Request By:
Mr. J. Scott Preston
Johnson County Attorney
Courthouse Annex
Paintsville, Kentucky 41240
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns the making of private donations for the upkeep of the sheriff's office. It reads:
"In response to a request to my office, I would like an opinion on whether or not the Johnson County Sheriff's Department may receive donations from private individuals and companies and corporations for the purpose of providing funds for the running of the office, i.e. salaries, expenses, etc.
The sheriff is a county constitutional officer whose principal duties involve tax collection, election duties, services to courts, and law enforcement. The sheriff is a fee officer. He is permitted to fund his office, i.e., pay his own salary, the salaries of deputies, and other authorized official expenses, out of the fees of his office.
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). The General Assembly, under the direction of § 106, Kentucky Constitution, has provided for sheriff's fees, for various services, by statutes. See
Board of Education of Madison County v. Wagers, Ky., 239 S.W.2d 48 (1951).
The General Assembly, by enacting KRS 67.080 and 67.083, has made it possible for the fiscal courts to contribute county money for the operative costs of the sheriffs' offices.
Thus, under statutory law and case decision, a sheriff's office may be funded by the sheriff's fees and the county treasury (tax revenues).
The sheriff has no statutory authority to receive donations for the operations of his office. Moreover, KRS 61.310(2) prohibits gifts paid to sheriffs or their deputies for the performance of any service. A violation of this authorizes the sheriff's removal from office and a fine of not less than $500 nor more than $5,000, or confinement in jail for not more than one (1) year, or both. In addition, subsection (7) of KRS 61.310 provides that the donor of any gift to any peace officer or to any governmental unit or officer thereof, where the gift is for the performance of any public duty, is subject to a fine of not less than $500 nor more than $5,000.
It is our opinion that a fiscal court, under its basic power statutes, KRS 67.080 and 67.083, has the implied power to receive donations from private persons and corporations for expenditure for county governmental purposes as authorized by statute. The fiscal court, however, in the agreement to accept donations, must avoid surrendering its freedom of judgment, such that its decisions will be influenced only by a regard for the public welfare. See 56 Am.Jur. 2d, Municipal Corporations etc., § 532, page 590, and § 563, page 616. Also see
Vidal v. Philadelphia, 2 How (U.S.) 127, 11 L. Ed. 205;
Edwards v. Goldsboro, 141 N.C. 60, 53 S.E. 652; and
Scruggs v. Sweetwater, 29 Tenn.App. 357, 196 S.W.2d 717 (1946).
The General Assembly has authorized counties to accept donations in specific situations: KRS 178.010(3) (a fiscal court may acquire land by gift for public purposes); KRS 68.125 (county may accept gifts for county county land and building fund); land and building fund); and KRS 179.375 (counties may accept donations in fee to roads and driveways used by the public in connection with churches, cemeteries and public school buildings).
Thus the General Assembly has in the several specific instances cited above given fiscal courts the authority to accept gifts for public purposes falling within the dominion of county government operations. A reasonable construction of KRS 61.310(7) suggests that the General Assembly intended to proscribe gifts for the performance of any public duty by a peace officer.
Swfit v. Southeastern Greyhound Lines, 294 Ky. 137, 171 S.W.2d 49 (1943).
CONCLUSION
(1) There is no legal basis whereby a sheriff may directly receive donations from private persons or corporations for the purpose of funding the sheriff's office. First, there is no statute permitting him to accept gifts for that office. Secondly, KRS 61.310 prohibits him, as a peace officer, from accepting gifts for the performance of any public duty.
(2) It is our opinion that the fiscal court may accept donations from any private or corporate sector for the purpose of such funds being used to assist, where necessary, in the funding of the sheriff's office, provided that the gift agreement makes it clear that the fiscal court will retain its usual statutory discretion in the detailed disbursement of such funds for the sheriff's office, and with the express understanding with the express understanding that the gift is not for any particular or specific performance of any public duty by the sheriff, his deputies or matrons. So long as the gift of a particular donor cannot be traced directly as specifically funding the statutory work of the sheriff, or of a particular deputy or matron, the legislative policy described somewhat vaguely in KRS 61.310 will not be violated.
The main point here is that the fiscal court must not be an agent in effecting the "buying "buying of the services" of the of the services" of the sheriff and his staff. In other words, economic power must not be used to create servants for its wishes. The sheriff's office works for the public, the people of the county. It cannot work for donors. There must be no such strings attached.