Request By:
Mr. Mark E. Gormley
Woodford County Attorney
197 South Main Street
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
At the beginning of his new term of office, the Woodford County Clerk has zero funds to operate on.
The question is whether it was permissible for the fiscal court to advance $500 in trust to the county clerk for use in making change, which money remains the property of the county and is returnable from the clerk upon demand?
A fee officer obligates himself to run the office with the fees that he takes in. If he needs cash to start off his term, he must treat it as his own personal obligation. So said the court in
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958).
Section 179 of the Kentucky Constitution prohibits a county from appropriating money to an individual. However, there is no constitutional problem where the county advances $500 to the clerk's office to facilitate the financial operations of that office, with the clerk being a bailee for the money and the money being returnable to the county on demand. The purpose behind § 179 was to prevent tax money from being diverted to nongovernmental purposes.
Louisville Municipal Housing Comm. v. Public Housing Admin., Ky., 261 S.W.2d 286 (1953). A bailment requires the bailee to exercise the utmost good faith and diligence in carrying out his duties.
Commonwealth v. Polk, 256 Ky. 100, 75 S.W.2d 761 (1934). Actually the clerk's duty in connection with excess fees, which must be finally turned over to the county, is the same as prescribed under the bailment rule.
The problem is the matter of the statutory authority for the fiscal court to make the advancement of county money to the county clerk. If there is statutory authority for this advancement of county funds, and the fiscal court properly budgets for such expenditure (See KRS 68.240) it would present no further problem. It would not, strictly speaking, be an expenditure. This petty cash matter would actually involve a short term transfer of money. In addition, we not that the General Assembly in KRS 64.355 recognizes that the fees of a county clerk are really property of the respective counties. In counties having a population of 75,000 or more, the county gets at least 25% of such fees. In other counties the clerk's excess fees must be turned over to the county. So there is no question as to the advancement's promoting a county purpose.
KRS 67.080(1)(c) provides that the fiscal court may regulate and control the fiscal affairs of the county. We see no problem with the fiscal court's providing a small sum, such as this, to the county clerk for petty cash for making change only in the operation of the clerk's office. However, it should be understood that the county money remains county money at all times and is not to be expended for any operative cost of that office. Further, the clerk must account strictly for such money as a bailee and return it upon demand to the county.