CHAPTER 61 General Provisions as to Offices and Officers — Social Security for Public Employees — Employees Retirement System

General Provisions

61.010. Office not to be sold — Penalty — Contracts to sell are void.

  1. No civil or military office or post of profit, trust, or honor under this state, nor the deputation thereof, in whole or in part, shall be sold or let to farm by any person holding or expecting to hold it.
  2. Any person selling, letting, buying, or receiving the letting of any office or post, or with whose knowledge it has been bought for him by another, shall be disqualified from holding the office or post, or the deputation thereof, and, upon conviction, shall be expelled therefrom.
  3. Except as to bonds of indemnity from a deputy and his sureties given to a chief officer, every contract or security made or obtained in violation of this section shall be void.

History. 3740, 3741.

NOTES TO DECISIONS

1.Construction.

By virtue of this section, attorneys have no lien under KRS 30.200 (now repealed) for services rendered in an election contest case. Hallam v. Coulter, 115 Ky. 313 , 73 S.W. 772, 24 Ky. L. Rptr. 2200 , 1903 Ky. LEXIS 101 ( Ky. 1903 ).

2.Application.

This section should be read into every act creating an office and officer in which there is no conflicting provision. Sewell v. Bennett, 187 Ky. 626 , 220 S.W. 517, 1920 Ky. LEXIS 179 ( Ky. 1920 ).

3.Contracts.
4.— Against Public Policy.

Assignment of official fees in futuro to a trustee as security for debt is against public policy. Field v. Chipley, 79 Ky. 260 , 2 Ky. L. Rptr. 269 , 1881 Ky. LEXIS 12 (Ky. Ct. App. 1881).

Assignment of official salary in futuro to creditor is against public policy. Holt v. Thurman, 111 Ky. 84 , 63 S.W. 280, 23 Ky. L. Rptr. 92 , 1901 Ky. LEXIS 179 ( Ky. 1901 ); Schmitt v. Dooling, 145 Ky. 240 , 140 S.W. 197, 1911 Ky. LEXIS 830 ( Ky. 1911 ).

Contract and notes executed to candidate who agreed to employ obligors as attorneys to handle legal work of the office are against public policy and void. Campbell v. Offutt, 151 Ky. 229 , 151 S.W. 403, 1912 Ky. LEXIS 782 ( Ky. 1912 ).

Contract between nominees whereby one was to withdraw and be appointed a deputy and receive the income from the office for half the term, is void as against public policy after consummation, and a deposit with a third party guaranteeing resignation cannot be recovered, inasmuch as the void contract taints all collateral agreements. Martin v. Francis, 173 Ky. 529 , 191 S.W. 259, 1917 Ky. LEXIS 473 ( Ky. 1917 ) ( Ky. 1917 ).

Agreement by candidate, in return for support in election, to allow supporter to designate deputies is not a sale or farming of office under this section, but is void as against public policy. Fox v. Petty, 235 Ky. 240 , 30 S.W.2d 945, 1930 Ky. LEXIS 330 ( Ky. 1930 ).

Agreement by candidate, in return for support in election, to allow supporter to designate deputies, is against public policy and void. Fox v. Petty, 235 Ky. 240 , 30 S.W.2d 945, 1930 Ky. LEXIS 330 ( Ky. 1930 ).

5.— Not in Violation.

Change in methods of office management by county clerk on advice of his surety, coupled with advance by surety of money to cover prior shortage, is not a sale, farming or letting of office. Commonwealth v. Chinn, 110 Ky. 527 , 62 S.W. 7, 22 Ky. L. Rptr. 1921 , 1901 Ky. LEXIS 107 ( Ky. 1901 ).

Agreement of candidate to appoint rival as deputy, in consideration of rival’s withdrawal and support, is not a sale of the office or deputation thereof. Commonwealth ex rel. Layman v. Sheeran, 145 Ky. 361 , 140 S.W. 568, 1911 Ky. LEXIS 864 ( Ky. 1911 ).

6.— In Violation.

Contract between sheriff and deputy by which deputy was to collect all fees and pay part thereof to a third person violated this section. Oldham's Trustee v. Hume, 11 Ky. Op. 779, 4 Ky. L. Rptr. 355 , 1882 Ky. LEXIS 308 (Ky. Ct. App. Oct. 26, 1882).

Contract between nominees whereby one is to withdraw and be appointed a deputy, receive half of the income from the office, and jointly control the office, might violate this section, but does not violate the Corrupt Practice Act. Roberts v. Sturgill, 257 Ky. 194 , 77 S.W.2d 789, 1934 Ky. LEXIS 548 ( Ky. 1934 ).

Contract between nominees whereby a pending action under corrupt practice act is to be dismissed, and whereby the parties are to divide the fees and emoluments of the office and jointly supervise the office, is void under this section. Landrum v. Cockrill, 267 Ky. 397 , 102 S.W.2d 337, 1937 Ky. LEXIS 327 ( Ky. 1937 ).

7.Rights Under Void Contracts.

Violation of this section by sheriff and deputy does not preclude recovery by sheriff from deputy of moneys received officially. Oldham's Trustee v. Hume, 11 Ky. Op. 779, 4 Ky. L. Rptr. 355 , 1882 Ky. LEXIS 308 (Ky. Ct. App. Oct. 26, 1882); Eversole v. Holliday, 131 Ky. 202 , 114 S.W. 1195, 1909 Ky. LEXIS 11 ( Ky. 1909 ).

County court may not refuse approval of appointment of deputy sheriff appointed under a void contract when the appointee is honest and competent, and had no knowledge of the contract. Such approval may be enforced by mandamus. Fox v. Petty, 235 Ky. 240 , 30 S.W.2d 945, 1930 Ky. LEXIS 330 ( Ky. 1930 ).

Deputy appointed pursuant to a contract void under this section is not ineligible for the appointment when he had no knowledge of the contract. Fox v. Petty, 235 Ky. 240 , 30 S.W.2d 945, 1930 Ky. LEXIS 330 ( Ky. 1930 ).

8.Declaratory Judgment Act.

Disqualification of candidates under this section may not be had in a suit by electors under the Declaratory Judgment Act. Dietz v. Zimmer, 231 Ky. 546 , 21 S.W.2d 999, 1929 Ky. LEXIS 329 ( Ky. 1929 ).

Opinions of Attorney General.

Registered voters in an annexed area would automatically be entitled to vote in the special city primary for the mayor and the city commissioners. OAG 79-99 .

The creation of a new General Assembly district by enactment of redistricting legislation would not disqualify candidates living in the new district from meeting the residential requirements of Const., § 32, since this section provides that a person shall be deemed to meet the residency requirements if he resided within the geographic area encompassed by the district boundaries for the required length of time. OAG 81-424 .

Where a district is expanded due to redistricting during a commissioner’s term of office, there is no legal objection to said commissioner moving into that part of his district that has been added by virtue of redistricting and thereby continuing to remain a legal resident of the district, even though he no longer resides within the particular area of the district as constituted at the time of his election. OAG 82-230 .

If the number of magisterial districts are not changed by a reapportionment but the area is merely redistributed placing, for example, several magistrates in the same district, the magistrate elected for the district in which he no longer resides continues to represent the district. OAG 83-40 .

Where the magistrate dies or resigns and there is also a reapportionment of county magisterial districts, the person appointed and elected to fill the vacancy must reside in the vacated district having no representation by virtue of the redistricting procedure, irrespective of the fact that due to the boundary he may not possess the one-year residential qualification required by Const., § 100 as long as he has continued to reside in the area and has not changed his residence within the one-year period prior to his appointment or election. OAG 83-40 .

Research References and Practice Aids

Cross-References.

Books furnished to office, name of office to be written in, KRS 57.370 .

Bribery, KRS 521.010 to 521.040 .

City officers, election and term of office of, Const., §§ 107, 148, 160, 161.

Compensation of officers not to be changed during term, Const., §§ 161, 235.

Constitutional provisions as to officers generally, Const., §§ 23, 59(13), 59(18), 68, 93, 148, 150, 151, 160, 161, 197, 227, 228, 234, 235, 236, 239, 240, 246.

Contribution between persons jointly liable in official capacity, KRS 412.050 .

Election of officers, time of, Const., § 148; KRS 118.025 .

Fees: (See KRS Ch. 64.)

Change of during term forbidden, Const., §§ 161, 235.

Illegal, KRS 64.460 , 64.990 .

Local acts concerning forbidden, Const., § 59(18).

Fiduciary obligation, liability of persons dealing with fiduciaries for breach of, KRS 386.100 to 386.150 .

Forfeiture of office and penalties for failure of officers to perform duties:

City officers:

First-class cities, in, KRS 61.250 , 90.220 .

Removal of, generally, General Assembly to provide manner and causes for, Const., § 160.

Clerks, KRS 118.995 , 136.990 , 382.990 .

County court, KRS 178.990 , 179.990 .

County officers:

Bonds, failure to perform duty under law for issuance, KRS 66.990 .

Reports, false, and failure to make, KRS 64.990 .

Violation of county budget act, KRS 66.990 , 68.300 , 68.990 .

Finance and Administration Cabinet, KRS 66.990 .

Dog law, peace officers required to enforce, KRS 258.225 .

Election laws, violation of, KRS 119.015 to 119.335 .

Fiscal court, KRS 178.990 , 179.990 .

Free pass, officer accepting, Const., § 197.

Illegal fees, KRS 64.460 , 64.990 .

Labor inspectors, KRS 336.990 .

Officers and employes of charitable and penal institutions, KRS 196.230 , 196.990 .

Peace officers, KRS 63.130 , 63.140 , 63.990 , 189.520 , 422.990 .

Property valuation administrator, KRS 132.590 , 132.990 .

Removal of county seat, officer’s failure to perform duty in, KRS 67.990 .

School officers, KRS 156.990.

School superintendent, KRS 136.990 .

Secretary of state, KRS 118.995 .

Sheriff, KRS 119.125 , 134.200 , 134.990 .

Impeachment of officers, Const., §§ 66 to 68.

Inter-city, inter-county and city-county compacts for purchasing and merit systems; retirement and disability plans for employes of counties and cities, KRS Ch. 79.

Invalid acts of officers, not to be legalized by local act, Const., § 59(13).

Local option law, officers to enforce, KRS 61.170 .

Oath of officers, Const., § 228.

Officer accepting or giving bribe, penalty for, Const., §§ 150, 151; KRS 432.350 , 521.020 .

Official misconduct, penalties, KRS 521.030 , 522.020 , 522.030 .

Person receiving bribe for vote excluded from office, KRS 119.025 .

Professional engineers, elective officers not affected by regulations for, KRS 322.030 .

Regents for state colleges or universities, not public officers, KRS 164.321.

Salaries of officers: (See KRS Ch. 64.)

Attachment of, KRS 427.130 .

Change during term forbidden, Const., §§ 161, 235.

Maximum allowed, Const., § 246.

Term of office:

City and county, not to be extended, Const., § 161.

Limited to four years, county, district and inferior officers are, Const., §§ 93, 107.

Limited to term of years, Const., § 23.

Succeeding, officers elected from state at large are ineligible for, Const., § 93.

Trustees of University of Kentucky, not public officers, KRS 164.150.

Workers’ compensation, KRS Ch. 342.

61.012. Qualification for appointive office or position as to compliance with campaign finance laws.

No person shall be qualified to hold any appointive state office or position, made by gubernatorial appointment, until the person provides the secretary of the Personnel Cabinet with his sworn statement made under penalty of perjury that he has not knowingly violated any provision of the campaign finance laws of the Commonwealth and that his appointment to a state office or position will not violate any provision of the campaign finance laws of the Commonwealth. “Knowingly” means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or should have been aware that his conduct is of that nature or that the circumstance exists.

History. Enact. Acts 1992, ch. 288, § 21, effective July 14, 1992; 1998, ch. 154, § 64, effective July 15, 1998.

61.015. Residence requirements for office or employment when city or district boundaries altered.

No person shall be disqualified from election or appointment to any public office or position of employment, for which the law requires a term of prior residence in a district or city, solely because of alterations in city or district boundaries; and he shall be deemed to meet such residence requirement if he has resided during the period required by law in the geographic area encompassed by the boundaries of the city or district from which he is elected or appointed.

History. Enact. Acts 1974, ch. 330, § 1.

Opinions of Attorney General.

If a person has resided in annexed territory for one year prior to annexation, he automatically becomes qualified for appointment as a member of the city council at the moment the annexation becomes effective. OAG 74-599 .

When a city enacts a final annexation ordinance the registered voters in the annexed area become entitled to vote for members of the city council even though the annexation is appealed or attacked directly on constitutional grounds. OAG 75-616 .

Reapportionment cannot reduce the term of an elected official, even if the reapportionment places the official’s residence outside the district that he represents; therefore if the old plan created six districts numbered 1 through 6, and the new plan created four districts numbered 1 through 4, then the magistrate elected from the old district 1 would serve the residents in the new district 1, and so forth; the two magistrates serving old districts 5 and 6 would not represent any particular constituency at all, but would continue to serve throughout their elected terms; if a magistrate from districts 1 through 4 left office, a successor would have to meet the residency requirements based on the boundaries of the new district but if a magistrate from district 5 or 6 left office, the vacancy would not be filled at all, since the officeholder’s right to continue in office from the old district is based solely upon the fact that he was elected prior to the effective date of the legislative change and, therefore, cannot be legislated out of office, however, when he vacates the office after the legislative change, his successor would not be entitled to continue his right of office for the unexpired term. OAG 92-114 .

61.020. Commissions, which officers required to have.

The following officers shall have commissions issued to them by the Governor: Secretary of State, Auditor of Public Accounts, Treasurer, Commissioner of Agriculture, Superintendent of Public Instruction, Justices of the Supreme Court, clerk of the Supreme Court, Judges of the Court of Appeals, clerk of the Court of Appeals, railroad commissioners, Judges of the Circuit Courts, District Judges, county judges/executive, Commonwealth’s attorneys, justices of the peace, and all the officers of the militia of rank and grade higher than and including the rank and grade of captain.

History. 3758: amend. Acts 1966, ch. 255, § 63; 1976, ch. 62, § 55; 1976 (Ex. Sess.), ch. 14, § 18, effective January 2, 1978; 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1978.

NOTES TO DECISIONS

1.Construction.

Provision of this section that police judges shall be commissioned by the Governor did not give the Governor power to fill vacancies in the office or repeal statute providing that vacancies in any city office shall be filled by the city council. Dillon v. Stubbs, 267 Ky. 17 , 100 S.W.2d 823, 1937 Ky. LEXIS 266 ( Ky. 1937 ).

The mere fact that under this section the Governor issues commissions to police judges does not of itself vest in him exclusive power of appointment to fill vacancies and appointing power for office of police judge of city of the second class rested in the mayor and not the Governor even though the city had a city manager, and not a councilmanic, form of government. Heringer v. Rolf, 287 S.W.2d 149, 1956 Ky. LEXIS 442 ( Ky. 1956 ).

2.Commission.

Appointment of police judge of a sixth-class city by the council, when that authority was vested in the Governor, gave him no right to a commission. Willson v. Hahn, 131 Ky. 439 , 115 S.W. 231, 1909 Ky. LEXIS 31 ( Ky. 1909 ).

An appointee to fill a vacancy may be commissioned by the Governor although appointed by another officer or agency. Frost v. Johnston, 262 Ky. 592 , 90 S.W.2d 1045, 1936 Ky. LEXIS 82 ( Ky. 1936 ).

3.— Issuance.

It is the duty of the Governor to issue a commission to a police judge of a city of the fourth class properly appointed or elected. Traynor v. Beckham, 116 Ky. 13 , 74 S.W. 1105, 1903 Ky. LEXIS 167 (Ky. Ct. App. 1903); Jarvis v. Stanley, 176 Ky. 630 , 197 S.W. 183, 1917 Ky. LEXIS 94 ( Ky. 1917 ).

4.— — Refusal.

Possession of commission is not prerequisite to action to recover office, where officer required to issue same has refused to do so. Toney v. Harris, 85 Ky. 453 , 3 S.W. 614, 9 Ky. L. Rptr. 36 , 1887 Ky. LEXIS 62 ( Ky. 1887 ).

Governor may refuse to commission person presenting certificate of election only when election has been held void in a contest proceeding. McCreary v. Williams, 153 Ky. 49 , 154 S.W. 417, 1913 Ky. LEXIS 779 ( Ky. 1913 ).

5.— — Enforcement.

A justice of the peace appointed and commissioned by the Governor may by mandamus enforce his right to execute bond and qualify. Daugherty v. Arnold, 110 Ky. 1 , 60 S.W. 865, 22 Ky. L. Rptr. 1504 , 1901 Ky. LEXIS 54 ( Ky. 1 901).

Issuance of a commission is a ministerial act enforceable against the Governor by mandamus. Traynor v. Beckham, 116 Ky. 13 , 74 S.W. 1105, 1903 Ky. LEXIS 167 (Ky. Ct. App. 1903). See McCreary v. Williams, 153 Ky. 49 , 154 S.W. 417, 1913 Ky. LEXIS 779 ( Ky. 1913 ); Jarvis v. Stanley, 176 Ky. 630 , 197 S.W. 183, 1917 Ky. LEXIS 94 ( Ky. 1917 ).

6.Contest over Office.

In contest over office, plaintiff may sue although not holding a commission. Mullins v. Jones, 290 Ky. 796 , 162 S.W.2d 761, 1942 Ky. LEXIS 488 ( Ky. 1942 ).

Cited:

Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

Research References and Practice Aids

Cross-References.

Board of Embalmers and Funeral Directors, certificate of appointment, KRS 316.180 .

Board of Registration for Professional Engineers, certificate of appointment, KRS 322.250 .

County judge/executive, commission to be issued to, Const., § 140.

Creation of office for longer than term prohibited, Const., § 23.

Fee not to be charged for affixing state seal to commission, KRS 14.090 .

Justices of the peace, commission to be issued to, Const., § 142.

Railroad policemen, commission of, KRS 277.270 .

61.030. Discharge of duties, when officer to enter upon.

All officers other than those mentioned in KRS 61.020 may enter upon the discharge of the duties of their offices at the time prescribed by the Constitution or the statute creating the office, upon taking the oath and executing the bond required by law.

History. 3759.

NOTES TO DECISIONS

1.Application.

This section applies only to offices which are to be filled for the full constitutional or statutory terms. Jones v. Sizemore, 117 Ky. 810 , 79 S.W. 229, 25 Ky. L. Rptr. 1957 , 1904 Ky. LEXIS 248 ( Ky. 1904 ).

Cited:

Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

Research References and Practice Aids

Cross-References.

General Assembly to regulate time officers to enter upon discharge of duties, Const., § 236.

When officers to enter upon duties, Const., §§ 99, 236.

ALR

Employee or officer, status of person as, as affected by tenure of office. 53 A.L.R. 606; 93 A.L.R. 333; 140 A.L.R. 1076.

“Until” as word of inclusion or exclusion where term of office runs until a specified day. 16 A.L.R. 1100.

61.035. Deputy may act for ministerial officer.

Any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.

History. C.C. 678: trans. & amend. Acts 1952, ch. 84, §§ 1 and 26, effective July 1, 1953.

NOTES TO DECISIONS

1.Construction.

The language in this section referring to the duties to be performed, and the acts permitted to be done, by a ministerial officer is intended to include only duties and acts which are ministerial only in character and such as are to be performed and done by the officer in his ministerial capacity, and does not refer to instances where a ministerial officer is clothed with powers to perform acts in their nature judicial or quasi judicial. Payton v. McQuown, 97 Ky. 757 , 31 S.W. 874, 17 Ky. L. Rptr. 518 , 1895 Ky. LEXIS 241 ( Ky. 1895 ).

2.Deputy Court Clerk.

A deputy Circuit Court Clerk cannot grant an injunction under this section. Payton v. McQuown, 97 Ky. 757 , 31 S.W. 874, 17 Ky. L. Rptr. 518 , 1895 Ky. LEXIS 241 ( Ky. 1895 ).

A guardian ad litem may be appointed by a deputy Circuit Court Clerk. Monroes' Guardian Ad Litem v. Monroe, 215 Ky. 440 , 285 S.W. 250, 1926 Ky. LEXIS 748 ( Ky. 1926 ).

A deputy county court clerk could administer the oath of the county court clerk to a statement of contribution and expenditures filed by the clerk subsequent to his nomination to that office, even though the deputy signed her principal’s name and certified the oaths to have been administered by the clerk through the deputy. Asher v. Sizemore, 261 S.W.2d 665, 1953 Ky. LEXIS 1045 ( Ky. 1953 ).

3.Omission of Principal’s Name.

A deputy should perform all of his official acts in the name of his principal but if he fails to do so and only signs as deputy without the use of his principal’s name, such omission will not invalidate his acts. Conner v. Parsley, 192 Ky. 827 , 234 S.W. 972, 1921 Ky. LEXIS 171 ( Ky. 1921 ).

4.Deputies to Determine Voter’s Rights.

It would conform with this section for the election commissioners and county clerk in counties where there were a large number of absentee voter registration applications to utilize deputies, appropriately apportioned according to party affiliation, to conduct, under supervision of the commissioners and the clerk, at least that part of the examination process required for the determination of “voter’s right to make application, as well as the validity of the form and method of submitting the application itself.” Hallahan v. Cranfill, 383 S.W.2d 374, 1964 Ky. LEXIS 45 ( Ky. 1964 ).

Cited:

McKenna v. Nichols, 295 Ky. 778 , 175 S.W.2d 121, 1943 Ky. LEXIS 311 ( Ky. 1943 ).

Opinions of Attorney General.

A deputy Circuit Court Clerk can serve as Circuit Court Clerk when Circuit Court is in session, when the Circuit Court Clerk is unable to attend. OAG 70-615 .

The act of the deputy may be said to be the act of the principal or clerk. OAG 72-84 .

Subsection (1) of KRS 67.120 provides that the county court clerk is the clerk of the fiscal court ex officio, but the county clerk has the authority to designate one of his lawful deputies to perform that function when such clerk is unable to attend. OAG 73-271 .

Under the authority of this section a county court clerk may designate, in writing, one of his deputies to countersign the checks where the county clerk is required to countersign all checks written on the county treasury. OAG 75-157 .

The circuit clerk is ex officio the librarian of the county law library, his duties as librarian may not be delegated to an outsider but may be performed by a regular deputy circuit clerk, and his salary as librarian is official income and must be counted as a part of his fees in considering his maximum statutory compensation. OAG 75-573 .

Where a sheriff is physically unable to receipt the county clerk for the tax bills and to mail out the tax bills, the sheriff should delegate those responsibilities to any one of his lawful deputies pursuant to this section. OAG 77-593 .

Since the deputy clerk has a general power, pursuant to this section, to bind the county clerk when performing the clerk’s statutory functions, the release of another deputy clerk’s bond may be executed by the chief deputy as a ministerial act binding on the clerk and need not be personally executed by the clerk. OAG 79-274 .

Since the circuit clerk has the positive duty to serve as the county law librarian, he is implicitly required to provide any personnel necessary to assist him in performing properly the function of county law librarian; this statutory responsibility really falls on the office of circuit clerk, regardless of who is clerk and thus the office staff (the clerk through use of his deputies) are held responsible for the librarian function. OAG 80-517 .

The county law librarian is a ministerial officer in connection with that function. OAG 80-517 .

The obvious intent of this section is to afford a principal officer the specific authority to delegate, where deemed necessary, any of his statutory functions of a ministerial nature to a deputy of his office. OAG 80-517 .

The circuit clerk is the ex officio librarian of the county law library and that function cannot legally be delegated to another person, except that the circuit clerk can delegate the clerk’s librarian function to the clerk’s deputies under this section. OAG 83-75 .

Research References and Practice Aids

ALR

Power of assistant or deputy prosecuting or district attorney to file information, or to sign or prosecute it in his own name. 80 A.L.R.2d 1067.

61.040. Conviction of certain crimes vacates office — Pardon does not avoid.

If any officer or deputy holding any office or post mentioned in KRS 61.010 is convicted of bribery, forgery, perjury or any felony, by a court of record in or out of this state, his office or post shall be vacated by such conviction, and if a pardon is afterward granted to him it shall not avoid the forfeiture.

History. 3742.

NOTES TO DECISIONS

1.Time Vacancy Occurs.

Where officer who has been convicted of felony appeals to Court of Appeals, the judgment is suspended, and the office will not become vacant unless and until the judgment is affirmed. Pineville v. Collett, 294 Ky. 853 , 172 S.W.2d 640, 1943 Ky. LEXIS 543 ( Ky. 1943 ).

2.Remedies Against Removal.
3.— Injunction.

Action for injunction by city clerk to restrain mayor and city council from hearing charges against him and removing him from office became moot and was properly dismissed where city clerk was convicted of a felony and the conviction was affirmed on appeal since the office of city clerk became vacant by conviction of the felony. Brooks v. Collett, 296 Ky. 641 , 178 S.W.2d 48, 1944 Ky. LEXIS 602 ( Ky. 1944 ).

4.— Appeal.

Clerk of Circuit Court properly declined to accept supersedeas bond and properly refused to issue a supersedeas as requested by deputy sheriff who had been granted an appeal from a judgment ousting him from office because of a murder indictment, for even though the judgment was erroneous it was voidable only and the only remedy was an appeal from the judgment and not a mandamus proceeding to compel clerk of Circuit Court to accept tendered supersedeas bond and issue a supersedeas. Baker v. Wilson, 310 Ky. 692 , 221 S.W.2d 690, 1949 Ky. LEXIS 1272 ( Ky. 1949 ).

5.Improper Dismissal.
6.— Damages.

Where a police officer was dismissed as a result of being convicted of three (3) felonies, but his conviction was reversed on appeal and on retrial he was acquitted on all counts and immediately reinstated to his former position, his dismissal was improper and he was entitled to the damages he claimed, the difference between his lost wages and his actual earnings. Vaden v. Louisville Civil Service Bd., 701 S.W.2d 150, 1985 Ky. App. LEXIS 708 (Ky. Ct. App. 1985).

Opinions of Attorney General.

A county judge (now county judge/executive), who has been convicted and sentenced in a federal court on various charges of fraud, may legally continue in office pending his appeal to the Circuit Court. OAG 68-166 .

Although a person convicted of a felony is disqualified from holding office, removal of a county sheriff for disqualification could not be sought until the sheriff’s post-conviction procedures relating to appeal had been exhausted or abandoned, and during such interim period the sheriff could continue the pursuits of his office. OAG 76-232 .

Any public officer, whether he is appointed or elected, is disqualified from serving as a public officer upon conviction of a felony under the terms of Const., § 150, and this section provides that the office of the officer convicted of a felony shall be vacated by such conviction, but until the public officer is convicted and his possible conviction procedures relating to appeal have been exhausted or abandoned, the office does not become vacant. OAG 78-838 .

Research References and Practice Aids

Cross-References.

Disqualification from holding office:

Bribe, receiving or giving for vote, KRS 119.205 .

Dueling, Const., §§ 239, 240; KRS 61.100 .

Election laws, violation of, Const., §§ 150, 151, 239; KRS 119.205 .

Felony or high misdemeanor, conviction of, Const., § 150.

Official misconduct, KRS 522.010 to 522.040 .

Forfeiture of office for conviction of crime, Const., §§ 68, 150, 151, 197, 227, 246.

ALR

Conviction of offense under federal law or law of another state or country as vacating accused’s holding of state or local office or as ground of removal. 20 A.L.R.2d 732.

Constitutional office, power of legislature to prescribe qualifications for or conditions of eligibility to. 34 A.L.R.2d 155.

Elections, effect of conviction under federal law, or law of another state or county, on right to vote or hold public office. 39 A.L.R.3d 303.

Removal of public officers for misconduct during previous term. 42 A.L.R.3d 691.

What is an infamous crime or one involving moral turpitude constituting disqualification to hold public office. 52 A.L.R.2d 1314.

What constitutes conviction within statutory or constitutional provision making conviction of crime ground for disqualification for, removal from, or vacancy in, public office. 10 A.L.R.5th 139.

61.050. Officer’s acts before conviction are valid.

All judgments rendered or acts done by such person, by authority or color of his office, before his removal or such conviction, are valid.

History. 3743.

61.060. Official acts may be questioned collaterally, when.

No fact officially stated by an officer in respect of a matter about which he is by law required to make a statement in writing, either in the form of a certificate, return or otherwise, shall be called in question, except in a direct proceeding against the officer or his sureties, or upon the allegation of fraud in the party benefited thereby or mistake on the part of the officer.

History. 3760.

NOTES TO DECISIONS

Analysis

1.Application.

This section does not apply to officers of an election, whose action cannot be corrected by a court of equity either for fraud or mistake. Ramey v. Ratliffe, 81 Ky. 468 , 5 Ky. L. Rptr. 471 , 1884 Ky. LEXIS 1 ( Ky. 1884 ); Hodges v. Murray, 240 Ky. 127 , 41 S.W.2d 923, 1931 Ky. LEXIS 355 ( Ky. 1931 ), overruled, Johnson v. May, 305 Ky. 292 , 203 S.W.2d 37, 1947 Ky. LEXIS 785 ( Ky. 1947 ).

This section does not apply to certificate signed by one whose term had expired at the time of signature. Fitzgerald v. Milliken, 83 Ky. 70 , 7 Ky. L. Rptr. 11 , 1885 Ky. LEXIS 38 (Ky. Ct. App. 1885).

This section does not protect official statements not required by law to be made. Engle v. Bond-Foley Lumber Co., 173 Ky. 35 , 189 S.W. 1146, 1916 Ky. LEXIS 287 ( Ky. 1916 ); Hodges v. Murray, 240 Ky. 127 , 41 S.W.2d 923, 1931 Ky. LEXIS 355 ( Ky. 1931 ), overruled, Johnson v. May, 305 Ky. 292 , 203 S.W.2d 37, 1947 Ky. LEXIS 785 ( Ky. 1947 ).

Attack on clerk’s indorsement of execution of appeal bond is governed by this section. Commonwealth by State Highway Com. v. McIntire, 249 Ky. 555 , 61 S.W.2d 31, 1933 Ky. LEXIS 564 ( Ky. 1933 ).

This section has no application where defendant in a boundary line dispute is attempting to prove that a surveyor’s map, which had been recorded, was inaccurate. Bailey v. Hall, 295 Ky. 740 , 175 S.W.2d 512, 1943 Ky. LEXIS 345 ( Ky. 1943 ).

Report of a sheriff on the posting of notices of a local option election, even though not offered for filing until nearly 60 days after the election and 30 days after institution of contest suit, could be attacked only as prescribed in this section. Steele v. Perry County, 299 Ky. 827 , 187 S.W.2d 302, 1945 Ky. LEXIS 781 ( Ky. 1945 ).

In action attacking validity of deed, where the contention was that grantee had switched pages on two (2) deeds, taking page bearing signature and acknowledgment from a deed conveying only a life estate and attaching it to a deed conveying a fee, but where no attack was made upon the signature or the acknowledgment, this section had no application. Damron v. Damron, 301 Ky. 636 , 192 S.W.2d 741, 1945 Ky. LEXIS 757 ( Ky. 1945 ).

KRS 125.080 (repealed) does not require election officers to “certify” any fact and thus this section has no relevance to clerk’s notification that the ballot machines were ready or to the commissioner’s indorsement of approval of the ballot machines. Rives v. Pettit, 513 S.W.2d 475, 1974 Ky. LEXIS 371 ( Ky. 1974 ).

2.Direct Attack.

Action on bond is direct attack. Commonwealth use of Steinaugh v. Rothwell, 5 Ky. Op. 251, 1871 Ky. LEXIS 356 (Ky. Ct. App. Nov. 1, 1871).

Deed valid on its face, acknowledged and recorded, is open to question only in a suit against an immediate or other vendee with notice, or in a suit against the certifying officer. Godsey v. Virginia Iron, Coal & Coke Co., 82 S.W. 386, 26 Ky. L. Rptr. 657 , 1904 Ky. LEXIS 385 (Ky. Ct. App. 1904).

When the return is valid on its face, allegation that person making it was not an officer can be raised only in action against the officer, or on ground of fraud or mistake. Claryville, Grant's Lick & Butler Turnpike Co. v. Commonwealth, 107 S.W. 327, 108 S.W. 250, 32 Ky. L. Rptr. 1157 , 32 Ky. L. Rptr. 861 .

Motion to quash is a direct attack upon a return for mistake of the officer. Leabow v. Jones, 221 Ky. 509 , 299 S.W. 177, 1927 Ky. LEXIS 766 ( Ky. 1927 ).

Suit to vacate default judgment entered at same term alleging mistake in recital of service in return made on summons is essentially a direct attack on the return, whether regarded as an independent action or as a motion in the former suit. Holcomb v. Creech, 247 Ky. 199 , 56 S.W.2d 998, 1933 Ky. LEXIS 376 ( Ky. 1933 ).

Where a deputy sheriff stated in an affidavit that he served a summons on a judgment debtor’s wife rather than on the debtor himself even though he had stated on his return that he had served the debtor personally, this section does not bar a direct attack on the judgment if the debtor alleges fraud or mistake on the part of the deputy sheriff. R. F. Burton & Burton Tower Co. v. Dowell Div. of Dow Chemical Co., 471 S.W.2d 708, 1971 Ky. LEXIS 249 ( Ky. 1971 ).

3.Collateral Proceedings.

A certificate of acknowledgment of a deed cannot be collaterally attacked by parol evidence contradicting it showing that it was acknowledged elsewhere, that the husband was present or that the clerk failed to explain it to the wife. Cox v. Gill, 83 Ky. 669 , 7 Ky. L. Rptr. 720 , 1886 Ky. LEXIS 24 (Ky. Ct. App. 1886); Tichenor v. Yankee, 89 Ky. 508 , 12 S.W. 947, 11 Ky. L. Rptr. 712 , 1890 Ky. LEXIS 13 ( Ky. 1890 ).

Motion at same term to set aside judgment is not a collateral attack. Authority of court to set judgment aside at same term is not statutory but inherent. Holcomb v. Creech, 247 Ky. 199 , 56 S.W.2d 998, 1933 Ky. LEXIS 376 ( Ky. 1933 ); Gardner v. Lincoln Bank & Trust Co., 251 Ky. 109 , 64 S.W.2d 497, 1933 Ky. LEXIS 830 ( Ky. 1933 ).

Chapter 7 trustee was allowed to amend a complaint seeking to avoid a mortgage under 11 USCS § 544(a) where the case law on the application of KRS 61.060 demonstrated that a notary certificate could not be attacked without bringing an action directly against the notary, or by alleging fraud or mistake on the notary’s part. Kendrick v. Deutsche Bank Nat'l Trust Co. (In re St. Clair), 2006 Bankr. LEXIS 2449 (Bankr. E.D. Ky. Oct. 4, 2006).

Trustee was given an opportunity to amend a complaint seeking to avoid a mortgage under 11 USCS § 544(a) although he had neither brought a direct action against the notary, alleged fraud on the part of the party benefitted by the certificate of acknowledgement, or alleged mistake by the notary as required under KRS 61.060 . Rogan v. Countrywide Home Loans (In re Griffin), 2006 Bankr. LEXIS 2520 (Bankr. E.D. Ky. Oct. 5, 2006).

4.Valid Certificate.

Valid certificate adds nothing to fraudulent instrument. Aultman & Taylor Co. v. Frasure, 95 Ky. 429 , 26 S.W. 5, 16 Ky. L. Rptr. 6 , 1894 Ky. LEXIS 43 ( Ky. 1894 ).

Certificate of notary public that mortgage was signed and acknowledged before him imported verity to the instrument. Catron v. Jones, 281 Ky. 163 , 135 S.W.2d 419, 1939 Ky. LEXIS 27 ( Ky. 1939 ).

A genuine officer’s certificate imports absolute verity to the instrument. Conley v. Coburn, 297 Ky. 292 , 179 S.W.2d 668, 1944 Ky. LEXIS 703 ( Ky. 1944 ).

An officer’s certificate being in proper form, is prima facie evidence of the true execution of the deed. Conley v. Coburn, 297 Ky. 292 , 179 S.W.2d 668, 1944 Ky. LEXIS 703 ( Ky. 1944 ).

Where there was no allegation that sheriff failed to publish the required advertisements, sheriff’s return on back of printed notice certifying that the notice was printed and at least five (5) were placed in each of the voting precincts, was sufficient compliance with KRS 242.040 and since there was no allegation of fraud or mistake truth of sheriff’s return could not be questioned collaterally under this section. Donohue v. Swindler, 299 Ky. 119 , 184 S.W.2d 348, 1944 Ky. LEXIS 1031 ( Ky. 1944 ).

An officer’s certificate imports absolute verity unless attacked in a direct proceeding against the officer or his surety, or unless there is an allegation of fraud in the obtention of the certificate by the party benefited, or mistake upon the part of the officer and where there was no pleading attacking the officer’s certificate or charging fraud on the part of the grantee or mistake of the notary the deed must stand. Spicer v. Spicer, 314 Ky. 560 , 236 S.W.2d 474, 1951 Ky. LEXIS 692 ( Ky. 1951 ).

5.Returns.

Return may be questioned before judgment. Barbour v. Newkirk, 83 Ky. 529 , 7 Ky. L. Rptr. 555 , 1886 Ky. LEXIS 4 (Ky. Ct. App. 1886); Thompson v. Board of Drainage Comm'rs, 258 Ky. 68 , 79 S.W.2d 381, 1935 Ky. LEXIS 113 ( Ky. 1935 ).

Return on summons may not be attacked by parties to suit after judgment where plaintiff acted in good faith. Thomas v. Ireland, 88 Ky. 581 , 11 S.W. 653, 11 Ky. L. Rptr. 103 , 1889 Ky. LEXIS 78 ( Ky. 1889 ). See Foster v. Hill, 282 Ky. 327 , 138 S.W.2d 495, 1940 Ky. LEXIS 172 ( Ky. 1940 ).

Where answer alleged that sheriff’s return “was made by fraud or mistake on the part of” the officer, “and defendant does not know which,” it did not impeach the return under this section “upon an allegation of fraud in the party benefited thereby, or mistake on the part of the officer.” Lock v. Slusher, 102 Ky. 415 , 43 S.W. 471 ( Ky. 1897 ).

Amended petition in local option contest suit, alleging that sheriff’s return as to posting of election notices was not filed until after contest had been instituted, and attacking the return on the ground of fraud or mistake, was not demurrable, although proof developed that return had been filed before contest was instituted, and that the return was adequate. Hall v. Sturgill, 305 Ky. 445 , 204 S.W.2d 496, 1947 Ky. LEXIS 827 ( Ky. 1947 ).

6.Purchasers Without Knowledge.

Recorded certificate, regular on its face, is not open to assault by parol evidence so as to affect innocent purchasers. Aultman & Taylor Co. v. Frasure, 95 Ky. 429 , 26 S.W. 5, 16 Ky. L. Rptr. 6 , 1894 Ky. LEXIS 43 ( Ky. 1894 ); Godsey v. Virginia Iron, Coal & Coke Co., 82 S.W. 386, 26 Ky. L. Rptr. 6 57 , 1904 Ky. LEXIS 385 (Ky. Ct. App. 1904).

A purchaser for value, at judicial sale, when the proceedings are regular on their face, is not affected by extrinsic facts, unknown to him, which might impeach the judgment. Ohio Oil Co. v. West, 284 Ky. 796 , 145 S.W.2d 1035, 1940 Ky. LEXIS 566 ( Ky. 1940 ).

7.Duress.

Wife of mortgagor was permitted to show by parol evidence that the acknowledgment was taken in the presence of her husband and by his coercion where the mortgagee, by its agent, was present when the acknowledgment was taken and was participating in the fraudulent efforts to overcome the wife’s refusal to mortgage her property. Aultman & Taylor Co. v. Frasure, 95 Ky. 429 , 26 S.W. 5, 16 Ky. L. Rptr. 6 , 1894 Ky. LEXIS 43 ( Ky. 1894 ).

A mortgage properly certified by the officer taking the acknowledgment cannot be avoided as to the wife on grounds she was induced to execute the mortgage under the duress of her husband, although it was not certain whether her husband was out of the room while the wife acknowledged the mortgage, where the mortgagee was innocent of any participation in the duress. Tackitt v. Tackitt's Adm'r, 127 S.W. 987, 1910 Ky. LEXIS 718 ( Ky. 1910 ).

Duress by husband cannot prevail against regularity of certificate, when fraud or mistake does not appear. Tackitt v. Tackitt's Adm'r, 127 S.W. 987, 1910 Ky. LEXIS 718 ( Ky. 1910 ).

8.Forgery.

Forgery of certificate is not affected by this section. Atkins' Guardian v. McCoy, 275 Ky. 117 , 120 S.W.2d 1019, 1938 Ky. LEXIS 377 ( Ky. 1938 ).

Forgery of the maker’s signature may not be shown until the certificate is attacked. Atkins' Guardian v. McCoy, 275 Ky. 117 , 120 S.W.2d 1019, 1938 Ky. LEXIS 377 ( Ky. 1938 ).

This section applies only to a certificate actually signed by the officer, and not to a forged certificate, which is a nullity. Park Hill Realty Co. v. Lykins, 290 Ky. 498 , 161 S.W.2d 602, 1942 Ky. LEXIS 407 ( Ky. 1942 ).

Execution return may be quashed for forgery, on motion having elements of a good petition, provided that notice must be given if the case has been off the docket. Park Hill Realty Co. v. Lykins, 290 Ky. 498 , 161 S.W.2d 602, 1942 Ky. LEXIS 407 ( Ky. 1942 ).

Where a defendant in an action to quiet title was a grantee in a deed a title bond covering the same real estate executed by plaintiff and her husband to grantor at a later date would inure to the defendant’s benefit so that notary’s acknowledgment on the title bond could be attacked under this section on an allegation that the entire title bond was forged and the notary’s certificate was made by the notary through mistake, “or as the result of fraud on the part of defendant.” Grigsby v. Mosley, 297 Ky. 571 , 180 S.W.2d 99, 1944 Ky. LEXIS 732 ( Ky. 1944 ).

Notary’s certificate that title bond had been acknowledged was not immune from attack and came within the exceptions to this section where pleading alleging the entire instrument was forged contained the charge that the certificate was made by the notary through mistake, “or as the result of fraud on the part of the defendant” whom the title bond would have benefited. Grigsby v. Mosley, 297 Ky. 571 , 180 S.W.2d 99, 1944 Ky. LEXIS 732 ( Ky. 1944 ).

This section cannot be pleaded as a shield against a prosecution for knowingly uttering a forged deed. Honeycutt v. Commonwealth, 245 S.W.2d 444, 1951 Ky. LEXIS 1258 ( Ky. 1951 ).

9.Fraud.

Fraud must relate to the obtaining of the certificate itself, not to the making of the instrument acknowledged, in order to open the certificate to collateral attack. Dowell v. Mitchell, 82 Ky. 47 , 5 Ky. L. Rptr. 746 , 1884 Ky. LEXIS 36 (Ky. Ct. App. 1884); Aultman & Taylor Co. v. Frasure, 95 Ky. 429 , 26 S.W. 5, 16 Ky. L. Rptr. 6 , 1894 Ky. LEXIS 43 ( Ky. 1894 ); Byers v. First State Bank, 159 Ky. 135 , 166 S.W. 790, 1914 Ky. LEXIS 748 ( Ky. 1914 ).

Fraud committed by one benefiting only incidentally from the transaction is insufficient to justify collateral attack. Thomas v. Ireland, 88 Ky. 581 , 11 S.W. 653, 11 Ky. L. Rptr. 103 , 1889 Ky. LEXIS 78 ( Ky. 1889 ); Hall v. Hall, 118 Ky. 656 , 82 S.W. 269, 26 Ky. L. Rptr. 553 , 1904 Ky. LEXIS 87 ( Ky. 1904 ); Long v. Branham, 99 S.W. 271, 30 Ky. L. Rptr. 552 (1907).

Fraud by officer alone is insufficient. Lock v. Slusher, 102 Ky. 415 , 43 S.W. 471 ( Ky. 1897 ).

Allegation of fraud must show that grantee participated in the fraud, or had knowledge or notice of it before the transaction was completed, the instrument being solely for his benefit. Hall v. Hall, 118 Ky. 656 , 82 S.W. 269, 26 Ky. L. Rptr. 553 , 1904 Ky. LEXIS 87 ( Ky. 1904 ); Long v. Branham, 99 S.W. 271, 30 Ky. L. Rptr. 552 (1907).

Fraud by certifying officer is sufficient where he negotiated the trade on behalf of the purchaser. Commonwealth v. Middleton, 205 Ky. 570 , 266 S.W. 37, 1924 Ky. LEXIS 163 ( Ky. 1924 ).

Officer is generally not an agent for either party to the instrument but when the obligee produces the instrument to him and causes him to leave his office and go to the home of the obligor in order to secure signature and acknowledgment, then fraud by the officer will be imputed to the obligee. Crace v. Morgan County Nat'l Bank, 258 Ky. 657 , 80 S.W.2d 823, 1935 Ky. LEXIS 216 ( Ky. 1935 ).

In the absence of allegations of fraud on the part of grantees in obtaining a notary certificate attached to a deed or of mistake on the part of the notary, party whose signature appears as executor of deed could not allege that he did not execute the deed. Skaggs v. Vaughn, 550 S.W.2d 574, 1977 Ky. App. LEXIS 686 (Ky. Ct. App. 1977).

Where Chapter 7 debtors were not present before the notary when they signed certificates of acknowledgment on a deed and mortgage, the trustee failed to allege that there was direct fraud committed by, or on behalf of, either of the creditors; rather, the trustee solely argued that the notary’s fraud was imputed to the creditors. Kendrick v. Deutsche Bank Nat'l Trust Co. (In re St. Clair), 380 B.R. 478, 2008 Bankr. LEXIS 37 (B.A.P. 6th Cir. 2008).

10.Mistake.

That clerk took acknowledgment in wrong county, or that he failed to read or explain the instrument to the wife, or that she did not consent that the instrument be recorded, or that her husband was present when she acknowledged it, are not the type of mistakes contemplated by this section, and parol evidence is not admissible to contradict the certificate. Cox v. Gill, 83 Ky. 669 , 7 Ky. L. Rptr. 720 , 1886 Ky. LEXIS 24 (Ky. Ct. App. 1886).

Mistake does not apply to the form or manner of acknowledgment. Cox v. Gill, 83 Ky. 669 , 7 Ky. L. Rptr. 720 , 1886 Ky. LEXIS 24 (Ky. Ct. App. 1886); Tichenor v. Yankee, 89 Ky. 508 , 12 S.W. 947, 11 Ky. L. Rptr. 712 , 1890 Ky. LEXIS 13 ( Ky. 1890 ); Bebout v. Old Kentucky Mfg. Co., 145 Ky. 756 , 141 S.W. 406, 1911 Ky. LEXIS 954 ( Ky. 1911 ).

Mistake in certificate of acknowledgment of deed may be pleaded only (1) when the certificate is invalid on its face, (2) when the parties named in the deed did not sign it, or (3) when they did not acknowledge it before an authorized officer. Cox v. Gill, 83 Ky. 669 , 7 Ky. L. Rptr. 720 , 1886 Ky. LEXIS 24 (Ky. Ct. App. 1886).

When the certificate is regular and proper on its face and admitted to be signed, and the deed acknowledged before one authorized to take the acknowledgment, what the clerk states as to when it was acknowledged and the manner of acknowledgment cannot be assailed on the idea that the clerk made a mistake and parol proof will not be allowed to contradict the legal effect of the certificate by showing that the clerk took the acknowledgment somewhere else, or that the husband was present when the deed was acknowledged by the wife, or that the clerk failed to read and explain the contents of the deed to her. Cox v. Gill, 83 Ky. 669 , 7 Ky. L. Rptr. 720 , 1886 Ky. LEXIS 24 (Ky. Ct. App. 1886); Tichenor v. Yankee, 89 Ky. 508 , 12 S.W. 947, 11 Ky. L. Rptr. 712 , 1890 Ky. LEXIS 13 ( Ky. 1890 ); Keith v. Silberberg, 29 S.W. 316, 16 Ky. L. Rptr. 588 (1895); Bebout v. Old Kentucky Mfg. Co., 145 Ky. 756 , 141 S.W. 406, 1911 Ky. LEXIS 954 ( Ky. 1911 ).

Recorded certificate though regular on its face may be attacked by parol evidence when affected party had knowledge at the time of a mistake. Aultman & Taylor Co. v. Frasure, 95 Ky. 429 , 26 S.W. 5, 16 Ky. L. Rptr. 6 , 1894 Ky. LEXIS 43 ( Ky. 1894 ).

Where through the failure of the official stenographer, who was the agent for the attorney for the defendant, and the trial court to follow the procedural law, the court was led into the mistake of attaching a certificate of approval and entering an order filing a nonexistent bill of exceptions, Court of Appeals sustained plaintiff’s motion to strike the bill from the record. Louisville & N. R. Co. v. Paul's Adm'r, 314 Ky. 473 , 235 S.W.2d 787, 1951 Ky. LEXIS 659 ( Ky. 1951 ).

Absent a direct proceeding for recovery against the officer and absent any substantial proof in the nature of fraud, any mistake disclosed by the proof was not the kind of mistake contemplated by this section and the statement of the officer was therefore not subject to attack. Fletcher v. Wilson, 500 S.W.2d 601, 1973 Ky. LEXIS 258 ( Ky. 1973 ).

Where Chapter 7 debtors were not present before the notary when they signed certificates of acknowledgment on a deed and mortgage, the facts alleged by the trustee did not constitute the “mistake” contemplated by KRS 61.060 because the debtors admitted that they signed the mortgage and deed and benefitted from it, they did not claim any harm occurred, and, on its face, the acknowledgment clause was valid, and for that reason it was accepted for recordation. Kendrick v. Deutsche Bank Nat'l Trust Co. (In re St. Clair), 380 B.R. 478, 2008 Bankr. LEXIS 37 (B.A.P. 6th Cir. 2008).

11.Pleadings.

Statement of facts constituting the mistake or fraud is a sufficient averment. Pryse v. McGuire, 81 Ky. 608 , 5 Ky. L. Rptr. 716 , 1884 Ky. LEXIS 19 (Ky. Ct. App. 1884); Riggs v. Stevens, 92 Ky. 393 , 17 S.W. 1016, 13 Ky. L. Rptr. 631 , 1891 Ky. LEXIS 175 ( Ky. 1891 ); Bingham v. Anderson, 199 Ky. 680 , 251 S.W. 973, 1923 Ky. LEXIS 919 ( Ky. 1923 ).

Mistake and fraud may be pleaded affirmatively, but each must be a complete and sufficient cause of action or ground of defense. Lock v. Slusher, 102 Ky. 415 , 43 S.W. 471 ( Ky. 1897 ).

Allegation in petition that grantee forged or caused to be forged name of notary public to certificate was sufficient plea of fraud in the party benefited thereby. Hoagland v. Fish, 238 S.W.2d 133, 1951 Ky. LEXIS 799 ( Ky. 1951 ).

Where date on summons was more than a year and a day after accrual of cause of action, and no evidence was introduced to prove issuing officer’s mistake, death action was barred, but plaintiff on subsequent trial would be allowed to amend pleadings to show action was not barred by statute of limitations. Clark v. Finch's Adm'x, 254 S.W.2d 934, 1953 Ky. LEXIS 1237 (Ky. Ct. App. 1953).

12.— Allegations.

Mistake or fraud must be pleaded before evidence thereof may be introduced. Dowell v. Mitchell, 82 Ky. 47 , 5 Ky. L. Rptr. 746 , 1884 Ky. LEXIS 36 (Ky. Ct. App. 1884); Davis v. Jenkins, 93 Ky. 353 , 20 S.W. 283, 14 Ky. L. Rptr. 342 , 1892 Ky. LEXIS 104 ( Ky. 1892 ); Keith v. Silberberg, 29 S.W. 316, 16 Ky. L. Rptr. 588 (1895); Doty v. Deposit Bldg. & Loan Ass'n, 103 Ky. 710 , 46 S.W. 219, 20 Ky. L. Rptr. 625 , 1898 Ky. LEXIS 120 ( Ky. 1898 ); Creech v. Board of Trustees, 102 S.W. 804, 31 Ky. L. Rptr. 379 (1907); Claryville, Grant's Lick & Butler Turnpike Co. v. Commonwealth, 107 S.W. 327, 108 S.W. 250, 32 Ky. L. Rptr. 1157 , 32 Ky. L. Rptr. 861 ; Commonwealth v. Slayer, 146 Ky. 453 , 142 S.W. 1015, 1912 Ky. LEXIS 91 ( Ky. 1912 ); S. B. Reese Lumber Co. v. Licking Coal & Lumber Co., 156 Ky. 723 , 161 S.W. 1124, 1914 Ky. LEXIS 186 ( Ky. 1914 ); Byers v. First State Bank, 159 Ky. 135 , 166 S.W. 790, 1914 Ky. LEXIS 748 ( Ky. 1914 ); Ramey v. Francis, Day & Co., 169 Ky. 469 , 184 S.W. 380, 1916 Ky. LEXIS 715 ( Ky. 1916 ); Wiser v. Shacklett, 208 Ky. 317 , 270 S.W. 754, 1925 Ky. LEXIS 276 ( Ky. 1925 ); Quinn-Marshall Co. v. Hurley, 209 Ky. 154 , 272 S.W. 402, 1925 Ky. LEXIS 449 ( Ky. 1925 ); Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ); Foster v. Hill, 282 Ky. 327 , 138 S.W.2d 495, 1940 Ky. LEXIS 172 ( Ky. 1940 ).

Pleading attacking validity of official act is bad unless it affirmatively shows that the act was not done or that some essential fact was omitted which goes to the validity of the act. Alexander v. Aud, 121 Ky. 105 , 88 S.W. 1103, 28 Ky. L. Rptr. 69 , 1905 Ky. LEXIS 185 ( Ky. 1905 ).

Petition pleading conspiracy, fraud and forgery by grantee, and lack of acknowledgment before clerk, held sufficient. Cornett v. Davidson, 282 Ky. 584 , 139 S.W.2d 72, 1940 Ky. LEXIS 210 ( Ky. 1940 ).

Plea of non est factum and allegation of forgery and fraud held sufficient. Clark v. Taylor, 289 Ky. 480 , 158 S.W.2d 961, 1941 Ky. LEXIS 34 ( Ky. 1941 ).

Report of sheriff that he had posted notices of local option election, as required by KRS 242.040 , could not be collaterally attacked without an allegation of fraud or mistake. Jackson v. Bolt, 292 Ky. 503 , 166 S.W.2d 831, 1942 Ky. LEXIS 92 ( Ky. 1942 ).

In action on note and mortgage, where mortgage bore certificate of acknowledgment by county clerk, defendant’s plea in answer that note and mortgage were not signed or acknowledged by him, but not alleging fraud or mistake in the execution of the certificate, was fatally defective. Hackworth v. Trimble, 293 Ky. 647 , 169 S.W.2d 843, 1943 Ky. LEXIS 682 ( Ky. 1943 ).

13.— Non Est Factum.

Party may plead lack of execution, or that he signed a blank which was afterward filled in by another without authority. Hager v. Sidebottom, 130 Ky. 687 , 113 S.W. 870, 1908 Ky. LEXIS 310 ( Ky. 1908 ).

Denial of execution may be made only under a plea of fraud or mistake. Byers v. First State Bank, 159 Ky. 135 , 166 S.W. 790, 1914 Ky. LEXIS 748 ( Ky. 1914 ); Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ); Morgan County Nat'l Bank v. Crace, 249 Ky. 461 , 61 S.W.2d 10, 1933 Ky. LEXIS 552 ( Ky. 1933 ); Commonwealth Life Ins. Co. v. Combs, 251 Ky. 540 , 65 S.W.2d 696, 1933 Ky. LEXIS 920 ( Ky. 1933 ); Christopher's Adm'r v. Miniard, 267 Ky. 484 , 102 S.W.2d 978, 1937 Ky. LEXIS 342 ( Ky. 1937 ); Bush v. Arnett, 271 Ky. 803 , 113 S.W.2d 442, 1938 Ky. LEXIS 58 ( Ky. 1938 ).

If forgery of the certificate is alleged and proved, non est factum may be pleaded against the instrument. Atkins' Guardian v. McCoy, 275 Ky. 117 , 120 S.W.2d 1019, 1938 Ky. LEXIS 377 ( Ky. 1938 ).

Except in an action against the officer or his surety, the effect of the certificate must be destroyed before non est factum is available. Atkins' Guardian v. McCoy, 275 Ky. 117 , 120 S.W.2d 1019, 1938 Ky. LEXIS 377 ( Ky. 1938 ).

14.Evidence.

Evidence of fraud or mistake should be clear, positive and convincing. Utter, Adams & Allen v. Smith, 80 S.W. 447, 25 Ky. L. Rptr. 2272 (1904); Duff v. Virginia Iron, Coal & Coke Co., 136 Ky. 281 , 124 S.W. 309, 1910 Ky. LEXIS 480 ( Ky. 1910 ); Rockcastle Mining, Lumber & Oil Co. v. Isaacs, 141 Ky. 80 , 132 S.W. 165, 1910 Ky. LEXIS 410 ( Ky. 1910 ); Banner v. Asher, 183 Ky. 24 , 207 S.W. 703, 1919 Ky. LEXIS 426 ( Ky. 1919 ); Eversole v. Kentucky River Coal Corp., 189 Ky. 471 , 225 S.W. 50, 1920 Ky. LEXIS 453 ( Ky. 1920 ); Slater v. Hatfield, 195 Ky. 281 , 242 S.W. 618, 1922 Ky. LEXIS 338 ( Ky. 1922 ); Ford v. Fischer, 202 Ky. 494 , 260 S.W. 20, 1924 Ky. LEXIS 745 ( Ky. 1924 ); Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ); Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ); McGuire v. Cope, 225 Ky. 521 , 9 S.W.2d 528, 1928 Ky. LEXIS 817 (Ky. 1928); Greene v. Cawood, 230 Ky. 823 , 20 S.W.2d 984, 1929 Ky. LEXIS 180 ( Ky. 1929 ); Kentucky West Virginia Gas Co. v. Maynard, 242 Ky. 490 , 46 S.W.2d 788, 1932 Ky. LEXIS 300 ( Ky. 1932 ); Muscovalley v. Horn, 246 Ky. 778 , 56 S.W.2d 354, 1932 Ky. LEXIS 826 ( Ky. 1932 ); Billingsly v. Pearcy, 251 Ky. 546 , 65 S.W.2d 699, 1933 Ky. LEXIS 921 ( Ky. 1933 ); Perry Bank & Trust Co.'s Liquidating Agent & Special Deputy Banking Comm'r v. Colwell, 252 Ky. 389 , 67 S.W.2d 465, 1934 Ky. LEXIS 777 ( Ky. 1934 ); Halcomb v. Creech, 255 Ky. 262 , 73 S.W.2d 21, 1934 Ky. LEXIS 213 ( Ky. 1934 ); Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ); Nicholson v. Thomas, 277 Ky. 760 , 127 S.W.2d 155, 1939 Ky. LEXIS 718 ( Ky. 1939 ); Cornett v. Davidson, 282 Ky. 584 , 139 S.W.2d 72, 1940 Ky. LEXIS 210 ( Ky. 1940 ); Ohio Oil Co. v. West, 284 Ky. 796 , 145 S.W.2d 1035, 1940 Ky. LEXIS 566 ( Ky. 1940 ); Newsome v. Hall, 290 Ky. 486 , 161 S.W.2d 629, 1942 Ky. LEXIS 419 ( Ky. 1942 ); Park Hill Realty Co. v. Lykins, 290 Ky. 498 , 161 S.W.2d 602, 1942 Ky. LEXIS 407 ( Ky. 1942 ).

To overthrow an official certificate, the court should have before it such evidence as will leave no doubt that the officer had been guilty of fraud or mistake. Duff v. Virginia Iron, Coal & Coke Co., 136 Ky. 281 , 124 S.W. 309, 1910 Ky. LEXIS 480 ( Ky. 1910 ). But see Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ).

Denial of execution, under issue of mistake, is affirmative testimony. Gardner v. Lincoln Bank & Trust Co., 251 Ky. 109 , 64 S.W.2d 497, 1933 Ky. LEXIS 830 ( Ky. 1933 ).

Even where the original summons has been lost, clear and convincing evidence is required in order to impeach an official entry on the docket showing that defendants have been summoned. Nicholson v. Thomas, 277 Ky. 760 , 127 S.W.2d 155, 1939 Ky. LEXIS 718 ( Ky. 1939 ); Nicholson v. Ausmus, 280 Ky. 99 , 132 S.W.2d 748, 1939 Ky. LEXIS 78 ( Ky. 1939 ).

In local option election contest, where charge of mistake in sheriff’s return as to posting of notices of election was sustained by the evidence, and there was no proof of fraud in connection therewith on the part of the contestants, it was proper for the court to receive evidence as to whether the notices were in fact posted. Hughes v. Ramey, 305 Ky. 128 , 203 S.W.2d 63, 1947 Ky. LEXIS 797 ( Ky. 1947 ).

When a party undertakes to invalidate signature on adoption papers, he must also prove fraud or mistake in the execution of the notary’s certificate. Jones v. Sutton, 255 S.W.2d 658, 1953 Ky. LEXIS 682 ( Ky. 1953 ).

15.— Presumptions.

A simple preponderance of evidence is not enough to overcome the presumption that the deed on file in the public records is a true and complete testimonial as to the terms of the conveyance. Hi Hat Elkhorn Coal Co. v. Kelly, 205 F. Supp. 764, 1962 U.S. Dist. LEXIS 4759 (E.D. Ky. 1962 ).

Sheriff’s return on execution recited execution of sale bond, but no bond was filed. While the return may be prima facie evidence, yet in a direct action against him he must prove execution of sale bond. Commonwealth use of Steinaugh v. Rothwell, 5 Ky. Op. 251, 1871 Ky. LEXIS 356 (Ky. Ct. App. Nov. 1, 1871).

Return is prima facie evidence of its own truth, but is not evidence of any other fact, and does not prove authority to act. Carlisle v. Carlisle, 9 Ky. Op. 174, 1876 Ky. LEXIS 383 (Ky. Ct. App. Oct. 17, 1876).

Certificate or return imports absolute verity as to whether officer did his duty, except for fraud or mistake. Dowell v. Mitchell, 82 Ky. 47 , 5 Ky. L. Rptr. 746 , 1884 Ky. LEXIS 36 (Ky. Ct. App. 1884); Davis v. Jenkins, 93 Ky. 353 , 20 S.W. 283, 14 Ky. L. Rptr. 342 , 1892 Ky. LEXIS 104 ( Ky. 1892 ); Keith v. Silberberg, 29 S.W. 316, 16 Ky. L. Rptr. 588 (1895); Everman v. Everman, 122 S.W. 135 ( Ky. 1909 ); Bebout v. Old Kentucky Mfg. Co., 145 Ky. 756 , 141 S.W. 406, 1911 Ky. LEXIS 954 ( Ky. 1911 ); Byers v. First State Bank, 159 Ky. 135 , 166 S.W. 790, 1914 Ky. LEXIS 748 ( Ky. 1914 ); Ramey v. Francis, Day & Co., 169 Ky. 469 , 184 S.W. 380, 1916 Ky. LEXIS 715 ( Ky. 1916 ); Slater v. Hatfield, 195 Ky. 281 , 242 S.W. 618, 1922 Ky. LEXIS 338 ( Ky. 1922 ); Combs' Adm'r v. Virginia Iron, Coal & Coke Co., 236 Ky. 524 , 33 S.W.2d 649, 1930 Ky. LEXIS 811 ( Ky. 1930 ); Atkins' Guardian v. McCoy, 263 Ky. 846 , 93 S.W.2d 839, 1936 Ky. LEXIS 242 ( Ky. 1936 ); Christopher's Adm'r v. Miniard, 267 Ky. 484 , 102 S.W.2d 978, 1937 Ky. LEXIS 342 ( Ky. 1937 ); Givens v. Turner, 272 Ky. 211 , 113 S.W.2d 1166, 1938 Ky. LEXIS 104 ( Ky. 1938 ); Park Hill Realty Co. v. Lykins, 290 Ky. 498 , 161 S.W.2d 602, 1942 Ky. LEXIS 407 ( Ky. 1942 ); White v. White, 294 Ky. 563 , 172 S.W.2d 72, 1943 Ky. LEXIS 482 ( Ky. 1943 ).

Mere alibi is not testimony of sufficient weight to overthrow presumption in favor of certificate. Birkhead v. Kyle, 13 Ky. Op. 42, 6 Ky. L. Rptr. 301 , 1884 Ky. LEXIS 123 (Ky. Ct. App. Oct. 25, 1884); Kentucky West Virginia Gas Co. v. Maynard, 242 Ky. 490 , 46 S.W.2d 788, 1932 Ky. LEXIS 300 ( Ky. 1932 ).

Presumption in favor of sheriff’s return does not arise when the return is made by a special bailiff. Barbour v. Newkirk, 83 Ky. 529 , 7 Ky. L. Rptr. 555 , 1886 Ky. LEXIS 4 (Ky. Ct. App. 1886); Simms v. Simms, 88 Ky. 642 , 11 S.W. 665, 11 Ky. L. Rptr. 131 , 1889 Ky. LEXIS 81 (Ky. Ct. App. 1889); Gardner v. Lincoln Bank & Trust Co., 251 Ky. 109 , 64 S.W.2d 497, 1933 Ky. LEXIS 830 ( Ky. 1933 ).

Certificate and return are presumed to be true as to all certified or necessary facts. Smith v. Ryan, 88 Ky. 636 , 11 S.W. 647, 11 Ky. L. Rptr. 128 , 1889 Ky. LEXIS 75 ( Ky. 1889 ); Board of Councilmen v. Mason & Foard Co., 100 Ky. 48 , 37 S.W. 290, 18 Ky. L. Rptr. 543 , 1896 Ky. LEXIS 144 ( Ky. 1896 ); Alexander v. Aud, 121 Ky. 105 , 88 S.W. 1103, 28 Ky. L. Rptr. 69 , 1905 Ky. LEXIS 185 ( Ky. 1905 ); Husbands v. Polivick, 128 Ky. 652 , 96 S.W. 825, 29 Ky. L. Rptr. 890 , 1906 Ky. LEXIS 250 ( Ky. 1906 ); Stephens v. Perkins, 209 Ky. 651 , 273 S.W. 545, 1925 Ky. LEXIS 569 ( Ky. 1925 ); Tackett v. Mayo, 210 Ky. 299 , 275 S.W. 866, 1925 Ky. LEXIS 662 ( Ky. 1925 ); Givens v. Turner, 272 Ky. 211 , 113 S.W.2d 1166, 1938 Ky. LEXIS 104 ( Ky. 1938 ); Kitchen, Whitt & Co. v. Fannin, 273 Ky. 62 , 115 S.W.2d 325, 1938 Ky. LEXIS 578 ( Ky. 1938 ).

Under KRS 134.570 and this section, the regularity of tax sales is presumed until the contrary is shown. Moseley v. Hamilton, 136 Ky. 680 , 124 S.W. 894, 1910 Ky. LEXIS 529 ( Ky. 1910 ). See Brown v. Harvey Coal Corp., 49 F.2d 434, 1931 U.S. Dist. LEXIS 1312 (D. Ky. 1931 ), aff'd, 61 F.2d 624, 1932 U.S. App. LEXIS 4359 (6th Cir. Ky. 1932 ); Kentucky Lands Inv. Co. v. Simmons, 146 Ky. 588 , 143 S.W. 43, 1912 Ky. LEXIS 137 ( Ky. 1912 ); Anderson v. Daugherty, 169 Ky. 308 , 183 S.W. 545, 1916 Ky. LEXIS 681 ( Ky. 1916 ); Stamps v. Frost, 179 Ky. 418 , 200 S.W. 609, 1918 Ky. LEXIS 214 ( Ky. 1918 ); Jones v. Johnson, 223 Ky. 478 , 3 S.W.2d 1064, 1928 Ky. LEXIS 353 ( Ky. 1928 ).

Recitals in certificate are prima facie true. Eversole v. Kentucky River Coal Corp., 189 Ky. 471 , 225 S.W. 50, 1920 Ky. LEXIS 453 ( Ky. 1920 ).

Unless attacked for fraud or mistake, date of execution will be presumed to be as recited. Slater v. Hatfield, 195 Ky. 281 , 242 S.W. 618, 1922 Ky. LEXIS 338 ( Ky. 1922 ); Kentucky West Virginia Gas Co. v. Maynard, 242 Ky. 490 , 46 S.W.2d 788, 1932 Ky. LEXIS 300 ( Ky. 1932 ); Givens v. Turner, 272 Ky. 211 , 113 S.W.2d 1166, 1938 Ky. LEXIS 104 ( Ky. 1938 ).

Presumption is in favor of the validity of the officer’s act. Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ); Brown v. Elk Horn Coal Corp., 225 Ky. 288 , 8 S.W.2d 404, 1928 Ky. LEXIS 771 ( Ky. 1928 ); Francis v. Sturgell's Ex'x, 253 Ky. 261 , 69 S.W.2d 357, 1934 Ky. LEXIS 643 ( Ky. 1934 ); Kitchen, Whitt & Co. v. Fannin, 273 Ky. 62 , 115 S.W.2d 325, 1938 Ky. LEXIS 578 ( Ky. 1938 ); Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ).

Bare denial of execution, unsupported by other evidence, held insufficient to overcome presumption of validity of certificate. Marcum v. Wallace, 246 Ky. 726 , 56 S.W.2d 5, 1932 Ky. LEXIS 825 ( Ky. 1932 ); Muscovalley v. Horn, 246 Ky. 778 , 56 S.W.2d 354, 1932 Ky. LEXIS 826 ( Ky. 1932 ); Atkins' Guardian v. McCoy, 263 Ky. 846 , 93 S.W.2d 839, 1936 Ky. LEXIS 242 ( Ky. 1936 ).

Unless attack is made as provided in this section, both due acknowledgment and due execution will be presumed. Atkins' Guardian v. McCoy, 263 Ky. 846 , 93 S.W.2d 839, 1936 Ky. LEXIS 242 ( Ky. 1936 ).

Party’s claim that he was not served with summons was unavailing where sheriff’s return showed service. Hanks v. Hanks, 282 Ky. 236 , 138 S.W.2d 362, 1940 Ky. LEXIS 155 ( Ky. 1940 ).

When deputy sheriff executed process and indorsed copy “Ex Aug. 14,” and the sheriff made out completed return from the indorsement, there is a mere presumption of delivery and not a positive certification, since only the deputy’s indorsement can be considered, and there not being a positive certification, the proof necessary to overcome the presumption need not be clear, strong and convincing. Newsome v. Hall, 290 Ky. 486 , 161 S.W.2d 629, 1942 Ky. LEXIS 419 ( Ky. 1942 ).

In action to quiet title, in which a deed, bearing certificate of acknowledgment of deputy county court clerk, was introduced in evidence as part of chain of title, evidence attempting to establish the nonexecution of the deed was incompetent, since the certificate purported absolute verity to the deed in the absence of a direct attack based on allegations of fraud or mistake. Wells v. Butcher, 299 Ky. 332 , 185 S.W.2d 406, 1945 Ky. LEXIS 418 ( Ky. 1945 ).

Although one defendant claimed he had not been served with process in an action brought ten years later on a default judgment, from the sheriff’s return as indorsed upon the summons reading “executed by delivering a true copy to Arlie Igo, N. E. Greer and N. E. Greer, President of the Gross Motor Company. This June 1st, 1934. Fillmore McKintosh, S.P.C. By John Baker, D.S.” and sheriff’s charge for the service of three (3) copies, it could reasonably be inferred that a copy was delivered to each of the three (3) defendants and that the whole return taken together met the test of sufficiency although the word each or severally might have been more exact and would have rendered the return less indefinite and uncertain and would have prevented any liability toward misconstruction, yet, presuming that the sheriff did his duty, the whole return fairly, and with practical certainty, meant a several and not a joint service. Igo v. Berea Realty & Finance Co., 300 Ky. 526 , 189 S.W.2d 733, 1945 Ky. LEXIS 590 ( Ky. 1945 ).

Mere denial of party that he was served with summons is not sufficient to overcome presumption of validity of officer’s return. A party claiming nonservice of process must allege and prove fraud or mistake, and the proof must be clear, positive and convincing. Taylor v. Howard, 306 Ky. 407 , 208 S.W.2d 73, 1948 Ky. LEXIS 571 ( Ky. 1948 ).

16.— Conclusive.

Clerk’s indorsement of lodging is conclusive, but its effect may be lost when instrument is withdrawn by grantee and intermediate rights arise before actual recording takes place. Webb v. Austin, 58 S.W. 808, 22 Ky. L. Rptr. 764 , 1900 Ky. LEXIS 288 (Ky. Ct. App. 1900).

Certificate is conclusive as to date of acknowledgment. Weisiger v. Mills, 91 S.W. 689, 28 Ky. L. Rptr. 1208 (1906).

Record is not conclusiveness of its genuineness. It is prima facie valid, subject to showing of invalidity. Hager v. Sidebottom, 130 Ky. 687 , 113 S.W. 870, 1908 Ky. LEXIS 310 ( Ky. 1908 ).

Certificate is conclusive that party signed instrument, unless attacked for fraud or mistake. Everman v. Everman, 122 S.W. 135 ( Ky. 1909 ); Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ).

A deed duly certified by an officer under seal is conclusive, in the absence of fraud or mistake. Campbell v. Schorr, 224 Ky. 1 , 5 S.W.2d 278, 1927 Ky. LEXIS 965 ( Ky. 1 927); Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ).

Sheriff’s return of service of summons is not conclusive between the parties in the same proceeding after judgment is rendered. Falsity of return may be shown on motion to set aside judgment. Holcomb v. Creech, 247 Ky. 199 , 56 S.W.2d 998, 1933 Ky. LEXIS 376 ( Ky. 1933 ); Gardner v. Lincoln Bank & Trust Co., 251 Ky. 109 , 64 S.W.2d 497, 1933 Ky. LEXIS 830 ( Ky. 1933 ).

Deputy sheriff’s statement, in return on execution, that he had advertised execution sale as required by statute, was conclusive in absence of proof of fraud or mistake. Feltner v. Colwell, 294 Ky. 581 , 172 S.W.2d 219, 1943 Ky. LEXIS 494 ( Ky. 1943 ).

17.— Parol.

Where the clerk’s certificate shows that a mortgage was executed in the presence of two (2) subscribing witnesses, parol evidence to the effect that the mortgage was not so executed, or that the clerk failed to ask one of the subscribing witnesses if the mortgage was signed in his presence, is not admissible under an allegation of mistake on the part of the clerk. City Bank & Trust Co. v. Planters' Bank & Trust Co., 176 Ky. 500 , 195 S.W. 1124, 1917 Ky. LEXIS 87 ( Ky. 1917 ).

Parol evidence is not admissible to contradict return on search warrant except as provided in this section. Moore v. Commonwealth, 206 Ky. 779 , 268 S.W. 563, 1925 Ky. LEXIS 1050 ( Ky. 1925 ).

18.— Weight.

Certificate of acknowledgment is entitled to more weight than memory of witnesses after lapse of 16 years. Dukes v. Davis, 125 Ky. 313 , 101 S.W. 390, 30 Ky. L. Rptr. 1348 , 1907 Ky. LEXIS 299 ( Ky. 1907 ).

Recitals in commissioner’s deed, where the primary evidence has been destroyed, are more convincing than the mere recollection of witnesses after a long term of years. Eversole v. Baker, 217 Ky. 15 , 288 S.W. 758, 1926 Ky. LEXIS 2 ( Ky. 1926 ).

19.— Sufficiency.

Testimony, unsupported, ten years afterwards, is not sufficient to overcome the return of the officer in a collateral proceeding. Amos v. Massey, 140 Ky. 54 , 130 S.W. 950, 1910 Ky. LEXIS 172 ( Ky. 1910 ).

Where notary testified that defendant did sign and acknowledge deed, and he was not impeached, denial by defendant supported only to a limited extent by corroborating circumstances was not sufficient to prove forgery. Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ).

In absence of showing that officer taking acknowledgment knew the party actually acknowledging or the party named as having acknowledged, testimony that acknowledgment was not made by the person named in the certificate is sufficient to show mistake. Clark v. Taylor, 289 Ky. 480 , 158 S.W.2d 961, 1941 Ky. LEXIS 34 ( Ky. 1941 ).

The mere proof that the certificate of acknowledgment is false, along with the signature “by mark” and the death of the supposed signer, is as a matter of weighing evidence in and of itself sufficient to establish the fact that the grantor did not execute the instrument. Conley v. Coburn, 297 Ky. 292 , 179 S.W.2d 668, 1944 Ky. LEXIS 703 ( Ky. 1944 ).

In a collateral proceeding, testimony of defendant and his wife that defendant had been served only with a notice to take depositions, and not with a summons, was insufficient to establish mistake in sheriff’s return which recited service of the summons, particularly where deputy sheriff testified positively that he did serve the summons. Pardue v. Spillman, 304 Ky. 718 , 202 S.W.2d 414, 1947 Ky. LEXIS 720 ( Ky. 1947 ).

The mere fact that some of names on summons had a check mark opposite them, while others did not, was not sufficient evidence that the latter had not been served, to overcome officer’s official return. Taylor v. Howard, 306 Ky. 407 , 208 S.W.2d 73, 1948 Ky. LEXIS 571 ( Ky. 1948 ).

Where deed was executed 30 years prior to suit and recorded but land was held and used by grantor and heirs and grantee’s heirs had no knowledge of ownership, evidence was not sufficient to establish that person named in deed as grantee forged or caused to be forged name of notary public to certificate of acknowledgment. Hoagland v. Fish, 238 S.W.2d 133, 1951 Ky. LEXIS 799 ( Ky. 1951 ).

Where the sheriff, through a deputy, made a written report of posting notices of local option election in five (5) conspicuous places in each of three (3) precincts in the city for two (2) weeks before an election in accordance with KRS 242.040 and the report was attacked by pleading mistake in the report, evidence was not sufficiently clear to overcome the deputy’s positive identification of the date of posting and the record of posting. Ligon v. Beeny, 258 S.W.2d 454, 1953 Ky. LEXIS 828 ( Ky. 1953 ).

20.— Burden of Proof.

The extraordinary burden of proof required by Kentucky law to contravert deed on file in public records was not supplied by grantor’s introduction in evidence of what purported to be a carbon copy deed without some information from personal knowledge of the transaction that would establish that the carbon copy which was identical in all essential respects to the deed on file except that it contained a reservation of right to haul coal from other properties onto the conveyed land did in fact represent the conveyance. Hi Hat Elkhorn Coal Co. v. Kelly, 205 F. Supp. 764, 1962 U.S. Dist. LEXIS 4759 (E.D. Ky. 1962 ).

Burden of proof is on person attacking official act. Board of Councilmen v. Mason & Foard Co., 100 Ky. 48 , 37 S.W. 290, 18 Ky. L. Rptr. 543 , 1896 Ky. LEXIS 144 ( Ky. 1896 ); Stamps v. Frost, 179 Ky. 418 , 200 S.W. 609, 1918 Ky. LEXIS 214 ( Ky. 1918 ); Jones v. Johnson, 223 Ky. 478 , 3 S.W.2d 1064, 1928 Ky. LEXIS 353 ( Ky. 1928 ); Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ); Brown v. Elk Horn Coal Corp., 225 Ky. 288 , 8 S.W.2d 404, 1928 Ky. LEXIS 771 (Ky. 1928); Kentucky West Virginia Gas Co. v. Maynard, 242 Ky. 490 , 46 S.W.2d 788, 1932 Ky. LEXIS 300 ( Ky. 1932 ); Billingsly v. Pearcy, 251 Ky. 546 , 65 S.W.2d 699, 1933 Ky. LEXIS 921 ( Ky. 1933 ); Francis v. Sturgell's Ex'x, 253 Ky. 261 , 69 S.W.2d 357, 1934 Ky. LEXIS 643 ( Ky. 1934 ); Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ).

Burden is not on party relying on certificate to prove that the person certifying was an officer, when official capacity is not denied. Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ).

21.Service.

Where, in an action for declaratory judgment involving a land sale contract, the buyer-defendant did not allege fraud on the seller-plaintiff’s part or mistake of any sort on the deputy sheriff’s part, the buyer-defendant could not claim that she was not served since she did not recall being served. Dressler v. Barlow, 729 S.W.2d 464, 1987 Ky. App. LEXIS 484 (Ky. Ct. App. 1987).

Cited:

Rand v. Rand, 234 F.2d 631, 1956 U.S. App. LEXIS 3734 (6th Cir. 1956); Coleman v. Greer, 343 S.W.2d 584, 1961 Ky. LEXIS 428 ( Ky. 1961 ); Rives v. Pettit, 513 S.W.2d 475, 1974 Ky. LEXIS 371 ( Ky. 1974 ).

Notes to Unpublished Decisions

1.Application.

Unpublished decision: KRS 61.060 did not apply to a mortgage when the notary acknowledgment was not facially valid under the requirements of KRS 423.130 . Wilson v. CIT Group/Consumer Fin., Inc. (In re Wilson), 318 Fed. Appx. 354, 2009 FED App. 0212N, 2009 U.S. App. LEXIS 6050 (6th Cir. Ky.), reprinted, 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. 2009 ).

61.070. Eligibility of General Assembly member or candidate as administrative board or commission member.

A person may serve as a member of the General Assembly or may be a candidate for election to the General Assembly and at the same time be a member of a state administrative board or commission. Such membership shall not constitute a conflict of interest. Any member of the General Assembly who serves on a state administrative board or commission shall receive no compensation for serving on such board or commission other than his expenses, unless it is required by law that the membership of the board or commission include a member of the General Assembly, in which case he shall receive the same compensation in the same manner as any other member of the board or commission.

History. 4618-156: amend. Acts 1982, ch. 108, § 1, effective July 15, 1982.

NOTES TO DECISIONS

1.Construction.

The plain meaning of this section when construed as KRS 446.130 requires the court to construe it is that no person while serving as a member of a state administrative board or commission, including the state real estate commission, can become a candidate for public office. Fink v. Celletti, 616 S.W.2d 38, 1981 Ky. LEXIS 245 ( Ky. 1981 ).

Opinions of Attorney General.

Under KRS 61.080 no incompatibility exists between the office of State Railroad Commissioner and membership on the State Board of Ethics; but, if an election is required to be held for the unexpired term of the Railroad Commissioner pursuant to Const., § 152, an appointee to the Board of Ethics, in view of this section, would have to resign his position on the board if he became a candidate in the election. OAG 74-377 .

The “board or commission” referred to in this section does not refer to all such government positions, but only the Tax Commission, Workers’ Compensation Board, Board of Election Commissioners, Railroad Commission, State Racing Commission and the Public Service Commission as set out in the 1936 Reorganization Act. OAG 74-408 .

The 1982 amendment to this section to provide for equal pay for all board or commission members, governs over KRS 61.784(3) (now repealed), by implication, since it is the later legislation, and the amendment is to be applied prospectively only, as it contains no express declaration of retroactivity. OAG 82-367 .

Research References and Practice Aids

Cross-References.

Board for combined electric and water plant in city of third class, members not to have held public office for two years, KRS 96.172 .

Board for municipal electric plant, members not to have held public office for two years, KRS 96.740 .

City artificial gas commission members not to have held public office for two years, KRS 96.545 .

City recreational commissioners not to run for office during term, KRS 97.120 .

Civil service board in Louisville, members not to hold city office for one year after expiration of term, KRS 90.120 .

State administrative boards and commissions, qualification of members, KRS 12.070 .

61.080. Incompatible offices.

  1. No person shall, at the same time, be a state officer, a deputy state officer, or a member of the General Assembly, and an officer of any county, city, consolidated local government, or other municipality, or an employee thereof.
  2. The offices of justice of the peace, county judge/executive, surveyor, sheriff, deputy sheriff, coroner, constable, jailer, and clerk or deputy clerk of a court, shall be incompatible, the one (1) with any of the others. The office of county judge/executive and county school superintendent are incompatible.
  3. No person shall, at the same time, fill a county office and a municipal office. Notwithstanding the fact that consolidated local governments have both municipal and county powers, persons who hold the office of mayor or legislative council member of a consolidated local government shall not thereby be deemed to hold both a county office and a municipal office. Officers of consolidated local governments shall not, at the same time, fill any other county or municipal office.
  4. No person shall, at the same time, fill two (2) municipal offices, either in the same or different municipalities.
  5. No person shall, at the same time, fill any two (2) appointed offices of special purpose governmental entities, as defined in KRS 65A.010 , that each have the authority to levy taxes.
  6. No person shall, at the same time, fill any state office and an appointed office of a special purpose governmental entity that has the authority to levy taxes, unless a state statute specifically requires a person holding a state office to serve in an appointed office of a special purpose governmental entity that has the authority to levy taxes.
  7. The following offices shall be incompatible with any other public office:
    1. Member of the Public Service Commission of Kentucky;
    2. Member of the Workers’ Compensation Board;
    3. Commissioner of the fiscal court in counties containing a city of the first class;
    4. County indexer;
    5. Member of the legislative body of cities of the first class;
    6. Mayor and member of the legislative council of a consolidated local government; and
    7. Mayor and member of the legislative body in cities of the home rule class.
  8. No office in the Kentucky active militia shall be incompatible with any civil office in the Commonwealth, either state, county, district, or city.
  9. Service as a volunteer firefighter in a volunteer fire department district or fire protection district formed pursuant to KRS Chapter 65, 75, 95, or 273 shall not be incompatible with any civil office in the Commonwealth, whether state, county, district, or city.

History. 912, 1851b-8, 2711a-145o, 2768, 3043, 3107, 3484, 3746, 3952-4, 4921: impl. am. Acts 1942, ch. 4, § 13; 1978, ch. 379, § 56, effective April 1, 1979; 2002, ch. 346, § 13, effective July 15, 2002; 2007, ch. 26, § 1, effective June 26, 2007; 2014, ch. 33, § 1, effective July 15, 2014; 2014, ch. 92, § 26, effective January 1, 2015.

Legislative Research Commission Note.

(1/1/2015). This statute was amended by 2014 Ky. Acts chs. 33 and 92, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Construction.

Subsections (1) to (4) of this section do not list all instances of incompatibility. Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ).

This section is the construction placed by the General Assembly on Ky. Const., § 165. O'Mara v. Mt. Vernon, 299 Ky. 401 , 185 S.W.2d 675, 1945 Ky. LEXIS 436 ( Ky. 1945 ).

2.Determination.

Power in incumbent of one office to appoint and remove the incumbent of the other creates incompatibility. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ); Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ).

