Request By:
Mr. Abe P. Carter
Monroe County Attorney
P.O. Box 231
Tompkinsville, Kentucky 42167
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question concerns certain county election officers who are involved in litigation. They have submitted a claim to the Monroe County Fiscal Court for their litigational costs. The letter reads:
"As Monroe County Attorney I need your opinion on the following:
"On election day, November 8, 1983, Monroe County Judge/Executive, Douglas Carter, and his brother, Windell Carter, were arrested for electioneering at the polls and bribery. The warrants were signed by election officers, Joe Stephens and Brenda Dubree, who were serving as such on that day. However, the warrants were later dismissed in the Monroe District Court by Judge Roger Elliot.
"After that Judge Carter and his brother filed a civil rights suit in federal court against the two election officers named above, who had submitted a claim to the Monroe County Fiscal Court for costs of their legal fees in the action. The election officers contention is that they were acting on behalf of Monroe County in the capacity as election officers on that day, and they feel that the fiscal court should be responsible for their legal fees for that reason.
"As Monroe County Attorney and representative of the Monroe County Fiscal Court, it is my belief that even though the election officers felt that they were justified in their charges, which were dismissed by the Monroe District Court, that it is now just a civil matter between the parties involved, and that the Monroe County Fiscal Court is not liable for the election officers legal fees. "
We assume Mr. Stephens and Ms. Dubree were precinct election officers at the time of the election in question. KRS 117.045. KRS 117.235(3) prohibits any person from electioneering within a prescribed distance of the voting machine. Concerning an election officer's duties, see KRS 119.135 and 119.265. Concerning the crime of bribery, see KRS 119.205.
Now turning to the claim of the election officers against the county for their legal costs, attorney fees, etc., in the civil rights suit, 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).
CONCLUSIONS
(1) Your letter suggests that the civil rights suit is pending. In such case, under the above guidelines, it cannot be determined by the fiscal court whether these election officials were acting in good faith or not until that litigation comes to an end.
(2) In the event the litigation discloses that the election officials were acting in good faith and that they were not found guilty of any wrongdoing, civil or criminal, we believe that the nature of their functions as election officers and the statutory duties involved, as they undoubtedly figure in the litigation, affect county governmental interest.
(3) Even assuming, for the present, that the three (3) elements above will co-exist at some point (the third element consisting of properly budgeted county funds for such reimbursement purposes), it is our opinion that the fiscal court's providing for reimbursement of the two election officials' litigational expenses is permissive only. There is nothing mandatory about it. The fiscal court or the county is simply not liable for their legal costs in that suit.