Request By:
Mr. Larry D. Collins
Attorney at Law
P.O. Box 330
Whitesburg, Kentucky 41858
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Letcher County Fiscal Court has adopted a policy to pay legal fees incurred by former county officials when tried and found not guilty for actions arising out of county business.
The question is whether the fiscal court can pay the attorney fees of four county defendant officials who were found not guilty (criminal actions) and vote not to pay the attorney fees of a fifth defendant official who was tried along with the other officials and found not guilty?
A fiscal court, in its sound discretion, and on a case by case basis, may provide for reimbursing a county official for legal fees expended in litigation under these coexisting conditions: (1) It is found that the official was acting in good faith within the scope of his authority in the discharge of his official duties, i.e., he is found by the courts to not be guilty of crime, negligence, misconduct, or willful or malicious wrongdoing; (2) The litigation is of such nature as to affect the county governmental interest. Here we refer to a legal, equitable or official interest in the subject of the action; (3) There is money in an appropriate county budget item sufficient to pay such legal expenses.
The authority for such action of reimbursement, within the guidelines just enumerated, on the part of fiscal court is found in KRS 67.080 and 67.083. Such powers therein enumerated by the strongest implication suggest permissive reimbursement of officials' legal expenses, incurred in line of duty without fault, for the simple reason of attracting and retaining competent and honest officials in county government. See KRS 67.083(3); and
City of Bowling Green v. T & E Elec. Contr., Ky., 602 S.W.2d 434 (1980), citing the rule that a local government possesses only those powers expressly granted by the constitution and statutes plus such powers as are necessarily implied or incident to the expressly granted powers and which are indispensable to enable it to carry out its declared objects, purposes and expressed powers. See also
Griffin v. City of Paducah, Ky., 382 S.W.2d 402 (1964);
Roberts v. City of St. Louis, Mo., 242 S.W.2d 293 (1951);
Chesapeake & O. Ry. Co. v. Harmon, 159 Ky. 59, 166 S.W. 786 (1914);
Goodlett v. Anderson County, 267 Ky. 166, 101 S.W.2d 421 (1937); and
Todd County Fiscal Court v. Frey, Ky., 285 S.W.2d 499 (1956).
CONCLUSION
1. The fiscal court has authority to adopt a policy concerning permissive reimbursement of county officials' legal expenses, provided that it meets the guidelines pointed out in the opinion.
2. Where the fiscal court provides for four county officials' reimbursement for litigational expenses, such are legal if they meet the guidelines expressed in this opinion.
3. Where the fiscal court, as relates to the litigation involving four county officials, decides to not reimburse a fifth county official involved in the same litigation, such action, where the case of the fifth defendant meets the opinion guidelines, might be construed by the courts to be arbitrary under § 2, Kentucky Constitution. See