[1993/oagheade.htm]

OAG 93-72

October 27, 1993

Hon. Bruce Ferguson, Commissioner

Department of Local Government

1024 Capital Center Drive

Frankfort, Kentucky 40601-8204

Re: Propriety of Paying Expenses of County Officers-Elect in Connection with Training for such Officials Conducted by Department of Local Government Pursuant to Statutory Direction (KRS 147A.025).

Dear Commissioner Ferguson:

By letter of July 9, 1993, you ask, in substance, whether the expenses of newly elected county officials, incurred prior to their assuming office, in attending training conducted by the Department of Local Government concerning the operation of the office to which they have been elected, may be reimbursed by the fiscal court of the county in which they will serve upon assuming office.

In our view, a fiscal court, assuming funds have been properly budgeted for the purpose, may lawfully approve reimbursement, subject to proper documentation being submitted, of the reasonable expenses for travel, meals, and lodging, actually paid by one elected to a county office, who has not yet assumed such office, where such expenses are immediately incident to attending statutorily provided for training for such office. Discussion follows.

You raise the question, again in substance, of whether it is legal for a fiscal court to approve reimbursement of one who has been elected to a local office, but has not yet assumed such office, for expenses incurred in attending training concerning the office to which such person has been elected.

You indicate that this office has previously said, although not in a formal opinion, that such reimbursement would not violate sections 3 or 171 of the Constitution of Kentucky. Accompanying your letter was a copy of a September 27, 1989, letter of this office, to that effect, to Richard Tanner, of the Kentucky Magistrates and Commissioners Association.

We have reviewed the above referenced letter, and considered anew the issues that might be of concern regarding the reimbursement you have asked about. We believe the view expressed in that letter was and continues to be correct.

In that part applicable to the question you have presented, section 3 of the Constitution of Kentucky bans the provision of a public emolument except in consideration of public services. Similarly, section 171 bans the expenditure of public revenues for other than public purposes.

Kentucky Revised Statutes (KRS) 147A.025, in part, directs that the Department of Local Government shall conduct a program to instruct specified public officers respecting their duties and responsibilities in the collection and expenditure of public monies subject to their control and jurisdiction.

Subsection (7) of KRS 147A.025 tacitly, if not expressly, envisions training of officers-elect. It does so by providing, in part pertinent here, that "The department . . . shall commence instruction for the succeeding year within eighty (80) days following said general election." We believe this language contemplates officers-elect being provided training related to the duties and responsibilities of the office to which they have been elected, prior to their assuming office.

In our view, the attendance of one elected to a public office, at training provided for by statute regarding the operation of the office such person will assume, is clearly a public service and a public purpose within the meaning of sections 3 and 171 of the Constitution of Kentucky. Accord- ingly, reimbursement of reasonable, documented, expenses actually paid, for travel, meals, and lodging, immediately incident to attendance at such training, would not be violative of sections 3 and 171 of the Constitution of Kentucky.

Such training, related as it is to governmental duties and responsibilities, is not a private matter, but is a public service for a public purpose. This is so, in our view, even though attendance at the training is by one who has not yet assumed a public office to which he has been elected. The training of one elected to an office, prior to assuming the office, obviously is beneficial to the public, and thus, coupled with the other facts involved in the question you have presented, would be an allowable expense. See Funk v. Milliken, Ky., 317 S.W.2d 499, 506-507 (1958).

The expense here asked about is readily distinguish- able from that found not to be for a public purpose in Barnes v. Adams, Ky., 305 S.W.2d 754 (1957), which was mentioned in our above referenced previous letter on this topic. Barnes involved the payment of a salary from public funds to a state employee who was on a leave of absence to attend school. In that case there was no indication that the schooling involved was specific to the employee's job, and that it was specifi- cally provided for by statute. The Court found that the benefit the people of the Commonwealth would reap would be so exceedingly remote that it would be unreasonable to hold the expenditure a public purpose within the meaning of sections 3 and 171.

By contrast, the training here involved is provided for by statute. Further, it is immediately related to the proper operation of the public office about to be undertaken by the person receiving the training. The benefit to the people of the Commonwealth, of training of those about to assume office, surely must be recognized as immediate rather than remote.

Of course expenditures of county funds must be consistent with an approved budget (KRS 68.260), and properly approved by the fiscal court (KRS 68.275), which has control of the fiscal affairs of the county (KRS 67.080). Specific authority for such reimbursement might be founded on KRS 67.083(3)(q).

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General