Request By:
Mr. David R. Reeves
Attorney at Law
146 West Main Street
Grayson, Kentucky 41143
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns delinquent taxes collected by you during your term as Carter County Attorney. It reads:
"I have received a check from the Carter County Court Clerk for delinquent taxes collected during my term as County Attorney for Carter County.
"Should the check be endorsed over to the present County Attorney or the Department of Revenue? It appears clear to me that the money should go to the Department of Revenue for deposit in the delinquent tax fund under 1955 OAG 37,589. However, since that opinion is so old and KRS 134.545 has since been enacted, I am unsure and ask for your advice and guidance."
In connection with the collection of delinquent taxes by the county attorney, see KRS 132.350, 134.340, 134.400, 134.500, 134.540 and 135.040.
KRS 134.545 reads:
"Monies paid to the county attorney under KRS 132.350, 134.340, 134.400, 134.500, 134.540 and 135.040 shall be used only for payment of county attorney office operating expenses. "
We concluded in OAG 81-96 that the phrase "county attorney office operating expenses" clearly refers to all actual and necessary expenses incident to the proper conduct of the total duties of the office of county attorney.
The old
Court of Appeals, in Connors v. Jefferson County Fiscal Court, 277 Ky. 23, 125 S.W.2d 206 (1939) 209, was faced with interpreting § 106 of the Kentucky Constitution. It provided in part that certain enumerated county officials were to be paid out of the state treasury, by salary to be fixed by law, the "salaries of said officers and of their deputies and necessary office expenses" not to exceed seventy-five per centum (75%) of the fees collected, etc. (Emphasis added). The court concluded under the literal language of § 106 that "necessary office expenses" clearly referred to expenses incident and necessary to proper conduct of the duties of the office other than the salary of deputies. By the literal language in § 106, Constitution, the salaries of such officers and their deputies was established as one category of office expense and the phrase "necessary office expenses" described a residual category, i.e., expenses other than such salaries. However, KRS 134.545 does not define "county attorney office operating expenses" . In addition, there is no language, similar to § 106, Constitution, purporting to establish any particular and definitive categories of such office expenses. The statute is silent as to any particularization of county attorney functions. By way of contrast, note that KRS 15. 750(3) and (4) provide that the office expenses incurred by the county attorney in the performance of his duties as criminal prosecutor shall be paid by the commonwealth. Such expenses incurred by the county attorney in the performance of his duties as civil legal adviser to the county shall be paid by the fiscal court or urban county government, as the case may be. Actually, the county attorney performs a dual role as a public official: (1) the role as prosecutor of criminal violations, and (2) the civil role of being the attorney for the county. See KRS 15.725 and KRS 69.210.
CONCLUSIONS
(1) It is our opinion that such monies paid to a county attorney for collection of delinquent taxes may be spent for any official expense of the county attorney's office arising out of the proper conduct of that office, including both his criminal and civil duties. The term "proper conduct of office" includes activities or services which are practical necessities in conducting that office.
Barkley v. Gatewood, 285 Ky. 179, 147 S.W.2d 373 (1941) 375. A more definitive description of such expenses would be expenses that are reasonable in amount, beneficial to the public, and not predominantly personal to the county attorney.
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) 506. Thus, "county attorney office operating expenses" clearly refers to all actual and reasonably necessary expenses incident to the proper conduct of the total duties of the office of county attorney.
(2) In view of the literal phrase "county attorney office operating expenses" , such expenditure was not contemplated for a particular county attorney, as such. The "office of county attorney" is the central consideration. With that premise, we proceed to the conclusion that even though you received the commissions after you left the office of county attorney, and considering that no other alternative was stated in KRS 134.545, such commissions should be delivered to the incumbent county attorney for expenditures in the manner and for the purposes described above. Note that KRS 134.545 states that such monies shall be used "only" for payment of county attorney office expenses. (Emphasis added). The word "only" means for no other purpose. Black's Law Dictionary, page 1241.