Offices are incompatible when it is physically impossible to perform all the duties of both offices with care and ability, and when their relation induces a presumption that they cannot be executed with impartiality and honesty. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

There is no incompatibility of office except as prescribed by the Constitution or laws enacted pursuant thereto, or in cases where there is incompatibility of duties in the different positions. Coleman v. Hurst, 226 Ky. 501 , 11 S.W.2d 133, 1928 Ky. LEXIS 121 ( Ky. 1928 ); Talbott v. Park, 256 Ky. 534 , 76 S.W.2d 600, 1934 Ky. LEXIS 440 ( Ky. 1934 ).

The Constitution does not prohibit the same person holding more than one state office, unless the two (2) are incompatible in fact. Coleman v. Hurst, 226 Ky. 501 , 11 S.W.2d 133, 1928 Ky. LEXIS 121 ( Ky. 1928 ); Talbott v. Park, 256 Ky. 534 , 76 S.W.2d 600, 1934 Ky. LEXIS 440 ( Ky. 1934 ); Polley v. Fortenberry, 268 Ky. 369 , 105 S.W.2d 143, 1937 Ky. LEXIS 475 ( Ky. 1937 ).

Aside from any specific constitutional or statutory prohibitions, incompatibility depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them. The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of the other, or whether the functions of the two (2) are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest. Barkley v. Stockdell, 252 Ky. 1 , 66 S.W.2d 43, 1933 Ky. LEXIS 997 ( Ky. 1 933 ); Polley v. Fortenberry, 268 Ky. 369 , 105 S.W.2d 143, 1937 Ky. LEXIS 475 ( Ky. 1937 ).

Incompatibility exists when the duties of the offices are inconsistent, and where the nature and duties of same are such as to render it improper from consideration of public policy for one incumbent to retain both. Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ).

An important test of incompatibility is whether one office is subordinate to, or subject to supervision by, the other, or where contrariety or antagonism would result by the discharge by one person of the duties of both offices. Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ).

Appellee’s dual status as a magistrate and police officer did not violate the statute; there could not be a violation of the statute since appellee was not a municipal officer, and the county attorney had not shown a sufficient nexus between appellee the police officer and appellee the magistrate for the court to find the positions to be irredeemably incompatible. Clark Cty. Atty. v. Thompson, 617 S.W.3d 427, 2021 Ky. App. LEXIS 2 (Ky. Ct. App. 2021).

3.State Offices with County and Municipal Offices.

A master commissioner is not a state officer or deputy state officer. Goodloe v. Fox, 96 Ky. 627 , 29 S.W. 433, 16 Ky. L. Rptr. 653 , 1895 Ky. LEXIS 120 ( Ky. 1895 ).

Member of board of bar commissioners is not a state officer and is not ineligible to act as Commonwealth's Attorney. Talbott v. Park, 256 Ky. 534 , 76 S.W.2d 600, 1934 Ky. LEXIS 440 ( Ky. 1934 ).

The members of the board of commissioners of the state bar are not officers within the meaning of Ky. Const., § 165, this section and KRS 61.090 since the board acts merely in an administrative capacity and as an agency of the Court of Appeals, clothed, under its rules, with power to make investigations and return to the Court of Appeals its findings. Dreidel v. Louisville, 268 Ky. 659 , 105 S.W.2d 807, 1937 Ky. LEXIS 510 ( Ky. 1937 ).

The office of special circuit judge is not incompatible with the office of member of the General Assembly. O'Mara v. Mt. Vernon, 299 Ky. 401 , 185 S.W.2d 675, 1945 Ky. LEXIS 436 ( Ky. 1945 ).

Even if acceptance of office as member of General Assembly, by a person holding the office of special circuit judge, vacated the latter office on the ground of incompatibility, defendant in civil suit against whom judgment was rendered by special judge could not complain where special judge was qualified and eligible at the time he began the trial, and no objection was raised by defendant until after judgment had been rendered. O'Mara v. Mt. Vernon, 299 Ky. 401 , 185 S.W.2d 675, 1945 Ky. LEXIS 436 ( Ky. 1945 ).

Under a permissible construction of the terms of Ky. Const., § 165, this section and KRS 61.090 , the office of Senator and deputy sheriff are incompatible and the acceptance of the second office vacates the first but where, being faced with the question, the Senate adopted a resolution recognizing the deputy sheriff as a duly qualified Senator the adoption did not constitute such a clear violation of the Constitution that the courts should rectify the error and the deputy sheriff is entitled to the compensation and allowances withheld by the state treasurer but the judiciary must assume the Senate in good faith will not knowingly permit violations of other constitutional provisions. Raney v. Stovall, 361 S.W.2d 518, 1962 Ky. LEXIS 246 ( Ky. 1962 ).

4.Two County Offices.

Offices of special tax collector and county judge (now county judge/executive) are incompatible. Barkley v. Stockdell, 252 Ky. 1 , 66 S.W.2d 43, 1933 Ky. LEXIS 997 ( Ky. 1 933).

Offices of special tax collector and jailer are incompatible. Nichols v. Land, 288 Ky. 693 , 157 S.W.2d 303, 1941 Ky. LEXIS 192 ( Ky. 1941 ).

Offices of special tax collector and sheriff are not incompatible. Nichols v. Land, 288 Ky. 693 , 157 S.W.2d 303, 1941 Ky. LEXIS 192 ( Ky. 1 941). See Barkley v. Stockdell, 252 Ky. 1 , 66 S.W.2d 43, 1933 Ky. LEXIS 997 ( Ky. 1933 ).

There is no constitutional or statutory incompatibility under this section unless the office of member of the county board of election commissioners is in law a local office as distinguished from a state office and it is unnecessary to pass on this question where it is clear that the office of county school board member and county election commissioner are functionally incompatible in that occupancy of both offices by the same person is detrimental to the public interest. Adams v. Commonwealth, 268 S.W.2d 930, 1954 Ky. LEXIS 931 ( Ky. 1954 ).

There is no incompatibility in the offices of regular and special judge insofar as it concerns the incompatibility of duties or the character and relationship of offices or as being in conflict with Ky. Const., §§ 165 or 237 or with this section. Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ).

5.County Offices with Municipal Offices.

Offices of city tax collector and deputy sheriff are incompatible. Keating v. Covington, 35 S.W. 1026, 18 Ky. L. Rptr. 245 (1896).

Offices of city councilman and member of county board of health are incompatible. Vickers v. Sory, 102 S.W. 272, 31 Ky. L. Rptr. 277 (1907).

That a constable is also a city employee does not violate this section. Walling v. Commonwealth, 260 Ky. 178 , 84 S.W.2d 10, 1935 Ky. LEXIS 425 ( Ky. 1935 ).

A member of county board of health who became a city trustee did not automatically forfeit and vacate her board membership, and, at the very least, she was a de facto member and was entitled to perform her duties while in possession of the office. Trimble County Fiscal Court v. Trimble County Bd. of Health, 587 S.W.2d 276, 1979 Ky. App. LEXIS 469 (Ky. Ct. App. 1979).

A deputy circuit clerk is clearly a “deputy (state) officer” and is, thus, precluded from simultaneously serving as an officer of a city. Court of Justice v. Oney, 34 S.W.3d 814, 2000 Ky. App. LEXIS 96 (Ky. Ct. App. 2000).

6.Two Municipal Offices.

Offices of clerk and assessor in the same city are incompatible. Blades v. Falmouth, 124 Ky. 259 , 98 S.W. 1017, 30 Ky. L. Rptr. 420 , 1907 Ky. LEXIS 179 ( Ky. 1907 ).

Offices of school trustee and postmaster are incompatible. Johnson v. Sanders, 131 Ky. 537 , 115 S.W. 772, 1909 Ky. LEXIS 54 ( Ky. 1909 ).

Offices of city councilman and city treasurer in the same city are incompatible. Taylor v. Johnson, 148 Ky. 649 , 147 S.W. 375, 1912 Ky. LEXIS 506 ( Ky. 1912 ).

Offices of city commissioner in one city and statutory city engineer in another city are incompatible. Commonwealth ex rel. Steller v. Livingston, 171 Ky. 52 , 186 S.W. 916, 1916 Ky. LEXIS 298 ( Ky. 1916 ).

Whether office of city commissioner and employment as civil engineer in another city are incompatible in question of fact. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

7.School Offices and Employees.

Offices of school trustee and school teacher are incompatible. Ferguson v. True, 66 Ky. 255 , 1867 Ky. LEXIS 179 ( Ky. 1867 ).

School officials are state officers. Hoskins v. Ramsey, 197 Ky. 465 , 247 S.W. 371, 1923 Ky. LEXIS 663 ( Ky. 1923 ); Commonwealth v. Louisville Nat'l Bank, 220 Ky. 89 , 294 S.W. 815, 1927 Ky. LEXIS 478 ( Ky. 1927 ); Fidelity & Deposit Co. v. Christian County Board of Education, 228 Ky. 362 , 15 S.W.2d 287, 1929 Ky. LEXIS 572 ( Ky. 1929 ); Commonwealth ex rel. Baxter v. Burnett, 237 Ky. 473 , 35 S.W.2d 857, 1931 Ky. LEXIS 623 ( Ky. 1931 ); Tipton v. Commonwealth, 238 Ky. 111 , 36 S.W.2d 855, 1931 Ky. LEXIS 188 ( Ky. 1931 ); Middleton v. Middleton, 239 Ky. 759 , 40 S.W.2d 311, 1931 Ky. LEXIS 847 (Ky. 1931); Board of Education v. Trustees of Buena Vista School, 256 Ky. 432 , 76 S.W.2d 267, 1934 Ky. LEXIS 428 ( Ky. 1934 ); Board of Trustees v. Renfroe, 259 Ky. 644 , 83 S.W.2d 27, 1935 Ky. LEXIS 370 ( Ky. 1935 ); Polley v. Fortenberry, 268 Ky. 369 , 105 S.W.2d 143, 1937 Ky. LEXIS 475 ( Ky. 1937 ).

Offices of graded school board member and city trustee are incompatible. Middleton v. Middleton, 239 Ky. 759 , 40 S.W.2d 311, 1931 Ky. LEXIS 847 ( Ky. 1931 ).

Office of school board member is not incompatible with position of highway maintenance supervisor. Polley v. Fortenberry, 268 Ky. 369 , 105 S.W.2d 143, 1937 Ky. LEXIS 475 ( Ky. 1937 ).

The offices of assistant county school superintendent and teacher or principal of a county school in the same county are incompatible. Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ).

Where same person was appointed county superintendent of schools in two (2) counties, he could, before commencement of terms, resign one appointment; incompatibility of appointments would not be ground for rescinding either appointment before commencement of term. Chestnut v. Reynolds, 291 Ky. 231 , 163 S.W.2d 456, 1942 Ky. LEXIS 201 ( Ky. 1942 ).

Kentucky Revised Statute 164.130 (now repealed) as enacted by the Legislature permitted the Governor to make appointments to the Board of Trustees of the University of Kentucky. There was no limitation in that statute which prohibited the Governor from being a board member or from appointing himself; the Legislature made no exception to the qualified persons whom the Governor could appoint to the at large seats on the Board of Trustees. It would seem apparent that the General Assembly did not intend any such exception to be applicable to the Governor because the Legislature had enacted other statutes to prohibit certain office holders from holding a second office. Commonwealth v. Wilkinson, 828 S.W.2d 610, 1992 Ky. LEXIS 111 ( Ky. 1992 ), overruled in part, Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 2009 Ky. LEXIS 290 ( Ky. 2009 ).

8.Hospital Board Membership.

A member of the hospital board was not a city or county officer or employee thereof within the meanings of this section, KRS 160.180(1)(d) (now (2)(f)), or Ky. Const., § 165. Commonwealth ex rel. Hancock v. Bowling, 562 S.W.2d 310, 1978 Ky. LEXIS 323 ( Ky. 1978 ).

9.Withdrawal of Nomination Required.

Once a candidate has filed papers seeking nomination for public office, that candidate cannot then file papers seeking nomination or election to an incompatible office unless the candidate has first withdrawn his nomination in accordance with KRS 118.212 . Klein v. Doll, 777 S.W.2d 602, 1989 Ky. App. LEXIS 164 (Ky. Ct. App. 1989).

Cited:

Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Young v. Grauman, 278 Ky. 197 , 128 S.W.2d 549, 1939 Ky. LEXIS 394 ( Ky. 1939 ); Somerset v. Caylor, 241 S.W.2d 990, 1951 Ky. LEXIS 1033 ( Ky. 1951 ).

Opinions of Attorney General.

The position of probation and parole officer in the State Department of Welfare must be considered a state office or deputy state office which would make it incompatible with the office of mayor, which is a municipal office. OAG 60-57 .

There are no statutory or constitutional prohibitions against a person holding a county office and state employment at the same time, but they may be incompatible under the common law. OAG 60-106 .

There is no constitutional or statutory incompatibility in a person’s holding two (2) county offices. OAG 60-337 .

Although there is no statutory or constitutional prohibition against a person holding a municipal office and state employment at the same time, there is the possibility that there may be a common law incompatibility where it is physically impossible to perform the duties of both positions with care and ability. OAG 60-443 .

The offices of sheriff and state representative are incompatible. OAG 60-455 .

The fact that the two (2) offices are incompatible would not prevent the present sheriff from becoming a candidate for state representative. OAG 60-455 .

Membership on the McLean County board of education is not incompatible with the position of teacher of vocational agriculture in Muhlenberg County. OAG 60-901 .

Although the positions of county director of pupil personnel and city director of pupil personnel are not incompatible as such, they are incompatible in fact because KRS 159.140(1) requires that a director of pupil personnel must devote his entire time to his duties which he could not do in two (2) such positions. OAG 60-1027 .

There is no statutory or constitutional incompatibility between the position of teacher and the office of county commissioner, but there may be a common law incompatibility. OAG 61-292 .

There is no incompatibility between the office of magistrate and driving a school bus for the county board of education under Ky. Const., § 165 or this section, but there may be a common law incompatibility. OAG 61-390 .

The offices of mayor and police judge in a city of the fifth class cannot be combined. OAG 61-455 .

One person cannot hold two (2) elected offices in a city of the fifth class. OAG 61-455 .

Holding the offices of deputy sheriff and deputy county court clerk at the same time is specifically prohibited. OAG 61-533 .

The offices of treasurer of the school board and city clerk are incompatible. OAG 61-823 .

There was no conflict of interests where a state employee presented a bill for acting as a court reporter and taking and transcribing hearings for the sole use of her department when such work was done outside of the employee’s salaried hours. OAG 61-845 .

The secretary and treasurer of the city board of education and the treasurer of the county board of education were disqualified from serving on the electric plant board. OAG 61-846 .

There is no constitutional or statutory provision which would prohibit a person from serving as a public officer in the state of Ohio and occupying the position of magistrate in this state since Ky. Const., § 165 and this section apply only to the holding of two (2) incompatible offices in this state. OAG 61-948 .

The law prohibits a person from being a state representative and at the same time a deputy sheriff of a county. OAG 61-1001 .

Since a deputy jailer stands in the same position as the jailer insofar as his powers and duties are concerned, the incompatibility between the office of justice of the peace and jailer would likewise apply to the deputy jailer. OAG 62-21 .

One would be prohibited from serving on the county board of health and on the county board of education at the same time since the two (2) offices are incompatible. OAG 62-617 .

Serving in the office of magistrate and as a member of the board of supervisors at the same time would be detrimental to the public interest, in that the board of supervisors executes a quasi judicial function in the review of protested tax assessments. OAG 62-636 .

There is no statutory or constitutional incompatibility in membership on a city-county board of health and membership on the city board of aldermen. OAG 62-684 .

There is no constitutional nor statutory prohibition against persons holding the office of county attorney and county treasurer and at the same time serving as a member of the county building commission. OAG 62-1169 .

A common law incompatibility would exist between the office of county treasurer and the office of county auditor. OAG 63-32 .

It is legal for a soil conservation district to employ a person as an aide although such person was also a member of the fiscal court which levied a tax for the benefit of the district. OAG 63-87 .

The office of magistrate and membership on the county registration and purgation board are incompatible. OAG 63-130 .

There is no constitutional or statutory incompatibility between serving as the civil defense director of a county and being a city councilman at the same time. OAG 63-273 .

The police judge of a city could not be appointed to a state office or a deputy state office without creating an incompatible situation under Ky. Const., § 165 and this section since no person can hold a city office and a state office at the same time. OAG 63-625 .

The provisions of Ky. Const., § 165 and this section do not prohibit a person from holding a city office and state employment at the same time providing there is no common law incompatibility. OAG 63-625 .

The mayor of a fifth class city cannot legally also be a member of the board of water commissioners, receiving a salary for each position. OAG 64-795 .

The office of magistrate and full-time employment as manager of the muncipal utilities commission of the city, a municipal office, are incompatible offices. OAG 65-50 .

Actions taken as a school board member after filing for nomination for the office of sheriff and thus disqualifying himself, would be valid until the school board member resigned or was removed from office. OAG 65-211 .

A member of the school board who files for nomination for the office of sheriff disqualifies himself from serving on the school board. OAG 65-211 .

One city could not contract with another city for the furnishing of police services since it would involve the policemen holding incompatible offices in the two (2) cities. OAG 65-718 .

The offices of county judge (now county judge/executive) and master commissioner do not present incompatibility of office. OAG 65-816 .

The offices of constable and city policeman are incompatible. OAG 65-833 .

A constitutional incompatibility would exist between the position of chief of police and that of chief of the fire department. OAG 66-10 .

There is no incompatibility between holding the office of magistrate and at the same time serving as county democratic chairman. OAG 66-11 .

There is no constitutional or statutory incompatibility between membership on the county fiscal court and membership on the county board of health. OAG 66-87 .

Although no statutory or constitutional incompatibility exists, the office of county commissioner and employment in the county road department would be incompatible under the common law. OAG 66-110 .

The fiscal court could appoint, as the county dog warden, a deputy sheriff who is presently serving in this capacity without there existing an incompatible situation. OAG 66-398 .

No constitutional or statutory incompatibility exists between membership on the school board and membership on the municipal housing commission. OAG 66-673 .

The offices of deputy sheriff, county election commissioner, and jury commissioner are not incompatible under the terms of Ky. Const., § 165 and this section, but there is a possibility of common law incompatibility between the offices of deputy sheriff and jury commissioner. OAG 66-741 .

The office of treasurer of the county board of education and the office or employment of county finance officer are incompatible. OAG 66-754 .

A county treasurer cannot be appointed deputy property valuation administrator and serve in both capacities without creating an incompatible situation. OAG 66-759 .

A county treasurer may not serve simultaneously as county school treasurer. OAG 67-5 .

There is no constitutional nor statutory incompatibility in the holding of the office of county judge (now county judge/executive) and commissioner of a water district at the same time although there would be a common law incompatibility. OAG 67-68 .

The position of housing inspector of a city is incompatible with the office of state representative. OAG 67-81 .

Employment as director of pupil personnel for a district board of education is not incompatible with the position of member on the board of trustees of a public library district. OAG 67-83 .

Holding the office of trustee of the library board and at the same time being a member of the city council creates an incompatible situation. OAG 67-104 .

There is no incompatibility for a member of a city council to serve as campaign manager for a candidate for state office. OAG 67-121 .

The holding of the position of public schoolteacher and the position of member of the board of city commissioners, at the same time, is not constitutionally nor statutorily incompatible. OAG 67-163 .

There is no incompatibility in the holding of the offices of member of the board of education of an independent school district and stenographic reporter for a judicial district. OAG 67-177 .

The offices of member of a city independent board of education and member of the county library board are incompatible. OAG 67-186 .

The offices of member of the county board of education and member of the county library board of trustees are incompatible. OAG 67-186 .

If a city employs a county attorney on a special part-time basis to advise it in certain civil matters, no incompatibility exists. OAG 67-245 .

If a city attempted to employ the county attorney to advise it in all legal matters pertaining to the business of the city, the county attorney would become in fact the city attorney, which in turn would create an incompatible situation. OAG 67-245 .

To be a member of a library district board and a member of a city library board at the same time creates an incompatible situation. OAG 67-458 .

Holding the office of city council member and radio operator for the city police department at the same time creates an incompatible situation. OAG 67-469 .

The office of city attorney and that of state senator are incompatible. OAG 67-517 .

A person may hold the office of Circuit Court Clerk and at the same time be a probation and parole officer. OAG 67-542 .

No incompatibility exists where the Commonwealth’s Attorney is also the master commissioner of a Circuit Court. OAG 67-542 .

A city commissioner may be appointed and hold the office of supervisory head of the Department of Public Safety (now the Department of Justice) while he is a city commissioner, but he may not hold the office of Commissioner of Public Safety (now Secretary of Justice). OAG 67-554 .

To serve in the office of city commissioner and at the same time to be a member of the auxiliary police force creates an incompatible situation. OAG 67-554 .

Membership on the board of regents of a state university is a state office and the Commissioner of the Department of Banking and Securities (now Department of Financial Institutions) is also a state office. OAG 67-557 .

An incompatible situation exists where a constable of a county holds, at the same time, the position of auxiliary police officer. OAG 68-12 .

There is no prohibition against a person being a member of the county board of education and at the same time holding a position with the Commonwealth. OAG 68-21 .

A member of the Council on Public Higher Education (now Council on Higher Education) must resign his position at the time he becomes a member of the Louisville board of aldermen. OAG 68-22 .

The position of assistant commissioner of insurance and that of city councilman are compatible. OAG 68-30 .

A night watchman with the state may hold the office of justice of the peace. OAG 68-33 .

The office of Commonwealth’s Attorney and that of referee of the Workmen’s (now Workers’) Compensation Board are not incompatible. OAG 68-56 .

Since the position of county policeman is a county office and the position of city councilman is a city office, an incompatibility would exist if an individual would hold both offices at the same time. OAG 68-72 .

Although there is no constitutional or statutory incompatibility between the office of county judge (now county judge/executive) and county treasurer, there is incompatibility in fact or under common law between the two (2) offices since the office of county treasurer is subordinated to the office of county judge (now county judge/executive). OAG 68-80 .

A city councilman cannot serve at the same time as an auxiliary deputy sheriff without vacating his position on the city council pursuant to KRS 61.090 . OAG 68-195 .

An incompatible situation exists if a member of a volunteer police department also served, at the same time, as a deputy sheriff. OAG 68-197 .

An incompatible situation would exist if a member of a city police department were deputized and sworn in as a sheriff’s deputy. OAG 68-197 .

There is no statutory or constitutional incompatibility against a person holding the position of secretary to the superintendent of the district board of education and at the same time holding the position of secretary-bookkeeper for the head start program of that school district. OAG 68-200 .

The office of county school board member is incompatible with employment as county road supervisor. OAG 68-210 .

If water, gas and sewer commission members are also members of the city council, an incompatible situation is created. If the members of the utility commission are mere employees, there is no incompatibility. OAG 68-228 .

Because of the incompatibility involved, the employment and compensation of an assistant Commonwealth’s Attorney in connection with his furnishing legal advice in criminal matters to the city would not be legal. OAG 68-290 .

A city attorney cannot be appointed at the same time an assistant county attorney since the latter would constitute a county office. OAG 68-309 .

A county attorney could be employed to represent a city within the county in annexation proceedings so long as he was not hired as city attorney on a full-time basis. OAG 68-400 .

Since the office of county treasurer is a county office and the position of a police judge of a city of the sixth class is a municipal office, the two (2) offices are incompatible and no individual can hold both offices at the same time without violating the provisions of this section. OAG 68-403 .

A person who is the Commonwealth’s Attorney may at the same time be employed on a part-time basis by the board of veterinary examiners. OAG 68-447 .

The office of chairman of the board of trustees of a sixth class city is incompatible with the office of police judge. OAG 68-453 .

If a member of a city council is appointed or elected to the office of sheriff, constable, coroner, jailer, marshal or policeman, or appointed as a deputy in such office, an incompatible situation is created. OAG 68-550 .

There is no statutory or constitutional incompatibility between the position of member of the board of trustees of a public library district and the position of head officer of a state university community college. OAG 68-568 .

The position of executive director or assistant executive director of a municipal housing commission is state employment and there is no incompatibility between these positions and the office of school board member. OAG 68-599 .

A school teacher may legally serve at the same time as an election officer. OAG 68-601 .

There is no constitutional nor statutory prohibition against a school teacher holding the office of magistrate but a common law incompatibility would exist. OAG 68-607 .

A vacancy on a county purgation board may be filled by appointing an employee of the Commonwealth, since the membership on the county purgation board constitutes a state office. OAG 69-11 .

The office of county clerk is incompatible with membership on the Commission on Higher Education. OAG 69-15 .

Membership on a municipal housing commission is a state office, and, as such, there would be no constitutional nor statutory incompatibility involved in also holding at the same time membership on the Commission on Higher Education. OAG 69-15 .

While membership on the Council on Public Higher Education (now Council on Higher Education), established pursuant to KRS 164.010 (now repealed), would constitute the holding of a state office, membership on a consolidated planning and zoning commission is neither a city, county nor a state office as contemplated by either Ky. Const., § 165 or this section, so that no constitutional or statutory incompatibility exists that would prohibit a person from holding both offices at the same time. OAG 69-19 .

If a state employee was under the merit system he would be prohibited from becoming a candidate for any paid political office, but no such restriction would pertain to a nonmerit system employee. OAG 69-89 .

An employee of the school system may seek and hold the office of county commissioner. OAG 69-94 .

There are no constitutional nor statutory provisions that make the position of highway employee and the position of member on the county registration and purgation board incompatible. OAG 69-136 .

A member of a state university faculty and staff may hold at the same time the office of county commissioner. OAG 69-147 .

A school teacher may hold at the same time the office of property valuation administrator. OAG 69-158 .

Neither a policeman nor a town marshal can serve at the same time as a deputy sheriff. OAG 69-162 .

The auditor of public accounts may be at the same time a stockholder or director in private businesses and charitable organizations. OAG 69-164 .

There is no incompatibility between the office of state auditor and membership on the local air board. OAG 69-164 .

An employee of a county road department may hold at the same time the office of county constable. OAG 69-186 .

Since the office of master commissioner is an office of the court and therefore, neither a state nor county office, there is no incompatibility between this office and that of Circuit Court Clerk. OAG 69-221 .

A city policeman cannot serve at the same time as a deputy sheriff. OAG 69-303 .

The office of mayor and that of city commissioner are incompatible. OAG 69-358 .

Since the office of hearing officer or examiner for the Workmen’s (now Workers’) Compensation Board is a state office and the office of county judge (now county judge/executive) pro tem is a county office, they are incompatible, one with the other. OAG 69-364 .

A person serving a city municipal water and sewer commission as their attorney for the past four years pursuant to a contract based on a monthly retainer may serve at the same time as county attorney. OAG 69-420 .

The holding of the office of county judge (now county judge/executive) and the holding of the office of property valuation administrator at the same time would present a statutory and constitutional incompatibility. OAG 69-432 .

There is no provision under the Kentucky statutes or Constitution prohibiting a school teacher or principal from serving on a city commission. OAG 69-448 .

The holding of the offices of county attorney and member of the Kentucky Zoning Commission at the same time would present a constitutional and statutory incompatibility. OAG 69-454 .

There is no constitutional or statutory provision prohibiting a member of the housing commission from being employed on a part-time basis by the commission. OAG 69-483 .

There is no constitutional or statutory provision that prohibits a teacher in the public schools from running for the nomination of city commissioner and serving as such if elected. OAG 69-485 .

A department head at a state university not only may become a candidate for the office of city commissioner but also may serve as such. OAG 69-486 .

A member of the fiscal court may, at the same time, serve as master commissioner. OAG 69-491 .

A school teacher or principal of a school may serve at the same time on the city commission. OAG 69-519 .

A conservation officer is a state officer and cannot be at the same time a deputy sheriff. OAG 69-545 .

An incompatibility would exist if an individual was the county treasurer and at the same time was a member of the county purgation board. OAG 69-556 .

A member of the volunteer fire department may be at the same time a member of the city council. OAG 69-558 .

The office of county chief of police and that of county election commissioner are not incompatible. OAG 69-565 .

As between the office of county judge (now county judge/executive) and the position of school district transportation officer, there is no incompatibility. OAG 69-601 .

A field supervisor for the welfare department may be at the same time an election officer. OAG 69-608 .

A member of the police department in a city of the second class could neither become a candidate for membership on the local school board nor hold such office and retain his position on the city police force. OAG 69-634 .

A member of the city council may at the same time hold the office of master commissioner or deputy commissioner of the Circuit Court. OAG 69-637 .

A member of the state Legislature may represent the municipal water company in legal matters when the occasion arises because he would be considered an independent contractor. OAG 69-653 .

A county constable may legally lease and operate the county poor farm. OAG 69-671 .

An individual may hold the position of special prosecutor in a city of the fifth class and at the same time hold the office of police judge in another city. OAG 69-685 .

A person could hold the position of public health nurse and at the same time serve as deputy jailer in an adjoining county without creating an incompatible situation. OAG 69-694 .

A magistrate may be employed as a school bus driver by the county board of education while he is serving as magistrate. OAG 70-2 .

A county treasurer may hold at the same time the office of cashier of the food stamp program for such county. OAG 70-10 .

The office of city attorney is a city office and the office of trial commissioner is a county office, hence there is an incompatibility. OAG 70-27 .

The director of pupil personnel for a county board of education may serve at the same time as deputy coroner of that same county. OAG 70-31 .

The mayor of a city may serve as fire chief or as fireman of a volunteer fire department even though the city has a contract with the volunteer fire department for fire protection under KRS 75.050 . OAG 70-32 .

A radio dispatcher for the police department not possessing the powers of a police officer, such as making arrests, serving warrants, etc., may hold at the same time the office of pro tem judge of the police court. OAG 70-53 .

No person can serve at the same time as a county officer and a municipal officer. OAG 70-143 .

A city elementary school principal may at the same time hold the office of city councilman in a city of the fourth class. OAG 70-183 .

A member of the county planning and zoning commission may at the same time, serve as police court judge pro tem of a city. OAG 70-186 .

Since the deputy jailer and jailer have the same powers and duties, the offices of constable and deputy jailer are incompatible. OAG 70-256 .

A member of the city council may not serve at the same time as city tax assessor. OAG 70-311 .

Nothing statutorily nor constitutionally prohibits a member of the municipal housing commission from serving at the same time on the state board of elections. OAG 70-315 .

No incompatibility would exist were a person to serve as coroner and election officer at the same time. OAG 70-325 .

An individual can legally serve on the city-county youth commission and at the same time run for and hold membership on the local school board. OAG 70-391 .

The position of secretary-treasurer of the Louisville sinking fund, a municipal office, and membership of the Kentucky Authority for Educational Television, a state office, are incompatible. OAG 70-409 .

The position of dog warden and county patrolman are county offices and there would be no constitutional or statutory provision that would prohibit a person from holding both offices at the same time. OAG 70-431 .

Any county official, except a member of the fiscal court, may be appointed to the joint riverport authority and no statutory nor constitutional incompatibility would exist. OAG 70-432 .

A member of the municipal housing commission can serve at the same time as a member of the local school board. OAG 70-444 .

A justice of the peace cannot be appointed county judge (now county judge/executive) pro tem. OAG 70-446 .

There is no constitutional or statutory prohibition against a highway employee as a night watchman serving as a deputy sheriff. OAG 70-457 .

A school board member could not be hired by the county judge (now county judge/executive) to operate, manage or drive a county ambulance. OAG 70-478 .

No constitutional or statutory incompatibility exists between holding the offices of both dog warden and county constable. OAG 70-492 .

There is no statutory or constitutional incompatibility in a fiscal court employing the sheriff and/or his deputies to operate a county ambulance but there may be a common-law or practical incompatibility. OAG 70-544 .

A person can become a candidate for school board membership and at the same time continue to serve on the city commission. OAG 70-558 .

An elected constable of a county could not legally accept and hold a position as police officer for a city. OAG 70-583 .

Accepting a commission as a Kentucky colonel while holding a state or local office would not create an incompatible situation. OAG 70-607 .

No incompatibility would exist if a notary public were to hold another public office. OAG 70-607 .

A member of the fiscal court cannot also serve as county judge (now county judge/executive) pro tem. OAG 70-621 .

A person would be prohibited from serving on a county board of health and on the board of education at the same time without forfeiting the first office he held. OAG 70-632 .

If a police commission was established by ordinance wherein the commissioners were established as minor officers of the city, incompatibility would exist if members of the city council were appointed to the police commission. OAG 70-642 .

No incompatibility would exist where a person served on both the city council and the police commission if the police commission was simply established by resolution as an advisory body only and without specific powers. OAG 70-642 .

The positions of police judge and policeman would be incompatible. OAG 70-652 .

An individual may not at the same time hold the office of school board member and hold employment with a city. OAG 70-663 .

There is no constitutional or statutory provision that would prohibit a member of the county board of education from being appointed as a director or member of a water district. OAG 70-723 .

Membership on a joint recreational commission established pursuant to KRS 97.035 would constitute neither a city nor county office but would be a hybrid office not contemplated by either Ky. Const., § 165 or this section. OAG 70-731 .

There would be no constitutional or statutory provision that would prohibit one from serving as city attorney and at the same time serving on a joint recreational commission. OAG 70-731 .

A member of the board of trustees of a sixth-class city could not serve as deputy marshal of the city at the same time. OAG 70-804 .

There appears to be no constitutional or statutory incompatibility nor any conflict with merit system law in the holding of the office of board member in an independent school district and a position of employment with the Department of Corrections. OAG 70-811 .

A city may not employ a part-time deputy from another city to serve as such on a part-time basis because this section prohibits a person from holding two (2) municipal offices at the same time. OAG 71-12 .

A deputy marshal serving as such in two (2) different cities would be in violation of the statute. OAG 71-12 .

There is no statutory or constitutional incompatibility between being a member of the city council and holding a position with the state as a car inspector. OAG 71-56 .

There is no statutory or constitutional incompatibility between being a school principal and serving on the city council. OAG 71-56 .

There is no statutory or constitutional incompatibility between serving as mayor of a city and holding a position as county road foreman with the state Department of Highways. OAG 71-56 .

There is no constitutional or statutory incompatibility in a deputy sheriff being at the same time an employee of the state highway department. OAG 71-65 .

Although a fifth-class city and a sixth-class city could not hire the same policemen, under the Interlocal Cooperation Act, they could form a joint system of police protection. OAG 71-85 .

There is no constitutional or statutory incompatibility between holding a position of schoolteacher and holding the office of police judge at the same time. OAG 71-108 .

Where a city policeman is appointed a deputy sheriff, an incompatibility would exist under this section and under KRS 61.090 he vacated his office as city policeman; however, if he refused to vacate his office as policeman, a proceeding in court might be necessary to oust him. OAG 71-153 .

The offices of city treasurer and county soil and water conservation district supervisor under KRS 262.200(2) are not incompatible. OAG 71-230 .

No person can serve as a policeman for two (2) different cities at the same time without creating an incompatible situation. OAG 71-236 .

There is no statutory prohibition against a person serving as county judge (now county judge/executive) and at the same time being employed by the county board of education and the county clerk’s office. OAG 71-247 .

There would be no incompatibility between a principal and director of pupil personnel, which is a form of state employment, serving on a municipal civil service commission. OAG 71-305 .

There would be no constitutional or statutory incompatibility to prevent a city policewoman from being hired by the county fiscal court to search female prisoners. OAG 71-306 .

A city clerk-treasurer could not be appointed to serve as police judge pro tem in the absence of the regular police judge because it would constitute holding two (2) municipal offices. OAG 71-343 .

There is no constitutional or statutory objection to an employee of the city water and sewer department also serving as a part-time police officer for the city. OAG 71-343 .

Although there is no statutory or constitutional incompatibility between serving as police court judge and in the appointed position of railroad policeman, a common-law incompatibility may exist. OAG 71-427 .

No constitutional or statutory incompatibility exists between the positions of the paying public office of city commissioner and a paying professorship at Western Kentucky University. OAG 71-443 .

A person could not serve as a member of the city council and also serve as a member of the city parks commission. OAG 71-462 .

For libraries created pursuant to KRS 173.300 to 173.410 , membership on the library board would be incompatible with membership on the city council. OAG 71-462 .

There would be no incompatibility between serving as city councilman and membership on the county riverport authority. OAG 71-462 .

There is no constitutional or statutory conflict to prevent a state representative, as a major stockholder or an agent for a corporation in which he is a stockholder in a rest home, to operate that rest home and accept indigent patients under contract from the county fiscal court. OAG 71-463 .

If a volunteer fire department is a municipal fire department governed by KRS Ch. 95, the fire chief would be prohibited from also serving as a member of the city council. OAG 71-488 .

The position of city councilman of a city of the fourth class and the position of police chief of a city of the fifth class are incompatible under the statute. OAG 71-502 .

This section does not prohibit the mayor from being a member of a city-county hospital board. OAG 72-18 .

There would be an incompatibility under this section if the city solicitor of Newport was appointed city attorney of Highland Heights pursuant to KRS 69.580 (now repealed). OAG 72-61 .

The offices of mayor of a fourth-class city and deputy sheriff of the county containing the said fourth-class city are incompatible under this section. OAG 72-105 .

If the position of superintendent of a state park is considered a state office then a person holding such office may not also be a deputy sheriff, however, if this position is regarded only as a form of state employment, then a person may hold both this position and that of deputy sheriff at the same time. OAG 72-259 .

If, in part, the position of state park ranger is a state office there is a conflict in a person holding such office and also holding the office of city policeman and in such case KRS 61.090 would provide that a person holding both offices would vacate his first office as city policeman by acceptance of the position as a ranger. OAG 72-276 .

There is no incompatibility under this section in appointing a special local peace officer as a deputy sheriff. OAG 72-315 .

This section would not prohibit a special police officer appointed under KRS 61.360 from also simultaneously holding a municipal office of town marshal in a city of the fourth class. OAG 72-321 .

There is no violation of this section where the mayor is also an employee of the Commonwealth of Kentucky. OAG 72-350 .

There is no violation of this section where a county jailer also serves as the county dog warden. OAG 72-351 .

A policeman, who is considered a municipal officer, may not at the same time hold the position of constable. OAG 72-364 .

Where a mayor also operates the water and sewer system for the city he may not hold both offices if the management of the sewer system is a minor city office but he may hold both offices if his management position is merely a form of employment. OAG 72-364 .

There is no violation of this section where a city policeman is employed in his off duty hours as a special local peace officer. OAG 72-391 .

Under this section a city jailer may not fill in as a city policeman. OAG 72-399 .

This section would not prevent a deputy sheriff or deputy county clerk from serving as an election officer. OAG 72-403 .

City councilman could not serve as city police judge when the regular police judge cannot attend court. OAG 72-414 .

There is no incompatibility between the office of city councilman and employee of the housing commission. OAG 72-467 .

This section would not prohibit the appointment of a member of the board of levee commissioners to the Hickman-Fulton county riverport authority, as both entities constitute independent bodies politic and corporate entities. OAG 72-518 .

This section would prohibit the appointment of a member of the city council to the city playground and recreation board. OAG 72-528 .

There would be no incompatibility if a member of the municipal housing authority were appointed housing inspector by the urban renewal agency. OAG 72-589 .

A person could not at the same time serve on the city’s park and recreation board and be a member of the local board of education. OAG 72-618 .

This section would not apply to a situation where a county attorney has made a contract with a city to advise the city on matters of a civil nature on a month to month basis. OAG 72-634 .

There is no violation of this section where a member of a city board of aldermen is a part-time paid faculty member of the University of Louisville. OAG 72-654 .

A school board member may serve on an agricultural stabilization conservation committee. OAG 72-683 .

A member of a city council could not serve at the same time as a member of the board of electrical control. OAG 72-690 .

An employee of the office of the auditor of public accounts may serve as a member of an independent school board. OAG 72-692 .

A city attorney may not also serve as a hearing officer for the Workmen’s (now Workers’) Compensation Board. OAG 72-698 .

A member of the fiscal court may be appointed to serve on a joint city-county planning commission simultaneously. OAG 72-704 .

A county property valuation administrator may not act as city tax assessor within the county in which the administrator has been elected. OAG 72-736 .

A mayor may not at the same time hold a part-time position as a juvenile probation officer. OAG 72-761 .

A person may hold the office of mayor while holding a job under a federally financed school program. OAG 72-796 .

A position on the state game and fish commission would be incompatible with a position on a city civil service commission. OAG 72-808 .

The position of city judge pro tem is incompatible with membership on a city civil service commission. OAG 72-808 .

The position of county coroner and that of membership of the Kentucky State Board of Chiropractic Examiners would be incompatible. OAG 72-839 .

An assistant county attorney may not serve at the same time as a judge pro tem in the city police court in the same county. OAG 73-29 .

There is no conflict where a person serves at the same time as county juvenile court judge and attorney for a public school board of education within the same county. OAG 73-35 .

Although a school board employee is a state employee, he is not one under the merit system as established by KRS Chapter 18 (now repealed) and neither this section nor Ky. Const., § 165, which define incompatible officers, forbids a school board employee from serving as a city councilman. OAG 73-144 .

There is no constitutional provision under Ky. Const., § 165, or statutory provision prohibiting a person from holding a county office and county employment at the same time and any possible common-law conflict of interest where the person could not perform the duties of both offices at the same time with care and ability would be a question of fact for the courts to decide. OAG 73-166 .

There is no apparent common-law conflict when a magistrate drives a school bus as driving a school bus is state employment and a magistrate is a county officer; thus there is no constitutional or statutory conflict. OAG 73-212 .

A member of the Fish and Wildlife Commission holds a state office, and may not hold the office of deputy sheriff at the same time. OAG 73-224 .

If a superintendent of parks has been made a state park ranger as authorized by KRS 148.056 , he would become a minor state officer, and would thus be ineligible to continue with the office of deputy sheriff. OAG 73-224 .

If an election officer is a county officer and if he holds municipal office while serving as an election officer, the two (2) positions are incompatible. OAG 73-256 .

Although Ky. Const., § 165 and this section prohibit a person from holding two (2) municipal offices at the same time, so that holding a municipal office and city employment is permissible, anyone can serve as city judge while being employed in a nonelective capacity for which a salary is paid by the same city. OAG 73-256 .

A fifth-class city policeman on a monthly salary could continue to hold his position until he assumes the office of sheriff insofar as this section and Ky. Const., § 165, are concerned. OAG 73-346 .

No constitutional or statutory provision prohibits a person from holding a city office and state employment at the same time. OAG 73-440 .

Auxiliary police officer of city could not at the same time hold the position of county juvenile officer. OAG 73-468 .

Commonwealth detective would be considered a state officer, and such office is not compatible with position of auxiliary or reserve policeman of a city. OAG 73-468 .

The mayor of a fifth-class city is a municipal officer and may not at the same time hold a position of county judge (now county judge/executive) pro tem or be a member of the county board of health. OAG 73-548 .

Although a city alderman clearly holds a municipal office, this section does not preclude his appointment for compensation as a county road viewer under KRS 178.070 , his appointment as a commissioner in a condemnation action under KRS 416.020 (repealed), or his employment to appraise real estate or to act as an agent for the county in acquiring land for a public project, since none of these employments amounts to filing a county office nor do they comprise the holding of public office as defined in Howard v. Saylor, 305 Ky. 504 , 204 S.W.2d 815, 1947 Ky. LEXIS 852 (1947). OAG 73-555 .

Although this section and Ky. Const., § 165 prohibit a person from holding two (2) municipal offices at the same time, the term municipal office must be distinguished from municipal employment and where a chief of police of a city is also employed as manager of the city’s sanitation and street department, two (2) municipal offices are not involved (affirming OAG 38-504 and OAG 71-343 ). OAG 73-556 .

A common-law incompatibility would exist if a person were to serve as magistrate and at the same time serve as assistant doorkeeper during the legislative session, because the office of magistrate requires that he be accessible at all times to those who need warrants issued and who desire to bring civil suits in the magisterial district which he serves. OAG 73-661 .

Where a county and a city through a joint operation create a garbage and refuse disposal district, the board of directors composed of four members of which one is a mayor of the city and another is a member of the city council there is no incompatibility as to these two (2) board members because the two (2) municipal officers are not county officers in the strict sense. OAG 73-667 .

While both Ky. Const., § 165, and this section prohibit a person from holding two (2) municipal offices at the same time, there would be no incompatibility if a member of the town council served as a member of the board of trustees of a fire prevention district since the latter is not equivalent to a municipality but is merely a separate taxing district under KRS 75.040 . OAG 73-711 .

As the office of county attorney is a county office under the Constitution and the office of master commissioner has been held to be an office of the court and therefore neither a state nor county office, there would be no statutory or constitutional incompatibility were a person to serve in both capacities. OAG 73-783 .

Sheriff is a county office under the Constitution and under KRS 70.540 , counties are authorized to establish a county police department, the personnel of which would be considered county officers and, while there would be no incompatibility under this section, it is doubtful that the sheriff could at the same time serve as chief of the county police department and perform the duties of both offices with care and ability. OAG 73-783 .

A town marshal is a city peace officer and a deputy sheriff is a county officer therefore one person could not serve in these offices at the same time. OAG 73-795 .

A deputy county coroner may not serve simultaneously as a city commissioner of a fourth-class city operating under the commission form of government. OAG 73-807 .

As there is no prohibition against a person holding a municipal office and at the same time serving as an employee of the city or performing services as an independent contractor, a prosecuting attorney could contract with the city to perform those legal services normally assigned to the city attorney until a qualified attorney could be appointed to that position. OAG 73-815 .

The offices of constable and deputy sheriff are incompatible so that a person elected constable could not legally hold the office of deputy sheriff at the same time. OAG 73-834 .

As this section prohibits a person from holding the office of deputy sheriff and constable at the same time, it is illegal for a sheriff-elect to hire the incumbent sheriff who has been elected a constable, also Ky. Const., § 99, specifically prohibits an outgoing sheriff from being a deputy sheriff for the succeeding term. OAG 73-836 .

As no person can fill two (2) municipal offices, either in the same or different municipalities, individual would be prohibited from membership on the board of trustees of a sixth-class city while acting as city attorney of a fifth-class city but where a city had no attorney qualified to be appointed city attorney, such individual could contract as special counsel to perform the duties of the city attorney in which case he would be considered either an employee of the city or an independent contractor and not an officer of the city so there would be no incompatibility. OAG 73-838 .

Incompatibility exists where a person is a member of the General Assembly and also holds the office of city attorney. OAG 73-851 .

Person assuming the office of county attorney may not simultaneously hold the office of city attorney, but may furnish legal services to the city on a contract basis. OAG 73-852 .

While it is possible for a sixth-class city to employ the county attorney on a contract basis, there may exist a question of legal ethics which should be resolved by the Kentucky Bar Association where there is another attorney living in the county. OAG 73-852 .

As members of the state athletic commission are state officers and the position of assistant director of buildings and maintenance for Jefferson County constitutes a form of county employment and as a person is prohibited from holding a state office and county employment at the same time, these positions are incompatible. OAG 74-4 .

Positions as state parole officer and part-time alcoholic beverage control agent for the city of Louisville on Sunday are incompatible, one being a state office, the other being a municipal office. OAG 74-24 .

As the position of sanitarian for the county health department is county employment, there is no conflict in holding this job and the position of county deputy sheriff simultaneously. OAG 74-46 .

City council member may serve concurrently as the city alcoholic beverage commissioner if such duties are assigned by the city council to one of the council members as provided by KRS 241.160 , but if the office is created by ordinance the office is a municipal office and this section and Ky. Const., § 165, prohibit a person from filling two (2) municipal offices at the same time. OAG 74-82 .

While county election board member and county judge (now county judge/executive) pro tem are both county officers, there is no provision that would prevent a person from holding both of these offices at the same time as section sets out the county offices that can’t be held simultaneously. OAG 74-91 .

As it appears from KRS 179.020 and KRS 179.060 that the county engineer is not a county officer and neither this section nor Ky. Const., § 165, prohibit a person from holding a form of county employment and a city office, there is no incompatibility nor conflict of interest with the city hiring as city engineer the person presently serving as county engineer. OAG 74-92 .

Although KRS 26.270 (repealed) provides that the legislative body of a sixth-class city shall provide by ordinance who shall act in the place of the police judge, the legislative body cannot designate a councilman to act in the place of the police judge since both a city councilman and a city police judge are municipal officers and both subsection (4) of this section and Ky. Const., § 165 state that no person, shall at the same time, fill two (2) municipal offices, either in the same or different municipalities. OAG 74-124 .

Although Ky. Const., § 165 and this section state that no person shall at the same time fill two (2) municipal offices, either in the same or different municipalities, there are no legal prohibitions against holding the position of police chief and the position of city manager at the same time since a police chief is a city officer and according to KRS 89.560 (now repealed) a city manager is an employee of the city rather than a city officer. OAG 74-125 .

There is no violation where one man is employed by the Lexington police department and serves part-time as a deputy sheriff for Clark County since the new form of local government embracing Lexington and Fayette County was not contemplated within the terms of this statute. OAG 74-207 .

Where a man was a city fireman and a member of a county volunteer fire department, no incompatibilities arose under this section by holding the office of county constable. OAG 74-240 .

Where councilman was assigned duties of city alcoholic beverage control administrator pursuant to KRS 241.160 , such assignment did not result in the councilman occupying two (2) offices in violation of this section, since no new city office had been created. OAG 74-292 .

An attorney-client agreement between a senator and a city, acting through its mayor, is not in violation of this section or Ky. Const., §§ 27, 28 and 165, since the senator would not be an officer or employee of the city but merely an independent contractor in an attorney-client relationship. OAG 74-315 .

Under this section no incompatibility exists between the office of State Railroad Commissioner and membership on the state board of ethics; but, if an election is required to be held for the unexpired term of the railroad commissioner pursuant to Ky. Const., § 152, an appointee to the board of ethics, in view of KRS 61.070 , would have to resign his position on the board if he became a candidate in the election. OAG 74-377 .

Since director of pupil personnel of a county school district is a state office and county judge (now county judge/executive) pro tem is a county office, the two (2) offices are incompatible. OAG 74-382 .

A city marshal of one city cannot be employed as a part time deputy marshal, police officer, or patrolman of another city without creating an incompatible situation and thereby vacating the former office unless it is through an interlocal agreement pursuant to KRS 65.210 to 65.300 . OAG 74-537 .

An off-duty fireman employed to act as an auxiliary policeman to control traffic and a public works street sweeper employee employed as an auxiliary policeman to issue parking tickets to cars unlawfully blocking his path are simply holding a position of employment and an office at the same time which is not incompatible under Ky. Const., § 165 or subsection (4) of this section. OAG 74-543 .

A member of a town board of trustees can be legally assigned the duties of the office of alcoholic beverage control administrator under authority of KRS 241.160 as the board member would not be holding another municipal office in violation of Ky. Const., § 165 and this section. OAG 74-576 .

Neither the sheriff nor any of his deputies may serve as the nonsalaried county police chief as the police chief should only be answerable to the county court and while this section and Ky. Const., § 165 do not prohibit such appointments, a practical incompatibility could arise in the serving in the two (2) capacities. OAG 74-581 .

Members of a city council of a city of the fourth class cannot serve on park boards created pursuant to KRS 97.550 without violating subsection (5)(g) of this section. OAG 74-608 .

The office of magistrate on a county fiscal court is not incompatible under this section or KRS 61.220 with a position as employee of a hospital being operated as a county hospital under KRS 216.040 (repealed), but it may be incompatible under the common-law rule of Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 (1917). OAG 74-609 .

An unclassified employee of a state university is eligible to run for and serve on a county school board as there is no general prohibition against holding a state office and state employment at the same time and Ky. Const., § 165 and this section deal only with holding incompatible offices not the holding of a state office and state employment simultaneously. OAG 74-646 .

The treasurer of a county school board is considered a state officer and may not at the same time serve as commissioner of a municipal public utility, which office in all probability constitutes a municipal office and, even if not, constitutes municipal employment. OAG 74-707 .

Although no constitutional or statutory conflict of interest or incompatibility exists between the offices of county commissioner and that of administrative head of a department of county government, since the latter office would be under the supervision of the county commissioners and since the two (2) positions possibly could not be performed at the same time with the requisite care and ability there would appear to exist a common-law incompatibility. OAG 74-737 .

A conflict of interest or incompatibility between offices comes into existence at the time the second office is assumed, not when the holder of the first office becomes a candidate for the second. OAG 74-737 .

A school guard made a member of the county police force is a county officer and could not be made a member of the city police department. OAG 74-738 .

As this section and Ky. Const., § 165 prohibits a person from holding a state office and a county office or city office at the same time, the office of an auxiliary police officer of a city of the third class, created under KRS 95.445 is incompatible with the office of deputy sheriff, a county office, and a conservation officer, a state officer under KRS 150.090 . OAG 74-909 .

As this section prohibits the holding of a county office and a city or municipal office at the same time, the acceptance of a city council office by a deputy sheriff creates an incompatibility which, though not automatic, shall operate to vacate the first office held and the city council may, pursuant to a hearing and good cause, remove the deputy sheriff from office by a vote of three-fourths of its members. OAG 74-917 .

The office of master commissioner is not an office within the meaning of this section or Ky. Const., § 165 and is not, therefore, incompatible with the office of county attorney unless a common-law incompatibility arises where the duties of both offices cannot be performed by the same incumbent with care and ability, which would involve a question of fact only the courts can decide. OAG 75-57 .

Since a city-county airport board is an independent corporate entity, neither a city nor county agency, membership on such board is not an office contemplated by this section or Ky. Const., § 165 and is not incompatible with the office of Commonwealth’s Attorney. OAG 75-72 .

City prosecutor may not serve on county park board as this violates the prohibition against filling a county office and a city office at the same time. OAG 75-138 .

A member of the Louisville police department may not hold a position as a city trustee of a city of the sixth class since this section prohibits the holding of two (2) municipal offices at the same time. OAG 75-246 .

Since the office of master commissioner is not a state, county or city office but an office of the court, it is not incompatible with the office of magistrate under this section or Ky. Const., § 165, although a common-law conflict might arise if the duties of both offices could not be performed by the same incumbent with care and ability. OAG 75-255 .

There is no incompatibility between the offices of county judge (now county judge/executive) pro tem and clerk of the quarterly court. OAG 75-263 .

Although the offices of common councilman in a city of the third class and Circuit Court Clerk are incompatible in view of this section, there is no constitutional or statutory provision which would prohibit a council member from becoming a candidate for circuit clerk since the incompatibility would not exist, in view of KRS 61.090 , until the council member assumes the office of circuit clerk. OAG 75-292 .

Since the office of deputy jailer is a county office under KRS 71.060 , although an appointive rather than an elective office, it is incompatible with the office of member of the common council of a city of the third class. OAG 75-292 .

No statutory or constitutional conflict of interest or incompatibility exists by virtue of the fact that a member of the county board of education serves at the same time on the Cumberland River Mental Health-Mental Retardation Board, Inc., a private nonprofit corporation. OAG 75-337 .

A person appointed director of pupil personnel, a state office created by KRS 159.080, could not at the same time serve as magistrate or justice of the peace, a county office, as the two (2) are incompatible under this section and Ky. Const., § 165. OAG 75-414 .

Since service on the planning and zoning commission by an officer of a political party would not constitute or involve a pecuniary interest, no conflict of interest would exist under KRS 100.133 and as the position of county chairman of either political party is not a constitutional or statutory office, there would be no incompatibility between said position and service on the zoning and planning commission created pursuant to Ky. Const., § 165 and this section. OAG 75-436 .

There is no statutory or constitutional incompatibility or conflict where a person is a state employee and holds a county office at the same time and therefore, one may hold the position as magistrate while still an employee of the state property valuation administrator’s office and any question of common-law incompatibility must be decided by the courts. OAG 75-526 .

A city councilman appointed as chief of police pursuant to KRS 95.720 (now repealed) is holding two (2) incompatible offices under this section and Ky. Const., § 165 but where the councilman is merely appointed as police commissioner to oversee the police department there is incompatibility. OAG 75-564 .

Since the offices of employee of the state highway commission and election officer or member of the board of elections are not incompatible under this section or Ky. Const., § 165 and since the State Merit System Act has no provision prohibiting a state employee from serving in either capacity an employee of the highway commission may legally do so. OAG 75-565 .

Under Ky. Const., § 165 and this section the office of city fire chief is not incompatible with employment by the greater Cincinnati airport fire department. OAG 75-568 .

Serving as a member of the environmental quality commission while at the same time being employed by an interlocal planning and development agency does not violate this section. OAG 75-674 .

As the position of chief deputy commissioner of the Department of Insurance is a state office pursuant to KRS 304.2-060 and 304.2-090 , and being a member of a public library district board constitutes holding a municipal office, the offices are incompatible under Ky. Const., § 165 and this section. OAG 75-696 .

The position of master commissioner is a public office within the meaning of subsection (5)(g), but is not a state, county or city office under this section. OAG 75-700 .

Since the position of district health office is not a county nor a state office, there is no statute prohibiting the district health officer from being at the same time the county coroner, provided that he can carry on and perform his duties as district health officer as required by KRS 212.900 . OAG 75-703 .

Although there is no statutory incompatibility between the position of district health officer and the office of county coroner, there may be common-law incompatibility if the health officer could not execute both positions with care, ability, impartiality, and honesty. OAG 75-703 .

Although the office of school board member and that of master commissioner of the Circuit Court are constitutionally and statutorily compatible offices, there could exist common-law conflict where the duties of both offices cannot be performed at the same time with care and ability. OAG 75-715 .

Since the office of master commissioner does not constitute a state, city or county office, but merely an office of the court, no incompatibility would exist between the office of school board member and the position of master commissioner for the Circuit Court. OAG 75-715 .

If a city of the third class, pursuant to KRS 92.150 (now repealed), has by ordinance consolidated the offices of tax collector and city clerk into one office the holder of that office could probably perform the duties of the tax collector utilizing the personnel of the consolidated offices. OAG 75-723 .

A duly elected constable cannot serve as a salaried police officer in a city of the sixth class since this section prohibits the holding of a county office (constable) and a municipal office (police officer) at the same time. OAG 75-781 .

This section does not prohibit the holding of two (2) county offices at the same time and thus, one person may hold both the office of Circuit Court Clerk and commissioner of the city-county recreational, tourist and convention commission since both are county offices. OAG 76-3 .

The offices of county treasurer and fiscal program coordinator for the county are not incompatible as this section does not prohibit the holding of two (2) county offices at the same time. OAG 76-8 .

This section would not prohibit a mayor from also acting as city planner if the latter office is a form of city employment, rather than a municipal office. OAG 76-16 .

As the position of superintendent of city waterworks is merely a form of employment and not a municipal office, it is not incompatible with the office of police judge pro tem. OAG 76-34 .

The position of deputy sheriff and that of a precinct judge are not incompatible insofar as this section and Ky. Const., § 165 are concerned as a deputy sheriff is a county officer and election officers would appear to be local or county officers. OAG 76-91 .

A person may, at the same time, hold the municipal office of judge pro tem and a position of municipal employment as a management planning administrator provided that the two (2) positions can be performed with care and ability. OAG 76-134 .

A person is not prohibited from being a member of the county police merit board and, at the same time, a member of the county board of tax supervisors, if the situation does not involve a common-law incompatibility. OAG 76-195 .

Since the position of electric plant superintendent is nothing more than a form of employment, a person could serve at the same time as city manager and as plant superintendent of the electric plant board. OAG 76-211 .

There is no prohibition against a person holding two (2) positions of municipal employment at the same time, or a municipal office and municipal employment, thus a person could serve as the administrative officer of a city planning commission and at the same time serve as city manager of the city. OAG 76-212 .

Although there would be no constitutional or statutory provision prohibiting a person from holding the office of magistrate, a county office, and at the same time serving on the county school board staff, which would constitute a form of state employment, there could be a common-law incompatibility since a magistrate must be accessible at all times to persons desiring to serve warrants and to those desiring to bring civil actions. OAG 76-216 .

There is no statutory or constitutional incompatibility or conflict of interest between membership on a county school board and employment as a full time mental health worker for a nonprofit corporation which administers a community mental health program. OAG 76-227 .

Since a city-county air board is a separate political entity from the creating agency, a member of the city council could be appointed to the air board by the mayor. OAG 76-257 .

There is no constitutional nor statutory incompatibility between the positions of hearing officer for the workmen’s compensation board, special commissioner for the Circuit Court, or assistant public defender (now public advocate) for the quarterly court. OAG 76-281 .

In a sixth-class city the fact that the police judge is the father of the deputy marshal, who presents evidence in the city police court against an alleged violator of a city ordinance or state law, would not create a conflict of interest. OAG 76-345 .

There is no constitutional or statutory incompatibility between the position of secretary of the county police merit board and a position as a data processing contract accountant in the county clerk’s office. OAG 76-346 .

A person cannot serve as chairman of the state athletic commission, a state office, and at the same time enter into a personal service contract for management services with the county court clerk since in reality the person under such contract would be serving as a deputy county clerk and thus be holding a county office. OAG 76-352 .

The mayor of the city of Glasgow can at the same time legally serve as principal of the local school. OAG 76-402 .

There is no statutory, constitutional or common-law incompatibility in a person serving as a deputy county coroner and an emergency medical technician. OAG 76-429 .

A member of the board of supervisors of a conservation district is a local, subdivisional officer and may potentially receive per diem and expenses for serving as such and a state officer could not hold the supervisor’s position because of the prohibition of subsection (1) of this section and Ky. Const., § 165, but were he not a state officer but a state employee the dual positions would not violate these sections; however, since a member of the board of supervisors receives a per diem it constitutes a paid public officer and a person serving as both a member of the board of supervisors and as a state officer or employee would be in violation of KRS 18.310(4) (now repealed). OAG 76-430 .

A person cannot serve as a member of the school board and at the same time hold a position of city manager of a city without violating this section and Ky. Const., § 165 since these sections prohibit a state officer from holding a municipal office or employment at the same time. OAG 76-433 .

A person who holds the position of director of the city’s recreation program could not continue to serve as such and the same time serve as a member of the local board of education. OAG 76-434 .

Since the economic development council is an agency of the city, county and chamber of commerce and the administrator serves at the same time the city, county and chamber of commerce, the position of assistant administrator is of a so called hybrid nature, that is neither a city or county position as contemplated in Ky. Const., § 165, this section and KRS 160.180(1)(d) (now (2)(f)) and therefore no incompatibility would exist between the position of assistant administrator of the economic development council and membership on a county school board. OAG 76-495 .

While under Ky. Const., § 113 a county judge (now county judge/executive) or justice of the peace could be appointed as a trial commissioner of the District Court if: (1) the county is one having no resident district judge (2) they are residents of such county (3) it is shown that there is no resident attorney who is available, Ky. Const., § 165 and this section would prohibit a county judge (now county judge/executive) and justice of the peace, as county officers, from being at the same time a trial commissioner of a District Court. OAG 76-497 .

Inasmuch as the position of maintenance supervisor for a local board of education is a form of state employment, a person would not be prohibited from holding that position and also serving as a member of the county commission. OAG 76-533 .

A man may serve on both the urban renewal and community development agency of Elsemere and the Kenton County and municipal planning and zoning commission since there would exist no incompatible situation under Ky. Const., § 165 and this section since the individual in question would not be holding two (2) municipal offices or a municipal and a county office at the same time. OAG 76-562 .

Since there is nothing under the terms of Ky. Const., § 165 and this section to prohibit a person from holding a state office and state employment at the same time, a person could hold the office of Commonwealth’s Attorney, a state office, and a teaching position at a state university, a form of state employment, at the same time. OAG 76-563 .

A person cannot, at the same time, hold the offices of mayor and police chief without violating subsection (4) of this section and Ky. Const., § 165, since both offices are city offices and the fact that the mayor would not receive additional compensation for serving as the head of the police department is not determinative as to whether such position is a city office and there is no authority whereby the mayor of a fifth-class city may exercise the same powers as city police officers. OAG 76-570 .

There is no statutory or constitutional provision that would prohibit a person from serving as a member of the fiscal court and at the same time as deputy coroner, appointed pursuant to KRS 72.040 (repealed). OAG 76-642 .

An employee of an area development district would not be prohibited from becoming a candidate for and holding a county or city office and at the same time continuing his employment with the district. OAG 76-662 .

A person could not serve as the county coroner and as a member of the state board of funeral directors and embalmers at the same time. OAG 76-669 .

Membership on a county school board and the position of county director of civil defense are incompatible. OAG 76-687 .

A member of the city council of a fifth-class city could at the same time serve in the nonpaying position of police surgeon. OAG 76-689 .

There would be no incompatibility between the position of staff attorney for a nonprofit legal aid corporation and that of state representative. OAG 76-737 .

There is no provision under Ky. Const., § 165 or this section relating to incompatible offices that would prohibit a person from holding a position on a county board of education which is a form of state employment and serving on the fiscal court which is a county office, nor is there any prohibition to a person serving as a member of a county board of education and as mayor of a fourth class city. OAG 77-8 .

An individual who is a member of an independent school board could not at the same time serve as member of a county board of health as these positions are incompatible. OAG 77-39 .

A member of the board of optometric examiners who is running for the office of county commissioner could continue to serve on the board up until he assumed the office of county commissioner without violating the prohibition against a state officer’s holding a county office at the same time. OAG 77-79 .

A person who is the mayor of a fifth-class city cannot at the same time hold the position of superintendent of county schools since position of mayor is a municipal office and the position of superintendent is a state office and the fact that the mayor may not receive a salary is of no consequence in determining incompatibility. OAG 77-107 .

An assistant county attorney may, generally, represent the special fund as a contract attorney in proceedings before the Workmen’s (now Workers’) Compensation Board. OAG 77-113 .

Where an assistant county attorney who is required to defend the interests of the county before the Workmen’s (now Workers’) Compensation Board is under contract with the Department of Labor as a special fund attorney and under such contract he would be assigned to represent the interests of the Department of Workmen’s (now Workers’) Compensation hearings and he could refuse such assignments, there would be no constitutional or common-law incom- patibility, because while the assistant county attorney is an officer of a county, he is not a state officer or a deputy state officer, since he is under contract with the state, and thus is in fact an independent contractor performing services for the state. OAG 77-113 .

The principal of an elementary school, a state employee, can become a candidate for the office of magistrate and if elected continue to retain his position as principal unless there would be some common-law conflict of interest where the individual could not perform the duties of both positions at the same time with care and ability or unless there is some local regulation promulgated by the county board of education prohibiting school employees from becoming candidates for public office without resigning or taking leave of absence. OAG 77-146 .

It would not be an incompatible situation for the husband of the county treasurer to be a candidate for the office of property valuation administrator. OAG 77-162 .

A state employee under the merit system would not be prohibited from serving in an appointive position as a deputy in the office of county clerk. OAG 77-163 .

Since a university professor is not a state officer or a deputy state officer, there would be no incompatibility if a city councilman became a law professor at a state university. OAG 77-174 .

There is no statutory incompatibility in an individual holding the office of mayor of a third-class city, a municipal office, while retaining a faculty position at a regional university, a form of state employment. OAG 77-204 .

If a person who was chairman of urban renewal and a member of the board of directors of the housing project were to be elected to city council regardless of whether or not an incompatibility or conflict of interest would exist, if the person in question were elected to city council, the fact that he holds the positions mentioned would in no way affect his right to become a candidate for a public office in the primary and general election and any incompatibility that might exist would not occur until he assumed the office of city council; however, if elected he would become disqualified from serving as a member of the housing commission pursuant to KRS 80.040 and also on the urban renewal agency, if it is operated by the city, since it would constitute a municipal office and this section and Ky. Const., § 165 prohibit a person from holding two (2) municipal offices at the same time; but if the urban renewal agency was created as an independent agency under KRS Chapter 99 no incompatibility would exist. OAG 77-244 .

Members of county board of education are state officers and at the same time the position of state ABC officer is one authorized pursuant to KRS 241.090 and such representatives have full police powers which may or may not place their position in the category of a state officer; and although subsection (1)(d) (now (2)(f)) of KRS 160.180 prohibits a school board member from holding and discharging the duties of any local office or agency under the city or county of his residence, it would not prohibit a school board member from holding employment or an appointive office with the state and of course a board member could not become a candidate for any public office, local or state; however, Ky. Const., § 165 and this section do not prohibit a person from holding two (2) state offices or employment at the same time. OAG 77-245 .

Neither this section nor Ky. Const., § 165 prevent a person from, at the same time, being a member of the board of an air pollution control district and a member of the board of a sewer construction district, neither of which is a state, city or county agency, and if the person involved is able to perform the functions of both positions with care and ability and with impartiality and honesty, no common-law incompatibility would exist. OAG 77-249 .

There is no statutory or constitutional prohibition against a member of the General Assembly serving, at the same time, as a commissioner of a sewer construction district and if the person involved can perform in both capacities with care and ability and with impartiality and honesty, no common-law incompatibility would be involved in either. OAG 77-249 .

No incompatibility would exist where the city clerk is appointed to the position of zoning administrator for the city, if the latter position does not constitute a municipal office. OAG 77-369 .

There would be no incompatibility or conflict of interest where the staff attorney for the board of ethics of the General Assembly serves, at the same time, as a county attorney. OAG 77-402 .

A university safety and security officer appointed and holding his position pursuant to KRS 164.950 to 164.980 is a state officer and as a state officer he is precluded by Ky. Const., § 165 and subsection (1) of this section from serving, at the same time, as either a city officer or a county officer. OAG 77-521 .

No incompatibility would exist where a member of the Legislature is involved in part-time advisory work under a personal service contract with a city or a county. OAG 77-536 .

Since a member of a board created to administer a city’s recreational facilities is a municipal officer, a city councilman could not be appointed to serve on that recreational board. OAG 77-539 .

A member of the Legislature or his law firm would not be prohibited from contracting with a city for legal services OAG 77-589 .

There is no constitutional or statutory restriction which would prohibit an employee of a city sewer department from serving as county magistrate. OAG 77-639 .

Where a city is operating an urban renewal and community development agency, a member of the county board of elections could not serve on the urban renewal agency. OAG 77-650 .

A member of a city council would be prohibited from serving as a deputy sheriff for the county. OAG 77-661 .

A person employed as assistant director of a city’s department of personnel and employee relations would not be prohibited from contracting with a county to write an affirmative action plan for divisions of the county government. OAG 77-672 .

There would be no incompatibility between the office of city attorney and the position of hearing officer for the wage and hour section of the Department of Labor (now Labor Cabinet). OAG 77-680 .

A person could not hold the position of fire chief of a fifth-class city and at the same time hold the office of city councilman. OAG 77-682 .

Although justices of the peace no longer have judicial functions, a person would be prohibited from being a justice of the peace and a deputy sheriff at the same time. OAG 77-686 .

Membership on the board of trustees of a city’s public library would be incompatible with membership on the local school board. OAG 77-697 .

Since this section does not prohibit a person from holding a county office and municipal employment at the same time, a person who holds the position of captain of a city fire department could be employed as a part-time deputy sheriff. OAG 77-698 .

Inasmuch as a person is prohibited from holding two (2) municipal offices at the same time, a member of the board of trustees of a sixth-class city could not be appointed to the office of city treasurer. OAG 77-710 .

Inasmuch as a membership in an educational association does not constitute a state, county or city office, a person could retain his membership in such an association while serving on a local school board. OAG 77-712 .

An individual appointed trial commissioner could not at the same time serve as city attorney for a city of the fourth class. OAG 77-744 .

The zoning administrator does not fill a municipal office such as would be incompatible with a county office. OAG 77-765 .

For the purposes of the conflict of interest provision, the office of county attorney, while involving both state and county functions, is a county office. OAG 77-779 .

The office of magistrate and state employee are not incompatible under this section. OAG 78-2 .

Under the terms of this section, an individual cannot serve as both county judge/executive pro tem and as a member of the city civil service commission as the two (2) offices would be incompatible. OAG 78-44 .

Membership on an area development board and a municipal housing commission is not incompatible inasmuch as both agencies are hybrid political entities and are not a county or subdivision of a county, city, or town. OAG 78-47 .

Since the position of fire chief in a fourth class city is a form of municipal employment rather than a municipal office, there is no statutory prohibition against a person holding the office of county jailer and, at the same time, holding the position of city fire chief; however, there may be a common-law incompatibility. OAG 78-86 .

The county sheriff cannot at the same time serve as a city police officer as those two (2) offices are incompatible. OAG 78-107 .

The mayor of a fourth-class city could not serve at the same time as a member of the city’s utility commission. OAG 78-111 .

A riverport authority is an independent governmental agency which is not a state, county or city agency contemplated under this section. OAG 78-125 .

Since a riverport authority is an independent agency from that of the city, no incompatibility or conflict of interest would exist where a city commissioner served as a port manager. OAG 78-125 .

Nothing in this section prevents a person from serving at the same time as a county building inspector and a member of a county planning and zoning commission. OAG 78-137 .

A member of the city council who is a municipal officer could not hold the position of assistant county attorney which would be considered a county office in the same category as the county attorney. OAG 78-236 .

There is no statutory or constitutional incompatibility between the office of county attorney-prosecutor and membership on a municipal housing commission. OAG 78-291 .

Assuming that hospital board members of a county hospital controlled by the fiscal court qualify as county officers, there is nothing in the Constitution and in the statutes that would prohibit the county attorney from holding the two (2) county offices at the same time. OAG 78-324 .

An elected county official, except a commissioner of the fiscal court of a county containing a first-class city, may serve on the board of a library formed under KRS 173.450 to 173.650 or 173.710 to 173.800 . OAG 78-331 .

A person could not hold the office of deputy sheriff and membership on the city council at the same time since these two (2) offices are incompatible, under Ky. Const., § 165 and this section. OAG 78-361 .

If a postmaster is one of the fourth class, there would be no incompatibility between that position and membership on a city council, but if it is a federal office, there would be a prohibition under Ky. Const., § 237 holding, in effect, that no person can serve at the same time as a federal officer and a state or local officer. OAG 78-361 .

Police officers are officers of the governmental entity in which they serve but under an interlocal agreement, for example, police officers involved in a cooperative undertaking between a city and a county or two (2) cities can avoid the prohibitions in this section and Ky. Const., § 165 against a person being, at the same time, a county officer and a city officer or an officer in two (2) different cities. OAG 78-364 .

An incompatibility situation would exist where a named individual at the same time serves on the environmental quality commission and as mayor of the City of Hazard. OAG 78-377 .

The holding of the positions of superintendent of schools and members of a local school board does not by itself present a statutory or constitutional incompatibility, under this section and Ky. Const., § 165. OAG 78-413 .

The holding of the legislative membership on a tourist board would not constitute a violation of Ky. Const., § 165 or this section. OAG 78-475 .

Subsection (3) of this section prohibits an ex-sheriff from being a deputy sheriff and a deputy marshal of a city and the member of the fiscal court could be potentially liable in connection with civil rights actions filed against the ex-sheriff resulting from his unlawful occupancy of the county office of deputy sheriff and the city office of deputy marshal; therefore the fiscal court should take positive action by appropriate resolution, disavowing any recognition of the ex-sheriff as a deputy sheriff of the county and specifically prohibiting the ex-sheriff’s use of county vehicles and assistance of county employees, and provide that the funding of the ex-sheriff’s position as a deputy out of the sheriff’s fees or out of the county treasury should stop immediately. OAG 78-558 .

There is no statutory incompatibility of offices between the jobs of county road supervisor and deputy county judge/executive. OAG 78-581 .

Since the transit authority of River City is neither a state, city or county entity, no incompatible situation would develop within the meaning of this section and Ky. Const., § 165 where an officer of the Jefferson County police department (a county officer), or for that matter the Louisville police department (a city officer), was employed part-time by TARC. OAG 78-618 .

Section 165 of the Constitution and this section prohibit a state officer (county school board member) from holding a county office (deputy sheriff) at the same time since they are incompatible. OAG 78-622 .

While nothing in the law prevents an incompatibility between the office of assistant city administrator and candidate for school board, both Ky. Const., § 165, and this section prohibit one from holding a city position and at the same time serving as a school board member, which is a state office. OAG 78-631 .

Neither the Constitution, § 165, nor this section would prohibit the county attorney from also being deputy county judge/executive, since the county attorney is the legal advisor for the county and the fiscal court, this would constitute a common-law incompatibility, and in such situation the county attorney could not honestly, impartially and objectively carry out both jobs. OAG 78-642 .

If one is not an employee of a county school board but serves, for example, as an employee of the State Department of Education, there would be no constitutional or statutory conflict under Ky. Const., § 165 and this section since a person can hold two (2) state positions at the same time, whether they be in the form of an office or employment. OAG 78-645 .

One may serve as a member of the Bowling Green board of education of the Bowling Green independent school district while at the same time being employed as an administrator of the Bowling Green-Warren County health department pursuant to appointment by the joint city-county board of health which is, in turn, approved by the Kentucky Department of Human Resources (now Cabinet for Human Resources), since the joint city-county health department would be considered a hybrid agency not contemplated by the Constitution or statute relating to incompatible offices, namely Ky. Const., § 165 and this section. OAG 78-646 .

A member of the city council cannot serve at the same time as an auxiliary policeman at the annual salary of one dollar, because no person can hold at the same time two (2) municipal offices as this is prohibited under Ky. Const., § 165 and this section, since a member of the city council is a municipal officer and a member of the auxiliary police force having the same powers as a regular policeman is also a municipal officer, and compensation is not a factor in determining whether or not the two (2) offices are incompatible. OAG 78-675 .

There is nothing under Ky. Const., § 165 or this section that would prohibit an employee of the University of Kentucky extension specialist department, poultry division, from holding a state office at the same time (such as the school board position), and this would be true even if the employee was under the state merit system in view of KRS 18.310(4) (now repealed). OAG 78-706 .

Section 165 of the Constitution and this section prohibit a person from holding a state office and municipal office at the same time which means that the position of commonwealth detective would be incompatible with that of city policeman. OAG 78-708 .

The office of mayor and that of membership in the General Assembly are of course incompatible under Ky. Const., § 165 and this section, but the incompatibility does not occur until the person assumes the second office, in which case he vacates the first office pursuant to KRS 61.090 . OAG 78-711 .

A person could hold office on the county board of education and at the same time serve as state conservation officer. OAG 78-773 .

One may hold both the office of railroad commissioner and the position of trial assistant to the district judge of Floyd County since both are state offices. OAG 78-825 .

A person holding the position of membership on the Marshall County board of education cannot at the same time serve as city treasurer of Calvert City. OAG 79-1 .

Neither Ky. Const., § 165 nor this section prohibit an employee of a city from becoming a candidate for another public office and this would be equally applicable to the employees of the City of Louisville unless said employees are under the city’s civil service program pursuant to KRS 90.220 which prohibits any person in the classified service in cities of the first class from becoming a candidate for public office. OAG 79-2 .

Where one is made a deputy sheriff without the proper legislative action authorizing such a position, such action is purely illusory and, despite the clear prohibition of this section, the person could also hold the office of deputy county judge/executive. OAG 79-17 .

Section 165 of the Constitution and this section prohibit a state officer from holding a municipal office at the same time; therefore, no one can hold the office of city attorney and serve as a member of an independent school board at the same time since the two (2) positions are incompatible. OAG 79-44 .

The position of campaign manager is not an office under either Ky. Const., § 165 or this section. OAG 79-53 .

A person could legally hold the office of county judge/executive and at the same time enter into a personal service contract with the state to provide legal services to the Kentucky Public Service Commission. OAG 79-86 .

While a person may hold a municipal office and employment with the city at the same time without violating this section and § 165 of the Constitution, where the office of councilman and a municipal employment are involved KRS 61.270 and the common-law rule would create a conflict of interest. OAG 79-143 .

There is no conflict between the positions of superintendent of county schools and a supervisor of a county conservation district. OAG 79-149 .

The position of policeman is a municipal office. OAG 79-225 .

Though a police officer could become a candidate for city council, he could not, if elected, serve as a member of a city commission and as a police officer as these two (2) positions are incompatible under Ky. Const., § 165 and this section. OAG 79-225 .

The fact that one desires to become a candidate for another elective office creates no incompatibility until he assumes the second office which is incompatible with the first. OAG 79-248 .

The position of county health administrator would constitute merely a form of county employment and no statutory incompatibility would exist between it and the position of city commissioner. OAG 79-300 .

Since a county coroner is a county officer, while a local coordinator of county disaster and emergency services is a county employee, there is no constitutional or statutory incompatibility. OAG 79-319 .

Since a school board member is a state officer, and since a county emergency director is a county employee, Ky. Const., § 165 and this section expressly prohibit one person from holding such office and employment at the same time. OAG 79-319 .

Section 165 of the Constitution and this section do not prohibit the holding of two (2) county offices at the same time. OAG 79-398 .

There is no conflict of interest if a county commissioner were appointed as a deputy county court clerk for the purpose of helping the clerk process the 1979 tax appeals. OAG 79-398 .

This section does prohibit a commissioner of fiscal court in counties containing a city of the first class from holding any other public office. OAG 79-398 .

A state employee, such as an employee of the State Department of Transportation (now Transportation Cabinet) or Bureau of Highways (now Department of Highways), can legally serve as a district commissioner for the State Department of Fish and Wildlife Resources insofar as any questions concerning incompatibility under Ky. Const., § 165 and this section. OAG 79-438 .

Neither Ky. Const., § 165 nor this section prohibit a person from holding state employment in multiple positions. OAG 79-438 .

Since a member of the county board of elections is a county officer and membership on the city council constitutes a municipal office, this section clearly prohibits a person from holding both at the same time. OAG 79-443 .

Section 165 of the Constitution and this section prohibit a state officer from holding a county office at the same time; however, there is no prohibition against a state employee holding a county office except where such person is under the state merit system and cannot run for such office which would not be applicable with respect to school teachers since they do not come under the state system. OAG 79-459 .

The position of county court clerk is a county office under the Constitution, particularly Ky. Const., § 99, and a school teacher, part-time or otherwise, is a state employee. OAG 79-459 .

There is no constitutional nor statutory prohibition which would prohibit a local board from hiring a county clerk as a substitute teacher. OAG 79-459 .

Although neither this section nor Ky. Const., § 165 would prevent a state representative from also serving on a local city-county human rights commission, the separation of powers doctrine under Ky. Const., §§ 27 and 28 prevent a person serving in one branch of government from exercising powers in another. OAG 79-483 .

It is not incompatible for a full-time county employee to also serve as a trustee of a sixth-class city located in that county. OAG 79-493 .

There is nothing in Ky. Const., § 165 or this section which would create an incompatibility between the jobs of deputy sheriff and part-time school bus driver. OAG 79-537 .

There is no constitutional or statutory incompatibility for an elected official, such as a member of the city council, to hold at the same time an office in a privately incorporated association, such as the N.A.A.C.P. OAG 79-603 .

Since the office of director of an emergency ambulance service district is neither a county nor city office, nothing in Ky. Const., § 165 nor in this section would prevent a city or county officer from lawfully serving on that board. OAG 79-607 .

There is no incompatibility either under Ky. Const., § 165 or this section between the office of coroner and a member of the board of directors of an emergency ambulance service district. OAG 79-610 .

There is no incompatibility, under either Ky. Const., § 165, this section or the common law, between the state offices of secretary of energy and chairman of the board of trustees of the University of Kentucky. OAG 79-624 .

Nothing in Ky. Const., § 165 or this section would prohibit an employee of a Commonwealth’s Attorney’s office from also being a member of a state university’s board of regents. OAG 79-645 .

Since the offices of city clerk and city treasurer are separate and distinct city offices, no person can, at the same time, hold either of these offices and another city office, such as that of city councilman, in view of Ky. Const., § 165 and this section. OAG 80-20 .

Section 165 of the Constitution and this section do not prohibit a person from holding a municipal office, such as city clerk-treasurer, and at the same time municipal employment, such as the position of police dispatcher. OAG 80-82 .

Since membership on the city board of adjustment constitutes a municipal office and membership on the local board of appeals under the Kentucky Building Code also constitutes a municipal office, the two (2) are incompatible, one with the other, and no person can hold both at the same time. OAG 80-91 .

The office of city school board member and that of county comptroller are incompatible. OAG 80-92 .

The office of commissioner of the Department of Public Information is not incompatible with a position on the Kentucky Heritage Commission or the Kentucky Historic Preservation Review Board. OAG 80-96 .

Inasmuch as the executive director had no authority to change regulations, to administer any programs or to change any programs, but instead the work consisted of being a research person and coordinator of the activities of the task force group, there was no incompatibility between the position as executive director of the Governor’s task force on welfare reform and a position as a member of a county urban council. OAG 80-60 .

A person cannot hold the office of city clerk and city treasurer at the same time in a city of the sixth class. OAG 80-73 .

A city clerk can run for the office of magistrate but if elected the clerk cannot continue to hold the office of city clerk, because the office of city clerk is a municipal office and the office of magistrate is a county office and this section prohibits a person from holding a municipal and a county office at the same time. OAG 80-104 .

Constitution, § 165 and this section prohibit a state officer or deputy state officer from holding a county office; however, there is no provision prohibiting a state employee, such as a school principal, who is not under the state merit system from becoming a candidate for a county office, such as a county magistrate, and serving as such at the same time he holds his state position. OAG 80-131 .

Although neither Ky. Const., § 165 nor this section prohibits a person from holding the positions of city councilman and civil defense director at the same time, there may be a common-law conflict of interest depending on who appoints the civil defense director pursuant to KRS 39.415 ; if the city legislative body appoints the civil defense director, then a conflict of interest would exist since the councilman in question would be directly involved in his own appointment; on the other hand, if the mayor is authorized to make the appointment, then no such conflict would appear to exist. OAG 80-141 .

Since the position of city councilman is a city office and that of deputy sheriff is a county office, these positions are incompatible under this section which prohibits a person from holding a city and county office at the same time. OAG 80-141 .

No conflict of interest would exist under Ky. Const., § 165 or this section if a county deputy jailer were permitted to join the county auxiliary police force. OAG 80-222 .

An individual holding the office of magistrate can at the same time serve on the county board of elections, since no constitutional or statutory provisions prohibit a person from holding two (2) county offices at the same time and KRS 117.035 specifically permits a person who holds another county office to serve on the county board of elections. OAG 80-263 .

Since the position of trial commissioner is a state office and membership on the county election board is a county office, an individual would be prohibited from holding both positions at the same time. OAG 80-266 .

Assuming no factual circumstances that would give rise to a common-law conflict of interest, a member of a county fiscal court while serving in office may also be employed, full-time or part-time, as an instructor at the University of Louisville, or any other state institution of higher learning. OAG 80-277 .

A member of the Kentucky General Assembly can at the same time serve as a presidential elector since the Constitution does not prohibit a person from holding two (2) state offices at the same time, unless there exists a common-law incompatibility. OAG 80-291 .

A county attorney is a county constitutional officer, pursuant to Ky. Const., § 99, and, therefore, an assistant county attorney is a statutory county officer for the purpose of considering the general question of incompatibility of offices; since the office of assistant county attorney involves only one office, a county constitutional office, no incompatibility exists even though the county attorney has been given state duties as a prosecutor (KRS 15.725(2)) and county duties as an adviser to fiscal court (KRS 69.210 ). OAG 80-341 .

