Request By:
Mr. Douglas Brandenburg
Lee County Judge Executive
Courthouse
Beattyville, Kentucky 41311
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Lee County Fiscal Court desires our opinion on a question concerning the payment of attorney fees accruing in the defense of the Sheriff of Lee County. Your letter reads:
During the last year a couple who had been arrested by the Sheriff of Lee County brought suit against the fiscal court, county judge, sheriff, city of Beattyville police and state trooper. The suit was brought and tried in federal court with the outcome being not guilty.
The Commonwealth of Kentucky paid for the state trooper's attorney, City of Beattyville paid for their police officers attorney, the county attorney represented the fiscal court and the county judge whose case was dismissed at the first hearing, at that time the county attorney no longer represented the sheriff. Therefore, the sheriff had to hire an outside attorney to represent him. Now he has brought the bill to the fiscal court for payment, saying that he wished for the court to pay it due to the fact that the county attorney did not represent him.
The court is in question, is it legal to pay his attorney fees of $3,000.00 due to the fact that he was an elected official.
This raises the general subject of the right of fiscal court, without any specific statutory authority, to expend county funds in connection with litigation involving the sheriff.
The fiscal court could, in its discretion, contribute county money to the payment of the sheriff's attorney fees under the co-existence of these elements: (a) There are properly budgeted funds in existence from which this could be paid; (b) the litigation concerns a subject matter which is in the county's range of governmental interests; and (c) it must appear from the litigation, after it has been finally adjudicated, that the sheriff in effecting the arrests acted in good faith in the discharge of his official duties. See KRS 67.080, 67.083, and Roberts v. City of St. Louis, Mo., 242 S.W.2d 293 (1951); and Lawrence County v. Stewart, 287 Ky. 827, 155 S.W.2d 446 (1941). "County interest", mentioned above, refers to a legal, equitable or official interest in the subject of the action. The "good faith discharge of official duties" on the part of the sheriff means that he has not transcended his official authority and scope of duties by engaging in a willful and malicious wrongdoing. See Roberts v. City of St. Louis, supra. In that connection, the requisite "county interest" and "good faith discharge of duties" requirement are basic requisites which should be carefully assessed by the fiscal court and the county attorney after the arrest case has been completely adjudicated.