Request By:
Hon. Joseph B. Murphy
Assistant County Attorney
Fayette County Attorney's Office
302 First Federal Plaza
Vine & Upper Streets
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
The Fayette County Attorney's Office is concerned about the enormous potential for lawsuits being filed against prosecutors in the performance of their duties. You say that it appears that liability insurance coverage for the County Attorney and Assistant County Attorneys can be obtained at a cheaper rate if an endorsement is issued to the County Attorney's and his assistants' individual professional liability policies. If that is true, and assuming that the County Attorney can pay the premium for himself and assistants, you ask whether the cost of such endorsement on each policy may be paid by the County Attorney from fees received by him from the County Clerk for collection of delinquent taxes, etc.?
Certain fees are payable to the County Attorney pursuant to KRS 132.350 [tax assessment proceedings in Court], 134.340 [prosecution against sheriff relating to delinquent taxes] , 134.400 [delinquent taxes] , 134.500 [prosecuting on certificates of delinquency], 134.540 [action to declare tax sale invalid], and 135.040 [action by department of revenue on unsatisfied execution or uncollectible tax bill]. In that regard, KRS 134.545 reads:
"Moneys paid to the county attorney under KRS 132.350, 134.340, 134.400, 134.500, 134.540 and 135.040 shall be used only for payment of county attorney office operating expenses. "
It was our opinion in OAG 78-349 (copy enclosed), and still is, that the commissions or fees paid to the County Attorney under those statutory sections, above, may be used for the general operating expenses of the Office of County Attorney. Since the term "office operating expenses" is not statutorily defined, we concluded there and conclude here that the usual and ordinary meaning of the words used should be attributed to them.
Green v. Moore, 281 Ky. 305, 135 S.W.2d (1940) 683.
The "County Attorney Office operating expenses" clearly refers to all actual and necessary expenses incident to the proper conduct of the total duties of the Office of County Attorney.
While the County Attorney performs a dual role in government, i.e., he performs prosecutorial duties for the state [see KRS 15.725] and civil duties for the county [see KRS 69.210], however, there is nothing in KRS 134.545 suggesting that the expenses are to be restricted to the civil duties only, or to the prosecutorial duties only.
You told us that the rider would be narrowly restricted to coverage of each attorney in connection with the performance of his public duties. Further, the cost of the rider would be a specific sum over and above the premium on the original policy.
The County Attorney is virtually a salaried officer, since he receives a salary from the state for his prosecutorial duties and a salary from the county for his civil duties.
In
Hennessy v. Stewart, Ky., 283 S.W.2d 719 (1955), the Court ruled that the cost of insurance designed to protect a Circuit Court Clerk from personal liability was not an "office expense," as mentioned in § 106 of the Kentucky Constitution, and would have to be paid by the Clerk, personally.
In view of the express holding in Hennessy, above, it is our opinion that the general language in KRS 134.545, relating to "county attorney office operating expenses, " is not sufficient to overcome this explicit characterization of liability insurance for an officer given by the Court in Hennessy. Therefore, we say that the statute does not authorize the use of subject fees to pay the cost of such liability insurance, covering the County Attorney and his assistants. As Judge Dietzman wrote in
Harlan County v. Blair, 243 Ky. 777, 49 S.W.2d 1028 (1932) 1029, the Courts are required to interpret and expound the law as it is written.
While the Court, in Funk v. Milliken, Ky., 317 S.W.2d 499 (1958), observed that credit may be allowed a fee officer against excess fees for expenses that are reasonable in amount, beneficial to the public, and not predominantly personal, the specific holding in Hennessy means that the "not personal" test is not met, as relates to liability insurance, in the absence of an express statute to that effect. While the Court has said that an officer required to expend money in connection with his public function should be repaid, Hennessy's strict doctrine is that only the legislature, by an express provision to that effect, could authorize the use of subject fees to pay the cost of the liability insurance. The inequity here must address itself to the General Assembly. See
Goodlett v. Anderson County, 267 Ky. 166, 101 S.W.2d 421 (1936).