Insofar as constitutional and statutory provisions governing incompatible offices are concerned, there is no restriction preventing a pretrial release officer, presumably appointed by the administrative office of the courts under RCr 4.06, from becoming a candidate for a political office and there is no statutory restriction preventing the release officer from calling attention to his position during the campaign. OAG 80-360 .

There is no incompatibility in law or fact in holding at the same time the positions of Commonwealth’s Attorney and membership on the Eastern Kentucky University board of regents. OAG 80-402 .

There is no constitutional or statutory provision prohibiting an individual from holding a real estate license and the office of county judge/executive at the same time, although a common-law incompatibility might exist. OAG 80-478 .

An individual serving on the Crime Victims Compensation Board and as a member of the Board of Claims is a nonmerit state employee, and would not be prohibited from continuing to hold the two (2) state positions while at the same time serving as a paid coordinator with a presidential campaign. OAG 80-488 .

There is no incompatibility between serving as an employee of the Department of Human Resources and as a school board member since both positions are with the state, one being a form of state employment and the other (school board) a state office. OAG 80-505 .

Since the position of property valuation administrator is a state office, if and when an employee of the county ambulance service assumed the office of property valuation administrator, he must resign from his position with the county. OAG 80-523 .

There would be no constitutional or statutory restriction on a Circuit Court Clerk serving as an instructor in one of the state’s driver improvement programs. OAG 80-548 .

A person may not, at the same time, serve as clerk of the District Court and an auxiliary police officer for a city of the fourth class. OAG 80-552 .

An employee of a county ambulance service, which is comprised of two (2) counties, could run for the elective office of coroner while still employed. OAG 80-563 .

A deputy state fire marshal (paid a monthly salary) may not also serve as a county police officer at night. OAG 80-576 .

Since a deputy Circuit Court Clerk is a state officer and a county treasurer is a county officer, the same person cannot, at the same time, fill both offices as they are incompatible with each other. OAG 80-608 .

Where sixth class city sought to appoint the chief of police as city treasurer and as director of the city water department, the same person would be prohibited from holding two (2) municipal offices at the same time under this section and Ky. Const., § 165; however, the city under the appropriate ordinance could assign the duty of collecting city taxes to the chief of police and make it part of his overall responsibility. OAG 81-8 .

A county school teacher can be elected to the office of magistrate without violating Ky. Const., § 165 and this section since a person may hold both state employment such as a school teacher and at the same time hold a county office such as magistrate. OAG 81-13 .

An assistant Commonwealth’s Attorney may accept a night teaching position with a community college without creating a conflict of interest since Ky. Const., § 165 and this section do not prohibit a person from holding a form of state employment and a state office at the same time. OAG 81-17 .

A dispatcher with the city police department may run for and, if elected, serve as a city council member without violating the provisions of this section and Ky. Const., § 165. OAG 81-91 .

A master commissioner may also be appointed trial commissioner since there is no statutory prohibition under this section or constitutional prohibition under Ky. Const., § 165, and neither position is subordinate to the other since the master commissioner serves in the Circuit Court and the district commissioner serves in the District Court. OAG 81-108 .

An assistant Commonwealth’s Attorney may be employed by a city under a personal service contract since the attorney would be considered an independent contractor; thus, there would not be a conflict under Ky. Const., § 165, and this section between holding state office and municipal office simultaneously. OAG 81-114 .

The positions of deputy circuit clerk, a state officer under KRS 30A.010, and trial commissioner of the county District Court, a state officer under KRS 24A.100, since neither Ky. Const., § 165, nor this section, both of which treat the subject of incompatible offices, prohibits a person from holding two (2) state offices at the same time; however, they may be incompatible under the doctrine of practical or common law. OAG 81-124 .

Where the executive director of a community development agency, which was not created as an independent agency under KRS 99.350 , is elected to the office of mayor of the same city, there is no constitutional or statutory conflict pursuant to Ky. Const., § 165, or this section since a person can theoretically hold a municipal office and employment at the same time; however, the mayor could not continue to hold the executive director’s position without creating a common law incompatibility or conflict of interest since he is presumed to possess the power under KRS 83A.130 to not only hire, but also fire, the executive director. OAG 81-179 .

Where an attorney is on retainer for a municipal water and sewer commission and runs for the position of Commonwealth’s Attorney, he could hold both positions without violating this section and Ky. Const., § 165, since the retainer position is held as an independent contractor rather than as a city officer or city employee. OAG 81-214 .

A director of county parks and recreation board, which is a joint city-county board created by KRS 97.035 , can also be elected to the city council, since the joint board is a hybrid whose members are neither city nor county officers and thus, there would be no violation of this section or Ky. Const., § 165, which prohibit a person from holding two (2) municipal offices or a municipal and a county office at the same time. OAG 81-240 .

Under Kentucky law a city policeman is considered to be a municipal officer and thus a city cannot employ as a part-time police officer a person who is presently serving as a police officer in another city without creating an incompatibility prohibited by subsection (4) of this section and Ky. Const., § 165. OAG 81-307 .

The employment of a county attorney as attorney for the county board of education does not violate this section and Ky. Const., § 165, since employment as the school board attorney would be that of an independent contractor rather than an employee, and since such employment would at most be a form of state employment rather than constituting a state office. OAG 81-308 .

A person who is the master commissioner of the county Circuit Court can lawfully be appointed to serve as a member of the water commission, since the office of master commissioner is, under KRS 31A.010, merely a position filled by and under the jurisdiction of, the Circuit Court, rather than a state, county or city office; thus, no incompatibility exists under this section and Ky. Const., § 165, between the two (2) positions. OAG 81-313 .

An employee of a city or county can act as a court commissioner appointed to appraise real estate pursuant to KRS 416.580 and receive compensation therefor, since the court commissioner position is an office of the court at most and thus not a state, county or municipal office; the holding of both positions does not violate this section or Ky. Const., § 165. OAG 81-368 .

The appointment by a Circuit Court Judge of a city comptroller to the position of court commissioner to appraise real estate pursuant to KRS 416.580 would at most constitute appointment to an office of the court which is not a state, county or municipal office; accordingly, the holding of both offices would violate neither this section nor Ky. Const., § 165. OAG 81-368 .

An ordinance which created the office of city alcoholic control administrator in a fourth class city and vested the powers and duties of the administrator in the mayor was in violation of KRS 241.160 , which provides that such office may either be created or its duties assigned to an existing office, and also violated subsection (3) of this section and Ky. Const., § 165 which prohibit any person from filling two (2) municipal offices at the same time; however, the city council could amend or revise the ordinance to state that the duties of the administrator should be assigned to the office of the mayor, thereby avoiding the creation of a separate municipal office. OAG 81-390 .

Constitution, § 165 and this section do not prohibit a county judge/executive from appointing a firefighter from one fire department to serve on the board of trustees of a fire protection district which does not include that department, since city and county firefighters are considered employees of their employing entity rather than governmental officers, and trustees of a fire protection district are district officers rather than state, county or city officers. OAG 81-427 .

The position of master commissioner for the Circuit Court is not a municipal, state or county office within the meaning of Ky. Const., § 165 or KRS 61.080 ; accordingly, a city councilman in a fourth-class city can simultaneously serve as a master commissioner. OAG 82-7 .

A local industrial development authority would constitute an independent political subdivision or hybrid state-corporate agency under subsection (2) of KRS 154.50-316 ; accordingly, an assistant Commonwealth’s Attorney may simultaneously hold membership in a local industrial development authority without violating Ky. Const., § 165 and this section. OAG 82-11 .

Since a metropolitan sewer district is a hybrid agency not contemplated by Ky. Const., § 165 or this section, a property valuation administrator can also serve as a member of the board of a sewer district without violating such provisions. OAG 82-81 .

Since the positions of county director of disaster emergency services and a fire fighter for a city located within the county are mere forms of employment, an individual can legally hold both positions without creating an incompatible situation, so long as he can perform the duties of both positions with care and ability, thereby avoiding a possible common-law conflict, which is a question of fact that only the courts can determine. OAG 82-127 .

Constitution, § 165 and this section, involving holding two (2) offices at the same time, do not apply to a situation where a county attorney enters into a contractual agreement to act for a city which has not created an “office” embracing the city attorney. OAG 82-150 .

An unpaid city council member who is also employed by the Kentucky Higher Education Assistance Authority as executive director, and by virtue of his position as executive director of the Kentucky Higher Education Assistance Authority, is also the executive director of the Kentucky Higher Education Student Loan Corporation, is holding a municipal office and state employment, concerning which there is no constitutional or statutory objection. OAG 82-282 .

The executive director of the Kentucky Higher Education Authority must be considered a state employee within the meaning of Ky. Const., § 165 and this section; the same would be true with respect to his serving as executive director to the Kentucky Higher Education Student Loan Corporation pursuant to KRS 164A.050(7). OAG 82-282 .

There is no statutory or constitutional prohibition against a person serving at the same time as a county police officer and as a member of the board of trustees of a fire protection district organized under KRS Ch. 75. OAG 82-304 .

There would be no legal objection to the appointment of a state employee serving in the Department (now Cabinet) for Human Resources, child welfare section, to the electric plant board of a city. OAG 82-318 .

The office of city councilman and that of deputy circuit clerk are incompatible and no one can hold both positions at the same time without violating Ky. Const., § 165 and this section. OAG 82-351 .

Although one of the city commissioners is required to be appointed mayor pro tem pursuant to KRS 83A.140(4), he can only serve as such and in the place of the mayor when the mayor is unable to attend to the duties of the office, and as a consequence he cannot serve as mayor pro tem when a vacancy has occurred. Thus, when a member of the commission is appointed to fill the office of mayor, he automatically vacates his position on the commission, as no person can hold two (2) municipal offices at the same time under Ky. Const., § 165 and this section. OAG 82-397 .

Fire protection district trustees and officers are not state, city or county officers for purposes of this section and Ky. Const., § 165, but would be considered district officers; not only are there no statutory or constitutional prohibitions against a fire district fire chief serving at the same time as a member of the fire district’s board of trustees, but, KRS 75.031(1)(a) requires that two (2) members of the board be elected by the members of the volunteer fire fighters of the district and be members thereof. The General Assembly obviously intended that the interests of the fire fighters be represented on the board since two (2) board members must be members of the district’s fire department. OAG 82-409 .

The fire chief of a fire protection district organized pursuant to KRS Ch. 75 is not prevented by statutory or constitutional provisions from serving at the same time as one of the two (2) required members of the fire department on the fire district’s board of trustees. On those particular occasions where a conflict does occur, the fire chief should remove himself from the proceedings rather than merely abstaining or passing on the matter. OAG 82-409 .

Since the terms of KRS 154.45-001 to 154.45-100 clearly indicate that members of the Enterprize Zone Authority possess the five basic elements required in order to establish their position as a public office and a state office, the Governor cannot appoint county and city officers to the Authority without violating Ky. Const., § 165 and this section; therefore the Kentucky Municipal League and the Kentucky Association of Counties must submit the names of persons who do not hold a city or county office. OAG 82-429 .

There is no legal impediment in connection with the appointment of the secretary of a county judge/executive as deputy county judge/executive. OAG 82-438 .

Being a jailer and a school bus driver at the same time involves no statutory incompatibility. However, it is possible that such dual roles will, in a particular county, present a common law incompatibility in that the jailer may not be able to execute both functions in the manner required by law. OAG 82-452 .

Since employment as a school bus driver is not an office, this section has no application in determining whether or not the office of jailer and the employment as a regular high school bus driver are incompatible. OAG 82-452 .

Due to the fact that the urban county government is a hybrid form of government not contemplated by Ky. Const., § 165 or this section, the officers of such government cannot be considered either county or city officers, and, as a consequence, there would exist no constitutional or statutory incompatibility where an officer or employee of such government was appointed to the enterprise zone authority. OAG 82-482 .

If a city has either established a position of legal advisor as a form of city employment or created the office of city attorney, no one could, at the same time, serve in state office of trial commissioner and serve in the office of city attorney or as a city employee without violating Ky. Const., § 165 and this section. However, if an attorney is employed on a personal service contract basis, he would be considered an independent contractor and there would be no constitutional or statutory objection to his serving as trial commissioner of the District Court. OAG 82-502 .

Since members of the water district commission are neither state, county or city officers, no incompatibility would exist where a person serves as a member of the commission and at the same time serves on the city council; of course where any business develops between the water district and the city concerning which a vote must be taken, the councilman in question should refrain from participating or voting on the matter as this would be against public policy. OAG 82-635 .

No conflict of interest or incompatibility existed where an auxiliary police officer of a city was at the same time a full-time instructor-coordinator of the Department of Training at Eastern Kentucky University; an auxiliary police officer of a city has the same powers as a regular police officer and is, therefore, considered a municipal officer while the position of instructor-coordinator for a department at Eastern Kentucky University would at most be considered a form of state employment. Neither Ky. Const., § 165 nor this section prohibits a state employee from holding a municipal office. OAG 83-29 .

There is no statute prohibiting a night deputy in a jail from serving both as a deputy and radio dispatcher. OAG 83-34 .

While there is nothing in Kentucky law which would prevent a full-time county employee from seeking the office of railroad commissioner, Ky. Const., § 165 and this section and KRS 61.090 would clearly prohibit a county employee from holding both his county position and the office of railroad commissioner simultaneously; it would, therefore, be necessary for the employee to resign the county position in order to assume the office of railroad commissioner if he is elected. OAG 83-66 .

The position of financial secretary to a zoning and planning commission would not constitute a municipal office since there is no statutory authority for creating such position as an office under KRS Chapter 100 which governs planning and zoning; consequently, neither Ky. Const., § 165 nor this section prohibits a municipal officer from holding municipal employment and serving as financial secretary at the same time and receiving compensation from both sources. OAG 83-72 .

The mayor of a city could legally serve as financial secretary to the planning and zoning commission whether it was strictly a city commission or a joint city-county commission. OAG 83-72 .

There was no statutory conflict of interest where a member of the county fiscal court served as a director on the board of a nonprofit corporation with which the county had a contractual arrangement for the contribution of county funds for the operation of a park system, except that KRS 61.220 prohibits members of fiscal court from being interested in claims against the county. OAG 83-98 .

If a municipal utility commission is simply an agency of the city, the city attorney should probably represent both the city and the commission since the utility commission is an agency of the city; if the commission is an independent agency, the attorney could be employed by the commission under a personal service contract which would make him an independent contractor. In neither event would the question of his holding two (2) municipal offices at the same time be involved. OAG 83-119 .

If a member of county fiscal court should apply for and receive a job as a full-time merit system employee, he would be required to resign as a member of the fiscal court since a county employee serves under the management authority of the fiscal court and since KRS 61.220 prohibits a member of fiscal court from being interested, directly or indirectly, in a claim against the county treasury (except for his own salary as a member of fiscal court) and as a county employee, he would have a direct claim against the county treasury. OAG 83-252 .

An employee of a county department of correction does not possess peace officer powers; therefore, there would be no constitutional or statutory objection to his holding the office of chief of police of a city at the same time since he would be a county employee. OAG 83-291 .

Since a private, nonprofit corporation is not a public agency, no statutory or constitutional incompatibility would exist if a member of a city council and a member of the board of directors of an urban renewal agency also served on the board of directors of a nonprofit corporation established to operate a community center in the same city. OAG 83-317 .

Membership on a school board constitutes a state office. OAG 83-318 .

Membership on a county fair board does not constitute a public office, in the sense of being established by or pursuant to a specific statute or the Constitution, which would involve this section or Ky. Const., § 165. OAG 83-318 .

A member of the board of education can at the same time serve as a member of a county fair board. OAG 83-318 .

There is no statutory or constitutional conflict of interest involved where an elected magistrate serves as a special deputy. OAG 83-448 .

A city council member could serve as a paid county employee other than an officer, provided there was no practical or common-law incompatibility; the mere payment for the work performed as an “employee” is not significant in this context. OAG 83-466 .

A city council member is prohibited by subsection (3) of this section from serving at the same time as a deputy jailer. OAG 83-466 .

The offices of city attorney and county attorney are incompatible under the terms of subsection (3) of this section; accordingly, where a city had in fact created the office of city attorney pursuant to the terms of KRS 83A.080(1), and assuming that the individual appointed thereafter to the position of city attorney was in fact the present county attorney, he could continue to legally serve as city attorney but would vacate his position as county attorney under the terms of KRS 61.090 . OAG 83-495 .

The office of deputy coroner and that of city councilman are incompatible under the terms of this section, because a deputy coroner is a county officer with the same powers as those possessed by the coroner which includes peace officer powers. OAG 84-23 .

Where a regular deputy jailer continued to hold her office as a deputy jailer after accepting the office of city councilman, she became a usurper of the office of deputy jailer and the salary paid to her as deputy jailer out of the county treasury should be returned to the county from the beginning date of usurpation to the present. Thus, if she refuses to return the money the county can sue in Circuit Court to recover the compensation paid out of the county treasury while she has been a usurper; the parties defendant should include the usurper, the jailer, and the county treasurer, provided the proof shows that the jailer and county treasurer issued salary checks to the usurper after knowing that she was a usurper, a mere de facto officer. OAG 84-25 .

There was no conflict of interest or incompatibility of offices where the fiscal court magistrates served on the board of directors of a county solid waste corporation which was a nonprofit corporation run under authority of the fiscal court. OAG 84-42 .

There is no incompatibility under this section where the county judge/executive serves on county boards, especially since this section does not prohibit holding at the same time two (2) county offices. OAG 84-46 .

Neither Ky. Const., § 165 nor this section dealing with incompatible offices prohibits a person, who holds a particular office that may or may not be incompatible with the one he seeks, from becoming a candidate for public office; it is only when the person is elected and holds an office that is incompatible with one to which he is elected that Ky. Const., § 165 and this section are affected. OAG 84-101 .

Where a city which had a volunteer fire department had not established the position of fire chief as an office, the position of fire chief could only be considered as a form of employment; accordingly, there was no constitutional or statutory conflict involved when the county magistrate was appointed as fire chief of the city. OAG 84-150 .

While this section does not prohibit the holding of two (2) county offices at the same time, subsection (2) of this section explicitly provides in part that the offices of deputy sheriff and constable are incompatible. OAG 84-171 , modifying OAG 84-31 .

There is no statutory prohibition that would prevent an employee of a county hospital district, established pursuant to KRS 216.310 and related statutes, from becoming a candidate for the General Assembly. OAG 84-204 .

The county judge/executive’s secretary may also hold positions as finance officer or, deputy county judge/executive as well as secretary without violating any statutes; however, the triple function would be subject to the common-law rule which prohibits holding more than one office where the other office and the additional work will not permit the proper performance of all the jobs. OAG 84-253 .

Since an airport board is a joint board, it is a hybrid agency authorized by statute between the cities and county; thus, a municipal officer could be appointed to such board without violating the prohibition against a municipal officer holding any other municipal, county or state office at the same time, as contained in this section and Ky. Const., § 165, provided the appointment is made jointly by the mayor of the other city and the county judge/executive, and the appointee is not present during the voting. OAG 84-384 , modifying OAG 74-755 .

Section 165 of the Constitution and this section do not prohibit a person from holding a state office and state employment at the same time unless the duties are incompatible; thus, the position of member of local board of education would not be incompatible with a position as an instructor at the Hazard Area Vocational School since the local board would have no control over the appointment of the instructor. OAG 85-23 .

A person is not prohibited by subsection (2) of this section from holding at the same time the offices of county coroner and deputy jailer. OAG 85-149 .

A constable may also serve as part-time deputy jailer. OAG 91-84 .

As no statutory incompatibility is established as between the office of deputy jailer, and another county office, it follows that there is no incompatibility under subsection (2) of this section as between the office of constable and that of deputy jailer, assuming that there is no overlapping of governmentally established working hours or pay. OAG 91-84 .

Fiscal court not prohibited from hiring, as a county employee, one also holding the office of constable, to assist in transporting or guarding prisoners as long as there is no statutory incompatibility between the two (2) positions. OAG 91-175 .

One who holds the office of constable cannot simultaneously be employed as either a deputy jailer or deputy sheriff. OAG 91-175 .

The office of deputy sheriff is incompatible with that of constable. OAG 91-181 .

Subject to a constable’s employment being within the scope of approval of the fiscal court pursuant to KRS 64.530 , a proper mechanism for a sheriff’s employment of a constable to assist in patrolling the county could be established. OAG 91-181 .

From the standpoint of the incompatible offices provisions of Ky. Const., § 165 and this section, state officers are not prohibited from holding positions on the boards of directors of the Kentucky Housing Corporation and the Kentucky Higher Education Student Loan Corporation when those officers are holding positions specifically authorized by KRS 198A.030(3) and KRS 164A.050(3), because where a statute provides for the appointment of specifically designated public officers to hold another public office, these public officers hold their second public office in an “ex officio” capacity, which eliminates the possibility of a constitutional or statutory incompatibility. OAG 91-208 .

There is neither statutory nor constitutional incompatibility between the office of deputy sheriff and that of deputy coroner. However, the office of deputy sheriff appears to be incompatible under common law with the office of deputy coroner. Employing a deputy sheriff also as a deputy coroner potentially compromises the independence of a coroner’s inquiry in a death case. OAG 92-116 .

While it would be incompatible for a county attorney to hold, at the same time (either through election or appointment) the office of Commonwealth’s Attorney, it is not a conflict under Ky. Const., § 165 or under this section for the county attorney, on a temporary basis, to assume the duties of the Commonwealth’s Attorney for an interim period until another person can be either appointed or elected to fill the office. OAG 92-162 .

A mayor of a city of the third class is not prohibited by KRS 76.030 , this section or Ky. Const., § 165 from serving on the board of the Louisville and Jefferson County Metropolitan Sewer District. OAG 93-43 .

Since a state motor vehicle enforcement officer is a state officer and a special deputy sheriff is a county officer and since subsection (1) of KRS 61.080 bans one from serving at the same time as a state officer and as an officer of any county, selected motor vehicle enforcement officers may not be appointed as special deputy sheriffs. OAG 93-61 .

A county jail guard (deputy jailer), absent a proper local rule, is not banned from candidacy for office of constable while holding the office of deputy jailer, and a deputy jailer (county jail guard) may also serve as a constable while holding the office of deputy jailer. OAG 93-66 .

Since this section makes two (2) specific deputy positions, but not that of deputy jailer, incompatible with the office of constable, the offices of constable and county jail guard are not incompatable and one could serve as a constable and a county jail guard; however, a constable must not be, on one hand, the arresting officer as constable, and on the other, the booking deputy jailer, of one he has arrested, as conflicting concerns would be present. OAG 93-66 .

While the office of constable and deputy jailer (county jail guard) are not incompatible, a county jail guard could not lawfully use time for which he or she is being paid as a jail guard, or the resources of the jail, to conduct his or her political campaign as such would involve direction of public resources for other than public purposes in violation of Ky. Const., § 171, and would presumably involve official misconduct. OAG 93-66 .

A person employed by an entity, such as the Louisville Waterfront Development Corporation, established jointly by a city, a county and the state, while a public officer or employee, would not for purposes of the incompatible offices provisions be considered a state, county, or city officer or employee; thus, the imcompatible offices provisions would not preclude a person from serving concurrently as a member of the Kentucky General Assembly and as an officer or employee of the Louisville Waterfront Development Corporation. OAG 95-24 .

The position of trustee of the Kentucky Retirement Systems Board is a “State Office” and, therefore, Section 165 of the Kentucky Constitution and KRS 61.080 apply in determining the qualifications of potential board members. OAG 00-7 .

An urban county is a county with an urban county form of government, such that officers of an urban county are county officers for purposes of Section 165 of the Constitution of Kentucky and KRS 61.080 . Therefore, a member of the Lexington-Fayette Urban County Council may not also serve as a division director within the Cabinet for Health and Family Services. OAG 2004-10 .

A state position which is carried out under direct supervision, and which does not exercise a delegated portion of the sovereign power of government, is a position of state “employment” rather than a state “office.” Therefore, the particular Division Director II position in the Cabinet for Health Services (now Health and Family Services) should be classified as one of state “employment,” rather than as a state “office,” for purposes of KRS 61.080(1). OAG 2004-12 .

The position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services is a “state office,” and one who holds that position is a “state officer,” such that one cannot hold that position and lawfully remain a member of the Lexington-Fayette Urban County Council. OAG 2006-02 .

Research References and Practice Aids

Cross-References.

Adjutant general’s office not incompatible with commission in national guard, KRS 36.030 .

County or regional housing member, KRS 80.440 .

Extension board members, except county judge/executive, KRS 164.660.

Incompatible offices, Ky. Const., §§ 165, 237.

Militia, officer in may hold civil office, Ky. Const., § 165.

Notary public may hold other office, Ky. Const., § 165.

Regents for state colleges may hold other public office, KRS 164.321.

Representative, state, Ky. Const., §§ 44, 165.

Restrictions on the right of certain officers to hold other offices:

Artificial gas commission members, KRS 96.545 .

Board for municipal electric plant, KRS 96.740 .

Cities of the first class:

Building commissioners, KRS 98.060 .

Civil service board members, KRS 90.120 .

Waterworks, member of board of, KRS 96.240 .

Cities of the second class:

Bridge commissioner, KRS 181.600 .

Cities of the third class:

Electric and water plant board members, KRS 96.172 .

Generally, Ky. Const., § 165.

Recreational commissioners, KRS 97.120 .

Senator, state, Ky. Const., §§ 44, 165.

Soil and water resources division, director of, KRS 146.100 .

Trustees of University of Kentucky may hold other public office, KRS 164.150.

ALR

Incompatibility, under common-law doctrine, of office of state legislator and position or post in local political subdivision. 89 A.L.R.2d 632.

61.090. Acceptance of incompatible office vacates first.

The acceptance by one (1) in office of another office or employment incompatible with the one (1) he holds shall operate to vacate the first.

History. 3744.

NOTES TO DECISIONS

1.Employment.

Employments are incompatible for the same reasons that offices are incompatible. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

Incompatibility of employment is a question of fact. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

2.Vacation of Office or Employment.

Vacancy in first office resulting from acceptance of incompatible office is not automatic, but must be declared either in a judicial proceeding to which the officer is a party or in a proceeding by the authority who has statutory power to declare and fill the vacancy, of which proceeding the officer must have notice and in which he must have opportunity to be heard. Commonwealth ex rel. Steller v. Livingston, 171 Ky. 52 , 186 S.W. 916, 1916 Ky. LEXIS 298 ( Ky. 1916 ). See Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

A person who continues to hold the first office after acceptance of the incompatible office is a usurper of the first office. Commonwealth ex rel. Steller v. Livingston, 171 Ky. 52 , 186 S.W. 916, 1916 Ky. LEXIS 298 ( Ky. 1916 ); Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

The members of the board of commissioners of the state bar are not officers within the meaning of Const., § 165, this section and KRS 61.080 since the board acts merely in an administrative capacity and as an agency of the Court of Appeals, clothed, under its rules, with power to make investigations and return to the Court of Appeals its findings. Dreidel v. Louisville, 268 Ky. 659 , 105 S.W.2d 807, 1937 Ky. LEXIS 510 ( Ky. 1937 ).

The actual entering upon the performance of the duties of an office is the best evidence of the intent to choose that office. Adams v. Commonwealth, 268 S.W.2d 930, 1954 Ky. LEXIS 931 ( Ky. 1954 ).

Membership on a county board of education was incompatible with the office of county election commissioner, and a school board member who had accepted the office of county election commissioner vacated his membership on the board by the acceptance of the latter office. Adams v. Commonwealth, 268 S.W.2d 930, 1954 Ky. LEXIS 931 ( Ky. 1954 ).

Under a permissible construction of the terms of Const., § 165, this section and KRS 61.080 , the office of Senator and deputy sheriff are incompatible and the acceptance of the second office vacates the first but where, being faced with the question, the Senate adopted a resolution recognizing the deputy sheriff as a duly qualified Senator the adoption did not constitute such a clear violation of the Constitution that the courts should rectify the error and the deputy sheriff is entitled to the compensation and allowances withheld by the state treasurer but the judiciary must assume the Senate in good faith will not knowingly permit violations of other constitutional provisions. Raney v. Stovall, 361 S.W.2d 518, 1962 Ky. LEXIS 246 ( Ky. 1962 ).

3.— Time.

The mere qualifying for an office, the term of which has not yet begun, does not vacate a prior office. Taylor v. Johnson, 148 Ky. 649 , 147 S.W. 375, 1912 Ky. LEXIS 506 ( Ky. 1912 ).

Where person appointed to office of county superintendent of schools in Jackson County accepted appointment to same office in Laurel County, taking of office upon commencement of term in Laurel County would vacate Jackson County office. Chestnut v. Reynolds, 291 Ky. 231 , 163 S.W.2d 456, 1942 Ky. LEXIS 201 ( Ky. 1942 ).

The incompatibility arises and is determined at the time the second office is assumed, the result being that no person becomes ineligible because of the incompatibility of offices “before election.” Commonwealth ex rel. Buckman v. Miller, 272 S.W.2d 468, 1954 Ky. LEXIS 1109 ( Ky. 1954 ).

4.— Notice.

Notice shall be given to affected officer of intention to declare vacancy unless the particular statute renders it unnecessary or the officer fails to perform a condition precedent necessary to his assuming or continuing in office. Renshaw v. Cook, 129 Ky. 347 , 111 S.W. 377, 33 Ky. L. Rptr. 860 , 33 Ky. L. Rptr. 895 , 1908 Ky. LEXIS 165 (Ky. Ct. App. 1908).

5.— Remedies on Refusal to Vacate.

The acceptance of an incompatible office amounts to a resignation of the first office, and an election may be held to fill the vacancy without any judicial proceeding declaring the vacancy to exist but a judicial proceeding may be necessary to oust the incumbent as a usurper, if he refuses to surrender the office. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ). See Commonwealth ex rel. Steller v. Livingston, 171 Ky. 52 , 186 S.W. 916, 1916 Ky. LEXIS 298 ( Ky. 1916 ).

Where a member of a county board of education was an unsuccessful candidate for his party’s nomination to the office of county tax commissioner (now property valuation administrator) for his county and an action was brought to oust him from membership on the board on the grounds that under the terms of KRS 160.180 his office was vacated when he became a candidate, the trial court erred in sustaining a motion to dismiss the complaint, even though the office of tax commissioner is a state office and is not specifically enumerated in KRS 160.180(1)(d) (now (2)(f)). Commonwealth ex rel. Buckman v. Miller, 272 S.W.2d 468, 1954 Ky. LEXIS 1109 ( Ky. 1954 ).

6.— Acts after Vacation.

Even if acceptance of office as member of General Assembly, by a person holding the office of special circuit judge, vacated the latter office on the ground of incompatibility, defendant in civil suit against whom judgment was rendered by special judge could not complain, where special judge was qualified and eligible at the time he began the trial, and no objection was raised by defendant until after judgment had been rendered. O'Mara v. Mt. Vernon, 299 Ky. 401 , 185 S.W.2d 675, 1945 Ky. LEXIS 436 ( Ky. 1945 ).

7.De Facto Membership.

A member of county board of health who became a city trustee did not automatically forfeit and vacate her board membership, and, at the very least, she was a de facto member and was entitled to perform her duties while in possession of the office. Trimble County Fiscal Court v. Trimble County Bd. of Health, 587 S.W.2d 276, 1979 Ky. App. LEXIS 469 (Ky. Ct. App. 1979).

Cited:

Commonwealth ex rel. Baxter v. Burnett, 237 Ky. 473 , 35 S.W.2d 857, 1931 Ky. LEXIS 623 ( Ky. 1931 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Commonwealth ex rel. Breckinridge v. Winstead, 430 S.W.2d 647, 1968 Ky. LEXIS 407 ( Ky. 1968 ).

Opinions of Attorney General.

Incompatibility is determined at the time the second office is assumed. OAG 60-455 .

The city commissioner running for election as mayor, if defeated, would resume his position as city commissioner until the elected mayor took office. OAG 60-636 .

A member of a board of education vacates his office on said board of education when he qualifies and assumes the office of deputy sheriff. OAG 61-942 .

Incompatibility is determined at the time the second office is assumed unless the Legislature has provided otherwise with respect to the qualifications to hold a particular office. OAG 63-130 .

A magistrate vacated his post as magistrate when he accepted full-time employment as manager of the municipal utilities commission of the city, an incompatible office. OAG 65-50 .

An individual may file and run as a candidate for sheriff and still hold the position as chief of police. OAG 68-595 .

The office of circuit clerk and that of city clerk are incompatible when the city clerk assumes the office of circuit clerk but such city clerk may run for the office of circuit clerk and at the same time retain the office of city clerk. OAG 69-88 .

An incompatibility exists when a county district library trustee assumes the office of state representative. OAG 69-163 .

A member of the city commission running for membership on a board of education would not become ineligible for city council until he assumed the school board office. OAG 70-558 .

A person would be prohibited from serving on a county board of health and on the board of education at the same time without forfeiting the first office he held. OAG 70-632 .

Where a city policeman is appointed a deputy sheriff, an incompatibility would exist under KRS 61.080(3) and under this section he would have vacated his office as city policeman; however, if he refused to vacate his office as policeman, a proceeding in court might be necessary to oust him. OAG 71-153 .

Incompatibility is determined at the time the second office is assumed. OAG 71-222 .

Whether or not a city councilman’s acceptance of employment for the city would vacate his office for incompatibility is not a matter for the city council to decide. OAG 71-301 .

A police judge of a city could be a candidate for county judge (now county judge/executive) in the May primary without resigning his office as police judge. OAG 71-378 .

A city councilman-elect could not accept appointment as police chief without resigning or vacating the position of councilman-elect. OAG 71-502 .

Where person holds two (2) incompatible offices vacancy is created in office first held unless that is a federal position over which state is without control but where first office is state or local attorney general could institute KRS 415.050 removal action if person refused to resign. OAG 72-67 .

Incompatibility does not exist until the second office is assumed. OAG 72-426 , 72-459.

Nothing under statute or Constitution prevents a municipal officer from campaigning for another public office whether or not incompatible with the one he holds; the present city tax assessor can continue in office while campaigning for the office of county judge (now county judge/executive) since there would be no incompatibility between the two (2) offices until the assumption of the second office. OAG 73-95 .

Present city prosecuting attorney can continue in office while seeking nomination for the office of state senator since there would be no incompatibility until the assumption of the second office. OAG 73-95 .

Under the Kentucky Constitution and related statutes county policeman can become a candidate for sheriff without incompatibility existing until the office of sheriff is assumed but, if a portion of policeman’s salary is paid by federal funds then the federal civil service commission should be contacted to determine if the candidacy would effect such employment. OAG 73-102 .

Where appointed assistant commonwealth’s attorney campaigns for prosecuting attorney of police court or appointed trial commissioner campaigns for judge of police court, incompatibility or conflict of interest arises only at the time the second office is assumed. OAG 73-165 .

The offices of county deputy coroner and city commissioner of a fourth-class city operating under the commission form of government are incompatible and cannot be held by the same person. OAG 73-807 .

A conflict of interest or incompatibility between offices comes into existence at the time the second office is assumed not when the holder of the first office becomes a candidate for the second. OAG 74-737 .

A deputy sheriff is a county officer and a city councilman is a municipal officer and KRS 61.080 prohibits a person from holding a county office and a city office at the same time and the acceptance by one in office of another office incompatible with the one he holds shall operate to vacate the first but such vacation is not automatic and the city council by a vote of three-fourths of its members, may pursuant to a hearing and for good cause, remove him from office. OAG 74-917 .

Although the offices of common councilman in a city of the third class and circuit court clerk are incompatible in view of KRS 61.080 , there is no statutory or constitutional provision which would prohibit a council member from becoming a candidate for circuit clerk since the incompatibility would not exist, in view of this section, until the council member assumes the office of circuit clerk. OAG 75-292 .

Since membership on a county school board constitutes a state elective office, a person could not hold such position and at the same time continue to serve on the board of supervisors of a soil conservation district. OAG 76-227 .

A person who is employed by a county school board as an elementary supervisor and who is considering running for election to the school board would not be required under constitutional or statutory law to resign the school employment until he assumes the school board office. OAG 76-258 .

Since an incompatibility does not exist until a person assumes the second office and since the office of police judge will be abolished January 2, 1978, there is nothing that would prohibit a police judge from becoming a candidate for the office of sheriff and at the same time continuing to serve in his capacity as police judge. OAG 77-136 .

If a person who was chairman of urban renewal and a member of the board of directors of the housing project were to be elected to city council regardless of whether or not an incompatibility or conflict of interest would exist, if the person in question were elected to city council, the fact that he holds the positions mentioned would in no way affect his right to become a candidate for a public office in the primary and general election and any incompatibility that might exist would not occur until he assumed the office of city council; however, if elected he would become disqualified from serving as a member of the housing commission pursuant to KRS 80.040 and also on the urban renewal agency, if it is operated by the city, since it would constitute a municipal office and KRS 61.080 and Const., § 165 prohibit a person from holding two municipal offices at the same time; but if the urban renewal agency was created as an independent agency under KRS Chapter 99 no incompatibility would exist. OAG 77-244 .

A person would be entitled to retain his position as commonwealth detective while campaigning for sheriff, but if he is elected the initial office would become vacant. OAG 77-284 .

An individual’s candidacy for the District Court would have no legal effect on his continuing to serve as assistant commonwealth attorney up to the time of assuming the judicial office. OAG 77-538 .

There could be no incompatibility between the positions of an employee of an area development district and a candidate for county judge/executive, only between the employee position and the actual office of county judge/executive. OAG 79-727 .

A city council member would not have to resign from his or her position as a council member prior to running for the office of mayor since the incompatibility between the two (2) offices would not exist until the city council member assumed the office of mayor. OAG 80-405 .

An individual employed by a city as director of its community development agency would not be barred from becoming a candidate for the office of mayor because the question of incompatibility does not exist until the person assumes the second office which would be incompatible with his present position. OAG 80-520 .

Since the position of property valuation administrator is a state office, if and when an employee of the county ambulance service assumed the office of property valuation administrator, he must resign from his position with the county. OAG 80-523 .

There is no constitutional or statutory requirement that a county employee resign or take a leave of absence while running for public office since a conflict or incompatibility would not exist until such person assumed the second office that was incompatible with the office or employment that he already held. OAG 80-523 .

Where as a result of redistricting, a senator who was elected from an even-numbered district in 1981 resides in the same, but odd-numbered, district as a senator whose term ends in 1983, nothing precludes the first senator from running in the primary and general elections for the new odd-numbered district seat without first resigning his senate seat; however, if elected in the general election, he must either resign his present office before assuming the new office or refuse the new office on the first day of January. OAG 81-424 .

While there is nothing in Kentucky law which would prevent a full-time county employee from seeking the office of railroad commissioner, Const., § 165 and KRS 61.080 and this section would clearly prohibit a county employee from holding both his county position and the office of railroad commissioner simultaneously; it would, therefore, be necessary for the employee to resign the county position in order to assume the office of railroad commissioner if he is elected. OAG 83-66 .

The offices of city attorney and county attorney are incompatible under the terms of KRS 61.080(3); accordingly, where a city had in fact created the office of city attorney pursuant to the terms of KRS 83A.080(1), and assuming that the individual appointed thereafter to the position of city attorney was in fact the present county attorney, he could continue to legally serve as city attorney but would vacate his position as county attorney under the terms of this section. OAG 83-495 .

This section provides in effect that the acceptance by one in office of another office incompatible with the one he holds shall operate to vacate the first; however, the vacation of the office is not automatic, and if the individual refuses to vacate the office an ouster proceeding must be brought against such individual. OAG 84-23 .

Where a regular deputy jailer continued to hold her office as a deputy jailer after accepting the office of city councilman, she became a usurper of the office of deputy jailer and the salary paid to her as deputy jailer out of the county treasury should be returned to the county from the beginning date of usurpation to the present. Thus, if she refuses to return the money the county can sue in circuit court to recover the compensation paid out of the county treasury while she has been a usurper; the parties defendant should include the usurper, the jailer, and the county treasurer, provided the proof shows that the jailer and county treasurer issued salary checks to the usurper after knowing that she was a usurper, a mere de facto officer. OAG 84-25 .

The position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services is a “state office,” and one who holds that position is a “state officer,” such that one cannot hold that position and lawfully remain a member of the Lexington-Fayette Urban County Council. OAG 2006-02 .

Research References and Practice Aids

Cross-References.

Vacancies, KRS 63.190 to 63.220 .

61.092. Purpose of KRS 61.092 to 61.096. [Amended and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 181, § 1) was amended and reenacted by Acts 1978, ch. 110, § 66, effective January 1, 1979 as KRS 45A.330 .

61.094. Definitions for KRS 61.092 to 61.096. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 181, § 2; 1970, ch. 163, § 1) was repealed and reenacted by Acts 1978, ch. 110, § 67, effective January 1, 1979 as KRS 45A.335 .

61.096. Prohibited conflicts of interest of public officers and employes. [Amended and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 181, §§ 3 to 9; 1974, ch. 261, § 2; 1976, ch. 206, § 29; 1976, ch. 262, § 17) was amended and reenacted by Acts 1978, ch. 110, § 68, effective January 1, 1979 as KRS 45A.340 .

61.097. Involvement of local government officers, employees, and their spouses in contracts for solid waste management facilities — Effect on contract — Penalties.

  1. No elected or nonelected local government officer or employee or a spouse of such an officer or employee shall, directly or indirectly, receive any benefits or emoluments from, furnish any material or other thing of value to be used in, or be interested in, any contract let by waste management districts, counties, cities, or any combination thereof, for a solid waste management facility.
  2. Any contract made and procured in violation of subsection (1) of this section is void. Any elected or nonelected local government officer or employee who violates any provisions of subsection (1) of this section shall be guilty of a Class B misdemeanor, and shall be adjudged to have forfeited any public office or employment which he may hold. An elected or nonelected local government officer or employee’s spouse who violates any provisions of subsection (1) of this section shall be guilty of a Class B misdemeanor.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 34, effective February 26, 1991.

Opinions of Attorney General.

While a city council member could work for a solid waste management firm, that city could not, during the councilman’s term of office, legally contract with the waste management firm of which the councilman is an officer or employee. OAG 91-103 .

This section does not apply to a contract which involves the collecting of trash rather than the operation of a solid waste management facility. OAG 91-195 .

61.098. Practice of law prohibited.

  1. No county clerk or circuit clerk shall maintain a law partnership or association with an attorney-at-law.
  2. No circuit clerk, county clerk, justice of the peace, constable, or recorder shall keep his office with that of an attorney-at-law.

History. Enact. Acts 1976, ch. 58, § 8.

Opinions of Attorney General.

Although this section does not prohibit a Circuit Court Clerk from practicing law, the propriety of permitting the clerk to practice in his own county is a question for the Kentucky Bar Association and the Supreme Court. OAG 93-47 .

61.100. Dueling disqualifies person to hold office.

Any person convicted of sending, accepting or knowingly carrying a challenge, for the purpose described in KRS 437.030 , shall forfeit any office of honor or profit held by him at the time he committed the offense, or when convicted thereof, and shall thereafter be disqualified to hold any such office.

History. 1270.

NOTES TO DECISIONS

Cited:

Commonwealth ex rel. Funk v. Huntsman, 237 S.W.2d 876, 1951 Ky. LEXIS 793 ( Ky. 1951 ).

Research References and Practice Aids

Cross-References.

Oath of officers as to dueling, Const., § 228.

Person sending or accepting challenge to duel is disqualified to hold office; pardon, Const., §§ 239, 240.

61.101. Definitions.

As used in KRS 61.102 and 61.103 , unless the context requires otherwise:

  1. “Employee” means a person in the service of the Commonwealth of Kentucky, or any of its political subdivisions, who is under contract of hire, express or implied, oral or written, where the Commonwealth, or any of its political subdivisions, has the power or right to control and direct the material details of work performance;
  2. “Employer” means the Commonwealth of Kentucky or any of its political subdivisions. Employer also includes any person authorized to act on behalf of the Commonwealth, or any of its political subdivisions, with respect to formulation of policy or the supervision, in a managerial capacity, of subordinate employees; and
  3. “Official request” means a request from members of the Kentucky General Assembly and its employees; members of the Legislative Research Commission and its committees and employees; the Auditor of Public Accounts and his employees; the Attorney General and his employees; the Governor and employees of the Governor’s office; and members of the press.

History. Enact. Acts 1986, ch. 301, § 1, effective July 15, 1986.

NOTES TO DECISIONS

Analysis

1.Public Employees.

Where a state agency employee blew the whistle internally under KRS 61.102 by informing the employer’s in-house counsel that a supervisor was throwing confidential and proprietary files in a dumpster that was accessible to the public in violation of KRS 341.190 , the employer was not entitled to partial summary judgment; however, because KRS 61.101(2) did not impose individual liability, the individual defendants were entitled to partial summary judgment. Gaines v. Workforce Dev. Cabinet, 2005 Ky. App. LEXIS 241 (Ky. Ct. App. Nov. 10, 2005), sub. op., 2005 Ky. App. Unpub. LEXIS 1099 (Ky. Ct. App. Nov. 10, 2005), aff'd, 276 S.W.3d 789, 2008 Ky. LEXIS 300 ( Ky. 2008 ).

District court properly dismissed former local government employee’s claims against local government officials under the Kentucky Whistleblower Act because KRS 61.101(2) did not impose individual civil liability under the Act for reprisal against public employees of the Commonwealth of Kentucky and its political subdivisions. Miller v. Admin. Office of the Courts, 448 F.3d 887, 2006 FED App. 0176P, 2006 U.S. App. LEXIS 12600 (6th Cir. Ky. 2006 ).

Under KRS § 147.660(1), area planning commissions were created as political subdivisions of the Commonwealth and subjected to the Whistleblower Act, KRS 61.101(2); because the Northern Kentucky Area Planning Commission was entitled to governmental immunity, the deputy director enjoyed its protections as well. N. Ky. Area Planning Comm'n v. Cloyd, 332 S.W.3d 91, 2010 Ky. App. LEXIS 7 (Ky. Ct. App. 2010).

Terminated employee failed to state a claim under the Kentucky Whistleblower Act because that Act's protections are limited to employees of public entities and the employee here worked for a private company. Charles v. Print Fulfillment Servs., LLC, 2015 U.S. Dist. LEXIS 132517 (W.D. Ky. Sept. 30, 2015).

In a case in which plaintiff alleged that she was wrongfully terminated from her employment with a university, in violation of the Kentucky Whistleblower Act, a reasonable juror could have found that plaintiff’s supervisor was aware of plaintiff’s criticism and was influenced by them to recommend to a vice president the elimination of plaintiff’s position as retaliation for her whistleblower disclosures. Even if the vice president were personally unaware of the disclosures, they could have reasonably been a factor that influenced the decision to eliminate plaintiff’s position. Harper v. Univ. of Louisville, 559 S.W.3d 796, 2018 Ky. LEXIS 437 ( Ky. 2018 ).

2.Employer.

City employee who alleged that he had been terminated in retaliation for reporting safety issues was not protected by Kentucky’s Whistleblower Act, KRS 61.101 et seq., because the city was not a political subdivision for purposes of KRS 61.101 (2) and therefore was not an employer within the scope of the prohibition against reprisal in KRS 61.102(1). Wilson v. City of Cent. City, 372 S.W.3d 863, 2012 Ky. LEXIS 43 ( Ky. 2012 ).

City employees are not protected by Kentucky’s Whistleblower Act, KRS 61.101 et seq., because cities are not political subdivisions and thus are not employers under KRS 61.101 (2). Wilson v. City of Cent. City, 372 S.W.3d 863, 2012 Ky. LEXIS 43 ( Ky. 2012 ).

Trial court erred in denying a development district's directed verdict motion as to its status under the Kentucky Whistleblower Act where although its statutory origin, Ky. Rev, Stat. Ann. § 65.005(2)(a), defined it as a political subdivision of the state, the employee had not presented sufficient evidence as to what state functions it performed. 2015 Ky. App. LEXIS 18 .

At least as to claims filed before January 1, 2018, an area development district, while a public agency, was not subject to the Kentucky Whistleblower Act because it was not a political subdivision. N. Ky. Area Dev. Dist. v. Wilson, 612 S.W.3d 916, 2020 Ky. LEXIS 460 ( Ky. 2020 ).

Cited:

Thomas v. Grange Mut. Cas. Co., 2004 Ky. App. LEXIS 163 (Ky. Ct. App. 2004), review denied, 2005 Ky. LEXIS 174 ( Ky. 2005 ); Consol. Infrastructure Mgmt. Auth., Inc. v. Allen, 269 S.W.3d 852, 2008 Ky. LEXIS 295 ( Ky. 2008 ); Harris v. Camp Taylor Fire Prot. Dist., 303 S.W.3d 479, 2009 Ky. App. LEXIS 80 (Ky. Ct. App. 2009); Sietsema v. Adams, 2015 Ky. App. LEXIS 116 (Aug. 14, 2015).

Notes to Unpublished Decisions

1.Employer.

Unpublished decision: Since the employees were employed by a municipal corporation, and they were fired after reporting alleged violations committed by that employer, the employees sought to enforce the Kentucky Whistleblower Act, KRS 61.102 against the municipal corporation that fired them. Because the employees engaged in precisely the type of behavior that the Whistleblower Act was designed to protect, and the Kentucky Supreme Court indicated that the statute was enforceable against municipal corporations, the employees could proceed with their claim under the Kentucky Whistleblower Act against the city; therefore, the district court erred in holding that a municipality was not a political subdivision of the state, and, therefore, was not an employer for purposes of Kentucky’s Whistleblower Act, KRS § 61.101-103. Kindle v. City of Jeffersontown, 374 Fed. Appx. 562, 2010 FED App. 0159N, 2010 U.S. App. LEXIS 5320 (6th Cir. Ky. 2010 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Simon, Blowing the Whistle in the Commonwealth, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 28.

61.102. Reprisal against public employee for disclosure of violations of law prohibited — Construction of statute.

  1. No employer shall subject to reprisal, or directly or indirectly use, or threaten to use, any official authority or influence, in any manner whatsoever, which tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the Kentucky Legislative Ethics Commission, the Attorney General, the Auditor of Public Accounts, the Executive Branch Ethics Commission, the General Assembly of the Commonwealth of Kentucky or any of its members or employees, the Legislative Research Commission or any of its committees, members or employees, the judiciary or any member or employee of the judiciary, any law enforcement agency or its employees, or any other appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety. No employer shall require any employee to give notice prior to making such a report, disclosure, or divulgence.
  2. No employer shall subject to reprisal or discriminate against, or use any official authority or influence to cause reprisal or discrimination by others against, any person who supports, aids, or substantiates any employee who makes public any wrongdoing set forth in subsection (1) of this section.
  3. This section shall not be construed as:
    1. Prohibiting an employer from requiring that an employee inform him or her of an official request made to an agency for information, or the substance of testimony made, or to be made, by the employee to legislators on behalf of an agency;
    2. Permitting the employee to leave his or her assigned work area during normal work hours without following applicable law, administrative regulations, rules, or policies pertaining to leave, unless the employee is requested by the Kentucky Legislative Ethics Commission or the Executive Branch Ethics Commission to appear before the commission, or by a legislator or a legislative committee to appear before a legislative committee;
    3. Authorizing an employee to represent his or her personal opinions as the opinions of his or her employer; or
    4. Prohibiting disciplinary or punitive action if an employee discloses information which he or she knows:
      1. To be false or which he or she discloses with reckless disregard for its truth or falsity;
      2. To be exempt from required disclosure under the provisions of KRS 61.870 to 61.884 ; or
      3. Is confidential under any other provision of law.

History. Enact. Acts 1986, ch. 301, § 2, effective July 15, 1986; 1993 (1st Ex. Sess.), ch. 4, § 64, effective September 16, 1993; 2012, ch. 34, § 2, effective July 12, 2012.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

Subsection (1) is not written in such broad sweeping terms as to make it constitutionally vague; a person of ordinary intelligence can understand the intended meaning of the language as well as its appropriate application. Commonwealth Dep't of Agric. v. Vinson, 30 S.W.3d 162, 2000 Ky. LEXIS 129 ( Ky. 2000 ).

2.Inapplicability.

This section was not applicable where a lawsuit filed on behalf of former employee’s son was not intended as a report of information regarding any alleged mismanagement or endangerment of public health and safety, but was rather a simple negligence action. Boykins v. Housing Authority of Louisville, 842 S.W.2d 527, 1992 Ky. LEXIS 159 ( Ky. 1992 ).

Employees of the City of Jeffersontown police department did not have an actionable claim for an alleged violation of the Kentucky Whistleblower Act, KRS 61.102 , because the City was not an employer as defined by the Act since the City was not a political subdivision or agency of the Commonwealth of Kentucky. Kindle v. City of Jeffersontown, 2009 U.S. Dist. LEXIS 1481 (W.D. Ky. Jan. 7, 2009).

City employee who alleged that he had been terminated in retaliation for reporting safety issues was not protected by Kentucky’s Whistleblower Act, KRS 61.101 et seq., because the city was not a political subdivision for purposes of KRS 61.101 (2) and therefore was not an employer within the scope of the prohibition against reprisal in KRS 61.102(1). Wilson v. City of Cent. City, 372 S.W.3d 863, 2012 Ky. LEXIS 43 ( Ky. 2012 ).

In a teacher’s employment dispute with a school board, summary judgment granted to the school board was erroneously reversed by finding a fact issue as to whether the teacher stated a whistleblower claim because the teacher (1) never alleged such a claim by alleging the teacher’s discharge was retaliatory in violation of public policy, and (2) presented no evidence to support such a claim. Knott County Bd. of Educ. v. Patton, 415 S.W.3d 51, 2013 Ky. LEXIS 636 ( Ky. 2013 ).

Employee's report to the IRS of his status for clarification under current tax law did not meet the criteria for protection under the Whistleblower Act where the information he provided was public and the tax laws were known. 2015 Ky. App. LEXIS 18 .

Employee was not entitled to whistleblower protection because the employee's disclosure that the employee had been performing jury pool management duties in addition to being a court administrator did not reveal information that was not publicly known, as the employee had been performing these functions for 25 years. Admin. Office of the Courts v. Miller, 468 S.W.3d 323, 2015 Ky. LEXIS 1750 ( Ky. 2015 ).

Teacher who erroneously reported to a newspaper that a dangerous student was allowed to remain in school was properly terminated since the whistleblower statute protecting persons reporting illegal activity from termination only applied to reports to public bodies and did not apply to the report to the newspaper. Pacheco v. Waldrop, 84 F. Supp. 3d 606, 2015 U.S. Dist. LEXIS 13865 (W.D. Ky. 2015 ).

3.Elements of Crime.

Four (4) elements must necessarily be met in order for the crime to have occurred: (1) the employer must be an officer of the state or one of its political subdivisions; (2) the employee must be a state employee or an employee of a political subdivision; (3) the employee must make a good faith report of a suspected violation of state or local statute or administrative regulation to an appropriate body or authority; and (4) the defendant must be shown to act to punish the employee for making this report or to act in such a manner so as to discourage the making of this report. Woodward v. Commonwealth, 984 S.W.2d 477, 1998 Ky. LEXIS 168 ( Ky. 1998 ).

4.Evidence.

Evidence was sufficient to show that the demotion of a county employee who reported the improvement of a road on privately owned property was a reprimand for his report where the employee had never been disciplined by the county and was considered by others to be a good employee, shortly after the report was made, the employee’s supervisor was ordered by the defendant to order his employees to remain silent about the matter, and, as the issue progressed, the defendant ordered the demotion of the employee and all records from the road department brought to his office. Woodward v. Commonwealth, 984 S.W.2d 477, 1998 Ky. LEXIS 168 ( Ky. 1998 ).

5.University Employee.

Graduate student, who had received a stipend and a fellowship, and who was dismissed from graduate program, was not an employee of the university, even though the university required her to perform extra duties to receive fellowship. Stewart v. Univ. of Louisville, 65 S.W.3d 536, 2001 Ky. App. LEXIS 77 (Ky. Ct. App. 2001).

Where a university professor was engaged by a state agency to perform a research project, the professor’s supervisors within the agency could be considered to be his employers for purposes of the whistleblower statutes, considering the definition of a proper party defendant in KRS 61.103(2) as a “person,” and considering the definition of an employer in KRS 61.101(2) as including “any person.” Cummings v. Cabinet for Families & Children, 2002 Ky. App. LEXIS 1658 (Ky. Ct. App. Aug. 23, 2002).

State university was entitled to summary judgment on a former employee's whistle-blower claim because the employee's complaints regarding unfair treatment by the employee's boss amounted to nothing more than disagreements with a supervisor, and were not actionable. Moreover, the employee's report of the impossible task of reconciling the university's financial accounts was not an initial report and was not protected. Moss v. Ky. State Univ., 465 S.W.3d 457, 2014 Ky. App. LEXIS 179 (Ky. Ct. App. 2014).

In a case in which plaintiff alleged that she was wrongfully terminated from her employment with a university, in violation of the Kentucky Whistleblower Act, a reasonable juror could have found that plaintiff’s supervisor was aware of plaintiff’s criticism and was influenced by them to recommend to a vice president the elimination of plaintiff’s position as retaliation for her whistleblower disclosures. Even if the vice president were personally unaware of the disclosures, they could have reasonably been a factor that influenced the decision to eliminate plaintiff’s position. Harper v. Univ. of Louisville, 559 S.W.3d 796, 2018 Ky. LEXIS 437 ( Ky. 2018 ).

6.Disclosures Covered by Whistleblower Act.

Where a former state employee alleged that the hearing procedures of a state agency were an abuse of authority and violated state law, as both were types of disclosures protected by the Kentucky Whistleblower Act, KRS 61.102 , to the extent that the Circuit Court based its summary judgment in favor of the employer on the belief that KRS 61.102 categorically excluded disclosures made in the course of litigation from protection under the Act, it erred. Davidson v. Commonwealth, 152 S.W.3d 247, 2004 Ky. App. LEXIS 311 (Ky. Ct. App. 2004).

Where a former state employee reported to a Circuit Court that the hearing procedures for a state agency were an abuse of authority and violated state law, but did not report anything about the procedures that was not already known, the Circuit Court properly granted the state employer summary judgment and dismissed the employee’s suit under the Kentucky Whistleblower Act, KRS 61.102 . Davidson v. Commonwealth, 152 S.W.3d 247, 2004 Ky. App. LEXIS 311 (Ky. Ct. App. 2004).

Where a state agency employee blew the whistle internally under KRS 61.102 by informing the employer’s in-house counsel that a supervisor was throwing confidential and proprietary files in a dumpster that was accessible to the public in violation of KRS 341.190 , the employer was not entitled to partial summary judgment; however, because KRS 61.101(2) did not impose individual liability, the individual defendants were entitled to partial summary judgment. Gaines v. Workforce Dev. Cabinet, 2005 Ky. App. LEXIS 241 (Ky. Ct. App. Nov. 10, 2005), sub. op., 2005 Ky. App. Unpub. LEXIS 1099 (Ky. Ct. App. Nov. 10, 2005), aff'd, 276 S.W.3d 789, 2008 Ky. LEXIS 300 ( Ky. 2008 ).

The employee’s letter to superiors, tendered prior to the employee’s dismissal, in which the employee reported on safety violations to the superiors and expressed the employee’s intention to contact the Kentucky Occupational Safety and Health Administration if the problems were not addressed, constituted a disclosure within the meaning of KRS 61.102 and 61.103 . Consol. Infrastructure Mgmt. Auth., Inc. v. Allen, 269 S.W.3d 852, 2008 Ky. LEXIS 295 ( Ky. 2008 ).

The phrase “any other appropriate body or authority,” as provided in KRS 61.102(1), should be read to include any public body or authority with the power to remedy or report a perceived misconduct, including a public employee’s own agency where a public employee is a whistle-blower. Workforce Dev. Cabinet v. Gaines, 276 S.W.3d 789, 2008 Ky. LEXIS 300 ( Ky. 2008 ).

Where a local government employee reported to her superiors that her direct supervisor committed numerous administrative violations, breaches of client confidentiality, and falsified employee records, the employee argued that she was then terminated in violation of Kentucky’s Whistleblower Act, KRS 61.101 et seq. At trial, the jury correctly determined that the employee had reported a violation to an “appropriate body or authority” for purposes of KRS 61.102(1); however, the jury found that the report was not a material factor in her termination, based on a letter from the mayor showing that the employee was terminated because her services were no longer needed. Powers v. Lexington-Fayette Urban County Gov't, 2009 Ky. App. LEXIS 208 (Ky. Ct. App. Oct. 30, 2009).

Pursuant to Kentucky’s Whistleblower Act, KRS 61.101 et seq., “any other appropriate body or authority,” as used in KRS 61.102(1), should be read to include any public body or authority with the power to remedy or report the perceived misconduct. This interpretation serves the goals of liberally construing the Whistleblower Act in favor of its remedial purpose, and of giving words their plain meaning; the most obvious public body with the power to remedy perceived misconduct is the employee’s own agency. Powers v. Lexington-Fayette Urban County Gov't, 2009 Ky. App. LEXIS 208 (Ky. Ct. App. Oct. 30, 2009).

Summary judgment in favor of the employer on the employee’s claim that she was terminated for reporting that her supervisor committed third degree trespass on her property was subject to reversal because there is no rule that government employees are insulated from employer reprisals under the Whistleblower Act, KRS 61.102 , only when they report items that impact issues of public concern. Rogers v. Pennyrile Allied Cmty. Servs., Inc., 2012 Ky. App. LEXIS 288 (Ky. Ct. App. Dec. 14, 2012).

Supreme Court of Kentucky concludes that Ky. Rev. Stat. Ann. § 61.102 does not require an employee's report or disclosure to touch on a matter of public concern. Pennyrile Allied Cmty. Servs. v. Rogers, 459 S.W.3d 339, 2015 Ky. LEXIS 7 ( Ky. 2015 ).

Supreme Court of Kentucky concludes that the protections afforded by Ky. Rev. Stat. Ann. § 61.102 are limited only by the language of the statute and there is no requirement limiting the protections of § 61.102 to disclosures that touch on a matter of public concern. Pennyrile Allied Cmty. Servs. v. Rogers, 459 S.W.3d 339, 2015 Ky. LEXIS 7 ( Ky. 2015 ).

Otherwise at-will employee cannot gain whistleblower status, and the protections that come with that status, by simply complaining to her boss about what she perceives as his misconduct. Pennyrile Allied Cmty. Servs. v. Rogers, 459 S.W.3d 339, 2015 Ky. LEXIS 7 ( Ky. 2015 ).

At-will employee's inquiry, directed to the sheriff's office, for an opinion on the legality of a supervisor's behavior did not constitute a report, disclosure, or divulgence triggering the whistleblower protections of Ky. Rev. Stat. Ann. § 61.102 . Pennyrile Allied Cmty. Servs. v. Rogers, 459 S.W.3d 339, 2015 Ky. LEXIS 7 ( Ky. 2015 ).

At-will employee's confrontation with a supervisor at a staff meeting, expressing her objection to the employee's entry upon her property did not constitute a report, disclosure, or divulgence triggering the whistleblower protections of Ky. Rev. Stat. Ann. § 61.102 where the supervisor's comments comported with neither the statutory language of § 61.102 , nor the purpose underlying the statute, as stated in case law, to discourage wrongdoing in government, and protect those who make such wrongdoing public. Pennyrile Allied Cmty. Servs. v. Rogers, 459 S.W.3d 339, 2015 Ky. LEXIS 7 ( Ky. 2015 ).

District court properly dismissed the employee’s claim under the Kentucky Whistleblower Act because the employee’s complaint to his supervisor about the supervisor’s own misconduct was not protected activity under that statute. Bogart v. Univ. of Ky., 766 Fed. Appx. 291, 2019 U.S. App. LEXIS 7850 (6th Cir. Ky. 2019 ).

District court correctly granted summary judgment in favor of the School Board on the nurses’ whistleblower claims because the nurses only alleged that they reported D.M.’s mother of possible neglect. Critically, they did not allege that they reported any violation of law by the School Board (i.e., their employer) to a state agency; therefore, their whistleblower claims failed under current Kentucky law. Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Schs, 974 F.3d 652, 2020 FED App. 298P, 2020 U.S. App. LEXIS 28242 (6th Cir. Ky. 2020 ).

7.Practice and Procedure.

In a suit under the Kentucky Whistleblower Act, KRS 61.102 , as plaintiff asserted his employer’s investigation of him was done in retaliation for whistleblowing because it was baseless and was designed just to punish him, and he disputed the findings of the investigation, there were genuine issues of material fact regarding the matter; therefore, basing summary judgment on the ground that the employee’s reassignment was justified by the employer’s investigation was error. Davidson v. Commonwealth, 152 S.W.3d 247, 2004 Ky. App. LEXIS 311 (Ky. Ct. App. 2004).

Termination of an EMT did not violate the Kentucky Whistleblower Act, KRS 61.102 , or KRS 205.8465 , as the EMT admitted in his deposition that his reports of alleged Medicare and Medicaid fraud were limited to oral complaints to the director of the county emergency medical services organization and other hospital personnel; because the EMT admittedly made no timely report of the alleged fraud or abuse to a statutorily-designated authority, he did not fall within the whistleblower exception to the terminable at-will doctrine. Miracle v. Bell County Emergency Med. Servs., 237 S.W.3d 555, 2007 Ky. App. LEXIS 235 (Ky. Ct. App. 2007).

Employees were not required to exhaust administrative remedies before bringing a cause of action under the Kentucky Whistleblower Act, KRS 61.102 . Kindle v. City of Jeffersontown, 2009 U.S. Dist. LEXIS 1481 (W.D. Ky. Jan. 7, 2009).

Trial court properly dismissed a police officer’s retaliation claim because the officer could not satisfy the public disclosure element of the Kentucky Whistleblower statute where he conceded that the city’s new overtime policy had been publicly disclosed and approved and had been widely known prior to the date of his grievance, and any alleged illegality with regard to the city’s policy was readily redressable by means of a declaratory action. Helbig v. City of Bowling Green, 371 S.W.3d 740, 2011 Ky. App. LEXIS 294 (Ky. Ct. App. 2011).

8.Good Faith.

Because an employee’s statements were not based on actual knowledge, because no one at the office knew that the employee had reported the alleged misconduct to public officials, and because the employee’s actions did not support, aid, or substantiate a co-worker’s actions, the employee failed to show good faith and did not comply with KRS 61.102 , 61.103 . Thornton v. Office of the Fayette County Atty., 292 S.W.3d 324, 2009 Ky. App. LEXIS 133 (Ky. Ct. App. 2009).

Former employee raised a factual dispute as to whether defendants violated the Kentucky Whistleblower Act because there were unresolved issues of fact regarding whether the employee made her report in good faith. Pacheco v. Waldrop, 72 F. Supp. 3d 738, 2014 U.S. Dist. LEXIS 169824 (W.D. Ky. 2014 ).

9.Issue Preclusion.

Former employee’s whistleblower claim relating to her termination was not barred by issue preclusion because the merits of the claim were not reached by a federal circuit court. A federal district court judge’s findings on whether the employee’s conduct was protected were not necessary to the opinion of the federal circuit court, which was instead based on Cabinet for Families & Children v. Cummings, 163 S.W.3d 425, 2005 Ky. LEXIS 168 (2005).Miller v. Admin. Office of the Courts, 361 S.W.3d 867, 2011 Ky. LEXIS 171 ( Ky. 2011 ).

Cited:

Harris v. Camp Taylor Fire Prot. Dist., 303 S.W.3d 479, 2009 Ky. App. LEXIS 80 (Ky. Ct. App. 2009); Sietsema v. Adams, 2015 Ky. App. LEXIS 116 (Aug. 14, 2015); N. Ky. Area Dev. Dist. v. Wilson, 612 S.W.3d 916, 2020 Ky. LEXIS 460 ( Ky. 2020 ).

Notes to Unpublished Decisions

Analysis

1.Practice and Procedure.

Unpublished decision: Since the employees were employed by a municipal corporation, and they were fired after reporting alleged violations committed by that employer, the employees sought to enforce the Kentucky Whistleblower Act, KRS 61.102 against the municipal corporation that fired them. Because the employees engaged in precisely the type of behavior that the Whistleblower Act was designed to protect, and the Kentucky Supreme Court indicated that the statute was enforceable against municipal corporations, the employees could proceed with their claim under the Kentucky Whistleblower Act against the city; therefore, the district court erred in holding that a municipality was not a political subdivision of the state, and, therefore, was not an employer for purposes of Kentucky’s Whistleblower Act, KRS 61.101-103. Kindle v. City of Jeffersontown, 374 Fed. Appx. 562, 2010 FED App. 0159N, 2010 U.S. App. LEXIS 5320 (6th Cir. Ky. 2010 ).

3.Elements of Crime.

Unpublished decision: District court erred when it dismissed the former employee's whistleblower claim, under the Kentucky Whistleblower Act, because the complaint adequately alleged facts supporting the requisite causation because, at the very least, the timeline of events the employee set forth in his pleadings, and which was detailed in the letters attached as exhibits, suggested that it was plausible that his employment was terminated as a result of his disclosure and subsequent litigation. Cope v. Gateway Area Dev. Dist., Inc., 624 Fed. Appx. 398, 2015 U.S. App. LEXIS 15240 (6th Cir. Ky. 2015 ).

Opinions of Attorney General.

Since Chapter 4 of Acts 1993 (1st Ex. Sess.) contained an emergency clause [§ 92] it became effective as a whole when the Governor tendered the bill, which he had signed, to the Secretary of State on February 18, 1993. However, section 87 (13) of Ch. 4 of Acts 1993 (1st Ex. Sess.), provided that, except as provided in §§ 88, 89, and 90, §§ 1-84 of the Act should become effective two hundred ten (210) days after the effective date of the Act, September 16, 1993; other subsections within § 87 establish a transition schedule with other specific dates calculated from the effective date of the Act. Such schedule is actually a listing of deadlines within which certain actions called for in § 87 of the Act are to be completed. Such schedule is as follows: “within 45 days of the effective date of the act” = on or before April 5, 1993; “within 60 days of the effective date of the act” = on or before April 19, 1993; “within 75 days of the effective date of the act” = on or before May 4, 1993; “within 90 days of the effective date of the act” = on or before May 19, 1993; “within 150 days of the effective date of the act” = on or before July 19, 1993; “within 180 days of the effective date of the act” = on or before August 17, 1993; “two hundred ten (210) days after the effective date of the act” = September 16, 1993. OAG 93-25 .

Research References and Practice Aids

Kentucky Bench & Bar.

Simon, Blowing the Whistle in the Commonwealth, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 28.

Northern Kentucky Law Review.

Hawkins and MacGillivray, A Summary of Kentucky Employment Law Decisions, 21 N. Ky. L. Rev. 357 (1994).

Bales & Burns, A Survey of Kentucky Employment Law, 28 N. Ky. L. Rev. 219 (2001).

Burns & Fischesser, A Survey of Kentucky Employment Law., 31 N. Ky. L. Rev. 85 (2004).

Kentucky Survey Issue: Article: Off-Duty Privacy: How Far Can Employers Go?, 37 N. Ky. L. Rev. 287 (2010).

61.103. Definitions of “disclosure” and “contributing factor” — Civil action by employee authorized — Evidence.

As used in this section, unless the context otherwise requires:

    1. “Disclosure” means a person acting on his own behalf, or on behalf of another, who reported or is about to report, either verbally or in writing, any matter set forth in KRS 61.102 . (1) (a) “Disclosure” means a person acting on his own behalf, or on behalf of another, who reported or is about to report, either verbally or in writing, any matter set forth in KRS 61.102 .
    2. “Contributing factor” means any factor which, alone or in connection with other factors, tends to affect in any way the outcome of a decision. It shall be presumed there existed a “contributing factor” if the official taking the action knew or had constructive knowledge of the disclosure and acted within a limited period of time so that a reasonable person would conclude the disclosure was a factor in the personnel action.
  1. Notwithstanding the administrative remedies granted by KRS Chapters 16, 18A, 78, 90, 95, 156, and other chapters of the Kentucky Revised Statutes, employees alleging a violation of KRS 61.102(1) or (2) may bring a civil action for appropriate injunctive relief or punitive damages, or both, within ninety (90) days after the occurrence of the alleged violation. The action may be filed in the Circuit Court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed resides or has his principal place of business.
  2. Employees filing court actions under the provisions of subsection (2) of this section shall show by a preponderance of evidence that the disclosure was a contributing factor in the personnel action. Once a prima facie case of reprisal has been established and disclosure determined to be a contributing factor to the personnel action, the burden of proof shall be on the agency to prove by clear and convincing evidence that the disclosure was not a material fact in the personnel action.
  3. Any employee who testifies in an official proceeding shall be afforded the same protections and rights as the employee who makes a disclosure as set forth in KRS 61.102 .

History. Enact. Acts 1986, ch. 301, § 3, effective July 15, 1986; 1993 (1st Ex. Sess.), ch. 4, § 65, effective September 16, 1993.

NOTES TO DECISIONS

1.Applicability.

Employee’s whistle-blower claim was not barred by the statute of limitations under KRS 61.103(2) because the limitation applied only to claims for punitive damages and injunctive relief, not to claims for compensatory damages. Claims for compensatory damages and other relief, as made available through KRS 61.990(4), were not subject to this limitation. Consol. Infrastructure Mgmt. Auth., Inc. v. Allen, 269 S.W.3d 852, 2008 Ky. LEXIS 295 ( Ky. 2008 ).

Kentucky Whistleblower Act’s waiver of sovereign immunity applies only in Kentucky state courts and does not waive immunity in federal courts. Akers v. County of Bell, 498 Fed. Appx. 483, 2012 FED App. 0903N, 2012 U.S. App. LEXIS 17384 (6th Cir. Ky. 2012 ).

In a case in which plaintiff alleged that she was wrongfully terminated from her employment with a university, in violation of the Kentucky Whistleblower Act, a reasonable juror could have found that plaintiff’s supervisor was aware of plaintiff’s criticism and was influenced by them to recommend to a vice president the elimination of plaintiff’s position as retaliation for her whistleblower disclosures. Even if the vice president were personally unaware of the disclosures, they could have reasonably been a factor that influenced the decision to eliminate plaintiff’s position. Harper v. Univ. of Louisville, 559 S.W.3d 796, 2018 Ky. LEXIS 437 ( Ky. 2018 ).

2.Qualified Immunity.

Because fired state employee’s state law claims for damages under this section did not invoke any federal law whatsoever, qualified immunity was not an available defense for state-employed defendants responsible for the firing. Gossman v. Allen, 950 F.2d 338, 1991 U.S. App. LEXIS 28984 (6th Cir. Ky. 1991 ).

Where a university professor who had been engaged by a state agency to perform a research project claimed a violation of the whistleblower statutes by the agency and his supervisors within the agency, neither the agency nor the supervisors were entitled to sovereign immunity, as the plain language of the whistleblower law, in KRS 61.103(2), waived such immunity. Cummings v. Cabinet for Families & Children, 2002 Ky. App. LEXIS 1658 (Ky. Ct. App. Aug. 23, 2002).

3.Punitive Damages.

Punitive damages may be awarded separately or in addition to equitable relief and may be awarded in the absence of compensatory damages. Commonwealth Dep't of Agric. v. Vinson, 30 S.W.3d 162, 2000 Ky. LEXIS 129 ( Ky. 2000 ).

4.Amendments to Statute.

The 1993 amendments to the statute, which changed the substantive rights of employees and the obligations of employers, changed the causation and weight of evidence components as to what an employee is required to prove successfully to support a claim under the act, and also required a new burden of proof from the employer in order to successfully defend a claim under the law, did not apply to an action arising from conduct by the defendant that occurred before the effective date of the statute. Commonwealth Dep't of Agric. v. Vinson, 30 S.W.3d 162, 2000 Ky. LEXIS 129 ( Ky. 2000 ).

5.Defendants.

Where a university professor was engaged by a state agency to perform a research project, the professor’s supervisors within the agency could be considered to be his employers for purposes of the whistleblower statutes, considering the definition of a proper party defendant in KRS 61.103(2) as a “person,” and considering the definition of an employer in KRS 61.101(2) as including “any person.” Cummings v. Cabinet for Families & Children, 2002 Ky. App. LEXIS 1658 (Ky. Ct. App. Aug. 23, 2002).

6.Disclosure.

The employee’s letter to superiors, tendered prior to the employee’s dismissal, in which the employee reported on safety violations to the superiors and expressed the employee’s intention to contact the Kentucky Occupational Safety and Health Administration if the problems were not addressed, constituted a disclosure within the meaning of KRS 61.102 and 61.103 . Consol. Infrastructure Mgmt. Auth., Inc. v. Allen, 269 S.W.3d 852, 2008 Ky. LEXIS 295 ( Ky. 2008 ).

Because an employee’s statements were not based on actual knowledge, because no one at the office knew that the employee had reported the alleged misconduct to public officials, and because the employee’s actions did not support, aid, or substantiate a co-worker’s actions, the employee failed to show good faith and did not comply with KRS 61.102 , 61.103 . Thornton v. Office of the Fayette County Atty., 292 S.W.3d 324, 2009 Ky. App. LEXIS 133 (Ky. Ct. App. 2009).

Plaintiffs were denied partial summary judgment on their Kentucky Whistleblower Act claim because plaintiffs pointed to no evidence whatsoever to establish that their report was made in good faith under KRS 61.103(3). Kindle v. City of Jeffersontown, 2011 U.S. Dist. LEXIS 40911 (W.D. Ky. Apr. 13, 2011).

Former Kentucky university employee did not make protected disclosure under the Kentucky Whistleblower Act because the alleged disclosures were made as part of her job in the university/s personnel department. Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 2015 U.S. Dist. LEXIS 2312 (W.D. Ky. 2015 ).

Where a former Kentucky university employee did not make protected disclosure under the Kentucky Whistleblower Act since the alleged disclosures were made as part of her job in the university's personnel department, in any event, none of the disclosures was within such a limited period of time so that a reasonable person could conclude that the disclosure was a factor in the personnel action. Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 2015 U.S. Dist. LEXIS 2312 (W.D. Ky. 2015 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Simon, Blowing the Whistle in the Commonwealth, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 28.

61.110. State officers at capital may retain residence in home district.

State officers who are required, in the discharge of their duties, to remain at the state capital more than three (3) months in each year, may, with their families, temporarily reside at the state capital for any space of time during the term for which they were elected or appointed, without changing or losing their legal and permanent residence in the district and precinct in which they resided at the time of their temporary removal. Such officers and their families shall for all purposes be regarded as residents of the precinct and district from which they removed. In all cases it shall be necessary for the officer so intending to temporarily remove to file and cause to be recorded, in the clerk’s office of the county judge/executive of the county of his residence and in the clerk’s office of the county judge/executive of Franklin County, a statement of such intention.

History. 3761: amend. Acts 1978, ch. 384, § 127, effective June 17, 1978.

Opinions of Attorney General.

Members of the Court of Appeals and other state officers who intend to reside in Frankfort temporarily, or only so long as they hold their positions with the state, and who further intend that upon the termination of their office or other duties with the state, to return to their residence where they are registered and qualified voters and where they maintain some factual evidence of residence, continue to maintain legal residence in their home precinct under the laws of this Commonwealth. OAG 69-250 .

Research References and Practice Aids

Cross-References.

Residence of officer must be in his district, Const., § 234.

Voter residence, rules for determining, KRS 116.035 .

61.120. Salary — Deduction from for failure to perform duty.

  1. If any officer paid in whole or in part out of the State Treasury or by any county fails or neglects to perform his duties, without a good excuse set out in full by his affidavit and certified by order of court to the Finance and Administration Cabinet or other paying officer, there shall be thereafter deducted from his salary such an amount as the total number of days during the year in which he failed or neglected to discharge his duty bears to the whole number of days in the year for which he received compensation. So much of the amount deducted as is necessary shall be applied to the payment of the special officer who performs the duty of the officer so failing.
  2. Before the court enters an order under KRS 61.130 , the court or judge designated in KRS 61.130 shall inform the officer accused of failure to perform or neglect of duty of the accusations and shall conduct a hearing on the accusations. At the conclusion of the hearing, the court or judge shall enter findings of facts and conclusions of law and an appropriate order. Either party may appeal the order to the Court of Appeals in accordance with the Rules of Civil Procedure, and such appeal shall be advanced on the docket for immediate review. Provided, however, that the notice of appeal and order appealed from shall be filed with the clerk of the Court of Appeals within thirty (30) days after the order appealed from was filed with the county clerk or Circuit Court clerk.
  3. The court or judge designated in KRS 61.130 may appoint a hearing commissioner to conduct the hearing authorized by subsection (2) of this section. If a hearing commissioner is appointed, the case shall proceed in accordance with the Rules of Civil Procedure regarding hearing commissioners.

History. 3763: amend. Acts 1990, ch. 419, § 2, effective April 10, 1990.

NOTES TO DECISIONS

1.Common Law Rule Discarded.

Common law rule that right of compensation is incidental to title to public office and not to performing functions of same, thereby entitling officer to receive emoluments under the office even though he performs no duties or services providing he does not abandon the office, was discarded upon adoption of the present Constitution and the enactment of this section and KRS 64.410 . Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

2.Service in Armed Forces.

In light of this section and KRS 64.410 as enacted in conformity to Const., §§ 42, 97, 98, 106, 108, and 235, Commonwealth’s attorney was not entitled to receive emoluments of office while absent therefrom in Army. Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

3.Payment of Officer Performing Duty.

Where members of the city police force provided security services to the District Court the intent of the legislature in enacting this section, KRS 24A.140, 24A.175 and 64.092 was to pay the person or agency performing the service, and thus the city was entitled to receive the funds held by the clerk of the Circuit Court. Baskett v. Radcliff, 709 S.W.2d 463, 1986 Ky. App. LEXIS 1131 (Ky. Ct. App. 1986).

Cited:

Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ).

Opinions of Attorney General.

Even though the jailer’s work is considered unsatisfactory, as long as he attempts to perform the duties in some manner, and as long as he remains in office, his salary cannot be changed during his term. OAG 64-399 .

An affidavit filed by another party after the regular judge’s death to the effect that his absence was caused by incapacitating illness would not be sufficient. OAG 69-660 .

Where a pro tem judge was appointed to serve during the regular judge’s statutory vacation and continued to serve due to the regular judge’s incapacitating illness, the fiscal court was legally responsible for paying the county judge (now county judge/executive) pro tem for his services in that capacity for the period of time he served. OAG 69-660 .

Where, due to incapacitating illness, the regular judge was unable to return to his duties following his statutory vacation and a pro tem judge served in his place, if the regular judge continued to receive his salary during his illness his estate was liable to the county for the money except for that received for the vacation period. OAG 69-660 .

Where a county attorney had been suspended from the practice of law he no longer possessed the qualifications of a county attorney and he must be deemed to have failed to perform his duties under this section and thus the stopping of his salary for such disqualification is authorized under this section. OAG 78-279 .

Where a property valuation administrator fails to perform his duties by working only 40% of the work week, his salary can be reduced pursuant to KRS 132.620 and this section for the period of time for which he is being paid but is not working. OAG 81-197 .

Research References and Practice Aids

Cross-References.

General Assembly to regulate deductions from salaries of officers for neglect, Const., § 235.

61.130. Salary of county attorney, county judge/executive or Commonwealth’s attorney — How deducted.

The county judge/executive shall, by an order entered of record, enforce the provisions of KRS 61.120 as against county attorneys, and the fiscal court shall enforce its provisions as against the county judge/executive. The Circuit Judge shall enforce its provisions as against the Commonwealth’s attorney in his judicial circuit, by an order entered of record, a copy of which shall, as soon as entered, be sent by the clerk of the court to the Finance and Administration Cabinet.

History. 3764: amend. Acts 1976, ch. 62, § 56.

NOTES TO DECISIONS

1.Common Law Rule Discarded.

Common law rule that right of compensation is incidental to title to public office and not to performing functions of same, thereby entitling officer to receive emoluments under the office even though he performs no duties or services providing he does not abandon the office, was discarded upon adoption of the present Constitution and the enactment of this section and KRS 64.410 . Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

2.Service in Armed Forces.

In light of this section and KRS 64.410 as enacted in conformity to Const., §§ 42, 97, 98, 106, 108, and 235, Commonwealth’s Attorney was not entitled to receive emoluments of office while absent therefrom in Army. Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

3.Payment of Officer Performing Duty.

Where members of the city police force provided security services to the District Court the intent of the Legislature in enacting this section, KRS 24A.140, 24A.175 and 64.092 was to pay the person or agency performing the service, and thus the city was entitled to receive the funds held by the Clerk of the Circuit Court. Baskett v. Radcliff, 709 S.W.2d 463, 1986 Ky. App. LEXIS 1131 (Ky. Ct. App. 1986).

Cited:

Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ); Commonwealth v. Bradley, 516 S.W.2d 644, 1974 Ky. LEXIS 134 ( Ky. 1974 ).

Opinions of Attorney General.

An affidavit filed by another party after the regular judge’s death to the effect that his absence was caused by incapacitating illness would not be sufficient. OAG 69-660 .

Where, due to incapacitating illness, the regular judge was unable to return to his duties following his statutory vacation and a pro tem judge served in his place, if the regular judge continued to receive his salary during his illness his estate was liable to the county for the money except for that received for the vacation period. OAG 69-660 .

Where a pro tem judge was appointed to serve during the regular judge’s statutory vacation and continued to serve due to the regular judge’s incapacitating illness, the fiscal court was legally responsible for paying the county judge (now county judge/executive) pro tem for his services in that capacity for the period of time he served. OAG 69-660 .

61.140. Salary of judge of circuit court or Court of Appeals. [Repealed.]

Compiler’s Notes.

This section (3764, 3766) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

61.150. Member of General Assembly — How salary deducted.

The Speaker of the House of Representatives and the President of the Senate shall direct the clerk of the House or Senate, as the case may be, to certify to the Finance and Administration Cabinet the number of days each member of the branch of the General Assembly over which he presides failed to be present without good excuse, and the Finance and Administration Cabinet shall, upon the receipt of such certificate, deduct the per diem for the number of days the member was absent without good excuse from the salary thereafter due the member for services during that session of the General Assembly.

History. 3765.

61.160. Closing public offices.

Public offices in counties containing a city of any class may close any one (1) full day of any week, or any two (2) half days Monday through Saturday of any week.

History. 3766a: amend. Acts 1946, ch. 157; 1954, ch. 113; 1960, ch. 31; 1976, ch. 253, § 1.

NOTES TO DECISIONS

1.Governor’s Office.

Governor’s office may close on Saturday afternoon. Cammack v. Harris, 234 Ky. 846 , 29 S.W.2d 567, 1930 Ky. LEXIS 283 ( Ky. 1930 ).

