Request By:
Mr. Fred B. Creasey, Exec. Director
Kentucky Association of Counties
P.O. Box 345
Frankfort, Kentucky 40602
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
In OAG 79-279 we concluded that, where a county jailer was subject to a delay in obtaining dieting fees from the state and he borrows money to tide him over until he receives his dieting fees from the state, the jailer has no authority to pay interest on the private loan from his jailer's fees. See
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). The key factual element in that opinion as to the necessity for private borrowing on the part of the jailer is that claims for dieting are turned in at the end of each month. It is usually around the 20th or 25th day of the succeeding month that the jailers receive their dieting fees from the state pursuant to KRS 64.150. However, the time lag situation relating to the state's payment of dieting fees must be accepted as a reasonable interlude in state-to-local financing.
In OAG 81-70, an entirely different factual situation was presented. In Clark County the current jailer took office in November, 1980, but the county jail was immediately closed until January 1, 1981. During the period the jail was closed (for repairs), the jailer was faced with the burden of paying deputies (to be trained) and other necessary expenses. The jailer borrowed money to fund the necessary operations during the closed period; however, the borrowed money went into a special account of the jailer.
The money from that account was released upon the signature of the county treasurer and the county judge/executive. We concluded in that opinion that the jailer could take credit against his excess fees as to interest paid on the borrowed money, as well as for other necessary and official expenses of the jail. See Funk v. Milliken, above.
You say the two opinions are in apparent conflict.
Actually they are not in conflict. In OAG 79-279, we merely reiterated a basic doctrine that the county official is privately responsible for a private loan extended to him, even though he had a public purpose in mind (smoothing out financially his jail operation). However, OAG 81-70 can be carefully distinguished on its facts. The jail was closed, which, of itself, is an extraordinary phenomenon. Under the facts, the county apparently treated the loan as an obligation of the county. The loaned money was required to be expended just as county money is required to be so expended (upon signatures of the county treasurer and county judge/executive). KRS 68.020(1). The excess fees of the jailer constructively, even before a transfer to the county treasury is made, belong to the county. Funk v. Milliken, above. Thus essentially the expenditures for the jail, including the interest on the loan, were paid with county money. Moreover, the fiscal court has the overall responsibility for maintaining the county jail. KRS 67.080 and 67.083. Thus from a factual standpoint, the county's treatment of the matter, and the obvious equity of the situation, the loan was essentially a county loan; and the county has the power to pay interest on its obligations.
When the fiscal court accepts the excess fees report of the jailer for 1980, that should seal the matter.
Thus, as you can see, OAG 81-70 does no violence to the earlier OAG 79-279.