Request By:
Herbert M. O'Reilly, Esq.
Breckinridge County Attorney
Breckinridge County Courthouse
P.O. Box 539
Hardinsburg, Kentucky 40143
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising several questions concerning fees received by the former county attorney. Mr. Paul D. Miller served as county attorney from December 29, 1965 until December 31, 1977. He received his salary and fees as county attorney on a cash accounting basis. After he left office he continued to receive money from fees and from January 4, 1978 to March 14, 1978 he received fees on five occasions totaling $7,247.28. Combined with money received during the calendar year 1977 Mr. Miller's gross receipts in connection with his activities as county attorney were $21,570.00. The statutory maximum compensation permitted for the county attorney in 1977 according to the state auditor's audit was $17,577.00.
Your questions are as follows:
"(1) May the Fiscal Court of Breckinridge County enter an order permitting Paul D. Miller to change his accounting system for the years 1973, 1974, 1975, 1976 and 1977, to the accrual basis in order to put Paul D. Miller's income for the year 1977 under the statutory maximum?
(2) Is Paul D. Miller required to return all money received by him during the calendar year 1978, which is $7,247.28, to Breckinridge County; or may he retain that sum of money that was received by him during the calendar year 1978 that would not cause him to be in excess of the statutory maximum salary of $17,577.00 for the calendar year 1977."
According to the State Auditor's Office, under the cash accounting system, fees earned are entered as income for the year in which they are actually received by the county attorney from the treasury as opposed to when the fee was earned, collected and paid into the treasury. Under the accrual system fees earned are entered as income for the year in which they were actually earned by the county attorney as opposed to the year when he received the fees back from the treasury.
In OAG 60-1215, copy enclosed, we said that the county attorney could apply fees earned in one year but received from the treasury in another year to his salary in the year in which they are actually received back from the state. However, in connection with the last year of the county attorney's term of office, all fees earned that year should be considered in determining the excess fees of the office. The accrual method, rather than cash accounting method, would have to be used for the last year of the term or the county attorney would, in effect, be receiving a fifth year in connection with compensation and fees for what is legally a four-year term of office. In OAG 70-11, copy enclosed, we said in part as follows:
"It is our opinion that all fees earned by you for your last year in office [during the present term] should be considered in determining the excess fees of your office. This includes the period up to January 5, 1970, which marks the end of your term. See
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). See also KRS 69.260."
Not only does the fiscal court have the authority to regulate and control the fiscal affairs of the county, but it also has the authority to cause correct accounts and records to be kept of all receipts and disbursements of the public funds of the county and to have the accounts of all county officers audited. [Formerly KRS 67.080(6), (7); now KRS 67.080(1)(c), (d)].
Therefore, the accounting system utilized in connection with the compensation and fees of the former county attorney must be on the basis of the accrual system as to the last year of the officer's term of office. It is our understanding that this system was used by the state auditor's office in its audit of the account in question. All fees actually earned by the county attorney during the last year of his term of office must be considered in determining his excess fees even though some of the fees may have been received back from the treasury after he left office. The fiscal court probably has the authority under its general powers of record keeping to change accounting systems for the former county attorney; but, obviously, no matter what system is used, compensation cannot exceed the permitted maximum for that particular year. The former county attorney need only return that sum of money received in 1978 from the treasury which was in excess of the maximum compensation of $17,577.00 authorized for the county attorney in the calendar year of 1977.