OAG 94-11

February 25, 1994

Hon. David D. Flatt

Elliott County Attorney

P. O. Box 128

Sandy Hook, Kentucky 41171

Re: Whether Health or Medical Insurance May Be Provided Solely for County Clerk from Fees of Clerk's Office.

Dear Mr. Flatt:

By letter of January 24, 1994, you ask:

May the County Clerk provide health or medical insurance for herself from collected fees prior to excess fees being paid over to the county when the county provides no health insurance benefits for any other employees[?]

In our view the answer is no. Discussion follows.

The only "entitlement" of the county clerk, to what might be termed a "personal allocation" of monies (e.g., payment of the cost of health or medical benefit costs) from the fees of the office, is to his or her annual salary payable from such fees pursuant to KRS 64.535.

Other than the amount the county clerk is personally entitled to from the statutory fees of the office pursuant to KRS 64.535, monies paid from the fees of the office must be expended for official expenses of the office.

Whether a given expenditure is "official" in nature will be judged based upon whether the expense is official rather than personal in nature. See Funk v. Milliken, Ky., 317 S.W.2d 499, 506 (1958), wherein the court, in addressing that nature of expenses that may be properly charged as an expense of an office, said:

In more recent years, . . . this Court has adopted the view that credit may be allowed for expenses that are reasonable in amount, 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.

An expenditure of funds from fees of the county clerk's office, to provide health or medical insurance uniquely for the clerk, and not in connection with a governmental program providing such benefits to all county employees, obviously would be for a purpose personal in nature to the clerk. Such expense, under the standard articulated in Funk, supra (at 507), thus would not be viewed as an official expense of the office. Accordingly, in our view, the cost of medical or health benefits solely for the county clerk cannot lawfully be paid from the fees of the county clerk's office. Funk, supra. And see, OAG 89-51 (copy enclosed).

Of possibly related interest, see OAG 92-108 (copy enclosed) and KRS 79.080.




Gerard R. Gerhard

Assistant Attorney General's office.