Request By:
Hon. Ben B. Stockton, Jr.
Union County Attorney
Courthouse
Morganfield, Kentucky 42437
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
The Union County Jailer was convicted February 13, 1981 in Union Circuit Court of the criminal offense of theft by failure to make required disposition of funds under KRS 514.070. The jury sentenced him to three (3) months in jail and imposed a fine of $100.00. He was specifically charged with collecting $11,968.00 in excess fees and not returning that amount to the Union County treasury. The audit was conducted by the State Auditor's Office.
The Jailer will be sentenced on March 2, 1981. We assume no appeal will be taken.
Your question reads:
"Please advise now this conviction affects his completing his term of office. May he complete his term or does he immediately forfeit his office? If he does forfeit his office what is the procedure for removing him from office?"
Under § 150 of the Kentucky Constitution, all persons shall be excluded from office who are convicted of a felony or of a high misdemeanor; but the disability may be removed by pardon of the Governor.
Theft by failure to make required disposition of property received is a Class A misdemeanor unless the value of the property is $100.00 or more, in which case it is a Class D felony. Thus the misdemeanor is a lesser included offense. The Commonwealth's Attorney who prosecuted the case told us that under the trial court's instructions the jury found defendant guilty of the misdemeanor. A defendant convicted of a misdemeanor may be sentenced to jail for a term not to exceed twelve (12) months [KRS 532.090(1)] and fined up to $500.00 [KRS 534.040 (2)(a)]. Under the general definitions of the Kentucky Penal Code, a "misdemeanor" means an offense, other than a traffic infraction, for which a sentence to a term of imprisonment of not more than twelve (12) months can be imposed. There is no statutory definition of "high misdemeanor, " as mentioned in § 150 of the Kentucky Constitution.
The offense of theft by failure to make required disposition of property contains these elements: (1) the defendant obtains property belonging to another; (2) he must know he has an obligation to make a specified disposition of the property or proceeds; and (3) he fails to make the required disposition of the property or proceeds.
A fee officer, such as the Jailer in this case, is required to turn over any excess fees to the
County Treasurer. Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). In Brickey, Kentucky Criminal Law, § 14.08, it is written that a "presumption arises in the case of public officials and other persons who may be charged with knowledge of their legal obligations with regard to the handling of the property of others." See KRS 514.070(3)(a). There is a presumption that a public official has dealt with the property as his own when he fails to account or pay upon lawful demand. KRS 514.070(3)(b). See also
Blanton v. Commonwealth, Ky., App., 562 S.W.2d 90 (1978).
As we said above, there is presently no statutory definition of "high misdemeanor. " Section 150 of the Kentucky Constitution provides that an official convicted of a felony or a high misdemeanor is ineligible to hold office. The Jailer was convicted of a misdemeanor. Now the question is: What is a high misdemeanor, and was the Jailer convicted of a high misdemeanor?
The writers of the 1891 Constitution envisioned, by the language employed, that it would be left up to the General Assembly as to what constitutes a felony and a high misdemeanor as relates to § 145 (persons entitled to vote) and § 150 (ineligibility to hold office) . In the Debates, Constitutional Convention (1890), Kentucky, Vol. 2, page 1837, we find this discussion:
"The delegate from Campbell said to-day that it was not yet satisfactorily determined what is a high misdemeanor. The Committee's report leaves it to the Legislature of the State to declare what a high misdemeanor is."
There was a proposed amendment which deleted the term "high misdemeanor" from what became § 145; however, the amendment failed. While many delegates feared to leave the definition of "high misdemeanor" to the legislature, it appears their fears (as relates to disenfranchising of voters) were groundless, since the legislature has failed to define the term. And since that part of § 145 and § 150 requires legislative action, the term "high misdemeanor, " as it presently stands, is without operative effect. See Constitutional Debates, Vol. 2, pp. 1887-1888, 1891, and 1900.
Since § 150 of the Constitution leaves it to the legislature to define a "high misdemeanor, " and since the legislature has not defined the term statutorily, it is our opinion that the term "high misdemeanor" in that section is presently meaningless and inoperative. Under the factual circumstances, the Jailer was merely convicted of a misdemeanor, and thus § 150 has no application to him. His conviction does not affect his completing his term of office. He was not rendered ineligible to hold office.
The Courts are not in a position to define the term "high misdemeanor, " since the Constitution leaves it to the General Assembly to define, if it is to be done at all. See § 28, Kentucky Constitution.