Request By:
Mr. Donald R. Erler
Assistant Jefferson County Attorney
1129 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
House Bill 718 was passed by the 1978 Regular Session of the General Assembly; and it reinstated in the statutes the fee allowed Kentucky county attorneys for the collection of delinquent real estate taxes. Your question relates to the use of such fees.
We addressed that question in OAG 78-439, copy enclosed. In that opinion we concluded that the subject fee could be used for all office expenses of the county attorney, so long as the expenses are necessary and are incurred in the performing of any statutory function of the county attorney. See the opinion for our detailed analysis of that problem.
House Bill 718 is silent as to any final disposition of excess fees that are involved as a result of receiving such fees.
We are unable to find any legislation that deals with this specific problem. We are therefore of the opinion that the old practice should continue. In other words, any excess fees arising out of the receipt of such fees should be turned over to the county at the end of each calendar year. See
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) 506. Also see
Ader v. Howard, Ky., 263 S.W.2d 491 (1954) 493, which stresses that such county officials, for accounting purposes, are on a calendar year basis.
Your final question relates to the reporting requirements of fees collected and expenses incurred for the operation of the office of the county attorney.
As you stated, the central audit responsibility for the county attorney is contained in KRS 64.810. Of course, under subsection (1) of that statute the county attorney has the right to employ a certified public accountant to audit his books, accounts, and papers of his office in lieu of the audit conducted by the state auditor as required by KRS 43.070. Subsection (3) provides that this statute shall not be construed as eliminating the requirement that the books accounts and papers of the officials named above, including the county attorney, be audited yearly. Further, subsection (3) provides that this section shall not preclude the state auditor from reviewing the reports of the certified public accountant. After preliminary review, should discrepancies be found, nothing in this section or in KRS 43.070(b) shall be construed as precluding the auditor's office from making its own investigative report or audit to verify the findings of the independent certified public accountant's report. Here again it is our opinion that such audits should cover each calendar year during the term of the county attorney.