Request By:
Mr. William I. Markwell
Henderson County Attorney
Courthouse
Henderson, Kentucky 42420
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have a question raised by one of your magistrates regarding the responsibility of the fiscal court in providing financial aid to the county sheriff.
In OAG 83-360, copy enclosed, which you mentioned, we pointed out that if the sheriff, at the end of a calendar year, has insufficient fees or receipts to pay "statutorily authorized expenses" of his office, the fiscal court has the responsibility of paying for such expenses out of the county treasury, provided there is available money in a properly budgeted item. See KRS Chapter 68. Thus the necessary expenses of a sheriff's office may be funded out of the sheriff's fees, or out of the county treasury upon proper budgeting procedure, or from a combination of the sheriff's fees and the county treasury. See
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958).
However, you raise questions not specifically treated in that opinion. First, you ask what are "statutorily authorized expenses" of the sheriff's office.
In evaluating the sheriff's office expenses, their legitimacy depends upon these co-existent factors: (1) Such expenses must be expressly provided for by statute or by reasonable implication of statutory law. (2) Such expenses must be reasonable in amount. (3) Such expenses must be 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. (4) Such expenses must be necessary for the sheriff's economic and proper administration of that office. (5) The fiscal court is required by KRS 64.530(3) to fix the maximum amount that the sheriff may spend each year for the expenses of his office. This is not a lump sum, blanket allowance. This means the fiscal court may fix in advance the reasonable official expenses that will be allowed for each category of expenses. See
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). See
Holland v. Fayette County, 240 Ky. 37, 41 S.W.2d 651 (1931);
Goodlett v. Anderson County, 267 Ky. 166, 101 S.W.2d 421 (1937) 423; and
Wilson v. Ball, Ky., 323 S.W.2d 840 (1959) 843. Such office expenses do not include the salaries of the sheriff and his deputies.
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958); and
Connors v. Jefferson County Fiscal Court, 277 Ky. 23, 125 S.W.2d 206 (1939) 209. Also see § 106, Kentucky Constitution.
You ask what is meant by the fiscal court's responsibility for paying for such statutorily authorized expenses, provided there is available money as a properly budgeted item. As you know, no payments can be made out of the county treasury except pursuant to the county budget. See KRS 68.220, 68.240 (showing budget units), 68.250 (relating to county budget supervision by the State Local Finance Officer), and 68.260 (adoption of budget by fiscal court). KRS 68.300 expressly prohibits expenditures out of the county treasury in excess of budget funds. Like the state, counties cannot maintain deficit budgets. Such excessive expenditures would be void.
Noble v. Combs, 273 Ky. 578, 117 S.W.2d 579 (1938).
It must be carefully noted that the fiscal court has no responsibility for paying such sheriff's expenses out of the county treasury where the sheriff's fees are adequate for such purpose.
Where the fees of the sheriff are not adequate to fund such expenses, and where an audit of the sheriff's office indicates that his office financial operations and expenditures disclose no infraction of law or mismanagement or negligence on his part, the responsibility of the fiscal court would come into play. However, there must be available money in a properly county budgeted item sufficiently descriptive to embrace the specific sheriff's expenses involved. In addition, the specific sheriff's expenses involved must meet the five-part test outlined above.
Your letter contains the special situation whereby the sheriff, as a part of his law enforcement operations, maintains a canine unit, a special operations similar to a SWAT team, a water enforcement unit and other specialized operations. The inquiring magistrate was concerned as to whether the sheriff could overspend his budget, and thereby render the fiscal court responsible.
We have outlined above the conditions under which fiscal court or county responsibility would attach.
The sheriff is a peace officer as well as a tax collector. See KRS 446.010(24). As pertains to the sheriff's law enforcement role, this was written in 80 C.J.S., Sheriffs and Constables, § 42, page 211, in part:
"At common law and under statutes declaratory thereof, sheriffs and deputy sheriffs . . . are peace officers. The duties of a sheriff are in a large measure the same as are imposed on police officers; he necessarily exercises police powers and must enforce the laws enacted for the protection of the lives, persons, property, health, and morals of the people. Accordingly, a sheriff must enforce the criminal law. He is under a legal duty to investigate crimes, to suppress them, and, in a proper case, to arrest and prosecute persons who commit them."
Concerning the specific law enforcement expenses of the sheriff, this office is not organized to weigh those expenditures against the criteria outlined above. You and the fiscal court will administratively have to appraise such expenditure facts against the legal criteria. If that is not deemed adequate, resort would have to be made to the courts.