Opinions of Attorney General.

County offices are required to remain open only five (5) days per week. OAG 61-1021 .

The 1960 amendment permits the closing of public offices on any work day of any week, but said day cannot be divided into two (2) one-half days to be taken on Wednesday and Saturday afternoon. (Decision prior to 1976 amendment.) OAG 61-1021 .

In essence, a five-day work week is required for public offices generally including that of the county treasurer. OAG 69-32 .

The fiscal court has no statutory authority to designate legal holidays. OAG 69-406 .

A circuit clerk may close his office any one work day of the week (Monday through Saturday being a work week). The fiscal court has no authority to enter an order requiring a circuit clerk to keep his office open Monday thru Friday and on Saturday from 8:00 a.m. until 12:00 noon. OAG 70-218 .

Each public officer is to determine the work week schedule by deciding the particular full day that his office may be closed. OAG 70-684 .

Neither the county judge (now county judge/executive) nor the fiscal court has the authority to determine the workweek schedule for county officers. OAG 70-684 .

The closing day cannot be divided into two (2) half days to be taken on different days of the workweek. OAG 70-684 .

County public officials may designate the working day of the week their offices will be closed and the fiscal court has no authority to designate the closing day for such offices. OAG 73-560 .

Each county officer must observe this section and determine the specific closing day for his own office which is then legally closed and no business is required to be conducted on that day. OAG 74-67 .

No statute requires publication of the closing day but publication would be in the public interest. (Decision prior to 1976 amendment) OAG 74-663 .

A work day of any week means every day except Sunday. OAG 74-663 .

Whichever day is chosen, the closing must be for the whole or full day. OAG 74-663 (Decision prior to 1976 amendment).

A closing on Wednesday and Saturday afternoon violates this section. OAG 74-663 (Decision prior to 1976 amendment).

The closing day under this section is left to the discretion of each public official maintaining an office and is not a matter within the discretion of the fiscal court under KRS 67.080(6) (now 67.080(1)(c)) thus any fiscal court ordinance purporting to set the closing day for particular county offices would be wholly illegal and void, even if the ordinance were based upon KRS 67.083 , it would be invalid as being totally in conflict with this section. (Decision prior to 1976 amendment) OAG 74-663 .

Although the statutes do not set out the specific number of hours each week the county treasurer’s office should remain open, under this section and KRS 68.020 the office should be open five (5) days a week and keep reasonable business hours during those days. OAG 75-280 .

This section, when read with KRS 28.030 (repealed), makes it clear that the offices of the circuit and county clerks must remain closed on Sundays and, out of the six-day workweek remaining, each office may close one full working day so that the practical effect of the two (2) sections is to guarantee a five-day workweek for all county offices. OAG 75-464 .

Where county offices are open on a day or portion of a day of the workweek not permitted by this section, the usual proceedings and functioning of such offices will not be rendered invalid by virtue of such statutory violation. OAG 75-499 .

A circuit clerk may at his discretion, if his office is kept open Monday through Friday, close his office on Saturday regardless of the fact that other circuit court offices are kept open on Saturday. OAG 75-573 .

The 1976 amendment expressly permits county offices to elect to close on two (2) half days in one workweek rather than for one whole day. OAG 76-303 .

The official who holds the office determines whether an office will be open on Saturdays. OAG 77-504 .

Since a county office is permitted to close one day a week it can be closed one-half day on two (2) different days. OAG 77-504 .

Where the county dog pound is located on the private premises of the county dog warden pursuant to subsection (1) of KRS 258.195 , the dog warden, as a minor county officer, is required to make his facilities available to the public for the transaction of legitimate business activities at least five (5) days a week for seven (7) to eight (8) hours per day as required by this section. OAG 81-251 .

A county clerk had the authority to authorize his deputies to work in excess of a 40-hour work week, where it was reasonably necessary to carry out his statutory duties. KRS 337.285 mandates the payment of overtime (time and a half) where the deputy works longer than a 40-hour week and the overtime payment must come from the same source that the regular salary comes from; in the case of the county clerk, such payment would come from the fees of the office, or from the county treasury, or from a combination of both sources. OAG 82-478 .

All county offices are on a five-day work week basis under this section. OAG 82-478 .

Research References and Practice Aids

Cross-References.

Sheriff’s office to be kept open, when, KRS 134.160 .

ALR

Vacations and holidays, right of public employees as regards. 134 A.L.R. 195.

61.165. Smoking policy for governmental office buildings or workplaces and postsecondary education institutions.

  1. Except as otherwise specified for the Capitol and Capitol Annex in KRS 61.167 , a policy for smoking in governmental office buildings or workplaces shall be adopted by state government. This policy shall apply to all state-owned or state-operated office buildings, workplaces, and facilities, including but not limited to state-operated hospitals and residential facilities for the intellectually disabled, state-operated veterans’ nursing homes and health facilities, and any correctional facility owned by, operated by, or under the jurisdiction of the state.
  2. Except as otherwise specified for the Capitol and Capitol Annex in KRS 61.167 , any policy relating to smoking in state office buildings or workplaces shall be by executive order of the Governor or action of the General Assembly, and shall:
      1. Require the governmental authority to provide accessible indoor smoking areas in any buildings where smoking is otherwise restricted; and (a) 1. Require the governmental authority to provide accessible indoor smoking areas in any buildings where smoking is otherwise restricted; and
      2. Favor allowing smoking in open public areas where ventilation and air exchange are adequate and there are no restrictions otherwise placed on the area by the state fire marshal or other similar authority; or
    1. Prohibit indoor smoking.
  3. Except as otherwise specified for the Capitol and Capitol Annex in KRS 61.167 , a policy for smoking in governmental office buildings or workplaces may be adopted by county, municipal, special district, urban-county, charter county, or consolidated local governments. Any policy adopted under this subsection may apply to any office buildings, workplaces, or facilities that are owned by, operated by, or under the jurisdiction of that government, including but not limited to jails and detention facilities. Any policy relating to smoking in governmental office buildings or workplaces of counties, municipalities, special districts, urban-county governments, charter county governments, or consolidated local governments shall be adopted in writing by the legislative body of the government and shall:
      1. Require the government authority to provide accessible indoor smoking areas in any buildings where smoking is otherwise restricted; and (a) 1. Require the government authority to provide accessible indoor smoking areas in any buildings where smoking is otherwise restricted; and
      2. Favor allowing smoking in open public areas where ventilation and air exchange are adequate and there are no restrictions otherwise placed on the area by the state fire marshal or other similar authority; or
    1. Prohibit indoor smoking.
  4. Each board of regents or trustees for each of the state postsecondary education institutions shall adopt a written policy relating to smoking in all buildings owned by, operated by, or under the jurisdiction of the state postsecondary education institutions that shall:
      1. Provide accessible indoor smoking areas in any buildings where smoking is otherwise restricted; and (a) 1. Provide accessible indoor smoking areas in any buildings where smoking is otherwise restricted; and
      2. Favor allowing smoking in open public areas where ventilation and air exchange are adequate and there are no restrictions otherwise placed on the area by the state fire marshal or other similar authority; or
    1. Prohibit indoor smoking.

History. Enact. Acts 1994, ch. 480, § 1, effective July 15, 1994; 2004, ch. 72, § 2, effective July 13, 2004; 2006, ch. 115, § 1, effective July 12, 2006; 2010, ch. 141, § 6, effective July 15, 2010.

Opinions of Attorney General.

KRS 438.050 dealing with smoking on school premises directly conflicts with this section which requires governmental buildings that have adopted a policy limiting smoking to provide an indoor smoking room. KRS 438.050 controls because it is the more specific statute; therefore, KRS 61.165 , which requires that indoor smoking areas be provided in governmental buildings where smoking is restricted, does not apply to school districts. OAG 94-52 .

61.167. Smoking prohibited in public areas of Capitol and Capitol Annex — “Public area” defined — Each branch may designate smoking areas — Requirements for smoking area.

  1. As of July 13, 2004, there shall be no smoking in public areas of the Capitol or Capitol Annex, except as permitted in subsection (2) of this section. For purposes of this section, “public area” means any hallway, office shared by more than one (1) person, stairwell, restroom, meeting room, cafeteria, or conference room.
  2. The governing authority for each branch of state government, each in regard to space allocated to and occupied by that respective branch of state government, may designate one (1) or more smoking areas in the Capitol and one (1) or more smoking areas in the Capitol Annex. Each smoking area shall be an enclosed area that is not a public area, is clearly designated as a smoking area, and is maintained by a ventilation system that does not disburse the smoke or smoke byproducts into any other area of the Capitol or Capitol Annex.

History. Enact. Acts 2004, ch. 72, § 1, effective July 13, 2004.

61.168. Body-worn cameras and video and audio recordings — Disclosure, retention, and availability for viewing governed by KRS 61.870 to 61.884 and 171.410 to 171.740 — Exceptions.

  1. As used in this section:
    1. “Body-worn camera” means a video or audio electronic recording device that is carried by or worn on the body of a public safety officer. This definition does not include a dashboard mounted camera or recording device used in the course of clandestine investigations;
    2. “Body-worn camera recording” or “recording” means a video or audio recording, or both, that is made by a body-worn camera during the course of a public safety officer’s official duties;
    3. “Personal representative” means a court-appointed guardian, attorney, or agent possessing written authorization to act on behalf of a person that is involved in an incident contained in a body-worn camera recording, a person holding a power of attorney for a person that is involved in an incident contained in a body-worn camera recording, or the parent or guardian of a minor child depicted in a body-worn camera recording. If a person depicted in the recording is deceased, the term also means the personal representative of the estate of the deceased person, the deceased person’s surviving spouse, parent, or adult child, the deceased person’s attorney, or the parent or guardian of a surviving minor child of the deceased;
    4. “Public agency” has the same meaning as in KRS 61.870(1);
    5. “Public safety officer” means any individual that is an employee of a public agency who is certified as a first responder under KRS Chapter 311A or whose employment duties include law enforcement or firefighting activities; and
    6. “Use of force” means any action by a public safety officer that results in death, physical injury as defined in KRS 500.080(13), discharge of a personal body weapon, chemical agent, impact weapon, extended range impact weapon, sonic weapon, sensory weapon, conducted energy weapon, or a firearm, or involves the intentional pointing of a public safety officer’s firearm at a member of the public.
  2. Except as provided in this section, the disclosure of body-worn camera recordings shall be governed by the Kentucky Open Records Act, as set forth in KRS 61.870 to 61.884 .
  3. The retention of body-worn camera video recordings shall be governed by KRS 171.410 to 171.740 , and the administrative regulations promulgated by the Kentucky Department of Libraries and Archives.
  4. Notwithstanding KRS 61.878(4), unless the request meets the criteria provided under subsection (5) of this section, a public agency may elect not to disclose body-worn camera recordings containing video or audio footage that:
    1. Includes the interior of a place of a private residence where there is a reasonable expectation of privacy, unless the legal owner or lessee with legal possession of the residence requests in writing that the release be governed solely under the provisions of KRS 61.870 to 61.884 ;
    2. Includes the areas inside of a medical facility, counseling, or therapeutic program office where a patient is registered to receive treatment, receiving treatment, waiting for treatment, or being transported in the course of treatment;
    3. Would disclose health care information shared with patients, their families, or with a patient’s care team or that is considered protected health information under the Health Insurance Portability and Accountability Act of 1996;
    4. Includes the areas inside of a correctional facility when disclosure would reveal details of the facility that would jeopardize the safety, security, or well-being of those in custody, the staff of the correctional facility, or law enforcement officers;
    5. Is of a sexual nature or video footage that contains nude images of an individual’s genitals, pubic area, anus, or the female nipple;
    6. Is of a minor child, including but not limited to footage involving juvenile custody matters;
    7. Includes the body of a deceased individual;
    8. Would reveal the identity of witnesses, confidential law enforcement informants, or undercover law enforcement officers, or if the release could jeopardize the safety, security, or well-being of a witness or confidential informant;
    9. Would reveal the location information of a domestic violence program or emergency shelter;
    10. Would reveal information related to schools, colleges, and universities that is protected by the federal Family Educational Rights and Privacy Act;
    11. Would result in the disclosure of nonpublic or confidential data classified as Criminal Justice Information Services data by the Federal Bureau of Investigation;
    12. Includes a public safety officer carrying out duties directly related to the hospitalization of persons considered mentally ill;
    13. Includes the depiction of the serious injury or death of a public safety officer; or
    14. Includes footage made in conjunction with a law enforcement exercise that includes special response team actions, hostage negotiations, or training events, but only where the public release of tactics, operational protocol, or methodology would disadvantage the capability of public safety officers to successfully respond in emergency or other dangerous situations.
  5. If the recording contains video or audio footage that:
    1. Depicts an encounter between a public safety officer where there is a use of force, the disclosure of the record shall be governed solely by the provisions of KRS 61.870 to 61.884 , including all of the exceptions contained therein;
    2. Depicts an incident which leads to the detention or arrest of an individual or individuals, the disclosure of the record shall be governed solely by the provisions of KRS 61.870 to 61.884 , including all of the exceptions contained therein;
    3. Depicts an incident which is the subject of a formal complaint submitted against a public safety officer under KRS 15.520 , 67C.326 , or 95.450 , or depicts an incident which is the subject of a formal legal or administrative complaint against the agency employing the public safety officer, the release of the record shall be governed by the provisions of KRS 61.870 to 61.884, including all of the exceptions contained therein; or
    4. Is requested by a person or other entity or the personal representative of a person or entity that is directly involved in the incident contained in the body-worn camera recording, it shall be made available by the public agency to the requesting party for viewing on the premises of the public agency, but the public agency shall not be required to make a copy of the recording except as provided in KRS 61.169 . The requesting parties shall not be limited in the number of times they may view the recording under this paragraph.
  6. Nothing in this section or KRS 61.169 shall be interpreted to override any provision related to:
    1. Reports by law enforcement officers and criminal justice agencies under KRS 17.150 ;
    2. The law and rules governing discovery or the submission and display of evidence in any court proceeding, whether criminal or civil, or any administrative proceeding; or
    3. The provisions of KRS 189A.100 .

HISTORY: 2018 ch. 139, § 1, effective July 14, 2018.

NOTES TO DECISIONS

Cited in:

Parish v. Petter, 608 S.W.3d 638, 2020 Ky. App. LEXIS 100 (Ky. Ct. App. 2020).

61.169. Attorney representing person or entity involved in body-worn camera recording incident — Right to view copy of recording — Limitations — Sanctions.

  1. Subject to the provisions of KRS 61.870 to 61.884 and the following requirements, a copy of a recording that may be viewed under KRS 61.168(5)(d) shall, upon request, be made for and provided to an attorney that:
    1. Is licensed to practice law in the Commonwealth of Kentucky;
    2. Represents the person or entity that is directly involved in the incident contained in the body-worn camera recording;
    3. Has not been disqualified under subsection (3) of this section; and
    4. Executes an affidavit in support of limited release regarding the attorney’s responsibility for the care and custody of the copy of the recording that specifically stipulates that he or she:
      1. Will only use the recording for the sole purposes of evaluating or preparing for an existing or potential court case or administrative proceeding or in consulting with insurance companies on matters related to insurance coverage of incidents that are depicted in the recording;
      2. Will not distribute duplicate copies of the recording except for the sole purpose of having an expert or other professional consultant provide analysis to the attorney for the purposes of evaluating or preparing for an existing or potential court case or administrative proceeding or with an insurance company for the purposes of accessing claims coverage, settlement, or other matters involving an insurance contract;
      3. Will execute a contract with any expert, professional consultant, or insurance company that is provided a duplicate copy of the recording pursuant to this paragraph that requires the expert or professional consultant to be bound by the same limitations and requirements as the attorney for the care and custody of the recording as required by this paragraph;
      4. Will not allow individuals or others that are not under the attorney’s control or supervision the ability to view the contents of the recording in any form except for the sole purpose of preparation for an existing or potential court or administrative proceeding, communications regarding matters related to insurance, or for the purposes of displaying the recording as evidence in any court or administrative proceeding;
      5. Will destroy any copy of the recording when the recording is no longer used for the purposes of this section or the court or administrative proceeding has been finally adjudicated to its conclusion; and
      6. Acknowledges that as an officer of the court, he or she may be subject to professional discipline or other legal liability for a breach of an affidavit executed under this section.
  2. If an attorney violates an affidavit executed under subsection (1) of this section, the public agency shall refer the matter to the Kentucky Bar Association for it to consider any appropriate action under the Kentucky Rules of Professional Conduct. The public agency may take any additional legal action against an attorney for such a violation.
  3. Any attorney who has been disciplined under the Rules of Professional Conduct or has otherwise been found by a court of law to have violated an affidavit executed under subsection (1) of this section shall be disqualified from making any subsequent requests for copies of recordings under the provisions of this section.
  4. A public agency that produces a copy of a recording pursuant to this section may treat the request for the recording as a commercial request and charge a reasonable fee for the costs of production as authorized under KRS 61.874(4)(c).

HISTORY: 2018 ch. 139, § 2, effective July 14, 2018.

NOTES TO DECISIONS

Cited in:

Parish v. Petter, 608 S.W.3d 638, 2020 Ky. App. LEXIS 100 (Ky. Ct. App. 2020).

61.170. Malfeasance or neglect of county officers — Penalty.

  1. County judges/executive, justices of the peace, sheriffs, coroners, surveyors, jailers, county attorneys, and constables may be indicted in the county in which they reside for misfeasance or malfeasance in office, or willful neglect in the discharge of official duties, and if convicted they shall be fined not less than one hundred ($100) nor more than one thousand dollars ($1,000), and the judgment of conviction shall declare the office held by such person vacant.
  2. Any sheriff, deputy sheriff, policeman, or other peace officer who fails to enforce any provision of KRS Chapter 242 after receiving information of a violation thereof, or having knowledge of a violation thereof and failing to act thereon, may be indicted for nonfeasance or malfeasance in office, and if convicted shall be fined not less than fifty ($50) nor more than two hundred dollars ($200), and the judgment of conviction shall declare the office held by such person vacant.
  3. In the absence of good cause shown, a member of the fiscal court who fails to attend fifty percent (50%) of the regular terms of the fiscal court within a six (6) month period or who fails to attend two (2) consecutive terms of the fiscal court shall be charged with neglect of office and upon conviction shall forfeit his office.

History. 2554c-31, 3748: amend. Acts 1988, ch. 328, § 2, effective July 15, 1988; 1998, ch. 121, § 32, effective July 15, 1998.

NOTES TO DECISIONS

1.Malfeasance.

Failure of justice of the peace to report or account for fines constitutes malfeasance. Short v. Commonwealth, 187 Ky. 279 , 219 S.W. 165, 1920 Ky. LEXIS 111 ( Ky. 1920 ).

“Malfeasance” is the doing of an act which a person ought not to do. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ); Robbins v. Commonwealth, 232 Ky. 115 , 22 S.W.2d 440, 1929 Ky. LEXIS 403 ( Ky. 1929 ).

Trial court did not abuse its discretion in overruling motion for a continuance made by a justice of peace charged with malfeasance in office where an affidavit of the justice of peace containing the substance of the testimony of the two absent witnesses was permitted to be read to the jury as the testimony of the two absent witnesses without requiring the Commonwealth to admit the truth of such affidavit. Fannin v. Commonwealth, 331 S.W.2d 726, 1960 Ky. LEXIS 128 ( Ky. 1960 ).

Evidence was sufficient to sustain conviction of justice of peace for malfeasance in office where he admitted he retained money paid in settlement of a case in court to offset an accumulated debt of court costs owing by plaintiff in several other cases filed in his court but presented no documentary evidence of any indebtedness owed him by the plaintiff and the Commonwealth offered a receipt which was strong proof that some of the costs had actually been collected from the persons sued. Fannin v. Commonwealth, 331 S.W.2d 726, 1960 Ky. LEXIS 128 ( Ky. 1960 ).

Malfeasance, as a ground for the removal of a public officer, has reference to evil conduct or an illegal deed, the doing of that which one ought not to do, the performance of an act by an officer in his official capacity that is wholly illegal and wrongful. Fannin v. Commonwealth, 331 S.W.2d 726, 1960 Ky. LEXIS 128 ( Ky. 1960 ).

The general term “malfeasance” means the wrongful or unjust doing of some act which the doer has no right to perform. However, the more specific term “malfeasance in office” means the wrongful or unjust doing of some official act, which the doer, a public official, has no right to perform and has done so with gross negligence or evil intent. Bailey v. Commonwealth, 790 S.W.2d 233, 1990 Ky. LEXIS 52 ( Ky. 1990 ).

The definition of malfeasance does not require a showing of evil intent. Woodward v. Commonwealth, 984 S.W.2d 477, 1998 Ky. LEXIS 168 ( Ky. 1998 ).

Evidence was sufficient to show malfeasance by a county judge executive where he directed the county road department supervisor to improve a road on a citizen’s property, even after the supervisor told him that the road was not part of the county system. Woodward v. Commonwealth, 984 S.W.2d 477, 1998 Ky. LEXIS 168 ( Ky. 1998 ).

2.— Indictment.

Impeachment under Const., § 68 is not prerequisite to indictment for malfeasance. Commonwealth v. Rowe, 112 Ky. 482 , 66 S.W. 29, 23 Ky. L. Rptr. 1718 , 1902 Ky. LEXIS 183 ( Ky. 1902 ).

Indictment for malfeasance charges but one offense although several acts constituting malfeasance are mentioned therein, each of which might have constituted a separate offense had the Commonwealth so elected. Short v. Commonwealth, 187 Ky. 279 , 219 S.W. 165, 1920 Ky. LEXIS 111 ( Ky. 1920 ).

Indictment charging that after judge had been duly elected and properly inducted into office he unlawfully, willfully, corruptly, and maliciously issued a warrant of arrest without a proper affidavit on which to base said warrant and that such warrant was without foundation of law was sufficient to charge acts constituting malfeasance. Robbins v. Commonwealth, 232 Ky. 115 , 22 S.W.2d 440, 1929 Ky. LEXIS 403 ( Ky. 1929 ).

Indictment charging coroner with wrongfully, corruptly, knowingly and feloniously holding an inquest when under the circumstances he had no right under the statutes to hold such an inquest sufficiently charged the offense of malfeasance in office. Fuson v. Commonwealth, 241 Ky. 481 , 44 S.W.2d 578, 1931 Ky. LEXIS 135 ( Ky. 1931 ).

3.— Punishment.

Prosecutor may elect whether to prosecute under statute or for common-law offense; but, if elements are identical, punishment is limited by the statute. Commonwealth v. Rowe, 112 Ky. 482 , 66 S.W. 29, 23 Ky. L. Rptr. 1718 , 1902 Ky. LEXIS 183 ( Ky. 1902 ).

4.— Change Not Substantiated.

Court erroneously convicted a county judge executive of malfeasance and official misconduct in the first degree for making very personal and admittedly false accusations against a county attorney during a fiscal court meeting presided over by the judge. Bailey v. Commonwealth, 790 S.W.2d 233, 1990 Ky. LEXIS 52 ( Ky. 1990 ).

5.Misfeasance.

“Misfeasance in office” refers only to misconduct in connection with official duties. Commonwealth v. Williams, 79 Ky. 42 , 1 Ky. L. Rptr. 316 , 1880 Ky. LEXIS 85 ( Ky. 1880 ).

“Misfeasance in office” is the performance of a lawful act in an unlawful manner. Commonwealth v. Williams, 79 Ky. 42 , 1 Ky. L. Rptr. 316 , 1880 Ky. LEXIS 85 ( Ky. 1880 ); Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

Intention to do a wrong is an essential ingredient of this offense. Mere ignorance, inadvertence or mistake is not sufficient. Commonwealth v. McPeek, 20 S.W. 220, 14 Ky. L. Rptr. 215 (1892); Commonwealth v. Chinn, 110 Ky. 527 , 62 S.W. 7, 22 Ky. L. Rptr. 1921 , 1901 Ky. LEXIS 107 ( Ky. 1901 ); Lynch v. Commonwealth, 115 Ky. 309 , 73 S.W. 745, 24 Ky. L. Rptr. 2180 , 1903 Ky. LEXIS 96 ( Ky. 1903 ); Commonwealth v. Wood, 116 Ky. 748 , 76 S.W. 842, 25 Ky. L. Rptr. 1019 , 1903 Ky. LEXIS 243 ( Ky. 1903 ); Quinn v. Hendren, 187 Ky. 283 , 218 S.W. 1022, 1920 Ky. LEXIS 112 ( Ky. 1920 ); Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ); Robbins v. Commonwealth, 232 Ky. 115 , 22 S.W.2d 440, 1929 Ky. LEXIS 403 ( Ky. 1929 ).

“Misfeasance in office” is the wrongdoing of an official act with an evil intent, or accompanied by such gross negligence as to be equivalent to fraud. Commonwealth v. Wood, 116 Ky. 748 , 76 S.W. 842, 25 Ky. L. Rptr. 1019 , 1903 Ky. LEXIS 243 ( Ky. 1903 ); Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

Procuring by justice of the peace of a false affidavit constitutes misfeasance. Black v. Commonwealth, 250 Ky. 547 , 63 S.W.2d 598, 1933 Ky. LEXIS 727 ( Ky. 1933 ).

6.Willful Neglect.

Failure of fiscal court to keep roads in repair constitutes willful neglect. Commonwealth v. Boyle County Fiscal Court, 113 Ky. 325 , 68 S.W. 116, 24 Ky. L. Rptr. 234 , 1902 Ky. LEXIS 47 ( Ky. 1902 ).

Evidence of drunkenness and disorderly conduct is competent so far as it may affect willful neglect. Sanders v. Commonwealth, 249 Ky. 225 , 60 S.W.2d 586, 1933 Ky. LEXIS 502 ( Ky. 1933 ). See Commonwealth v. Williams, 79 Ky. 42 , 1 Ky. L. Rptr. 316 , 1880 Ky. LEXIS 85 ( Ky. 1880 ).

Repeated absence from place of duty is willful neglect. Sanders v. Commonwealth, 249 Ky. 225 , 60 S.W.2d 586, 1933 Ky. LEXIS 502 ( Ky. 1933 ).

Failure of justice of peace to prepare search warrant as requested by complaining officers was not willful neglect of duty under this section since KRS 242.370 makes it the duty of the justice of peace to file the affidavit when presented and the evidence showed that no affidavit was presented to him to be filed. Wells v. Commonwealth, 329 S.W.2d 210, 1959 Ky. LEXIS 154 ( Ky. 1959 ).

7.— Indictment.

That indictment for wilful neglect charges several instances of neglect is not fatal. Sanders v. Commonwealth, 249 Ky. 225 , 60 S.W.2d 586, 1933 Ky. LEXIS 502 ( Ky. 1933 ).

8.Fiscal Court.

Fiscal court members are not punishable criminally for the exercise of judicial discretion in passing on claims, even though they act erroneously. Henry v. Commonwealth, 126 Ky. 357 , 103 S.W. 371, 31 Ky. L. Rptr. 760 , 1907 Ky. LEXIS 52 ( Ky. 1907 ).

9.Local Option Laws.

Statement by sheriff to deputy in local option area that liquor was being stored on plaintiff’s premises and was being illegally sold thereon, followed by issuance of search warrant and unsuccessful search for liquor, was an absolute privileged communication barring plaintiff’s action for slander, since the subject to which the slanderous words related was the local option law, which the officers had the duty of vigorously enforcing. Catron v. Jasper, 303 Ky. 598 , 198 S.W.2d 322, 1946 Ky. LEXIS 908 ( Ky. 1946 ).

10.Appeal.

A convicted officer may appeal to the Court of Appeals, and supersede the judgment both as to the fine and the forfeiture of office, which superseding is effective as of the date of execution of bond, as a result the officer may continue the performance of his duties pending the outcome of the appeal. Hazelrigg v. Douglass, 126 Ky. 738 , 104 S.W. 755, 31 Ky. L. Rptr. 1121 , 1907 Ky. LEXIS 94 ( Ky. 1907 ).

Cited:

Hughes v. Ramey, 305 Ky. 128 , 203 S.W.2d 63, 1947 Ky. LEXIS 797 ( Ky. 1947 ); Goodman v. Commonwealth, 301 S.W.2d 2, 1957 Ky. LEXIS 478 ( Ky. 1957 ); Shearer v. Hall, 399 S.W.2d 701, 1965 Ky. LEXIS 31 ( Ky. 1965 ); Whitaker v. Commonwealth, 487 S.W.2d 901, 1972 Ky. LEXIS 78 ( Ky. 1972 ); Woodward v. Commonwealth, 949 S.W.2d 599, 1997 Ky. LEXIS 75 ( Ky. 1997 ).

Opinions of Attorney General.

County road equipment may not work on private roads, with or without compensation, as the fiscal court is only authorized to provide for the good condition of highways and the responsibility for such illegal use rests upon the individual members of the fiscal court. OAG 68-86 ; OAG 73-290 .

The fiscal court cannot grant leave of absence to a county coroner who voluntarily accepts employment overseas with the department of the army as a civilian embalmer as the prolonged absence might subject the coroner to claims of abandonment or neglect of his office and no statutory authority exists for granting such leave. OAG 69-239 .

A prolonged absence of the coroner from the state could subject her to a claim of abandonment or neglect of office. OAG 71-446 .

Absent indictment, there is no statutory authority for a grand jury report on misfeasance, malfeasance and negligence of fiscal court members regarding courthouse and road repair. OAG 72-88 .

Where the jailer failed to arrest a drunk who was then run over by a car, the duty to arrest is to the public and not to the drunk, so that jailer may be indicted for wilful neglect in discharge of his official duties under this section or Const., § 227. OAG 73-163 .

If a judge refuses to hear the evidence before dismissing a charge against a juvenile, he may be guilty of misfeasance and subject to indictment upon presentment of the evidence to the grand jury by the police officers together with their testimony as to the misconduct of the judge. OAG 74-394 .

If a fiscal court fails to furnish an adequate jail, its members are subject to a mandamus action in Circuit Court and the members of fiscal court are subject to an indictment for willful neglect in the discharge of official duties if they fail, after a reasonable period of time elapses within which they should have taken action, to secure a sufficient jail. OAG 78-129 .

If the department for local government’s investigation and supervision of a county’s fiscal affairs discloses the possible commission of crime on the part of those local officials responsible for carrying on the fiscal affairs of the county, the department should disclose it to the local prosecutorial officers, for any action they deem proper, including possible prosecutions under this section or KRS Chapter 522. OAG 80-139 .

This section requires an indictment by a Circuit Court grand jury in order to charge that offense; but since KRS 24A.110 vests exclusive jurisdiction of misdemeanor cases, generally, in the district court, the Circuit Court in which such an indictment is returned has necessarily, because of the jurisdictional statute, the authority and duty to refer the indictment for trial or other appropriate disposition to the district court of that county. OAG 80-152 .

The failure of fiscal court to adopt rules for the jail operation under KRS 441.010 (now KRS 441.045 ) could possibly subject the members of that body to an indictment for willful neglect in the discharge of their duties, as prescribed in this section. OAG 80-154 .

The prosecution of an indictment against a jailer or a deputy jailer under this section is a matter for the grand jury of the Circuit Court, not the district court; likewise, any indictment framed around some penal code offense would come under the jurisdiction of the Circuit Court. OAG 80-154 .

If a member of a county fiscal court, who was operating a cable television system in that county, engages in an easement contract with the county on a county right-of-way, the member could be subject to an action for malfeasance under this section. OAG 80-194 .

The jailer was required to operate a community center which had been designated as the place for prisoners to perform community service work by the county judge/executive; if he refused to operate the center, he could be subjected to an action of claimed malfeasance in office or willful neglect in the discharge of official duties, pursuant to this section. OAG 83-245 .

The failure of a county official to perform an act mandated by statute provides a basis for charges being brought under this section. OAG 88-45 .

Sheriffs do not have the manpower to enforce all the laws of the Commonwealth in each county; at the same time, however, they have no general discretion to refrain from enforcement of certain laws, or to fail to take reasonable action in relation to a complaint regarding violation of a statutory provision. Should a sheriff willfully refrain from enforcement of statutory provisions, he or she might be exposed to a claim of willful neglect of duty under this section. OAG 92-61 .

Research References and Practice Aids

Cross-References.

Abuse of public office, KRS 522.010 to 522.040 .

Bonds, failure to perform duty in issuance of, KRS 66.040 , 66.990 .

Clerks, failure to perform duties under election laws, KRS 118.995 ; failure to perform duties under revenue laws, KRS 136.020 , 136.190 , 136.990 .

Constitutional provisions, Const., § 227.

County and city officials making illegal expenditures and contracts, KRS 68.110 , 68.990 .

County budget law, officer violating, KRS 66.990 , 68.300 , 68.990 .

Criminal proceeding, removal of peace officer not bar to, KRS 63.130 .

Fiscal failure to perform duty under road laws, KRS 178.990 , 179.990 .

Illegal fee-bills, KRS 64.460 , 64.990 .

Joint liability in official capacity, KRS 412.050 .

Misfeasance and malfeasance, officers liable to indictment for, Const., § 227.

Motor vehicle laws, failure of peace officers to enforce, KRS 189.520 .

Obstructing examination of office, KRS 43.990 .

Official misconduct, KRS 522.010 to 522.040 .

Peace officer, failure to prevent mob from taking prisoner, KRS 63.140 , 63.990 ; motor vehicles, KRS 189.520 .

Removal of county seat, failure of officers to perform duty, KRS 67.990 .

Reports, false and failure to make, KRS 64.990 .

Sheriffs, failure to perform election duties, KRS 119.125 .

Sheriffs retaining deputy’s compensation, KRS 134.200 , 134.990 .

Warehouse inspector, misfeasance or malfeasance, KRS 359.070.

Kentucky Law Journal.

Bivin, The Historical Development of the Kentucky Courts, 47 Ky. L.J. 465 (1959).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Indictment for Willful Neglect in Discharge of Official Duty, Form 10.07.

ALR

Conduct contemplated by statute which makes neglect of duty by public employe a punishable offense. 134 A.L.R. 1250.

Personal liability of policeman, sheriff, or similar peace officer or his bond for injury suffered as a result of failure to enforce law or arrest lawbreaker. 41 A.L.R.3d 700.

Removal of public officers for misconduct during previous term. 42 A.L.R.3d 691.

61.180. Drunkenness of officer on duty — Penalty.

If any person holding a public office shall, while in the discharge of the duties of his office, become intoxicated, or unable, incompetent or disqualified to discharge any of the duties of his office by the use of spirituous, vinous or malt liquors, he shall be fined not less than one hundred ($100) nor more than one thousand dollars ($1,000).

History. 3749.

NOTES TO DECISIONS

1.Construction.

The offense covered by this section is that of disabling oneself by drunkenness from performing his duties, not becoming drunk while performing a duty. Johnson v. Commonwealth, 111 Ky. 630 , 64 S.W. 467, 23 Ky. L. Rptr. 856 , 1901 Ky. LEXIS 235 ( Ky. 1901 ).

61.190. Receiving profit on public funds — Penalty. [Repealed.]

Compiler’s Notes.

This section (3747: amend. Acts 1992, ch. 463, § 8, effective July 14, 1992) was repealed by Acts 2003, ch. 76, § 3, effective June 24, 2003. For present law, see KRS 522.050 .

61.200. Jury fees, penalty for buying.

Any officer who, directly or indirectly, buys or contracts for the claim for services of any grand or petit juryman shall be fined not more than fifty dollars ($50).

History. 3762.

61.210. Justices, county judges/executive, county attorneys, and mayors or council members of consolidated local government not to be interested in public improvements — Penalty.

  1. No justice of the peace, while he is a member of the fiscal court, shall, directly or indirectly:
    1. Become interested in or receive benefits or emoluments from any contract let by the fiscal court of his county with relation to the building of roads or any internal improvements;
    2. Work or supervise work, for compensation, on any public road, bridge, culvert, fill, quarry pit, or any other road work or internal improvement under any contract made with the fiscal court; or
    3. Furnish, for compensation, any material to the county to be used in the construction of any road or bridge or other internal improvement.
  2. No county judge/executive, county attorney, or mayor or council member of a consolidated local government shall, directly or indirectly, receive any benefits or emoluments from, furnish any material or other thing of value to be used in, or be interested in any contract let by the fiscal court or consolidated local government for, the construction of any roads, bridges, or parts thereof, or any other public or internal improvement.
  3. Any officer who violates any of the provisions of this section shall be fined not less than fifty dollars ($50) nor more than two hundred dollars ($200) or imprisoned in the county jail not less than ten (10) nor more than forty (40) days, or both, and shall forfeit his office.

History. 3766a-1 to 3766a-5; 2002, ch. 346, § 14, effective July 15, 2002.

NOTES TO DECISIONS

1.Pleadings.

Officer prosecuted for benefiting from road contract is estopped from pleading that he had not qualified by taking oath. Commonwealth v. Pate, 110 Ky. 468 , 61 S.W. 1009, 22 Ky. L. Rptr. 1890 , 1901 Ky. LEXIS 102 ( Ky. 1901 ).

Magistrates of a county court do not have the authority to contract with themselves for road work or to do the work personally and receive payment and petition alleging that magistrates while acting as members of the county fiscal court, allowed certain claims to themselves for work allegedly done for the county, caused lumber to be sold to a bank which was used in construction of bridges and for other purposes under the management and control of the fiscal court and that although the lumber was delivered directly by the magistrates to the county, the payment was made directly to the bank by the county, and the bank either credited the amount to the magistrates or paid the money directly to them stated a cause of action since it alleges facts which if proven, showed that this section was violated during the years in question. Trimble County v. Moore, 275 S.W.2d 50, 1955 Ky. LEXIS 341 ( Ky. 1955 ).

2.Contracts.

A “contract” may be written or verbal. Commonwealth v. Lane, 125 Ky. 725 , 102 S.W. 313, 31 Ky. L. Rptr. 311 , 1907 Ky. LEXIS 338 ( Ky. 1907 ).

Contracts of public officers with themselves as individuals, either for services or materials to be used by county, are void, and not merely voidable. Logan County v. Edwards, 206 Ky. 53 , 266 S.W. 917, 1924 Ky. LEXIS 280 ( Ky. 1924 ).

3.Prohibited Employment.

A justice of the peace may not be employed or rent teams in the construction of a road in his county. Commonwealth v. Lane, 125 Ky. 725 , 102 S.W. 313, 31 Ky. L. Rptr. 311 , 1907 Ky. LEXIS 338 ( Ky. 1907 ).

4.Recovery of Payments.

Since payments made to members of county fiscal court for actual labor performed by them on roads were in violation of this section and KRS 61.220 county could not be estopped from recovering them. Trimble County by Shaver v. Moore, 312 S.W.2d 623, 1958 Ky. LEXIS 236 ( Ky. 1958 ).

Where during their term of office five (5) county magistrates ordered the payment of certain claims to themselves, allegedly for work done and for supplies furnished to the county in connection with the roads and bridges, all sums were illegally received under this section and appellant representing county taxpayers was entitled to recover in behalf of the county from each magistrate the amount of money paid each. Fannin v. Davis, 385 S.W.2d 321, 1964 Ky. LEXIS 158 ( Ky. 1964 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

Opinions of Attorney General.

In a county where the position of road engineer or road supervisor had not been established, the magistrate could be reimbursed for mileage expenses out of the county treasury for actual mileage traveled in supervising the county road system. OAG 66-57 .

Inasmuch as the county judge (now county judge/executive) appoints the board of directors of a garbage disposal district and that board may contract with a private agency to perform garbage disposal work this section would prohibit a county judge (now county judge/executive) from leasing his joint interest in real estate to the private agency which has the garbage disposal contract. OAG 72-402 .

Where the city of Louisa and Lawrence County leased land for a landfill dump from a justice of the peace who is a member of the fiscal court with consideration of the construction and maintenance of a county road, construction of a bridge for ingress and egress to lessor’s property, fence construction and maintenance of said dump, the justice has violated this section by contracting with the county and he has violated KRS 61.220 which prohibits a lease contract which involves a claim against the county. OAG 73-265 .

Where justice of peace submitted $200 claim against county for gas purchased from his station, this section was violated and prosecution is in quarterly court, in addition KRS 61.220 was violated and would be prosecuted in Circuit Court pursuant to KRS 25.010 (repealed). OAG 73-699 .

Although this section and KRS 61.220 prohibits a magistrate from becoming interested in any contract let by the fiscal court, an airport board is neither a city nor county board but a separate corporate entity not contemplated by the Constitution and there would be no conflict of interest in the magistrate furnishing supplies to the contract operator of the airport. OAG 74-253 .

There is no conflict of interest under this section if a corporation whose president is county magistrate has a contract with a county airport board established under KRS 183.132 as the airport authority is neither a city nor a county board but a separate corporate entity. OAG 74-253 .

The interest of a fiscal court member who is a main stockholder in a company distributing oil products to a local dealer, in whom he has no pecuniary or proprietorship interest, who in turn contracts with the county for the sale of fuel oil products would be too remote to be covered by this section. OAG 74-316 .

A fiscal court may, without advertising for bids, purchase from the county clerk materials and supplies not in excess of $2500. OAG 75-98 .

The county cannot contract with magistrates to pay them additional county money for supervising persons in local government employment programs as this is prohibited by KRS 61.220 and this section. OAG 75-410 .

A fiscal court could award a contract to haul gravel for the county road department to the son of a member of the fiscal court, where the magistrate has no direct or indirect interest in either the contract or his son’s business. OAG 76-253 .

There would be no constitutional or statutory restriction on the right of an individual employed on a month to month basis by the county from running for the office of magistrate; however, if elected he could not continue in his employment. OAG 77-367 .

Where the fiscal court is legally required to place a legal advertisement in the county newspaper in which a member of the fiscal court has a pecuniary interest, there would be no violation of this section. OAG 77-405 .

Since no member of the fiscal court may become interested in any claims against the county, an insurance agency owned by the county judge (now county judge/executive) could not write the workmen’s compensation insurance for the county. OAG 77-453 .

“Internal improvements” includes railroads, public roads, bridges and improvement of rivers. OAG 78-232 .

Where the fiscal court received a federal grant to build a center for the aged and the building was partially built when one of the county magistrates was hired to do some interior painting for $200, he had not acquired an interest in a contract involving an internal improvement within this section, but he did violate KRS 61.220 even though the paint contract in no way clouded his sound judgment at the time he participated in letting the original prime contract. OAG 79-137 .

Public policy dictates that the deputy county judge/executive must avoid participating, directly or indirectly, in any proceeding involving a county contract with her spouse. OAG 80-296 .

The county judge/executive and other members of fiscal court may work on county roads for free, but not for pay since this section and KRS 61.220 prohibit the members of fiscal court from being financially interested in county road improvements or other claims against the county and since the justices of the peace on the fiscal court could not allow certain claims to themselves for work done for the county. OAG 81-186 .

Research References and Practice Aids

Cross-References.

Misuse of confidential information, Penal Code, KRS 522.040 .

Kentucky Law Journal.

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

61.220. Fiscal court members and mayors or council members of a consolidated local government not to be interested in public improvements or claims against county — Penalty.

  1. Any member of the fiscal court, or any mayor or council member of a consolidated local government, who becomes interested, directly or indirectly, in any contract for work to be done or material to be furnished for the county or any district thereof, or who becomes interested in any claim against the county shall be fined not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000) for each offense.
  2. If any county judge/executive, justice of the peace, or mayor or council member of a consolidated local government is, by the same act, guilty of a violation of this section and KRS 61.210 , he shall be punished as provided in KRS 61.210 .

History. 1844; 1994, ch. 321, § 1, effective July 15, 1994; 2002, ch. 346, § 15, effective July 15, 2002.

NOTES TO DECISIONS

1.Purpose.

This section was intended to prevent members of the fiscal court from entering into contracts with the county for the salutary purpose of protecting the county against the sinister influences and purposes of its fiscal agencies who might for the purpose of gain enter into contracts much to their own advantage and greatly to the detriment of the county. Knox Fiscal Court v. Davis, 267 Ky. 155 , 101 S.W.2d 409, 1936 Ky. LEXIS 758 ( Ky. 1936 ).

2.Actions Prohibited.

The county judge (now county judge/executive) and supervisor of roads should be different persons, although it is provided that the fiscal court instead of appointing the supervisor, may authorize the county judge (now county judge/executive) to let out the working of roads, the other duties of the office being discharged by road overseers in which case the county judge (now county judge/executive) acts as judge, and not as supervisor and is entitled to no additional compensation for his services. Daviess County v. Goodwin, 116 Ky. 891 , 77 S.W. 185, 25 Ky. L. Rptr. 1081 , 1903 Ky. LEXIS 260 ( Ky. 1903 ).

Where fiscal court did not appoint a road supervisor but entered an order of court investing the county judge (now county judge/executive) with the general supervision of the roads of the county and attempted to invest the justices of the magisterial districts with powers as assistants and the justices were allowed a sum in payment for their services, the fiscal court attempted to create a different office or perhaps the same office with a different name and then attempted to fill it by electing themselves and voting themselves pay for their services which was invalid and the county was not liable to pay for their services. Pulaski County v. Sears, 117 Ky. 249 , 78 S.W. 123, 25 Ky. L. Rptr. 1381 , 1904 Ky. LEXIS 185 ( Ky. 1904 ).

The fiscal court which is made up of the magistrates cannot appoint themselves as road supervisors in their respective districts since the interests of the county might seriously suffer because the person who is required by law to protect the county’s interests as between the county and the supervisor would himself be a supervisor. Boyd County v. Arthur, 118 Ky. 932 , 82 S.W. 613, 26 Ky. L. Rptr. 906 , 1904 Ky. LEXIS 121 ( Ky. 1904 ).

The fiscal court may not appoint a magistrate who is a member of the fiscal court to construct a bridge or contract for its construction. Millikin v. George L. Gillum & Son, 135 Ky. 280 , 122 S.W. 151, 1909 Ky. LEXIS 286 ( Ky. 1909 ).

An oral authorization by other members of the fiscal court for a county judge (now county judge/executive), a member of the fiscal court, to cultivate county poor farm land was an illegal contract with the county under this section. Black v. Davenport, 189 Ky. 40 , 224 S.W. 500, 1920 Ky. LEXIS 371 ( Ky. 1920 ).

Indictment charging offense denounced by this section need not allege the exception created by another statute since it is a matter of defense to be proven by defendant that his acts come without such exception. Sigmon v. Commonwealth, 207 Ky. 786 , 270 S.W. 40, 1925 Ky. LEXIS 186 ( Ky. 1925 ).

Orders of fiscal court for county judge (now county judge/executive) to act as commissioner to settle with the sheriff for which the county judge (now county judge/executive) was paid $50 annually were void and not merely voidable since there was not only no authority for the fiscal court either to employ or pay for such services, but it was expressly prohibited from so doing. Breathitt County v. Hagins, 211 Ky. 391 , 277 S.W. 469, 1925 Ky. LEXIS 885 ( Ky. 1925 ).

The authority given the fiscal court to employ themselves as road committees is limited to instances where the court had not provided for a county engineer. Knox Fiscal Court v. Davis, 267 Ky. 155 , 101 S.W.2d 409, 1936 Ky. LEXIS 758 ( Ky. 1936 ).

3.— Exception.

Without a provision in the law providing that the fiscal court in a county with a free turnpike system could elect one or more of its members as a committee to supervise and control the roads and to pay each member a per diem compensation it was illegal for any member of the fiscal court to receive compensation for service on such a committee. Flowers v. Logan County, 138 Ky. 59 , 127 S.W. 512, 1910 Ky. LEXIS 41 ( Ky. 1910 ); Thomas v. O'Brien, 138 Ky. 770 , 129 S.W. 103, 1910 Ky. LEXIS 132 ( Ky. 1910 ); O'Connor v. Weissinger, 142 Ky. 447 , 134 S.W. 1126, 1911 Ky. LEXIS 252 ( Ky. 1911 ).

A magistrate or justice of the peace and by virtue thereof a member of a fiscal court who accepts for compensation employment from the fiscal court to superintend work on the public roads of a county unless the county maintains a “free turnpike” system violates this section. Commonwealth v. Stepp, 193 Ky. 469 , 236 S.W. 1049, 1922 Ky. LEXIS 36 ( Ky. 1922 ).

4.Contracts and Orders.

A “contract” under this section may be either oral or written. Commonwealth v. Lane, 125 Ky. 725 , 102 S.W. 313, 31 Ky. L. Rptr. 311 , 1907 Ky. LEXIS 338 ( Ky. 1907 ).

Contracts and orders of a fiscal court contrary to this section are not merely voidable, but are void. Logan County v. Edwards, 206 Ky. 53 , 266 S.W. 917, 1924 Ky. LEXIS 280 ( Ky. 1924 ).

Contracts and orders of a fiscal court contrary to this section are not merely voidable, but are void and subject to collateral attack, and the county may recover in an independent action. Breathitt County v. Hagins, 211 Ky. 391 , 277 S.W. 469, 1925 Ky. LEXIS 885 ( Ky. 1925 ).

5.Bad Faith or Fraud.

Validity of the official’s acts does not necessarily depend on his good faith. Black v. Davenport, 189 Ky. 40 , 224 S.W. 500, 1920 Ky. LEXIS 371 ( Ky. 1920 ).

Bad faith or fraud is not an element of the offense charged in this section, and good faith is not a defense in a criminal action thereunder. Sigmon v. Commonwealth, 207 Ky. 786 , 270 S.W. 40, 1925 Ky. LEXIS 186 ( Ky. 1925 ).

6.Civil Liability to Innocent Third Parties.

An officer violating this section is civilly liable to innocent third parties on warrants received by him in the transaction and discounted to them, to the extent that they are unable to recover from the county. Millikin v. George L. Gillum & Son, 135 Ky. 280 , 122 S.W. 151, 1909 Ky. LEXIS 286 ( Ky. 1909 ).

7.Recovery of Amounts Paid.

If the thing done is illegal and not warranted by law, the county may deny its validity, though it be beneficial. If the thing done is authorized, but it is proposed to do it in an unauthorized manner, the officers will be compelled to do it properly, upon seasonable complaint. But where the thing is authorized to be done, and is done by the proper party, but in a manner contrary to statute, the courts will not require refund of the money while letting the public enjoy the benefits of the expenditure. Flowers v. Logan County, 138 Ky. 59 , 127 S.W. 512, 1910 Ky. LEXIS 41 ( Ky. 1910 ); Clark v. Logan County, 138 Ky. 676 , 128 S.W. 1079, 1910 Ky. LEXIS 119 ( Ky. 1910 ).

Where payments, though made to a member of the fiscal court, were for the benefit of and disbursed to nonmembers in good faith, and the public received that to which it was entitled, and the practice had long been acquiesced to, the county was estopped from recovering the amount of the payments from the fiscal court member, but the burden of proof was on the member to show proper expenditure of funds. Flowers v. Logan County, 138 Ky. 59 , 127 S.W. 512, 1910 Ky. LEXIS 41 ( Ky. 1910 ).

County judge (now county judge/executive) could not legally be employed as commissioner of the county poorhouse and the county was entitled to recover all compensation paid that was not barred by the statute of limitations. Clark v. Logan County, 138 Ky. 676 , 128 S.W. 1079, 1910 Ky. LEXIS 119 ( Ky. 1910 ).

Where a county judge (now county judge/executive), while acting as presiding judge and performing duties as a member of the fiscal court, voted on numerous claims which were paid to him and to a firm of which the judge was the principal owner, the county could recover the sums since they were in violation of this section. Logan County v. Edwards, 206 Ky. 53 , 266 S.W. 917, 1924 Ky. LEXIS 280 ( Ky. 1924 ).

Where justice of the peace, who was a member of the county fiscal court, purchased claims against the county which were allowed by the fiscal court of which he was a member and paid by the county treasurer, the county could recover the amounts paid. Logan County v. Head, 206 Ky. 97 , 266 S.W. 883, 1924 Ky. LEXIS 258 ( Ky. 1924 ).

A fiscal court member may recover moneys advanced the county as an accommodation. Logan County v. Head, 206 Ky. 97 , 266 S.W. 883, 1924 Ky. LEXIS 258 ( Ky. 1924 ).

Since payments made to members of county fiscal court for actual labor performed by them on roads were in violation of this section and KRS 61.210 county could not be estopped from recovering them. Trimble County by Shaver v. Moore, 312 S.W.2d 623, 1958 Ky. LEXIS 236 ( Ky. 1958 ).

8.Applicability.

Because attorneys’ representation of city employees was not an “interest” in a claim against the city, the statute was not applicable, and the city’s remedy was to disqualify the attorneys, who were members of the city council, due to their conflicts of interest; subsection (1) did not address a situation where a member of a fiscal court or consolidated local government was a practicing attorney who sought to represent a client with a claim affecting the county. Louisville/Jefferson Cty. Metro Gov't v. Ackerson, 618 S.W.3d 485, 2020 Ky. App. LEXIS 46 (Ky. Ct. App. 2020).

Cited:

Lemon v. Fiscal Court of Casey County, 291 S.W.2d 572, 1956 Ky. LEXIS 396 ( Ky. 1956 ).

Opinions of Attorney General.

A fiscal court may enter into a contract with a corporation whose president is the county court clerk and also the clerk of the fiscal court. OAG 60-774 .

Where a county judge (now county judge/executive) appointed his wife to serve as juvenile officer at a salary although she performed no services, the judge had an indirect interest in a contract or claim against the county contrary to this section. OAG 61-527 .

Where a proposed lease between the county and the wife of a magistrate would be void because of the indirect interest of the magistrate, the execution of the contract would make the magistrate subject to criminal prosecution. OAG 64-466 .

Where the wife of a magistrate and member of the fiscal court was one of the applicants for the lease and operation of the county home for the indigent, such a lease would be void since the magistrate would be at least indirectly involved in such contract. OAG 64-466 .

Where the wife of a magistrate and member of the fiscal court was one of the applicants for the lease and operation of the county home for the indigent, the contract would be void because of the magistrate’s indirect interest even if it were awarded to the wife on the basis of competitive bidding. OAG 64-466 .

A member of a fiscal court who is also the owner of a licensed retail liquor store would be prohibited from selling liquor to a county hospital. OAG 65-80 .

A magistrate would be disqualified under the statute from entering into a contract with the state or any of its departments or agencies, in view of the fact that the contract would eventually lead to a claim against the state. OAG 65-126 .

A member of the fiscal court renting office space owned by himself to be used as a magistrate’s courtroom for himself, with the rent to be a credit against excess fees, would be a violation of the statute. OAG 66-221 .

The wife of a magistrate could not serve as county treasurer while her husband was a member of the fiscal court that hired her. OAG 66-412 .

A school district is not embraced in the term “district” as contained in the statute. OAG 66-564 .

Where the construction of a school building and later lease back to the school district was to be assumed by the county, a company in which the county judge (now county judge/executive) was the principal stockholder would be prohibited from selling materials to private contractors building the school. OAG 66-564 .

A magistrate may be legally reimbursed for his actual expenses in hauling surplus food commodities for the county on the basis of mileage provided the mileage rates only provide reimbursement of actual expenses and no contract for hauling is involved and the expenses are properly documented. OAG 68-614 .

The indirect interest of the county judge (now county judge/executive) in his wife’s property would be such that his wife’s operation of the county rest home would produce a conflict of interest. OAG 69-375 .

A person whose insurance agency handles a portion of the insurance on the courthouse and county jail would be disqualified for a conflict of interests from being appointed county judge (now county judge/executive) pro tem since he might have to preside over the fiscal court. OAG 69-626 .

This statute would prohibit the magistrate of a county fiscal court from selling oil to the school board. OAG 69-627 .

Sale of gasoline at a county airport by a magistrate to private individuals or corporations does not violate this section. OAG 70-84 .

The employment by the fiscal court of the son-in-law of a magistrate as a regular member of the county road department would not constitute a prohibited direct or indirect interest. OAG 71-32 .

The statutes do not contemplate supervisory work being done by the fiscal court on a district-member basis. OAG 71-315 .

This section is broad enough to prohibit the county judge (now county judge/executive) from appointing his wife as pro tem judge or trial commissioner, since either job would involve a money claim against the county for services performed, and the county judge (now county judge/executive) has such a beneficial interest in his wife’s property and affairs as to be indirectly interested in any contract to which she is a party. OAG 72-167 .

Where the city of Louisa and Lawrence County leased land for a landfill dump site from a justice of the peace who is a member of the fiscal court with consideration of the construction and maintenance of a county road, construction of a bridge for ingress and egress to lessor’s property, fence construction, and maintenance of said dump, the justice has violated KRS 61.210 by contracting with the county and he has violated this section which prohibits a lease contract which involves a claim against the county. OAG 73-265 .

Where a justice of the peace submitted a $200 claim against the county for gas purchased from his gas station, this section was violated and prosecution is in quarterly court; in addition this section was violated and would be prosecuted in Circuit Court pursuant to KRS 25.010 (repealed). OAG 73-699 .

Where a county commissioner was associated with an insurance agency doing business with the county, a prohibited conflict of interest would arise unless the only remuneration from the insurance agency is for nonstate business that he refers to the agency. OAG 73-806 .

There is no violation of this section where a corporation, whose president is county magistrate, has a contract with a county airport board established under KRS 183.132 as the airport authority is neither a city nor a county board but a separate corporate entity. OAG 74-253 .

There was no conflict of interest where one member of the fiscal court voted to transfer county funds from one bank to another bank of which he was a director. OAG 74-269 .

The interest of a fiscal court member who is a main stockholder in a company distributing oil products to a local dealer, in whom the member has no pecuniary or proprietary interest, who in turn contracts with the county for the sale of fuel oil products would be too remote to be covered by this section. OAG 74-316 .

This section prohibits any member of the fiscal court from selling his land to or buying land from the county. OAG 74-466 .

The office of magistrate on a county fiscal court is not incompatible under KRS 61.080 or this section with a position as employee of a hospital being operated as a county hospital under KRS 216.040 (repealed), but it may be incompatible under the common-law rule of Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 (1917). OAG 74-609 .

A fiscal court may, without advertising for bids, purchase from the county clerk materials and supplies not in excess of $2500. OAG 75-98 .

A fiscal court could award a contract to haul gravel for the county road department to the son of a member of the fiscal court, where the magistrate has no direct or indirect interest in either the contract or his son’s business. OAG 76-253 .

The purchase of gasoline and oil by county truck drivers from a service station owned by the county sheriff and a county judge (now county judge/executive) would be prohibited by this section. OAG 76-265 .

Although a county judge (now county judge/executive) pro tem may have to preside over the fiscal court in the absence of the county judge (now county judge/executive), the mere potentiality of service on the fiscal court would not prohibit the county judge (now county judge/executive) pro tem from serving as a dispatcher of a dispatching service which is operated out of county funds. OAG 76-518 .

A magistrate, as an officer of the fiscal court, may not also set up and service voting machines for the county. OAG 78-42 .

A member of fiscal court voting on a matter concerning a brother or sister should not participate in the vote although the member has no pecuniary interest in the matter in accordance with the public policy consideration that the public is entitled to have its representatives perform their duties free from personal bias or interest. OAG 78-153 .

The furnishing of concrete by a fiscal court member to a new county hospital would probably be construed as a “furnishing of concrete to the county” and the funding of the construction by a bond issue would not alter the county’s dominant and controlling role in the construction of a county hospital. OAG 78-232 .

If a county magistrate, a member of the fiscal court, accepted a job as manager of a local quarry from which the county purchased its crushed stone, and if the manager had any pecuniary interest in those sales, this section would be violated. OAG 79-37 .

This section makes no distinctions between a prime contract and a later-executed subcontract. OAG 79-137 .

Where the fiscal court received a federal grant to build a center for the aged and the building was partially built when one of the county magistrates was hired to do some interior painting for $200, he had not acquired an interest in a contract involving an internal improvement within KRS 61.210 , but he did violate this section even though the paint contract in no way clouded his sound judgment at the time he participated in letting the original prime contract. OAG 79-137 .

Although this section suggests a technical conflict of interest where a fiscal court member owns a share of stock in a funeral home corporation which billed the county for the burial expense of a pauper, it is possible that, upon the testimony of an accountant that the fiscal court member’s monetary interest in the burial transaction is nominal or of no meaningful value, such as to involve an interest remote or speculative, the courts might hold that this section would not apply. OAG 80-230 .

If a share of stock, in a company with which a county deals, is owned, not by a member of the fiscal court, but by a family relative not his wife, there would be no conflict of interest under this section. OAG 80-230 .

Where a member of a fiscal court serves concurrently on the board of directors of a nonprofit corporation managing a geriatric facility which it has leased from the fiscal court, there is no violation of this section since the fiscal court member would not be acquiring an interest in a contract with the county or in a claim against the county. OAG 81-130 .

The county judge/executive and other members of the fiscal court may work on county roads for free, but not for pay since KRS 61.210 and this section prohibit the members of fiscal court from being financially interested in county road improvements or other claims against the county and since justices of the peace on the fiscal court could not allow certain claims to themselves for work done for the county. OAG 81-186 .

Where the son of a fiscal court commissioner owned and operated a travel agency which handled the purchase of airline tickets for county officials traveling on county business on a contract basis and he received a commission from the airline for performing the service, this section was not violated, since the contract was not between the travel agency and an individual member of the fiscal court and there was no showing that the father of the travel agent either directly or indirectly had a pecuniary interest in the contract. OAG 81-360 .

There was no statutory conflict of interest where a member of the county fiscal court served as a director on the board of a nonprofit corporation with which the county had a contractual arrangement for the contribution of county funds for the operation of a park system, except that this section prohibits members of fiscal court from being interested in claims against the county. OAG 83-98 .

If a member of county fiscal court should apply for and receive a job as a full-time merit system employee, he would be required to resign as a member of the fiscal court since a county employee serves under the management authority of the fiscal court and since this section prohibits a member of fiscal court from being interested, directly or indirectly, in a claim against the county treasury (except for his own salary as a member of fiscal court) and as a county employee, he would have a direct claim against the county treasury. OAG 83-252 .

A county may lease or rent a surplus county building to a fiscal court member’s son, who will own and operate a restaurant in the building, provided the rental is fairly arrived at, based largely upon the appraised value of the property. The real property should be appraised by two competent appraisers, and the rental should be largely based upon the average appraised value (as between the two appraisals). OAG 83-417 .

Where a county borrowed money from a bank at which the county judge/executive served on the board of directors, the county judge/executive would be involved in a conflict of interest since the borrowing contract would involve a claim against the county treasury. OAG 84-9 .

A fiscal court cannot legally buy materials from an auto parts store, which is owned and operated by a member of the fiscal court and his brother. OAG 84-270 .

The wife of a county judge/executive and the wife of a magistrate may be hired by the fiscal court of which the county judge-executive and the magistrate are members without violating the conflict of interest provisions set forth in this section. OAG 91-110 .

Unless the facts of a given case demonstrate a significant interest on the part of a fiscal court member in the court’s procurement of goods or services from a firm owned or controlled by a spouse, there would not be a violation of this section or §§ 61.190 (now repealed) or 61.210 . OAG 92-39 .

Where a spouse of a fiscal court member owns or controls a business from which the fiscal court would purchase goods or services, the fiscal court member might have a marital interest in economic benefits flowing to the spouse through the county’s purchases. Accordingly, depending upon the specific facts involved, a fiscal court’s purchase of goods or services from the spouse of a court member might place the member in violation of this section or KRS 61.190 (now repealed) or 61.210 . OAG 92-39 .

Research References and Practice Aids

Cross-References.

Misuse of confidential information, Penal Code, KRS 522.040 .

61.230. Sheriff and collector not to be interested in public improvements or claims against state or county — Penalty.

Any sheriff or collector of taxes who becomes interested, directly or indirectly, in the construction of any public works or improvements in which the county or state is directly or indirectly interested, or on which he may be required to pay money, or who speculates in any claim against the state or county shall be fined not less than five hundred ($500) nor more than two thousand dollars ($2,000) for each offense.

History. 4144.

NOTES TO DECISIONS

1.Purchase of County Warrants.

A sheriff speculating in county warrants is liable not only for the original principal, but the profits arising therefrom. The county or its creditors may recover the profits. The officer may be compelled to perform his duty by mandamus or mandatory injunction. Breathitt County v. Cockrell, 250 Ky. 743 , 63 S.W.2d 920, 1933 Ky. LEXIS 764 ( Ky. 1933 ).

Sheriff, who was illegally trafficking in county warrants, would ordinarily not be entitled to credit, on settlement, for overpayment made on settlement for prior year, where overpayment consisted of warrants. Fidelity & Casualty Co. v. Breathitt County, 276 Ky. 173 , 123 S.W.2d 250, 1938 Ky. LEXIS 538 ( Ky. 1938 ).

Sheriff who used tax money to purchase county warrants at a discount, and tendered warrants in settlement of his accounts, was not entitled to credit for interest on warrants and was liable to county for any profit made. Fidelity & Casualty Co. v. Breathitt County, 276 Ky. 173 , 123 S.W.2d 250, 1938 Ky. LEXIS 538 ( Ky. 1938 ).

Research References and Practice Aids

Cross-References.

Misuse of confidential information, Penal Code, KRS 522.040 .

61.240. County attorney and clerks not to buy claims against county — Penalty.

Any county attorney, circuit clerk or deputy, or county clerk or deputy who purchases or speculates in any claim allowed by the fiscal court of his county shall be fined in a sum twice the amount purchased or speculated in by him.

History. G.S., ch. 27, Art. III, § 10; 1882, ch. 159.

NOTES TO DECISIONS

1.Application.

This section prevents the officers named from speculating in county claims on their own account or on the account of anyone else. Moore v. Lawson, 102 Ky. 126 , 42 S.W. 1136, 19 Ky. L. Rptr. 1104 , 1897 Ky. LEXIS 76 ( Ky. 1897 ).

2.Enforcement.

Enforcement of this section is the duty of the Commonwealth’s Attorney, and the double fine, if recovered, inures to the benefit of the state. The fine cannot be recovered in a taxpayers’ suit against the clerk on behalf of the county. Herd v. Lyttle, 310 Ky. 788 , 222 S.W.2d 834, 1949 Ky. LEXIS 1026 ( Ky. 1949 ).

Opinions of Attorney General.

A fiscal court may enter into a contract with a corporation whose president is the county court clerk and also the clerk of the fiscal court. OAG 60-774 .

Research References and Practice Aids

Kentucky Law Journal.

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

61.250. First-class city officers and employees not to be interested in city contracts or work — Penalty. [Repealed.]

Compiler’s Notes.

This section (2786, 2818, 3010-15) was repealed by Acts 1994, ch. 379, § 3, effective July 15, 1994. For present law, see KRS 61.252 .

61.251. Definitions for KRS 61.252.

As used in KRS 61.252 :

  1. “City agency” means any board, commission, authority, nonstock corporation, or other entity created by a city, either individually or jointly with any other unit of local government;
  2. “Contract” means any agreement for the sale, lease, or purchase of any interest in real or personal property or the provision of any service; and
  3. “Officer” means any person, whether compensated or not, and whether full-time or part-time, who is an elected or appointed officer of a city, or who is a member of the governing board of any city agency.

History. Enact. Acts 1994, ch. 379, § 1, effective July 15, 1994.

61.252. Prohibition against city officers and employees contracting with city or city agency for property or services — Exceptions — Penalty.

  1. No officer or employee of any city or city agency shall directly or through others undertake, execute, hold, or enjoy, in whole or in part, any contract made, entered into, awarded, or granted by the officer’s or employee’s city or city agency, with the following exceptions:
    1. The prohibition in this section shall not apply to contracts entered into before an elected officer filed as a candidate for city office, before an appointed officer was appointed to the office, or before an employee was hired by the city or city agency; provided that if the contract is renewable, the prohibition shall apply to any renewal of the contract that occurs after the officer is elected or appointed, or after the employee is hired, unless the provisions of paragraph (c) of this subsection are satisfied;
    2. The prohibition in this section shall not apply if the contract is awarded after public notice and competitive bidding, unless the officer or employee is authorized to participate in establishing the contract specifications, or awarding, or managing the contract, in which case the provisions of paragraph (c) of this subsection shall be satisfied;
    3. The prohibition in this section shall not apply if the following requirements are met:
      1. The specific nature of the contract transaction and the nature of the officer’s or employee’s interest in the contract are publicly disclosed at a meeting of the governing body of the city or city agency;
      2. The disclosure is made a part of the official record of the governing body of the city or city agency before the contract is executed;
      3. A finding is made by the governing body of the city or city agency that the contract with the officer or employee is in the best interests of the public and the city or city agency because of price, supply, or other specific reasons; and
      4. The finding is made a part of the official record of the governing body of the city or city agency before the contract is executed.
  2. Violation of this section is a Class A misdemeanor, and upon conviction, the court may void any contract entered into in violation of this section. Additionally, violation of this section shall be grounds for removal from office or employment, in accordance with applicable provisions of law.

History. Enact. Acts 1994, ch. 379, § 2, effective July 15, 1994.

NOTES TO DECISIONS

1.Contracts.

Fact that councilman, after expiration of his term, became a member of the contracting firm which then completed the contract, did not void the contract, in absence of conspiracy or criminal understanding. Collinsworth v. Catlettsburg, 236 Ky. 194 , 32 S.W.2d 982, 1930 Ky. LEXIS 714 ( Ky. 1930 ).

Loan by councilman to firm contracting with city did not violate law regarding prohibition against city officer being interested in contract with city. Collinsworth v. Catlettsburg, 236 Ky. 194 , 32 S.W.2d 982, 1930 Ky. LEXIS 714 ( Ky. 1930 ).

2.— Void.

A resolution of the council appointing a member to settle with the tax collector, the member accepting the appointment and making the settlement, is a contract impliedly importing consideration for the value of the work performed, and is void under law regarding prohibition against city officer being interested in contract with city. City of Winchester v. Frazer, 43 S.W. 453, 19 Ky. L. Rptr. 1366 (1897).

Contract between city and an individual, in which the real party in interest was a councilman, was void. Wilson v. Smith, 215 Ky. 504 , 284 S.W. 1102, 1926 Ky. LEXIS 719 ( Ky. 1926 ).

Fact that contract was fully performed, or that there was no evidence of fraud, collusion or unreasonable prices, was immaterial. Wilson v. Smith, 215 Ky. 504 , 284 S.W. 1102, 1926 Ky. LEXIS 719 ( Ky. 1926 ).

It was not necessary that the contract be fully performed. Napier v. Gay, 264 Ky. 359 , 94 S.W.2d 682, 1936 Ky. LEXIS 321 ( Ky. 1936 ).

3.Vacation of Office.

A proceeding to declare the office of a member of the city council vacant because the city utility commission, while the city council member was an ex officio member of the utility commission, purchased a motor vehicle from a corporation in which the member was the principal stockholder could not be brought by the remaining members of the city council but must have been instituted by the person claiming title to the office or by the Commonwealth. Jones v. Robinson, 351 S.W.2d 185, 1961 Ky. LEXIS 154 ( Ky. 1961 ).

4.Evidence.

Where the testimony was to the effect that although councilman had once been partner of subcontractors, at the time the contracts were let to them such partnerships had terminated, the evidence of the councilman’s interest in the contract was held insufficient. Beshear v. Dawson Springs, 214 Ky. 102 , 282 S.W. 764, 1926 Ky. LEXIS 265 ( Ky. 1926 ).

Where there was not sufficient testimony to show that councilman was interested in the contract and most of such testimony came from persons opposed to the councilman the evidence of interest was held insufficient. Beshear v. Dawson Springs, 214 Ky. 102 , 282 S.W. 764, 1926 Ky. LEXIS 265 ( Ky. 1926 ); Wilson v. Blanton, 226 Ky. 518 , 11 S.W.2d 127, 1928 Ky. LEXIS 119 ( Ky. 1928 ).

5.Recovery for Services.

City could not recover from third person money for services rendered by a councilman working under contract with the city. Bardstown v. Nelson County, 121 Ky. 737 , 90 S.W. 246, 28 Ky. L. Rptr. 710 , 1906 Ky. LEXIS 254 ( Ky. 1906 ).

6.Franchise.

Franchise let by city to firm, one of whose members was marshal of the city, was void, both as to the officer and his partner, since the good could not be separated from the bad. Arms & Short v. Denton, 212 Ky. 43 , 278 S.W. 158, 1925 Ky. LEXIS 1070 ( Ky. 1925 ).

7.Bank Deposits.

The deposit of money by a city of the fifth class with a bank where certain city officers are directors does not violate law regarding prohibition against city officer being interested in contract with city, since the possibility of benefit is too speculative and remote to suggest a conflict of interest. McCloud v. Cadiz, 548 S.W.2d 158, 1977 Ky. App. LEXIS 646 (Ky. Ct. App. 1977).

Research References and Practice Aids

Cross-References.

Bridge commissioner not to be financially interested in building bridge, KRS 181.600 .

Misuse of confidential information, Penal Code, KRS 522.040 .

ALR

Removal of public officers for misconduct during previous term. 42 A.L.R.3d 691.

61.260. Officer of city of second or third class not to be interested in contract with city — Penalty. [Repealed.]

Compiler’s Notes.

This section (3206: amend. Acts 1982, ch. 434, § 11, effective July 15, 1982) was repealed by Acts 1994, ch. 379, § 3, effective July 15, 1994. For present law, see KRS 61.252 .

61.270. Fourth-class city officers not to be interested in contract with city — Penalty. [Repealed.]

Compiler’s Notes.

This section (3484) was repealed by Acts 1994, ch. 379, § 3, effective July 15, 1994. For present law, see KRS 61.252 .

61.280. Fifth and sixth-class city officers not to be interested in contract with city — Penalty. [Repealed.]

Compiler’s Notes.

This section (3632, 3695) was repealed by Acts 1994, ch. 379, § 3, effective July 15, 1994. For present law, see KRS 61.252 .

61.290. Local officers to make annual statement of collections and disbursements; publication; penalty for failure; publication of list of delinquent taxpayers; when legal publications to be in newspaper with largest bona fide circulation. [Repealed.]

Compiler’s Notes.

This section (3747a-1, 3747a-2: amend. Acts 1944, ch. 155, § 1) was repealed by Acts 1958, ch. 42, § 29.

61.295. Copy of published annual statement to be filed with Auditor. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 89, §§ 1, 2) was repealed by Acts 1958, ch. 42, § 29.

61.298. Required written police pursuit policies — Subjects to be addressed — Filing with Justice and Public Safety Cabinet — Officers’ written confirmation of receipt — Annual review — Purpose.

  1. As used in this section, “law enforcement agency” means:
    1. Any public agency that employs a police officer as defined in KRS 15.420 or a special law enforcement officer as defined in KRS 61.900 ;
    2. Any public agency that is composed of or employs other public peace officers; and
    3. Any elected or appointed peace officer who is authorized to exercise powers of a peace officer as defined in KRS 446.010 .
  2. On or before January 1, 2021, each law enforcement agency of this state shall adopt, implement, enforce, and maintain written policies that establish standards and procedures for the vehicular pursuit of any person who has violated or is suspected of violating the laws of this state. The policy shall create guidelines for determining when the interests of public safety and effective law enforcement justify the initiation or termination of a vehicular pursuit. The policy shall address the following subjects:
    1. The definition of pursuit that will be governed under the law enforcement agency’s policy;
    2. Decision-making criteria or principles that are designed to assist peace officers in determining whether to initiate a pursuit. The criteria or principles may include but shall not be limited to:
      1. The potential for harm or potential danger to others if the fleeing individual evades or escapes immediate custody;
      2. The seriousness of the offense committed or believed to be committed, by the fleeing individual or individuals, prior to the officer activating emergency equipment;
      3. If the officer has a reasonable and articulable suspicion that the driver or an occupant of the vehicle in which they are fleeing represent a clear and present danger to the public safety;
      4. Safety factors that pose a risk to peace officers, other motorists, pedestrians, or other third parties;
      5. Vehicular or pedestrian traffic safety and volume;
      6. Weather and vehicle conditions;
      7. Potential speeds of the pursuit; and
      8. Consideration of whether the identity of an offender is known and could be apprehended at a later time;
    3. Responsibilities of the pursuing peace officer or officers, including pursuit tactics and when those tactics are appropriate for use by the officer or officers;
    4. Procedures for designating the primary pursuit vehicle and for determining the total number of vehicles that are permitted to participate at one (1) time in the pursuit;
    5. Coordination of communications during the pursuit, including but not limited to responsibilities of the pursuing officer to communicate with his or her communications center at the commencement of a pursuit regarding the location, direction of travel, reason for the pursuit, and ongoing status reporting during the pursuit;
    6. A requirement that there is supervisory control of the pursuit, including the responsibilities of command staff or other supervisors during the pursuit, if a supervisor is available;
    7. The circumstances and conditions where the use of pursuit intervention tactics, including but not limited to blocking, ramming, boxing, and roadblock procedures may be employed;
    8. Decision-making criteria or principles that are designed to assist peace officers in making an ongoing determination during the course of the pursuit of whether to continue the pursuit or to terminate or discontinue it. The criteria or principles may include but shall not be limited to:
      1. The potential for harm or potential danger to others if the fleeing individual evades or escapes immediate custody;
      2. The seriousness of the offense committed or believed to have been committed by the individual or individuals that are fleeing;
      3. Safety factors that pose a risk to peace officers, other motorists, pedestrians, or other third parties;
      4. Vehicular or pedestrian traffic safety and volume;
      5. Weather and vehicle conditions;
      6. Speeds of the pursuit;
      7. Consideration of whether the identity of an offender is known and could be apprehended at a later time; or
      8. Where the officer has a reasonable and articulable suspicion that the driver or an occupant of the vehicle in which they are fleeing represent a clear and present danger to the public safety;
    9. Procedures for coordinating the pursuit with other law enforcement agencies, including procedures for interjurisdictional pursuits; and
    10. A process for reporting and evaluating each pursuit by the law enforcement agency.
  3. The policy adopted by a law enforcement agency may be a model policy that has been endorsed by a national or state organization if the model complies with subsection (2) of this section and other laws of this Commonwealth.
  4. Upon the initial adoption of the policy, a law enforcement agency shall cause a full copy of its policy to be filed with the Justice and Public Safety Cabinet, which shall maintain a list of law enforcement agencies that have complied with the requirements of this section.
  5. Each law enforcement agency shall receive and maintain written confirmation from each officer in its employment that he or she has received a copy of the policy, and that he or she has received instruction or training specific to the law enforcement agency’s policy.
  6. Any policy adopted pursuant to this section shall be reviewed annually and may be revised at any time by the agency adopting it. The agency shall cause a full copy of any revised policy to be filed with the Justice and Public Safety Cabinet within ten (10) days of its adoption.
  7. The requirements of this section are solely intended to direct law enforcement agencies to adopt, implement, enforce, and maintain written vehicular pursuit policies and outline the subjects of these policies. This section shall not be interpreted or construed to:
    1. Mandate the actions of individual peace officers of a law enforcement agency during any particular pursuit;
    2. Restrict a law enforcement agency from adopting additional policy requirements, including policies that limit or prohibit vehicular pursuits; or
    3. Create any civil liability upon peace officers, law enforcement agencies, or any public agency for the process of creating the vehicular pursuit policies or the process of documenting compliance with the vehicular pursuit policies.

HISTORY: 2020 ch. 97, § 1, effective July 15, 2020.

Legislative Research Commission Notes.

(7/15/2020). 2020 Ky. Acts ch. 97, sec. 5 provides that this statute may be cited as Jill’s Law.

61.300. Nonelective peace officer or deputy — Qualifications.

No person shall serve as a deputy sheriff, deputy constable, patrol or other nonelective peace officer, or deputy peace officer, unless:

  1. He is a citizen of the United States and is twenty-one (21) years of age or over;
  2. If a deputy constable, he has resided in the county wherein he is appointed to serve for a period of at least two (2) years;
  3. A sheriff may require his or her deputies to reside in the county in which they serve. Any deputy sheriff appointed pursuant to this section who has not been a resident of the county in which he serves for a period of at least two (2) years shall not be an active participant in any labor dispute and shall immediately forfeit his position if he violates this provision;
  4. He has never been convicted of a crime involving moral turpitude;
  5. He has not within a period of two (2) years hired himself out, performed any service, or received any compensation from any private source for acting, as a privately paid detective, policeman, guard, peace officer, or otherwise as an active participant in any labor dispute, or conducted the business of a private detective agency or of any agency supplying private detectives, private policemen, or private guards, or advertised or solicited any such business in connection with any labor dispute; and
  6. He has complied with the provisions of KRS 15.334 .

History. 3766a-5a, 3766a-5b, 3766a-5d, 3766a-5e: amend. Acts 1974, ch. 308, § 25; 1976, ch. 19, § 1; 1980, ch. 24, § 1, effective July 15, 1980; 1990, ch. 134, § 1, effective July 13, 1990; 1990, ch. 443, § 64, effective July 13, 1990; 1998, ch. 98, § 1, effective July 15, 1998; 2000, ch. 416, § 1, effective July 14, 2000; 2005, ch. 132, § 30, effective June 20, 2005; 2019 ch. 110, § 2, effective June 27, 2019.

NOTES TO DECISIONS

1.Application.

The trial court properly ruled that the factual basis of the complaint did not state a claim of arbitrary and discriminatory conduct, as this section and KRS 196.037 apply to all former felons, not just black felons. Leonard v. Corrections Cabinet, 828 S.W.2d 668, 1992 Ky. App. LEXIS 75 (Ky. Ct. App. 1992).

2.De Facto Peace Officers.

Where the alleged peace officers did not file their photographs or the affidavits required by this section with the county clerk they were at least officers de facto, and, therefore, had the right to make an arrest of the defendant who was allegedly drunk on a public highway. Layne v. Commonwealth, 254 S.W.2d 724, 1953 Ky. LEXIS 612 ( Ky. 1953 ).

3.Appointment by Ordinance Prohibited.

Ordinance creating office of merchant policeman was in derogation of this section and KRS 61.360 . Walker v. Rosser, 309 S.W.2d 754, 1958 Ky. LEXIS 355 ( Ky. 1958 ).

4.Residency Requirement.

The county residency requirement of subsection (2) of this section, does not apply to city police officers and does not conflict with or repeal by implication KRS 15.335 , but merely carves out an exception. City of Ashland v. Ashland F.O.P. #3, 888 S.W.2d 667, 1994 Ky. LEXIS 114 ( Ky. 1994 ).

Cited:

Baker v. Wilson, 310 Ky. 692 , 221 S.W.2d 690, 1949 Ky. LEXIS 1272 ( Ky. 1949 ); Smiddy v. Commonwealth, 247 S.W.2d 215, 1952 Ky. LEXIS 678 ( Ky. 1952 ); Blevins v. Commonwealth, 2014 Ky. App. LEXIS 107 (Ky. Ct. App. 2014).

Opinions of Attorney General.

The attempt to personate a registered voter is a crime involving moral turpitude within the meaning of subsection (1)(c) (now clause (3)) of this section and a person convicted of such crime is ineligible to serve as one of the peace officers enumerated in this section. OAG 64-397 .

A city must retain an officer who was charged with assault and battery and flourishing a deadly weapon and who is awaiting an indictment by the grand jury unless action is taken under KRS 95.450 . OAG 67-468 .

Investigators employed by the Kentucky state humane federation who are sworn in as peace officers under KRS 436.605 must serve in the county of their appointment and they do not have statewide authority to enforce KRS 436.180 (now repealed) and 436.590 to 436.597 (now repealed) and KRS 436.600 . OAG 67-484 .

A deputy sheriff must be a continuous resident of the county for two years next preceding his appointment as deputy sheriff. OAG 69-597 .

The provisions of KRS 15.335 repeal by implication the residential requirements with respect to a deputy sheriff; thus a deputy sheriff is no longer required to meet the qualifications as to residence. OAG 70-34 .

A person who was convicted of auto theft but subsequently pardoned by the Governor is not ineligible for the position of deputy sheriff. While larceny of an automobile is a form of moral turpitude, Const., § 150 (which provides that pardon by the Governor removes the disability of exclusion from office) controls. OAG 70-99 .

A deputy constable is not disqualified from serving in that capacity because of his residing in a district other than that in which the constable resides. OAG 70-187 .

Police officers are no longer required, subsequent to KRS 15.335 , to reside within their respective cities nor are they required to have any specific length of residence in the county. OAG 71-246 .

The filing of a photograph and affidavit with the county clerk is applicable to police officers. OAG 71-246 .

The fiscal court of a county does not have authority to establish by resolution standards for merchant police since standards are established by statute. OAG 71-321 .

KRS 61.310(4) to the extent that it conflicts with (1)(d) (now clause (4)) of this section regarding outside employment repeals the restrictions found in subsection (1)(d) (now clause (4)) of this section. OAG 72-232 ; 76-621.

Deputy city marshal, which office is included within the definition of “peace officer” by KRS 446.010(24), to meet the requirement of subsection (1)(a) (now clause (1)) of this section must be 21 years of age or over and OAG 73-10 is, therefore, erroneous and must be withdrawn. OAG 73-10 3 .

As provided by subsection (1)(a) (now clause (1)) of this section, a deputy sheriff must be at least twenty-one years of age or over. OAG 73-142 .

As provided by subsection (1)(c) (now clause (3)) of this section, a city council could hire a policeman who was under indictment as long as it was a crime not involving moral turpitude, and such person could be appointed chief of police if he is not disqualified under the terms of this section, although Const., § 150, provides that conviction of a felony or high misdemeanor that would prevent a person from holding high office may be removed by pardon of the Governor. OAG 73-184 .

Although as indicated in OAG 73-103 this section would preclude the appointment of a person under the age of 21 as a city marshal or deputy marshal, the age requirement would not apply to individuals appointed as cadets or trainees since they would not be nonelected peace officers or deputy peace officers and would not possess the power of arrest, the right to carry a concealed deadly weapon, or other similar powers and immunities granted only to peace officers. OAG 73-420 .

A police officer is not required to be a resident of the city in which he is employed (affirming OAG 73-461 ). OAG 73-556 .

The county judge (now county judge/executive) is not involved in the appointment of merchant policemen or special local police officers who are distinguished from members of a county police force. OAG 73-800 .

KRS 2.015 authorizes the employment of an eighteen-year-old dog warden unless he is a deputy sheriff or some other nonelective peace officer in which event he must be twenty-one as provided by this section. OAG 74-320 .

A county police officer is not a constitutional officer for the purpose of residency under the Constitution; thus, pursuant to KRS 15.335 , limiting residency and voting qualifications to constitutional officers, the residency requirements of this section and KRS 70.540 do not apply. OAG 74-581 .

This section applies to county police officers as by definition under KRS 446.010(24) peace officer includes policemen which would include county policemen. OAG 74-581 .

The residence requirements of this section were repealed by implication by KRS 15.335 and, since a deputy sheriff is not an officer named and designated in the text of the Constitution, he is not required by Const., § 234 to reside in the county in which he serves. OAG 75-52 .

