the county clerk from paying excess fees for the year 1975. There we concluded that assuming the excess fee amount is legally correct, the county's claim would not be barred until after January 1, 1981. However, you raise additional questions.
Question No. 1:
"At the present time, our policy is to include all statutory fees in the county official's fee income at the time the service is rendered. Are we correct?"
As we said in OAG 80-579, the county clerk is on a cash receipts basis, from the standpoint of accounting. However, KRS 64.430(1) provides that all fees are due and payable within two (2) months after the services are rendered. Thus there is no statute mandating that the clerk collect the fees accruing to that office at precisely the time when the services are fully performed. Further, there is nothing in the statutes making the clerk an insurer of fees due and payable. However, it is a responsibility of the clerk, within the applicable limitational statutes, to take all practical and reasonable means to collect any fees due and payable, including litigation, where feasible (reasonable probability of an enforcement of judgment).
All such fees are collected by the clerk in his official capacity. Such fees constitute a fund subject to the control of the fiscal court; and he must account to that body for any excess fees.
Webster County v. Nance, Ky., 362 S.W.2d 723 (1962). See also 63 Am.Jur.2d, Public Officers and Employees, § 341.
Only the courts, however, are organized to determine whether or not the clerk has taken all practical and reasonable means to collect the outstanding fees.
Question No. 2:
"If the statutory fees are not collected at the time the service is rendered by the county official, who is liable for these fees?
We have answered that under Question No. 1.
Question No. 3:
"Are audit reports issued by this office pertaining to excess fees subject only to challenge in the courts of the Commonwealth, or may a county fiscal court overrule our audit findings by fiscal court order?"
The audit in question was conducted by your office pursuant to KRS 43.070(1)(b). The question is controlled by KRS 64.820, which reads:
"(1) The fiscal court shall collect any amount due the county from county officials as determined by the audit of the official conducted pursuant to KRS 43.070 and 64.810 if the amount can be collected without suit."
"(2) In the event the fiscal court cannot collect the amount due the county from the county official without suit, the state auditor or certified public accountant shall report the facts and amount involved to the fiscal court of the county. The fiscal court shall then direct the county attorney to institute suit for the collection of the amount reported by the auditor or certified public accountant to be due the county within ninety (90) days from the date of receiving the auditor's or certified public accountant's report."
Under the statute, the audit apparently carries with it a presumption of the financial status or of correctness as to the clerk's account for the year 1975, unless such presumption is overturned or overcome in some way in an appropriate law suit. The exception to this would arise where the account involves "unliquidated claims" (claims not fixed or certain).