[1994/oagheade.htm]

OAG 94-64

November 1, 1994

Subject: County attorney's use of fees for collection of omitted or delinquent taxes, etc.

Written by: Gerard Gerhard

Requested by: Hon. David H. MacKnight

Syllabus: County attorney may not apply monies restricted to use for "office operating expenses" to his salary.

OAGs cited: OAG 83-409; 85-17.

Statutes construed: KRS 132.350; 132.340; 134.400; 134.540; 134.545.

OPINION OF THE ATTORNEY GENERAL

The following question, in substance, has been presented:

May a county attorney supplement a sum set for his or her salary by the fiscal court, with monies obtained in connection with collection of delinquent taxes or related actions?

In our view the answer is no. The salary of a county attorney is an expense that is predominantly personal to the county attorney. As such, under reasoning expressed in Funk v. Milliken, Ky., 317 S.W.2d 499, 506, (1958), monies restricted to use for "county attorney office operating expenses" may not be applied to the salary of a county attorney. Discussion follows.

County attorneys are entitled to certain monies in connection with actions to collect omitted or delinquent taxes, or similar actions. See, for example, KRS 132.350, 134.340, 134.500, 134.540, and 135.040. In relation to the monies paid under such provisions, KRS 134.545 provides:

Moneys paid to the county attorney under KRS 132.350, 132.340, 134.400, 134.540 and 135.040 shall be used only for payment of county attorney office operating expenses.

(Emphasis added.)

The legislature has not defined the phrase "operating expenses" as used in KRS 134.545 (above).

In Funk (above) the court, in the course of analyzing what expenses could be properly credited against the fees of an office, observed that:

In more recent years, this Court has departed from the stringent limitations of the Nunnelley case, and 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.

(Id., 506, emphasis added.)

We believe that the salary of the county attorney is an expense that is obviously "predominantly personal" to the county attorney and that, therefore, moneys restricted by statute (for example, KRS 134.545, above) to use for "operating expenses" of the county attorney's office cannot be used to pay or supplement the salary of the county attorney. This view is consistent with the reasoning expressed in OAG 83-409, and in OAG 85-17, copies enclosed.

We are not aware of any provision of the statutes which would allow a county attorney to apply monies restricted by KRS 134.545 (above) to "county attorney office operating expenses" to the compensation of the county attorney.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General