Request By:
Mr. Bob Martin
City Editor
The Lexington Leader
Main & Midland
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on questions concerning the purchasing procedures of the Fayette County Sheriff. The questions relate to the purchase of 20 patrol cars by the Fayette County Sheriff's Department in 1981. The decision to buy the cars was made by the sheriff alone, you say, and the purchase apparently was made without benefit of competitive bidding, according to your letter.
The questions read:
"Is the sheriff required to follow the purchasing procedures of the urban county government?
"Is the sheriff required to adhere to the procedures outlined in the state Model Procurement Code or any state statute?
"Does any governing body have the power to establish purchasing procedures for the sheriff?
"Is the sheriff required to formulate any consistent set of purchasing procedures for his office; if so, must these be in written form?"
Apparently, over the years the sheriff in Fayette County has engaged in purchases for that office without the participation or intervention of the Division of Central Purchasing of Urban County Government. See Charter of the Lexington-Fayette Urban County Government, Section 6.06. That section provides that the Division of Central Purchasing shall be responsible for making all purchases for the merged government, its departments, agencies, divisions and such boards and commissions as the Council may direct.
In counties having a population of 75,000 or over, and including counties having an urban-county form of government, the financial operations of the sheriff's office are governed by KRS 64.345. That statute requires the sheriff in such county to monthly turn over all receipts of that office to the state treasury. In turn, the salaries of the sheriff and deputies and other necessary official expenses are paid out of the "75% account" of the sheriff in the state treasury upon orders of the circuit court of that county. See Connors v. Jefferson County Fiscal Court, 277 Ky. 23, 125 S.W.2d 206 (1939) 209.
Pursuant to KRS 64.350, twenty-five percent of the sheriff's total fees after each year's collections are paid out of the "sheriff's 25% account" in the state treasury to the urban county government.
As we said, all necessary office expenses, including necessary equipment, are paid out of the sheriff's "75% account."
Under § 106 of the Kentucky Constitution, as interpreted in Shamburger v. Commonwealth, Ky., 240 S.W.2d 636 (1951), the sheriffs in counties of 75,000 or more are considered state officers for purposes of compensation.
The doctrine of allowing a constitutional fee officer credit against the fees of his office for necessary office expenses was succinctly stated in Funk v. Milliken, Ky., 317 S.W.2d 499 at 506:
"In more recent years, this Court has departed from the stringent limitations of the Nunnelley case, and has adopted the view that credit may be allowed for expenses that are reasonable in amount, beneficial to the public, and not predominantly personal to the officer in the sense that by common understanding and practice they are considered to be personal expenses. See Holland v. Fayette County, 240 Ky. 37, 41 S.W.2d 651; Commonwealth v. Coleman, 245 Ky. 673, 54 S.W.2d 42; Goodlett v. Anderson County, 267 Ky. 166, 101 S.W.2d 421. Support for this view is found in Section 106 of the Kentucky Constitution, which recognizes that 'necessary office expenses' are a proper charge against fees."
While the expenses of the sheriff's office in counties having a population of 75,000 or more must be paid out of his "75% account" in the state treasury, the basic credit concept as to precisely what expenses are deemed necessary and constitutional applies equally to counties of 75,000 population or more and to counties of less than 75,000 population.
In answer to question no. 1, any "local public agency" may adopt the provisions of KRS 45A.345 through 45A.460. KRS 45A.345(9) defines "local public agency" as follows:
"(9) 'Local public agency' shall mean a city, county, urban-county, school district, special district, or any agency formed by a combination of such agencies under KRS Chapter 79, or any department, board, commission, authority, office or other sub-unit of a political subdivision which shall include the offices of the county clerk, county sheriff, county attorney, coroner and jailer."
The sheriff of Fayette County is not required to follow the purchasing procedures of urban county government. See § 11.05, Charter of the Lexington-Fayette Urban County Government. See also § 6.06 (Department of Finance), Charter of L-F Urban County Government.
If the sheriff opted (it is permissive only) to adopt KRS 45A.345 through 45A.460 of the Model Procurement Code, prior to the purchase of the subject vehicles, then his purchase of the cars would be subject generally to the competitive bidding principle, in the absence of any applicable exception in those statutes.
KRS 424.260 (bidding statute) has no application to the sheriff. That statute covers only a city, county or district, or board or commission of a city or county.
Regardless of whether or not the sheriff adopted those sections of the Model Procurement Code, the purchase of the patrol cars would have required approval by the Fayette Circuit Court as outlined in KRS 64.345. It is our view that the courts would not approve such a purchase where the courts believe that the sheriff did not use sound business judgment in effecting such purchase. "Sound business judgment" would normally embrace the competitive bidding principle as a matter of common law. However, such approval initially is a matter for the Fayette Circuit Court, not the urban county government. In any event, the title to the vehicles should remain in the urban county government. See OAG 65-881, published by Banks-Baldwin Law Publishing Company. Records of the State Department of Finance indicate that by document dated March 23, 1982, $180,000.00 was taken out of the sheriff's 75% account for the purchase of twenty (20) new autos for the sheriff's official use. No price contract number was indicated. The check for $180,000.00 was made payable to Paul Miller Ford, Inc. of Lexington, for the invoiced twenty (20) autos.
We have answered your second question above.
As relates to question no. 3, the urban county council has no statutory basis for establishing purchasing procedures for the sheriff. See KRS 64.345. The circuit court action under that statute preempts the field.
Concerning question no. 4, the Fayette Circuit Court, under KRS 64.345, could establish reasonable guidelines for making purchases for the sheriff's office, consistent with the policy expressed in that statute.
Under KRS 45.365(1), any political subdivision may purchase materials and supplies and equipment under a state price contract, without any bidding or negotiation process, under these conditions: (1) The state must have in effect a price contract covering precisely the kind of goods required to be purchased by the county; (2) The state price contract must have been arrived at through competitive bidding, or the contract must have been negotiated as provided in subsection (2) of KRS 45.360 [Finance Department may negotiate with vendors who maintain a general service administration price agreement with the United States of America or with an agency thereof]. See also 200 KAR 5:050, relating to specific guidelines in state central purchasing for political subdivisions. Section 2 of the regulation provides that the prices established for a price contract are firm for the duration of that contract; and that the negotiation or bargaining by governmental units using the established prices as a base is prohibited. Section 3 of the regulation requires that each political subdivision desiring to participate in and use the state's price contracts for the purchase of materials or equipment must file written notice of such desire with the manager, Division of Purchases, Department of Finance. According to the Department of Finance and under the system suggested by KRS 45.365, the matter of whether or not the sheriff actually used an existing state contract under that statute would lie peculiarly within the knowledge of the sheriff or one or more of his staff members.