Request By:
Mr. Richard M. Bentley
Route 1, Box 46
South Portsmouth, Kentucky 41174
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the Chairman of the Greenup County Board of Education you have asked the Office of the Attorney General for an opinion concerning KRS 156.480 which is designed to prohibit an employe of any local board of education from having any pecuniary interest, either directly or indirectly, in supplying goods or services for which more than $25.00 of school funds are expended in a year. Your questions are as follows:
(1) Is there any statute of limitations concerning this? If so, what is it?
(2) Also, what are the responsibilities and duties of the County Attorney once receiving a complaint of a violation of this law?
It is necessary to look carefully at the entire section of our school law before responding to your questions. KRS 156.480 reads in full as follows:
"If any employe of the department of education or the superintendent, assistant superintendent, business manager, purchasing agent, or employe of any county or independent school district shall have any pecuniary interest either directly or indirectly in an amount exceeding twenty-five dollars ($25.00) per year either at the time of or after his appointment to office, in supplying any goods, services, property merchandise or services, except personal services which are in addition to those required by contract for employment, of any nature whatsoever for which school funds are expended, or if any such person receives directly or indirectly any gift, reward or promise of reward for his influence in recommending or procuring the use of any goods, services, property or merchandise of any kind whatsoever for which school funds are expended, he shall upon conviction be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500) and his office or appointment shall without further action be vacant."
In order to determine what, if any, statute of limitation might exist regarding this provision, we first must classify it. The statute's penalty language for conviction is a fine and expulsion from employment. Kentucky's Penal Code provisions define various terms as used in the Penal Code. KRS 500.080(10) defines a "misdemeanor" as "an offense, other than a traffic infraction, for which a sentence to a term of imprisonment of not more than twelve (12) months can be imposed." The term "offense" is defined in subsection (11) to mean "conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state or by any law, order, rule or regulation of any governmental instrumentality authorized by law to adopt the same." "Violation" is defined in subsection (17) as "an offense, other than a traffic infraction, for which a sentence to a fine only can be imposed." Looking at these definitions together it is to be concluded that the wrong committed under KRS 156.480 is an "offense" which is a "violation" since only a fine and not incarceration may be imposed. Further support for classifying the wrong under KRS 156.480 as a violation is found in KRS Chapter 532 and the section on designation of offenses, KRS 532.020(4) which states:
"Any offense defined outside this code for which a law outside this code provides a sentence to a fine but no term of imprisonment shall be deemed a violation."
KRS 156.480 is an offense defined outside the Kentucky Penal Code itself and does provide for a fine but no term of imprisonment.
Turning back to the general provision of the Kentucky Penal Code, specifically at KRS 500.050, provided is the time limitations on the prosecution of offenses. This section reads in full as follows:
"(1) Except as otherwise expressly provided, the prosecution of a felony is not subject to a period of limitation and may be commenced at any time.
(2) Except as otherwise expressly provided, the prosecution of an offense other than a felony must be commenced within one (1) year after it is committed.
(3) For purposes of this section, an offense is committed either when every element occurs, or if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendent's complicity therein is terminated."
Subsection (2) is applicable to our consideration of KRS 156.480. We know of no expression to the contrary so it must be concluded under this section that a violation under KRS 156.480 is to be prosecuted within one year after it is committed.
As for your second question, we believe a county attorney has the responsibility to consider the merits of any allegation that a violation has been committed under KRS 156.480 and if the facts support the allegation, prosecution should then be initiated in the appropriate state district court.