Request By:
Mr. Arthur M. Walson
Clark Circuit Clerk
P.O. Box 715
Winchester, Kentucky 40391
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem concerns the accepting of passport applications as one of the duties of circuit court clerks. In Clark County you provide the additional service of taking the pictures for the passport application.
Your letter contains this additional information concerning the taking of pictures of the applicant:
"We did this because of the many requests we received for the service and because there is no other place in Clark County to get the photographs meeting the necessary specifications.
"The camera, film and other necessary equipment for providing the service were purchased with private funds. However, the space used for taking the photographs is here in the office and the pictures are taken by a deputy clerk.
The main purpose of the camera is to offer a service to the people. However, after all the expenditures for the equipment have been recouped, there could be some surplus of funds."
Your question is as follows:
"We would like to know if such an arrangement is legal and if profits are obtained, if they can be kept by the clerk or deputies. If not, can the money go toward office coffee and office items not obtainable through the state."
KRS 30A.140 provides that "Every clerk shall perform such additional duties as may be prescribed by statute or court rule." (Emphasis added).
22 U.S.C. § 213 reads:
"Before a passport is issued to any person by or under authority of the United States such person shall subscribe to and submit a written application which shall contain a true recital of each and every matter of fact which may be required by law or by any rules authorized by law to be stated as a prerequisite to the issuance of any such passport. If the applicant has not previously been issued a United States passport, the application shall be duly verified by his oath before a person authorized and empowered by the Secretary of State to administer oaths." (Emphasis added).
22 U.S.C. § 214, as amended by P.L. 90-428, provides that a fee of $2 is authorized for executing each application for a passport, and that the Secretary of State (of the United States) may by regulation authorize state officials to collect and retain the execution fee.
22 C.F.R. § 51.21, relating to first time applicants for a passport, provides in subparagraph (b) that "The following persons are authorized by the Secretary (of State, U.S.) to give oaths for passport purposes: (1) a passport agent; (2) a clerk of any federal court; (3) a clerk of any state court of record or a judge or clerk of any probate court; (4) a postal employee designated by the postmaster at a post office which has been selected to accept passport applications; (5) a diplomatic or consular officer abroad; or (6) any other persons specifically designated by the Secretary." (Emphasis added). Subsection (a) of § 51.21 requires a first-time applicant for a passport to appear in person and verify the application by oath or affirmation before a person authorized by the Secretary to give oaths, "and pay the established fees." (Emphasis added).
22 C.F.R. § 51.25 provides that the applicant shall submit with his application duplicate photographs of the size specified in the application. The photographs must be signed in the same manner and form as required in the application.
22 C.F.R. § 51.61 provides that the execution fee for a U.S. passport is $4, which shall be remitted to the U.S. Treasury where an application is executed before a federal official, "but which may be collected and retained by any state official before whom an application is executed." (Emphasis added). A bulletin received by the Chief Justice of the Supreme Court of Kentucky from the Bureau of Consular Affairs, U.S. Department of State, Washington, D.C., 20524, indicated that the execution fee was raised from $4 to $5, effective February 12, 1981.
22 C.F.R. § 51.62 provides that the Secretary may authorize the collection of additional fees in connection with passport services. Upon publication of the fees in the Federal Register, the passport issuing office may collect them in the same manner as statutory fees.
CONCLUSIONS
We conclude as follows: (1) Any circuit clerk in Kentucky may take the oath or affirmation in connection with a passport application to go abroad. See 22 C.F.R. § 51.1(e). (2) The circuit clerk taking such oath or affirmation should charge the applicant $5, which the clerk may retain and account for as a public fee and public compensation. See § 246,