Request By:
Mr. Robert M. Westrick
Carroll County Judge Executive
Courthouse
Carrollton, Kentucky 41008
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You present this question for our opinion:
"Can the county charge interest on money owed from any fee officer after his audit has been completed for that year?"
Under the landmark holding of
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958), a county officer who is compensated wholly or in part from fees is required to pay over to the county, each year, any excess of receipts over and above the amounts allowable for his personal compensation, the compensation of his legally authorized deputies, and authorized official expenses.
The "excess fees" concept is based upon each calendar year, not fiscal year, of the county fee officer's term of office.
Each calendar year must be treated as a separate unit of accounting.
Ader v. Howard, Ky., 263 S.W.2d 491 (1954). The calendar year accounting is based upon calendar years of the term of office. See § 99, Kentucky Constitution. See KRS 43.070(1)(b) and 64.810, providing for annual audits of accounts of certain local officials, and the time scheme contemplated.
KRS 64.820, as amended in 1982 (Ch. 121, § 3), effective July 15, 1982, deals with the collection of the amount due the county from county officials as determined by audit. It reads:
"(1) The fiscal court shall collect any amount due the county from county officials as determined by the audit of the official conducted pursuant to KRS 43.070 and 64.810 if the amount can be collected without suit.
"(2) In the event the fiscal court cannot collect the amount due the county from the county official without suit, the fiscal court shall then direct the county attorney to institute suit for the collection of the amount reported by the auditor or certified public accountant to be due the county within ninety (90) days from the date of receiving the auditor's or certified public accountant's report."
In response to your question as to whether the county can charge interest on the money due the county from the local official, the answer is that there is no statute which authorizes such interest. KRS 43.070 and 64.810 contain no authorization relating to interest. Public officials can only act within the limits of express or necessarily implied powers conferred upon them by law. Clark County Const. co. v. State Highway Com'n, 248 Ky. 158, 58 S.W.2d 388 (1933) 390; and
Mike Little Gas Co. v. Public Serv. Com., Ky. App., 574 S.W.2d 926 (1978) 927. In
Coleman v. Reamer's Ex'r, 237 Ky. 603, 36 S.W.2d 22 (1931), the court at page 24 pointed out that:
"The right to collect interest in this state therefore is by virtue of statute, and is a creature of the statute, not of the original common law of England."
The equitable doctrine, that one who uses money of another for his own benefit, should at least pay for its use, does not apply here since no commercial business is involved, and since the local officer has no authority to use excess fees for his own personal use. See