In order for a former jailer or other nonpeace officer to serve as a school security guard he must meet the qualifications of this section and be appointed in accordance with this section. OAG 75-631 .

Where a deputy sheriff had directed security guards at a work stoppage within two years of his appointment, the appointment was in violation of this section, but the alleged violations would not affect the deputy’s candidacy or eligibility to hold the office of sheriff. OAG 77-344 .

An individual presently employed as head of security for a community college, which is a state agency, would not be disqualified from serving as a nonelective peace officer because his compensation for his police work is derived from the state and not any private source and because subsection (1)(d) (now clause (4)) of this section has been repealed by implication by the 1968 amendment to KRS 61.310 . OAG 78-156 .

The prohibition of subsection (1)(d) (now clause (4)) of this section is not a prohibition against serving as a private security guard or policeman, per se, but it is a prohibition against serving as such while an active participant in any labor dispute. OAG 78-456 .

As long as KRS 196.037 designates personnel of the Bureau of Corrections (now Corrections Cabinet) as having the powers of peace officers when they perform custodial duties over prisoners, such personnel must meet the age requirement for peace officers, set forth in this section, which requires all such officers to be 21 years of age. OAG 78-486 .

Since a state policeman is not appointed in a particular county, is not inevitably destined to serve in a particular county, his jurisdiction is statewide, and he is subject to duty in any county in Kentucky, the qualifications of a nonelective peace officer under this section were not designed to fit or apply to state policemen. OAG 78-836 .

Nothing in this section requires that peace officers be bonded. OAG 79-400 .

KRS 15.335 remains effective irrespective of the subsequent amendments to KRS 63.180 , 95.710 and this section and consequently controls the residency requirements for police officers in cities of the fifth class. OAG 79-505 .

This section setting the qualifications for nonelective peace officers and KRS 95.710 which required city residency, if possible, or at least county residency, were impliedly repealed by the enactment of KRS 15.335 , to the extent of the conflict. OAG 79-505 .

If an applicant for a regular deputy position has within a period of two years hired himself out, performed any service, or received any compensation from any private source for being an active participant in any labor dispute, the applicant would be disqualified. OAG 80-72 .

A county ordinance requiring deputy sheriffs to complete a two-week peace officer course at the Kentucky Bureau of Training (now Department of Criminal Training) within six (6) months of appointment, qualify on a pistol range and purchase a minimum of $100,000 professional liability insurance as minimum qualifications for deputy sheriffs is invalid since it conflicts with the various requirements of KRS 70.030 , this section, and KRS 15.335 which preempt the field of deputy qualifications. OAG 81-35 .

Where a 19-year-old office clerk was hired for the county sheriff’s office as a county employee, under the CETA program, she could not be retained as an office clerk hired by the sheriff’s office because she was not a sworn deputy who had been appointed by the fiscal court by the first Monday in May pursuant to KRS 64.530 and since she was not 21 years of age as required by this section. OAG 81-219 .

A deputy jailer must be at least 21 years of age. OAG 82-463 .

Where the matron qualifies as a deputy jailer under this section, the fiscal court can approve the jailer’s appointment of the former matron as a third regular deputy under KRS 71.060(1). OAG 83-34 .

A jail matron is a deputy and must meet the qualifications of a peace officer under this section. OAG 83-34 .

Any person who has been convicted of a crime involving moral turpitude may not act in any capacity entailing the maintenance of custody over prisoners. OAG 83-205 .

The Corrections Cabinet may employ ex-offenders to perform duties which do not entail the maintenance of custody over prisoners; if ex-offenders are hired to serve in a capacity involving the maintenance of custody over prisoners, however, such ex-offenders must meet the qualifications set forth in this section. OAG 83-205 .

In view of the fact that those persons afforded peace officer status by virtue of KRS 196.037 , governing corrections personnel, are clearly nonelective peace officers, such persons must meet the qualifications mandated for such officers by this section. OAG 83-205 .

A deputy sheriff under subdivision (2) must be a continuous resident of the county of his appointment for two (2) years next preceding his appointment as deputy sheriff. OAG 83-269 .

Subdivision (2) of this section, which establishes a two-year residency requirement for certain peace officers, repeals by implication KRS 15.335 , which waives the residency requirements for peace officers, to the extent of their conflict; thus a deputy sheriff is required to have resided in the county of appointment for a period of at least two (2) years. OAG 83-491 .

The requirement of residency as used in subdivision (2) of this section refers to living in the county and participation in the life of the county. OAG 86-9 .

By virtue of KRS 70.045(1) a special deputy appointed pursuant to KRS 70.045(1) is not subject to the residential requirements imposed by this section. OAG 90-51 .

An employing entity could probably dismiss from the force those officers who failed to obtain the instruction required pursuant to KRS 15.333 within the time authorized. OAG 91-61 .

Nonelective peace officers are required to receive, on an annual basis, the training program concerning HIV and AIDS. Such instruction is one of the required qualifications of persons holding those positions. If a person does not obtain the required instruction, his employment and peace officer powers are not automatically terminated, although the employing entity should be certain that its officers have received the required training, as the validity of an arrest may be challenged if the officer does not have the qualifications required of a nonelective peace officer. OAG 91-61 .

A person appointed pursuant to KRS 454.145 , having the same power as a sheriff in connection with the execution of a given process under KRS 70.180 , is in the status of an “other nonelective peace officer” within the meaning of this section. OAG 95-4 .

Research References and Practice Aids

Cross-References.

Deputies, appointment of not to be authorized by local or special act, Const., § 59(18).

Peace officers, removal not bar to criminal proceedings, KRS 63.130 .

Removal of nonelective peace officer, KRS 63.180 .

Northern Kentucky Law Review.

2008 Criminal Law Issue: Note: Kentucky’s Statutory Collateral Consequences Arising From Felony Convictions: A Practitioner’s Guide, 35 N. Ky. L. Rev. 413 (2008).

61.310. Compensation of peace officers — Other employment — Gratuities — Penalties.

  1. “Peace officer,” as used in this section, means any sheriff, deputy sheriff, constable, deputy constable, patrol or any other peace officer or deputy peace officer except those appointed pursuant to KRS 61.360 or 277.270 and those employed by a board of education.
  2. A peace officer shall not receive any compensation or remuneration, directly or indirectly, from any person for the performance of any service or duty, except that he or she may be compensated for employment authorized by subsection (4) of this section and accept donations in accordance with subsection (8) of this section. Any peace officer who violates this subsection may be removed from office, under the provisions of KRS 63.170 .
    1. Peace officers shall receive for the performance of their services and duties only such compensation or remuneration as is regularly provided and paid out of the public funds to the amount and in the manner provided by law, except that they may be compensated from private funds for employment authorized by subsection (4) of this section and accept donations of private funds in accordance with subsection (8) of this section. (3) (a) Peace officers shall receive for the performance of their services and duties only such compensation or remuneration as is regularly provided and paid out of the public funds to the amount and in the manner provided by law, except that they may be compensated from private funds for employment authorized by subsection (4) of this section and accept donations of private funds in accordance with subsection (8) of this section.
    2. Except as set out in subsection (8) of this section, donations made by persons to any governmental unit or officer thereof do not constitute public funds within the meaning of this subsection.
  3. A peace officer may, while in office, and during hours other than regular or scheduled duty hours, act in any private employment as guard or watchman or in any other similar or private employment. However, he may not participate directly or indirectly, in any labor dispute during his off-duty hours. Any peace officer who violates this subsection may be removed from office, under the provisions of KRS 63.170 .
  4. No principal peace officer shall appoint or continue the appointment of any deputy contrary to the provisions of this section. When it appears by the affidavit of two (2) citizens, taxpayers of the county, filed with any principal peace officer, that there is reasonable cause to believe that any of his deputies are receiving compensation from private sources contrary to the provisions of this section, the peace officer shall forthwith investigate the charges contained in the affidavit, and if he finds the charges are true he shall forthwith remove any such deputy from office. Failure to do so shall constitute neglect of duty on the part of the principal peace officer, and he may be removed from office under the provisions of KRS 63.170 .
  5. In addition to being subject to removal from office, any peace officer who violates any of the provisions of this section shall be fined not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000), or confined in jail for not more than one (1) year, or both.
  6. Except as provided in subsection (8) of this section and KRS 61.360 and 277.280 , any person who directly or indirectly pays or contributes or causes to be paid or contributed any money or other thing of value to any peace officer or to any governmental unit or officer thereof, either as a gift or donation for the performance of any public duty shall be fined not less than five hundred ($500) nor more than five thousand dollars ($5,000).
    1. A sheriff may accept a donation of money or goods to be used for the public purposes of his or her office if the sheriff establishes a register for recording all donations that includes, at a minimum: (8) (a) A sheriff may accept a donation of money or goods to be used for the public purposes of his or her office if the sheriff establishes a register for recording all donations that includes, at a minimum:
      1. The name and address of the donor;
      2. A general description of the donation;
      3. The date of acceptance of the donation;
      4. The monetary amount of the donation, or its estimated worth; and
      5. Any purpose for which the donation is given. The register shall constitute a public record, be subject to the provisions of KRS 61.870 to 61.884 , and be made available to the public for inspection in the sheriff’s office during regular business hours.
    2. Any donation to a sheriff shall only be used to further the public purpose of the office and shall not be used for the private benefit of the sheriff, his or her deputies, or other employees of the office.
    3. All donations made in accordance with this subsection shall be expended and audited in the same manner as other funds or property of the sheriff’s office.
    4. For the purposes of this section and KRS 521.060 , a donation shall not be construed to mean a campaign contribution made to the sheriff for his or her reelection.

History. 3766a-15 to 3766a-17, 3766a-19 to 3766a-22, 3766a-24: amend. Acts 1968, ch. 15; 2005, ch. 103, § 1, effective June 20, 2005.

Legislative Research Commission Note.

(1987). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1.Other Employment Regulations.

Prohibition of certain types of employment is one means of preventing conflicts of interest and a decline in community respect for the police; therefore, although most off-duty employment would not contravene this policy and thus would be immune from regulation, two types of off-duty employment, direct involvement with the sale of alcoholic beverages and employment by persons with a criminal reputation, were determined by the local legislative body to constitute conduct which would inevitably result in a violation of departmental policy; this conduct was inherently conflicting with police duties and as a result, the prohibitions did not violate this section or KRS 95.015 . Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

Regulations which require officers engaged in off-duty employment to provide insurance and indemnity for benefit of the Urban County Government did not violate this section or KRS 95.015 . Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

The prior authorization by the Chief of Police requirement for officers to accept outside employment was held invalid but was separate from the general restrictions upon off-duty employment, as the restrictions were not essentially and inseparably connected with and dependent upon the prior authorization requirement and were complete and capable of standing alone; severance of the prior authorization provision did not affect the intent of the legislative body in enacting the remainder of the county police regulations. Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

2.Construction.

Appellee’s magistrate duties did not conflict with his police officer duties and there is no indication that Ky. Rev. Stat. Ann. § 61.310(4) was intended to supplement or contravene the system governing the type of public offices which a municipal employee, such as a peace officer, may hold. Clark Cty. Atty. v. Thompson, 617 S.W.3d 427, 2021 Ky. App. LEXIS 2 (Ky. Ct. App. 2021).

Opinions of Attorney General.

A chemical company that hired a deputy sheriff as a full-time supervisor of watchmen and guards may be in violation of the statute. OAG 61-490 .

A deputy sheriff may not obtain private employment in a position in which he acts as a watchman or guard, or supervises watchmen and guards. OAG 61-490 .

A sheriff who continues the appointment of a deputy sheriff who is also employed full time as the supervisor of watchmen and guards for a chemical plant is acting contrary to the provisions of the statute. OAG 61-490 .

A city policeman who is a peace officer cannot serve as a guard for a coal mine company, which would be a form of private employment, without violating the statute. OAG 62-1160 .

The operation of a commissary in the jail by the county sheriff would not constitute a violation of the statute. OAG 64-309 .

A suit would lie to compel disclosure of the disposition of profits from a commissary operated by the sheriff in a county jail or to enjoin personal enrichment. OAG 64-309 .

Public policy would require the sheriff-jailer to disclose fully the operations of a commissary operated by him at the jail and to make public the recipients of management fees and commissary profits. OAG 64-309 .

KRS 64.720 specifically authorizes a fiscal court to pay the constable a salary out of the county treasury, not to exceed $7200 pursuant to Const., § 246. OAG 65-71 .

A city may not enact an ordinance to restrict or limit all nonelected peace officers and city firemen from seeking and obtaining outside employment during their off hours. OAG 68-378 .

Members of the auxiliary police force of a county may exercise their powers of arrest, while engaged in guard duty for pay for private concerns, without violating subsection (7) of this section since the policeman is being paid for his private guard duty and not any public duty. OAG 69-516 .

A duly elected constable may while constable and during hours other than regularly scheduled duty hours serve as a night watchman for a hospital. OAG 70-104 .

A peace officer is a peace officer 24 hours a day, and he has a continuing right and duty to act in behalf of the people generally even during his off-duty hours. OAG 70-726 .

A peace officer’s right of arrest is not diminished by accepting private employment during his off-duty hours. OAG 70-726 .

A city chief of police could accept employment in his off-duty hours from a person in the county to act as a parking supervisor and keeper of the peace at functions for profit. OAG 71-327 .

Deputy county jailer may serve as a special peace officer for the University of Kentucky with no resulting constitutional or statutory incompatibility, since a special local peace officer is not a peace officer under subsection (24) of KRS 446.010 and because subsection (4) of this section allows a deputy jailer to carry on such employment during hours other than regular or scheduled duty hours. OAG 72-140 .

Subsection (4) of this section to the extent that it conflicts with KRS 61.300 (1)(d) (now KRS 61.300 (5)) regarding outside employment, repeals the restrictions found in KRS 61.300 (1)(d) (now KRS 61.300(5)). OAG 72-232 ; 76-621.

In view of this section and KRS 95.015 and pursuant to KRS 95.800 (now repealed), a sixth-class city may through its marshal appoint a policeman who is also an employe of a private police organization. OAG 73-431 .

A constable may be appointed under KRS 61.360 as a security guard at a school during his off-duty hours. OAG 75-631 .

County police officers, pursuant to the provisions set forth in this section, may obtain outside employment during off-duty hours as security guards. OAG 76-620 .

Subsection (4) of this section and KRS 95.015 permit police officers to seek and obtain outside employment during their off-duty hours without any restrictions or limitations being imposed by local governmental units so long as it does not interfere with the performance of their official duties. OAG 76-620 .

Pursuant to this section, city, county and state police officers may seek and obtain outside employment during their off-duty hours as long as it does not interfere with the performance of their official duties and does not involve their participation, directly or indirectly, in any labor dispute. OAG 77-347 .

The qualification provision under KRS 61.300 (1)(d) (now KRS 61.300 (5)) has been repealed by implication by the enactment of the 1968 amendment authorizing a peace officer, while in office, to act in any private employment as a guard or watchman so that a person who served as a privately paid policeman within two (2) years of his becoming a nonelected peace officer would be qualified to serve as such. OAG 72-232 ; 78-156.

In order that the phrase “… either as a gift or donation or for the performance of any public duty …” of subsection (7) of this section would not proscribe a gift or donation to peace officers for legitimate purposes, the second disjunctive “or” should be deleted from the phrase so that it would read “… either as a gift or donation for the performance of any public duty …” thus obviating the literal inconsistency in the subsection. OAG 78-276 .

In view of the fact that a police officer may be privately employed during off duty hours in any capacity, including that of a guard or watchman, he is certainly entitled to any compensation that may result from such employment whether it be in the form of an award or basic compensation. OAG 80-555 .

While municipal police officers have the statutory right under KRS 95.015 and subsection (4) of this section to seek and obtain outside employment during their off-duty hours, such employment cannot be permitted to create a conflict with their official duties as police officers and whether a particular outside interest, such as investigating crimes or noncriminal matters for law firms, insurance companies or other private entities, is sufficient to create a conflict is a factual question depending upon the circumstances of the particular case. OAG 81-358 .

There is no legal basis whereby a sheriff may directly receive donations from private persons or corporations for the purpose of funding the sheriff’s office. OAG 82-433 .

The fiscal court may accept donations from any private or corporate sector for the purpose of such funds being used to assist, where necessary, in the funding of the sheriff’s office, provided that the gift agreement makes it clear that the fiscal court will retain its usual statutory discretion in the detailed disbursement of such funds for the sheriff’s office, and with the express understanding that the gift is not for any particular or specific performance of any public duty by the sheriff, his deputies or matrons. So long as the gift of a particular donor cannot be traced directly as specifically funding the statutory work of the sheriff, or of a particular deputy or matron, the legislative policy described somewhat vaguely in this section will not be violated. OAG 82-433 .

There was no violation of this section where fiscal court advertised for bids for the furnishing of repair service for certain radio equipment and police officer, who during his off-duty time owned and operated a radio repair service, submitted a sealed bid to perform the requested work, which bid was accepted as the lowest and best bid. OAG 83-86 .

This section, as supported by the policy expressed in KRS 95.015 , permits a county police officer to serve in private employment or in his own private business endeavor, provided that it is after regular hours and so long as it does not interfere with the performance of his regular duties as a county policeman. OAG 83-86 .

Municipal officers have the right, under KRS 95.015 and subsection (4) of this section, to seek and obtain outside employment during their off-duty hours without any restrictions or limitations being imposed by local governmental units, so long as it does not interfere with the performance of their official duties. OAG 83-90 .

61.315. Benefits payable on death of certain peace officers, firefighters, correctional officers, jailers, school resource officers, members of a state National Guard or Reserve component and emergency medical services personnel — Administrative regulations — Estates to be exempted from probate fees — Funds allotted to a self-insuring account — Presumption that firefighter’s death from cancer resulted from act in the line of duty under certain conditions.

  1. As used in this section:
    1. “Police officer” means every paid police officer, sheriff, or deputy sheriff, corrections employee with the power of a peace officer pursuant to KRS 196.037 , any metropolitan or urban-county correctional officer with the power of a peace officer pursuant to KRS 446.010 , any jailer or deputy jailer, any auxiliary police officer appointed pursuant to KRS 95.445 , any police officer of a public institution of postsecondary education appointed pursuant to KRS 164.950, any school resource officer as defined in KRS 158.441, or any citation or safety officer appointed pursuant to KRS 83A.087 and 83A.088 , elected to office, or employed by any county, airport board created pursuant to KRS Chapter 183, city, local board of education, or by the state;
    2. “Firefighter” means every paid firefighter or volunteer firefighter who is employed by or volunteers his or her services to the state, airport board created pursuant to KRS Chapter 183, any county, city, fire district, or any other organized fire department recognized, pursuant to KRS 95A.262 , as a fire department operated and maintained on a nonprofit basis in the interest of the health and safety of the inhabitants of the Commonwealth and shall include qualified civilian firefighters employed at Kentucky-based military installations; and
    3. “Emergency medical services personnel” means any paid or volunteer emergency medical services personnel who is certified or licensed pursuant to KRS Chapter 311A and who is employed directly by, or volunteering directly for, any:
      1. County;
      2. City;
      3. Fire protection district created under KRS 75.010 to 75.260 ; or
      4. Emergency ambulance service district created under KRS 108.080 to 108.180 ; to provide emergency medical services.
  2. The spouse of any police officer, sheriff, deputy sheriff, corrections employee with the power of a peace officer pursuant to KRS 196.037 , any metropolitan or urban-county correctional officer with the power of a peace officer pursuant to KRS 446.010 , any jailer or deputy jailer, any auxiliary police officer appointed pursuant to KRS 95.445 , any police officer of a public institution of postsecondary education appointed pursuant to KRS 164.950, any school resource officer as defined in KRS 158.441, or any citation or safety officer appointed pursuant to KRS 83A.087 and 83A.088 , firefighter, or member of the Kentucky National Guard on state active duty pursuant to KRS 38.030 , or a member of a state National Guard or a Reserve component on federal active duty under Title 10 or 32 of the United States Code who names Kentucky as home of record for military purposes, whose death occurs on or after July 1, 2002, as a direct result of an act in the line of duty shall receive a lump-sum payment of eighty thousand dollars ($80,000) if there are no surviving children, which sum shall be paid by the State Treasurer from the general fund of the State Treasury. The spouse of any emergency medical services personnel whose death occurs on or after November 1, 2015, as a direct result of an act in the line of duty shall receive a lump-sum payment of eighty thousand dollars ($80,000) if there are no surviving children, which sum shall be paid by the State Treasurer from the general fund of the State Treasury. If there are surviving children and a surviving spouse, the payment shall be apportioned equally among the surviving children and the spouse. If there is no surviving spouse, the payment shall be made to the surviving children, eighteen (18) or more years of age. For surviving children less than eighteen (18) years of age, the State Treasurer shall:
    1. Pay thirty-five thousand dollars ($35,000) to the surviving children; and
    2. Hold forty-five thousand dollars ($45,000) in trust divided into equal accounts at appropriate interest rates for each surviving child until the child reaches the age of eighteen (18) years. If a child dies before reaching the age of eighteen (18) years, his or her account shall be paid to his or her estate. If there are no surviving children, the payment shall be made to any parents of the deceased.
  3. The Kentucky Fire Commission shall be authorized to promulgate administrative regulations establishing criteria and procedures applicable to the administration of this section as it pertains to both paid and volunteer firefighters, including but not limited to defining when a firefighter has died in line of duty. Administrative hearings promulgated by administrative regulation under authority of this subsection shall be conducted in accordance with KRS Chapter 13B.
  4. The Justice and Public Safety Cabinet may promulgate administrative regulations establishing criteria and procedures applicable to the administration of this section as it pertains to police officers, any metropolitan or urban-county correctional officers with the power of a peace officer pursuant to KRS 446.010 , any school resource officer as defined in KRS 158.441, or any jailers or deputy jailers, including but not limited to defining when one has died in line of duty. Administrative hearings promulgated by administrative regulation under authority of this subsection shall be conducted in accordance with KRS Chapter 13B.
  5. The Department of Corrections shall promulgate administrative regulations establishing the criteria and procedures applicable to the administration of this section as it pertains to correctional employees, including but not limited to defining which employees qualify for coverage and which circumstances constitute death in the line of duty.
  6. The Kentucky Board of Emergency Medical Services shall promulgate administrative regulations establishing the criteria and procedures applicable to the administration of this section as it pertains to emergency medical services personnel, including but not limited to which employees or volunteers qualify for coverage and which circumstances constitute death in the line of duty.
  7. The Department of Military Affairs shall promulgate administrative regulations establishing the criteria and procedures applicable to the administration of this section as it pertains to National Guard or Reserve component members, including but not limited to defining which National Guard or Reserve component members qualify for coverage and which circumstances constitute death in the line of duty.
  8. The estate of anyone whose spouse or surviving children would be eligible for benefits under subsection (2) of this section, and the estate of any regular member of the United States Armed Forces who names Kentucky as home of record for military purposes whose death occurs as a direct result of an act in the line of duty, shall be exempt from all probate fees, including but not limited to those established by the Supreme Court of Kentucky pursuant to KRS 23A.200 and 24A.170, or imposed under KRS 24A.185, 64.012 , and 172.180 .
  9. The benefits payable under this section shall be in addition to any benefits now or hereafter prescribed under any police, sheriff, firefighter’s, volunteer firefighter’s, emergency medical services personnel, or National Guard or Reserve retirement or benefit fund established by the federal government or by any state, county, or any municipality.
  10. Any funds appropriated for the purpose of paying the death benefits described in subsection (2) of this section shall be allotted to a self-insuring account. These funds shall not be used for the purpose of purchasing insurance.
    1. For the purposes of this section, if a firefighter dies as a result of cancer, the death shall be a direct result of an act in the line of duty if the firefighter: (11) (a) For the purposes of this section, if a firefighter dies as a result of cancer, the death shall be a direct result of an act in the line of duty if the firefighter:
      1. Was a firefighter for at least five (5) consecutive years;
      2. Developed one (1) or more of the cancers listed in paragraph (b) of this subsection which caused the firefighter’s death within ten (10) years of separation from service as a firefighter;
      3. Did not use tobacco products for a period of ten (10) years prior to the diagnosis of cancer;
      4. Was under the age of sixty-five (65) at the time of death;
      5. Was not diagnosed with any cancer prior to employment as a firefighter; and
      6. Was exposed while in the course of firefighting to a known carcinogen as defined by the International Agency for Research on Cancer or the National Toxicology Program, and the carcinogen is reasonably associated with one (1) or more of the cancers listed in paragraph (b) of this subsection.
    2. This section shall apply to the following cancers:
      1. Bladder cancer;
      2. Brain cancer;
      3. Colon cancer;
      4. Non-Hodgkin’s lymphoma;
      5. Kidney cancer;
      6. Liver cancer;
      7. Lymphatic or haematopoietic cancer;
      8. Prostate cancer;
      9. Testicular cancer;
      10. Skin cancer;
      11. Cervical cancer; and
      12. Breast cancer.
      1. The provisions of this subsection creating an entitlement to the line of duty death benefits shall apply exclusively to this section and shall not be interpreted or otherwise construed to create either an express or implied presumption of work-relatedness for any type of claim filed pursuant to KRS Chapter 342. (c) 1. The provisions of this subsection creating an entitlement to the line of duty death benefits shall apply exclusively to this section and shall not be interpreted or otherwise construed to create either an express or implied presumption of work-relatedness for any type of claim filed pursuant to KRS Chapter 342.
      2. This paragraph is intended to provide clarification regarding the sole and exclusive application of this subsection to only the benefits available under this section and shall not be used as a bar or other type of limitation to impair or alter the rights and ability of a claimant to prove work-relatedness under KRS Chapter 342 or other laws.

History. Enact. Acts 1972, ch. 8, § 1; 1976, ch. 35, § 1; 1978, ch. 164, § 4, effective June 17, 1978; 1980, ch. 344, § 1, effective July 15, 1980; 1982, ch. 250, § 1, effective July 15, 1982; 1984, ch. 247, § 1, effective July 13, 1984; 1986, ch. 135, § 1, effective July 15, 1986; 1988, ch. 225, § 26, effective July 15, 1988; 1992, ch. 48, § 3, effective July 14, 1992; 1992, ch. 294, § 1, effective April 9, 1992; 1992, ch. 307, § 10, effective April 9, 1992; 1992, ch. 381, § 8, effective July 14, 1992; 1996, ch. 117, § 1, effective July 15, 1996; 1996, ch. 318, § 28, effective July 15, 1996; 2002, ch. 289, § 1, effective July 15, 2002; 2006, ch. 252, Pt. XXVIII, § 12, effective April 25, 2006; 2007, ch. 85, § 128, effective June 26, 2007; 2012, ch. 46, § 1, effective July 12, 2012; 2013, ch. 22, § 1, effective June 25, 2013; 2016 ch. 21, § 1, effective April 1, 2016; 2016 ch. 15, § 1, effective July 15, 2016; 2020 ch. 5, § 6, effective February 21, 2020; 2020 ch. 67, § 4, effective July 15, 2020.

Compiler’s Notes.

Acts 1986, ch. 135, § 2 provides that this section shall be retroactive to June 16, 1984.

Section 4 of Acts 1992, ch. 294 provides: “It is the intent of the General Assembly, upon this Act becoming law, that the benefits specified within Section 1 of this Act shall apply to the survivors of police officers and firefighters killed in the line of duty on or after January 1, 1992.”

Legislative Research Commission Notes.

(7/15/2020). This statute was amended by 2020 Ky. Acts chs. 5 and 67, which do not appear to be in conflict and have been codified together.

(7/15/2016). 2016 Ky. Acts ch. 15, sec. 2 provided that that Act may be cited as the John Mackey Memorial Act. This statute was amended in Section 1 of that Act.

(4/25/2006). 2006 Ky. Acts ch. 252, Pt. XXVIII, sec. 17, provides that the amendments made to subsections (2) and (6) of this section “shall apply retroactively to July 1, 2002.”

(1988). Although this section was included in 1988 Acts ch. 225, § 26, the amended language was deleted by committee amendment.

Opinions of Attorney General.

Fire-fighters employed by volunteer fire departments or by fire protection districts pursuant to KRS Chapter 75 would not qualify for benefits under this section, because the term “employed” as used in this section refers only to those firefighters who are actually employed by a city, county, or by the state. OAG 80-470 .

Research References and Practice Aids

Cross-References.

Death benefits:

Second-class cities, KRS 95.860 .

Third-class cities, KRS 95.550 , 95.624 .

Fourth and fifth-class cities, KRS 95.773 .

Kentucky Law Journal.

Kentucky Law Survey, Adams, Torts, 73 Ky. L.J. 481 (1984-85).

61.316. Benefits to be paid on death of volunteer firefighter — Volunteer firefighter defined — Rules and regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 246, § 12, effective July 15, 1982; 1984, ch. 247, § 2, effective July 13, 1984; 1992, ch. 381, § 2, effective July 14, 1992) was repealed by Acts 2002, ch. 289, § 4, effective July 15, 2002.

61.320. County road officials to turn over money to successor — Penalty for failure.

Each county road official shall, at the expiration of his term of office, pay over to his successor all the money in his hands by virtue of his office, and take duplicate receipts therefor, one (1) of which shall be filed with the county clerk. If he fails to do so, the county may recover double the amount in his hands.

History. 4356i.

Research References and Practice Aids

Cross-References.

Delivery of money, books, custody of persons, etc., to successor in office:

Auditor of public accounts, KRS 43.040 .

Books furnished by state, KRS 57.360 .

Constable, KRS 70.340 .

Jailer, KRS 71.100 .

Treasurer:

County, KRS 68.050 , 68.990 .

State, KRS 41.330 .

61.330. Chief state school officer to deliver effects to successor — Penalty.

Upon retiring from office the chief state school officer shall deliver to his successor all books, papers, and effects belonging to the office, and on failure to do so he shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500), which shall be recovered by indictment in the Franklin Circuit Court.

History. 4384-33: amend. Acts 1990, ch. 476, Pt. IV, § 119, effective July 13, 1990.

61.340. County or city clerk to deliver records to successor — Penalty for failure.

Upon the resignation, removal from office or expiration of the term of office of a county or city clerk, he shall immediately, upon application, deliver to his successor, or such other person as the city or county legislative body orders, all books, records and other papers belonging to his office, and for failure to do so he shall be fined one thousand dollars ($1,000) and imprisoned from one (1) to twelve (12) months.

History. 374: amend. Acts 1976 (Ex. Sess.), ch. 14, § 19, effective January 2, 1978.

NOTES TO DECISIONS

1.Liability of Sureties.

Clerk’s sureties are not liable for their principal’s failure to obey this section, their bond binding them only for the performance of his duties while in office. Trammell v. Myrick, 165 Ky. 399 , 176 S.W. 1185, 1915 Ky. LEXIS 532 ( Ky. 1915 ).

61.350. Cemetery companies and burying grounds, penalty for failure to enforce laws relating to.

Any civil or judicial officer in this state who fails or refuses to enforce any statute bearing upon cemetery companies or burying grounds shall be fined twenty-five dollars ($25) for each failure or refusal.

History. 208.

61.360. Special local peace officers — Appointment — Fee — Qualifications — Removal — Duties — Not to impersonate public police officer.

The Governor or his agent may appoint special local peace officers, for such time as he deems necessary, to preserve the peace and protect the property of any person from waste or destruction; provided, however, that no such peace officer(s) shall be actively employed at any factory, mine, workshop, retail establishment, or at any other location where a strike, a slowdown, a sit in, or any other type of work stoppage exists, if the employment of such peace officer(s) would result in the unreasonable expansion of the normal complement of such peace officers or the relieving of normal guards or peace officers to perform other duties. Upon the application of an owner of property for such services, and upon payment of a fee of ten dollars ($10) for each officer to be appointed, the Governor may immediately appoint the person recommended by the owner, if the person is eligible. No person shall be eligible for appointment under this section unless he has established to the satisfaction of the Governor that he possesses the following qualifications:

  1. No person shall serve as a special local peace officer:
    1. Unless he is a citizen of the United States, is twenty-one (21) years of age or over, and unless he is able to read and write;
    2. Unless he has resided in the Commonwealth for a period of at least one (1) year;
    3. Who has ever been convicted of or is under indictment for a crime involving moral turpitude, dishonesty, or fraud; unauthorized divulging or selling of information or evidence; impersonation of a law enforcement officer or employee of the United States or any state or political subdivision thereof; illegally using, carrying, or possessing a firearm or dangerous weapon; habitual drunkenness; using or selling or possessing narcotics; or who has been adjudged mentally disabled by a court of competent jurisdiction and such adjudication has not been set aside; or has renounced his citizenship, or, being an alien, is illegally or unlawfully in the United States;
    4. Who within a period of two (2) years has hired himself out, performed any service, or received any compensation from any private source for acting, as a privately paid detective, policeman, guard, peace officer, or otherwise as an active participant in any labor dispute, or conducted the business of a private detective agency or of any agency supplying private detectives, private policemen, or private guards, or advertised or solicited any such business in connection with any labor dispute;
    5. Unless he has filed his photograph with the county clerk of the county in which he is to serve, together with his affidavit stating his full name, age, and residence address and that he is not prohibited from serving by this section.
  2. The photograph so filed with the county clerk shall constitute a public record. The Governor may remove any officer so appointed at will or at the request of the owner of the property.
  3. The duties of the officer shall be confined to the premises of the property to be protected, except while in pursuit of a person fleeing from the property after committing an act of violence or destruction of the property. In that case, the officer may pursue the person and make arrest anywhere within this state. He may wear such badges and insignia as will plainly indicate to the public that he is a special local peace officer, but he shall not, in any event, wear any uniform, or any part thereof, of any public police officer; nor shall he in any way impersonate a public police officer or represent himself to any person or persons as being a public police officer; nor shall he perform any of the duties of a public police officer, except those specifically herein granted and at the places herein specifically designated.
  4. Application fees shall be placed in the State Treasury and credited to a revolving fund for administrative expenses.
  5. Every special local peace officer appointed pursuant to this section shall execute bond in the amount of five thousand dollars ($5,000).

History. 3766a-22: amend. Acts 1946, ch. 239; 1970, ch. 119, § 1; repealed Acts 1976, ch. 178, § 18, effective January 1, 1977; reenacted Acts 1978, ch. 383, § 1, effective June 17, 1978; 1982, ch. 141, § 44, effective July 1, 1982; 1998, ch. 98, § 2, effective July 15, 1998.

Compiler’s Notes.

This section was amended by § 47 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Appointment by Ordinance Prohibited.

Ordinance creating office of merchant policeman was in derogation of this section and KRS 61.300 . Walker v. Rosser, 309 S.W.2d 754, 1958 Ky. LEXIS 355 ( Ky. 1958 ).

2.Right to Carry Weapon.

A special local police officer, like any other person, had the legal right under any circumstances to carry a pistol so long as it was not concealed on or about his person. Smith's Adm'r v. Corder, 286 S.W.2d 512, 1956 Ky. LEXIS 412 ( Ky. 1956 ).

3.Employers.

Guards furnished by incorporated private police service for protection of industrial plants, and appointed and paid in accordance with the provisions of this section, were employes of the private police service and not of the state, and were entitled to the benefits of the federal fair labor standards act. Walling v. Merchants Police Service, Inc., 59 F. Supp. 873, 1945 U.S. Dist. LEXIS 2472 (D. Ky. 1945 ).

A partnership which contracted with property owners to furnish guards for such property, which guards were made special local police officers and paid as provided by this section, was an employer of such guards within the meaning of KRS 341.050 and as such liable for unemployment compensation taxes. Commonwealth v. Potts, 295 Ky. 724 , 175 S.W.2d 515, 1943 Ky. LEXIS 346 ( Ky. 1943 ).

4.Liability of Employer.

The jurisdiction of a special local police officer appointed by the Governor under this section was confined to the company’s premises and where said officer was four miles from his place of employment when he shot a man while intoxicated under circumstances having no relation to his employment except the mere fact his appointment authorized him to carry a pistol in the discharge of his official duties under KRS 435.230 (repealed), the employer was not liable for the homicide since, even if it would be regarded as negligence to have procured the appointment of a person of the characteristics attributed to the special officer to be a police officer with authority to go armed when on duty, the consequences in this case were too remote to impose liability therefor. Smith's Adm'r v. Corder, 286 S.W.2d 512, 1956 Ky. LEXIS 412 ( Ky. 1956 ).

Opinions of Attorney General.

A person may, without being appointed a special local police officer by the Governor, act as a night watchman or security guard, wear a uniform, carry an unconcealed weapon and display a badge or insignia indicative of his control over the property he is protecting, but it must be plainly indicated that he is not a public police officer and neither the uniform, badge, or insignia, nor any combination thereof may indicate that he is a public police officer. Furthermore, the badge or insignia of such a guard may not carry the inscription “security police,” or use such terms as police, policeman, peace officer, or officer, or conservator of the peace and such a guard in his contacts with persons on the property he is protecting, must act so that he does not in any way indicate that he may be a public police officer. OAG 61-360 .

A special police officer appointment under this section would not give such officer the power to arrest a shoplifter. He would only have the power of detention under KRS 433.236 ; and he would have the same detention authority as any other employe of the establishment. OAG 68-498 .

Conservation officers may not be appointed special local peace officers. OAG 69-545 .

The position of special industrial policeman is not a municipal office and no incompatibility would exist if such person also held the office of mayor. OAG 69-649 .

Where two persons wish to operate as special policemen at multiple locations, they must receive a separate commission for each property they are employed to protect. OAG 79-350 .

If county police officers are also employed off duty as special local peace officers pursuant to this section, subsection (3) of this section prohibits such county officers from wearing the county police uniform while serving as special local peace officers. OAG 83-90 .

Under subsection (3) of this section, off-duty county police officers cannot wear county police uniforms while employed (actually on duty) as private security guards; however, should an occasion arise, while he is working as a private security guard, in which the off-duty county policeman believes that he should utilize his powers of arrest as a county policeman (a peace officer), he may do so, provided he fully informs the person arrested that he is also a county policeman as well as a private security guard since, in that way, no deception will be practiced. Subsection (3) merely prohibits actual deception, and especially where the security guard is not a public peace officer. OAG 83-90 .

Under the broad powers of a school board, pursuant to KRS 160.160 and 160.290, it could employ a security guard to look after its properties; such security guard, to be effective, should be a special local peace officer commissioned according to this section. OAG 84-107 .

Vehicles used by special local peace officers cannot lawfully be equipped with flashing lights for use in attempting to cause motorists to stop or yield the right-of-way. OAG 91-186 .

Research References and Practice Aids

Cross-References.

Railroad police, KRS 277.270 to 277.290 .

Sheriffs, constables, patrols and guards, KRS Ch. 70.

Special law enforcement officers, KRS 61.900 to 61.930 .

Kentucky Law Journal.

Warsoff, The Judicial Veto, 27 Ky. L.J. 45 (1938).

61.362. Agreement permitting peace officers to patrol private residential property to enforce state and local traffic and motor vehicle laws.

  1. Any public police department, sheriff’s office, or the Department of Kentucky State Police may, upon written agreement with a residential property owner or a residential property owners’ association, patrol the roadways and parking lots of private residential communities within the jurisdiction of the public police department, sheriff’s office, or the Department of Kentucky State Police and enforce the traffic and motor vehicle laws of the Commonwealth of Kentucky and local traffic and motor vehicle ordinances, on that residential private property.
  2. This section shall not permit a public police department, sheriff’s office, or the Department of Kentucky State Police to enforce the private rules or regulations of the residential property owner.
  3. This section shall not limit any peace officer from coming on residential private property for the enforcement of the law, provided that the entry upon residential private property is consistent with the provisions of the Constitution of the United States, the Constitution of Kentucky, the Kentucky Revised Statutes, and applicable court decisions.

History. Enact. Acts 1998, ch. 587, § 1, effective July 15, 1998; 2007, ch. 85, § 129, effective June 26, 2007.

61.365. Named federal employees deemed peace officers in Kentucky.

The following persons who are employed by the federal government as law enforcement or investigative officers who have the power of arrest and who are residents of the Commonwealth of Kentucky shall be deemed peace officers and shall have the same powers and duties of any other peace officer in the Commonwealth, except that they shall not be required to serve process unless permitted to do so by their respective agencies:

  1. Federal Bureau of Investigation special agents;
  2. United States Secret Service special agents;
  3. United States Marshal’s service deputies;
  4. Drug Enforcement Administration special agents;
  5. Bureau of Alcohol, Tobacco, and Firearms special agents;
  6. United States Forest Service special agents and law enforcement officers;
  7. Special agents and law enforcement officers of the Office of the Inspector General of the United States Department of Agriculture;
  8. United States Customs Service special agents;
  9. United States National Park Service law enforcement rangers; and
  10. United States Mint Police of the United States Department of the Treasury:
    1. On the portion of United States Highway 31W that is located within the borders of the Fort Knox Military Reservation;
    2. Within a local jurisdiction, upon the written request of the head of the local law enforcement agency identifying a specific event and time frame for which assistance is requested; and
    3. Within the Commonwealth, upon the written request of the commissioner of the Department of Kentucky State Police identifying a specific event and time frame for which assistance is requested.

HISTORY: Enact. Acts 1988, ch. 218, § 1, effective July 15, 1988; 1998, ch. 606, § 137, effective July 15, 1998; 2002, ch. 145, § 1, effective July 15, 2002; 2006, ch. 222, § 2, effective June 12, 2006; 2016 ch. 2, § 1, effective July 15, 2016; 2017 ch. 91, § 1, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

McNally v. DeWitt, 961 F. Supp. 1041, 1997 U.S. Dist. LEXIS 5569 (W.D. Ky. 1997 ).

Opinions of Attorney General.

Since officers and agents of the U.S. Fish and Wildlife Service are not listed among the particular federal authorities designated as peace officers under this section, they do not have the authority or status for making an arrest or issuing a citation for violation of Kentucky law. OAG 95-30 .

61.370. Reinstatement of War Veterans in public position or employment held before entering service. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 144, § 1; 1954, ch. 84, § 1) was repealed by Acts 1966, ch. 32, § 7 and 1966, ch. 255, § 283.

61.371. Definitions for KRS 61.371 to 61.379.

As used in KRS 61.371 to 61.379 , unless the context otherwise requires:

  1. “Public employee” means a person appointed to a position in public service for which he is compensated on a full-time basis, excluding elected officers;
  2. “Public service” means employment by the Commonwealth of Kentucky, or by any county, city, or political subdivision or by any department, board, agency, or commission thereof;
  3. “Employer” means the officer, employee, board, commission or agency authorized by law to make appointments to a position in public service;
  4. “Position” means an office or employment in the public service, excluding an office filled by popular election;
  5. “Military duty” means training and service performed by an inductee, enlistee, or reservist or any entrant into a temporary component of the armed forces of the United States, and time spent in reporting for and returning from such training and service, or if a rejection occurs, from the place of reporting therefor. “Military duty” shall not include voluntary active duty for training of an individual as a reservist in the armed forces of the United States;
  6. “Board” means the personnel board established by KRS Chapter 18A;
  7. “Seniority” means the increase in compensation, status, and responsibility resulting from promotion or step progression within a class of a classified service or promotion or increase in compensation, status, and responsibility in the unclassified service.

History. Enact. Acts 1966, ch. 32, § 1.

NOTES TO DECISIONS

Cited:

Watkins v. Oldham, 731 S.W.2d 829, 1987 Ky. App. LEXIS 503 (Ky. Ct. App. 1987).

Opinions of Attorney General.

The definitions employed in this section must be construed to include boards of education. OAG 70-709 .

The position of teacher for a county board of education comes within the definition of this section. OAG 70-709 .

The seniority provision of this section translated into teacher seniority means seniority in the rate of salary. OAG 70-709 .

Public employee who is reinstated without loss of seniority after military leave is not entitled to the change in classification that he would have been eligible for after the completion of a year of responsible accounting experience had that year not been interrupted by military service as the one year period of experience must be fulfilled prior to being eligible for classification and a period of employment for increment and promotion purposes within a particular class is not equivalent to a period of employment for purposes of experience required for classification. OAG 73-592 .

Research References and Practice Aids

Kentucky Bench & Bar.

Legal Issues for Today’s Citizen Soldier: Kentucky’s Added Reemployment Protections for the State Employee/Citizen Soldier, Vol. 69, No. 6, Nov. 2005, Ky. Bench & Bar 12.

61.373. Restoration of public employee to position after military duty — Right to leave of absence — Appeals.

  1. Any public employee who leaves a position after June 16, 1966, voluntarily or involuntarily, in order to perform military duty, and who is relieved or discharged from such duty under conditions other than dishonorable, and who has not been absent from public employment due to military duty in time of war or national or state emergency for a period of time longer than the duration of the war or national or state emergency plus six (6) months or in time of peace for a period of time not longer than six (6) years, and makes application for reemployment within ninety (90) days after he is relieved from military duty or from hospitalization or treatment continuing after discharge for a period of not more than one (1) year:
    1. If still physically qualified to perform the duties of his position, shall be restored to such position if it exists and is not held by a person with greater seniority, otherwise to a position of like seniority, status and pay;
    2. If not qualified to perform the duties of his position by reason of disability sustained during such service, the public employee shall be placed in another position, the duties of which he is qualified to perform and which will provide him like seniority, status and pay, or the nearest approximation thereof consistent with the circumstances of his case.
    1. Officers and employees of this state, or any department or agency thereof, shall be granted a leave of absence by their employers for the period required to perform active duty or training in the National Guard or any reserve component of the Armed Forces of the United States. (2) (a) Officers and employees of this state, or any department or agency thereof, shall be granted a leave of absence by their employers for the period required to perform active duty or training in the National Guard or any reserve component of the Armed Forces of the United States.
    2. Upon the officer’s or employee’s release from a period of active duty or training, except as provided in KRS 61.394 , he or she shall be permitted to return to his or her former position of employment or a position with equivalent seniority, status, pay, and any other rights or benefits that would have been bestowed if he or she had not been absent.
    3. An officer or employee who is not permitted to return to his or her former position may appeal the dismissal in accordance with KRS Chapter 18A.
  2. In the case of any person who is entitled to be restored to a position in accordance with KRS 61.371 to 61.379 , if the personnel board finds that the department or agency with which such person was employed immediately prior to his military duty:
    1. Is no longer in existence and its functions have not been transferred to any other agency; or
    2. For any reason it is not feasible for such person to be restored to employment by the department or agency, the board shall determine whether or not there is a position in any other department or agency of the same public employer for which the person is qualified and which is either vacant or held by a person having a temporary appointment thereto. In any case in which the board determines that there is such a position, the person shall be restored to the position by the department or agency in which the position exists.

History. Enact. Acts 1966, ch. 32, § 2; 2010, ch. 153, § 13, effective April 13, 2010.

NOTES TO DECISIONS

1.Teacher.

Where the plaintiff was employed as a teacher in this commonwealth at the time he was inducted into military service, he was entitled to service credit for his military service, even though he was not reemployed by the same school system. Watkins v. Oldham, 731 S.W.2d 829, 1987 Ky. App. LEXIS 503 (Ky. Ct. App. 1987).

Opinions of Attorney General.

The state is under no compulsion to re-employ a veteran, who was a seasonal employee employable from season to season at the mere option of the state, because such seasonal employee is not entitled to restoration. OAG 69-550 .

A teacher returning to employment with a board of education after being discharged from military service is entitled to those increments which normally would have accrued if employment with the board had not been interrupted by military service. OAG 70-709 .

The principles applicable to reinstatement of veterans in employment by the central branch of state government are equally applicable to employment with a board of education. OAG 70-709 .

When a teacher is relieved from military service and makes proper application to be reemployed, the school district is required to promptly reinstate said teacher with all the rights and benefits provided by statute in KRS 61.371 to 61.379 even though the day of his return is after the school year has begun. OAG 74-258 .

61.375. Restored employee discharged only for cause for year — Seniority.

Any person who is restored to a position in accordance with KRS 61.371 to 61.379 shall not be discharged from his position without cause within one (1) year after his restoration, and shall, without limiting other rights conferred by this or other sections, be considered as having been on furlough or leave of absence during his period of military duty. He shall be restored without loss of seniority, including, upon promotion or other advancement following completion of any period of employment required therefor, a seniority date in the advance position which will place him ahead of all persons previously junior to him who advanced to the position during his absence in the Armed Forces.

History. Enact. Acts 1966, ch. 32, § 3.

Opinions of Attorney General.

Years spent in military service are not to be considered toward the four-year requirement for tenure status. OAG 76-316 .

61.377. Leaves of absence to permit induction in military service.

Any employee who holds a position in the public service shall be granted a leave of absence for the purpose of being inducted or otherwise entering military duty. If not accepted for such duty, the employee shall be reinstated in his position without loss of seniority or status, or reduction in his rate of pay. During the period the employee shall for all purposes be considered to have rendered service and to have been compensated therefor at his regular rate of pay.

History. Enact. Acts 1966, ch. 32, § 4.

Opinions of Attorney General.

This section authorizes the Department of Military Affairs to grant military leave of absence to an employee ordered to active federal military service with his consent to act as state director of selective service; and such employee would then be a member of the armed forces of the United States on “leave of absence from service” within the meaning of KRS 61.555(1). OAG 67-136 .

61.379. Rules and regulations — Appeals from failure to restore or discharge — Procedure.

The board shall adopt regulations to carry out the provisions of KRS 61.371 to 61.379 in accordance with KRS Chapter 13A. Any public employee who is not restored to a position, or who is discharged without cause within one (1) year after restoration, may appeal to the board for review. Upon review, both the employee and the employer may be represented by counsel. Technical rules as to admission of evidence shall not apply. If the board finds that the employer has violated the provisions of KRS 61.371 to 61.379 or regulations promulgated thereunder, it shall direct the employer to comply with the provisions and to compensate the employee for loss of pay suffered by reason of the violation; except any amount received by the employee during the period from his discharge to reinstatement from other public employment, unemployment compensation, or readjustment allowances from a public agency shall be deducted from such compensation.

History. Enact. Acts 1966, ch. 32, § 5.

Legislative Research Commission Note.

(10/5/90). Pursuant to KRS 7.136(1), KRS Chapter 13A has been substituted for the prior reference to KRS Chapter 13 in this statute. The sections in KRS Chapter 13 were repealed by 1984 Ky. Acts ch. 417, § 36 and KRS Chapter 13A was created in that same chapter of the 1984 Ky. Acts.

61.380. Certain counties may pay attendance expenses of officers at conferences, meetings or hearings — Statement of expenses to be filed.

  1. In any county containing a city of the first class, the members of the fiscal court and any of its employees, the county judge/executive and county attorney and his assistants, when duly authorized by a majority vote of the fiscal court of such county, may attend conferences, meetings, legislative or judicial hearings upon matters pertaining to county government or to the county’s business, and the expenses of such attendance shall be borne and paid out of the county levy in the manner provided by such authorization.
  2. Before any such expenses are so paid by the fiscal court, the attendant at any such meeting, conference or hearing shall, within ten (10) days after his return therefrom file with the fiscal court an itemized statement of all expenses incurred by him, and such statement shall be a public record and spread at large upon the minute book of such court.

History. Enact. Acts 1952, ch. 199, effective June 19, 1952.

Research References and Practice Aids

Cross-References.

Fiscal court, general jurisdiction and duties, KRS 67.080 .

ALR

Constitutional provision fixing or limiting salary of public officer as precluding allowance for expenses or disbursements. 5 A.L.R.2d 1182.

61.385. Certain counties may reimburse officers and employees for use of personal motor vehicles on official business.

Whenever the fiscal court of any county containing a city of the first class is authorized by law to furnish a motor vehicle to any officer or employee of the county, the fiscal court may permit such officer or employee to use his own motor vehicle in the discharge of his official duties, and whenever any such officer or employee incurs any expense incident to traveling in his own motor vehicle, while on official business, the amount allowed for such expense may be fixed by the fiscal court.

History. Enact. Acts 1954, ch. 141, effective June 17, 1954.

61.387. Equipment of conspicuously marked law enforcement vehicles used for transportation of prisoners.

  1. All conspicuously marked motor vehicles used by the Department of Kentucky State Police, sheriffs’ departments, county police, urban-county police, and city police for transporting prisoners, which are conspicuously marked as law enforcement vehicles, shall be equipped with a screen or other protective device between the area where prisoners are transported and the driver of the vehicle, and the area in which the prisoner is enclosed shall be equipped so that the doors and windows cannot be opened from the inside of the vehicle.
  2. Subsection (1) of this section shall not apply to vehicles used for investigative purposes nor to special purpose vehicles not normally used for the transportation of prisoners.

History. Enact. Acts 1984, ch. 73, § 1, effective January 1, 1985; 2007, ch. 85, § 130, effective June 26, 2007.

Opinions of Attorney General.

This section was obviously designed and enacted to protect peace officers transporting prisoners. OAG 84-219 .

Law-enforcement patrol cars, which are not ordinarily or normally used for transportation of prisoners, but which are used primarily for investigative and other purposes (other than transporting prisoners), are not subject to the protective screen and special fixing of doors and windows in police vehicles required by this section. OAG 84-219 .

61.390. Facsimile signatures and seals on certain public securities — Options.

  1. Any bonds heretofore or hereafter authorized to be issued by the state, any county, municipality, taxing or school district, including any corporation acting as an agency or instrumentality of such unit, whether created by statute, or organized under the provisions of the nonprofit corporation laws, under the provisions of any law heretofore or hereafter enacted and any interest coupons attached thereto may, if so authorized by the governing body of such unit, bear or be executed with the facsimile signature of any official authorized by such law to sign or to execute such bonds or coupons. In case any such law shall provide for the sealing of such bonds with the official or corporate seal of such unit or of its governing body or any official thereof, a facsimile of such seal may be imprinted on the bonds if so authorized by the governing body of such unit, and it shall not be necessary in such case to impress such seal physically upon such bonds.
  2. In case any such law shall provide that bonds issued thereunder shall be negotiable, such bonds shall be offered for sale as negotiable bonds, payable to bearer, with or without attached coupons for the payment of interest and with or without privilege of registration as to principal only, or registration as to both principal and interest, as the governing body of the issuing unit may determine; but such governing body may nevertheless additionally provide, in its discretion, that any purchaser of all or any of such bonds shall have a right and privilege to designate, subject to such conditions and restrictions as the governing body may prescribe, that such bonds, or any of them, be issued in the first instance in fully registered nonnegotiable form, or in one (1) or more denominations of such purchaser’s own choosing, or both, whether in negotiable or nonnegotiable form, with or without attached coupons, with or without registration provision, and with or without rights of conversion or reconversion from one (1) form and denomination to another, at the option of the holder or holders from time to time.
  3. In case any officer whose signature or a facsimile of whose signature shall appear on any bonds or coupons shall cease to be such officer before the delivery of such bonds, such signature or such facsimile shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until such delivery, and any bond may bear the facsimile signature of, or may be signed by, such persons as at the actual time of the execution of such bond shall be the proper officers to sign such bond although at the date of such bond such persons may not have been such officers.
  4. The words “public securities” as used herein shall mean bonds, notes or other obligations for the payment of money issued by this state, by its political subdivisions, or by any department, agency or other instrumentality of this state or of any of its political subdivisions.
  5. This section shall not repeal any other law authorizing the execution of public securities with facsimile signatures or seals.

History. Enact. Acts 1954, ch. 58, §§ 1 to 3; 1960, ch. 187; 1962, ch. 46, § 1; 1986, ch. 258, § 2, effective July 15, 1986.

NOTES TO DECISIONS

Cited:

Burke v. Louisville, 275 S.W.2d 899, 1955 Ky. LEXIS 386 ( Ky. 1955 ).

Research References and Practice Aids

Cross-References.

Facsimile signatures and seals on bond, note or debenture of corporation, KRS 217B.18-010.

61.392. Cabinets to report to Legislative Research Commission on number of full-time employees and full-time equivalents working under contract.

  1. Within fifteen (15) days after April 5, 2010, and on a quarterly basis thereafter, the secretary of the Personnel Cabinet shall report to the Legislative Research Commission the number of employees in each program cabinet and department of the executive branch of state government. The report shall include the number of all full-time classified and unclassified employees employed pursuant to KRS Chapters 16, 18A, and 151B, listed by cabinet and department.
  2. Within fifteen (15) days after April 5, 2010, and on a quarterly basis thereafter, the secretary of the Finance and Administration Cabinet shall report to the Legislative Research Commission the number of individuals working on a full-time equivalent and recurring basis, listed by contract or agreement and cabinet.
  3. As used in this section, “recurring basis” means continuous employment for a period of not less than ninety (90) days.

History. Enact. Acts 2010, ch. 55, § 1, effective April 5, 2010.

61.394. State employees’ leave of absence — Pay — Unused military leave.

All officers and employees of this state, or of any department or agency thereof who are members of the National Guard or of any reserve component of the Armed Forces of the United States, or of the reserve corps of the United States Public Health Service, shall be entitled to leave of absence from their respective duties, without loss of time, pay, regular leave, impairment of efficiency rating, or of any other rights or benefits to which they are entitled, while in the performance of duty or training in the service of a state or of the United States under competent orders as specified in this section. In any one (1) federal fiscal year, officers or employees, while on military leave, shall be paid their salaries or compensations for a period or periods not exceeding twenty-one (21) calendar days. Any unused military leave in a federal fiscal year shall be carried over to the next year. Any unused military leave shall expire two (2) years after it has accrued.

HISTORY: Enact. Acts 1962, ch. 51, § 1; 1994, ch. 434, § 1, effective July 15, 1994; 2002, ch. 95, § 2, effective July 15, 2002; 2006, ch. 194, § 2, effective July 12, 2006; 2018 ch. 82, § 3, effective July 14, 2018.

Opinions of Attorney General.

This section is controlling in the computation of salaries and/or compensation which may be paid during periods of military leave. OAG 67-448 .

This section is the latest pronouncement of the legislature and its provisions limiting and delineating how leave shall be computed should prevail where they conflict with KRS 38.250(2) in paying all officers and employees of the state who are members of the national guard or any reserve component of the armed forces of the United States while they are on active duty. OAG 73-48 ; 76-358.

The expenditure of public funds by local governments to pay employees their salaries while those employees who are members of the National Guard and reserve components of the armed forces of the United States are on annual military leave, does not violate state constitutional provisions concerning the expenditure of public funds. OAG 82-305 .

When KRS 61.396 is read in conjunction with this section, local governments are now required to grant two (2) work weeks of paid military leave to employees who are members of the Kentucky National Guard or any reserve component of the armed forces of the United States. OAG 82-305 .

Research References and Practice Aids

Cross-References.

National guard, KRS Ch. 38.

Kentucky Bench & Bar.

Legal Issues for Today’s Citizen Soldier: Kentucky’s Added Reemployment Protections for the State Employee/Citizen Soldier, Vol. 69, No. 6, Nov. 2005, Ky. Bench & Bar 12.

ALR

Constitutionality of statute providing for payment to public officers or employees who enter the military service of the United States or their dependents. 145 A.L.R. 1156.

Military service, induction or voluntary enlistment for as creating vacancy in public office or employment. 143 A.L.R. 1470; 147 A.L.R. 1427; 148 A.L.R. 1400; 150 A.L.R. 1447; 151 A.L.R. 1462; 152 A.L.R. 1459; 154 A.L.R. 1456; 156 A.L.R. 1457; 157 A.L.R. 1456.

Public officers or employees in civil service, constitutionality, construction and application of statutes concerning status and rights of, while performing military or naval duty. 134 A.L.R. 919.

61.395. Leave time for state employee who is disaster services volunteer — Short title.

  1. As used in this section:
    1. “Disaster” means disasters designated at level III and above in the American National Red Cross Regulations and Procedures; and
    2. “State agency” means all departments, offices, commissions, boards, institutions, and political and corporate bodies of the state, including the offices of the clerk of the Supreme Court, clerks of the appellate courts, the several courts of the state, and the legislature, its committees, or commissions.
  2. An employee of a state agency who is a certified disaster services volunteer of the American Red Cross may be granted leave from work with pay for not to exceed thirty (30) work days in any twelve (12) month period to participate in specialized disaster relief services for the American Red Cross for the services of that employee and upon the approval of that employee’s agency, without loss of seniority, pay, vacation time, sick time, compensatory time, or earned overtime accumulation. The agency shall compensate an employee granted leave under this section at the regular rate of pay for those regular work hours during which the employee is absent from work.
  3. This section may be cited as the Disaster Services Volunteer Leave Act.

History. Enact. Acts 2002, ch. 95, § 1, effective July 15, 2002.

61.396. Employees of political subdivisions eligible.

All officers and employees of counties, municipalities, school districts or other political subdivisions of the state who are members of the National Guard or of any reserve component of the Armed Forces of the United States, including the United States Public Health Service, shall be granted annual military leave by their respective employers as provided in KRS 61.394 .

History. Enact. Acts 1962, ch. 51, § 2; 1978, ch. 38, § 2, effective June 17, 1978.

Opinions of Attorney General.

A local school board has the authority to either grant or deny military leave with pay to its employees. OAG 75-685 .

School boards have the option of granting military leave with pay to teachers and such option permits the crediting against such pay the money earned by the teacher for military duty. OAG 76-358 .

Between KRS 38.250 (2), KRS 61.394 , and this section, the latter two (2) statutes are the latest pronouncement of the legislature and where they conflict with the earlier statute (KRS 38.250 ) they should prevail; therefore KRS 61.394 is controlling in the computation of salaries and/or compensation which may be paid during periods of military leave. OAG 76-358 .

The Kentucky General Assembly intended to require the payment of annual military leave by municipalities in the same manner that state employers were required to pay for such leave. OAG 79-625 .

The expenditure of public funds by local governments to pay employees their salaries while those employees who are members of the National Guard and reserve components of the armed forces of the United States are on annual military leave, does not violate state constitutional provisions concerning the expenditure of public funds. OAG 82-305 .

The title of Acts 1978, ch. 38, “An act relating to the Kentucky National Guard,” which act in part amended this section, was sufficient to comply with the requirements of Const., § 51 as the provisions of the act were all reasonably embraced within the title’s general subject matter. OAG 82-305 .

When this section is read in conjunction with KRS 61.394 , local governments are now required to grant two (2) work weeks of paid military leave to employees who are members of the Kentucky National Guard or any reserve component of the armed forces of the United States. OAG 82-305 .

61.400. Suspension or removal of judge.

If any judge of the Court of Justice fails to perform the duties of his office, the Chief Justice shall notify the Judicial Retirement and Removal Commission of the judge’s failure, unless in his opinion the disability is temporary. Whenever the Judicial Retirement and Removal Commission suspends or removes a judge of the Court of Justice without pay, it shall send a certified copy of its order to the Finance and Administration Cabinet and that cabinet shall carry out the order of the commission.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 17.

61.405. Use of excess fees by county sheriff or county clerk for health insurance or health maintenance organization coverage.

  1. For the purpose of this section, “excess fees” means fees and commissions in an amount greater than the total salaries and expenses that are required by law to be paid by an office.
  2. Notwithstanding the provisions of KRS 64.530(3), a sheriff or county clerk whose office earns excess fees during any fiscal year, and whose employees are not being provided with health insurance or health maintenance organization coverage by county government or by an agency of county government on the day that fiscal year closes, may purchase health insurance or health maintenance organization coverage, effective within one (1) month after the close of the fiscal year, that will cover all employees of the office, including the sheriff or county clerk if he desires, for at least twelve (12) months.
  3. The type and extent of the health insurance or health maintenance organization coverage shall be determined by the sheriff or county clerk. The coverage shall be reasonable in relation to the amount of money available from the excess fees.
  4. If a sheriff’s or county clerk’s office earns excess fees during any fiscal year, but the excess fees are not sufficient, in the judgment of the sheriff or county clerk, to provide employees with a reasonable degree of health insurance or health maintenance organization coverage, the sheriff or county clerk may use a combination of employee contributions and excess fees to purchase the insurance or coverage.
  5. A sheriff or county clerk may purchase health insurance or health maintenance organization coverage under this section in cooperation with any governmental unit or combination of units allowed to cooperatively purchase coverage under KRS 79.080 .

History. Enact. Acts 1992, ch. 265, § 1, effective July 14, 1992.

Opinions of Attorney General.

This section is unconstitutional because of the favorable treatment it gives to clerks, sheriffs, and their employees. By granting special benefits to two (2) groups of county employees the legislature has created the precise sort of unnatural classification that the court condemned in Schoo v. Rose. OAG 92-108 .

Although this section does not say so explicitly, it apparently allows the clerk or sheriff to retain excess fees and spend the money on health insurance for the officer and his employees. Since this section only operates in counties that do not provide health insurance to county employees, the precise and intended effect of the bill is to use public funds to provide health insurance to two (2) groups of county employees while denying that privilege to all other county employees. Such discrimination, is unconstitutional. OAG 92-108 .

This section which purports to allow certain county clerks and sheriffs to purchase health insurance for their employees without an appropriation from the fiscal court creates an arbitrary classification and is unconstitutional under sections 1, 2, and 3 of the state constitution. OAG 92-108 .

This section attempts to fund certain health insurance premiums out of the public funds that county clerks and sheriffs collect as fees. OAG 92-108 .

61.407. Transfer of leave balances and retirement service credits from unified prosecutorial system to executive branch.

Any other statute to the contrary notwithstanding, the Executive Department of government shall accept from the unified prosecutorial system all accrued annual and sick leave balances and service credits of employees leaving the unified prosecutorial system and accepting appointments to the Executive Department. These leave balances shall be attested to by the former employer of the employee and shall not exceed those limits established by statute or administrative regulation for employees of the Executive Department. This provision shall apply to Executive Department employees who were contributing to the Kentucky Employees Retirement System or the State Police Retirement System on or after July 1, 2000.

History. Enact. Acts 2000, ch. 385, § 40, effective July 14, 2000.

61.409. Law enforcement agency not to establish requirements for employees relating to residency or voter registration — Exceptions — Application.

  1. No state, city, county, urban-county, charter county, or consolidated local government law enforcement agency shall set a residence requirement, except requiring residence within the Commonwealth, for any of its employees who do not possess peace officer powers.
  2. No state, city, county, urban-county, charter county, or consolidated local government law enforcement agency shall require that an employee, whether that employee is a peace officer or not, be a registered voter.
  3. The provisions of subsection (1) shall not preclude an employer or agency specified in subsection (1) from having a requirement for response to a specified location within a specified time limit for an employee or volunteer who is off-duty but who is on-call to respond for work.
  4. The residence requirements of subsection (1) of this section requiring residency within the Commonwealth shall not apply to an employee of a law enforcement agency employed by that agency on July 15, 2002, until that employee’s employment relationship with the law enforcement agency is terminated.

History. Enact. Acts 2002, ch. 247, § 1, effective July 15, 2002; 2002, ch. 346, § 237, effective July 15, 2002.

Legislative Research Commission Note.

(7/15/2002). This section was created and amended by 2002 Ky. Acts chs. 247 and 346 which do not appear to be in conflict and have been codified together.

Social Security for Public Employees

61.410. Declaration of policy.

  1. It is declared to be the policy of the General Assembly to extend the federal old-age, survivors, disability, and hospital insurance coverage to all public employees regardless of whether the employees are occupying positions which are covered by a retirement system; but no employee occupying a position to which KRS 161.220 to 161.710 are applicable shall be held to fall within the class of persons sought to be affected by this statement of policy except for employees of the state universities and public junior colleges.
  2. It is also the policy of the General Assembly that the protection afforded public employees by membership in a retirement system or by the right to receive periodic benefits under a retirement system will not be impaired as a result of any agreement made between the Commonwealth and the commissioner pursuant to KRS 61.410 to 61.500 .
  3. The General Assembly ratifies the extension of federal old-age, survivors, disability, and hospital insurance coverage to public employees in positions covered by a retirement system prior to June 14, 1962, if the procedures specified by former KRS 61.430(6) were substantially followed.

History. Enact. Acts 1951 (Ex. Sess.), ch. 3, § 1; 1956, ch. 32, § 1; 1962, ch. 12, § 1; 1968, ch. 152, § 26; 1998, ch. 436, § 1, effective July 15, 1998.

Opinions of Attorney General.

The contribution to be paid by the county as the employer should be based upon the actual net compensation of the county official (which would include official fees and salary) subject to the maximum base amount prescribed under the federal social security law. OAG 69-34 .

Under this section, participation in the social security program is mandatory for all public employees of the Commonwealth except those employees occupying positions to which the provisions of KRS 161.220 to 161.710 are applicable, and consequently, the executive secretary, assistant executive secretary, senior accountant and administrative officer of the teachers’ retirement system are neither subject to, nor eligible for, participation in the social security program. OAG 69-355 .

If additional teaching activity falls within the category of being in fact a part of the regularly approved program of the public school district or the vocational school for which certification or a professional level of training is required as a condition of employment, then teachers’ retirement applies and the teacher would not be eligible for social security participation. OAG 69-430 .

The Gateway Area Development District, Inc. is not a “political subdivision” within the meaning of KRS 61.410 to 61.500 and must report wages and pay taxes for social security purposes directly to the United States Internal Revenue Service. OAG 70-226 .

A person who contributed to social security for certain service can also contribute to teachers’ retirement if he should have been included. OAG 71-254 .

61.420. Definitions for KRS 61.410 to 61.500.

For the purpose of KRS 61.410 to 61.500 :

  1. “Wages” means all remuneration for employment as defined in subsection (2) of this section, including the cash value of all remuneration paid in any medium other than cash, except that the term shall not include that part of the remuneration which, even if it were for “employment” within the meaning of Federal Insurance Contributions Act, would not constitute “wages” within the meaning of that act;
  2. “Employment” means any service performed by an employee in the employ of the Commonwealth, a political subdivision, or an interstate instrumentality, for those employers, except (a) service of an emergency nature, (b) service which in the absence of an agreement entered into under KRS 61.410 to 61.500 would constitute “employment” as defined in the Social Security Act, or (c) service which under the Social Security Act may not be included in any agreement between the Commonwealth and the commissioner entered into under KRS 61.410 to 61.500 ; except that service, the compensation for which is on a fee basis, may be excluded in any plan approved under KRS 61.410 to 61.500, and provided also, that service in any class or classes of positions, the exclusion of which is permitted under the Social Security Act, may be excluded in any plan approved under KRS 61.460 ;
  3. “Employee” means any person in the service of the Commonwealth, a political subdivision, or an interstate instrumentality of which the Commonwealth is a principal and shall include all persons designated officers including those which are elected and those which are appointed;
  4. “State agency” means the Division of Local Government Services, Office of the Controller, which agency shall be subject to the authority of the secretary of finance and administration;
  5. “Political subdivision,” in addition to counties, municipal corporations, and school districts, includes instrumentalities of the Commonwealth, of one (1) or more of its political subdivisions, or of the Commonwealth and one (1) or more of its political subdivisions, and any other governmental unit thereof;
  6. “Social Security Act” means the Act of Congress approved August 14, 1935, Chapter 531, 49 Stat. 620, officially cited as the “Social Security Act,” including regulations and requirements issued pursuant thereto, as that act has been and may from time to time be amended;
  7. “Federal Insurance Contributions Act” means subchapters A, B, and C of Chapter 21 of the Federal Internal Revenue Code and all amendments thereto;
  8. “Commissioner” means the Commissioner of Social Security and includes any individual to whom the commissioner may delegate any of the commissioner’s functions under the Social Security Act; and, with respect to any transactions regarding insurance coverage occurring prior to April 11, 1953, includes the federal security administrator and any individual to whom the administrator may have delegated any of the administrator’s functions under the Social Security Act; and, with respect to any transactions regarding insurance coverage occurring from April 11, 1953, to March 30, 1995, includes the Secretary of Health and Human Services and any individual to whom the secretary may have delegated any of the secretary’s functions under the Social Security Act;
  9. “Insurance coverage” means coverage by the old-age, survivors, disability, and hospital insurance provisions of the Social Security Act.

History. Enact. Acts 1951 (Ex. Sess.), ch. 3, § 2; 1956, ch. 32, § 2; 1958, ch. 135, § 1; 1962, ch. 12, § 2; 1974, ch. 74, Art. VI, § 35(4); 1980, ch. 275, § 1, effective July 15, 1980; 1982, ch. 393, § 37, effective July 15, 1982; 1994, ch. 508, § 15, effective July 15, 1994; 1998, ch. 436, § 2, effective July 15, 1998; 2005, ch. 85, § 87, effective June 20, 2005.

Compiler’s Notes.

The Social Security Act, referred to herein, is compiled as 42 USCS § 301 et seq. Section 218 of that act is compiled as 42 USCS § 418. The Federal Insurance Contributions Act is compiled as 26 USCS §§ 3101 to 3126.

NOTES TO DECISIONS

1.Political Subdivision.

A county school district is a political subdivision of the state, the members of which are state officers and an indictment drawn under KRS 434.240 (now repealed) for submitting a false claim to county board of education charged a public offense. Runyon v. Commonwealth, 393 S.W.2d 877, 1965 Ky. LEXIS 248 ( Ky. 1965 ), cert. denied, 384 U.S. 906, 86 S. Ct. 1341, 16 L. Ed. 2d 359, 1966 U.S. LEXIS 1852 (U.S. 1966).

Cited:

International Brotherhood of Firemen & Oilers v. Board of Education, 393 S.W.2d 793, 1965 Ky. LEXIS 245 ( Ky. 1965 ).

Opinions of Attorney General.

A special tax collector selected by an independent school district pursuant to KRS 160.500(2) is an officer of the school district and an employee of the school district under the definition of that term in the social security act and enabling legislation enacted by the Kentucky General Assembly. OAG 67-95 .

The Gateway Area Development District, Inc. is not a “political subdivision” within the meaning of KRS 61.410 to 61.500 and must report wages and pay taxes for social security purposes directly to the United States Internal Revenue Service. OAG 70-226 .

Mental health-mental retardation boards, when considered in light of KRS 210.380 clearly are instrumentalities of the Commonwealth and therefore a political subdivision for the purposes of this section. OAG 73-203 .

Where a city and county establish an ambulance board, such board is merely an arm or instrumentality of the city and county and is a political subdivision, as defined in subsection (5), for social security coverage purposes. OAG 73-790 .

The state active duty pay of national guard units ordered into active state service in connection with tornadic storms is excluded by subsection (2) from social security coverage and not subject to the FICA tax. OAG 74-278 .

Only specifically isolated expenses which are actual reimbursements for actual official expenses may be deducted from the subject state expense allowances money in the case of the county judge (now county judge/executive), county attorney and county sheriff, in determining the wage amount for social security purposes and the remainder of such allowance would constitute wages up to the maximum compensation base of $13,200 per year for 1974 or $14,100 for 1975. OAG 75-48 (modifying OAG 71-266 and 66-416).

Based upon the literal wording of this section and the fact that the subject corporation was created solely for the eight county governments, the Jackson Purchase Local Officials Organization, Inc., is an instrumentality of the eight (8) county governments and thus the corporation is a “political subdivision” for social security purposes and this construction promotes the centralized administration of the social security program applied to such public employees, otherwise the administration would have to be broken into eight (8) different county units. OAG 75-497 .

Where the ordinance making the city attorney position elective was repealed and the office became appointive, the city attorney would no longer be excluded from social security coverage. OAG 76-740 .

Since a county and city are clearly political subdivisions as provided by subsection (5) of this section, if they, pursuant to KRS 79.110 to 79.180 or KRS 65.210 to 65.300 , agree to provide for the joint operation of a city-county ambulance service and create a board to govern the program, that board or entity could be an arm or instrumentality of the city and county and, therefore, a “political subdivision” for social security purposes. OAG 79-104 .

Until such time that this section is amended by the General Assembly, the city of Louisville has no authority under KRS 83.520 to provide for any treatment of sick leave benefits in any other way than that which is set out in KRS 61.410 to 61.500 . OAG 79-267 .

Since East Kentucky Utilities Inc. was performing the function of an instrumentality of Floyd County in providing utility services to the county, using the county’s own plant, its employees were covered for social security purposes through Floyd County. OAG 79-583 .

Where a city of Louisville ordinance stated a sick leave policy for its employees, where the amounts appropriated for sick pay payments were budgeted and accounted for separately, where the worksheets for each agency showed a separate account for sick leave from which payments for sick leave were deducted as paid, and where the amount of sick leave paid was separately stated on the employee’s paycheck stub, the method of providing for sick leave to employees of the city was sufficiently definite to constitute a “plan or scheme” under 42 USCS § 409(b) and 26 USCS § 3121(a)(2), and, therefore, the sick leave payments would be excluded from wages for determining the amount deducted as social security contributions. OAG 80-220 .

Although the articles of incorporation of an entity purported to show that the apparent purpose of the corporation was to perform governmental activity, specifically to assist those political subdivisions of the state of Kentucky located in Campbell County in performing their municipal functions, the articles did not fully comply with KRS 65.250 and there was no indication that it had complied with KRS 65.260 ; therefore, since the entity had no formal statutory authority that would make it an instrumentality of a political subdivision as defined in subsection (5) of this section for social security purposes, social security should be paid by the entity directly to the social security administration as any other nonprofit corporation would do. OAG 80-348 .

Acts 1980, Ch. 275, accomplishes a statutory change which authorizes sick leave with pay as an exclusion to the term wages for determining an employee’s wages from which social security payments are to be deducted; however, the mere passage of the amendatory language per se does not permit the deduction of sick pay from being considered as wages without some additional administrative acts, including making the needed changes in an employer’s personnel rules dealing with sick leave, and getting the federal social security administration’s approval of the new plan. OAG 80-366 .

A county hospital district is a political subdivision of Kentucky pursuant to this section and KRS 216.320 so that its employees are “employees” under subsection (3) of this section and thus subject to the jurisdiction of the state agency for social security. OAG 81-196 .

Where a city passes an ordinance creating a personal service contract with an attorney to advise the city in legal matters, the attorney is an independent contractor rather than a nonelected city officer appointed under KRS 83A.080 or an employee under subsection (3) of this section thus, he would not be subject to social security as a result of his contract. OAG 81-225 .

The Boone County Planning Commission is a separate political subdivision consisting of members representative of other political subdivisions in a cooperative, joint effort to provide consolidated planning and zoning activities for the various political subdivisions which make up the entity. Therefore, the Commission is a separate political subdivision for purposes of the definition of a political subdivision found in subdivision (5) of this section governing social security for public employees and is not part of Boone County which is governed by Boone County Fiscal Court. OAG 82-278 .

The Office of Social Security is an office to handle public employees’ social security matters; the definition of office in subsection (7) of KRS 12.010 applies to the office for social security. OAG 82-593 .

Where the membership of a local officials’ organization was composed of the county judge/executive of each of the participating counties, the mayors of the largest incorporated city within each county (voting members) and other mayors of smaller communities (nonvoting members) and where the organization’s purpose was to operate an emergency medical service for eight counties and certain other services to benefit the local units of government, such unit was a governmental subdivision or instrumentality of such a subdivision. OAG 83-227 .

Where a training center created by a local officials’ organization was separated from such organization and was incorporated as a nonprofit corporation, where its membership was not exclusively composed of governmental officials and where the center could not carry on propaganda, influence legislation, or engage in any political campaign, the training center as it had evolved was no longer an instrumentality of a subdivision or other governmental unit, but was an independent, nonprofit corporation operated for charitable, educational, and scientific purposes and was no longer subject to the State Office of Social Security. OAG 83-227 .

Research References and Practice Aids

ALR

Judicial questions regarding federal social security act or state legislation adopted to set up “state plan” contemplated by it. 100 A.L.R. 697; 106 A.L.R. 243; 108 A.L.R. 613; 109 A.L.R. 1346; 118 A.L.R. 1220; 121 A.L.R. 1002.

61.430. Federal-state agreement.

Consistent with the terms and conditions of KRS 61.410 to 61.500 , the state agency, with the approval of the Governor, is hereby authorized to enter into an agreement with the commissioner for the purpose of extending insurance coverage to employees with respect to services specified in the agreement which constitute employment as defined in KRS 61.420 . An agreement entered into under this section may contain provisions relating to coverage, benefits, contributions, effective date, modification and termination of the agreement, administration and other appropriate provisions as the state agency and commissioner shall agree upon. Any agreement, subject to the provisions of the Social Security Act, shall provide in effect that:

  1. Insurance coverage shall be provided for employees whose services are described in the agreement, and their dependents and survivors on the same basis as though the services constituted employment within the meaning of Title II of the Social Security Act;
  2. The state shall pay to the Secretary of the Treasury, at times prescribed under the Social Security Act, contributions with respect to wages equal to the sum of the taxes imposed by sections 3101 and 3111 of the Federal Insurance Contributions Act if the services covered by the agreement constitute employment within the meaning of that act;
  3. Insurance coverage will be afforded with respect to services performed after an effective date specified in the agreement or modification thereof; except that the effective date shall not be earlier than January 1, 1955, in the case of an agreement or modification made between January 1, 1955, and January 1, 1958; or earlier than January 1, 1956, in the case of an agreement or modification made at any time in the years 1958 or 1959; or earlier than the first day of the year in which the agreement or modification was made, in the case of an agreement or modification made at any time between January 1, 1960, and July 1, 1962; or earlier than the first day of the fifth year preceding the year in which the agreement or modification is made, in the case of an agreement or modification made at any time after July 1, 1962;
  4. Insurance coverage shall be afforded with respect to all services constituting employment; except that in order for insurance coverage to be afforded with respect to services performed in the employ of a political subdivision of the state there must be in existence in regard to those services a plan which meets the requirements of KRS 61.460 ;
  5. Subject to the provisions of KRS 61.435 , insurance coverage shall be afforded with respect to all services in positions covered by a retirement system; except that no agreement shall be effective to afford insurance coverage to any services performed in positions to which KRS 161.220 to 161.710 are applicable except for services performed in positions in a state university or public junior college.

History. Enact. Acts 1951 (Ex. Sess.), ch. 3, § 3; 1952, ch. 29; 1956, ch. 32, § 3; 1956, ch. 166, § 1; 1958, ch. 135, § 2; 1962, ch. 12, § 3; 1998, ch. 436, § 3, effective July 15, 1998.

Compiler’s Notes.

Title II of the Social Security Act, the Federal Insurance Contributions Act and § 218 (d)(3) of the Social Security Act referred to in this section are compiled as 42 USCS § 409 et seq., 26 USCS §§ 3101 to 3126, and 42 USCS § 418 (d)(3) respectively.

Opinions of Attorney General.

Under existing federal and state legislation, the members of the faculty of Murray State University may not be withdrawn as a separate group from social security coverage. In view of their status as state employees who are covered under the original 1951 agreement by virtue of a modification thereto, their coverage may be terminated only through termination of the 1951 agreement between the state and the secretary of health, education and welfare. OAG 68-450 .

When professional staff members of the division of disability determination were a part of the department of education they were allowed to participate in the teacher retirement system and were exempt from participation in the federal social security program but when this division was transferred to the department of human resources, professional staff members had the option of retaining their membership in the teachers’ retirement system or joining the state employees’ retirement system but participation in the federal social security program is mandatory. OAG 73-767 .

Circuit Court appointed reporters and secretaries are state employees for the purposes of the state Social Security Act. OAG 75-615 .

61.435. Referendum on coverage under agreement — Separate system for state colleges.

  1. In order for any service performed by an employee in a position covered by a retirement system to be included in an agreement as permitted by KRS 61.430 , a referendum pursuant to Section 218(d)(3) or 218(d)(7) of the Social Security Act shall be held on the question of whether the service covered by the retirement system should be included in the agreement. The procedure for obtaining the vote of the members of the retirement systems shall be as follows:
    1. Upon request of the political subdivision concerned, the Governor shall authorize a referendum within the retirement system concerned and designate an agency or individual to supervise the manner of conducting it;
    2. Any referendum shall be conducted in accordance with the requirements of Section 218(d)(3) or 218(d)(7) of the Social Security Act;
    3. In the case of a referendum authorized under Section 218(d)(6) of the Social Security Act, the retirement system will be divided into two (2) parts or divisions. One (1) part or division of the retirement system shall be composed of positions of those members of the system who desire coverage under the agreement as permitted by KRS 61.430 . The remaining part or division of the retirement system shall be composed of positions of those members who do not desire coverage under such an agreement. Each part or division shall be deemed to be a separate retirement system for the purposes of Section 218(d) of the Social Security Act. The positions of individuals who become members of the system after such coverage is extended shall be included in the part or division of the system composed of members desiring the coverage, with the exception of positions that are excluded in the agreement.
  2. Upon receiving satisfactory evidence that the conditions specified in this section and Section 218(d)(3) or 218(d)(7) of the Social Security Act have been fulfilled, the Governor or any agency or individual designated by the Governor shall so certify to the commissioner.
  3. For purposes of this section, in any case where a retirement system covers the employees of two (2) or more political subdivisions, or of the Commonwealth and one (1) or more political subdivisions, there are deemed to exist separate retirement systems with respect to the Commonwealth or each political subdivision. Also for purposes of this section, where a retirement system covers the employees of one (1) or more of the state universities or of one (1) or more of the public junior colleges or of any combination of state universities, there shall be deemed to exist separate retirement systems with respect to each state university and each public junior college.

History. Enact. Acts 1962, ch. 12, § 4; 1998, ch. 436, § 4, effective July 15, 1998; 2002, ch. 155, § 1, effective July 15, 2002.

Compiler’s Notes.

Section 218 of the Social Security Act referred to in this section is compiled as 42 USCS § 418.

Opinions of Attorney General.

Under KRS 161.220 participation by the faculty of Western Kentucky University in the State Teacher’s Retirement System is mandatory and where, as in this case, a majority of the faculty elects under this section to participate in the federal social security program, participation in that program also is mandatory and there is no legal way thereafter that the faculty can withdraw or discontinue its participation. OAG 75-268 .

61.440. Interstate instrumentalities.

Any instrumentality jointly created by this state and any other state or states is hereby authorized, to the extent that this Commonwealth may confer authority, (1) to enter into an agreement with the commissioner whereby the benefits of the federal old-age, survivors, disability, and hospital insurance system shall be extended to employees of the instrumentality, (2) to require its employees to pay (and for that purpose to deduct from their wages) contributions equal to the amounts which they would be required to pay under subsection (1) of KRS 61.450 if they were covered by an agreement made pursuant to KRS 61.430 , and (3) to make payments to the Secretary of the Treasury in accordance with the agreement, including payments from its own funds, and otherwise to comply with the agreement. The agreement shall, to the extent practicable, be consistent with the terms and provisions of KRS 61.430 , and all other terms and provisions, of KRS 61.410 to 61.500 .

History. Enact. Acts 1951 (Ex. Sess.), ch. 3, § 4; 1998, ch. 436, § 5, effective July 15, 1998.

