[1996/oagheade.htm]

OAG 96-44

December 3, 1996

Subject: “Asset forfeiture moneys” (KRS Chapter 218A)

Written by: Gerard R. Gerhard

Requested by: David H. MacKnight, Assistant Deputy Attorney General, Director, Prosecutors Advisory Council

Syllabus: “Asset forfeiture moneys” received by Commonwealth's and County Attorneys are state moneys that must be deposited into a state depository and are subject to state statutes and regulations regarding disbursement of state moneys.

OAGs cited: None

Statutes Construed: KRS 15.700; 15.725; 41.010(1); 41.070(1); 43.010(2); 48.010(8); 218A.410(12); 218A.435(1); 218A.435(7)(a); and 218A.435(12).

Opinion of the Attorney General

The following questions, in substance, have been presented:

1. Under KRS Chapter 218A, the Kentucky Controlled Substances Act, what calculations determine the amount of forfeiture money paid to Commonwealth's and County Attorneys?

Two provisions of KRS Chapter 218A establish calculations to determine asset forfeiture moneys to be paid to Commonwealth's or County Attorneys.

KRS 218A.435(1) creates a trust and revolving fund in the executive branch of state government known as the “Asset Forfeiture Trust Fund.”

KRS 218A.435(7)(a) directs, regarding distributions from the Asset Forfeiture Trust Fund to Commonwealth's and County Attorneys that:

Eighteen percent (18%) of the funds received in any fiscal year shall be allocated to the unified prosecutorial system to be disbursed by the Attorney General to those Commonwealth's attorneys or county attorneys who have participated in the forfeiture case[.]

KRS 218A.435(12) provides:

Other provisions of law notwithstanding, the first fifty thousand dollars ($50,000) of forfeited coin or currency or of the proceeds from sale of any property forfeited pursuant to this chapter which was seized or forfeited by a single order of forfeiture, shall not be paid into the fund but ninety percent (90%) shall be paid to the law enforcement agency or agencies which seized the property to be used for direct law enforcement purposes and ten percent (10%) to the office of the Commonwealth's attorney or county attorney who has participated in the forfeiture proceeding. The moneys are intended to supplement any funds appropriated to the recipient and shall not supplant other funding of any recipient. In addition, forty-five percent (45%) of all proceeds above fifty thousand dollars ($50,000) shall not be paid into the fund but shall be retained by the law enforcement agency or agencies which seized the property to be used for direct law enforcement purposes.

2. Is forfeiture money paid to Commonwealth's and County Attorneys “state money” when in the possession of the Commonwealth's and County Attorneys?

In our view the answer is yes. “Asset forfeiture moneys” flow from forfeitures in which title to property, and all interests therein, vests in the Commonwealth. See KRS 218A.410(2). It follows that asset forfeiture moneys, which emanate from forfeitures, are moneys of the Commonwealth, or, stated another way, are “state money.” There is no loss of such status or identity when such moneys are paid to Commonwealth's or County Attorneys in connection with their state prosecutorial duties (KRS 15.725). Moneys of the Commonwealth, which in our view includes “asset forfeiture moneys” received by Commonwealth's and County Attorneys, are clearly “state money.”

3. Are Commonwealth's and County Attorneys required to deposit forfeiture money in the State Treasury or a designated state depository?

In our view the answer is yes. KRS 41.070(1) provides, in part pertinent here:

Unless otherwise expressly provided by law, no receipts from any source of state money or money for which the state is responsible shall be held, used, or deposited in any personal or special bank account, temporarily or otherwise, by any agent or employee of any budget unit, to meet expenditures or for any other purpose. All receipts of any character of any budget unit, all revenue collected for the state, and all public money and dues to the state shall be deposited in state depositories in the most prompt and cost efficient manner available.

Commonwealth's and County Attorneys and their employees obviously are agents of the Unified Prosecutorial System (See KRS 15.700, and the following sections). That system falls within the definition (KRS 41.010(1), 43.010(2), 48.010(8)) of a “budget unit” as used in KRS 41.070(1), such that its agents and employees are governed by KRS 41.070(1), requiring the deposit of state moneys in a state depository. We are not aware of provisions of the statutes which “otherwise expressly provide” (KRS 41.070(1), above) that Commonwealth's and County Attorneys are exempt from such requirement.

We have carefully reviewed the language of KRS 218A.435(12) which might be taken, by its use of the phrase “Other provisions of law notwithstanding,” to mean that Commonwealth's and County Attorneys are exempted from the use of a state depository with regard to asset forfeiture moneys received under KRS 218A.435(12). We believe the phrase “Other provisions of law notwithstanding” modifies the phrase “shall not be paid into the fund,” meaning the Asset Forfeiture Trust Fund. In our view, the phrase “other provisions of law notwithstanding,” as used in KRS 218A.435(12), does not serve to “otherwise expressly provide” an exemption from KRS 41.070(1).

4. Are Commonwealth's and County Attorneys' expenditures of forfeiture money required to comply with statutes and regulations applicable to expenditures of “state money”?

In our view it is axiomatic that state moneys must be expended in accordance with state statutes and regulations. “Asset forfeiture moneys” are statutorily specified as being “supplemental” to any appropriation to the recipient (KRS 218A.435(12)). As a “supplement” to appropriations which obviously are governed by state laws and regulations, such moneys are, in our view, governed by the same laws and regulations (i.e., state laws and regulations) as are applicable to the moneys being supplemented.

Albert B. Chandler III

Attorney General

Gerard R. Gerhard

Assistant Attorney General