Request By:
Mr. James Heston
Lawrence County Treasurer
Courthouse
Louisa, Kentucky 41230
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Lawrence County Fiscal Court has asked you, as County Treasurer, to obtain our opinion on a county finance matter. We have obtained additional facts from your office and the state Auditor's Office by telephone.
Around September, 1979, the County Sheriff came before the Lawrence Fiscal Court and told them that for the year of 1978 he only received $6,852 as his personal compensation. $2,000 of that amount was budgeted and paid to the sheriff for his compensation out of the county treasury; the remainder came out of the fees of his office. The maximum permissible compensation for the sheriffs in Kentucky for 1978 was $18,763.20. See KRS 64.527 and
Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965). Then he requested the fiscal court to make up the difference between that amount ($6,852) and the maximum amount of $18,763.20 permissible in 1978, which difference amounts to $11,911.20. At that time (September, 1979), the fiscal court by an order entered of record agreed to pay him that difference out of the county treasury, provided that such money was available. The Sheriff filed a report of receipts and disbursements with the fiscal court for 1978 around June or July, 1979, and the fiscal court accepted it.
Actually, Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) 506, requires the sheriff to turn over any excess fees (make his financial report of receipts and disbursements) to the county treasury within a reasonable time after each calendar year of his term. Your question is whether the fiscal court can now vote to rescind the order approving this extra compensation for the sheriff for 1978. The answer is "yes" and the fiscal court has the responsibility of taking such rescinding action for reasons that follow.
Under the current budget, the fiscal court has no money for the purpose of paying the sheriff any additional compensation for 1978.
Under the September 1979 order, and since the county cupboard is bare as to any compensation for the sheriff for 1978, the pragmatic answer would be that fiscal court may now rescind its prior order. But this matter goes deeper than that.
The significant fact here is that in June or July of 1979, the sheriff filed his financial report for 1978, and it was accepted by fiscal court. There is no suggestion that any unliquidated claim was involved. A settlement with county officers is in the nature of assessing the receipts and disbursements of the officer to determine whether he owes the county any excess fees, and whether certain claimed expenditures of the officer should be allowed by fiscal court as credits against excess fees. In
Pulaski County v. Richardson, 225 Ky. 556, 9 S.W.2d 523 (1928) 527, the court ruled that when fiscal court allows a claim it acts judicially, and cannot thereafter reconsider its action. The reasoning behind this principle is simply that in exercising a judicial act, there must be a finality about such determinative action.
In the case presented, the fiscal court cannot now reconsider its prior action in approving the sheriff's 1978 financial report. A compromise settlement by a sheriff with a county, based upon a mutual mistake, whether of fact or law, may be opened up for correction.
Webster County v. Vaughn, Ky., 365 S.W.2d 109 (1963) 112. But here there was no compromise settlement and no mutual mistake.
Lastly, the fiscal court is not required to provide a salary for the sheriff. It is permissive only.
Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965) 363; and KRS 64.720. The fiscal court could have authorized the salary of $11,911.20 in 1978, provided it had the money. But the 1980 accounting year is independent of the 1978 accounting year.
For these cumulative reasons it is our opinion that fiscal court should rescind its order which approved the 1978 salary of $11,911.20 by an appropriately entered order.