Request By:
Mr. James L. Purcell
Grant County Attorney
Courthouse
Williamstown, Kentucky 41097
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns expense allowances to be paid to members of the fiscal court. It reads in part as to the facts underlying your questions:
"The Grant County Fiscal Court is composed of three magistrates and the county judge executive. It meets two times per month on the first and third Thursday of each month. For their service to fiscal court the magistrates are now paid a monthly salary of $450.57. Our fiscal court does not work under any committee system, rather all matters needing to be brought to the attention of the fiscal court are brought in a regular meeting and decisions are made by the court as a body during each meeting.
"Recently a magistrate inquired as to the availability of an 'Expense Allowance' of $300.00 a month as envisioned in the above referenced statute. In support of this request, the subject magistrate indicated that she serves on various boards and committees, including the KACO board, the Grant County Chamber of Commerce, Grant County Extension Council, the Grant County Representative to the Corinth Water District, the Northern Kentucky Area Development District Economic Development Council and the Northern Kentucky EMS board. The magistrate in question has 100% attention at all meetings at these various boards, but none of them are, strictly speaking, committees of the Grant County Fiscal Court."
The questions are as follows:
"1. Under the facts outlined above, would the Grant County Fiscal Court be justified in establishing and paying to its commissioners all or any part of the $300.00 expense allowance envisioned by the above statute?
"2. If your answer to question one is yes, should payment be made only upon a reimbursement basis as shown by adequate proof to the county treasurer of actual expenditures?
"3. If your answer to question one above is yes, should each commissioner be paid the same amount as an expense allowance or could differences be made based upon outside participation?
"4. Should your answer to question one above be yes, could this 'expense allowance' be paid members of the board who are presently sitting as magistrates, or would this be prohibited by the last sentence of KRS 64.530(6) which refers to KRS 64.285?"
KRS 64.530(6) 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 the fiscal court." (Emphasis added).
KRS 64.258, which provides a one hundred dollars ($100) per month expense allowance to justices of the peace, is subject to repeal by House Bill 13 of the present session. The bill was passed in both houses and delivered to the Governor, who signed it on February 6, 1984.
KRS 64.410(2)(c) prohibits the payment of public funds except for actual performance of public services, although KRS 64.530(6) suggests no formal accounting or specific documenting of such expenses. See OAG 82-419, published, Banks-Baldwin. However, § 3 of the Kentucky Constitution and KRS 64.410(2)(c) require that county money can only be spent in consideration of the actual performance of public services. Roland v. Jefferson County Fiscal Court, Ky.App., 599 S.W.2d 469 (1980), which mentions OAG 77-133, § 3 of the Kentucky Constitution and KRS 64.410(2)(c). The court declared, in Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577 (1948) 582, that the scope of judicial examination into the action of the legislature in making a lump sum appropriation in lieu of actual expenses incurred is rather narrow. The court observed that the legislative declaration of the nature and purposes of the allowance is binding upon the courts, and will be upheld, unless from the Act itself and without extraneous aid, the court can say without hesitation that the legislation is, in fact and truth, a device to increase compensation.
The answer to question no. 1 is that, since the magistrates are not in reality serving on committees of the fiscal court, no part of that expense allowance can be paid. The statute establishes no formal fiscal court committees, as such. It is left up to the fiscal court to establish working committees that directly relate to the statutory functions of the fiscal court. See KRS 67.080 and 67.083. Here, you say, no such committees have been established. They only work together when attending formal meetings of the fiscal court. Here it is obvious that the allowance money cannot be expended in consideration of public services. Thus the factual situation falls short of the requirements of KRS 64.410(2)(c) and KRS 64.530(6).
Questions no. 2, 3, and 4 require no answer in view of our response to question no. 1.