61.450. Contributions by state employees.

  1. Every employee of the state whose services are covered by an agreement entered into under KRS 61.430 shall be required to pay for the period of coverage, into the contribution fund established by KRS 61.470 , contributions, with respect to wages received for each calendar year at the rate established by the Federal Insurance Contributions Act, as amended, and the Social Security Act, as amended. Such liability shall arise in consideration of the employee’s retention in the service of the state, or his entry upon such service after March 14, 1951.
  2. The contribution imposed by this section shall be collected by deducting the amount of the contribution from wages as and when paid, but failure to make such deduction shall not relieve the employee from liability for such contribution.
  3. If more or less than the correct amount of the contribution imposed by this section is paid or deducted with respect to any wages, proper adjustment, or refund if adjustment is impracticable, shall be made, without interest, in such manner and at such times as the state agency shall prescribe.

History. Enact. Acts 1951 (Ex. Sess.), ch. 3, § 5; 1958, ch. 135, § 3; 1960, ch. 85, § 1; 1962, ch. 12, § 5.

Compiler’s Notes.

The Social Security Act, referred to herein, is compiled as 42 USCS § 301 et seq. The Federal Insurance Contributions Act is compiled as 26 USCS §§ 3101 to 3126.

61.460. Plans for coverage of employees of political subdivisions.

  1. Each political subdivision of the state is hereby authorized to submit for approval by the state agency a plan for extending insurance coverage to employees of the political subdivision; except that no plan shall provide insurance coverage to an employee occupying a position to which KRS 161.220 to 161.710 are applicable except for employees of the state universities and public junior colleges. Each plan and any amendments thereof shall be approved by the state agency if it finds that the plan, or the plan as amended, is in conformity with requirements as are provided in administrative regulations of the state agency, except that no plan shall be approved unless:
    1. It is in conformity with the requirements of the Social Security Act and with the agreement entered into under KRS 61.430 ;
    2. It provides that all services which constitute employment and are performed in the employ of the political subdivision by employees thereof, shall be covered by the plan;
    3. It specifies the source or sources from which the funds necessary to make the payments required by paragraph (a) of subsection (3) and by subsection (4) of this section are expected to be derived and contains reasonable assurance that those sources will be adequate for that purpose;
    4. It provides for methods of administration of the plan by the political subdivision as are found by the state agency to be necessary for the proper and efficient administration thereof; and
    5. It provides that the political subdivision will make reports, in the form and containing the information, as the state agency may from time to time require, and will comply with any provisions the state agency or the commissioner may from time to time find necessary to assure the correctness and verification of the reports.
  2. The state agency shall not finally refuse to approve a plan submitted by a political subdivision under subsection (1) of this section without reasonable notice and opportunity for hearing to the political subdivision affected thereby.
    1. Each political subdivision for which a plan has been approved under this section is authorized to and shall pay into the contribution fund, with respect to contributions due for wages paid prior to 1987, at the time or times as the state agency may by administrative regulation prescribe, contributions in the amounts and at the rates specified in the applicable agreement entered into by the state agency under KRS 61.430 ; and, furthermore, in anticipation of the due date of any payments of contributions required by this paragraph, is authorized to and shall make any advancements the state agency, by administrative regulation or contract, may require. (3) (a) Each political subdivision for which a plan has been approved under this section is authorized to and shall pay into the contribution fund, with respect to contributions due for wages paid prior to 1987, at the time or times as the state agency may by administrative regulation prescribe, contributions in the amounts and at the rates specified in the applicable agreement entered into by the state agency under KRS 61.430 ; and, furthermore, in anticipation of the due date of any payments of contributions required by this paragraph, is authorized to and shall make any advancements the state agency, by administrative regulation or contract, may require.
    2. Each political subdivision is authorized to and shall make the payments as are determined by the state agency to be necessary for the purpose of defraying the expenses incurred by the state agency in administering KRS 61.410 to 61.500 for the benefit of those employees covered under any plan approved under subsection (1) of this section, but in no event shall such amount be greater than five percent (5%) of the contributions required under paragraph (a) of this subsection. The payments shall be made into the State Treasury and shall be credited to a separate trust and agency fund to be used by the state agency solely for the purpose stated in this paragraph.
    3. Each political subdivision required to make payments under paragraph (a) of this subsection is authorized, in consideration of the employee’s retention in, or entry upon, employment after the effective date of KRS 61.410 to 61.500 , to impose upon each of its employees, as to services which are covered by an approved plan, a contribution with respect to wages received for each calendar year, at the rate established by the Federal Insurance Contributions Act, as amended, and the Social Security Act, as amended. Contributions so collected for wages paid prior to 1987 shall be paid into the contribution fund in partial discharge of the liability of the political subdivision under paragraph (a) of this subsection. Failure to deduct the contribution shall not relieve the employer of liability therefor.
  3. Delinquent payments due under paragraph (a) of subsection (3) of this section, with interest at the rate prescribed by Section 218 (j) of the Social Security Act, may be recovered by action in the Franklin Circuit Court against the political subdivision liable therefor or may, at the request of the state agency, be deducted from any other moneys payable to the subdivision by any department or agency of the state.

History. Enact. Acts 1951 (Ex. Sess.), ch. 3, § 6; 1958, ch. 135, § 4; 1960, ch. 85, § 2; 1962, ch. 12, § 6; 1980, ch. 275, § 2, effective July 15, 1980; 1982, ch. 393, § 38, effective July 15, 1982; 1998, ch. 436, § 6, effective July 15, 1998.

Compiler’s Notes.

The Social Security Act, referred to herein, is compiled as 42 USCS § 301 et seq. Section 218 of that act is compiled as 42 USCS § 418. The Federal Insurance Contributions Act is compiled as 26 USCS § 3101 et seq.

Opinions of Attorney General.

Where the wife of a jailer has never been appointed as a deputy or a matron under KRS 71.060 and the county has never fixed any compensation for her as a jailer deputy, as matron, or county employee, the social security contributions must be paid by the jailer, the actual employer, and not by the county. OAG 69-7 .

Employees of emergency medical service district corporations which are “instrumentalities” of political subdivisions must be covered under the plan for social security coverage if such a plan for employee coverage has been submitted by the political subdivisions. OAG 77-372 .

Acts 1980, ch. 275, accomplishes a statutory change which authorizes sick leave with pay as an exclusion to the term wages for determining an employee’s wages from which social security payments are to be deducted; however, the mere passage of the amendatory language per se does not permit the deduction of sick pay from being considered as wages without some additional administrative acts, including making the needed changes in an employer’s personnel rules dealing with sick leave, and getting the Federal Social Security Administration’s approval of the new plan. OAG 80-366 .

Fees received by the volunteer firemen for fire runs they actually make are to be considered as reimbursement for expenses, rather than salary or wages from the fire district, and are not subject of F.I.C.A. withholding and matching requirements. OAG 80-635 .

For the purpose of obtaining employee fringe benefits, the county is responsible for paying on behalf of jail personnel, as county employees, social security payments (KRS Ch. 61), workers’ compensation premiums (KRS Ch. 342), unemployment insurance premiums (KRS Ch. 341) and medical insurance coverage (KRS Ch. 67). OAG 82-346 .

61.470. Contribution fund and contingent liability fund.

  1. There is hereby established a special fund to be known as the contribution fund. Such fund shall consist of and there shall be deposited therein:
    1. All contributions, interest, and penalties under KRS 61.450 and 61.460 ;
    2. All moneys appropriated or otherwise contributed thereto;
    3. Any property or securities and earnings thereof acquired through the use of moneys belonging to the fund;
    4. Interest earned upon any moneys in the fund, and
    5. All sums recovered from the bond of the custodian or otherwise for losses sustained by the fund, and all other moneys received for the fund from any other source. All moneys in the fund shall be mingled and undivided. Subject to the provisions of KRS 61.410 to 61.500 , the state agency is vested with full power, authority and jurisdiction over the fund, including all moneys and property or securities belonging thereto, and may perform any and all acts whether or not specifically designated, which are necessary to the administration thereof and are consistent with the provisions of KRS 61.410 to 61.500 .
  2. The contribution fund shall be a trust and agency fund which shall not lapse and shall be held separate and apart from any other funds or moneys of the state and shall be used and administered exclusively for the purposes of KRS 61.410 to 61.500 . Withdrawals from such fund shall be made for, and solely for:
    1. Payment of amounts required to be paid to the Secretary of the Treasury pursuant to an agreement entered into under KRS 61.430 ;
    2. Payment of refunds provided for in subsection (3) of KRS 61.450 ;
    3. Refunds of overpayments, not otherwise adjustable, made by a political subdivision; and
    4. For payment of administrative costs for the administration of KRS 61.410 to 61.500 to the extent of the interest earned on investments of the contribution fund.
  3. From the contribution fund the custodian of the fund shall pay to the Secretary of the Treasury such amounts at such time or times as may be directed by the state agency in accordance with any agreement entered into under KRS 61.430 .
  4. At the end of each fiscal year, the state agency shall make an estimate of the necessary operating costs of the state agency for the next fiscal year, including a contingent liability fund. After approval of this amount needed for necessary costs and contingent liability fund by the secretary of finance and administration, the realized investment earnings of the contribution fund available at the end of any fiscal year shall be reduced to this approved amount, and any excess is hereby authorized for transfer to the credit of the general fund.
  5. The Treasurer of the state shall be ex officio treasurer and custodian of the contribution fund and shall administer such fund in accordance with the provisions of KRS 61.410 to 61.500 and the directions of the state agency, and shall pay all warrants drawn upon the fund in accordance with the provisions of this section and with such regulations as the state agency may prescribe pursuant thereto.

History. Enact. Acts 1951 (Ex. Sess.), ch. 3, § 7; 1966, ch. 133, § 1; 1982, ch. 393, § 39, effective July 15, 1982.

61.480. State contributions authorized.

Authorization is hereby granted to all offices, departments, boards, commissions, institutions, and all other agencies of the state government of the Commonwealth of Kentucky to make payments to the contribution fund out of moneys, not required by law or contract to be expended for other purposes, in any revolving, trust or agency fund, or out of appropriations for recurring expenses heretofore or hereafter made by the General Assembly from the general expenditure fund or special funds.

History. Enact. Acts 1951 (Ex. Sess.), ch. 3, § 8.

61.490. Rules and regulations.

The state agency shall make and publish such rules and regulations, not inconsistent with the provisions of KRS 61.410 to 61.500 , as it finds necessary or appropriate to the efficient administration of the functions with which it is charged under KRS 61.410 to 61.500 .

History. Enact. Acts 1951 (Ex. Sess.), ch. 3, § 10.

61.500. Retroactive effect of KRS 61.410 to 61.500.

The provisions of KRS 61.410 to 61.500 shall be retrospective to January 1, 1951, and any agreement entered into pursuant to it may be made with retroactive effect to January 1, 1951, or any date thereafter.

History. Enact. Acts 1951 (Ex. Sess.), ch. 3, § 12.

Legislative Research Commission Note.

(11/15/90). Pursuant to KRS 7.136(1), the prior reference to KRS 195.100 contained in this section has been removed, that statute having been repealed by 1974 Acts Ch. 74, Art. VI, § 108.

61.505. Kentucky Public Pensions Authority — Purpose — Membership, vacancies, compensation, and meetings — Authority granted powers and privileges of corporation — Executive director and employees — Expenses — Administrative duties of members.

  1. There is created an eight (8) member Kentucky Public Pensions Authority whose purpose shall be to administer and operate:
    1. A single personnel system for the staffing needs of the Kentucky Retirement Systems and the County Employees Retirement System;
    2. A system of accounting that is developed by the authority for the Kentucky Retirement Systems and the County Employees Retirement System;
    3. Day-to-day administrative needs of the Kentucky Retirement Systems and the County Employees Retirement System, including but not limited to:
      1. Benefit counseling and administration;
      2. Information technology and services, including a centralized Web site for the authority, the Kentucky Retirement Systems, and the County Employees Retirement System;
      3. Legal services;
      4. Employer reporting and compliance;
      5. Processing and distribution of benefit payments, and other financial, investment administration, and accounting duties as directed by the Kentucky Retirement Systems board of trustees or the County Employees Retirement System board of trustees;
      6. All administrative actions necessary to carry out benefit functions required by the Kentucky Retirement Systems and the County Employment Retirement System statutes, including but not limited to administration of reduced and unreduced retirement benefits, disability retirement, reemployment after retirement, service purchases, computation of sick-leave credit costs, pension spiking determinations, and all other administrative decisions and orders; and
      7. Completing and compiling financial data and reports;
    4. Any jointly held assets used for the administration of the Kentucky Retirement Systems and the County Employees Retirement System, including but not limited to real estate, office space, equipment, and supplies;
    5. Hiring a single actuarial consulting firm who shall serve both the Kentucky Retirement Systems and the County Employees Retirement System;
    6. The Authority may promulgate administrative regulations as an authority or on behalf of the Kentucky Retirement Systems and the County Employees Retirement System, individually or collectively, provided such regulations are not inconsistent with the provisions of this section and KRS 16.505 to 16.652 , 61.510 to 61.705 , 78.510 to 78.852 , and 61.505 , necessary or proper in order to carry out the provisions of this section and duties authorized by KRS 16.505 to 16.652 and 61.510 to 61.705 ;
    7. Contract management for administrative services; and
    8. Other tasks or duties as directed solely or jointly by the boards of the Kentucky Retirement Systems or the County Employees Retirement System.
  2. The eight (8) member Kentucky Public Pensions Authority shall be composed of the following individuals:
    1. The chair of the Kentucky Retirement Systems board of trustees;
    2. The chair of the County Employees Retirement System board of trustees;
    3. The investment committee chair of the Kentucky Retirement Systems board of trustees, unless the investment committee chair is also the chair of the board of trustees in which case the chair of the Kentucky Retirement Systems shall appoint an individual who serves on the investment committee;
    4. The investment committee chair of the County Employees Retirement System board of trustees, unless the investment committee chair is also the chair of the County Employees Retirement System board of trustees in which case the chair of the County Employees Retirement System shall appoint an individual who serves on the investment committee;
    5. Two additional (2) trustees of the Kentucky Retirement Systems board of trustees selected by the chair of the Kentucky Retirement Systems board of trustees of which one (1) shall be a trustee who was elected by the membership of one (1) of the systems administered by Kentucky Retirement Systems and one (1) shall be a trustee of Kentucky Retirement Systems who was appointed by the Governor; and
    6. Two additional (2) trustees of the County Employees Retirement System board of trustees selected by the chair of the County Employees Retirement System board of trustees of which one (1) shall be a trustee who was elected by the membership of the County Employees Retirement System and one (1) shall be a trustee of the County Employees Retirement System who was appointed by the Governor.
  3. The Kentucky Public Pensions Authority is hereby granted the powers and privileges of a corporation, including but not limited to the following powers:
    1. To sue and be sued in its corporate name;
    2. To make bylaws not inconsistent with the law and in accordance with its duties as provided by this section;
    3. To conduct the business and promote the purposes for which it was formed;
    4. To carry out the obligations of the authority subject to KRS Chapters 45, 45A, 56, and 57;
    5. To purchase fiduciary liability insurance; and
    6. The Kentucky Public Pensions Authority shall reimburse any authority member, officer, or employee for any legal expense resulting from a civil action arising out of the performance of his or her official duties. The hourly rate of reimbursement for any contract for legal services under this paragraph shall not exceed the maximum hourly rate provided in the Legal Services Duties and Maximum Rate Schedule promulgated by the Government Contract Review Committee established pursuant to KRS 45A.705 , unless a higher rate is specifically approved by the secretary of the Finance and Administration Cabinet or his or her designee.
  4. Any vacancy which may occur in an appointed position on the Kentucky Public Pensions Authority shall be filled in the same manner which provides for the selection of the particular member of the authority. No person shall serve in more than one (1) position as a member of the authority and if a person holds more than one (1) position as a member of the authority, he or she shall resign a position.
    1. Membership on the authority shall not be incompatible with any other office unless a constitutional incompatibility exists. No authority member shall serve in more than one (1) position as a member of the authority. (5) (a) Membership on the authority shall not be incompatible with any other office unless a constitutional incompatibility exists. No authority member shall serve in more than one (1) position as a member of the authority.
    2. An authority member shall be removed from office upon conviction of a felony or for a finding of a violation of any provision of KRS 11A.020 or 11A.040 by a court of competent jurisdiction.
    3. A current or former employee of the County Employees Retirement System, Kentucky Retirement Systems, or the Kentucky Public Pensions Authority shall not be eligible to serve as a member of the authority.
  5. Kentucky Public Pensions Authority members who do not otherwise receive a salary from the State Treasury shall receive a per diem of eighty dollars ($80) for each day they are in session or on official duty, and they shall be reimbursed for their actual and necessary expenses in accordance with state administrative regulations and standards, except that the members shall not receive a per diem or receive reimbursements on the same day they receive a per diem or reimbursements for service to the Kentucky Retirement Systems board of trustees or County Employees Retirement Systems board of trustees.
    1. The authority shall meet at least once in each quarter of the year and may meet in special session upon the call of the chair or the executive director of the authority. (7) (a) The authority shall meet at least once in each quarter of the year and may meet in special session upon the call of the chair or the executive director of the authority.
    2. The authority shall elect a chair and a vice chair. The chair shall not serve more than four (4) consecutive years as chair or vice chair of the authority. The vice chair shall not serve more than four (4) consecutive years as chair or vice chair of the authority. A member who has served four (4) consecutive years as chair or vice chair of the authority may be elected chair or vice chair of the authority after an absence of two (2) years from the positions.
    3. A majority of the authority members shall constitute a quorum and all actions taken by the authority shall be by affirmative vote of a majority of the authority members present.
    4. The authority shall post on the authority’s Web site and shall make available to the public:
      1. All meeting notices and agendas of the authority. Notices and agendas shall be posted to the authority’s Web site at least seventy-two (72) hours in advance of the authority’s meetings, except in the case of special or emergency meetings as provided by KRS 61.823 ;
      2. All authority minutes or other materials that require adoption or ratification by the authority. The items listed in this subparagraph shall be posted within seventy-two (72) hours of adoption or ratification of the authority;
      3. All bylaws, policies, or procedures adopted or ratified by the authority; and
      4. A listing of the members of the authority and membership on each committee established by the authority.
    1. The Kentucky Public Pensions Authority shall appoint or contract for the services of an executive director and fix the compensation and other terms of employment for this position without limitation of the provisions of KRS Chapter 18A, 45A, and KRS 64.640 . The executive director shall be the chief administrative officer of the authority, the Kentucky Retirement Systems board of trustees, and the County Employees Retirement System board of trustees. The executive director shall work cooperatively with the chief executive officers of the Kentucky Retirement Systems and the County Employees Retirement System. (8) (a) The Kentucky Public Pensions Authority shall appoint or contract for the services of an executive director and fix the compensation and other terms of employment for this position without limitation of the provisions of KRS Chapter 18A, 45A, and KRS 64.640 . The executive director shall be the chief administrative officer of the authority, the Kentucky Retirement Systems board of trustees, and the County Employees Retirement System board of trustees. The executive director shall work cooperatively with the chief executive officers of the Kentucky Retirement Systems and the County Employees Retirement System.
    2. The Kentucky Public Pensions Authority shall authorize the executive director to appoint the employees deemed necessary to transact the duties of the authority for the purposes outlined in subsection (1) of this section.
    3. Effective April 1, 2021, the Kentucky Public Pensions Authority shall assume responsibility of administering the staff of the Kentucky Retirement Systems in order to provide the services established by this section.
    4. All employees of the Kentucky Public Pensions Authority, except for the executive director, chief investment officer, and one (1) deputy chief investment officer, shall be subject to the state personnel system established pursuant to KRS 18A.005 to 18A.204 and shall have their salaries determined by the secretary of the Personnel Cabinet.
    5. The authority shall annually report to the Public Pension Oversight Board the number of employees of the authority, the salary paid to each employee, and the change in the salaries of each individual employed by the authority over the prior year.
    6. The authority shall require the executive director and the employees as it thinks proper to execute bonds for the faithful performance of their duties notwithstanding the limitations of KRS Chapter 62.
    7. Notwithstanding any other provision of statute to the contrary, including but not limited to any provision of KRS Chapter 12, the Governor shall have no authority to change any provision of this section by executive order or action, including but not limited to reorganizing, replacing, amending, or abolishing the membership of the Kentucky Public Pensions Authority.
  6. All employees of the authority shall serve during its will and pleasure. Notwithstanding any statute to the contrary, employees shall not be considered legislative agents under KRS 6.611 .
  7. The Attorney General, or an assistant designated by him or her, may attend each meeting of the authority and may receive the agenda, board minutes, and other information distributed to authority members upon request. The Attorney General may act as legal adviser and attorney for the authority, and the authority may contract for legal services, notwithstanding the limitations of KRS Chapter 12 or 13B.
    1. All expenses incurred by or on behalf of the Kentucky Public Pensions Authority shall be paid by the systems administered by the Kentucky Retirement Systems or the County Employees Retirement System and shall be prorated, assigned, or allocated to each system as determined by Kentucky Public Pensions Authority. Any additional initial costs determined by the authority to be attributable solely to establishing a separate County Employees Retirement System board and the Kentucky Public Pensions Authority as provided by this section and KRS 78.782 shall be paid by the County Employees Retirement System. Any additional ongoing annual administrative and investment expenses that occur after the establishment of a separate County Employees Retirement System board and the Kentucky Public Pensions Authority that are determined by the authority to be a direct result of establishing a separate County Employees Retirement System board and the Kentucky Public Pensions Authority shall be paid by the County Employees Retirement System. (11) (a) All expenses incurred by or on behalf of the Kentucky Public Pensions Authority shall be paid by the systems administered by the Kentucky Retirement Systems or the County Employees Retirement System and shall be prorated, assigned, or allocated to each system as determined by Kentucky Public Pensions Authority. Any additional initial costs determined by the authority to be attributable solely to establishing a separate County Employees Retirement System board and the Kentucky Public Pensions Authority as provided by this section and KRS 78.782 shall be paid by the County Employees Retirement System. Any additional ongoing annual administrative and investment expenses that occur after the establishment of a separate County Employees Retirement System board and the Kentucky Public Pensions Authority that are determined by the authority to be a direct result of establishing a separate County Employees Retirement System board and the Kentucky Public Pensions Authority shall be paid by the County Employees Retirement System.
    2. Any other statute to the contrary notwithstanding, authorization for all expenditures relating to the administrative operations of the Kentucky Public Pensions Authority, the Kentucky Retirement Systems, and the County Employees Retirement System shall be contained in the biennial budget unit request, branch budget recommendation, and the financial plan adopted by the General Assembly pursuant to KRS Chapter 48. The request from the Kentucky Public Pensions Authority shall include any specific administrative expenses requested by the Kentucky Retirement Systems board of trustees or the County Employees Retirement System board of trustees pursuant to subsection (13) of Section 29 of this Act or subsection (13) of Section 66 of this Act, as applicable, that are not otherwise expenses specified by paragraph (a) of this subsection.
    1. An authority member shall discharge his or her duties as a member of the authority, including his or her duties as a member of a committee of the authority: (12) (a) An authority member shall discharge his or her duties as a member of the authority, including his or her duties as a member of a committee of the authority:
      1. In good faith;
      2. On an informed basis; and
      3. In a manner he or she honestly believes to be in the best interest of the County Employees Retirement System and the Kentucky Retirement Systems, as applicable.
    2. An authority member discharges his or her duties on an informed basis if, when he or she makes an inquiry into the business and affairs of the authority, system, or systems or into a particular action to be taken or decision to be made, he or she exercises the care an ordinary prudent person in a like position would exercise under similar circumstances.
    3. In discharging his or her duties, an authority member may rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by:
      1. One (1) or more officers or employees of the authority whom the authority member honestly believes to be reliable and competent in the matters presented;
      2. Legal counsel, public accountants, actuaries, or other persons as to matters the authority member honestly believes are within the person’s professional or expert competence; or
      3. A committee of the authority of which he or she is not a member if the authority member honestly believes the committee merits confidence.
    4. An authority member shall not be considered as acting in good faith if he or she has knowledge concerning the matter in question that makes reliance otherwise permitted by paragraph (c) of this subsection unwarranted.
    5. Any action taken as a member of the authority, or any failure to take any action as an authority member, shall not be the basis for monetary damages or injunctive relief unless:
      1. The authority member has breached or failed to perform the duties of the member’s office in compliance with this section; and
      2. In the case of an action for monetary damages, the breach or failure to perform constitutes willful misconduct or wanton or reckless disregard for human rights, safety, or property.
    6. A person bringing an action for monetary damages under this section shall have the burden of proving by clear and convincing evidence the provisions of paragraph (e)1. and 2. of this subsection, and the burden of proving that the breach or failure to perform was the legal cause of damages suffered by the Kentucky Retirement Systems or County Employees Retirement System, as applicable.
    7. In discharging his or her administrative duties under this section, an authority member shall strive to administer the systems in an efficient and cost-effective manner for the taxpayers of the Commonwealth of Kentucky and shall take all actions available under the law to contain costs for the trusts, including costs for participating employers, members, and retirees.

HISTORY: 2020 ch. 79, § 2, effective April 1, 2021; 2021 ch. 102, § 76, effective April 1, 2021.

Legislative Research Commission Notes.

(4/1/2021). This statute was created by Section 2 of 2020 Ky. Acts ch. 79. Section 45 of that Act reads as follows: “All administrative decisions made by the Kentucky Retirement Systems board of trustees prior to April 1, 2021, on behalf of the County Employees Retirement System, including but not limited to approval for hazardous positions, administrative decisions, and disability determinations, shall be implemented on April 1, 2021, and shall not be reversed except under the authority granted by KRS 78.510 to 78.852 to the County Employees Retirement System board of trustees or the Kentucky Public Pensions Authority as granted by Section 2 of this Act [this statute], as applicable, except that the retiree health plans established for the plan year beginning January 1, 2021, through December 31, 2021, by the Kentucky Retirement Systems board of trustees for recipients of the County Employees Retirement System shall not be altered by the County Employees Retirement System board of trustees for that specific plan year. All administrative regulations promulgated by the Kentucky Retirement Systems board of trustees prior to April 1, 2021, on behalf of the County Employees Retirement System shall continue to apply to the County Employees Retirement System on or after April 1, 2021, and shall not be reversed except under the authority granted by KRS 78.510 to 78.852 to the County Employees Retirement System board of trustees.”

(4/1/2021). This statute was created by Section 2 of 2020 Ky. Acts ch. 79. In that Act, Section 48 (effective 4/7/2020) reads as follows: “Notwithstanding any other provision of statute to the contrary, including but not limited to any provision of KRS Chapter 12: (1) The Governor shall have no authority to change any provision of KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 as it relates to reorganizing, replacing, amending, or abolishing the membership of the County Employees Retirement System board of trustees as provided by Section 3 of this Act, the Kentucky Retirement Systems board of trustees as provided by KRS 61.645 , or the Kentucky Public Pensions Authority as provided by Section 2 of this Act [this statute]; and (2) Effective April 1, 2021, the board of trustees of the Kentucky Retirement Systems and the County Employees Retirement System shall include the number and composition of the boards established by Sections 3, and 4, 46, and 47 of this Act, as applicable respectively.”

Kentucky Employees Retirement System

61.510. Definitions for KRS 61.510 to 61.705.

As used in KRS 61.510 to 61.705 , unless the context otherwise requires:

  1. “System” means the Kentucky Employees Retirement System created by KRS 61.510 to 61.705 ;
  2. “Board” means the board of trustees of the system as provided in KRS 61.645 ;
  3. “Department” means any state department or board or agency participating in the system in accordance with appropriate executive order, as provided in KRS 61.520 . For purposes of KRS 61.510 to 61.705 , the members, officers, and employees of the General Assembly and any other body, entity, or instrumentality designated by executive order by the Governor, shall be deemed to be a department, notwithstanding whether said body, entity, or instrumentality is an integral part of state government;
  4. “Examiner” means the medical examiners as provided in KRS 61.665 ;
  5. “Employee” means the members, officers, and employees of the General Assembly and every regular full-time, appointed or elective officer or employee of a participating department, including the Department of Military Affairs. The term does not include persons engaged as independent contractors, seasonal, emergency, temporary, interim, and part-time workers. In case of any doubt, the board shall determine if a person is an employee within the meaning of KRS 61.510 to 61.705 ;
  6. “Employer” means a department or any authority of a department having the power to appoint or select an employee in the department, including the Senate and the House of Representatives, or any other entity, the employees of which are eligible for membership in the system pursuant to KRS 61.525 ;
  7. “State” means the Commonwealth of Kentucky;
  8. “Member” means any employee who is included in the membership of the system or any former employee whose membership has not been terminated under KRS 61.535 ;
  9. “Service” means the total of current service and prior service as defined in this section;
  10. “Current service” means the number of years and months of employment as an employee, on and after July 1, 1956, except that for members, officers, and employees of the General Assembly this date shall be January 1, 1960, for which creditable compensation is paid and employee contributions deducted, except as otherwise provided, and each member, officer, and employee of the General Assembly shall be credited with a month of current service for each month he serves in the position;
  11. “Prior service” means the number of years and completed months, expressed as a fraction of a year, of employment as an employee, prior to July 1, 1956, for which creditable compensation was paid; except that for members, officers, and employees of the General Assembly, this date shall be January 1, 1960. An employee shall be credited with one (1) month of prior service only in those months he received compensation for at least one hundred (100) hours of work; provided, however, that each member, officer, and employee of the General Assembly shall be credited with a month of prior service for each month he served in the position prior to January 1, 1960. Twelve (12) months of current service in the system are required to validate prior service;
  12. “Accumulated contributions” at any time means the sum of all amounts deducted from the compensation of a member and credited to his individual account in the members’ account, including employee contributions picked up after August 1, , pursuant to KRS 61.560(4), together with interest credited, on such amounts and any other amounts the member shall have contributed thereto, including interest credited thereon. For members who begin participating on or after September 1, , “accumulated contributions” shall not include employee contributions that are deposited into accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510 and 61.515 , as prescribed by KRS 61.702(3)(b);
  13. “Creditable compensation”:
    1. Means all salary, wages, tips to the extent the tips are reported for income tax purposes, and fees, including payments for compensatory time, paid to the employee as a result of services performed for the employer or for time during which the member is on paid leave, which are includable on the member’s federal form W-2 wage and tax statement under the heading “wages, tips, other compensation,” including employee contributions picked up after August 1, 1982, pursuant to KRS 61.560(4). For members of the General Assembly, it shall mean all amounts which are includable on the member’s federal form W-2 wage and tax statement under the heading “wages, tips, other compensation,” including employee contributions picked up after August 1, 1982, pursuant to KRS 6.505(4) or 61.560(4);
    2. Includes:
      1. Lump-sum bonuses, severance pay, or employer-provided payments for purchase of service credit, which shall be averaged over the employee’s total service with the system in which it is recorded if it is equal to or greater than one thousand dollars ($1,000);
      2. Cases where compensation includes maintenance and other perquisites, but the board shall fix the value of that part of the compensation not paid in money;
      3. Lump-sum payments for creditable compensation paid as a result of an order of a court of competent jurisdiction, the Personnel Board, or the Commission on Human Rights, or for any creditable compensation paid in anticipation of settlement of an action before a court of competent jurisdiction, the Personnel Board, or the Commission on Human Rights, including notices of violations of state or federal wage and hour statutes or violations of state or federal discrimination statutes, which shall be credited to the fiscal year during which the wages were earned or should have been paid by the employer. This subparagraph shall also include lump-sum payments for reinstated wages pursuant to KRS 61.569 , which shall be credited to the period during which the wages were earned or should have been paid by the employer;
      4. Amounts which are not includable in the member’s gross income by virtue of the member having taken a voluntary salary reduction provided for under applicable provisions of the Internal Revenue Code; and
      5. Elective amounts for qualified transportation fringes paid or made available on or after January 1, 2001, for calendar years on or after January 1, 2001, that are not includable in the gross income of the employee by reason of 26 U.S.C. sec. 132(f)(4) ; and
    3. Excludes:
      1. Living allowances, expense reimbursements, lump-sum payments for accrued vacation leave, and other items determined by the board;
      2. For employees who begin participating on or after September 1, 2008, lump-sum payments for compensatory time;
      3. For employees who begin participating on or after August 1, 2016, nominal fees paid for services as a volunteer; and
      4. Any salary or wages paid to an employee for services as a Kentucky State Police school resource officer as defined by KRS 158.441;
  14. “Final compensation” of a member means:
    1. For a member who begins participating before September 1, 2008, who is employed in a nonhazardous position, the creditable compensation of the member during the five (5) fiscal years he or she was paid at the highest average monthly rate divided by the number of months of service credit during that five (5) year period multiplied by twelve (12). The five (5) years may be fractional and need not be consecutive. If the number of months of service credit during the five (5) year period is less than forty-eight (48), one (1) or more additional fiscal years shall be used;
    2. For a member who is employed in a nonhazardous position, whose effective retirement date is between August 1, 2001, and January 1, 2009, and whose total service credit is at least twenty-seven (27) years and whose age and years of service total at least seventy-five (75), final compensation means the creditable compensation of the member during the three (3) fiscal years the member was paid at the highest average monthly rate divided by the number of months of service credit during that three (3) years period multiplied by twelve (12). The three (3) years may be fractional and need not be consecutive. If the number of months of service credit during the three (3) year period is less than twenty-four (24), one (1) or more additional fiscal years shall be used. Notwithstanding the provision of KRS 61.565 , the funding for this paragraph shall be provided from existing funds of the retirement allowance;
    3. For a member who begins participating before September 1, 2008, who is employed in a hazardous position, as provided in KRS 61.592 , the creditable compensation of the member during the three (3) fiscal years he or she was paid at the highest average monthly rate divided by the number of months of service credit during that three (3) year period multiplied by twelve (12). The three (3) years may be fractional and need not be consecutive. If the number of months of service credit during the three (3) year period is less than twenty-four (24), one (1) or more additional fiscal years shall be used;
    4. For a member who begins participating on or after September 1, 2008, but prior to January 1, 2014, who is employed in a nonhazardous position, the creditable compensation of the member during the five (5) complete fiscal years immediately preceding retirement divided by five (5). Each fiscal year used to determine final compensation must contain twelve (12) months of service credit. If the member does not have five (5) complete fiscal years that each contain twelve (12) months of service credit, then one (1) or more additional fiscal years, which may contain less than twelve (12) months of service credit, shall be added until the number of months in the final compensation calculation is at least sixty (60) months; or
    5. For a member who begins participating on or after September 1, 2008, but prior to January 1, 2014, who is employed in a hazardous position as provided in KRS 61.592 , the creditable compensation of the member during the three (3) complete fiscal years he or she was paid at the highest average monthly rate divided by three (3). Each fiscal year used to determine final compensation must contain twelve (12) months of service credit. If the member does not have three (3) complete fiscal years that each contain twelve (12) months of service credit, then one (1) or more additional fiscal years, which may contain less than twelve (12) months of service credit, shall be added until the number of months in the final compensation calculation is at least thirty-six (36) months;
  15. “Final rate of pay” means the actual rate upon which earnings of an employee were calculated during the twelve (12) month period immediately preceding the member’s effective retirement date, including employee contributions picked up after August 1, 1982, pursuant to KRS 61.560(4). The rate shall be certified to the system by the employer and the following equivalents shall be used to convert the rate to an annual rate: two thousand eighty (2,080) hours for eight (8) hour workdays, nineteen hundred fifty (1,950) hours for seven and one-half (7-1/2) hour workdays, two hundred sixty (260) days, fifty-two (52) weeks, twelve (12) months, one (1) year;
  16. “Retirement allowance” means the retirement payments to which a member is entitled;
  17. “Actuarial equivalent” means a benefit of equal value when computed upon the basis of the actuarial tables that are adopted by the board. In cases of disability retirement, the options authorized by KRS 61.635 shall be computed by adding ten (10) years to the age of the member, unless the member has chosen the Social Security adjustment option as provided for in KRS 61.635 (8), in which case the member’s actual age shall be used. For members who began participating in the system prior to January 1, 2014, no disability retirement option shall be less than the same option computed under early retirement;
  18. “Normal retirement date” means the sixty-fifth birthday of a member, unless otherwise provided in KRS 61.510 to 61.705 ;
  19. “Fiscal year” of the system means the twelve (12) months from July 1 through the following June 30, which shall also be the plan year. The “fiscal year” shall be the limitation year used to determine contribution and benefit limits as established by 26 U.S.C. sec. 415 ;
  20. “Officers and employees of the General Assembly” means the occupants of those positions enumerated in KRS 6.150 . The term shall also apply to assistants who were employed by the General Assembly for at least one (1) regular legislative session prior to July 13, 2004, who elect to participate in the retirement system, and who serve for at least six (6) regular legislative sessions. Assistants hired after July 13, 2004, shall be designated as interim employees;
  21. “Regular full-time positions,” as used in subsection (5) of this section, shall mean all positions that average one hundred (100) or more hours per month determined by using the number of months actually worked within a calendar or fiscal year, including all positions except:
    1. Seasonal positions, which although temporary in duration, are positions which coincide in duration with a particular season or seasons of the year and which may recur regularly from year to year, the period of time shall not exceed nine (9) months;
    2. Emergency positions which are positions which do not exceed thirty (30) working days and are nonrenewable;
    3. Temporary positions which are positions of employment with a participating department for a period of time not to exceed nine (9) months and are nonrenewable;
    4. Part-time positions which are positions which may be permanent in duration, but which require less than a calendar or fiscal year average of one hundred (100) hours of work per month, determined by using the number of months actually worked within a calendar or fiscal year, in the performance of duty; and
    5. Interim positions which are positions established for a one-time or recurring need not to exceed nine (9) months;
  22. “Vested” for purposes of determining eligibility for purchasing service credit under KRS 61.552 means the employee has at least forty-eight (48) months of service if age sixty-five (65) or older or at least sixty (60) months of service if under the age of sixty-five (65). For purposes of this subsection, “service” means service in the systems administered by the Kentucky Retirement Systems and County Employees Retirement System;
  23. “Parted employer” means a department, portion of a department, board, or agency, such as Outwood Hospital and School, which previously participated in the system, but due to lease or other contractual arrangement is now operated by a publicly held corporation or other similar organization, and therefore is no longer participating in the system. The term “parted employer” shall not include a department, board, or agency that ceased participation in the system pursuant to KRS 61.522 ;
  24. “Retired member” means any former member receiving a retirement allowance or any former member who has filed the necessary documents for retirement benefits and is no longer contributing to the retirement system;
  25. “Current rate of pay” means the member’s actual hourly, daily, weekly, biweekly, monthly, or yearly rate of pay converted to an annual rate as defined in final rate of pay. The rate shall be certified by the employer;
  26. “Beneficiary” means the person or persons or estate or trust or trustee designated by the member in accordance with KRS 61.542 or 61.705 to receive any available benefits in the event of the member’s death. As used in KRS 61.702 , “beneficiary” does not mean an estate, trust, or trustee;
  27. “Recipient” means the retired member or the person or persons designated as beneficiary by the member and drawing a retirement allowance as a result of the member’s death or a dependent child drawing a retirement allowance. An alternate payee of a qualified domestic relations order shall not be considered a recipient, except for purposes of KRS 61.623 ;
  28. “Level percentage of payroll amortization method” means a method of determining the annual amortization payment on the unfunded actuarial accrued liability as expressed as a percentage of payroll over a set period of years but that may be converted to a dollar value for purposes of KRS 61.565(1)(d). Under this method, the percentage of payroll shall be projected to remain constant for all years remaining in the set period of time and the unfunded actuarially accrued liability shall be projected to be fully amortized at the conclusion of the set period of years;
  29. “Increment” means twelve (12) months of service credit which are purchased. The twelve (12) months need not be consecutive. The final increment may be less than twelve (12) months;
  30. “Person” means a natural person;
  31. “Retirement office” means the Kentucky Public Pensions Authority’s office building in Frankfort, unless otherwise designated by the Kentucky Public Pensions Authority;
  32. “Last day of paid employment” means the last date employer and employee contributions are required to be reported in accordance with KRS 16.543 , 61.543 , or 78.615 to the retirement office in order for the employee to receive current service credit for the month. Last day of paid employment does not mean a date the employee receives payment for accrued leave, whether by lump sum or otherwise, if that date occurs twenty-four (24) or more months after previous contributions;
  33. “Objective medical evidence” means reports of examinations or treatments; medical signs which are anatomical, physiological, or psychological abnormalities that can be observed; psychiatric signs which are medically demonstrable phenomena indicating specific abnormalities of behavior, affect, thought, memory, orientation, or contact with reality; or laboratory findings which are anatomical, physiological, or psychological phenomena that can be shown by medically acceptable laboratory diagnostic techniques, including but not limited to chemical tests, electrocardiograms, electroencephalograms, X-rays, and psychological tests;
  34. “Participating” means an employee is currently earning service credit in the system as provided in KRS 61.543 ;
  35. “Month” means a calendar month;
  36. “Membership date” means:
    1. The date upon which the member began participating in the system as provided in KRS 61.543 ; or
    2. For a member electing to participate in the system pursuant to KRS 196.167(4) who has not previously participated in the system or the Kentucky Teachers’ Retirement System, the date the member began participating in a defined contribution plan that meets the requirements of 26 U.S.C. sec. 403(b) ;
  37. “Participant” means a member, as defined by subsection (8) of this section, or a retired member, as defined by subsection (24) of this section;
  38. “Qualified domestic relations order” means any judgment, decree, or order, including approval of a property settlement agreement, that:
    1. Is issued by a court or administrative agency; and
    2. Relates to the provision of child support, alimony payments, or marital property rights to an alternate payee;
  39. “Alternate payee” means a spouse, former spouse, child, or other dependent of a participant, who is designated to be paid retirement benefits in a qualified domestic relations order;
  40. “Accumulated employer credit” mean the employer pay credit deposited to the member’s account and interest credited on such amounts as provided by KRS 16.583 and 61.597 ;
  41. “Accumulated account balance” means:
    1. For members who began participating in the system prior to January 1, 2014, the member’s accumulated contributions; or
    2. For members who began participating in the system on or after January 1, 2014, in the hybrid cash balance plan as provided by KRS 16.583 and 61.597 , the combined sum of the member’s accumulated contributions and the member’s accumulated employer credit;
  42. “Volunteer” means an individual who:
    1. Freely and without pressure or coercion performs hours of service for an employer participating in one (1) of the systems administered by Kentucky Retirement Systems without receipt of compensation for services rendered, except for reimbursement of actual expenses, payment of a nominal fee to offset the costs of performing the voluntary services, or both; and
    2. If a retired member, does not become an employee, leased employee, or independent contractor of the employer for which he or she is performing volunteer services for a period of at least twelve (12) months following the retired member’s most recent retirement date;
  43. “Nominal fee” means compensation earned for services as a volunteer that does not exceed five hundred dollars ($500) per month. Compensation earned for services as a volunteer from more than one (1) participating employer during a month shall be aggregated to determine whether the compensation exceeds the five hundred dollars ($500) per month maximum provided by this subsection;
  44. “Nonhazardous position” means a position that does not meet the requirements of KRS 61.592 or has not been approved by the board as a hazardous position;
  45. “Monthly average pay” means:
    1. In the case of a member who dies as a direct result of an act in line of duty as defined in KRS 16.505 or who dies as a result of a duty-related injury as defined in KRS 61.621 , the higher of the member’s monthly final rate of pay or the average monthly creditable compensation earned by the deceased member during his or her last twelve (12) months of employment; or
    2. In the case where a member becomes totally and permanently disabled as a direct result of an act in line of duty as defined in KRS 16.505 or becomes disabled as a result of a duty-related injury as defined in KRS 61.621 and is eligible for the benefits provided by KRS 61.621(5)(a), the higher of the member’s monthly final rate of pay or the average monthly creditable compensation earned by the disabled member during his or her last twelve (12) months of employment prior to the date the act in line of duty or duty-related injury occurred;
  46. “Authority” means the Kentucky Public Pensions Authority as provided by KRS 61.505 ; and
  47. “Executive director” means the executive director of the Kentucky Public Pensions Authority.

HISTORY: Enact. Acts 1956, ch. 110, § 1; 1958, ch. 113, § 1; 1960, ch. 165, part II, § 1; 1962, ch. 58, § 1; 1964, ch. 86, § 1; 1966, ch. 35, § 1; 1972, ch. 116, § 20; 1974, ch. 24, § 1; 1974, ch. 128, § 12, effective March 26, 1974; 1976, ch. 321, §§ 11, 40; 1978, ch. 311, § 10, effective June 17, 1978; 1978, ch. 384, § 551, effective June 17, 1978; 1980, ch. 186, § 6, effective July 15, 1980; 1982, ch. 166, § 16, effective July 15, 1982; 1982, ch. 423, § 4, effective July 15, 1982; 1982, ch. 458, § 11, effective January 1, 1982; 1986, ch. 90, § 7, effective July 15, 1986; 1988, ch. 191, § 1, effective July 15, 1988; 1988, ch. 349, § 7, effective July 15, 1988; 1990, ch. 489, § 1, effective July 13, 1990; 1992, ch. 240, § 11, effective July 14, 1992; 1994, ch. 485, § 7, effective July 15, 1994; 1996, ch. 167, § 7, effective July 15, 1996; 1998, ch. 105, § 6, effective July 15, 1998; 1998, ch. 371, § 1, effective July 15, 1998; 2000, ch. 210, § 2, effective July 14, 2000; 2000, ch. 385, § 9, effective July 14, 2000; 2001, ch. 7, § 7, effective June 21, 2001; 2001, ch. 140, § 2, effective June 21, 2001; 2002, ch. 52, § 3, effective July 15, 2002; 2003, ch. 169, § 5, effective March 31, 2003; 2004, ch. 36, § 7, effective July 13, 2004; 2005, ch. 86, § 8, effective June 20, 2005; 2008 (1st Ex. Sess.), ch. 1, § 10, effective June 27, 2008; 2009, ch. 77, § 7, effective June 25, 2009; 2010, ch. 104, § 2, effective April 8, 2010; 2010, ch. 148, § 5, effective July 15, 2010; 2011, ch. 52, § 2, effective June 8, 2011; 2013, ch. 120, § 45, effective July 1, 2013; 2015 ch. 28, § 2, effective June 24, 2015; 2016 ch. 25, § 1, effective July 15, 2016; 2018 ch. 107, § 14, effective July 14, 2018; 2018 ch. 151, § 3, effective April 13, 2018; 2019 ch. 197, § 4, effective April 9, 2019; 2020 ch. 79, § 19, effective April 1, 2021; 2020 ch. 82, § 2, effective April 8, 2020; 2021 ch. 83, § 2, effective March 23, 2021; 2021 ch. 102, § 45, effective April 1, 2021; 2021 ch. 106, § 5, effective June 29, 2021.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321, provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.

Legislative Research Commission Notes.

(6/29/2021). See 2021 Ky. Acts Ch. 106, secs. 10, 11, 12, and 13 for information regarding the application of the amendments to this statute made in that Act.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

NOTES TO DECISIONS

Cited:

1.Constitutionality.

Under Kentucky Supreme Court precedents, H.B. 389(4) 2000 Reg. Sess. ( Ky. 2000 ), which amended a provision of the Judicial Retirement Act, KRS 21.450(3), was clearly an unconstitutional delegation, as the unintelligible statute had neither “an intelligible principle,” nor standards controlling the exercise of administrative discretion, and the Kentucky Supreme Court concluded that Ky. H.B. 389(4), subsequently codified at KRS 21.450(3), was unconstitutional because it violated the nondelegation doctrine embodied in Ky. Const. §§ 27, 28, 29 and 60. Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ).

2.Legislative Intent.

In an action for a declaratory judgment by the Kentucky Board of Trustees of the Judicial Form Retirement System, if, the legislative intent in amending KRS 21.450 by H.B. 389(4), 2000 Reg. Sess. ( Ky. 2000 ), was to amend KRS 61.510(13), that fact was certainly not apparent, or even vaguely discernible, from the language of the bill. Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ).

3.Agencies.

Regional mental health-mental retardation boards are not state agencies within the meaning of this section even though they may receive and administer state and federal grants. Kentucky Region Eight v. Commonwealth, 507 S.W.2d 489, 1974 Ky. LEXIS 709 ( Ky. 1974 ).

Determination rendered by the Kentucky Retirement System that an employee’s purchase of non-qualified service time had to be based on the full actuarial cost as determined by the system was correct; but, it clearly factually and legally erred in basing the purchase cost upon a full-time annual salary when the employee was employed as a permanent part-time, and not a full-time, employee. Ky. Ret. Sys. v. Heavrin, 172 S.W.3d 808, 2005 Ky. App. LEXIS 24 (Ky. Ct. App. 2005).

4.Objective Medical Evidence.

Patient’s treating physicians provided detailed records of the patient’s course of treatment; while other physicians’ records were mostly cumulative of those provided by the primary treating physicians, they confirmed the observations and reports of the primary treating physicians. These records constituted “objective medical evidence” within the meaning of KRS 61.510(33). Ledford v. Ky. Ret. Sys., 2007 Ky. App. LEXIS 237 (Ky. Ct. App. July 27, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 936 (Ky. Ct. App. July 27, 2007).

Since incapacity sufficient to warrant disability retirement benefits is to be based on objective medical evidence pursuant to KRS 61.600(3), and under KRS 61.510(33) pain is subjective, any failure of the government’s physicians to comment on the employee’s pain was harmless to the claim. Claxon v. Ky. Ret. Sys., 2008 Ky. App. LEXIS 25 (Ky. Ct. App. Feb. 1, 2008).

Because osteoarthritis could be caused by several different factors, obesity could not constitute a pre-existing condition to preclude retirement disability benefits where there was no objective evidence that the claimant, a 62-year-old morbidly obese preschool bus driver, suffered osteoarthritis of the knees prior to the claimant’s employment. Ky. Ret. Sys. v. Robb, 2009 Ky. App. LEXIS 239 (Ky. Ct. App. Nov. 25, 2009, sub. op., 2009 Ky. App. Unpub. LEXIS 1095 (Ky. Ct. App. Nov. 25, 2009).

It was clearly error for the Kentucky Retirement System to have found that there was no objective medical evidence under KRS 61.510(33) that the claimant was disabled, given that all four of the claimant’s treating physicians found her to be disabled, plus a psychologist found she was unable to return to her previous position; the court rejected the argument that the findings of the physicians were not objective evidence because they were based on the claimant’s subjective complaints of pain, and the court affirmed the decision that overturned a ruling that denied the claimant disability retirement benefits under KRS 61.600 . Ky. Ret. Sys. v. Lowe, 343 S.W.3d 642, 2011 Ky. App. LEXIS 162 (Ky. Ct. App. 2011).

Treating physicians’ reports are clearly objective medical evidence, and while the Kentucky Retirement System is at liberty to point to other objective medical evidence to contradict the findings of treating physicians when denying a claim, and while the Retirement System is at liberty to give greater weight to its own reviewing physicians if it so chooses, it may not discount treating physicians’ reports as failing the standard of objective medical evidence; indeed, simply because a physician’s diagnoses are based in part upon the subjective complaints of a patient (such as pain) does not remove them from the realm of objective medical evidence, and the opinions and conclusions of a treating physician must be considered objective medical evidence for purposes of KRS 61.600 . Ky. Ret. Sys. v. Lowe, 343 S.W.3d 642, 2011 Ky. App. LEXIS 162 (Ky. Ct. App. 2011).

Circuit court properly denied a motion by the state retirement systems' board of trustees to alter, amend, or vacate an order finding that a state employee was entitled to disability benefits because his alleged alcohol abuse could never constitute a statutory condition, his ability to drive his personal vehicle in no way indicated an ability to perform the duties of his former position, he could and did file a second application for benefits based on new objective medical evidence, and the board did not preserve the issue of res judicata. Ky. Ret. Sys. v. Wimberly, 2015 Ky. App. LEXIS 28 (Ky. Ct. App. Feb. 27, 2015), aff'd, 495 S.W.3d 141, 2016 Ky. LEXIS 323 ( Ky. 2016 ).

5.Final Compensation.

When a former state senator reached 100% maximum contribution to the Kentucky Legislators’ Retirement Plan (LRP) and no longer contributed, his inviolable contract right was in place for purposes of Kentucky’s funding his defined benefit under the LRP; thus, he was entitled to receive retirement benefits based on an assumed salary of $27,500. He was not entitled to combine his service in both the LRP and the Kentucky County Employees’ Retirement System to determine his final compensation. Karem v. Bd. of Trs. of the Judicial Form Ret. Sys., 293 S.W.3d 401, 2009 Ky. App. LEXIS 62 (Ky. Ct. App. 2009).

Although KRS 61.680(2)(a) is ambiguous, the other statutes governing Kentucky’s retirement system indicate that retirement benefits under the Kentucky Legislators’ Retirement Plan (LRP) are calculated on an assumed salary of $27,500. Karem v. Bd. of Trs. of the Judicial Form Ret. Sys., 293 S.W.3d 401, 2009 Ky. App. LEXIS 62 (Ky. Ct. App. 2009).

Circuit court properly denied a retired employee's request for judgment interest where Ky. Rev. Stat. Ann. §§ 61.510 to 61.705 contained no provision allowing for interest on judgments obtained against the Kentucky Employees Retirement System, and the provisions dealing with the competitive bidding process were inapplicable. Marango v. Ky. Ret. Sys., 531 S.W.3d 499, 2017 Ky. App. LEXIS 623 (Ky. Ct. App. 2017).

6.Governmental Unit.

During bankruptcy reorganization, a nonprofit provider of mental health services was required to make post-petition contributions to the Kentucky Employees Retirement System as a debtor in possession complying with statutory obligations as a system participant. Because this section expressly designated the provider a department without regard to whether it was an integral part of the state government, a prior finding that it was not a governmental unit or state instrumentality was immaterial. Ky. Emple. Ret. Sys. v. Seven Counties Servs., Inc., 823 Fed. Appx. 300, 2020 FED App. 419N, 2020 U.S. App. LEXIS 22839 (6th Cir. Ky. 2020 ).

Cited:

Roland v. Kentucky Retirement Sys., 52 S.W.3d 579, 2000 Ky. App. LEXIS 46 (Ky. Ct. App. 2000); Kentucky Ret. Sys. v. Bowens, 281 S.W.3d 776, 2009 Ky. LEXIS 49 ( Ky. 2009 ).

Applied in

Jefferson Cty. Sheriff's Office v. Ky. Ret. Sys., 2021 Ky. LEXIS 146 (Ky. June 17, 2021).

Opinions of Attorney General.

A member of the General Assembly and the officers and employees enumerated in KRS 6.150 would be entitled to two (2) years’ service credit for each legislative biennium if they serve the entire biennium or the number of months they serve if they do not complete the biennium. OAG 63-349 .

An assistant would be entitled to one month of credit for each month he serves in the General Assembly as an assistant. OAG 63-349 .

There is no conflict between KRS 61.510(20) which includes assistants of the General Assembly as members of the retirement system and KRS 61.510(5). OAG 63-349 .

Eligibility for continued coverage under the Kentucky Employees Retirement System was not preserved by a contract in which a catering service agreed to employ twelve (12) food service workers who had previously been participating in the system as Kentucky state college employees, with the salaries of these twelve (12) being paid by the college from funds contributed in exact amount by the caterer to cover gross wages and the employer’s share of F.I.C.A. taxes, but with the only apparent control by the college being limited to the provisions that their wages cannot be reduced, and that their services cannot be terminated without approval of a designated college official, for the reason that looking behind the contract it appears that these twelve (12) would be state employees in name only and not such in light of the legal tests which must be applied. OAG 67-353 .

National guard technicians, in light of KRS 61.520(2), do not have the option to choose between the state employees and the federal civil service retirement systems. OAG 68-96 .

The Fivco Area Development Council, Inc. does not qualify as a state department or state agency as defined in KRS Chapter 12 and does not come within the definition of “department” under this section and is therefore not eligible to participate in the Kentucky Employees’ Retirement System. OAG 68-221 .

A national guard technician employed under the National Guard Technicians Act of 1968, became, on the effective date of that act, an employee of the United States and lost his status as an employee of the Department of Military Affairs and thus would not be eligible to remain in the state employees retirement system. However, such a technician who on January 1, 1969 became a member of the civil service retirement system might retain the same service credit he had accrued in the Kentucky Employees Retirement System as one who has resigned and is employed in private industry. OAG 68-459 .

Assistants, whose job is to assist those officers enumerated in KRS 6.150 , are eligible for membership in the Kentucky Employees Retirement System provided that they have been employed for six (6) or more sessions. OAG 70-341 .

An executive order bringing the Council on Public Higher Education under the Kentucky Employees’ Retirement System retroactive to the date the council was eligible for participation would resolve any legal question concerning those employees of the council who contributed to the Kentucky Employees’ Retirement System over the past years and who were members of the retirement system prior to being transferred to the council. OAG 73-225 .

The Council on Public Higher Education has been a department or agency as defined by subsection (3) causing it to be eligible for participation in the Kentucky Employees’ Retirement System since the latter came into existence in 1956. OAG 73-225 .

The term “employment covered by the Kentucky employees’ retirement system” in KRS 161.607 embraces the term “service” as defined in this section and as referred to in KRS 61.595 so that an employee of the Kentucky Department of Agriculture for the three (3) years immediately preceding July 1, 1956, when there was no Kentucky Employees’ Retirement System in existence, would still be entitled to purchase credit in the teachers’ retirement system for the three (3) years in question pursuant to the option contained in KRS 161.607. OAG 73-749 .

Where physicians under contract with the division of disability determination are furnished office space, program manuals and are not required to work during specific hours, but only to work about 25 hours per week, they are independent contractors rather than employees for purposes of this section and, consequently, are not covered by the Kentucky Employees’ Retirement System. OAG 74-22 .

Where executive directors of the Kentucky Fair Board had entered into written personal service contracts with the state to perform certain duties for compensation vastly in excess of the rate allowed to state employees by the State Personnel Department and could, under the terms of the contract, be removed without cause, they were independent contractors and not employees as set out in this section and were properly not covered by the Kentucky Employees Retirement System. OAG 74-358 .

Where a sheriff hired a seasonal employee to help during tax collection periods, the sheriff should not take out a Kentucky retirement sum from her salary since seasonal employees are expressly excluded from the retirement system. OAG 78-228 .

A county attorney is a constitutional officer who has a constant and continuing obligation to fulfill whatever tasks are required of him by his constituents, his county and the Commonwealth, is a full-time elective officer and is therefore an “employee” for purposes of subsections (5), (8) and (21) of this section. OAG 78-482 .

Where a duly elected county attorney took office on January 2, 1978, he was covered by the provisions of Kentucky Employees’ Retirement System, KRS 61.510 et seq., which became effective January 1, 1978 (Executive Order 77-1100), and had no option to reject participation, since KRS 446.030(2) was inapplicable, that section only applying to judicial proceedings, therefore placing him under the provisions of KERS when he took office and preventing him from having a choice; nor is he a part-time employee exempt under the provisions of subsections (5), (8) and (21) of this section. OAG 78-482 .

After examining the provisions of this section and the rules of the Administrative Office of the Courts pertaining to official court reporters and transcripts, the fees earned by the official court reporters from selling copies of transcripts to litigants are “creditable compensation” for purposes of the state retirement provisions, since the official court reporters report the proceedings as they are required to do by the AOC and, pursuant to the rules of the AOC, they make them available to litigants, prepared in a manner directed by the AOC and at prices within maximum limits established by the AOC. This is a service performed for the employer and fees received as a result thereof constitute “creditable compensation” for state retirement purposes. OAG 78-628 .

Since the River Region Mental Health-Mental Retardation Board has ceased to exist in light of its bankruptcy and Seven Counties Services, Inc., now appears to be its newly created successor, SCS employees may begin to participate in the Kentucky Employees’ Retirement System upon the issuance of an executive order from the Governor to that effect. OAG 78-685 .

Employees of a county legal aid service are not eligible to participate in the Kentucky Employees Retirement System. OAG 80-70 .

The Governor of the Commonwealth of Kentucky does not have the authority to exempt by executive order a department of state government currently “participating,” as that term is defined in subsection (3) of this section, in the Kentucky Employees Retirement System from such participation. OAG 80-264 .

In light of the 1974 amendment of subsection (3) of this section and KRS 61.520(3) to include entities which were not otherwise integral parts of state government, those comprehensive care centers which are participating in the Kentucky Employees Retirement System (KERS) pursuant to Executive Orders 66-378 and 69-667 are doing so legally despite their private nonprofit corporate structure; moreover, once this participation in the KERS has been initiated by a center it may not thereafter voluntarily withdraw from such participation since Chapter 61 of the Kentucky Revised Statutes does not authorize such a voluntary withdrawal of membership or participation. OAG 80-349 .

Where nonprofit corporation assumes the operation of a noncommercial public television station from the local board of education and the corporation’s employees, who are transferred from the board to the corporation, had been members of the County Employee’s Retirement System, the corporation, is legally eligible given its public purpose and the public interest to be served, within the meaning of subsection (3) of this section to be designated by executive order of the Governor pursuant to KRS 61.520 as a participant in the Kentucky Employees’ Retirement System. OAG 81-227 .

Reading KRS 61.607 (b) (now (2)) as a whole, “final monthly rate of pay” should be read as “final rate of pay,” since there is no indication the drafter of the statute had any intention to define final monthly rate of pay other than final rate of pay. OAG 82-329 (opinion prior to 1984 amendment).

Since there is a statutory definition of final rate of pay, but not one for final monthly rate of pay, the insertion of the term monthly in KRS 61.607 (b) (now (2)) does not change the application of the term “final rate of pay,” since that rate is based, by definition, on the employee’s earnings “during the twelve (12) month period immediately preceding the member’s effective retirement date . . . . . ” Therefore, “final rate of pay” is in effect the employee’s “final monthly rate of pay” for the 12 months prior to his date of retirement. OAG 82-329 (opinion prior to 1984 amendment).

Salary paid to a Circuit Court Clerk by a county fiscal court, for such officer’s services as ex officio county law librarian, cannot be lawfully credited in relation to a clerk’s Kentucky Employees Retirement System account, as such salary is not “creditable compensation” within that system. OAG 93-75 .

Research References and Practice Aids

Cross-References.

County employees retirement system, KRS Ch. 78.

ALR

Abandonment of civil service rights by acceptance of or assertion of right to pension or retirement. 76 A.L.R.2d 1312.

Disciplinary suspension of public employee as affecting computation of length of service for retirement or pension purposes. 6 A.L.R.2d 506.

“Employees”: provisions referring to “employees” as including public officers. 5 A.L.R.2d 415.

Pension, action or proceeding to establish right to or to recover. 136 A.L.R. 809.

Pension fund, judicial review of decision on merits of claim upon. 117 A.L.R. 1408.

Public employees or officers who left service before passage of pension statute as entitled to pension. 142 A.L.R. 938.

Relationship between performance of official duties and subsequent disability or death for purpose of pension or survivorship benefits of government employee other than fireman, policeman, or military personnel. 85 A.L.R.2d 1048.

Retirement pension previously granted a public officer or employee as affected by re-entry into public employment. 162 A.L.R. 1469.

“Salary,” “wages,” “pay,” or the like, within pension law basing benefits thereon. 14 A.L.R.2d 634.

Vested right of pensioner to pension. 52 A.L.R.2d 437.

61.515. Retirement system established — Fund created.

There is hereby created and established:

  1. A retirement system for employees to be known as the “Kentucky Employees Retirement System” by and in which name it shall, pursuant to the provisions of KRS 61.510 to 61.705 , transact all its business and shall have the powers and privileges of a corporation; and
  2. A fund, called the “Kentucky Employees Retirement Fund,” which shall consist of all the assets of the system as set forth in KRS 61.570 to 61.585 . All assets received in the fund shall be deemed trust funds to be held and applied solely as provided in KRS 61.510 to 61.705 .

History. Enact. Acts 1956, ch. 110, § 2; 1976, ch. 321, § 40; 1988, ch. 349, § 8, effective July 15, 1988; 2004, ch. 36, § 8, effective July 13, 2004.

Compiler’s Notes.

KRS 61.585 referred to in this section has been repealed.

NOTES TO DECISIONS

Cited:

EEOC v. Jefferson County Sheriff’s Dep’t, 424 F.3d 467, 2005 U.S. App. LEXIS 20053 (6th Cir. 2005), vacated,2006 U.S. App. LEXIS 258 (6th Cir. 2006).

Research References and Practice Aids

Cross-References.

Life insurance for state employees, KRS 18A.205 .

Securities to be registered in name of “Kentucky Retirement Systems,” KRS 16.642 , 61.650 .

61.520. Participation determined by board and fixed by executive order — Authority for order.

  1. Each department determined by the board to be eligible and qualified for participation shall participate in the system when the Governor by appropriate executive order, the authority to issue such executive order being granted, directs such department to participate in the system. The effective date of such participation shall be determined by the board and fixed by the Governor in his executive order.
    1. Notwithstanding the provisions of subsection (1) of this section the Governor is authorized to permit any state college or university, which he directs by appropriate executive order to participate in the system after January 1, 1972, to include its noninstructional employees in the membership of the system while excluding the instructional employees of the state college or university from membership. (2) (a) Notwithstanding the provisions of subsection (1) of this section the Governor is authorized to permit any state college or university, which he directs by appropriate executive order to participate in the system after January 1, 1972, to include its noninstructional employees in the membership of the system while excluding the instructional employees of the state college or university from membership.
    2. All employees of an agency participating under authority of subsection (2)(a) of this section shall be considered noninstructional employees except the members of the instructional staff of the state college or university who are responsible for teaching and the administrative positions which are included in the Teachers’ Insurance and Annuity Association (TIAA) or the Kentucky Teachers’ Retirement System.
  2. All executive orders issued under authority of this section since July 1, 1956, are hereby ratified by the General Assembly and each participating and contributing department, board, agency, corporation, board for mental health or individuals with an intellectual disability, or entity participating since that date under such executive order is hereby declared to be a participating department under the Kentucky Employees Retirement System.
  3. Except as provided by KRS 61.522 :
    1. Once a department participates it shall continue to participate as long as it remains qualified; and
    2. Any position initially required to participate in the Kentucky Employees Retirement System shall continue to participate as long as the position exists.

HISTORY: Enact. Acts 1956, ch. 110, § 3; 1960, ch. 165, part II, § 2; 1966, ch. 35, § 2; 1972, ch. 116, § 21; 1974, ch. 128, § 13, effective March 26, 1974; 2000, ch. 385, § 10, effective July 14, 2000; 2003, ch. 169, § 6, effective March 31, 2003; 2012, ch. 146, § 7, effective July 12, 2012; 2015 ch. 28, § 3, effective June 24, 2015.

Opinions of Attorney General.

National guard technicians, in light of this section, do not have the option to choose between the state employees and the federal civil service retirement systems. OAG 68-96 .

Participation in the Kentucky Employees Retirement System is compulsory for employees of the Upper Kentucky River mental health and mental retardation board. OAG 69-314 .

Regional mental health-mental retardation boards are not agencies of either state or local governments, therefore employees are not eligible to participate under either state or local deferred compensation programs. OAG 76-260 .

The Governor of the Commonwealth of Kentucky does not have the authority to exempt by executive order a department of state government currently “participating,” as that term is defined in KRS 61.510(3), in the Kentucky Employees Retirement System (KERS) from such participation. OAG 80-264 .

In light of the 1974 amendment of KRS 61.510(3) and subsection (3) of this section to include entities which were not otherwise integral parts of state government, those comprehensive care centers which are participating in the Kentucky Employees Retirement System (KERS) pursuant to Executive Orders 66-378 and 69-667 are doing so legally despite their private nonprofit corporate structure; moreover, once this participation in the KERS has been initiated by a center it may not thereafter voluntarily withdraw from such participation since Chapter 61 of the Kentucky Revised Statutes does not authorize such a voluntary withdrawal of membership or participation. OAG 80-349 .

The fact that some of the comprehensive care centers do not participate in the Kentucky Employees Retirement System (KERS) does not mean that continued mandatory participation by those that have been participating is discriminatory since the initial decision to participate or not participate in the KERS was made by a majority of the employees at each center. OAG 80-349 .

Where nonprofit corporation assumes the operation of a noncommercial public television station from the local board of education and the corporation’s employees, who are transferred from the board to the corporation, had been members of the County Employees Retirement System, the corporation, is legally eligible given public purpose and the public interest to be served, within the meaning of subsection (3) of KRS 61.510 to be designated by executive order of the Governor pursuant to this section as a participant in the Kentucky Employees’ Retirement System. OAG 81-227 .

61.521. Participation date of circuit clerks. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 132; 1972, ch. 116, § 22) was repealed by Acts 1996, ch. 31, § 5, effective July 15, 1996.

61.522. Definitions — Voluntary and involuntary cessation of participation by employer in retirement system — Effects of on employees, employers, and system — Statutes and administrative regulations that prevail regarding participation.

Notwithstanding any other provision of KRS 61.510 to 61.705 or 78.510 to 78.852 to the contrary:

  1. For purposes of this section:
    1. “Active member” means a member who is participating in the system;
    2. “Employer” means the governing body of a department, as defined by KRS 61.510 ;
    3. “Employer’s effective cessation date” means:
      1. The last day of the system’s plan year in the year in which the employer has elected to cease participation in the system, provided the employer has met the requirements of this section and has given the Kentucky Retirement Systems sufficient notice as provided by administrative regulations promulgated by the systems; or
      2. For Kentucky Employees Retirement System employers making an election to cease participating under the provisions of subsection (8) of this section, it shall be June 30, 2021; and
    4. “Inactive member” means a member who is not participating with the system;
  2. Any employer participating in the Kentucky Employees Retirement System on July 1, 2015, except as limited by subsection (6) of this section, may:
    1. Voluntarily cease participation in its respective retirement system subject to the requirements and restrictions of this section;
    2. Be required to involuntarily cease participation in the system under the provisions of this section if the board has determined the employer is no longer qualified to participate in a governmental plan or has failed to comply with the provisions of KRS 61.510 to 61.705 ; or
    3. If the employer is participating in the Kentucky Employees Retirement System, request an estimate of the cost of voluntarily ceasing participation in the system prior to officially making a request to cease participation. For those Kentucky Employees Retirement System nonhazardous employers who are considering ceasing participating in the system under the provisions of subsection (8) of this section on June 30, 2021, the request for an estimate to voluntarily cease participating must be made prior to December 31, 2019, and the estimate shall be provided to that employer within sixty (60) days of the request, except that no estimate shall be required to be provided prior to January 31, 2020;
    1. If an employer desires to voluntarily cease participation in the Kentucky Employees Retirement System as provided by subsection (2)(a) of this section: (3) (a) If an employer desires to voluntarily cease participation in the Kentucky Employees Retirement System as provided by subsection (2)(a) of this section:
      1. The employer shall adopt a resolution requesting to cease participation in the system and shall submit the resolution to the board for its approval. The board shall not be able to deny a resolution to cease participation in the Kentucky Employees Retirement System for any employer who seeks to voluntarily cease participation in the system as provided by subsection (8) of this section;
      2. Except as provided by subsection (8)(d) of this section, the cessation of participation in the system shall apply to all employees of the employer;
      3. The employer shall pay for all administrative costs of an actuarial study to be completed by the Kentucky Retirement Systems’ consulting actuary and for any other administrative costs for discontinuing participation in the system as determined by the board and as provided by this section;
      4. The employer shall provide an alternative retirement program for employees who will no longer be covered by the system, which may include a voluntary defined contribution plan but, for Kentucky Employees Retirement System employers with effective cessation dates occurring on or after June 30, 2020, the alternative retirement program shall not include a defined benefit plan which by its nature can have an unfunded liability;
      5. If the alternative retirement program established by the employer meets the qualification requirements under 26 U.S.C. sec. 401(a) or 26 U.S.C. sec. 403(b) and is capable of accepting trustee-to-trustee transfers of both pre-tax and post-tax contributions, employees of the employer ceasing participation may, except for those employees continuing to participate in the system as provided by subsection (8)(d)2. of this section, seek to transfer his or her account balance to the employer’s qualified alternate retirement program within sixty (60) days of the employer’s effective cessation date. An employee’s election to transfer his or her account balance within sixty (60) days of the employer’s effective cessation date is an irrevocable waiver of the right to obtain service credits in the system for the time worked for the employer ceasing participation;
      6. The employer shall pay to the system by lump sum or in installments as provided by subsection (8) of this section, if eligible, the full actuarial cost, except as provided by subsection (8)(g)4. of this section, of the benefits accrued by its current and former employees in the system as determined separately for the pension fund and the insurance fund by the actuarial study required by subparagraph 3. of this paragraph. If the employer makes an election for employees to continue to participate in the system as provided by subsection (8)(d)2. of this section, the cost shall also include the present value of future normal costs of those employees who will continue to participate in the system after the employer’s effective cessation date. The full actuarial cost shall not include any employee who seeks a transfer of his or her account balance within sixty (60) days of the employer’s effective cessation date as provided by subparagraph 5. of this paragraph. The actuarial cost shall be fixed, and the employer shall not be subject to any increases or subsequent adjustments, once the lump sum is paid or the installment payments have commenced; and
      7. Kentucky Employees Retirement System employers ceasing participating under the provisions of subsection (8) of this section who elect to pay their actuarial costs by a lump sum shall pay the entire costs, in one (1) or more payments, so that the full actuarial costs are paid by June 30, 2022. Interest on the unpaid principal amount of the full actuarial costs shall begin on July 1, 2021, and accrue until the full actuarial costs are paid. If the ceasing employer makes a payment prior to July 1, 2021, the ceasing employer shall receive a credit against their full actuarial costs to be determined as of June 30, 2021, that is equal to the amount of the prior payment plus interest for the period beginning on the date of the prior payment and ending on June 30, 2021. If a final payment is due by June 30, 2022, for an employer who has made a payment or payments on or before June 30, 2021, it shall be equal to any unpaid actuarial costs due plus interest as of the date of final payment. If the payment or payments made by the ceasing employer exceed the final full actuarial costs of ceasing participation, the employer shall by June 30, 2022, be refunded an amount equal to the overpayment plus interest for the period beginning on the date of the overpayment and ending on the date the refund is paid to the employer. If the ceasing employer fails to make the full lump-sum payment by June 30, 2022, the ceasing employer shall make installments as provided by subsection (8)(g) of this section, and the ceasing employer shall have the costs recalculated based upon making installment payments as provided by this section and shall be required to make up any missed installment payments as determined by the system. For purposes of this subparagraph, “interest” shall be equal to a rate of five and one- quarter percent (5.25%) per annum for pension costs and at a rate of six and one-quarter percent (6.25%) per annum for retiree health costs.
    2. If the board determines an employer must involuntarily cease participation in the system as provided by subsection (2)(b) of this section:
      1. The cessation of participation in the system shall apply to all employees of the employer;
      2. The employer shall pay for all administrative costs of an actuarial study to be completed by the Kentucky Retirement Systems’ consulting actuary and for any other administrative costs for discontinuing participation in the system as determined by the board and as provided by this section; and
      3. The employer shall pay by lump sum to the system the full actuarial cost of the benefits accrued by its current and former employees in the system as determined separately for the pension fund and the insurance fund by the actuarial study required by subparagraph 2. of this paragraph. The actuarial cost shall be fixed, and the employer shall not be subject to any increases or subsequent adjustments, once the lump sum is paid.

        A Kentucky Employees Retirement System employer who ceases participation in the systems under this paragraph shall not establish or contribute to on behalf of its employees a defined benefit plan which by its nature can have an unfunded liability;

  3. Any employee hired on or after the employer’s effective cessation date by an employer who has ceased participation in the system as provided by this section shall not, regardless of his or her membership date in the systems administered by Kentucky Retirement Systems, be eligible to participate in the Kentucky Employees Retirement System through the employer that ceased participation for the duration of his or her employment with that employer;
  4. If an employer has ceased participation in the system as provided by this section:
    1. The rights of recipients and the vested rights of inactive members accrued as of the employer’s effective cessation date shall not be impaired or reduced in any manner as a result of the employer ceasing participation in the system; and
    2. Except as provided by subsection (8)(d)2. of this section, employees of the employer ceasing participation shall accrue benefits through the employer’s effective cessation date but shall not accrue any additional benefits in the Kentucky Employees Retirement System, including earning years of service credit through the ceased employer, after the employer’s effective cessation date for as long as they remain employed by the employer. The day after the employer’s effective cessation date, each employee described by this paragraph, except as provided by subsection (8)(d)2. of this section, shall be considered an inactive member with respect to his or her employment with the employer that ceased participation and, subject to the provisions and limitations of KRS 61.510 to 61.705 , shall:
      1. Retain his or her accounts with the Kentucky Employees Retirement System and have those accounts credited with interest in accordance with KRS 61.510 to 61.705 ;
      2. Retain his or her vested rights in accordance with paragraph (a) of this subsection; and
      3. Be eligible to take a refund of his or her accumulated account balance in accordance with KRS 61.625 or any other available distribution if eligible;
  5. Kentucky Employees Retirement System employers who are county attorney offices, Commonwealth’s attorney offices, local and district health departments governed by KRS Chapter 212, master commissioners, executive branch agencies whose employees are subject to KRS 18A.005 to 18A.200 , state-administered retirement systems, state-supported universities and community colleges, property valuation administration offices, or employers in the legislative or judicial branch of Kentucky state government, shall not be eligible to voluntarily discontinue participation in the Kentucky Employees Retirement System, except that:
    1. Any employer who is a nonstock nonprofit corporation organized under KRS Chapter 273 may voluntarily cease participation; and
    2. Local and district health departments governed by KRS Chapter 212, state- supported universities and community colleges, and the Kentucky Higher Education Student Loan Corporation may voluntarily cease participation in the Kentucky Employees Retirement System solely under the provisions and requirements of subsection (8) of this section;
  6. For purposes of this section, the full actuarial cost shall be determined by the Kentucky Retirement Systems’ consulting actuary separately for the pension fund and the insurance fund using the assumptions and methodology established by the system specifically for determining the full actuarial cost of ceasing participation as of the employer’s effective cessation date. For purposes of determining the full actuarial cost, the assumed rate of return used to calculate the cost shall be the lesser of the assumed rate of return utilized in the system’s most recent actuarial valuation or the yield on a thirty (30) year United States treasury bond as of the employer’s effective cessation date, but shall in no case be lower than:
    1. Except as provided by paragraphs (b) to (e) of this subsection, the assumed rate of return utilized in the system’s most recent actuarial valuation minus three and one-half percent (3.5%);
    2. Four and one-half percent (4.5%) for those Kentucky Employees Retirement System employers who voluntarily cease participation under the provisions of subsection (8) of this section who pay the costs of ceasing participation by lump-sum payment by June 30, 2022, and who do not make an election for their employees to continue to participate in the system after the employer’s effective cessation date as provided by subsection (8)(d)3. of this section;
    3. Five and one-quarter percent (5.25%) for university and community college employers or three and one-half percent (3.5%) for all other Kentucky Employees Retirement System employers who voluntarily cease participation under the provisions of subsection (8) of this section who pay the costs of ceasing participation by lump-sum payment by June 30, 2022, and who do make an election for employees to continue to participate in the system after the employer’s effective cessation date as provided by subsection (8)(d)2. of this section;
    4. Three and one-half percent (3.5%) for those Kentucky Employees Retirement System employers who voluntarily cease participation under the provisions of subsection (8) of this section who pay the costs of ceasing participation by installment payments and who do not make an election for employees to continue to participate in the system after the employer’s effective cessation date as provided by subsection (8)(d)3. of this section; or
    5. Three percent (3%) for those Kentucky Employees Retirement System employers who voluntarily cease participation under the provisions of subsection (8) of this section who pay the costs of ceasing participation by installment payments and who do make an election for employees to continue to participate in the system after the employer’s effective cessation date as provided by subsection (8)(d)2. of this section;
  7. Notwithstanding the provisions of this section, any Kentucky Employees Retirement System employer who is eligible to voluntarily cease participating as provided by subsection (6) of this section may, on or after April 1, 2020, but prior to May 1, 2021, except in the case of university or community college employers it shall be prior to January 1, 2021, elect to voluntarily cease participating in the systems for its nonhazardous employees by submitting a resolution in accordance with subsection (3)(a)1. of this section. If an employer makes an election to voluntarily cease participation by submitting a resolution as provided by this subsection:
    1. The board shall accept any election to cease participation on or before June 30, 2021, and the employer’s effective cessation date shall be June 30, 2021. Prior to May 1, 2021, or January 1, 2021, in the case of university or community college employers, the employer may rescind a previously submitted election to cease participation;
    2. Nonhazardous employees hired on or after the employer’s effective cessation date by an employer who has ceased participation in the system as provided by this section shall not, regardless of his or her membership date in the systems administered by Kentucky Retirement Systems, be eligible to participate in the Kentucky Employees Retirement System through the employer that ceased participation for the duration of his or her employment with that ceasing employer;
    3. Nonhazardous employees hired prior to the employer’s effective cessation date, who began participating in the systems administered by Kentucky Retirement Systems on or after January 1, 2014, and who are participating in the hybrid cash balance plan as provided by KRS 61.597 , shall continue to contribute and earn service credit in the systems through the employer’s effective cessation date. After the employer’s effective cessation date, the employee shall participate in the alternative retirement plan established by the employer as provided by subsection (3)(a)4. of this section. A nonhazardous employee covered by this paragraph who elects to transfer his or her account balance within sixty (60) days of the employer’s effective cessation date as provided by subsection (3)(a)5. of this section, shall, notwithstanding KRS 61.597 , receive a transfer of the employee’s accumulated account balance, including the entire accumulated employer credit, regardless of the employee’s years of service credit;
      1. The employer shall, in the resolution submitted in accordance with subsection (3)(a)1. of this section, make an election as to whether or not nonhazardous employees hired prior to the employer’s effective cessation date, who began participating in the systems administered by Kentucky Retirement Systems prior to January 1, 2014, who are participating in the systems administered by Kentucky Retirement Systems through the employer, will continue to participate in the system after the employer’s effective cessation date. (d) 1. The employer shall, in the resolution submitted in accordance with subsection (3)(a)1. of this section, make an election as to whether or not nonhazardous employees hired prior to the employer’s effective cessation date, who began participating in the systems administered by Kentucky Retirement Systems prior to January 1, 2014, who are participating in the systems administered by Kentucky Retirement Systems through the employer, will continue to participate in the system after the employer’s effective cessation date.
      2. If the employer makes an election for the employees described by this paragraph to continue participating in the system after the employer’s effective cessation date, these employees will continue to contribute and earn service credit in the systems for as long as they remain employed by the employer in a regular full-time position that is eligible to participate in the systems, except in the event the employer fails to make installment payments as provided by KRS 61.675(4). Any costs for the present value of future normal costs of the employees covered by this subparagraph who will contribute and earn service in the system after the employer’s effective cessation date shall be included in the cost calculation established by subsection (7) of this section.
      3. If the employer does not make an election for the employees described by this paragraph to continue participating in the system after the employer’s effective cessation date, these employees shall continue to contribute and earn service credit in the systems through the employer’s effective cessation date. After the employer’s effective cessation date, these employees shall participate in the alternative retirement plan established by the employer as provided by subsection (3)(a)4. of this section;
    4. The cost of ceasing participating to an individual employer shall be equal to the cost determined under subsection (7) of this section and shall include the costs of those employees who continue to participate in the system as provided by paragraph (d)2. of this subsection;
    5. The employer may pay the full actuarial cost of ceasing participation by lump- sum payment or in installments as provided by paragraph (g) of this subsection;
    6. If the employer elects to pay the costs in installment payments, the cost of ceasing participation as provided by this subsection shall be financed by the systems using the following method:
      1. Annual payments occurring on or after July 1, 2021, shall be a set dollar value and shall be paid in monthly installments. In fiscal year 2021- 2022, the set dollar value shall be equal to the higher of the actual contributions paid by the employer in fiscal year 2020-2021 or the annualized average of the creditable compensation reported to the systems by the ceasing employer over the last sixty (60) months occurring prior to July 1, 2019, for which contributions were paid by the ceasing employer, and multiplied by an employer rate of forty-nine and forty-seven one-hundredths percent (49.47%). Annual payments, for fiscal years occurring on or after July 1, 2022, which shall be paid monthly, shall be increased by one and one-half percent (1.5%) annually and shall be paid until the cost as provided by subsection (7) of this section and as adjusted annually by subparagraphs 2. and 3. of this paragraph are paid in full or until an employer as described by subparagraph 4. of this paragraph has paid for thirty (30) years from the effective cessation date;
      2. Interest shall be assigned to the principal amount annually beginning on July 1, 2021, and for each July 1 thereafter, that is equal to a rate of five and one-quarter percent (5.25%) per annum for pension costs and at a rate of six and one-quarter percent (6.25%) per annum for retiree health costs;
      3. If an employer is not projected by the systems to pay off the full actuarial costs to cease participation with interest as provided by subparagraph 2. of this paragraph at the conclusion of the thirty (30) year installment period from the employer’s effective cessation date, and the employer makes an election for employees to continue to participate in the system after the employer’s effective cessation date as provided by paragraph (d)2. of this subsection, then the systems shall adjust the base value for the first annual payments occurring on or after July 1, 2021, in order to keep the maximum period of installments to thirty (30) years; and
      4. If an employer is not projected by the systems to pay off the full actuarial costs to cease participation with interest as provided by subparagraph 2. of this paragraph at the conclusion of the thirty (30) year installment period from the employer’s effective cessation date, and the employer does not make an election for employees to continue to participate in the system after the employer’s effective cessation date as provided by paragraph (d)3. of this subsection, the employer shall pay the amount determined by subparagraph 1. of this paragraph for thirty (30) years from the effective cessation date and no additional costs shall be billed to a ceasing employer after the conclusion of the thirty (30) year period nor shall the employer be subject to adjustments under subparagraph 3. of this paragraph. The system may request in future biennial executive branch budgets the additional funding needed on an annual basis to fully pay off the installments at the conclusion of the thirty (30) year period for the employers described by this paragraph, and it is the intent of the General Assembly to pay the additional funding needed by appropriation in the biennial executive branch budget. An employer ceasing participation who is making installment payments as provided by this paragraph may at any time pay off a portion of the remaining balance or the entire remaining balance and shall not be charged any interest for periods beyond the pay-off date for the balance that is paid off;
    7. Kentucky Employees Retirement System employers eligible to cease participation under the provisions of this subsection who do not make an election to cease participation in the system prior to May 1, 2021, or prior to January 1, 2021, in the case of university and community college employers, shall be required to pay the full actuarially determined contributions established by KRS 61.565 and 61.702 for fiscal years occurring on or after July 1, 2021; and
    8. Kentucky Employees Retirement System employers who elect to cease participation in the system as provided by this subsection who are currently receiving a distribution of general fund appropriations in the biennial executive branch budget under the provisions of 2018 Ky. Acts ch. 169, Part I, G., 4., (5), 2018 Ky. Acts ch. 169, Part I, G., 5., (2), or 2018 Ky. Acts ch. 169, Part I, G., 9., (2) to help pay employer contributions to the system shall continue to receive the same level of distribution of general fund appropriations to help pay the costs of ceasing participation until such time that the employer’s full actuarial costs of ceasing participation are paid off;
  8. The Kentucky Retirement Systems shall promulgate administrative regulations pursuant to KRS Chapter 13A to administer this section;
    1. Any employer who voluntarily ceases participation, or who is required to involuntarily cease participation as provided in this section, shall hold the Commonwealth and the Kentucky Retirement Systems, including board members and employees of the Kentucky Retirement Systems, harmless from damages, attorney’s fees and costs from legal claims for any cause of action brought by any member or retired member of the departing employer related to the employer’s cessation of participation as set forth in this section. (10) (a) Any employer who voluntarily ceases participation, or who is required to involuntarily cease participation as provided in this section, shall hold the Commonwealth and the Kentucky Retirement Systems, including board members and employees of the Kentucky Retirement Systems, harmless from damages, attorney’s fees and costs from legal claims for any cause of action brought by any member or retired member of the departing employer related to the employer’s cessation of participation as set forth in this section.
    2. Any employer who is voluntarily ceasing participation under the provisions of subsection (8) of this section shall be required to pledge any security in any relevant real estate, chattel paper, deposit accounts, documents, goods covered by documents, instruments, investment property, letters of credit rights, and money to the costs of ceasing participation until all costs of ceasing participation are paid in full; and
  9. Notwithstanding any other provision of statute to the contrary, the provisions of KRS 61.510 to 61.705 , and the administrative regulations promulgated thereunder, shall prevail regarding any question of participation in the systems of any employer or any employee of an employer who ceases participation in the Kentucky Employees Retirement System.

