Request By:
Mr. Frank H. McCartney
Fleming County Attorney
Courthouse
Flemingsburg, Kentucky 41041
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You refer to KRS 64.530(6), as amended in 1982 (Ch. 384, § 3), relating to an expense allowance for justices of the peace. That subsection provides in part that justices of the peace and county commissioners may receive no more than three thousand six hundred dollars ($3,600) annually or three hundred dollars ($300) per month as an expense allowance for serving on committees of fiscal court. The fiscal court is required to fix the amount to be received within the above limit, but no change in compensation except as provided in KRS 64.285 shall be effective as to any member of a fiscal court during his term.
Your question:
"May any portion of that or all of that expense allowance be paid from the county road fund?"
You have noted that KRS 64.258, which provides an expense allowance, conditions the payment of the allowance on available "excess funds" in the county treasury. However, we believe that allowance is independent of the allowance treated in KRS 64.530(6).
Section 180 of the Kentucky Constitution provides in part:
" . . . [e]very ordinance and resolution passed by any county, city, town or municipal board or local legislative body levying a tax, shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose."
KRS 68.100(1) and (2) reads:
"(1) All county taxes shall be levied by order or resolution of the fiscal court. The purpose for which each tax is levied shall be specified in the order or resolution, and the revenue therefrom shall be expended for no other purpose than that for which the tax was levied. Failure to specify the purpose of the tax shall render the order or resolution invalid.
"(2) If any county tax revenue is expended for another purpose than that for which the tax was levied, each officer, agent or employe who, by refusal to act, could have prevented the expenditure, and each member of the fiscal court who voted for the expenditure, shall be jointly and severally liable to the county for the amount of county tax revenue so expended. The county attorney shall prosecute to recover all such actions, and if he fails to do so for six (6) months after the money is expended any taxpayer may prosecute such action for the use and benefit of the county.
The answer to your question is that to the extent that a particular county tax ordinance or resolution spells out with particularity that all or a certain portion of the tax must go for county road purposes, any expenditure of that tax money, "earmarked" for county road purposes, for the subject expense allowance would be in violation of § 180, Kentucky Constitution, and KRS 68.100. See
Bernard v. McFarland, 267 Ky. 210, 101 S.W.2d 913 (1937) 914, which declared that "It is true that taxes levied and collected for one purpose may not be expended for another." (Emphasis added).
An exception would be that where the magistrates by appropriate documentation can isolate a certain part of the monthly expense allowance as involving their actual work on the "county road committee", that particular portion of the expense allowance attributed to such road committee work may be paid out of the county road fund. See
Rice v. Marcum, 294 Ky. 486, 172 S.W.2d 75 (1943), in which the court held that certain county road and bridge bond proceeds could be expended for everything appropriately connected with and incidental to the construction and maintenance of an efficient road system.
In answer to your second question, the expense allowance under KRS 64.530(6) can be paid by the county (fiscal court) under these conditions: (1) The fiscal court must fix the specific amount to be paid the magistrates serving on fiscal court, within the three hundred dollar ($300) limit per month. (2) The amount paid to them must reflect by appropriate documentation, the actual serving on committees of the fiscal court. (3) The money would have to be budgeted under KRS Chapter 68 and would come out of "general fund" money available and uncommitted to other purposes. See KRS 68.240(2)(a) (general expenses of county government).