Request By:
N. Scott Lilly
First Assistant
Jefferson County Attorney's Office
1001 Fiscal Court Building
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Richard C. Carroll, Assistant Attorney General
In a letter to this office, you requested an official opinion as to whether,
. . . salaries of county attorney employees paid from fees generated by the county attorney's collection of delinquent taxes, rather than county funds, are subject to the requirements of KRS 78.510 et seq.
In arriving at a decision on this issue, it is useful to review the statute which authorizes the use of said fees in the manner described in your letter.
KRS 134.545 provides:
Moneys 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.
Over the years, this statute has been interpreted by this office on numerous occasions. In the most recent opinion, it was stated:
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 its 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 predominately 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 reasonable necessary expenses incident to the proper conduct of the total duties of the office of county attorney. See OAG 85-17.
In your letter, you did not specifically indicate the types of duties that the employees at issue perform for the county attorney's office. However, in speaking with you over the phone, you advised that the individuals performed duties associated with the various law enforcement activities of the office. Therefore, it appears that the use of these funds to pay those individuals would comply with the previously cited requirements in OAG 85-17.
After establishing that the use of said fees as described in your letter is appropriate, the next issue is whether the employees who receive said funds in the form of a salary are required to become members of the county employees' retirement system as described in KRS 78.510 and the accompanying statutes. The provisions of the chapter dealing with the county employees' retirement system, in general, authorize county employees to pay into a retirement plan during their years of service to the county. Numerous terms used in that chapter are specifically defined in KRS 78.510 and various qualifications in order to participate in the system are contained from KRS 78.510 through 78.990.
KRS 78.510(3), as amended by the 1990 General Assembly, defines a county as follows:
. . . any county, or nonprofit organization created and governed by a county, counties, or elected county officers, or a sheriff and his employees or county clerk and his employees or political subdivision or instrumentality, including school boards, charter county government, or urban county government participating in the system by order appropriate to its governmental structure, as provided in KRS 78.530 . . . .
Subsection 6 of KRS 78.510 defines an employee as:
Every regular full-time appointed or elected officer or employee of a participating county and the coroner of a participating county, whether or not he qualifies as a regular full-time officer . . . .
KRS 78.530 is the provision dealing with mandatory participation in the retirement system. That section provides:
(1) Each county and school board, as defined in KRS 78.510 , will participate in the system by appropriate order authorizing such participation which has been entered and duly recorded in the records of the governing body of the county or school board. In cases where general purpose county government does not participate, but the sheriff and his employees or the county clerk and his employees do, the sheriff or the clerk shall retain the order in his office . . . . [Emphasis added.]
Finally, the last statute which needs to be reviewed in regard to your question is KRS 78.540 dealing with membership in the system. That statute provides that the membership shall consist of:
(1) All persons who become employees of a participating county after the date such county first participates in the system, except a person who did not elect membership pursuant to KRS 61.545(3) . . . . [Emphasis added.]
After reviewing all the above-cited statutes, one is led to the conclusion that the key to answering your question is whether the employees of the county attorney's office as described in your letter and during the follow-up telephone conversation should be considered as employees of a participating county as defined in KRS 78.510(3) and (6). If not, then they are not allowed to participate in the system.
As previously cited, KRS 78.510(3) defines county in a number of ways. Specifically, it includes:
1. Any county; or
2. A nonprofit organization created and governed by county, counties or elected county officials; or
3. The sheriff and his employees; or
4. The county clerk and his employees; or
5. Political subdivision or instrumentality including school boards; or
6. Charter or urban county government.
However, that definition fails to mention the county attorney or his employees as is the case with the sheriff and the county clerk. This distinction is carried forward in KRS 78.530 wherein it is noted that in cases where general purpose county government does not participate in the system but the sheriff and his employees or the county clerk and his employees do, the sheriff or the clerk shall retain the order of participation in the system in his office. Finally, KRS 78.540 mandates that membership in the system shall consist of persons who become employees of a participating "county." Once again, no mention is made of employees of the county attorney's office; instead, reference is made simply to the general definition of a county as that term is defined in KRS 78.510. This specific inclusion of the sheriff and county clerk in the statute and exclusion of the county attorney in the above-cited statutes is significant due to an important rule of statutory construction which holds, ". . . that the enumeration of a particular thing excludes other items which are not specifically mentioned." See Smith v. Wedding, Ky., 303 S.W.2d 322 at 323 (1957).
Another factor one must recall at this point is that the individuals described in your letter and during our telephone conversation were not formally approved for hiring by the Jefferson Fiscal Court as county employees nor are their salaries paid out of funds from the fiscal court nor does the court control their duties, or the right to discipline the individuals. Therefore, those individuals are not to be considered as county employees. See Carnes v. Department of Economic Security, Ky., 435 S.W.2d 758 (1968). See also OAG 90-85, a copy of which is enclosed. Instead, they are viewed as employees of the county attorney's office which, as indicated above, is not included in the definition of a participating county.
Therefore, since the employees at issue are not county employees but, instead, employees of the county attorney's office and since the county attorney's office was not specifically mentioned in the above-cited statutes along with other constitutional offices, it is the opinion of this office that the individuals referred to in your letter are not to be considered as employees of a participating county as described in KRS 78.510 et seq . They are therefore ineligible to participate in the county employees' retirement system.