Request By:
Mr. Henry Hasty
Route #5
Shepherdsville, Kentucky 40165
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question as to whether or not county attorneys must publish a sworn statement under KRS 424.220.
The statute in question provides in part and in effect that every public officer of any county whose duty it is to collect, receive or disburse public funds, must at the end of each fiscal year prepare an itemized sworn statement of such funds collected and disbursed by him during the fiscal year just closed, unless he has chosen to file a monthly or quarterly statement pursuant to KRS 424.230. The affected officer is required to publish the statement in full within 60 days after the expiration of the fiscal year, "in a newspaper qualified under KRS 424.120."
KRS 424.990 provides for fines and forreitures to be imposed upon an officer required to file statements under KRS 424.220, and who violates the latter statute.
BASIC PURPOSE OF THE PUBLICATION LAW
Prior to the legal notices law enacted in 1958, KRS 61.290 (repealed in 1958) contained provisions very similar to KRS 424.220. That statute was interpreted as follows in Cooper v. Kentuckian Citizen, Ky., 258 S.W.2d 695 (1953) 697:
"The statute was enacted in 1928 in order to bring the light of publicity on the financial affairs of local governmental units. The legislative intent, implicit in the Act, was to require those officers who administer public funds to publish annually a statement which will inform the taxpayers of the amount of money collected when and to whom it was expended, and the purpose of which it was expended. . . . There is no ambiguity in the words or the meaning of the statute. It provides in specific terms who is to prepare the statements, what information shall be included in them, and the time and method of publication. Where the language of a statute is clear, it is the duty of the courts to give force and effect to the language as written. . . . It is said by appellant that the statute, as construed by the trial court, places an unreasonable burden on the public officials and an unnecessary expense on the taxpayers. But it is not a prerogative of the courts to weigh the wisdom of the statute. The legislature had the constitutional right to pass it and it is the duty of the courts to enforce it." (Emphasis added).
The original 1958 enactment of the legal notices law was characterized in Vincent v. City of Bowling Green, Ky., 349 S.W.2d 694 (1961) 695, as being "deemed to supersede all other statutes and parts of statutes containing specialized provisions for particular advertisements, to the extent that such provisions are in conflict with this act." Thus the legislation, if applicable in a particular situation, was deemed to be preemptive in nature.
THE AUDIT OF THE COUNTY ATTORNEY
You may have confused the audit of county attorneys with the financial statement required of KRS 424.220. They are two mutually exclusive laws. The State Auditor is required to audit the county attorneys, among other officials, annually, pursuant to KRS 43.070. However, under that statute the county attorney can employ a certified public accountant to audit his books, in lieu of the State Auditor's audit, upon proper notification to the State Auditor. See also KRS 64.810.
THE ANNUAL SETTLEMENT OF COUNTY OFFICIALS
Another matter affecting county officials, and which is not tied to the publishing of a financial statement (KRS 424.220) or to the audit of their books (KRS 43.070), is the matter of an annual settlement with the county. In Funk v. Milliken, Ky., 317 S.W.2d 499 (1958), the court dealt with the concept of settlement at page 506:
"A county officer who is compensated wholly or in part from fees is required to pay over to the county, each year, the excess of receipts over and above the amounts allowable for his personal compensation, the compensation of his legally authorized deputies and assistants, and authorized official expenses."
The State Auditor has told you that since January, 1973, the only fees the county attorney collects are the fees he receives for his work in collecting delinquent taxes, etc., pursuant to KRS 132.350, 134.340, 134.400, 134.500, 134.540 and 135.040. However, KRS 134.545 provides that such fees shall be used only for payment of the county attorney's office operating expenses. Of course that narrowly refers to the operating expenses of his office in connection with its use in the county attorney's carrying out his official duties (i.e. for the county and state), not private practice. Such fees can only be audited where the county attorney can establish a percentage of the time his office operation is devoted to his official daties and the remaining percentage of time that his office operation is used for private practice. Only with such arithmetical isolation of the percentage attributed to official duties can the county attorney be audited as to those fees.
If the county attorney receives in a particular year only the fees mentioned in KRS 134.545, then he will not be subject to paying out any "excess fees" under the "excess fee" principle covered in Funk v. Milliken, above. The reason for that is that such fees, based upon the statutorily mandated expenditure for office expenses, are not compensation to him, and must be expended as that statute directs. If a county attorney receives fees under miscellaneous statutes not involved in KRS 134.545, they would be excess, provided he attains, before considering the excess, his maximum rubber dollar compensation. The question then would be whether the county should get the excess. In the absence of a statute to the contrary, it would appear that any excess should go to the county especially since the county attorney is historically a county constitutional office (§ 99, Ky. Const.), but who presently has a state function (KRS 15.725).
IS THE COUNTY ATTORNEY SUBJECT TO FILING THE FINANCIAL REPORT UNDER KRS 424.220?
The county attorney is primarily a salaried officer. He is a member of the unified and integrated state prosecutorial system, for which work he receives a salary from the state. See KRS 15.700 and 15.725. He is also the civil lawyer for the county, for which services he receives a salary from the county. See KRS 69.210. It is possible that the county attorney could earn fees under miscellaneous statutes not mentioned in KRS 134.545; however the State Auditor has indicated that the only fees the county attorney's office collects is the tax collection fees involved in KRS 134.545.
It is true that such fees could be technically called "public funds" , since public funds are those funds required to be spent for a public or governmental purpose. Dieruf v. Louisville & Jefferson County Bd. of Health, 304 Ky. 207, 200 S.W.2d 300 (1947). However, as was pointed out in Cooper v. Kentuckian Citizen, Ky., 258 S.W.2d 695 (1953), the intent in the legal notice legislation was to focus the bright light of publicity on the affairs of local governmental units, such as cities and counties, and was to require those officers who administer such governmental funds to publish an annual statement. In the case of the county attorney, he is not the administrator or custodian of county funds.
For the foregoing reasons it is our opinion that the county attorneys of Kentucky are not required to publish a financial statement pursuant to KRS 424.220. In connection with the public interest, the auditing of the county attorney's books is ample in disclosing the specifics of his official operation (see KRS 43.070 and 64.810). OAG 42,074, copy enclosed, is modified accordingly.