Request By:
William R. Renner
Office of the Auditor of Public Accounts
144 Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ross T. Carter, Assistant Attorney General
You have presented the following questions to the Attorney General:
When an elected fee official dies in office, operation[s] normally cease and the office is closed until a replacement is appointed. During this transition period who is responsible for official assets of the office?
If the fee office opens after the death of the incumbent but before the appointment of the successor who is responsible for the collection or disbursement of official funds?
We also are requesting your opinion concerning whether the Auditor of Public Accounts should prepare separate audit reports for the deceased incumbent and the appointed successor or prepare one report for the fee office as a whole?
Your letter indicates that your own research of the Kentucky statutes has not uncovered any specific provision relating to the questions that you pose. We have likewise been unable to locate any specific provisions of the law that address the responsibility for property and funds following the death of an official and preceding the appointment of a successor. As a result we cannot provide a simple answer to your inquiry. We can at best mention some basic points of law that may serve to provide at least a framework for solutions to specific factual circumstances.
First we note that KRS 67.130 says that the fiscal court of each county is responsible for the maintenance and operation of all county buildings, grounds, and other properties, and that the county judge/executive is to execute the policies of the fiscal court relating thereto. To the extent that your first question deals with physical assets such as office equipment, ultimate responsibility for these assets would lie with the fiscal court and county judge/executive. Monetary assets including public funds could arguably fall within the scope of this statute, or they could be a proper subject of the administrative code for the county, required by KRS 67.080(2)(c).
With respect to the day to day functioning of an office after the vacancy has occurred, the lack of a specific provision in the statutes necessarily requires an examination of the facts of each case. Generally, a person who assumes the duties of an office without holding a valid qualification is considered a de facto officer.
Schaffield v. Hebel, 301 Ky. 358, 192 S.W.2d 84 (1946). A de facto officer may be held to the same degree of accountability as a de jure officer. 63A Am.Jur.2d, Public Officers and Employees § 606. While in the abstract these tenets may appear to answer your question by placing responsibility on the chief deputy or other officer who manages the operation of the office following a vacancy, we do not expect that it will always be a simple matter to determine which deputy is actually serving as a de facto officer. In a sheriff's office, for example, deputies who collect taxes may continue to function in their jobs after the death or resignation of the sheriff. They may appear to act as de facto sheriffs for the purpose of collecting taxes. Other deputies may continue to serve summonses and collect the fees for such service, with the appearance of acting as de facto sheriffs for the purpose of service of legal process. In a county clerk's office, some deputies might continue to accept fees for recording deeds while others continue to collect motor vehicle taxes. In such circumstances it would be impossible to identify a single officer who is acting as the de facto sheriff or clerk, and yet we cannot state with assurance that the common law would recognize more than one de facto officer since the statutes place responsibility for all operations of the office on one individual.
We conclude that you have raised a question for which the statutes are silent and the common law is undeveloped. A court might place responsibility for public funds on the deputy officers who continue to handle the funds during a vacancy. We do not venture an opinion beyond that.
Regarding your third question, we construe the auditor's duty under KRS 43.070 et seq. to require audits reports of each officer, rather than one report for both the elected officer and the appointed successor. State agencies are generally considered to denote a person who exercises the functions of government. Ex Parte Auditor of Public Accounts, Ky., 609 S.W.2d 682, 686 (1980). Without separate reports the auditor's findings would not reflect the separate liabilities, if any, of the person having responsibility for the public funds.