Request By:
Mr. Robert Goodwin
Director of County Audits
Auditor of Public Accounts Office
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The U.S. Department of the Army Corps of Engineers has contracted with eighteen (18) fiscal courts and sheriffs for increased law enforcement at designated civil works water resource projects for 1978.
Your question is whether the federal financial assistance paid by U.S. Treasury check to the fiscal court and the sheriff is to be construed, in your audits of the affected county and sheriff's accounts, as fee income. Where the money is directly paid to the county treasurer, you include that in the county audit of the treasurer's office. Where the money is paid directly to the sheriff, you include it in his fee income. See KRS 43.070(1)(a) and (b). Legal Counsel for the U.S. Engineers tell us that the federal checks are payable to the fiscal court of the contracting county and the contracting sheriff of the county.
42 U.S.C. § 1962d-5d, enacted as a part of the Water Resources Development Act of 1976, provides that the Secretary of the Army, acting through the Chief of Engineers, is authorized to contract with states and their political subdivisions for the purpose of obtaining increased law enforcement services at water resources development projects under the jurisdiction of the Secretary of the Army to meet needs during peak visitation periods.
Such projects include various multi-purpose lakes such as Nolin Lake, Green River Lake, Rough River Lake, established under federal flood control and other legislation, and providing recreational facilities. These projects involve federally acquired lands.
Peak visitation at such projects often produces law enforcement problems. It is our understanding that the contracts between the U.S. Engineers and the fiscal courts and sheriffs are designed to furnish federal financial assistance to the sheriffs' offices in their official capacities, in order that the sheriffs and their staffs can patrol these areas with greater frequency and with more staff help. But it is the sheriff who performs the law enforcement services under the contract. 1
The county sheriff has general law enforcement responsibilities within the boundaries of the county, including the water resources project areas. See KRS 70.150, 70.160, KRS 431.005, and § 99, Kentucky Constitution.
It is our opinion that, under the contracts made pursuant to the federal law, the intent was merely to financially assist the county sheriffs, making it possible to step up the affected sheriffs' law enforcement activities in the federal water resource projects during peak visitation periods. Thus the sheriffs are merely receiving some federal funding for the sheriffs' services performed under the Kentucky law. Such funding is necessarily impressed with a public or fee income character.
Even though the checks are made payable to the fiscal court and sheriff jointly, the sheriff is the performing person and is entitled and required to consider such payments as fees accruing to his office. It is not personal income. Such income, along with the sheriff's other fees or public salary, must be in the aggregate subject to the rubber dollar limit for that particular year.
Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133 (1928) 137, held that § 246 of the Kentucky Constitution, as relates to a maximum salary for constitutional officers, applies regardless of the number of official positions involved and the public source of funding.
If there was a contract where only the county was a party and the check was made to the fiscal court only, then, as you say, your audit of the county treasurer's office would include the amount, since the money would be deposited into the county treasury or the county's bank account. However, where the check proceeds are turned over directly to the sheriff, he must treat such payment as fee income.
Footnotes
Footnotes
1 Only the enforcement of Kentucky laws is involved.