Request By:
Allen Prewitt, Jr., Esq.
Attorney for the Kentucky
Registry of Election Finance
1604 Louisville Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the retention and utilization of certain funds collected by the Kentucky Registry of Election Finance.
You state that the 1980 session of the General Assembly amended KRS 121.140 and authorized the Registry of Election Finance to impose a penalty of up to $100.00 per day for each day a candidate's financial reports are delinquent. The Registry exercised this authority during the 1981 primary elections and imposed penalties against 370 candidates. The Registry has collected monies pursuant to this authority from various offending candidates but a substantial number of the penalties assessed have not been collected. The Registry has incurred considerable expense in connection with the collection process and none of these expenses had been authorized in the Registry's budget.
You request an opinion with respect to the legality of the Registry retaining such monies in its trust and agency account to defray such costs and for such other uses as the Registry may deem necessary in its efforts to enforce the provisions of KRS Chapter 121.
In connection with sources of funds, state agencies and departments operate under three different accounts. The general fund account consists of state money appropriated by the General Assembly; the agency receipts account consists of monies collected from fees and other sources authorized by statute and used for the benefit of the agency or department, and the federal funds account consists of monies received from the federal government.
The Registry of Election Finance has been and is presently financed with state appropriated money. While KRS 121.140 was amended in 1980 to authorize the Registry to impose a penalty not to exceed $100 a day for failure to file any report or other document or information required by law until such report, document or information is filed, the statute does not authorize the Registry to create an agency account and to place such funds in that type of account. There is nothing in that statute to indicate that the Registry is to be funded in any manner other than through state appropriated funds.
Even though the statute as amended does not specifically deal with the status of the fines collected, there are other indications that the General Assembly intended for the Registry to be funded only through the utilization of money it appropriates.
The Budget Document for the fiscal years 1980-1981 and 1981-1982 did not include under the Registry's Source of Funds any estimates for agency receipts. If agency receipts were intended to be used for financing the Registry's activities, the budget would have included estimates under that category.
House Bill 931 (Chapter 109 of the 1980 Acts) deals with the state's budget for the years 1980-1981 and 1981-1982. Under Part I, General Fund, Section I, Public Protection and Regulation, funds are appropriated for the Registry of Election Finance. Part II deals with Trust and Agency Funds but under Section I, Public Protection and Regulation, there is no mention of the Registry of Election Finance. Part II, Trust and Agency Funds, states in part that "Receipts which are received by each of the respective agencies of the State Government listed herein shall be placed to the credit of a Trust and Revolving, or an Agency Fund out of which shall be established separate Trust and Revolving or Agency Fund accounts for the use and benefit of these agencies of the State Government for purposes for which each fund is authorized." As previously mentioned, however, the Registry is not one of the agencies listed in Part II, Trust and Agency Funds.
It has been brought to our attention that the Registry's trust and agency account consists of two primary sources of funds: fines and penalties levied and collected by the Registry and reimbursement of general fund expenditures received by the Registry (payments to the Registry for its copying of documents subject to the Open Records Law). Even if the Registry was entitled to maintain an agency receipts account and to use the money from fines and penalties levied and collected by the Registry for the benefit of the Registry, it could not, in the opinion of the Department of Finance, retain in such an account sums of money collected from persons who have paid to have records of the Registry copied. This office concurs with the Department of Finance in that assessment.
Thus, at the present time the Registry of Election Finance cannot legally maintain a trust and agency account, into which it places monies received from fines and penalties it has levied and collected, and it cannot utilize that account to finance activities of the Registry. The operations of the Registry are funded solely by appropriations from the general fund by the General Assembly. There is no provision in the state's budget under the section dealing with trust and agency funds for the Registry to spend the money from the fines and penalties it has levied and collected.