HISTORY: 2015 ch. 28, § 1, effective June 24, 2015; 2017 ch. 104, § 1, effective March 21, 2017; repealed and reenacted by 2018 ch. 207, § 157, effective July 14, 2018; 2019 (1st Ex. Sess.), ch. 1, § 1, effective July 24, 2019; 2020 ch. 79, § 20, effective April 1, 2021; 2020 ch. 82, § 3, effective April 8, 2020; 2021 ch. 28, § 1, effective March 17, 2021; 2021 ch. 28, § 2, effective March 17, 2021; 2021 ch. 83, § 3, effective March 23, 2021; 2021 ch. 83, § 4, effective March 23, 2021.

Legislative Research Commission Notes.

(6/29/2021). This statute was amended by 2021 Ky. Acts chs. 28 and 83, which do not appear to be in conflict and have been codified together.

(4/1/2021). This statute was amended by 2020 Ky. Acts chs. 79 and 82, which do not appear to be in conflict and have been codified together.

(4/8/2020). This KRS section was amended by Section 3 of 2020 Ky. Acts ch. 82. Section 5 of that Act states, “The amendments to Section 3 of this Act [this statute] shall be retroactive back to April 1, 2020.”

(7/24/2019). 2019 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 5, provides: “A Kentucky Employees Retirement System employer ceasing participation under the provisions of subsection (8) of Section 1 of this Act [this statute] may finance the aggregate amount necessary to pay the full actuarial cost of ceasing participation, plus any associated transaction costs, and the amount necessary to fund any required reserves. The financing may be undertaken by the issuance of bonds by the ceasing employer, or its agency or instrumentality, through financing agreements with the Kentucky Asset/Liability Commission or other available sources of funding. The sale of any bonds or entering into of any financing agreement or other source of funding may be by public or private negotiated sale.”

(4/27/2018). This statute was amended by 2018 Ky. Acts chs. 170, sec. 1 and repealed and reenacted in ch. 207, sec. 157. However, 2018 Ky. Acts ch. 207, secs. 158 and 159 provided that, notwithstanding any statutory language to the contrary, no part of the amendments to this statute in 2018 Ky. Acts ch. 170, sec. 1 are to be codified.

(3/21/2017). 2017 Ky. Acts ch. 104, sec. 3 provided: “Notwithstanding KRS 61.661 , Kentucky Retirement Systems shall provide the employer ceasing participation as provided by Section 2 of this Act, an individual member breakdown of the actuarial cost attributable to each current and former employee of the employer for purposes of allocating the costs among organizational units of the employer.”

(3/21/2017). 2017 Ky. Acts ch. 104, sec. 3 provided: “Notwithstanding KRS 61.661 , Kentucky Retirement Systems shall provide the employer ceasing participation as provided by Section 2 of this Act, an individual member breakdown of the actuarial cost attributable to each current and former employee of the employer for purposes of allocating the costs among organizational units of the employer.”

(6/24/2015). During codification, the Reviser of Statutes has changed the numbering of subsections of this statute from the way it appeared in 2015 Ky. Acts ch. 28, sec. 2. None of the text of the subsections was changed.

61.523. Cessation of participation by employer in retirement system and establishment of a governmental plan — Effects of on employees and employers — No legislative determination that employer ceasing to participate is a “governmental agency.”

The following shall apply if an employer ceases participation in the Kentucky Employees Retirement System or the County Employees Retirement System under KRS 61.522 and, after ceasing participation, establishes an alternative retirement plan as required by KRS 61.522 , which is a governmental plan within the meaning of 26 U.S.C. sec. 414(d) that provides for mandatory employee contributions:

  1. Each employee of the employer participating in the governmental plan shall contribute a fixed percentage of compensation for each pay period he or she receives compensation. The fixed percentage of compensation provided by this subsection shall:
    1. Be established in a written plan document by the board of directors or other governing body of the employer for specific classes of employees;
    2. Comply with subsections (2) to (4) of this section; and
    3. Only be changed by the board of directors or other governing body of the employer prospectively, provided the written plan document established by paragraph (a) of this subsection is amended to reflect the change;
  2. The employer shall cause to be deducted from the compensation of each employee the contribution rate specified by subsection (1) of this section;
  3. The deductions provided by this section shall be made notwithstanding that the minimum compensation provided by law for any employee shall be reduced thereby. Every employee shall be deemed to consent and agree to the deductions made as provided by this section, and payment of salary or compensation less these deductions shall be a full and complete discharge of all claims for services rendered by the person during the period covered by such payment, except as to benefits payable under the plans established by the employer that are covered by this section;
  4. Each employer shall, solely for the purpose of compliance with 26 U.S.C. sec. 414(h) , pick up the employee contributions required by this section and the contributions so picked up shall be treated as employer contributions in determining tax treatment under the United States Internal Revenue Code and KRS 141.010 , except for purposes of the Federal Insurance Contributions Act. The picked-up employee contribution shall:
    1. Be in lieu of employee contributions;
    2. Not be included as gross income of the employee until such time as the contributions are distributed or made available to the employee; and
    3. Be paid by the employer from the same source of funds which is used to pay compensation to the employee. The employee shall not be permitted to opt-out of the picked-up employee contributions, to receive the picked-up employee contributions directly instead of having them paid by the employer to the retirement plan, or to have any other cash or deferred election right to the picked-up contributions within the meaning of 26 C.F.R. sec. 1.401(k)-1(a)(3); and
  5. The provisions of this section shall not be construed to be a determination or opinion by the Kentucky General Assembly as to whether or not an employer who ceases participation in the Kentucky Employees Retirement System or the County Employees Retirement System under KRS 61.522 is a governmental agency for purposes of establishing a governmental plan within the meaning of 26 U.S.C. sec. 414(d) .

HISTORY: 2016 ch. 113, § 1, effective July 15, 2016; 2018 ch. 171, § 67, effective July 14, 2018; 2018 ch. 207, § 67, effective April 26, 2018.

Legislative Research Commission Notes.

(4/27/2018). This statute was amended by 2018 Ky. Acts chs. 171 and 207, which do not appear to be in conflict and have been codified together.

61.525. Membership.

Membership in the system shall consist of the following:

  1. All persons who become employees of a participating department after the date such department first participates in the system;
    1. All persons who are employees of a department on the date the department first participates in the system, either in service or on authorized leave from service, and who elect within thirty (30) days following the department’s participation, or in the case of persons on authorized leave, within thirty (30) days of their return to active service, to become members and thereby agree to make contributions as provided in KRS 61.515 to 61.705 ; (2) (a) All persons who are employees of a department on the date the department first participates in the system, either in service or on authorized leave from service, and who elect within thirty (30) days following the department’s participation, or in the case of persons on authorized leave, within thirty (30) days of their return to active service, to become members and thereby agree to make contributions as provided in KRS 61.515 to 61.705 ;
    2. All persons who are employees of a department who did not elect to participate within thirty (30) days of the date the department first participated in the system or within thirty (30) days of their return to active service and who subsequently elect to participate the first day of a month after the department’s date of participation;
  2. All persons who are employees of any credit union whose membership was initially limited to employees of state government and their families and which subsequently may have been extended to local government employees and their families;
  3. All persons who were professional staff employees of the Council on Postsecondary Education or the Higher Education Assistance Authority and were contributing to the system on the effective date of Executive Order 74-762 or 75-964, respectively, and file a written election of their desire to continue in the system and all administrative and professional staff employees of the Higher Education Assistance Authority who, on or after January 1, 1993, are not participating in another retirement plan sponsored by the Higher Education Assistance Authority;
  4. All persons who were professional staff employees of the Kentucky Authority for Educational Television on and after July 1, 1974;
  5. All persons who are employees of the Teachers’ Retirement System except employees who are required to participate under the Teachers’ Retirement System under KRS 161.220(4)(d);
  6. Membership in the system shall not include persons who are not eligible to participate in the system as provided by KRS 61.522 or those employees who are simultaneously participating in another state-administered defined benefit plan within Kentucky other than those administered by the Kentucky Retirement Systems, except for employees who have ceased to contribute to one (1) of the state-administered retirement plans as provided in KRS 21.360; and
  7. Effective January 1, 1998, employees of the Kentucky Community and Technical College System who were previously contributing members and are not required to participate in the Teachers’ Retirement System as a member; employees who were previously contributing members transferred from the former Cabinet for Workforce Development as provided in KRS 164.5805(1)(a) and who have not exercised the option to participate in the new Kentucky Community and Technical College personnel system as provided in KRS 164.5805(1)(e); and new employees as of July 1, 1997, who are not eligible under the Teachers’ Retirement System or who are not contributing to an optional retirement plan established by the board of regents for the Kentucky Community and Technical College System.

HISTORY: Enact. Acts 1956, ch. 110, § 4; 1960, ch. 165, part II, § 3; 1970, ch. 251, § 1; 1972, ch. 116, § 23; 1976, ch. 321, §§ 12, 40; 1978, ch. 155, § 104, effective June 17, 1978; 1984, ch. 253, § 2, effective July 1, 1984; 1986, ch. 90, § 8, effective July 15, 1986; 1988, ch. 349, § 9, effective July 15, 1988; 1990, ch. 222, § 2, effective July 13, 1990; 1992, ch. 240, § 12, effective July 14, 1992; 1994, ch. 485, § 8, effective July 15, 1994; 1997 (1st Ex. Sess.), ch. 1, § 37, effective May 30, 1997; 1998, ch. 105, § 7, effective July 15, 1998; 2000, ch. 385, § 11, effective July 14, 2000; 2006, ch. 211, § 13, effective July 12, 2006; 2015 ch. 28, § 4, effective June 24, 2015; 2017 ch. 32, § 5, effective June 29, 2017.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

Section 10 of Acts 1990, ch. 222 provides that: “Any employee or former employee not retired who participated in more than one (1) retirement system administered by the Kentucky Retirement Systems prior to July 15, 1990, may retroactively choose to receive and shall be granted full service credit for time served in one (1) of those systems, and thereby shall relinquish service credit in the other systems for the same time period, and his contributions related to the relinquished credit shall be refunded.”

NOTES TO DECISIONS

1.In General.

Board of Claims lacked jurisdiction over an employee’s negligent misrepresentation claim, which had elements separate from negligence and as such was not recognized as a tort at the time KRS 44.072 was enacted, and was without an expressed waiver of sovereign immunity. Thus, the Board’s contrary finding was void, and an action for declaratory relief filed by the Board of Trustees of the Kentucky Employee’s Retirement Systems was properly taken having raised jurisdiction as a legal question. Bd. of Trs. of Ky. Ret. Sys. v. Commonwealth, 251 S.W.3d 334, 2008 Ky. App. LEXIS 102 (Ky. Ct. App. 2008).

Opinions of Attorney General.

A person who becomes a state employee of a department already participating in the retirement system automatically becomes a member of the Kentucky Employees Retirement System by force of law. OAG 63-339 .

Where a member of the County Employees Retirement System (CERS) terminated his employment with a county clerk’s office on December 15, 1975, and began receiving retirement payments from the CERS effective in January, 1976, and meanwhile on December 1, 1975, he was employed by a city, which did not participate in the CERS until April, 1977, that individual was eligible to purchase service credit in the CERS for the period of time he worked for the city prior to its participation date in CERS, even though he had already received retirement payments from the CERS. OAG 80-168 .

Research References and Practice Aids

Cross-References.

Public health employees of joint city-county health department, KRS 212.432 .

61.526. Employee and employer may file statement of facts at retirement office — Procedures for verification.

  1. Upon becoming a member of the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System, the employee and employer may file in the retirement office, in the form and detail as the authority may prescribe, a statement of facts pertaining to the employee and other information the authority may require, including but not limited to a record of military service and previous employment with the employer.
  2. If the records of the employer employing the member during the time the service was rendered do not substantiate the statement of facts filed by the member, the member shall be notified of any discrepancy. The member shall be advised that he has the responsibility of supplying verification of any unsubstantiated service.
  3. At the request of the member, or the beneficiary if the member is deceased, the Authority’s executive director shall arrange a time and place or process to receive additional information in regard to the unsubstantiated service. After filing the request, the member or the beneficiary if the member is deceased, shall have a reasonable time but no more than six (6) months to present the additional information to substantiate the unsubstantiated service.
  4. The system may allow a member to retire or obtain a refund without the member submitting a statement of facts pertaining to the member as described by this section.

HISTORY: Enact. Acts 1972, ch. 116, § 24; 1974, ch. 128, § 14, effective March 26, 1974; 1992, ch. 240, § 13, effective July 14, 1992; 1998, ch. 154, § 65, effective July 15, 1998; 2003, ch. 169, § 7, effective March 31, 2003; 2017 ch. 32, § 6, effective June 29, 2017; 2021 ch. 102, § 46, effective April 1, 2021.

61.527. Extension of system to include police court judges and their present and future survivors covered as of December 31, 1977, under retirement plans established by cities of second or third class — Procedure for transfer of coverage to state system.

  1. The system shall extend to and embrace police court judges and present and future survivors who are covered as of December 31, 1977, by pension plans established under KRS 26.650 or 26.652 and which existed as of July 31, 1976.
  2. Within thirty (30) days after January 1, 1978, the city legislative body of each city with a pension plan established under KRS 26.650 or 26.652 shall furnish the system a record of the period of service and contributions of each person covered by the plan, and, for any survivor who is benefiting from the plan, the monthly pension amount being received and any other information requested by the system.
  3. Upon receiving the information required by subsection (2) of this section, the system shall credit each person with service sufficient to guarantee that he or his survivors shall receive at a minimum the benefits to which he would be entitled under KRS 26.660, except that the service required for vesting shall be that required by the system rather than that required by KRS 26.650 or 26.652. In addition, each individual’s contributions to the plan under which he was covered as of December 31, 1977, shall be credited to his account in the system.
  4. Each person covered by the system under this section shall have the same rights and responsibilities as any other member or retiree of the system but at no additional cost to the person.
  5. Each city with a pension plan established under KRS 26.650 or 26.652 as of July 31, 1976, shall pay to the system an amount equal to that which would have existed in the police judge pension fund as of December 31, 1977, if the fund contained:
    1. The actual amount paid by each police judge making contributions to the fund, and
    2. Contributions by the city equal to the amount which would have been paid if the city had contributed to the fund at the rate provided for under KRS 61.565 .
  6. Within five (5) years after the system makes its determination, each city shall pay to the system the amount computed by the system under subsection (5) of this section. Any additional cost of funding benefits provided under subsection (3) of this section shall be paid by the state.

History. Enact. Acts 1976 (Ex. Sess.), ch. 23, § 1, effective January 1, 1978; 1992, ch. 240, § 14, effective July 14, 1992.

Compiler’s Notes.

KRS 26.650, 26.652 and 26.660 referred to in this section have been repealed.

61.530. Nonelection of membership — Penalty.

Any person who is an employee on the date his department first participates in the system, either in service or on leave from service, who does not elect within the time set forth in KRS 61.525 to become a member and thereby make contributions required of him by KRS 61.510 to 61.705 , shall forfeit all right for credit for service with any department prior to the date he might subsequently elect to become a member, except as provided in KRS 61.552 .

History. Enact. Acts 1956, ch. 110, § 5; 1962, ch. 58, § 3; 1976, ch. 321, § 40; 1988, ch. 349, § 10, effective July 15, 1988.

61.535. Cessation of membership — Conditions — Forfeiture of retirement benefits.

  1. The membership of any person in the system shall cease:
    1. Upon withdrawal of his accumulated account balance at or any time after termination of employment, regardless of length of service;
    2. Upon disability retirement;
    3. Upon service retirement;
    4. Upon death;
    5. For persons hired prior to August 1, 2000, upon termination of employment with prejudice; or
    6. For persons hired on or after August 1, 2000, upon conviction of a felony relating to the person’s employment as provided in subsection (3) of this section.
  2. For purposes of KRS 61.510 to 61.705 and 16.505 to 16.652 , termination of employment with prejudice shall mean termination as the result of conviction of the member in a court of competent jurisdiction of embezzlement or larceny of public funds or property or malfeasance in office, or the forcing of a member to make restitution for any funds or property criminally taken by said member at the time of termination of employment.
  3. Notwithstanding any provision of law to the contrary, an employee hired on or after August 1, 2000, who participates in one (1) of the retirement systems administered by the Kentucky Retirement Systems and who is convicted, in any state or federal court of competent jurisdiction, of a felony related to his employment shall forfeit rights and benefits earned under the retirement system, except for the return of his accumulated contributions and interest credited on those contributions. The payment of retirement benefits ordered forfeited shall be stayed pending any appeal of the conviction. If the conviction is reversed on final judgment, no retirement benefit shall be forfeited. The employer shall notify the retirement system when an employee is convicted under the provisions of this subsection.

History. Enact. Acts 1956, ch. 110, § 6; 1960, ch. 165, part II, § 4; 1962, ch. 58, § 4; 1972, ch. 116, § 25; 1976, ch. 321, § 40; 1988, ch. 349, § 11, effective July 15, 1988; 2000, ch. 273, § 1, effective July 14, 2000; 2013, ch. 120, § 46, effective July 1, 2013; 2020 ch. 79, § 21, effective April 1, 2021.

NOTES TO DECISIONS

Cited:

Roland v. Kentucky Retirement Sys., 52 S.W.3d 579, 2000 Ky. App. LEXIS 46 (Ky. Ct. App. 2000).

Opinions of Attorney General.

A resigned state employee cannot receive service credit in the Kentucky Employees Retirement System for the time he spent as a county employee. OAG 61-695 .

A person retired pursuant to this section who has been reemployed by the state on a full time basis and who is presently participating in the retirement system pursuant to KRS 61.637 may purchase military service credit under KRS 61.555 providing that the reemployed retired member meets the requisites of KRS 61.559 and such military service credit is to be applied to the formula set out in KRS 61.637 in recomputing the employee’s retirement benefits at the time of the termination of his reemployment. OAG 74-373 .

61.540. Statement of member and employer — Summary plan description.

  1. The Authority shall prepare and make available upon request to all members, retired members, or beneficiaries, a summary plan description, written in a manner that can be understood by the average member, retired member, or beneficiary, and sufficiently accurate and comprehensive to reasonably apprise them of their rights and obligations under the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 and 78.510 to 78.852 .
  2. The summary plan description shall include:
    1. The name of the retirement system, the name and business address of the executive director of the Kentucky Public Pensions Authority and the chief executive officer, and the name, business address, and title of each member of the board of trustees;
    2. The name and business address of the person designated for the service of legal process;
    3. The system’s requirements for participation and benefits;
    4. A description of retirement formulas for normal, early and disability retirement, and survivor benefits;
    5. A description of the requirements for vesting of pension benefits;
    6. A reasonable list of circumstances which would result in disqualification, ineligibility, or denial or loss of benefits;
    7. The sources of financing retirement benefits, and statutory requirements for funding;
    8. A statement after each actuarial valuation as to whether funding requirements are being met; and
    9. The procedures to be followed in presenting claims for benefits under the plan, and the remedies available under the plan for the redress of claims which are denied in whole or in part.
  3. The system may publish the summary plan description in the form of a paper or electronic comprehensive pamphlet or booklet, or in the form of paper or electronic periodic newsletters which shall incorporate all the information required in the summary plan description within a period of two (2) years. Any changes in statutory requirements or administrative practices which alter the provisions of the plan as described in the summary plan description shall be summarized as required in subsection (1) of this section and shall be made available upon request to members in the form of a supplement to a comprehensive booklet, or reported in the periodic newsletter.

HISTORY: Enact. Acts 1956, ch. 110, § 7; 1962, ch. 58, § 5; 1972, ch. 116, § 26; 1976, ch. 321, § 40; 1980, ch. 246, § 12, effective July 15, 1980; 1988, ch. 349, § 12, effective July 15, 1988; 1992, ch. 240, § 15, effective July 14, 1992; 2003, ch. 169, § 8, effective March 31, 2003; 2009, ch. 77, § 8, effective June 25, 2009; 2021 ch. 96, § 2, effective June 29, 2021; 2021 ch. 102, § 47, effective April 1, 2021.

61.541. Creditable compensation of fee officers.

The creditable compensation of fee officers who receive salary, fees, maintenance, or other perquisites as a result of their official duties is the gross amount received decreased by the cost of salary paid deputies and clerks and the cost of office supplies and other official expenses.

History. Enact. Acts 1972, ch. 116, § 27; 1976, ch. 321, § 13; 1978, ch. 384, § 552, effective June 17, 1978; 1982, ch. 423, § 5, effective July 15, 1982; 1992, ch. 240, § 16, effective July 14, 1992; 2009, ch. 77, § 9, effective June 25, 2009.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

61.542. Designation of principal and contingent beneficiaries — Rights — Effects of change in certain conditions — Designation following cessation of membership.

  1. Prior to the first day of the month in which the member receives his or her first retirement allowance and prior to the member filing a notification of retirement or a request for refund:
    1. Each member may designate on the form prescribed by the board a principal beneficiary and contingent beneficiary for his or her account. The principal beneficiary or contingent beneficiary designated by the member shall be:
      1. One (1) or more persons; or
      2. The member’s estate; or
      3. A trust;
    2. If multiple persons are designated as provided by paragraph (a)1. of this subsection, the member shall indicate the percentage of total benefits each person is to receive.
      1. If percentages are not indicated, payments will be disbursed equally to the named beneficiaries.
      2. If the percentages indicated do not total one hundred percent (100%), each beneficiary shall receive an increased or decreased percentage which is proportional to the percentage allotted him or her by the member.
      3. If any of the multiple beneficiaries die prior to the member’s death, the remaining beneficiaries shall be entitled to the deceased beneficiary’s percentage of the total benefits, and each shall receive a percentage of the deceased’s share which is equal to the percentage allotted them by the member;
    3. The principal and contingent beneficiary designation established by the member pursuant to paragraph (a) of this subsection shall remain in full force and effect until changed by the member, except:
      1. A final divorce decree terminates an ex-spouse’s status as beneficiary, unless the member has on file in the retirement office a beneficiary designation that redesignates the ex-spouse as beneficiary subsequent to the issuance of the divorce decree;
      2. If a beneficiary or beneficiaries are convicted of any crime which prohibits that person or persons from receiving the benefits under KRS 381.280 , the beneficiary or beneficiaries shall not be eligible for any of the benefits and the remaining beneficiary or beneficiaries or, if none, the member’s estate, shall become the beneficiary; and
      3. When a notification of retirement has been filed at the retirement office, the designation of beneficiary on the notification of retirement, which shall be one (1) person, his or her estate, or a trust, shall supersede the designation of all previous beneficiaries, unless the notification of retirement is withdrawn, invalid, or voided. If the notification of retirement is withdrawn, invalid, or voided, the prior beneficiary designation on file with the system shall remain in full force and effect until changed by the member; and
    4. Except as provided by paragraph (c)3. of this subsection, if the member fails to designate a beneficiary for his or her account or if the beneficiary designation is determined to be void by the system, the member’s estate shall become the beneficiary.
  2. If the member dies prior to the first day of the month in which the member would have received his or her first retirement allowance and prior to filing a notification of retirement or a request for refund, any retirement benefits shall be payable to the principal beneficiary, except that:
    1. If the death of the principal beneficiary or beneficiaries precedes the death of the member, or if the principal beneficiary is terminated by a divorce decree, the contingent beneficiary or beneficiaries become the principal beneficiary or beneficiaries;
    2. If the principal beneficiary is one (1) person and is the member’s spouse and they are divorced on the date of the member’s death, the contingent beneficiary or beneficiaries become the principal beneficiary or beneficiaries;
    3. If the member is survived by his or her principal beneficiary or beneficiaries who subsequently die prior to having on file at the retirement office the necessary forms prescribed under authority of KRS 61.590 , the contingent beneficiary shall become the principal beneficiary or beneficiaries;
    4. If the deaths of all the principal beneficiaries and all of the contingent beneficiaries precede the death of the member, the estate of the member becomes the beneficiary; and
    5. If the member dies as a direct result of an act in line of duty as defined in KRS 16.505 or dies as a result of a duty-related injury as defined in KRS 61.621 , the surviving spouse shall supersede all previously designated principal or contingent beneficiaries, unless the deceased member files a valid beneficiary designation form with the retirement office after the date of marriage to the surviving spouse.
  3. Prior to the first day of the month in which the member would have received his or her first retirement allowance, a monthly benefit payable for life shall not be offered if the beneficiary designated under subsection (1) of this section is more than one (1) person, the member’s estate, or a trust.
  4. When a notification of retirement as provided by Section 5 of this Act or a form to change beneficiaries as provided by subsection (5)(a) and (b) of this section has been filed at the retirement office:
    1. The designation of beneficiary on the notification of retirement or beneficiary change form shall supersede the designation of all previous beneficiaries;
    2. The beneficiary designated by the member on the member’s notification of retirement or beneficiary change form shall be one (1) person, the member’s estate, or a trust; and
    3. If the death of the beneficiary named on the notification of retirement precedes the first day of the month in which the member receives his or her first retirement allowance, the member may designate another beneficiary on the member’s notification of retirement.
  5. On or after the first day of the month in which the member receives his or her first retirement allowance, the member shall not have the right to change his or her beneficiary, except that:
    1. A retired member receiving the monthly retirement allowance under the basic payment option, a period certain option as provided by KRS 61.635 (5) to (7), or the Social Security adjustment option without survivor rights as provided by KRS 61.635 (8)(a) may elect to change his or her beneficiary at any time by filing a beneficiary change form as prescribed by the board with the retirement office. This paragraph shall not authorize a retired member to change the payment option he or she selected upon retirement;
    2. A retired member receiving a monthly retirement allowance who marries or remarries following retirement may make a one (1) time election within one hundred twenty (120) days of marriage or remarriage to provide monthly survivorship benefits to his or her new spouse by:
      1. Designating his or her new spouse as beneficiary by filing a beneficiary change form as prescribed by the board with the retirement office; and
      2. Selecting a new monthly retirement allowance option under one (1) of the survivorship options provided by KRS 61.635(2), (3), (4), and (8)(b). Any new survivorship payment option shall be actuarially equivalent to the monthly retirement allowance the retired member was receiving prior to the change and shall not impact any other benefits otherwise payable to an alternate payee under KRS 61.690 ;
    3. The estate of the retired member becomes the beneficiary if the date of death of the beneficiary precedes or coincides with the date of death of the retired member, and the retired member had not elected a new beneficiary under this subsection;
    4. The estate of the retired member becomes the beneficiary if the retired member had designated a person as beneficiary who was the spouse or who later married the member and they were divorced on the date of the retired member’s death, and the retired member had not elected a new beneficiary under this subsection. An ex-spouse who was the named beneficiary on the member’s notification of retirement shall be reinstated as the member’s beneficiary for the payment options provided by KRS 61.635(2), (3), (4), and (8)(b) if they are remarried to each other as of the date of the retired member’s death, and the retired member had not elected a new beneficiary under this subsection;
    5. The estate of the member shall not receive monthly payments if the member selected one (1) of the payment options provided by KRS 61.635(2), (3), (4), and (8)(b); and
    6. For purposes of this subsection, “basic payment option” means the lifetime monthly retirement allowance otherwise provided to the retired member under KRS 16.505 to 16.652 , 61.510 to 61.705 , or 78.510 to 78.852 that is not one (1) of the optional retirement plans provided under KRS 61.635.
  6. Following cessation of membership as provided by KRS 61.535 , no beneficiary designation in one (1) account shall be effective for any new retirement account established pursuant to KRS 61.637 or 61.680 . If the member fails to designate a beneficiary for his or her new retirement account or if the beneficiary designation is determined to be void by the system, the member’s estate shall become the beneficiary.

HISTORY: Enact. Acts 1966, ch. 35, § 16; 1972, ch. 116, § 28; 1976, ch. 321, § 14; 1978, ch. 311, § 11, effective June 17, 1978; 1986, ch. 90, § 9, effective July 15, 1986; 1992, ch. 240, § 17, effective July 14, 1992; 1994, ch. 485, § 9, effective July 15, 1994; 1996, ch. 167, § 8, effective July 15, 1996; 2000, ch. 385, § 12, effective July 14, 2000; 2004, ch. 36, § 9, effective July 13, 2004; 2010, ch. 173, § 3, effective July 15, 2010; 2017 ch. 32, § 7, effective June 29, 2017; 2018 ch. 151, § 4, effective April 13, 2018; 2021 ch. 96, § 3, effective June 29, 2021; 2021 ch. 102, § 48, effective April 1, 2021.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

NOTES TO DECISIONS

1.Constitutionality.

The statute does not violate the United States Constitution’s equal protection, due process, or takings clauses under the Fourteenth and Fifth Amendments. Weiand v. Board of Trustees of Ky. Retirement Sys., 25 S.W.3d 88, 2000 Ky. LEXIS 102 ( Ky. 2000 ).

2.Divorce.

A rule that divorce automatically revokes an insured’s choice of his former spouse as his insurance beneficiary unduly interferes with private contract rights and obligations; a divorced insured ordinarily retains the right to remove his former spouse as beneficiary any time after the decree. Hughes v. Scholl, 900 S.W.2d 606, 1995 Ky. LEXIS 82 ( Ky. 1995 ).

The rights of an insurance policy beneficiary, including the right to receive the policy’s proceeds upon the insured’s death, are not affected by the mere fact of a divorce between the beneficiary and the insured. Hughes v. Scholl, 900 S.W.2d 606, 1995 Ky. LEXIS 82 ( Ky. 1995 ).

The statute does not provide that an estate becomes the beneficiary only if the retired member and the beneficiary-spouse get a divorce on the actual date of the retired member’s death; the word “divorced” refers to a status, rather than an act. Weiand v. Board of Trustees of Ky. Retirement Sys., 25 S.W.3d 88, 2000 Ky. LEXIS 102 ( Ky. 2000 ).

Opinions of Attorney General.

Although subdivision (1)(a) of this section states that a final divorce decree terminates an ex-spouse’s status as beneficiary, it does not address the effect of an annulment, and an annulment should not be included in that exception. OAG 82-251 .

Research References and Practice Aids

Kentucky Law Journal.

Perna, The Uniform Reciprocal Enforcement of Support Act and the Defense of Non-Paternity: A Functional Analysis, 73 Ky. L.J. 75 (1984-85).

61.543. Deduction or pick-up of employee contributions — Service credit — Educational leave.

    1. Employee contributions shall be deducted each payroll period from the creditable compensation of each employee of an agency participating in the retirement system while he is classified as regular full-time as defined in KRS 61.510 unless the employeedid not elect to become a member as provided by subsection (2) of KRS 61.525 oris not eligible to participate in the system as provided by KRS 61.522 . (1) (a) Employee contributions shall be deducted each payroll period from the creditable compensation of each employee of an agency participating in the retirement system while he is classified as regular full-time as defined in KRS 61.510 unless the employeedid not elect to become a member as provided by subsection (2) of KRS 61.525 oris not eligible to participate in the system as provided by KRS 61.522 .
    2. After August 1, 1982, employee contributions shall be picked up by the employer pursuant to KRS 61.560(4). Service credit will be allowed for each month the contributions are deducted or picked up during a fiscal or calendar year, if the member receives creditable compensation for an average of one hundred (100) hours or more of work per month. If the average number of hours of work is less than one hundred (100) per month, the member shall be allowed credit only for those months he receives creditable compensation for one hundred (100) hours of work.
  1. Employee contributions shall not be deducted from the creditable compensation of an employee or picked up by the employer while he is seasonal, emergency, temporary, or part-time. No service credit will be earned.
  2. Contributions shall not be made or picked up by the employer and no service credit will be earned by a member while on leave except:
    1. A member on military leave shall be entitled to service credit in accordance with KRS 61.552 ;
    2. A member on educational leave, approved by the Personnel Cabinet, who is receiving seventy-five percent (75%) or more of full salary, shall receive service credit and shall pay employee contributions, or the contributions shall be picked up in accordance with KRS 61.560 and his employer shall pay employer contributions in accordance with KRS 61.565 . If a tuition agreement is broken by the member, the member and employer contributions paid or picked up during the period of educational leave shall be refunded; and
    3. An employee on educational leave, approved by the appointing authority, not to exceed one (1) year, or with additional approval of one (1) additional year, and not to exceed two (2) years within a five (5) year period, who is receiving a salary of less than seventy-five percent (75%) of full salary, may elect to retain membership in the system during the period of leave. If the employee elects to retain membership in the system, he shall receive service credit by having employee contributions picked up in accordance with KRS 61.560 . His employer shall pay employer contributions in accordance with KRS 61.565 . If a tuition agreement is broken by the member, the employee and employer contributions paid or picked up during the period of educational leave shall be refunded to the contributor and no service credit shall be earned for the period of leave.
  3. The retirement office, upon detection, shall refund any erroneous employer and employee contributions made to the retirement system and any interest credited in accordance with KRS 61.575 .
  4. Notwithstanding the provisions of this section and KRS 61.560 , employees engaged pursuant to KRS 148.026 and 56.491 in a regular full-time position as defined in KRS 61.510(21) prior to January 1, 1993, shall be allowed service credit for each month the employee received creditable compensation for an average of one hundred (100) or more hours of work, if the employee pays to the retirement system the contributions that would have been deducted for the period of employment. The contributions shall be credited to the member’s account and shall not be picked up pursuant to KRS 61.560 (4). The employer contributions for the period, plus interest calculated at the actuarial rate, shall be due within thirty (30) days of notice of receipt of payment from the employee.

HISTORY: Enact. Acts 1972, ch. 116, § 29; 1976, ch. 321, § 15; 1978, ch. 311, § 12, effective June 17, 1978; 1982, ch. 166, §§ 7, 17, effective July 15, 1982; 1986, ch. 490, § 1, effective July 15, 1986; 1990, ch. 222, § 3, effective July 13, 1990; 1992, ch. 240, § 18, effective July 14, 1992; 1994, ch. 485, § 10, effective July 15, 1994; 1998, ch. 154, § 66, effective July 15, 1998; 2013, ch. 120, § 47, effective July 1, 2013; 2015 ch. 28, § 5, effective June 24, 2015; 2021 ch. 102, § 49, effective April 1, 2021.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

Section 10 of Acts 1990, ch. 222 provides that: “Any employee or former employee not retired who participated in more than one (1) retirement system administered by the Kentucky Retirement Systems prior to July 15, 1990, may retroactively choose to receive and shall be granted full service credit for time served in one (1) of those systems, and thereby shall relinquish service credit in the other systems for the same time period, and his contributions related to the relinquished credit shall be refunded.”

Legislative Research Commission Note.

Although this section was included in Acts 1978, Chapter 311, § 12 as having been amended, there appeared to have been no change in the section.

61.545. Service credit determination — Purchase of service credit for fractional year’s service for members who began participating before January 1, 2014 — Choice of system — Division of service credit.

  1. The Authority shall determine by appropriate administrative regulations how much service in any year is the equivalent of a year of service credit and how much service in any calendar month is the equivalent of a month of service credit. It shall not allow credit for more than one (1) year of service for all service rendered in any period of twelve (12) consecutive months except as provided in KRS 61.546 in the case of the Kentucky Retirement Systems or KRS 78.616 in the case of the County Employees Retirement System.
    1. If an employee participates in more than one (1) of the retirement systems administered by the Kentucky Retirement Systems and County Employees Retirement System, the employee’s service credit shall be divided between each system determined by dividing the employee’s creditable compensation in each system by the employee’s total creditable compensation in all systems. (2) (a) If an employee participates in more than one (1) of the retirement systems administered by the Kentucky Retirement Systems and County Employees Retirement System, the employee’s service credit shall be divided between each system determined by dividing the employee’s creditable compensation in each system by the employee’s total creditable compensation in all systems.
      1. If an employee earns creditable compensation in both a hazardous position, as defined by KRS 61.592 or KRS 78.5520 , and a nonhazardous position, the employee’s service credit shall be divided between the employee’s hazardous and nonhazardous positions determined by dividing the employee’s creditable compensation in the hazardous and nonhazardous positions by the employee’s combined hazardous and nonhazardous creditable compensation, except as provided by subparagraph 2. of this paragraph. (b) 1. If an employee earns creditable compensation in both a hazardous position, as defined by KRS 61.592 or KRS 78.5520 , and a nonhazardous position, the employee’s service credit shall be divided between the employee’s hazardous and nonhazardous positions determined by dividing the employee’s creditable compensation in the hazardous and nonhazardous positions by the employee’s combined hazardous and nonhazardous creditable compensation, except as provided by subparagraph 2. of this paragraph.
      2. If an employee is participating in a hazardous position, as defined by KRS 61.592, that meets the definition of a regular full-time position under KRS 61.510(21) or 78.510(21) based solely upon his or her service in a hazardous position, and is simultaneously employed in a nonhazardous position with a different participating employer that would not be considered a regular full-time position based solely upon his or her service in the nonhazardous position, the employee may make a one (1) time irrevocable election within thirty (30) days of employment in the nonhazardous position to not participate in the system for his or her employment in the nonhazardous position with that employer.

HISTORY: Enact. Acts 1956, ch. 110, § 8; 1966, ch. 35, § 3; 1980, ch. 165, § 2, effective July 15, 1980; 1986, ch. 53, § 1, effective July 15, 1986; 1988, ch. 349, § 13, effective July 15, 1988; 1990, ch. 222, § 1, effective July 13, 1990; 1990, ch. 489, § 4, effective July 13, 1990; 1992, ch. 240, § 19, effective July 14, 1992; 1994, ch. 406, § 1, effective July 15, 1994; 1994, ch. 485, § 11, effective July 15, 1994; 1996, ch. 167, § 9, effective July 15, 1996; 1998, ch. 105, § 8, effective July 15, 1998; 2000, ch. 385, § 13, effective July 14, 2000; 2002, ch. 52, § 4, effective July 15, 2002; 2004, ch. 36, § 10, effective July 13, 2004; 2013, ch. 120, § 48, effective July 1, 2013; 2017 ch. 32, § 8, effective June 29, 2017; 2021 ch. 96, § 4, effective June 29, 2021; 2021 ch. 102, § 50, effective April 1, 2021.

Compiler’s Notes.

Section 10 of Acts 1990, ch. 222 provides that: “Any employee or former employee not retired who participated in more than one (1) retirement system administered by the Kentucky Retirement Systems prior to July 15, 1990, may retroactively choose to receive and shall be granted full service credit for time served in one (1) of those systems, and thereby shall relinquish service credit in the other systems for the same time period, and his contributions related to the relinquished credit shall be refunded.”

Legislative Research Commission Note.

(7/15/94). This section was amended by 1994 Ky. Acts chs. 406 and 485. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 485, which was last enacted by the General Assembly, prevails under KRS 446.250 .

61.546. Sick leave for employees who began participating before January 1, 2014. [Declared void — See LRC Note Below]

  1. Except as otherwise provided by this section, any member of the Kentucky Employees Retirement System or the State Police Retirement System whose retirement date is July 14, 1984, or thereafter, shall receive credit for unused sick leave accrued while contributing to the retirement system from which the retirement benefit is to be paid in accordance with this section.
    1. Upon the member’s notification of retirement as prescribed in KRS 16.576 or 61.590 , the employer shall certify the retiring member’s unused, accumulated sick leave balance to the system. (2) (a) Upon the member’s notification of retirement as prescribed in KRS 16.576 or 61.590 , the employer shall certify the retiring member’s unused, accumulated sick leave balance to the system.
    2. The member’s sick leave balance, expressed in days, shall be divided by the average number of working days per month in the state service and rounded to the nearest number of whole months.
    3. Except as provided by subsections (3) and (4) of this section, the member’s sick leave balance, expressed in months, shall upon retirement be added to his service credit for the purpose of determining his annual retirement allowance under KRS 16.505 to 16.652 or 61.510 to 61.705 and for the purpose of determining whether the member is eligible to receive a retirement allowance under KRS 16.505 to 16.652 or 61.510 to 61.705 .
  2. For a member who begins participating in the Kentucky Employees Retirement System or the State Police Retirement System on or after September 1, 2008:
    1. The member shall receive no more than twelve (12) months of service credit upon retirement for accumulated unused sick leave accrued while contributing to the retirement system or systems from which the retirement benefit is to be paid;
    2. The service credited for accumulated unused sick leave as limited by this section and added to the member’s service credit shall be used for purposes of determining the member’s annual retirement allowance under KRS 16.505 to 16.652 and 61.510 to 61.705 ; and
    3. The service credited for accumulated unused sick leave and added to the member’s service credit shall not be used to determine whether a member is eligible to receive a retirement allowance under any of the provisions of KRS 16.505 to 16.652 and 61.510 to 61.705 or to reduce any applicable actuarial reductions.
  3. For a member who began participating in the Kentucky Employees Retirement System or the State Police Retirement System prior to September 1, 2008, who retires on or after July 1, 2023, the service credited for accumulated unused sick leave and added to the member’s service credit shall not be used to determine whether a member is eligible to receive a retirement allowance under any of the provisions of KRS 16.505 to 16.652 and 61.510 to 61.705 or to reduce any applicable actuarial reductions.
  4. Notwithstanding any other provision of this section to the contrary, the value of any accumulated sick leave that is added to the member’s service credit in the Kentucky Employees Retirement System or the State Police Retirement System on or after July 1, 2010, shall be paid to the retirement system by the last participating Kentucky Employees Retirement System or State Police Retirement System employer based upon a formula adopted by the board.
  5. The provisions of this section shall not apply to a participating agency whose employees are not employed by the Commonwealth until the agency certifies to the system that a sick leave program has been formally adopted and is universally administered within the agency, except that any agency participating in the Kentucky Employees Retirement System who has not adopted a sick leave program prior to August 1, 2018, shall not be eligible to adopt a sick leave program under this section.
  6. This section shall not apply to members who begin participating in the systems administered by Kentucky Retirement Systems on or after January 1, 2014.

HISTORY: Enact. Acts 1980, ch. 165, § 1, effective July 15, 1980; 1982, ch. 220, § 1, effective July 15, 1982; 1982, ch. 423, § 6, effective July 15, 1982; 1984, ch. 233, § 1, effective July 13, 1984; 1988, ch. 276, § 1, effective July 15, 1988; 1988, ch. 349, § 14, effective July 15, 1988; 1990, ch. 483, § 3, effective July 13, 1990; 1992, ch. 240, § 20, effective July 14, 1992; 2008 (1st Ex. Sess.), ch. 1, § 11, effective June 27, 2008; 2013, ch. 120, § 49, effective July 1, 2013; 2018 ch. 107, § 16, effective July 14, 2018.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

(6/27/2008). A manifest clerical or typographical error in 2008 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 11 (this statute), has been corrected in codification by the Reviser of Statutes under the authority of KRS 7.136(1)(h).

Opinions of Attorney General.

Under subsection (1) of this section, each of the state public retirement systems is responsible for crediting only that amount of sick leave which the individual has accrued while participating as a member in that particular retirement system, and, only then, if that particular retirement system permits accumulated sick leave to be credited upon retirement. OAG 80-373 .

A member can receive credit for an entire month (21 days) of service credit if he has accumulated at least 11 days or more of sick leave, and such an amount, “rounded to the nearest number of whole months,” as required by the statute, would necessitate crediting him with service credit for an entire month; however an accumulation of ten (10) sick days or fewer would be “rounded” downward and he would not get any service credit for those days. OAG 80-554 .

Since there is no restriction in subsection (1) of this section delineating between those who retire immediately upon termination of employment and those who retire at some subsequent date, credit for accumulated sick leave should be given in either instance. OAG 81-49 .

Where a retiring employee had been employed as a teacher and participated in the state Teachers’ Retirement System and was later employed in a state position which was covered by the Kentucky Employees’ Retirement System, it was proper for KERS to disallow credit for unused sick leave accrued while the employee was a member of TRS since the language in subsection (1) of this section means that a member of KERS or TRS may receive credit for unused sick leave accrued in state service while a member of either KERS or TRS and since this section and the reciprocal agreement statute, KRS 61.680 , when read in pari materia, would not harmonize unless this section is interpreted to mean that the KERS and the state police retirement system are responsible for crediting only that amount of sick leave which an individual has accrued while participating as a member of each particular system. OAG 81-224 .

There is no legal authority upon which a circuit court clerk is entitled to sick leave under the personnel policies of the administrative office of the courts and therefore there is no legal basis upon which he can accrue unused sick leave time which ultimately might be credited pursuant to this section, since, as an elected official, a circuit clerk is entitled to whatever salary that position pays for the length of his term of office, regardless of how many days he might be absent due to illness. OAG 81-275 .

Unused sick leave accumulated while an individual is employed as a deputy circuit court clerk, upon being properly certified by the administrative office of the courts, can be submitted by a person currently serving as a circuit court clerk to the Kentucky Employees’ Retirement System for credit under this section. OAG 81-275 .

It is mandatory that sick leave be credited toward retirement. OAG 84-344 .

Once sick leave has been used in computing retirement, it is extinguished; it has been used and it cannot be reinstated by an employee once having retired, who becomes reemployed. OAG 84-344 .

61.547. Transfer of annual and sick leave balances by employees.

Any other statute to the contrary notwithstanding, the Executive Department of government shall accept from the Judicial and Legislative Departments of government, all accrued annual and sick leave balances and service credits of employees leaving such departments and accepting appointments to the Executive Department. These leave balances shall be attested to by the former employer of the employee and shall not exceed those limits established by statute or administrative regulation for employees of the Executive Department. This procedure shall be reversed for those employees leaving the Executive Department of government and accepting appointments to the Judicial and Legislative Departments.

History. Enact. Acts 1988, ch. 247, § 1, effective July 15, 1988.

61.550. Cessation of membership — Loss of benefits.

When membership ceases, except in the case of retirement, the member shall thereafter lose all right to any retirement allowance or benefits under KRS 61.510 to 61.705 and 16.505 to 16.652 arising from service prior to the date of such cessation of membership.

HISTORY: Enact. Acts 1956, ch. 110, § 9; 1972, ch. 116, § 30; 1976, ch. 321, § 40; 1988, ch. 349, § 15, effective July 15, 1988; 2021 ch. 102, § 51, effective June 29, 2021.

61.552. Service credit regained or obtained — Purchase of current service and service credit — Delinquent contributions — Interest paid — Installment payments.

    1. Any employee participating in one (1) of the state-administered retirement systems who has been refunded his or her accumulated account balance under the provisions of KRS 16.645(21), 61.625 , or 78.545(13), thereby losing service credit, may regain the credit by paying to the system from which he or she received the refund or refunds the amount or amounts refunded with interest at a rate determined by the board of the respective retirement system. (1) (a) Any employee participating in one (1) of the state-administered retirement systems who has been refunded his or her accumulated account balance under the provisions of KRS 16.645(21), 61.625 , or 78.545(13), thereby losing service credit, may regain the credit by paying to the system from which he or she received the refund or refunds the amount or amounts refunded with interest at a rate determined by the board of the respective retirement system.
    2. Service purchased under this subsection shall not be used in determining a retirement allowance until the member has accrued at least six (6) months of service credit in a state-administered retirement system, excluding the service purchased under this subsection. If the member does not accrue at least six (6) months of service credit in a state-administered retirement system, excluding service purchased under this subsection, then the payment plus interest as provided in KRS 61.575 shall be refunded upon retirement, death, or written request following termination of employment. The service requirement shall be waived if the member dies or becomes disabled as provided for by KRS 16.582 , 61.600 , or 61.621 .
    3. Service purchased under this subsection on or after January 1, 2014, shall not be used to determine the member’s participation date in the system. Members participating in the 401(a) money purchase plan as provided by KRS 61.5956 shall not be eligible to purchase service under this subsection.
  1. Any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems, who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by the Kentucky Retirement Systems, and who did not elect membership in the County Employees Retirement System, as provided in KRS 78.540 , may purchase service credit in the County Employees Retirement System for the service he or she would have received had he or she elected membership.
  2. Any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems, who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by the Kentucky Retirement Systems, and who did not elect membership in the Kentucky Employees Retirement System, as provided in KRS 61.525(2), may purchase service credit in the Kentucky Employees Retirement System for the service he or she would have received had he or she elected membership.
  3. An employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems, who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by the Kentucky Retirement Systems, may purchase service credit in the Kentucky Employees Retirement System for service between July 1, 1956, and the effective date of participation of his or her department.
    1. An employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems, who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by the Kentucky Retirement Systems, may purchase service credit in the County Employees Retirement System for service between July 1, 1958, and the effective date of participation of his or her county. (5) (a) An employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems, who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by the Kentucky Retirement Systems, may purchase service credit in the County Employees Retirement System for service between July 1, 1958, and the effective date of participation of his or her county.
    2. An employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems, who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by Kentucky Retirement Systems may purchase service credit for the period of his service with an area development district created pursuant to KRS 147A.050 or with a business development corporation created pursuant to KRS 155.001 to 155.230 if that service was not covered by a state-administered retirement system. The employee may obtain credit for employment with a business development corporation only if the Kentucky Retirement Systems receives a favorable private letter ruling from the United States Internal Revenue Service or a favorable opinion letter from the United States Department of Labor.
  4. The member shall not receive service credit for the same period of time in which the member has service credit in one (1) of the systems administered by Kentucky Retirement Systems or another public defined benefit retirement fund.
  5. Any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems who has at least forty-eight (48) months’ service if age sixty-five (65) or at least sixty (60) months’ service if under age sixty-five (65) in the retirement systems administered by the Kentucky Retirement Systems, who formerly worked for a state university in a nonteaching position which would have qualified as a regular full-time position had the university been a participating department, and who did not participate in a defined benefit retirement program at the university, may purchase service credit in any of the systems administered by Kentucky Retirement Systems in which the employee is a member for the service he or she  would have received had his or her period of university employment been covered by the County Employees Retirement System, Kentucky Employees Retirement System, or State Police Retirement System.
    1. Effective August 1, 1980, any county participating in the County Employees Retirement System may purchase current service, between July 1, 1958, and participation date of the county, for present employees of the county who have obtained coverage under KRS 78.540 . (8) (a) Effective August 1, 1980, any county participating in the County Employees Retirement System may purchase current service, between July 1, 1958, and participation date of the county, for present employees of the county who have obtained coverage under KRS 78.540 .
    2. Effective July 1, 1973, any department participating in the Kentucky Employees Retirement System may purchase current service between July 1, 1956, and participation date of the department, for present employees of the department who were employees on the participation date of the department and elected coverage under KRS 61.525(2).
    3. Cost of the service credit purchased under this subsection shall be determined by computing the discounted value of the additional service credit based on an actuarial formula recommended by the board’s consulting actuary and approved by the board. A department shall make payment for the service credit within the same fiscal year in which the option is elected. The county shall establish a payment schedule subject to approval by the board for payment of the service credit. The maximum period allowed in a payment schedule shall be ten (10) years with interest at the rate actuarially assumed by the board; however, a shorter period is desirable and the board may approve any schedule provided it is not longer than a ten (10) year period.
    4. If a county or department elects the provisions of this subsection, any present employee who would be eligible to receive service credit under the provisions of this subsection and has purchased service credit under subsection (4) or (5) of this section shall have his or her payment for the service credit refunded with interest at the rate paid under KRS 61.575 or 78.640 .
    5. Any payments made by a county or department under this subsection shall be deposited to the retirement allowance account of the proper retirement system and these funds shall not be considered accumulated contributions of the individual members.
  6. Interest paid by a member of the Kentucky Employees Retirement System, County Employees Retirement System, or State Police Retirement System under this section or other similar statutes under KRS 16.505 to 16.652 , 61.510 to 61.705 , or 78.510 to 78.852 prior to June 19, 1976, shall be credited to the individual member’s account in the appropriate retirement system and considered as accumulated contributions of the member.
  7. Employees who served as assistants to officers and employees of the General Assembly who have at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by Kentucky Retirement Systems and who were unable to acquire service under KRS 61.510(20) may purchase credit for the service performed after January 1, 1960.
    1. Effective August 1, 1988, any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by Kentucky Retirement Systems may purchase service credit for interim, seasonal, emergency, temporary, probationary, or part-time employment averaging one hundred (100) or more hours of work per month on a calendar or fiscal year basis. If the average number of hours of work is less than one hundred (100) per month, the member shall be allowed credit only for those months he or she receives creditable compensation for one hundred (100) or more hours of work. (11) (a) Effective August 1, 1988, any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by Kentucky Retirement Systems may purchase service credit for interim, seasonal, emergency, temporary, probationary, or part-time employment averaging one hundred (100) or more hours of work per month on a calendar or fiscal year basis. If the average number of hours of work is less than one hundred (100) per month, the member shall be allowed credit only for those months he or she receives creditable compensation for one hundred (100) or more hours of work.
    2. Any noncertified employee of a school board who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by Kentucky Retirement Systems may purchase service credit in the County Employees Retirement System for part-time employment prior to the 1990-91 school year which averaged eighty (80) or more hours of work per month on a calendar or fiscal year basis. If the average number of hours of work is less than eighty (80) per month, the noncertified employee of a school board shall be allowed to purchase service credit only for those months he or she received creditable compensation for eighty (80) or more hours of work.
  8. Any employee participating in one (1) of the systems administered by Kentucky Retirement Systems who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by Kentucky Retirement Systems may purchase service credit for any period of approved educational leave, or for agency-approved leave to work for a work-related labor organization if the agency subsequently participated in the County Employees Retirement System. The employee may also purchase service credit for agency-approved leave to work for a work-related labor organization if the agency subsequently participated in the County Employees Retirement System, but only if the Kentucky Retirement Systems receives a favorable private letter ruling from the United States Internal Revenue Service or a favorable opinion letter from the United States Department of Labor.
  9. Any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by Kentucky Retirement Systems may purchase service credit for any period of authorized maternity leave, unpaid leave authorized under the Federal Family and Medical Leave Act, or for any period of authorized sick leave without pay.
    1. Any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems may purchase service credit under any of the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , or 78.510 to 78.852 , or as otherwise required by 38 U.S.C. ch. 43, by: (14) (a) Any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems may purchase service credit under any of the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , or 78.510 to 78.852 , or as otherwise required by 38 U.S.C. ch. 43, by:
      1. Making a lump-sum payment on a before-tax basis as provided in subparagraph 3. of this paragraph, or on an after-tax basis if the employee is purchasing service credit under subsection (1) or (20) of this section, service available pursuant to 38 U.S.C. ch. 43 not otherwise provided for in this section, or grandfathered service as defined in paragraph (b) of this subsection;
      2. Entering into an agreement to purchase service credit through an installment purchase of service agreement with the systems as provided by paragraph (c) of this subsection:
        1. On a before-tax basis in which the service is purchased pursuant to the employer pick-up provisions in 26 U.S.C. sec. 414(h)(2) ; or
        2. On an after-tax basis if the employee is purchasing service credit under subsection (1) or (20) of this section, service available pursuant to 38 U.S.C. ch. 43 not otherwise provided for in this section, or grandfathered service as defined in paragraph (b) of this subsection; or
      3. Transferring funds to the systems through a direct trustee-to-trustee transfer as permitted under the applicable sections of the Internal Revenue Code and any regulations or rulings issued thereunder, through a direct rollover as contemplated by and permitted under 26 U.S.C. sec. 401(a)(31) and any regulations or rulings issued thereunder, or through a rollover of funds pursuant to and permitted under the rules specified in 26 U.S.C. secs. 402(c) and 408(d)(3). The Kentucky Retirement Systems shall accept the transfer or rollover to the extent permitted under the rules specified in the applicable provisions of the Internal Revenue Code and any regulations and rulings issued thereunder.
    2. For purposes of this subsection, “grandfathered service” means service purchases for which a member, whose membership date in the system is prior to July 1, 1999, is eligible to purchase under KRS 16.505 to 16.652, 61.510 to 61.705, or 78.510 to 78.852, that were available for all members of the system to purchase on August 5, 1997.
      1. For service purchased under a before-tax or after-tax installment purchase of service agreement as provided by paragraph (a)2. of this subsection, the cost of the service shall be computed in the same manner as for a lump-sum payment which shall be the principal, except that interest compounded annually at the actuarial rate in effect at the time the member elects to make the purchase shall be added for the period that the installments are to be made. (c) 1. For service purchased under a before-tax or after-tax installment purchase of service agreement as provided by paragraph (a)2. of this subsection, the cost of the service shall be computed in the same manner as for a lump-sum payment which shall be the principal, except that interest compounded annually at the actuarial rate in effect at the time the member elects to make the purchase shall be added for the period that the installments are to be made.
      2. Multiple service purchases may be combined under a single installment agreement, except that no employee may make more than one (1) installment purchase at the same time.
      3. For after-tax installment purchase of service agreements, the employee may elect to stop the installment payments by notifying the retirement system; may have the installment purchase recalculated to add one (1) or more additional service purchases; or may pay by lump sum the remaining principal or a portion of the remaining principal.
      4. Before-tax installment purchase of service agreements shall be irrevocable, and the employee shall not be able to stop installment payments or to pay off the remaining balance of the purchase of service agreement, except upon termination of employment or death.
      5. One (1) year of installment payments shall be made for each one thousand dollars ($1,000) or any part thereof of the total cost, except that the total period allowed for installments shall not be less than one (1) year and shall not exceed five (5) years.
      6. The employee shall pay the installments by payroll deduction for after-tax purchase of service agreements, and the employer shall pick up installments for before-tax purchase of service agreements. Upon notification by the retirement system, the employer shall report the installment payments either monthly or semimonthly continuously over each twelve (12) month period at the same time as, but separate from, regular employee contributions on the forms or by the computer format specified by the board.
      7. The retirement system shall determine how much of the total cost represents payment for one (1) month of the service to be purchased and shall credit one (1) month of service to the member’s account each time this amount has been paid. The first service credited shall represent the first calendar month of the service to be purchased and each succeeding month of service credit shall represent the succeeding months of that service.
      8. If the employee utilizing an installment purchase of service agreement dies, retires, does not continue employment in a position required to participate in the retirement system, or elects to stop an after-tax installment purchase of service agreement, the member, or in the case of death, the beneficiary, shall have sixty (60) days to pay the remaining principal or a portion of the remaining principal of the installment purchase of service agreement by lump sum, subject to the restrictions of paragraph (a)1. of this subsection, or by transfer of funds under paragraph (a)3. of this subsection, except that payment by the member shall be filed with the system prior to the member’s effective retirement date. If the member or beneficiary does not pay the remaining cost, the retirement system shall refund to the member or the beneficiary the payment, payments, or portion of a payment that does not represent a full month of service purchased, except as provided by subsection (22) of this section.
      9. If the employer does not report installment payments on an employee for sixty (60) days for an after-tax installment purchase of service agreement, except in the case of employees on military leave or sick leave without pay, the installment purchase shall cease and the retirement system shall refund to the employee the payment, payments, or portion of a payment that does not represent a full month of service purchased.
      10. Installment payments of employees on military leave or sick leave without pay shall be suspended during the period of leave and shall resume without recalculation upon the employee’s return from leave.
      11. If payments have ceased under subparagraph 8. or 9. of this paragraph and the member later becomes a participating employee in one (1) of the three (3) systems administered by Kentucky Retirement Systems, the employee may complete the adjusted original installment purchase by lump sum or installment payments, subject to the restrictions of this subsection. If the employee elects to renew the installment purchase, the cost of the remaining service shall be recalculated in accordance with paragraph (a) of this subsection.
    3. Except as provided by paragraph (a)2.a. of this subsection, the cost of purchasing service shall not be picked up, as described in KRS 16.545(4), 61.560(4), or 78.610(4), by the employer.
    4. The cost of purchasing service credit under any provision of this section, except as provided by subsections (1) and (20) of this section, shall be determined by the delayed contribution method as provided by KRS 61.5525 .
    5. Member payments, including interest, properly received pursuant to this subsection shall be deposited to the member’s account and considered as accumulated contributions of the individual member.
  10. After August 1, 1998, any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems who is age sixty-five (65) or older and has forty-eight (48) months of service credit or, if younger, who has sixty (60) months of service credit in systems administered by Kentucky Retirement Systems may purchase service credit in the system in which the employee has the service credit for up to ten (10) years service in a regular full-time position that was credited to a state or local government-administered public defined benefit plan in another state other than a defined benefit plan for teachers. The employee shall provide proof that he or she is not eligible for a retirement benefit for the period of service from the other state’s plan.
  11. After August 1, 1998, any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems, who has sixty (60) or more months of service in the State Police Retirement System or in a hazardous position in the Kentucky Employees Retirement System or the County Employees Retirement System, may purchase service credit in the system in which the employee has the sixty (60) months of service credit for up to ten (10) years of service in a regular full-time position that was credited to a defined benefit retirement plan administered by a state or local government in another state, if the service could be certified as hazardous pursuant to KRS 61.592 . The employee shall provide proof that he or she is not eligible for a retirement benefit for the period of service from the other unit of government’s plan.
  12. Any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by Kentucky Retirement Systems and who has completed service as a volunteer in the Kentucky Peace Corps, created by KRS 154.1-720 , may purchase service credit for the time served in the corps.
  13. An employee participating in any retirement system administered by Kentucky Retirement Systems who has at least forty-eight (48) months of service if age sixty-five (65), or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by Kentucky Retirement Systems, and who was formerly employed in a regional community services program for mental health and individuals with an intellectual disability, organized and operated under the provisions of KRS 210.370 to 210.480 , which does not participate in a state-administered retirement system may purchase service credit for the period of his or her service in the regional community program for mental health and individuals with an intellectual disability.
  14. An employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by the Kentucky Retirement Systems, who was employed by a vocational technical school in a noncertified part-time position averaging eighty (80) or more hours per month, determined by using the number of months actually worked within a calendar or fiscal year, may purchase service credit in the Kentucky Employees Retirement System.
    1. Any person who is entitled to service credit for employment which was not reported in accordance with KRS 16.543 , 61.543 , or 78.615 may obtain credit for the service by paying the employee contributions due within six (6) months of notification by the system. No interest shall be added to the contributions. The service credit shall not be credited to the member’s account until the employer contributions are received. If a retired member makes the payment within six (6) months, the retired member’s retirement allowance shall be adjusted to reflect the added service after the employer contributions and any interest or penalties on the delinquent employer contributions are received by the retirement system. (20) (a) Any person who is entitled to service credit for employment which was not reported in accordance with KRS 16.543 , 61.543 , or 78.615 may obtain credit for the service by paying the employee contributions due within six (6) months of notification by the system. No interest shall be added to the contributions. The service credit shall not be credited to the member’s account until the employer contributions are received. If a retired member makes the payment within six (6) months, the retired member’s retirement allowance shall be adjusted to reflect the added service after the employer contributions and any interest or penalties on the delinquent employer contributions are received by the retirement system.
    2. Any employee participating in one (1) of the state-administered retirement systems who is entitled to service credit under paragraph (a) of this subsection and who has not repaid the employee contributions due within six (6) months of notification by the system may regain the credit after the six (6) months by paying to the system the employee contributions plus interest at the actuarially assumed rate from the date of initial notification under paragraph (a) of this subsection. Service credit shall not be credited to the member’s account until the employer contributions and any interest or penalties on the delinquent employer contributions are received by the retirement system.
    3. Service purchased under this subsection by employees who begin participating on or after September 1, 2008, shall be considered service credited under KRS 16.543(1), 61.543(1), or 78.615(1) for purposes of determining eligibility for retirement benefits under KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 .
    4. Employees who begin participating on or after January 1, 2014, in the hybrid cash balance plan provided by KRS 16.583 and 61.597 shall, upon payment of the employee and employer contributions due under this subsection, have their accumulated account balance increased by the employee contributions, employer pay credits, and interest credits that would have been credited to their member’s account if the contributions had been paid on time.
    5. An employee participating in the 401(a) money purchase plan as provided by KRS 61.5956 shall, upon payment of the employee and employer contributions due under this subsection, have his or her accumulated account balance increased by the employee contributions and employer contributions that would have been credited to his or her member account if the contributions had been paid on time.
    6. Employer contributions payable under this subsection shall be considered delinquent and the employer shall be required to pay interest and any other penalties on the delinquent contributions in accordance with KRS 61.675(3)(b) and 78.625(3) (a) from the date the employee should have been reported and received service credit in accordance with KRS 16.543, 61.543, and 78.615.
  15. Any employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by the Kentucky Retirement Systems may purchase service credit for employment with a public agency that would have been eligible to participate under KRS 61.520 but which did not participate in the Kentucky Employees Retirement System or a political subdivision that would have been eligible to participate under KRS 78.530 but which did not participate in the County Employees Retirement System if the former public agency or political subdivision has merged with or been taken over by a participating department or county.
  16. Any employee participating in one (1) of the retirement systems administered by the Kentucky Retirement Systems prior to July 15, 2002, who has accrued at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by the Kentucky Retirement Systems and who has total service in all state-administered retirement systems of at least one hundred eighty (180) months of service credit may purchase a combined maximum total of five (5) years of retirement service credit which is not otherwise purchasable under any of the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 . The purchase shall be made in any of the systems administered by Kentucky Retirement Systems in which the employee is a member. The service purchased under this subsection shall not be used in determining a retirement allowance until the member has accrued at least two hundred forty (240) months of service, excluding service purchased under this subsection. If the member does not accrue at least two hundred forty (240) months of service, excluding service purchased under this subsection, upon retirement, death, or written request following termination, the payment, plus interest as provided in KRS 61.575 , shall be refunded.
  17. An employee participating in one (1) of the retirement systems administered by Kentucky Retirement Systems, who has at least forty-eight (48) months of service if age sixty-five (65), or at least sixty (60) months of service if under age sixty-five (65), in the systems administered by Kentucky Retirement Systems, may obtain credit in the County Employees Retirement System for the period of that employee’s service with a community action agency created under KRS 273.405 to 273.453 if that service was not covered by a state-administered retirement system.
  18. An employee may obtain credit for regular full-time service with an agency prior to August 1, 1998, for which the employee did not receive credit due to KRS 61.637(1). Service credit obtained under this subsection shall not be used in determining benefits under KRS 61.702 . The employee may purchase credit for service prior to August 1, 1998, if:
    1. The employee retired from one (1) of the retirement systems administered by the Kentucky Retirement Systems and was reemployed prior to August 1, 1998, earning less than the maximum permissible earnings under the Federal Social Security Act;
    2. The employee elected to participate in a second retirement account effective August 1, 1998, in accordance with KRS 61.637(7); and
    3. The employee has at least forty-eight (48) months of service if age sixty-five (65), or at least sixty (60) months of service if under age sixty-five (65), in a second account in the systems administered by Kentucky Retirement Systems.
  19. An employee participating in one (1) of the retirement systems administered by the Kentucky Retirement Systems, who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by the Kentucky Retirement Systems, may obtain credit for the service in a regular full-time position otherwise creditable under the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System for service in the United States government, other than service in the Armed Forces, for which service is not otherwise given.
  20. An employee participating in a hazardous position in one (1) of the retirement systems administered by the Kentucky Retirement Systems, who has at least forty-eight (48) months of service if age sixty-five (65) or at least sixty (60) months of service if under age sixty-five (65) in the systems administered by the Kentucky Retirement Systems, may obtain credit for service in a regular full-time position in an urban-county government that would qualify for hazardous duty coverage under KRS 61.592 .
  21. Subsections (2) to (5), (7) to (13), (15) to (19), and (21) to (26) of this section shall not apply to members who begin participating in the systems administered by Kentucky Retirement Systems on or after January 1, 2014, or to members who make an election as provided by KRS 21.374, 61.5955 , or 61.5956 .
  22. Service purchases made pursuant to subsections (2) to (5), (7), (10) to (13), (15) to (19), (21) to (23), (25), and (26) of this section shall be purchased by the entire amount of service available pursuant to that subsection or by increments. Service purchases made pursuant to subsections (1), (20), and (24) of this section shall be purchased by the entire amount of service available.

HISTORY: Enact. Acts 1962, ch. 58, § 2; 1964, ch. 86, § 2; 1966, ch. 35, § 4; 1972, ch. 116, § 31; 1974, ch. 128, § 15; 1976, ch. 321, § 16; 1980, ch. 322, § 1, effective July 15, 1980; 1980, ch. 404, § 1, effective July 15, 1980; 1982, ch. 166, § 18, effective July 15, 1982; 1982, ch. 423, § 7, effective July 15, 1982; 1984, ch. 329, § 1, effective July 13, 1984; 1986, ch. 90, § 10, effective July 15, 1986; 1986, ch. 293, § 6, effective July 15, 1986; 1986, ch. 490, §§ 2 and 3, effective July 15, 1986; 1988, ch. 308, § 1, effective July 15, 1988; 1988, ch. 349, § 16, effective July 15, 1988; 1988, ch. 351, § 5, effective July 15, 1988; 1988, ch. 404, § 1, effective July 15, 1988; 1990, ch. 117, § 2, effective July 13, 1990; 1990, ch. 346, §§ 2, 3, effective July 13, 1990; 1990, ch. 489, § 5, effective July 13, 1990; 1992, ch. 100, § 12, effective July 14, 1992; 1992, ch. 240, § 21, effective July 14, 1992; 1994, ch. 406, § 2, effective April 11, 1994; 1994, ch. 485, § 12, effective July 15, 1994; 1996, ch. 31, § 4, effective July 15, 1996; 1996, ch. 70, § 1, effective July 15, 1996; 1996, ch. 167, § 10, effective July 15, 1996; 1996, ch. 346, § 1, effective July 15, 1996; 1998, ch. 56, § 1, effective July 15, 1998; 1998, ch. 105, § 9, effective July 15, 1998; 2000, ch. 385, § 14, effective July 14, 2000; 2002, ch. 52, § 5, effective July 15, 2002; 2002, ch. 210, § 1, effective July 15, 2002; 2002, ch. 270, § 3, effective July 15, 2002; 2003, ch. 169, § 9, effective March 31, 2003; 2004, ch. 36, § 11, effective July 13, 2004; 2005, ch. 86, § 1, effective June 20, 2005; 2008 (1st Ex. Sess.), ch. 1, § 12, effective June 27, 2008; 2009, ch. 77, § 10, effective June 25, 2009; 2012, ch. 146, § 8, effective July 12, 2012; 2013, ch. 120, § 50, effective July 1, 2013; 2017 ch. 32, § 9, effective June 29, 2017; 2018 ch. 107, § 25, effective July 14, 2018; 2020 ch. 79, § 43, effective April 1, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

Compiler's Notes.

Section 42 of Acts 1976, ch. 321 provided: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

The Internal Revenue Code, referred to in (17), is codified as Title 26 of the U.S. Code.

Section 10 of Acts 1994, ch. 406 provides that: “The amendment of KRS 61.552 in Section 2 of this Act shall be retroactive to January 1, 1990, with respect to the right of a beneficiary to repay refunds, but the benefits related to service credit regained thereby shall be payable only after the repayment.”

NOTES TO DECISIONS

1.Purchase of Service Credits.

Pursuant to KRS 61.552(8), if the university had been a participant in the Kentucky Employees Retirement System during the employee’s tenure, the employee’s position would have qualified as a full-time position under both the university’s and retirement system’s standards. Thus, the employee was eligible to purchase service credit for the time she was employed as a professor at the university. Ky. Emples. Ret. Sys. v. Foster, 272 S.W.3d 198, 2007 Ky. App. LEXIS 367 (Ky. Ct. App. 2007).

2.— Permanent Part-Time Employee.

Determination rendered by the Kentucky Retirement System that an employee’s purchase of non-qualified service time had to be based on the full actuarial cost as determined by the system was correct; but, it clearly factually and legally erred in basing the purchase cost upon a full-time annual salary when the employee was employed as a permanent part-time, and not a full-time, employee. Ky. Ret. Sys. v. Heavrin, 172 S.W.3d 808, 2005 Ky. App. LEXIS 24 (Ky. Ct. App. 2005).

Opinions of Attorney General.

When a member of KERS makes a lump sum interest payment as a prerequisite to obtaining prior service credit, one-half of the interest paid should be credited to the members contribution account and one-half to the retirement allowance account and the widow of such a member upon his death would be entitled to receive not only that amount of accumulated contributions originally repaid by her late husband but also one-half of the interest paid by him on the former account. OAG 74-72 .

Where member repaid accumulated contributions in attempting to regain prior service credit on an account which had previously been refunded to him, one-half of the interest be paid should have been credited to the retirement allowance account and one-half should have been credited to the members contribution account, which half would then be refundable to his beneficiary in the event of death as part of his accumulated contributions. OAG 74-193 .

The provisions of KRS 161.470 must be met when a reinstatement of a prior account is sought under this section. OAG 74-305 .

A member of the judicial retirement system who left office several years ago, and was refunded his contributions because he was not vested, but who since that time has acquired credit in one of the other systems, may not repurchase his former credit in the judicial retirement system and then add all of his credit time to obtain vesting in the judicial retirement system. OAG 78-538 .

Even if subsection (1) of this section were not limited by KRS 21.460 and prior service credit in the JRS could be repurchased by an ex-member, such credit could not be consolidated with service credit from other systems for vesting purposes, because KRS 61.680(2)(a), which permits consolidation of credit among various state retirement programs for determining eligibility and benefits, does not apply to JRS. OAG 78-538 .

Subsection (7) of this section eliminates from consideration any current employee of a county who was not an employee at the time of initial participation and any former employee of the county. OAG 79-307 .

Employees presently covered by the City Employees’ Pension Fund (CEPF) who did not elect County Employees’ Retirement System (CERS) coverage when the urban county government joined the CERS may now individually, or in groups, elect CERS coverage; however, as noted in subsection (2) of this section, these employees must pay to the CERS a delayed contribution payment for service they would have received had they elected membership initially, and the employee alone must bear the cost of purchasing this service. OAG 80-420 .

Where employees presently covered by the City Employees’ Pension Fund (CEPF) who did not elect County Employees’ Retirement System (CERS) coverage when the urban county government joined CERS, now elect CERS coverage, the CEPF would not be required to pay over to the CERS employee contributions as it did when the urban county government initially elected CERS coverage, because this “pay over” arrangement permitted under KRS 78.531(2) must be read in pari materia with KRS 78.530(3)(a) which created a one time only opportunity for urban county government employees. OAG 80-420 .

Once a county chooses to purchase current service credit under subsection (8)(c) of this section, it must purchase such service for all employees similarly situated who make the request upon the county, assuming that the county financially can comply with the request, since purchasing service credit for only some former employees might constitute a violation of equal protection, discriminatory practices, and the danger of lawsuits involving alleged violation of civil rights. OAG 81-7 .

Where three (3) of five (5) former county employees now work for the state and the other two work for the county, the county’s purchase of service credit for retirement for employment by the county prior to county participation in the county employees’ retirement system for the present county employees but not the present state employees would not make the county liable to the state employees since the county employees are covered by subsection (8)(a) of this section and the state employees, if covered at all, would be eligible under subsection (8)(c) of this section. OAG 81-7 .

61.552. Service credit regained or obtained — Purchase of current service and service credit — Delinquent contributions — Interest paid — Installment payments.

