Request By:
Ms. Ginger C. Knight
Hays and Hays
56-58 South Main Street
Winchester, Kentucky 40391
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As a part of the Public Defender program in Clark County, you request our opinion on the following question:
"If a county fiscal court contracts with an individual attorney or group of attorneys to provide public advocate services for that county with the compensation to be only what is paid to the county by the state for such services and what can be collected from the individual defendants, without regard to the number of clients or number of hours required by the attorney or attorneys for such representation, has the county appropriated enough money to administer the program under Chapter 31 of the Kentucky Revised Statutes, or must some consideration to the number of hours provided by the attorney be considered in determining what, if any, money the fiscal court must provide to the system when attempting to make the county's plan conform to the statute?
"How little may an attorney be paid before it will be held that the plan is inadequately funded under the statute?"
We understand that your county chose permissively to arrange with the courts of criminal jurisdiction in the county to assign attorneys in that defense role, pursuant to KRS 31.160(1)(c). Once a county decides to fund a public advocate program, it is bound for each fiscal year of such express commitment. This commitment is on a year by year basis. See KRS 31.190, which requires such committed fiscal court to annually appropriate enough money to administer the public advocacy program.
You say that the state furnishes your county with $19,500 per fiscal year, which is applied to the defender fee, pursuant to KRS 31.050(2). That subsection states in part that such state money is for the "purpose of assisting the said plan" (public advocacy plans). (Emphasis added).
We pointed out in OAG 80-401, published, Banks-Baldwin, that a county committed to such yearly advocacy program would have to pay expert witnesses' fees, pursuant to KRS 31.190(1), 31.200(1), and 31.240(3), but that is in addition to counsel fees.
KRS 31.240(3), as amended in 1984, reads:
"(3) Each county or counties for assigned counsel may compensate them at rates provided for in KRS 31.170; however, the state contribution to such compensation shall not be greater than is provided for by KRS 31.070. The county or counties shall be obligated to pay and shall pay all amounts in excess of the state contribution. No county shall be required to pay the maximum amounts provided for in KRS 31.170 unless the amounts be approved by the circuit judge."
From the language in KRS 31.240(3), the maximum amounts payable to a defender are indicated in KRS 31.170(4). However, no county committed to an advocacy program shall be required to pay the maximum, unless such amounts are approved by the circuit judge. The state contribution cannot exceed the compensation levels of KRS 31.070.
KRS 31.170(3) reads:
"(3) If a court assigns an attorney to represent a needy person it shall prescribe a reasonable rate of compensation for his services and shall determine the direct expenses necessary to representation for which he would be reimbursed. The county shall pay the attorney the amounts so prescribed from the funds made available by the department of public advocacy. "
In your situation, it is our opinion that KRS 31.170(3) is applicable. The court assigning an attorney to represent a needy defendant will prescribe a reasonable fee, which shall be paid by the county. However, no county, under KRS 31.240(3), shall be required to pay the maximum amounts provided in KRS 31.170(4), unless such amounts are approved by the circuit judge. Under this analysis, the mere agreement of the county to pay only just what the state contributes to the county, plus what the indigent pays, may not meet the requirements of KRS 31.170(3). We do not believe that KRS 31.170(3) was intended to stake out the state contribution as the maximum to be paid by the committed county. In addition, where the court has set the fee under KRS 31.170(3), the fiscal court must, by the terms of KRS 31.190, pay that fee out of county appropriations, even if it equals the maximum provided in KRS 31.170(4). However, the court's prescribed fee should not exceed the legislative maximum set out in KRS 31.170(4).
It must be noted that in Boyle County Fiscal Court v. Shewmaker, Ky.App., 666 S.W.2d 759 (1984), the Court of Appeals held that a county's plan to fund the local advocacy system with state contribution monies and money paid in by the indigent defendants fell obviously short of the adequate funding contemplated by KRS 31.190. The court said the county had an obligation to pay the fee to the defense lawyer as set by the circuit judge.