  1. Called to Active Duty Military Service. An employee of an employer participating in the system who is called to active military duty in the Armed Forces of the United States shall be credited in accordance with 38 U.S.C. sec. 4318 with service credit, creditable compensation, and in the case of employees participating in the hybrid cash balance plan, employee contributions, employer credits, and interest credits, for a period of active military duty of up to six (6) years, provided:
    1. The employee was called to active military duty in the Armed Forces of the United States:
      1. After he or she began participating in the system and provided the employee was on leave of absence from the employer and did not withdraw his or her accumulated account balance; or
      2. Prior to the date he or she began participating in the system and terminated employment with his or her employer;
    2. The employee entered active military service within three (3) months of his or her last day of paid employment;
    3. His or her discharge military service was terminated in a manner other than as described in 38 U.S.C. sec. 4304 ; and
    4. He or she returns to work with an employer participating in the system within two (2) years after completion of the period of active military duty, or upon the subsequent termination of any total disability which existed at the expiration of the two (2) years after discharge. For periods of active military duty that meet the requirements of this subsection, the employer shall pay the employer contributions payable under KRS 61.565 , 61.702 , and 78.635 , and Section 14 of this Act.
    1. Omitted Service. Any person who is entitled to service credit for employment which was not reported by the employer in accordance with KRS 16.543 , 61.543 , or 78.615 may obtain credit for the service subject to the provisions of this subsection. (2) (a) Omitted Service. Any person who is entitled to service credit for employment which was not reported by the employer in accordance with KRS 16.543 , 61.543 , or 78.615 may obtain credit for the service subject to the provisions of this subsection.
    2. Provided the person pays for the omitted service with within six (6) months of notification by the system, the cost of the service shall be equal to the employee contributions that would have been paid if the person had been correctly reported in accordance with KRS 16.543, 61.543, or 78.615.
    3. Any employee participating in one (1) of the state-administered retirement systems entitled to service credit under paragraph (a) of this subsection who has not repaid the employee contributions due within six (6) months of notification by the system may purchase the credit after the six (6) months by paying to the system the employee contributions plus interest at the actuarially assumed rate from the date of initial notification under paragraph (b) of this subsection.
    4. Omitted service purchased under this subsection shall:
      1. Be considered service credited under KRS 16.543(1), 61.543(1), or 78.615(1) for purposes of determining eligibility for retirement benefits under KRS 78.510 to 78.852 ; and
      2. Not be credited to the member’s account until the employer contributions due and any interest or penalties on the delinquent employer contributions for the period of omitted service are received by the system.
    5. Employees who begin participating on or after January 1, 2014, in the hybrid cash balance plan provided by KRS 16.583 or 16.597 or Sections 2 and 4 of this Act shall, upon payment of the employee and employer contributions due under this subsection, have their accumulated account balance increased by the employee contributions, employer pay credits, and interest credits that would have been credited to their member’s account if the contributions had been paid on time.
    6. Contributions payable by the employer under this subsection for omitted service shall be considered delinquent from the date the employee should have been reported and received service credit in accordance with KRS 16.543, 61.543, and 78.615.
    1. Recontribution of a Refund. Any employee participating in one (1) of the state-administered retirement systems who has been refunded his accumulated account balance under the provisions of KRS 61.625 , thereby losing service credit in the system, may regain the credit by paying to the system the amount or amounts refunded by the system with interest at a rate determined by the board. Service purchased under this subsection on or after January 1, 2014, shall not be used to determine the member’s participation date in the systems. (3) (a) Recontribution of a Refund. Any employee participating in one (1) of the state-administered retirement systems who has been refunded his accumulated account balance under the provisions of KRS 61.625 , thereby losing service credit in the system, may regain the credit by paying to the system the amount or amounts refunded by the system with interest at a rate determined by the board. Service purchased under this subsection on or after January 1, 2014, shall not be used to determine the member’s participation date in the systems.
    2. Recontribution of a refund purchased under this subsection shall not be used in determining a retirement allowance until the member has accrued at least six (6) months of service credit in a state-administered retirement system, excluding the service purchased under this subsection. If the member does not accrue at least six (6) months of service credit in a state-administered retirement system, excluding service purchased under this subsection, then the payment plus interest as provided in KRS 16.560 , 61.575 , or 78.640 shall be refunded upon retirement, death, or written request following termination of employment. The service requirement shall be waived if the member dies or becomes disabled as provided for by KRS 16.582 , 61.600 , 61.621 , or Sections Section 7 or 8 of this Act.
    1. Summer Months. Any employee participating in one (1) of the state-administered retirement systems who are or have been employed by a school board or community action agency participating in the County Employees Retirement System or a state operated school under KRS Chapter 167 or an institution of higher learning participating in the Kentucky Employees Retirement System, who receives service credit for less than twelve (12) months each year, may purchase the additional months of service credit needed to total one (1) year of service credit except the amount purchased for any specific year shall not exceed three (3) months. (4) (a) Summer Months. Any employee participating in one (1) of the state-administered retirement systems who are or have been employed by a school board or community action agency participating in the County Employees Retirement System or a state operated school under KRS Chapter 167 or an institution of higher learning participating in the Kentucky Employees Retirement System, who receives service credit for less than twelve (12) months each year, may purchase the additional months of service credit needed to total one (1) year of service credit except the amount purchased for any specific year shall not exceed three (3) months.
    2. The cost of the summer months service credit shall be determined by the formula established by subsection (10) of this section and may be purchased by the employee, the employer on behalf of the employee, or the cost may be paid by both the employer and employee in which case the employer and employee shall each pay fifty percent (50%) of the cost. Service credit shall not be credited to the member’s account until both the employer’s and employee’s payment are received by the system.
    3. If the employee has purchased service credit under this subsection based on months reported by the employer for the fiscal year, and an audit of theemployee’s account reduces the number of months of service credit for which the employee is eligible to no fewer than nine (9) months, the employee shall retain credit for the months purchased unless the employee is ineligible for any service in the fiscal year. The employee shall be eligible to purchase the additional months under this subsection to total one (1) year.
    4. This subsection shall not apply to members who began participating in the County Employees Retirement System on or after January 1, 2014.
  2. Vested Service Purchases. Any employee who began participating in the County Employees Retirement System, the Kentucky Employees Retirement System, or the State Police Retirement System prior to January 1, 2014, who is vested may purchase service credit for:
    1. Past service. Past service shall mean periods of employment:
      1. Between July 1, 1956, in the case of the Kentucky Employees Retirement System, or July 1, Employees Retirement System, and the effective date of participation by the employer;
      2. Where the employee did not participate in the system due to the employee not electing to participate as provided in KRS 61.525(2) or 1958, in the case of the County 78.540(1); and
      3. With a public agency that did not participate in the Kentucky Employees Retirement System but would have been eligible to participate under KRS 61.520 or a political subdivision that did not participate in the County Employees Retirement System but would have been eligible to participate under KRS 78.530 , provided the GA public agency or political subdivision has merged with or been taken over by a participating employer;
    2. State university service, provided the university does not participate in a state-administered retirement system and the university service being purchased was in a nonteaching position that did not participate in a defined benefit retirement program;
      1. Up to ten (10) years of out-of-state service. Out-of-state shall mean service credited to a state or local government-administered public defined benefit plan in another state that is not a defined benefit plan for teachers. (c) 1. Up to ten (10) years of out-of-state service. Out-of-state shall mean service credited to a state or local government-administered public defined benefit plan in another state that is not a defined benefit plan for teachers.
      2. Up to ten (10) years of out-of-state hazardous service. Out-of-state hazardous service shall mean service in a regular full-time position that was credited to a defined benefit retirement plan administered by a state or local government in another state, if the service could be certified as hazardous pursuant to KRS 61.592 or Section 6 of this Act, as applicable. The employee may purchase out-of-state hazardous service under this subparagraph provided the employee is vested to receive benefits from the State Police Retirement System or hazardous duty benefits from the Kentucky Employees Retirement System or the County Employees Retirement System. The employee must purchase out-of-state service or out-of-state hazardous service in the system in which he or she is vested based solely upon the service in that system;
    3. Active military duty, which shall mean periods of active military duty in the Armed Forces of the United States, provided:
      1. The employee’s military service was terminated in a manner other than as described in 38 U.S.C. sec. 4304 ; and
      2. The service has not been credited as free military service under subsection (1) of this section;
    4. National Guard service. An employee may purchase one (1) month of service for each six (6) months of service in the National Guard or the military reserves of the United States. The service shall be treated as service earned prior to participation in the system;
    5. Federal service. Federal service shall mean service with the United States government, that is not service in the Armed Forces;
    6. Seasonal, emergency, interim, probationary, or temporary employment or part-time employment as provided by subsection (21) of Section 18 of this Act or subsection (21) of Section 45 of this Act averaging one hundred (100) or more hours of work per month on a calendar or fiscal year basis. If the average number of hours of work is less than one hundred (100) per month, the member may purchase credit for only those months he receives creditable compensation for one hundred (100) hours of work;
    7. Part-time employment in a noncertified position at a school board prior to the 1990-91 school year which averaged eighty (80) or more hours of work per month on a calendar or fiscal year basis. If the average number of hours of work is less than eighty (80) per month, the noncertified employee of a school board shall be allowed to purchase credit only for those months he receives creditable compensation for eighty (80) hours of work;
    8. Any period of:
      1. Authorized maternity leave without pay or sick leave without pay;
      2. Unpaid leave authorized under the Federal Family and Medical Act;
      3. Approved educational leave; and
      4. Agency-approved leave to work for a work-related labor organization if the agency subsequently participated in the County Employees Retirement System, but only if the board receives a favorable private letter ruling from the United States Internal Revenue Service or a favorable opinion letter from the United States Department of Labor;
    9. Non-Participating Employer Service, which shall mean periods of employment with the following types of agencies provided the agency does not participate in a state-administered retirement system:
      1. A regional community services program for mental health organized and operated under the provisions of KRS 210.370 to 210.480 ;
      2. A community action agency created under KRS 273.405 to 273.453 . The service provided by this subparagraph shall be purchased in the County Employees Retirement System;
      3. An area development district created pursuant to KRS 147A.050 ; or
      4. A business development corporation created pursuant to KRS 155.001 to 155.230 , provided the system receives a favorable private letter ruling from the United States Internal Revenue Service or a favorable opinion letter from the United States Department of Labor;
    10. Urban-County Government service, which shall mean employment in an urban-county government position that would qualify for hazardous duty coverage under KRS 61.592 or Section 6 of this Act. The provisions of this paragraph shall only be applicable to vested members participating in the State Police Retirement System or in a hazardous position in the Kentucky Employees Retirement System or the County Employees Retirement System;
    11. Periods of service as assistants to officers and employees of the General Assembly for persons who were unable to acquire service under KRS 61.510(20) for service performed after January 1, 1960;
    12. Service as a volunteer in the Kentucky Peace Corps, created by KRS 154.1-720 ; and
    13. Employment with a vocational technical school in a noncertified part-time position averaging eighty (80) or more hours per month, determined by using the number of months actually worked within a calendar or fiscal year. The service provided by this paragraph shall be purchased in the Kentucky Employees Retirement System.
  3. Non-qualified service. Provided the employee’s participation date in the system is prior to July 15, 2002, and provided the employee has total service in all state-administered retirement systems of at least one hundred eighty (180) months of service credit, the employee may purchase a combined maximum total of five (5) years of service credit, known as non-qualified service, which is not otherwise purchasable under any of the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , or 78.510 to 78.852 . The service purchased under this paragraph shall not be used in determining a retirement allowance until the member has accrued at least two hundred forty (240) months of service, excluding service purchased under this subsection. If the member does not accrue at least two hundred forty (240) months of service, excluding service purchased under this subsection, upon retirement, death, or written request following termination, the payment, plus interest as provided in KRS 16.560 , Section 27 of this Act, or Section 55 of this Act, as applicable, shall be refunded.
  4. For purposes of service purchased under subsections (2) to (6) of this section:
    1. Except for subsection (6) of this section, the service must qualify as regular full-time as provided by KRS 61.510 and 78.510 ;
    2. No service credit may be purchased for periods already credited to the system or another public defined benefit retirement fund, including non-qualified service purchased in another state-administered retirement system;
    3. Except as provided by subparagraph (a)2.a. of subsection (9) of this section, the employee payment for service purchases shall not be picked up, as described in KRS 16.545(4), 61.560(4), or 78.610(4), by the employer;
    4. Except for service purchased under subsection (2) or (3) of this section, service purchases made pursuant to this section may be purchased by the entire amount of service available or by increments. Service purchases made pursuant to subsections (2) and (3) of this section shall only be purchased by the entire amount of service available; and
    5. Service purchases as provided by subsections (5)(b), (5)(d) to (f), (5)(j)1., and (6) of this section may be purchased in any system in which the member has service credit.
    1. Employer purchase of past service. Any employer participating in the system may purchase service credit, between July 1, 1956, in the case of the Kentucky Employees Retirement System, or July 1, 1958, in the case of the County Employees Retirement System, and the participation date of the employer, for present employees of the county or department who have elected coverage under KRS 61.525(2) or 78.540(1), provided the employee began participating in the system prior to January 1, 2014. (8) (a) Employer purchase of past service. Any employer participating in the system may purchase service credit, between July 1, 1956, in the case of the Kentucky Employees Retirement System, or July 1, 1958, in the case of the County Employees Retirement System, and the participation date of the employer, for present employees of the county or department who have elected coverage under KRS 61.525(2) or 78.540(1), provided the employee began participating in the system prior to January 1, 2014.
    2. A Kentucky Employees Retirement System employer shall pay the cost of the service credit within the fiscal year the election is made to purchase the service credit. A County Employees Retirement System employer may purchase the service, with interest at the rate actuarially assumed by the board, over a period not to exceed ten (10) years.
    3. If an employer elects to purchase service under the provisions of this subsection, any present employee who would be eligible to receive service credit under the provisions of this subsection and has purchased service credit under subsection (5)(a) of this section shall have his or her payment for the service credit refunded with interest at the rate paid under KRS 61.575 or 78.640 ; and
    4. Any payments made by an employer under this subsection shall be deposited to the retirement allowance account of the system and these funds shall not be considered accumulated contributions of the individual members.
    1. An employee participating in the system may purchase service credit under any of the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , 78.510 to 78.852 for which he or she is eligible to purchase, or as otherwise required by 38 U.S.C. ch. 43, by: (9) (a) An employee participating in the system may purchase service credit under any of the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , 78.510 to 78.852 for which he or she is eligible to purchase, or as otherwise required by 38 U.S.C. ch. 43, by:
      1. Making a lump-sum payment on a before-tax basis as provided in subparagraph 3. of this paragraph, or on an after-tax basis if the employee is purchasing service credit under subsection (1) or (3) of this section, service available pursuant to 38 U.S.C. ch. 43 not otherwise provided for in this section, or grandfathered service as defined in paragraph (b) of this subsection;
      2. Entering into an agreement to purchase service credit through an installment purchase of service agreement with the systems as provided by paragraph (c) of this subsection:
        1. On a before-tax basis in which the service is purchased pursuant to the employer pick-up provisions in 26 U.S.C. sec. 414(h)(2) ; or
        2. On an after-tax basis if the employee is purchasing service credit under subsection (1) or (3) of this section, service available pursuant to 38 U.S.C. ch. 43 not otherwise provided for in this section, or grandfathered service as defined in paragraph (b) of this subsection; or
      3. Transferring funds to the system through a direct trustee-to-trustee transfer as permitted under the applicable sections of the Internal Revenue Code and any regulations or rulings issued thereunder, through a direct rollover as contemplated by and permitted under 26 U.S.C. sec. 401(a)(31) and any regulations or rulings issued thereunder, or through a rollover of funds pursuant to and permitted under the rules specified in 26 U.S.C. secs. 402(c) and 408(d)(3). The system shall accept the transfer or rollover to the extent permitted under the rules specified in the applicable provisions of the Internal Revenue Code and any regulations and rulings issued thereunder.
    2. For purposes of this subsection, “grandfathered service” means service purchases for which a member, whose membership date in the system is prior to July 1, 1999, is eligible to purchase under 16.505 to 16.652, 61.510 to 61.705, or 78.510 to 78.852, that were available for all members of the system to purchase on August 5, 1997.
      1. For service purchased under a before-tax or after-tax installment purchase of service agreement as provided by paragraph (a)2. of this subsection, the cost of the service shall be computed in the same manner as for a lump-sum payment which shall be the principal, except that interest compounded annually at the actuarial rate in effect at the time the member elects to make the purchase shall be added for the period that the installments are to be made. (c) 1. For service purchased under a before-tax or after-tax installment purchase of service agreement as provided by paragraph (a)2. of this subsection, the cost of the service shall be computed in the same manner as for a lump-sum payment which shall be the principal, except that interest compounded annually at the actuarial rate in effect at the time the member elects to make the purchase shall be added for the period that the installments are to be made.
      2. Multiple service purchases may be combined under a single installment agreement, except that no employee may make more than one (1) installment purchase at the same time.
      3. For after-tax installment purchase of service agreements, the employee may elect to stop the installment payments by notifying the system; may have the installment purchase recalculated to add one (1) or more additional service purchases; or may pay by lump sum the remaining principal or a portion of the remaining principal.
      4. Before-tax installment purchase of service agreements shall be irrevocable, and the employee shall not be able to stop installment payments or to pay off the remaining balance of the purchase of service agreement, except upon termination of employment or death.
      5. One (1) year of installment payments shall be made for each one thousand dollars ($1,000) or any part thereof of the total cost, except that the total period allowed for installments shall not be less than one (1) year and shall not exceed five (5) years.
      6. The employee shall pay the installments by payroll deduction for after-tax purchase of service agreements, and the employer shall pick up installments for before-tax purchase of service agreements. Upon notification by the system, the employer shall report the installment payments monthly continuously over each twelve (12) month period at the same time as, but separate from, regular employee contributions on the forms or by the computer format specified by the board.
      7. The system shall determine how much of the total cost represents payment for one (1) month of the service to be purchased and shall credit one (1) month of service to the member’s account each time this amount has been paid. The first service credited shall represent the first calendar month of the service to be purchased and each succeeding month of service credit shall represent the succeeding months of that service.
      8. If the employee utilizing an installment purchase of service agreement dies, retires, does not continue employment in a position required to participate in the system, or elects to stop an after-tax installment purchase of service agreement, the member, or in the case of death, the beneficiary, shall have sixty (60) days to pay the remaining principal or a portion of the remaining principal of the installment purchase of service agreement by lump sum, subject to the restrictions of paragraph (a)1. of this subsection, or by transfer of funds under paragraph (a)3. of this subsection, except that payment by the member shall be filed with the system prior to the member’s effective retirement date. If the member or beneficiary does not pay the remaining cost, the system shall refund to the member or the beneficiary the payment, payments, or portion of a payment that does not represent a full month of service purchased, except as provided by subsection (6) of this section.
      9. If the employer does not report installment payments on an employee for sixty (60) days for an after-tax installment purchase of service agreement, except in the case of employees on military leave or sick leave without pay, the installment purchase shall cease and the system shall refund to the employee the payment, payments, or portion of a payment that does not represent a full month of service purchased.
      10. Installment payments of employees on military leave or sick leave without pay shall be suspended during the period of leave and shall resume without recalculation upon the employee’s return from leave.
      11. If payments have ceased under subparagraph 8. or 9. of this paragraph and the member later becomes a participating employee in the County Employees Retirement System, Kentucky Employees Retirement System, or State Police Retirement System, the employee may complete the adjusted original installment purchase by lump sum or installment payments, subject to the restrictions of this subsection. If the employee elects to renew the installment purchase, the cost of the remaining service shall be recalculated in accordance with subsection (10) of this section.
    3. Member payments, including interest, properly received pursuant to this subsection, shall be deposited to the member’s account and considered as accumulated contributions of the individual member.
    1. The cost of purchasing service credit under any provision of this section, except as provided by subsections (1) to (3) of this section, shall be determined by multiplying the higher of the employee’s current rate of pay, final rate of pay, or final compensation as of the end of the month in which the purchase is made times the actuarial factor times the number of years of service being purchased. The actuarial factor used to determine the cost of purchasing service credit shall assume the earliest date the member may retire without a reduction in benefits and the cost-of-living adjustments provided to members upon retirement. (10) (a) The cost of purchasing service credit under any provision of this section, except as provided by subsections (1) to (3) of this section, shall be determined by multiplying the higher of the employee’s current rate of pay, final rate of pay, or final compensation as of the end of the month in which the purchase is made times the actuarial factor times the number of years of service being purchased. The actuarial factor used to determine the cost of purchasing service credit shall assume the earliest date the member may retire without a reduction in benefits and the cost-of-living adjustments provided to members upon retirement.
    2. Service purchased on or after August 1, 2004, under the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , or 78.510 to 78.852 , except for service purchased under subsections (1) to (3) of this section, shall not be used to determine eligibility for or the amount of the monthly insurance contribution under Section 14 or 73 of this Act.
    3. For a member whose participation begins on or after August 1, 2004, service purchased under the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , or 78.510 to 78.852 , except for service purchased under subsections (1) to (3) of this section:
      1. Shall not be used to determine eligibility for a retirement allowance under disability retirement, early retirement, normal retirement, or upon death of the member under any of the provisions of KRS 16.505 to 16.652, 61.510 to 61.705, or 78.510 to 78.852; and
      2. Shall only be used to determine the amount of the retirement allowance of a member who is eligible for a retirement allowance under disability, early retirement, normal retirement, or upon death of the member under any of the provisions of KRS 16.505 to 16.652, 61.510 to 61.705, or 78.510 to 78.852, based on service earned as a participating employee.

HISTORY: Repealed and reenacted by 2021 ch. 102, § 52, effective April 1, 2021.

61.5525. Method for determining purchase of service credit — Exceptions.

  1. Effective July 1, 2001, purchase of service under the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 , except as provided in subsection (2) of this section, shall be determined by multiplying the higher of the employee’s current rate of pay, final rate of pay, or final compensation as of the end of the month in which the purchase is made times the actuarial factor times the number of years of service being purchased. Effective September 1, 2008, the actuarial factor used to determine the cost of purchasing service credit shall assume the earliest date the member may retire without a reduction in benefits and the cost-of-living adjustments provided to members upon retirement under KRS 61.691 .
  2. Subsection (1) of this section shall not apply to KRS 61.552(1) and (20) or 61.592(3)(c).
  3. Service purchased on or after August 1, 2004, under the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 , except for service purchased under KRS 61.552(1) and (20) , shall not be used to determine eligibility for or the amount of the monthly insurance contribution under KRS 61.702 .
  4. For a member whose participation begins on or after August 1, 2004, service purchased under the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 , except for service purchased under KRS 61.552(1) and (20) , shall not be used to determine eligibility for a retirement allowance under disability retirement, early retirement, normal retirement, or death under any of the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 . Purchased service shall only be used to determine the amount of the retirement allowance of a member who is eligible for a retirement allowance under disability, early retirement, normal retirement, or death under any of the provisions of KRS 16.505 to 16.652, 61.510 to 61.705, and 78.510 to 78.852, based on service earned as a participating employee.

HISTORY: Enact. Acts 2001, ch. 7, § 6, effective June 21, 2001; 2002, ch. 52, § 24, effective July 15, 2002; 2004, ch. 33, § 2, effective July 13, 2004; 2008 (1st Ex.Sess.), ch. 1, § 13, effective June 27, 2008; 2017 ch. 32, § 10, effective June 29, 2017.

NOTES TO DECISIONS

1.Permanent Part-Time Employee.

Determination rendered by the Kentucky Retirement System that an employee’s purchase of non-qualified service time had to be based on the full actuarial cost as determined by the system was correct; but, it both factually and legally erred in basing the purchase cost upon a full-time annual salary when the employee was employed as a permanent part-time, and not a full-time, employee. Ky. Ret. Sys. v. Heavrin, 172 S.W.3d 808, 2005 Ky. App. LEXIS 24 (Ky. Ct. App. 2005).

61.5525 Method for determining purchase of service credit — Exceptions. [Repealed]

HISTORY: Enact. Acts 2001, ch. 7, § 6, effective June 21, 2001; 2002, ch. 52, § 24, effective July 15, 2002; 2004, ch. 33, § 2, effective July 13, 2004; 2008 (1st Ex.Sess.), ch. 1, § 13, effective June 27, 2008; repealed by 2021 ch. 102, § 85, effective June 29, 2021.

61.553. Service credit — Police.

A Kentucky Employees Retirement System member’s work performed in the Department of Kentucky State Police or its predecessor agency, the State Highway Patrol, prior to July 1, 1956, shall be creditable as prior service in the Kentucky Employees Retirement System if the member has not received prior service credit in the State Police Retirement System for such period of work. The purpose of this section is to grant prior service credit to state employees who cannot obtain such credit under the State Police Retirement System because of the maximum State Police employment age established by KRS 16.520 .

History. Enact. Acts 1976, ch. 321, § 39; 2007, ch. 85, § 131, effective June 26, 2007.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

61.554. Persons employed by Legislative Research Commission for six legislative bienniums may purchase credit in Kentucky Employees Retirement System. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 480, § 6, effective July 13, 1990; 1994, ch. 406, § 9, effective April 11, 1994) was repealed by Acts 2000, ch. 385, § 42, effective July 14, 2000.

61.555. Service credit, creditable compensation, and other credits for military service. [Repealed]

HISTORY: Enact. Acts 1956, ch. 110, § 10; 1966, ch. 32, § 6; 1972, ch. 116, § 32; 1972, ch. 133, § 1; 1974, ch. 48, § 1; 1974, ch. 302, § 1; 1976, ch. 321, § 17; 1978, ch. 311, § 13, effective June 17, 1978; 1980, ch. 186, § 7, effective July 15, 1980; 1982, ch. 166, § 19, effective July 15, 1982; 1984, ch. 121, § 1, effective July 13, 1984; 1986, ch. 179, § 1, effective July 15, 1986; 1986, ch. 362, § 1, effective July 15, 1986; 1990, ch. 132, § 1, effective July 13, 1990; 1992, ch. 240, § 22, effective July 14, 1992; 1998, ch. 105, §§ 10, 26, effective July 15, 1998; 2000, ch. 385, § 15, effective July 14, 2000; 2002, ch. 52, § 6, effective July 15, 2002; 2004, ch. 36, § 12, effective July 13, 2004; 2013, ch. 120, § 51, effective July 1, 2013; 2017 ch. 32, § 11, effective June 29, 2017; 2018 ch. 107, § 26, effective July 14, 2018; 2020 ch. 79, § 23, effective April 1, 2021; repealed by 2021 ch. 102, § 85, effective June 29, 2021.

61.557. Service credit — United States employment service.

  1. Inasmuch as the takeover of the Kentucky State Employment Service by the federal government, through its United States Employment Service and War Manpower Commission, was recognized by both federal and state governments as a temporary measure during the war emergency, and the employment service was, in fact, returned to the state government at the close of the emergency period, the employees of the service are recognized as employees of the Commonwealth for the purposes of KRS 61.510 to 61.692 during the period of control by the federal government, in the same manner as if they had been employed in another department of the government of the Commonwealth during that period.
  2. If a parted employer rejoins a department as a result of the cancellation of a contract or lease arrangement, thereby causing each employee thereof to again become an employee as defined in KRS 61.510(5), the system may negotiate with the publicly held corporation or other similar organizations for payment for the years of service credit under the system for all employees working on the date the contract or other lease arrangement is canceled in order to avoid an impairment in the retirement benefits of the employees, if any payment accepted by the system for the service is consistent with the provisions of subsections (7)(b) and (8) of Section 52 of this Act. No payment made pursuant to this section shall be picked up by the employer, as described in KRS 61.560(4).

HISTORY: Enact. Acts 1958, ch. 39; 1960, ch. 165, Part II, § 5; 1976, ch. 321, §§ 18, 40; 1982, ch. 166, § 20, effective July 15, 1982; 1992, ch. 240, § 23, effective July 14, 1992; 2017 ch. 32, § 12, effective June 29, 2017; 2021 ch. 102, § 78, effective June 29, 2021.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

61.558. Service credit for other public employment by delayed contribution payment — Recalculation of benefits for retirees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 107, §§ 1, 4, 5; 1982, ch. 166, § 21, effective July 15, 1982; 1986, ch. 90, § 11, effective July 15, 1986; 1988, ch. 349, § 17, effective July 15, 1988; 1988, ch. 351, § 4, effective July 15, 1988; 1994, ch. 485, § 13, effective July 15, 1994) was repealed by Acts 2004, ch. 36, § 36, effective July 13, 2004.

61.559. Service required for retirement allowance of members who began participating before January 1, 2014. [Declared void — See LRC Note Below]

  1. In lieu of any other benefits due under KRS 61.510 to 61.705 , a member who begins participating before September 1, 2008, who has attained the age of sixty-five (65) and who has obtained at least one (1) month of service credit but no more than forty-seven (47) months of service may elect to receive an annual retirement allowance payable monthly or less frequently, as determined by the board, which shall be determined by multiplying his accumulated contributions by two (2) and converting this amount to an annual retirement allowance based on an annuity rate adopted by the board which would pay the actuarial equivalent of twice his accumulated contributions over the lifetime of the retired member.
  2. A member who begins participating before September 1, 2008, who is sixty-five (65) years of age or older is eligible for a retirement allowance determined under KRS 61.595 provided such member has forty-eight (48) months of service, at least twelve (12) of which are current service, or a retirement allowance determined under KRS 61.595 prior to age sixty-five (65) provided:
    1. The member has attained age fifty-five (55) and has service of sixty (60) months at least twelve (12) of which are current service; or
    2. The member is a retired member of the State Police Retirement System, has attained age fifty-five (55), and has service of forty-eight (48) months at least twelve (12) of which are current service; or
    3. The member is less than age fifty-five (55) and has twenty-five (25) or more years of service, at least fifteen (15) of which are current service; or
    4. The member has thirty (30) or more years of service at least fifteen (15) of which are current service, or the member of the Kentucky Employees Retirement System has twenty-seven (27) or more years of service, at least fifteen (15) of which are current service; or
    5. The member of the Kentucky Employees Retirement System has, at least, twenty-six (26) years of service credit, at least sixteen (16) of which are current consecutive years of service as a cabinet secretary or administrative head of one (1) of the three (3) branches of government; or
    6. The member has attained age fifty-five (55) and was an employee of a parted employer at the time his employer became ineligible to continue participation in the system, and his service in the system when added to his service with the parted employer subsequent to his separation from state government equals the early retirement service eligibility requirement of the system on the date his employer became ineligible to continue participation in the system.
  3. A member who begins participating on or after September 1, 2008, but prior to January 1, 2014, is eligible for a retirement allowance determined under KRS 61.595 if:
    1. The member is sixty-five (65) years of age or older and has at least five (5) years of service credited under KRS 16.543(1), 61.543(1), or another state-administered retirement system;
    2. The member is fifty-seven (57) years of age or older and has an age and years of service total of at least eighty-seven (87) years. The years of service used to determine eligibility for a retirement allowance under this paragraph shall only include years of service credited under KRS 16.543(1), 61.543(1), or another state-administered retirement system; or
    3. The member is sixty (60) years of age or older and has at least ten (10) years of service credited under KRS 16.543(1), 61.543(1), or another state-administered retirement system. 61.543(1), or
  4. Subsections (1) to (3) of this section shall not apply to members who begin participating in the system on or after January 1, 2014. Members who begin participating in the system on or after January 1, 2014, shall receive the retirement benefits prescribed by KRS 61.597 .

HISTORY: Enact. Acts 1966, ch. 35, § 15; 1974, ch. 128, § 16; 1976, ch. 321, § 19; 1978, ch. 311, § 14, effective June 17, 1978; 1980, ch. 188, § 18, effective July 15, 1980; 1982, ch. 423, § 8, effective July 15, 1982; 1984, ch. 232, § 4, effective July 13, 1984; 1990, ch. 221, § 3, effective July 13, 1990; 1990, ch. 342, § 2, effective July 13, 1990; 1994, ch. 502, § 2, effective April 13, 1994; 2008 (1st Ex. Sess.), ch. 1, § 14, effective June 27, 2008; 2013, ch. 120, § 52, effective July 1, 2013; 2018 ch. 107, § 37, effective July 14, 2018; 2021 ch. 102, § 53, effective June 29, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

Compiler's Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

Opinions of Attorney General.

KRS 61.680 does not permit a member of the Kentucky Employees Retirement System, who also has an account with the Teachers’ Retirement System, to consolidate those two (2) accounts for the purpose of meeting the requirements of KRS 61.555 and this section in order to purchase prior military service credit. OAG 74-305 .

A person retired pursuant to KRS 61.535 who has been reemployed by the state on a full time basis and who is presently participating in the retirement system pursuant to KRS 61.637 may purchase military service credit under KRS 61.555 providing that the reemployed retired member meets the requisites of this section and such military service is to be applied to the formula set out in KRS 61.637 in recomputing the employee’s retirement benefits at the time of the termination of his reemployment. OAG 74-373 .

61.560. Employee’s contribution — Rate — Picked-up employee contributions.

  1. Each employee shall, commencing on August 1, 1986, contribute for each pay period for which he receives compensation five percent (5%) of his creditable compensation, except that members of the General Assembly, who elect the survivorship option provided in KRS 61.635(13), shall each contribute six and six-tenths percent (6.6%) of creditable compensation commencing with the payroll period immediately following his election of the option. Any other provisions of KRS 61.515 to 61.705 notwithstanding, any reemployed retiree, as described in KRS 61.637 , who became reemployed prior to September 1, 2008, and began participating in another retirement account shall contribute five percent (5%) of his creditable compensation, or the amount required by KRS 61.592(3) if applicable.
  2. Each employer shall cause to be deducted from the creditable compensation of each employee for each and every payroll period the contribution payable by each such employee as provided in KRS 61.515 to 61.705 .
  3. The deductions provided for herein shall be made notwithstanding that the minimum compensation provided by law for any employee shall be reduced thereby. Every employee shall be deemed to consent and agree to the deductions made as provided herein; and payment of salary or compensation less such deductions shall be a full and complete discharge of all claims for services rendered by such person during the period covered by such payment, except as to any benefits provided by KRS 61.515 to 61.705 .
  4. Each employer shall, solely for the purpose of compliance with Section 414(h) of the United States Internal Revenue Code, pick up the employee contributions required by this section for all compensation earned after August 1, 1982, and the contributions so picked up shall be treated as employer contributions in determining tax treatment under the United States Internal Revenue Code and KRS 141.010 . These contributions shall not be included as gross income of the employee until such time as the contributions are distributed or made available to the employee. The picked-up employee contribution shall satisfy all obligations to the retirement system satisfied prior to August 1, 1982, by the employee contribution, and the picked-up employee contribution shall be in lieu of an employee contribution. Each employer shall pay these picked-up employee contributions from the same source of funds which is used to pay earnings to the employee. The employee shall have no option to receive the contributed amounts directly instead of having them paid by the employer to the system. Employee contributions picked up after August 1, 1982, shall be treated for all purposes of KRS 61.515 to 61.705 in the same manner and to the same extent as employee contributions made prior to August 1, 1982.
  5. The provisions of this section shall not apply to individuals who are not eligible for membership as provided by KRS 61.522 .

HISTORY: Enact. Acts 1956, ch. 110, § 11; 1958, ch. 113, § 2; 1960, ch. 165, part II, § 6; 1962, ch. 58, § 6; 1966, ch. 35, § 5; 1972, ch. 116, § 33; 1976, ch. 321, § 40; 1980, ch. 97, § 2, effective July 15, 1980; 1980, ch. 186, § 8, effective July 15, 1980; 1982, ch. 166, § 1, effective July 15, 1982; 1986, ch. 90, § 12, effective July 15, 1986; 1986, ch. 293, § 4, effective July 15, 1986; 1990, ch. 222, § 4, effective July 13, 1990; 1990, ch. 476, Pt. VII, § 643, effective April 11, 1990; 2015 ch. 28, § 6, effective June 24, 2015; 2017 ch. 32, § 13, effective June 29, 2017; 2018 ch. 171, § 68, effective April 14, 2018; 2018 ch. 207, § 68, effective April 27, 2018.

Compiler's Notes.

Section 10 of Acts 1990, ch. 222 provides that: “Any employee or former employee not retired who participated in more than one (1) retirement system administered by the Kentucky Retirement Systems prior to July 15, 1990, may retroactively choose to receive and shall be granted full service credit for time served in one (1) of those systems, and thereby shall relinquish service credit in the other systems for the same time period, and his contributions related to the relinquished credit shall be refunded.”

The Federal Social Security Act, referred to in subsection (1) of this section, is compiled as 42 USCS § 301 et seq.

Section 414(h) of the Internal Revenue Code, referred to in subsection (4) of this section, is compiled as 26 USCS § 414(h).

Legislative Research Commission Notes.

(4/27/2018). This statute was amended by 2018 Ky. Acts chs. 171 and 207, which do not appear to be in conflict and have been codified together.

(6/27/2008). A reference in subsection (1) of this statute to “subsections (13) and (14) of KRS 61.635 ” has been changed by the Reviser of Statutes to read “KRS 61.635 (13).” 2008 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 19, deleted KRS 61.635(13) and renumbered the subsequent subsections, but did not make the necessary change to the reference in this statute. This oversight has been corrected under the authority of KRS 7.136(1).

Opinions of Attorney General.

Where an employee was transferred to the Department of Child Welfare (now Cabinet for Human Resources) from the Department of Welfare and no contributions for or by the employee had been made to the retirement system, the Department of Child Welfare was responsible for the employer’s share of contributions back to the date of the original employment. OAG 63-339 .

Where contributions have not been withheld, an employee may be required to make payments back to the date of his employment to the retirement system. OAG 63-339 .

Research References and Practice Aids

ALR

Retroactive change in rate of employee’s contribution to public pension fund, validity of. 76 A.L.R.2d 1197.

61.565. Employer’s contributions — Reset of amortization period — Payment of actuarially required contribution rate.

    1. Each employer participating in the State Police Retirement System as provided for in KRS 16.505 to 16.652 and the Kentucky Employees Retirement System as provided for in KRS 61.510 to 61.705 shall contribute annually to the respective retirement system an amount determined by the actuarial valuation completed in accordance with KRS 61.670 and as specified by this section. Employer contributions for each respective retirement system shall be equal to the sum of the “normal cost contribution” and the “actuarially accrued liability contribution.” (1) (a) Each employer participating in the State Police Retirement System as provided for in KRS 16.505 to 16.652 and the Kentucky Employees Retirement System as provided for in KRS 61.510 to 61.705 shall contribute annually to the respective retirement system an amount determined by the actuarial valuation completed in accordance with KRS 61.670 and as specified by this section. Employer contributions for each respective retirement system shall be equal to the sum of the “normal cost contribution” and the “actuarially accrued liability contribution.”
    2. For purposes of this section, the normal cost contribution shall be computed as a percentage of pay and shall be an annual amount that is sufficient when combined with employee contributions to fund benefits earned during the year in the respective system. The amount shall be:
      1. Paid as a percentage of creditable compensation reported for each employee participating in the system and accruing benefits; and
      2. The same percentage of pay for all employees who are participating in the same retirement system, except that separate percentage rates shall be developed in each system for those employers whose employees are participating in hazardous duty retirement coverage as provided by KRS 61.592 .
    3. For purposes of this section, the actuarially accrued liability contribution for all employers, except for contributions paid by nonhazardous employers in the Kentucky Employees Retirement System on or after July 1, 2021, shall be:
      1. Computed by amortizing the total unfunded actuarially accrued liability of each system over a closed period of thirty (30) years beginning with the 2019 actuarial valuation using the level percentage of payroll amortization method, except that any increase or decrease in the unfunded actuarially accrued liability occurring after the completion of the 2019 actuarial valuation shall be amortized over a closed period of twenty (20) years beginning with the actuarial valuation in which the increase or decrease in the unfunded actuarially accrued liability is recognized. An increase or decrease in the unfunded actuarially accrued liability may result from, but not be limited to, legislative changes to benefits, changes in actuarial methods or assumptions, or actuarial gains or losses;
      2. Paid as a percentage of payroll on the creditable compensation reported for each employee participating in the system and accruing benefits; and
      3. The same percentage of pay for all employees who are participating in the same retirement system, except that separate percentage rates shall be developed in each system for those employers whose employees are participating in hazardous duty retirement coverage as provided by KRS 61.592 .
      1. For purposes of this section, the actuarially accrued liability contribution for nonhazardous employers in the Kentucky Employees Retirement System on or after July 1, 2021: (d) 1. For purposes of this section, the actuarially accrued liability contribution for nonhazardous employers in the Kentucky Employees Retirement System on or after July 1, 2021:
        1. Shall be an annual dollar amount that is sufficient to amortize the total unfunded actuarially accrued liability of the system over a closed period of thirty (30) years beginning with the 2019 actuarial valuation using the level percentage of payroll amortization method, except that any increase or decrease in the unfunded actuarially accrued liability occurring after the completion of the 2019 actuarial valuation shall be amortized over a closed period of twenty (20) years beginning with the actuarial valuation in which the increase or decrease in the unfunded actuarially accrued liability is recognized. An increase or decrease in the unfunded actuarially accrued liability may result from but not be limited to legislative changes to benefits, changes in actuarial methods or assumptions, or actuarial gains or losses;
        2. Shall be prorated to each individual nonhazardous employer in the Kentucky Employees Retirement System by multiplying the annual dollar amount of the actuarially accrued liability contribution for the system as determined by subdivision a. of this subparagraph by the individual employer’s percentage of the system’s total actuarially accrued liability as of the June 30, 2019, actuarial valuation which shall be determined solely by the system’s consulting actuary and assigned to each employer based upon the last participating employer of the member or retiree as of June 30, 2019. The individual employer’s percentage of the system’s total actuarially accrued liability as of the June 30, 2019, actuarial valuation shall be used to determine the individual employer’s prorated dollar amount of the system’s actuarially accrued liability contribution in all future fiscal years of the amortization period or periods, except that the employer’s percentage shall be adjusted to reflect any employer who voluntarily or involuntarily ceases participation as provided by KRS 61.522 and except as provided by subparagraphs 4. and 5. of this paragraph. For purposes of this subdivision, all executive branch departments, program cabinets and their respective departments, and administrative bodies enumerated in KRS 12.020 , and any other executive branch agencies administratively attached to a department, program cabinet, or administrative body enumerated in KRS 12.020 , shall be considered a single individual employer and only one (1) value shall be computed for these executive branch employers. For purposes of this subdivision, all employers of the legislative branch, including the Legislative Research Commission and the General Assembly that covers legislators and staff who participate in the Kentucky Employees Retirement System, shall be considered a single individual employer and only one (1) value shall be computed for these employers. For purposes of this subdivision, all employers of the judicial branch, including the Administrative Office of the Courts, the Judicial Form Retirement System, and all master commissioners, shall be considered a single individual employer and only one (1) value shall be computed for these employers;
        3. Shall be payable by an individual employer in equal monthly dollar installments during the fiscal year in accordance with the reporting requirements specified by KRS 61.675 so that the individual employer pays its full prorated dollar amount of the actuarially accrued liability contribution as determined by subdivision b. of this subparagraph; and
        4. Notwithstanding subdivision b. of this subparagraph for those individual participating employers who are local and district health departments governed by KRS Chapter 212, community mental health centers, and employers whose employees are not subject to KRS 18A.005 to 18A.200 , who received or were eligible to receive a distribution of general fund appropriations in the 2018-2020 biennial executive branch budget to assist in paying retirement costs under 2018 Ky. Acts ch. 169, Part I, G., 4., (5); 2018 Ky. Acts ch. 169, Part I, G., 5., (2); or 2018 Ky. Acts ch. 169, Part I, G., 9., (2), shall not, once the initial dollar amounts are established in accordance with this paragraph, be adjusted in terms of dollars paid by the individual employer, except that adjustments shall be made by the system upon completion of an actuarial investigation as provided by KRS 61.670, so long as at least four (4) years have passed since the last adjustment to the actuarially accrued liability contribution for these employers. The provisions of this subdivision shall not be interpreted to mean that employers described by this subdivision may continue paying the dollar value of contributions or employer contribution rates established or paid by the employer in budget periods occurring prior to July 1, 2021.
      2. Individual employers, solely for purposes of collecting employer contributions from various fund sources during the fiscal year, may convert the actuarially accrued liability contribution established by this paragraph to a percentage of pay and may adjust the percent of pay during the fiscal year in order to pay the required dollar value of actuarially accrued liability contribution required by this paragraph. No provision of this subparagraph shall be construed to reduce an individual employer’s actuarially accrued liability contribution as otherwise provided by this paragraph.
      3. The provisions of this paragraph shall not apply to those employers who cease participation as provided by KRS 61.522 .
      4. In the event an individual Kentucky Employees Retirement System nonhazardous employer who is required to pay an actuarially accrued liability contribution as provided by this paragraph and as calculated from the 2019 actuarial valuation or subsequent valuations, merges with another employer or entity, forms a new or separate employer or entity, or splits or separates operations into multiple employers or entities, the system shall, except for those employers or entities who pay the costs to cease participation as provided by KRS 61.522, have full authority to assign a portion or all of the total actuarially accrued liability contribution to the merged, new, split, or separate employers or entities, regardless of whether or not the merged, new, split, or separate employers or entities participate in the system. In the case of a district health department established pursuant to KRS Chapter 212, which ceases to operate or which has a county or counties that withdraw from the district health department, the systems shall assign the total actuarially accrued liability contribution based upon the proportion of taxable property of each county as certified by the Department for Public Health in the Cabinet for Health and Family Services in accordance with KRS 212.132 . The system shall establish by administrative regulations the process of assigning actuarially accrued liability contributions as authorized by this subparagraph.
        1. An employer who is not in the executive, legislative, or judicial branch of Kentucky state government as enumerated in subparagraph 1.b. of this paragraph may on or before July 1, 2021, appeal to the board regarding any current or former employees or retirees the employer believes should not be used to determine the employer’s percentage of the system’s total actuarially accrued liability. The only appeals that shall be submitted by the employer or considered by the board shall be potential errors where the last participating employer is in dispute, situations where employees of the employer were hired through a contract between the executive branch and the employer for the employee to provide services to the executive branch, or situations where a community mental health center was contracted to provide services at a facility previously operated by the executive branch. The employer shall submit the information required by the board to verify potential errors or contract employees with employers. 5. a. An employer who is not in the executive, legislative, or judicial branch of Kentucky state government as enumerated in subparagraph 1.b. of this paragraph may on or before July 1, 2021, appeal to the board regarding any current or former employees or retirees the employer believes should not be used to determine the employer’s percentage of the system’s total actuarially accrued liability. The only appeals that shall be submitted by the employer or considered by the board shall be potential errors where the last participating employer is in dispute, situations where employees of the employer were hired through a contract between the executive branch and the employer for the employee to provide services to the executive branch, or situations where a community mental health center was contracted to provide services at a facility previously operated by the executive branch. The employer shall submit the information required by the board to verify potential errors or contract employees with employers.
        2. The board shall review and issue a final determination regarding any appeals by December 31, 2021. In situations where the board determines the last participating employer was incorrect and should be assigned to another employer, the system shall, effective for employer contributions payable on or after July 1, 2022, assign the cost to the executive branch until such time ownership of the liability can be determined and assigned to the correct employer. In situations where the board determines certain employees of employers were hired through a contract between the executive branch and the employer for an employee or employees to provide services to the executive branch, those liabilities shall, effective for employer contributions payable on or after July 1, 2022, be assigned to the executive branch. In situations where the board determines the community mental health center was contracted to provide services at a facility previously operated by the executive branch, the liabilities for employees providing services at that facility shall be assigned to the executive branch.
        3. No appeal shall be submitted by the employer or considered by the board regarding the assumptions or methodology used by the actuary to determine a particular employer’s percentage of the system’s total actuarially accrued liability or the use of the last participating employer to assign liabilities to an employer, except as otherwise provided by this subparagraph.
        4. The board shall within thirty (30) days following the final determinations submit to the Public Pension Oversight Board the list of appeals that were approved, the number of employees involved, and any costs that will be transferred to the executive branch effective July 1, 2022.
    4. The employer contributions computed under this section shall be determined using:
      1. The entry age normal cost funding method;
      2. An asset smoothing method that smooths investment gains and losses over a five (5) year period; and
      3. Other funding methods and assumptions established by the board in accordance with KRS 61.670.
    1. Except as limited by subsection (1)(d)1.d. of this section as it relates to the Kentucky Employees Retirement System, normal cost contribution rates and the actuarially accrued liability contribution shall be determined by the board on the basis of the annual actuarial valuation last preceding the July 1 of a new biennium. (2) (a) Except as limited by subsection (1)(d)1.d. of this section as it relates to the Kentucky Employees Retirement System, normal cost contribution rates and the actuarially accrued liability contribution shall be determined by the board on the basis of the annual actuarial valuation last preceding the July 1 of a new biennium.
    2. The board shall not have the authority to amend contribution rates as of July 1 of the second year of the biennium for the Kentucky Employees Retirement System and the State Police Retirement System.
  1. The system shall advise each employer prior to July 1 of any change in the employer contribution rate. Based on the employer contribution rate, each employer shall include in the budget sufficient funds to pay the employer contributions as determined by the board under this section.
  2. All employers, including the General Assembly, shall pay the full actuarially required contributions, as prescribed by this section, to the Kentucky Employees Retirement System and the State Police Retirement System in fiscal years occurring on or after July 1, 2020.

HISTORY: Enact. Acts 1956, ch. 110, § 12; 1962, ch. 58, § 7; 1972, ch. 116, § 34; 1974, ch. 172, § 17; 1976, ch. 321, § 40; 1980, ch. 186, § 25, effective July 15, 1980; 1980, ch. 246, § 4, effective July 15, 1980; 1986, ch. 176, § 4, effective July 15, 1986; 1990, ch. 489, § 2, effective July 13, 1990; 1992, ch. 240, § 24, effective July 14, 1992; 2008 (1st Ex. Sess.), ch. 1, § 15, effective June 27, 2008; 2009, ch. 65, § 1, effective June 25, 2009; 2009, ch. 77, § 11, effective June 25, 2009; 2013, ch. 120, § 53, effective July 1, 2013; 2018 ch. 107, § 18, effective July 14, 2018; 2018 ch. 170, § 2, effective July 14, 2018; 2020 ch. 79, § 22, effective April 1, 2021; 2020 ch. 82, § 1, effective April 8, 2020; 2021 ch. 83, § 1, effective March 23, 2021; 2021 ch. 102, § 54, effective April 1, 2021.

Legislative Research Commission Notes.

(4/1/2021). This statute was amended by 2021 Ky. Acts chs. 83 and 102, which do not appear to be in conflict and have been codified together.

(4/1/2021). This statute was amended by 2020 Ky. Acts chs. 79 and 82. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 82, which was last enacted by the General Assembly, prevails under KRS 446.250 .

(4/8/2020). This KRS section was repealed, reenacted, and amended by Section 1 of 2020 Ky. Acts ch. 82. Section 4 of that Act states, “The Kentucky Retirement Systems board of trustees shall amend the 2019 actuarial valuation for the Kentucky Employees Retirement System, County Employees Retirement System, and State Police Retirement System in accordance with the provisions of Section 1 of this Act [this statute] and shall provide the information to the Governor and General Assembly for purposes of the 2020-2022 biennial budgeting process.”

(4/8/2020). This KRS section was repealed, reenacted, and amended by Section 1 of 2020 Ky. Acts ch. 82. Section 6 of that Act states, “Notwithstanding Section 1 of this Act [this statute] and KRS 61.702 , the employer contribution rates for the County Employees Retirement System from July 1, 2020, through June 30, 2021, shall remain 24.06 percent, consisting of 19.30 percent for pension and 4.76 percent for health insurance, for nonhazardous duty employees and 39.58 percent, consisting of 30.06 percent for pension and 9.52 percent for health insurance, for hazardous duty employees. Any future increases in the County Employees Retirement System after June 30, 2021, as provided by subsection (5) of Section 1 of this Act [this statute], shall use the employer contribution rate established by this section for County Employees Retirement System employers as the base rate to calculate future increases in County Employees Retirement System employer contribution rates.”

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

(6/25/2009). 2009 Ky. Acts ch. 65, sec. 2, provides, “The provisions of subsection (6) of Section 1 of this Act [ KRS 61.565(6)] shall become effective for the contribution rates paid by employers participating in the County Employees Retirement System on or after July 1, 2009.”

(6/27/2008). A manifest clerical or typographical error in 2008 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 15 (this statute), has been corrected in codification by the Reviser of Statutes under the authority of KRS 7.136(1)(h).

(6/27/2008). 2008 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 43, provides “Notwithstanding any provision of KRS 61.565 or 61.702 to the contrary, the employer contribution rates for the County Employees Retirement Systems (sic) from July 1, 2008, through June 30, 2009, shall be 13.5 percent, consisting of 7.76 percent for pension and 5.74 percent for insurance, for nonhazardous duty employees; and 29.5 percent, consisting of 15.04 percent for pension and 14.46 percent for insurance, for hazardous duty employees.”

(10/19/2004). 2004 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 9, provides, “Notwithstanding KRS 61.565 , the employer contribution rate for an entity participating in the Kentucky Employees Retirement System or State Police Retirement System shall be as follows:

“(1) From July 1, 2004, through June 30, 2005, the contribution rates shall be no more than 5.89 percent for nonhazardous duty employees, 18.84 percent for hazardous duty employees, and 21.58 percent for employees of the State Police Retirement System. This provision shall be retroactive to July 1, 2004; and

“(2) From July 1, 2005, through June 30, 2006, the employer contribution rate shall be no more than 5.89 percent for nonhazardous duty employees, 18.84 percent for hazardous duty employees, and 21.58 percent for employees of the State Police Retirement System.”

NOTES TO DECISIONS

1.Budget Bill.
2.— Superseding Action of Board.

Passage of the 1992 Budget Bill maintaining the rate of state contribution to the Kentucky Employment Retirement System (KERS) and suspending this section which allows the Board of Trustees of KERS to set the contribution rate, and the Governor’s failure to follow the board’s recommendations and his recommendation that KERS assets be modified to reflect market value and not book value as used by the board did not violate Kentucky statutes or the constitutionally protected contractual rights of KERS members as such modifications of the board’s recommendations were within the discretion of the Governor and General Assembly and the board could show no substantial infringement of promised benefits to KERS members. Jones v. Board of Trustees, 910 S.W.2d 710, 1995 Ky. LEXIS 131 ( Ky. 1995 ).

3.Construction With Other Law.

During bankruptcy reorganization, a nonprofit provider of mental health services was required to make post-petition contributions to the Kentucky Employees Retirement System because the valid state laws the provider had to follow as a debtor in possession under 28 U.S.C.S. ? 959, which are not limited to health and safety laws, included the provider’s statutory obligations as a system participant. Ky. Emple. Ret. Sys. v. Seven Counties Servs., Inc., 823 Fed. Appx. 300, 2020 FED App. 419N, 2020 U.S. App. LEXIS 22839 (6th Cir. Ky. 2020 ).

Opinions of Attorney General.

Since county attorneys and their staffs have two sources of income, from the Commonwealth and from local fiscal courts, the commonwealth is responsible for employer contributions only on that source of income for which the commonwealth is directly liable and the respective fiscal courts are responsible for employer contributions on the other source of income. OAG 78-130 .

KRS 64.348 (now KRS 64.092 ) relates only to the compensation of the sheriff, or other officers, paid by the state, for attending court; it does not authorize any reimbursement to the sheriff for the employer’s contribution as covered in this section. OAG 82-113 .

The employee has a contractual interest not only in future benefits but in the security and integrity of the source of funds available to pay future benefits on a long term basis. This inviolable contract includes the retirement program as a whole. OAG 90-6 .

The transfer of funds from the Kentucky Retirement System’s Retirement Allowance Account to the General Fund by the 1988 General Assembly by Acts 1988, Chapter 437, Part VIII, Fund Transfer was unconstitutional, regardless of the accounting process used. Since the Legislature made no provision for replacing these transferred funds in the future, the transfer of funds was not reasonable under the Legislature’s reserved power to make reasonable modification in the pension plan. Moreover, since the inviolable contract statute (KRS 61.692 ) was left in effect, as it had to be, the fund transfer constituted an unlawful impairment of the state’s obligation to its employees under the KERS retirement statutes to ensure that the contribution rates are sufficient to maintain the pension fund on an actuarially sound basis. OAG 90-6 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. IV, 5 at 938.

61.567. Employer’s contributions by credit union.

A credit union whose employees are eligible for membership in the system as provided in KRS 61.525 shall make employer’s contributions to the system on behalf of its employees.

History. Enact. Acts 1970, ch. 251, § 2.

61.569. Reinstated employee — Contributions on creditable compensation.

  1. A reinstated employee who has been ordered reinstated by the Personnel Board under authority of KRS 18A.095 or by court order or by order of the Human Rights Commission shall tender to the system the member contribution he would have paid on the creditable compensation he would have earned as defined under KRS 18A.105 had he not been dismissed. The employer shall pay the employer contributions as defined under KRS 18A.105 on the member’s creditable compensation.
  2. No service credit shall be allowed for any time that the member contributions are not paid.

History. Enact. Acts 1974, ch. 128, § 30, effective March 26, 1974; 1982, ch. 448, § 62, effective July 15, 1982; 1986, ch. 90, § 13, effective July 15, 1986; 1992, ch. 240, § 25, effective July 14, 1992.

61.570. Fund assets.

All of the assets of the system shall be held and invested in the Kentucky employees retirement fund and credited, according to the purpose for which they are held, to one (1) of three (3) accounts, namely, the members’ account, the retirement allowance account, and accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510 , 61.515 , and 78.520 , as prescribed by KRS 61.702(2)(b).

History. Enact. Acts 1956, ch. 110, § 13; 2009, ch. 77, § 12, effective June 25, 2009; 2013, ch. 120, § 54, effective July 1, 2013.

Opinions of Attorney General.

If the Secretary of Finance (now Secretary of Finance and Administration) and the state treasurer agree in writing to the moving of the deposit account of the Kentucky retirement systems from the state’s general fund account from one bank to another, such moving of the deposit account would be legal, although it would entail some new accounting procedure on the part of the Department of Finance (now Finance and Administration Cabinet) and the state treasury. The court assumes, of course, that the Citizens Fidelity Bank is already a designated state depository. Thus the transfer of the Kentucky retirement systems account would be permissible under the joint determination and agreement of the state treasurer and Secretary of Finance. OAG 79-396 .

The fact that the money compulsorily deducted from the employee’s pay in the Kentucky Employees’ Retirement System is his from the moment of deduction makes such compulsory deductions constitutional. OAG 79-414 .

The funds of the Kentucky Employees’ Retirement System are those of the employee at the moment they are withheld for him. OAG 79-414 .

61.575. Members’ account — Interest — Transfer of account balance to retirement allowance account. [Declared void — See LRC Note Below]

  1. The members’ account shall be the account to which:
    1. All members’ contributions, or contributions picked up by the employer after August 1, 1982, and interest allowances as provided in KRS 61.510 to 61.692 shall be credited, except as provided by subsection (3)(b) of Section 73 of this Act; and
    2. For members who begin participating in the system on or after January 1, 2014, the employer pay credit and interest credited on such amounts as provided by KRS 16.583 and 61.597 shall be credited. Only funds from this account shall be used to return the accumulated contributions or accumulated account balances of a member when required by reason of any provision of KRS 61.510 to 61.705 . Prior to the member’s retirement, death, or refund in accordance with KRS 61.625 , no funds shall be made available from the member account.
  2. Each member’s contribution or contribution picked up by the employer shall be credited to the individual account of the contributing member, except as provided by subsection (3)(b) of Section 73 of this Act.
    1. Each member shall have his individual account credited with interest on June 30 of each fiscal year. (3) (a) Each member shall have his individual account credited with interest on June 30 of each fiscal year.
    2. For a member who begins participating before September 1, 2008, interest shall be credited to his individual account at a rate determined by the board but not less than two percent (2%) per annum on the accumulated account balance of the member on June 30 of the preceding fiscal year.
    3. For a member who begins participating on or after September 1, 2008, but prior to January 1, 2014, interest shall be credited to his individual account at a rate of two and one-half percent (2.5%) per annum on the accumulated account balance of the member on June 30 of the preceding fiscal year.
    4. For a member who begins participating on or after January 1, 2014, in the hybrid cash balance plan, interest shall be credited in accordance with KRS 16.583 and 61.597 .
    5. The amounts of interest credited to a member’s account under this subsection shall be transferred from the retirement allowance account.
    1. Upon the retirement of a member who began participating in the system prior to January 1, 2014, his or her accumulated account balance shall be transferred from the members’ account to the retirement allowance account. (4) (a) Upon the retirement of a member who began participating in the system prior to January 1, 2014, his or her accumulated account balance shall be transferred from the members’ account to the retirement allowance account.
    2. Upon the retirement of a member who began participating in the system on or after January 1, 2014, who elects to annuitize his or her accumulated account balance as prescribed by KRS 16.583(7)(a) or 61.597(7)(a) or (b), the member’s accumulated account balance shall be transferred to the retirement allowance account.

HISTORY: Enact. Acts 1956, ch. 110, § 14; 1962, ch. 58, § 8; 1966, ch. 35, § 6; 1976, ch. 321, § 40; 1978, ch. 311, § 15, effective June 17, 1978; 1982, ch. 166, § 22, effective July 15, 1982; 2000, ch. 385, § 16, effective July 14, 2000; 2008 (1st Ex. Sess.), ch. 1, § 16, effective June 27, 2008; 2009, ch. 77, § 13, effective June 25, 2009; 2013, ch. 120, § 55, effective July 1, 2013; 2018 ch. 107, § 20, effective July 14, 2018; 2021 ch. 102, § 55, effective June 29, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

(6/27/2008). The Reviser of Statutes has altered the numbering of subsection (3) of this statute from the way it appears in 2008 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 16, under the authority of KRS 7.136(1)(h).

Opinions of Attorney General.

The Kentucky Employees Retirement System (KERS) must transfer to the legislators retirement system interest on the employee’s contributions accumulated in each legislator’s member’s account at the actuarially assumed interest rate in effect at the time the contribution was made compounded annually at that same interest rate. OAG 80-630 .

Research References and Practice Aids

ALR

Vested right of pensioner to pension. 52 A.L.R.2d 437.

61.580. Retirement allowance account. [Declared void — See LRC Note Below]

The retirement allowance account shall be the account in which shall be accumulated all employer contributions and amounts transferred from the members’ account, and to which all income from the invested assets of the system shall be credited. From this account shall be paid the expenses of the system and the board incurred in administration of the system, retirement allowances, and any other benefits payable after a member’s retirement and from this account shall be transferred to the members’ account:

  1. The employer pay credit added monthly to each member’s individual accounts as provided by KRS 16.583 and 61.597 ; and
  2. The interest credited annually to each member’s individual account as provided by KRS 61.510 to 61.705 .

HISTORY: Enact. Acts 1956, ch. 110, § 15; 1992, ch. 240, § 26, effective July 14, 1992; 2013, ch. 120, § 56, effective July 1, 2013; 2018 ch. 107, § 22, effective July 14, 2018; 2021 ch. 102, § 56, effective June 29, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

Compiler's Notes.

The transfer of money as authorized by subsection (1) of KRS 48.315 , from agencies in which public funds and private employee contributions are commingled and cannot be differentiated (this section and KRS 16.565 , 78.650 , 161.420, 342.122 , and 342.480 now repealed), was declared unconstitutional in Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437 ( Ky. 1986 ).

NOTES TO DECISIONS

Cited in:

Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

Opinions of Attorney General.

The transfer of funds from the Kentucky Retirement System’s Retirement Allowance Account to the General Fund by the 1988 General Assembly by Acts 1988, Chapter 437, Part VIII, Fund Transfer was unconstitutional, regardless of the accounting process used. Since the legislature made no provision for replacing these transferred funds in the future, the transfer of funds was not reasonable under the Legislature’s reserved power to make reasonable modification in the pension plan. Moreover, since the inviolable contract statute (KRS 61.692 ) was left in effect, as it had to be, the fund transfer constituted an unlawful impairment of the state’s obligation to its employees under the KERS retirement statutes to ensure that the contribution rates are sufficient to maintain the pension fund on an actuarially sound basis. OAG 90-6 .

61.585. Uninvested funds — Maximum. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 110, § 16; 1964, ch. 86, § 3; 1966, ch. 35, § 7) was repealed by Acts 1976, ch. 321, § 41.

61.590. Filing of Notification of Retirement and Estimated Retirement Allowance forms — Selection of payment option — Effective date.

    1. A member or beneficiary eligible to receive retirement benefits under any of the provisions of KRS 61.510 to 61.705 , 78.510 to 78.852 , and 16.510 to 16.652 shall have on file at the retirement office on the form prescribed by the board, a correctly completed notification of retirement, giving his or her name, address, Social Security number or Kentucky Retirement Systems member identification number, last day of employment, and other information the system may require. The form entitled “Notification of Retirement” shall not be filed more than six (6) months before the member’s effective retirement date. (1) (a) A member or beneficiary eligible to receive retirement benefits under any of the provisions of KRS 61.510 to 61.705 , 78.510 to 78.852 , and 16.510 to 16.652 shall have on file at the retirement office on the form prescribed by the board, a correctly completed notification of retirement, giving his or her name, address, Social Security number or Kentucky Retirement Systems member identification number, last day of employment, and other information the system may require. The form entitled “Notification of Retirement” shall not be filed more than six (6) months before the member’s effective retirement date.
    2. A member eligible to receive retirement benefits under any of the provisions of KRS 61.510 to 61.705, 78.510 to 78.852, and 16.510 to 16.652 shall certify in writing on the “Notification of Retirement” form or another form prescribed by the board that no prearranged agreement existed prior to the member’s retirement between the member and any participating agency in the systems administered by the Kentucky Retirement Systems for the member to return to employment with the participating agency. No retirement benefits shall be paid to the member until the member completes the certification required by this paragraph.
  1. After receipt of the correctly completed form entitled “Notification of Retirement”, the system shall cause to be prepared an estimate of the amounts the member or beneficiary may expect to receive under the various plans available to the member or beneficiary. This information shall be recorded on a form entitled “Estimated Retirement Allowance” and forwarded to the member or beneficiary.
  2. The member or beneficiary shall file at the retirement office the form entitled “Estimated Retirement Allowance” after he or she has checked one (1) payment option of his or her choice, signed the document, and had his or her signature witnessed. A member shall not have the right to select a different payment option on or after the first day of the month in which the member receives his or her first retirement allowance or after the effective date of a deferred retirement option as provided by subsection (6) of this section, except as provided by KRS 61.542(5). A beneficiary shall not have the right to select a different payment option after the effective date of the beneficiary’s retirement allowance as provided in subsection (7) of this section.
  3. A member or beneficiary choosing a monthly payment option shall have on file at the retirement office his or her birth certificate or other acceptable evidence of date of birth. If a survivorship option is chosen, proof of dates of birth of the beneficiary and member shall be on file at the retirement office.
    1. The effective date of normal retirement shall be the first month following the month in which employment from all employers participating in any of the systems administered by Kentucky Retirement Systems was terminated. (5) (a) The effective date of normal retirement shall be the first month following the month in which employment from all employers participating in any of the systems administered by Kentucky Retirement Systems was terminated.
    2. The effective date of disability retirement shall be the first month following the month in which the member’s last day of paid employment in a regular full-time position occurred, provided the member files the form entitled “Estimated Retirement Allowance” no later than six (6) months following the date the notification of approval for disability retirement benefits is mailed. If the member fails to file the form entitled “Estimated Retirement Allowance” within six (6) months of the date the notification of approval for disability retirement benefits is mailed, then the member’s form entitled “Notification of Retirement” shall be void. The member shall be required to submit a new form entitled “Notification of Retirement” to apply for disability retirement and reestablish eligibility for disability retirement benefits.
    3. The effective date of early retirement shall be the first month following the month a correctly completed form entitled “Notification of Retirement” is filed at the retirement office or a future month designated by the member, if employment from all employers participating in any of the systems administered by Kentucky Retirement Systems has been terminated and if the member files the form entitled “Estimated Retirement Allowance” no later than six (6) months following termination. If the member fails to file the form entitled “Estimated Retirement Allowance” within six (6) months following the effective retirement date of the member, then the member’s form entitled “Notification of Retirement” shall be void and the member shall be required to submit a new form entitled “Notification of Retirement” to apply for early retirement.
  4. The effective date of a deferred retirement option as provided under KRS 16.576(5) shall be the month following age sixty-five (65), or the month following written notification from the member that he wishes to begin receiving retirement payments. In the event of the death of a member who has deferred his retirement allowance, the effective date of retirement shall be the month following the member’s death.
  5. Notwithstanding the provisions of KRS 16.578 or 61.640 , the effective date of a beneficiary’s retirement allowance under normal, early, or disability retirement shall be as prescribed in subsection (5) or (6) of this section if the member dies before the first day of the month in which the member would have received his or her first retirement allowance and his or her beneficiary becomes eligible for payments under KRS 16.578 or 61.640 .

History. Enact. Acts 1956, ch. 110, § 17; 1962, ch. 58, § 9; 1964, ch. 86, § 3; 1966, ch. 35, § 7; 1972, ch. 116, § 35; 1974, ch. 128, § 18; 1976, ch. 321, § 20; 1980, ch. 186, § 20, effective July 15, 1980; 1988, ch. 349, § 18, effective July 15, 1988; 1992, ch. 240, § 27, effective July 14, 1992; 1994, ch. 485, § 14, effective July 15, 1994; 2000, ch. 385, § 18, effective July 14, 2000; 2002, ch. 52, § 7, effective July 15, 2002; 2004, ch. 36, § 13, effective July 13, 2004; 2009, ch. 77, § 14, effective June 25, 2009; 2010, ch. 173, § 4, effective July 15, 2010; 2017 ch. 32, § 14, effective June 29, 2017; 2019 ch. 161, § 1, effective June 27, 2019; 2021 ch. 96, § 5, effective June 29, 2021.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

Legislative Research Commission Note.

(7/13/2004). Although KRS 61.590 was included in 2004 Ky. Acts ch. 36, sec. 13, as having been amended, the change in wording was deleted by House Floor Amendment No. 2 to the House Committee Substitute.

NOTES TO DECISIONS

1.Payment Option.

KRS 61.590(3), limiting the time allowed to change a payment option, was not vague or ambiguous; because KRS 61.590(3) was plainly written, an explanatory administrative regulation was unnecessary. A trial court’s judgment affirming a determination that a retiree was not permitted to change his retirement payment option was proper because there was no evidence that the retirement system was negligent or that information provided to retiree was erroneous. Lawson v. Ky. Ret. Sys., 2007 Ky. App. LEXIS 200 (Ky. Ct. App. July 6, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 507 (Ky. Ct. App. July 6, 2007).

Retirement system’s refusal to allow a retiree to change his retirement payment option was improper because, although the first retirement check had been produced by the time the retiree notified the retirement system of the change, the check had not been delivered to the retiree, and thus the request was timely for purposes of KRS 61.590(3), which limited changes to the time before the first retirement allowance payment had been issued by the Kentucky state treasurer; under KRS 355.3-105(1), “issue” meant delivery, under KRS 355.1-201(2)(o), “delivery” meant transfer of possession, and thus, printing a retirement check at some unknown point in time did not make it issued, but rather, it had to have been delivered to the beneficiary to have been a “payment.” Lawson v. Ky. Ret. Sys., 291 S.W.3d 679, 2009 Ky. LEXIS 82 ( Ky. 2009 ).

Opinions of Attorney General.

Retirement of employee who retired July 31, 1980, began at beginning of business on August 1, 1980. OAG 84-344 .

61.592. Retirement of persons working in hazardous positions.

    1. “Hazardous position” for employees participating in the Kentucky Employees Retirement System means: (1) (a) “Hazardous position” for employees participating in the Kentucky Employees Retirement System means:
      1. Any position whose principal duties involve active law enforcement, including the positions of probation and parole officer and Commonwealth detective, active fire suppression or prevention, or other positions, including but not limited to pilots of the Transportation Cabinet and paramedics and emergency medical technicians, with duties that require frequent exposure to a high degree of danger or peril and also require a high degree of physical conditioning;
      2. Positions in the Department of Corrections in state correctional institutions and the Kentucky Correctional Psychiatric Center with duties that regularly and routinely require face-to-face contact with inmates; and
      3. Positions of employees who elect coverage under KRS 196.167(3)(b)2. and who continue to provide educational services and support to inmates as a Department of Corrections employee.
    2. The effective date of participation under hazardous duty coverage for positions in the Department of Alcoholic Beverage Control shall be April 1, 1998. The employer and employee contributions shall be paid by the employer and forwarded to the retirement system for the period not previously reported.
  1. Each employer may request of the board hazardous duty coverage for those positions as defined in subsection (1) of this section. Upon request, each employer shall certify to the system, in the manner prescribed by the board, the names of all employees working in a hazardous position as defined in subsection (1) of this section for which coverage is requested. The certification of the employer shall bear the approval of the agent or agency responsible for the budget of the department or county indicating that the required employer contributions have been provided for in the budget of the employing department or county. The system shall determine whether the employees whose names have been certified by the employer are working in positions meeting the definition of a hazardous position as provided by subsection (1) of this section. This process shall not be required for employees who elect coverage under KRS 196.167(3)(b)2.
    1. An employee who elects coverage under KRS 196.167(3)(b)2., and an employee participating in the Kentucky Employees Retirement System who is determined by the system to be working in a hazardous position in accordance with subsection (2) of this section, shall contribute, for each pay period for which he or she receives compensation, eight percent (8%) of his or her creditable compensation. (3) (a) An employee who elects coverage under KRS 196.167(3)(b)2., and an employee participating in the Kentucky Employees Retirement System who is determined by the system to be working in a hazardous position in accordance with subsection (2) of this section, shall contribute, for each pay period for which he or she receives compensation, eight percent (8%) of his or her creditable compensation.
    2. Each employer shall pay employer contributions based on the creditable compensation of the employees determined by the system to be working in a hazardous position at the employer contribution rate as determined by the board. The rate shall be determined by actuarial methods consistent with the provisions of KRS 61.565 .
    3. If the employer participated in the system prior to electing hazardous duty coverage, the employer may pay to the system the cost of converting the nonhazardous service to hazardous service from the date of participation to the date the payment is made, or the employer may establish a payment schedule for payment of the cost of the hazardous service above that which would be funded within the existing employer contribution rate. The employer may extend the payment schedule to a maximum of thirty (30) years. Payments made by the employer under this subsection shall be deposited to the retirement allowance account of the proper retirement system and these funds shall not be considered accumulated contributions of the individual members. If the employer elects not to make the additional payment, the employee may pay the cost of converting the service and provide payment for the cost as provided by subsection (9) of Section 52 of this Act. Payments made by the employee under this subsection shall not be picked up, as described in KRS 61.560(4), by the employer. If neither the employer nor employee makes the payment, the service prior to hazardous coverage shall remain nonhazardous. The provisions of this paragraph shall not apply to members who begin participating in the systems administered by Kentucky Retirement Systems on or after January 1, 2014.
  2. The normal retirement age, retirement allowance, hybrid cash balance plans, other benefits, eligibility requirements, rights, and responsibilities of a member in a hazardous position, as prescribed by subsections (1), (2), and (3) of this section, and the responsibilities, rights, and requirements of his or her employer shall be as prescribed for a member and employer participating in the State Police Retirement System as provided for by KRS 16.505 to 16.652 .
  3. Any person employed in a hazardous position after July 1, 1972, shall be required to undergo a thorough medical examination by a licensed physician, and a copy of the medical report of the physician shall be retained on file by the employee’s department or county and made available to the system upon request.
  4. If doubt exists regarding the benefits payable to a hazardous position employee under this section, the board shall determine the benefits payable under KRS 61.510 to 61.705 or 16.505 to 16.652 .

History. Enact. Acts 1972, ch. 107, § 1; 1974, ch. 128, § 19; 1976, ch. 321, §§ 21, 40; 1978, ch. 384, § 16, effective June 17, 1978; 1980, ch. 186, § 9, effective July 15, 1980; 1982, ch. 211, § 1, effective July 15, 1982; 1984, ch. 232, § 5, effective July 13, 1984; 1986, ch. 90, § 14, effective July 15, 1986; 1990, ch. 255, § 1, effective July 13, 1990; 1990, ch. 346, §§ 1, 8, effective July 13, 1990; 1990, ch. 460, § 1, effective July 13, 1990; 1992, ch. 211, § 12, effective July 14, 1992; 1992, ch. 240, § 28, effective July 14, 1992; 1994, ch. 185, § 1, effective July 15, 1994; 1994, ch. 485, § 15, effective July 15, 1994; 1998, ch. 300, § 1, effective July 15, 1998; 2000, ch. 210, § 3, effective July 14, 2000; 2000, ch. 385, § 17, effective July 14, 2000; 2000, ch. 462, § 1, effective April 21, 2000; 2008 (1st Ex. Sess.), ch. 1, § 17, effective June 27, 2008; 2010, ch. 24, § 55, effective July 15, 2010; 2010, ch. 104, § 3, effective April 8, 2010; 2013, ch. 120, § 57, effective July 1, 2013; 2017 ch. 32, § 15, effective June 29, 2017; 2020 ch. 79, § 24, effective April 1, 2021; 2021 ch. 102, § 57, effective April 1, 2021.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

Legislative Research Commission Note.

(6/27/2008). Two manifest clerical or typographical errors in 2008 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 17 (this statute), have been corrected in codification by the Reviser of Statutes under the authority of KRS 7.136(1)(h).

NOTES TO DECISIONS

Cited:

EEOC v. Jefferson County Sheriff’s Dep’t, 424 F.3d 467, 2005 U.S. App. LEXIS 20053 (6th Cir. 2005),vacated, 2006 U.S. App. LEXIS 258 (6th Cir. 2006).

Opinions of Attorney General.

KRS 61.592(2) as amended in 2008 charges the Board of Trustees with three basic functions. First, the Board is to prescribe the manner in which a participating employer certifies to the KERS or CERS the names of employees working in hazardous positions. Second, the Board is to approve or decline hazardous duty coverage for employees upon certification by the employer. Third, the Board may remove employees from hazardous duty coverage if it finds they are improperly classified. OAG 2008-08 .

The absence of a comma after “emergency medical technicians” in KRS 61.592(1)(b) (“… and emergency medical technicians if …”) indicates that clauses 1 and 2 following thereafter are applicable only to emergency medical technicians, not to all the positions in the list. Otherwise, the certification of police and firefighter positions in the CERS as hazardous would be limited in a manner inconsistent with the various statutes making such certification mandatory for all such positions. OAG 2008-08 .

61.593. Retirement allowance of former member in hazardous position.

Any former member of the Kentucky Employees Retirement System who was determined to be in a hazardous position in accordance with KRS 61.592 (1) and (2) and whose service retirement from such position was effective after such determination but prior to July 1, 1976, due to the revocation of any medical certification required for the continued performance of the duties of the hazardous position shall have his retirement allowance recomputed in accordance with KRS 61.592 as amended by Chapter 321, Section 21, Acts of the 1976 General Assembly.

History. Enact. Acts 1978, ch. 228, § 1, effective June 17, 1978.

61.595. Service retirement allowance — Limitations. [Declared void — See LRC Note Below]

  1. Effective July 1, 1990, upon retirement at normal retirement date or subsequent thereto, a Kentucky Employees Retirement System member may receive an annual retirement allowance, payable monthly during his lifetime, which shall consist of an amount equal to one and ninety-seven hundredths percent (1.97%) of final compensation multiplied by the number of years of service credit, except that:
    1. Effective February 1, 1999, a member of the Kentucky Employees Retirement System who was participating in one (1) of the state-administered retirement systems as of January 1, 1998, and continues to participate through January 1, 1999, shall receive an annual retirement allowance, payable monthly during his lifetime, which shall consist of an amount equal to two percent (2%) of final compensation multiplied by the number of years of service credit. Any Kentucky Employees Retirement System member whose effective date of retirement is between February 1, 1999, and January 31, 2009, and who has at least twenty (20) years of service credit in one (1) of the state-administered retirement systems and who was participating in one (1) of the state- administered retirement systems as of January 1, 1998, and continues to participate through January 1, 1999, shall receive an annual retirement allowance, payable monthly during his lifetime, which shall consist of an amount equal to two and two-tenths percent (2.2%) of final compensation multiplied by the number of years of service credit. Notwithstanding the provisions of KRS 61.565 , the funding for this paragraph shall be provided from existing funds of the retirement allowance account;
    2. The annual normal retirement allowance for members of the General Assembly, who serve during the 1974 or 1976 General Assembly, and will have eight (8) years or more of total legislative service as of January 6, 1978, shall not be less than two hundred forty dollars ($240) multiplied by the number of years of service as a member of the General Assembly;
    3. For a member of the Kentucky Employees Retirement System who begins participating on or after September 1, 2008, the annual retirement allowance upon retirement shall be equal to:
        1. One and one-tenth percent (1.1%) of final compensation for each year of service if the member has earned ten (10) or less years of service at retirement; 1. a. One and one-tenth percent (1.1%) of final compensation for each year of service if the member has earned ten (10) or less years of service at retirement;
        2. One and three-tenths percent (1.3%) of final compensation for each year of service if the member has earned greater than ten (10) but no more than twenty (20) years of service at retirement;
        3. One and one-half percent (1.5%) of final compensation for each year of service if the member has earned greater than twenty (20) but no more than twenty-six (26) years of service at retirement; or
        4. One and three-quarters percent (1.75%) of final compensation for each year of service if the member has earned greater than twenty-six (26) but no more than thirty (30) years of service at retirement; and
      1. Two percent (2.0%) of final compensation for each year of service earned in excess of thirty (30) years of service at retirement; (e) The annual normal retirement allowance for members of the General Assembly who will have fewer than eight (8) years of service as of December 31, 1975, shall be as prescribed in Chapter 116, section 36(1), Acts of the 1972 General Assembly for legislative service prior to January 1, 1974; (f) Former members of the General Assembly who have eight (8) or more years of legislative service prior to the 1976 Regular Session are eligible for an increased retirement allowance of two hundred forty dollars ($240) times the years of legislative service, if the member pays to the Kentucky Employees Retirement System thirty-five percent (35%) of the actuarial cost of the higher benefit, as determined by the system, except that a former member with sixteen (16) or more years of legislative service, or his beneficiary, who is receiving a retirement allowance, also is eligible under this section and may apply for a recomputation of his retirement allowance. The employer’s share of sixty-five percent (65%) of the computed actuarial cost shall be paid from the State Treasury to the Kentucky Employees Retirement System upon presentation of a properly documented claim to the Finance and Administration Cabinet. If any member with sixteen (16) or more years of legislative service previously applied for and is receiving a retirement allowance, he may reapply and his retirement allowance shall be recomputed in accordance with this paragraph, and he shall thereafter be paid in accordance with the option selected by him at the time of the reapplication; and (g) The annual normal retirement allowance for a member with ten (10) or more years of service, in the Kentucky Employees Retirement System, at least one (1) of which is current service, shall not be less than five hundred twelve dollars ($512).
    1. Upon service retirement prior to normal retirement date, a member may receive an annual retirement allowance payable monthly during his lifetime which shall be determined in the same manner as for retirement at his normal retirement date with years of service and final compensation being determined as of the date of his actual retirement, but the amount of the retirement allowance so determined shall be reduced at an amount determined by the board’s actuary to reflect the earlier commencement of benefits. (2) (a) Upon service retirement prior to normal retirement date, a member may receive an annual retirement allowance payable monthly during his lifetime which shall be determined in the same manner as for retirement at his normal retirement date with years of service and final compensation being determined as of the date of his actual retirement, but the amount of the retirement allowance so determined shall be reduced at an amount determined by the board’s actuary to reflect the earlier commencement of benefits.
    2. A member of the Kentucky Employees Retirement System who begins participating before September 1, 2008, who has twenty-seven (27) or more years of service credit, at least fifteen (15) of which are current service, may retire with no reduction in the retirement allowance. A member who begins participating before September 1, 2008, who has earned vested service credit in a retirement system, other than the Teachers’ Retirement System, sponsored by a Kentucky institution of higher education, the Council on Postsecondary Education, or the Higher Education Assistance Authority, may count the vested service toward attaining the necessary years of service credit as provided in KRS 61.559(2)(c) and (d) to qualify for a retirement allowance. The credit from a Kentucky institution of higher education, the Council on Postsecondary Education, or the Higher Education Assistance Authority shall not be used toward the minimum fifteen (15) years of current service required by KRS 61.559(2)(c) and (d) or to calculate his retirement allowance pursuant to this section. The provisions of this paragraph shall not be construed to limit the use of Teachers’ Retirement System credit pursuant to KRS 61.680(2)(a).
    3. A member of the Kentucky Employees Retirement System who begins participating on or after September 1, 2008, may retire with no reduction in benefits if the member is fifty-seven (57) years of age or older and has an age and years of service total of at least eighty-seven (87) years. The years of service used to determine eligibility for an unreduced retirement allowance under this paragraph shall only include years of service credited under KRS 16.543(1), 61.543(1), or 78.615(1) or another state-administered retirement system.
  2. Subsections (1) and (2) of this section shall not apply to members who begin participating in the system on or after January 1, 2014. Members who begin participating in the system on or after January 1, 2014, shall receive the retirement benefits prescribed by KRS 61.597 .

HISTORY: Enact. Acts 1956, ch. 110, § 18; 1960, ch. 165, part II, § 7; 1962, ch. 58, § 10; 1964, ch. 86, § 4; 1966, ch. 35, § 8; 1968, ch. 26, § 1; 1972, ch. 116, § 36; 1974, ch. 24, § 2; 1976, ch. 224, § 1; 1976, ch. 321, § 22; 1978, ch. 121, § 1, effective June 17, 1978; 1984, ch. 228, § 2, effective July 13, 1984; 1986, ch. 90, § 15, effective July 15, 1986; 1986, ch. 293, § 1, effective July 15, 1986; 1988, ch. 349, § 43, effective July 15, 1988; 1988, ch. 351, § 1, effective July 15, 1988; 1988, ch. 364, § 2, effective July 15, 1988; 1990, ch. 221, § 1, effective July 13, 1990; 1990, ch. 342, § 1, effective July 13, 1990; 1990, ch. 517, § 1, effective July 1, 1990; 1992, ch. 240, § 29, effective July 14, 1992; 1994, ch. 502, § 3, effective April 13, 1994; 1998, ch. 123, § 1, effective July 15, 1998; 1998, ch. 184, § 1, effective July 15, 1998; 2002, ch. 52, § 8, effective July 15, 2002; 2004, ch. 33, § 3, effective July 13, 2004; 2004, ch. 36, § 14, effective July 13, 2004; 2008 (1st Ex. Sess.), ch. 1, § 18, effective June 27, 2008; 2013, ch. 120, § 58, effective July 1, 2013; 2018 ch. 107, § 27, effective July 14, 2018; 2021 ch. 102, § 58, effective June 29, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

Compiler's Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

NOTES TO DECISIONS

1.Construction with Other Laws.

Commonwealth’s retirement statutes, KRS 16.582 , 16.576 , 16.577 and 61.595 , which together calculated retirement eligibility based on age and years of service, were not facially discriminatory, as a matter of law, under the federal Age Discrimination in Employment Act, 29 USCS § 621 et seq., because the fact that a combination of service years and age was used to compute retirement eligibility was itself an actuarial reality and not proof of age discrimination. EEOC v. Jefferson County Sheriff's Office, 2003 U.S. Dist. LEXIS 18998 (W.D. Ky. Sept. 3, 2003), aff'd, 424 F.3d 467, 2005 FED App. 0397P, 2005 U.S. App. LEXIS 20053 (6th Cir. Ky. 2005 ).

Opinions of Attorney General.

The term “employment covered by the Kentucky employees’ retirement system” in KRS 161.607 embraces the term “service” as defined in KRS 61.510 and as referred to in this section so an employee of the Kentucky Department of Agriculture for the three years immediately preceding July 1, 1956, when there was no Kentucky Employees’ Retirement System in existence, would still be entitled to purchase credit in the Teachers’ Retirement System for the three (3) years in question pursuant to the option contained in KRS 161.607. OAG 73-749 .

A person who has been granted disability retirement is no longer a “member” of the retirement system and therefore is not eligible to seek or receive retirement benefits under this section. OAG 77-319 .

Research References and Practice Aids

ALR

Validity of legislation providing for additional retirement allowances for public employees previously retired. 27 A.L.R.2d 1442.

61.5955. Election to participate in money purchase plan by member in nonhazardous position who began participating in KERS or CERS before January 1, 2019. [Declared void — See LRC Note Below]

Notwithstanding KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 :

  1. Subject to the provisions of this section, any participating member who began participating in a nonhazardous position in the Kentucky Employees Retirement System or the County Employees Retirement System prior to July 1, 2019, may on or after July 1, 2019, but prior to January 1, 2021, elect to be provided the following benefits:
    1. Participation in the 401(a) money purchase plan provided by KRS 61.595 6 in lieu of accruing any additional benefits provided by KRS 61.510(14), 61.595 , 61.597 , or 78.510(14); and
    2. Any other benefits the person would be eligible for in the Kentucky Employees Retirement System or County Employees Retirement System based upon the election provided by this section or his or her membership date in the state-administered retirement systems;
  2. The election provided by this section shall be made in writing and on a form prescribed by the Kentucky Retirement Systems board;
  3. For each member who makes an election provided by this section, any service credit, final compensation, or other benefits the member has accrued prior to the effective election date, shall remain but the member shall not accrue any additional service, final compensation, or any other benefits in a nonhazardous position in the Kentucky Employees Retirement System or County Employees Retirement System on or after the effective election date for purposes of determining benefits under KRS 61.510(14), 61.595 , 61.597 , or 78.510(14);
  4. Before accepting an election provided by this section, the Kentucky Retirement Systems board shall provide the member with information detailing the potential results of the member’s election;
  5. An election made pursuant to this section shall be irrevocable;
    1. A member of the Kentucky Employees Retirement System or the County Employees Retirement System shall not be eligible to make an election prescribed by this section until the Kentucky Retirement Systems receive a favorable private letter ruling from the Internal Revenue Service regarding this section. (6) (a) A member of the Kentucky Employees Retirement System or the County Employees Retirement System shall not be eligible to make an election prescribed by this section until the Kentucky Retirement Systems receive a favorable private letter ruling from the Internal Revenue Service regarding this section.
    2. If the Internal Revenue Service denies the request for a private letter ruling as provided by paragraph (a) of this subsection, this section shall be void.
    3. The Kentucky Retirement Systems may promulgate administrative regulations under KRS Chapter 13A in order to carry out this section; and
  6. This section shall not apply to retirees who were reemployed on or after September 1, 2008, and who are not eligible to participate in the systems during reemployment.

HISTORY: 2017 ch. 125, § 6, effective March 27, 2017; 2018 ch. 107, § 38, effective July 14, 2018.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

61.5955. Election by member participating in KERS, CERS, or SPRS on or after September 1, 2008, but before January 1, 2014 — Participation in hybrid cash balance plan — Private letter ruling — Administrative regulations — Restriction.

Notwithstanding any provision of KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 to the contrary:

  1. Subject to the provisions of this section, any member who began participating in the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System on or after September 1, 2008, but prior to January 1, 2014, may in lieu of the benefits he or she is currently eligible to receive from the systems, elect to receive the benefits and rights provided to members who began participating in the systems on or after January 1, 2014, including participating in the hybrid cash balance plan created pursuant to Section 2 of this Act or KRS 61.597 or 78.5512 for members in nonhazardous duty positions or pursuant to KRS 16.583 or 78.5516 for members in hazardous duty positions, as applicable;
  2. The election provided by this section shall be made in writing and on a form prescribed by the Kentucky Public Pensions Authority and shall apply to all service or accounts in the Kentucky Retirement Systems or the County Employees Retirement System;
  3. For each member who makes an election provided by this section:
    1. Any service credit the member has accrued prior to January 1, 2014, shall be considered as service credit earned on or after January 1, 2014, for purposes of determining benefits under KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 ;
    2. On the member’s effective election date, the value of the member’s accumulated contributions, less any interest, shall be deposited into the member’s hybrid cash balance account as provided by KRS 16.583 , 61.597 , 78.5512 , or 78.5516 , as applicable, and considered part of the member’s accumulated account balance;
    3. On the member’s effective election date, an employer pay credit as provided by KRS 16.583 , 61.597 , 78.5512 , or 78.5516 , as applicable, shall be added to the member’s accumulated account balance for each month the member contributed to the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System prior to his or her effective election date; and
    4. Interest credits as provided by KRS 16.583, 61.597, 78.5512, or 78.5516, as applicable, shall only be applied for periods occurring on or after the member’s effective election date;
  4. Before accepting an election provided by this section, the Kentucky Public Pensions Authority shall provide the member with information detailing the potential results of the member’s election;
  5. An election made pursuant to this section shall be irrevocable;
    1. A member of the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System shall not be eligible to make an election prescribed by this section until the Kentucky Retirement Systems receives a favorable private letter ruling from the Internal Revenue Service regarding this section. (6) (a) A member of the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System shall not be eligible to make an election prescribed by this section until the Kentucky Retirement Systems receives a favorable private letter ruling from the Internal Revenue Service regarding this section.
    2. If the Internal Revenue Service denies the request for a private letter ruling as provided by paragraph (a) of this subsection, this section shall be void.
    3. The Kentucky Public Pensions Authority may promulgate administrative regulations under KRS Chapter 13A in order to carry out this section; and
  6. This section shall not apply to retirees who were reemployed on or after September 1, 2008, and who are not eligible to participate in the systems during reemployment.

HISTORY: Repealed and reenacted by 2021 ch. 102, § 44, effective April 1, 2021.

61.5956. Optional 401(a) money purchase plan for new nonhazardous members who begin participating in KERS or CERS on or after January 1, 2019. [Declared void — See LRC Note Below]

HISTORY: 2018 ch. 107, § 12, effective July 14, 2018; repealed by 2021 ch. 102, § 85, effective June 29, 2021.

61.596. Service credit bonus for early retirement — Payments by agencies — Forfeiture upon reemployment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 336, § 1, effective April 19, 1988; 1994, ch. 485, § 31, effective July 15, 1994; 1996, ch. 167, § 11, effective July 15, 1996; 1998, ch. 154, § 67, effective July 15, 1998) was repealed by Acts 2000, ch. 385, § 42, effective July 14, 2000.

61.597. Hybrid cash balance plan for certain members of Kentucky Employees Retirement System and County Employees Retirement System in nonhazardous duty positions — Member contributions and employer pay credits — Interest credits — Termination of employment — Options upon retirement. [Declared void — See LRC Note Below]

  1. A member of the Kentucky Employees Retirement System who is participating in a nonhazardous position, whose participation in the systems begins on or after January 1, 2014, and those members making an election pursuant to KRS 61.5955 , shall receive the retirement benefits provided by this section in lieu of the retirement benefits provided under KRS 61.559 and 61.595 . The retirement benefit provided by this section shall be known as the hybrid cash balance plan and shall operate as another benefit tier within the Kentucky Employees Retirement System.
  2. The hybrid cash balance plan shall provide a retirement benefit based upon the member’s accumulated account balance, which shall include:
    1. Contributions made by the member as provided by KRS 16.505 to 16.652 and 61.510 to 61.705 , except for employee contributions prescribed by subsection (3)(b) of Section 73 of this Act;
    2. An employer pay credit of four percent (4%) of the creditable compensation earned by the employee for each month the employee is contributing to the hybrid cash balance plan provided by this section; and
    3. Interest credits added annually to the member’s accumulated account balance as provided by this section.
    1. Member contributions and employer pay credits as provided by subsection (2)(a) and (b) of this section shall be credited to the member’s account monthly as contributions are reported and posted to the system in accordance with KRS 61.675 . (3) (a) Member contributions and employer pay credits as provided by subsection (2)(a) and (b) of this section shall be credited to the member’s account monthly as contributions are reported and posted to the system in accordance with KRS 61.675 .
    2. Interest credits, as provided by subsection (2)(c) of this section, shall be credited to the member’s account annually on June 30 of each fiscal year, as determined by subsection (4) of this section.
    1. On June 30 of each fiscal year, the system shall determine if the member contributed to the hybrid cash balance plan or the County Employees Retirement System during the fiscal year. (4) (a) On June 30 of each fiscal year, the system shall determine if the member contributed to the hybrid cash balance plan or the County Employees Retirement System during the fiscal year.
    2. If the member contributed to the hybrid cash balance plan or the County Employees Retirement System during the fiscal year, the interest credit added to the member’s account for that fiscal year shall be determined by multiplying the member’s accumulated account balance on June 30 of the preceding fiscal year by a percentage increase equal to:
      1. Four percent (4%); plus
      2. Seventy-five percent (75%) of the system’s geometric average investment return in excess of the four percent (4%) rate of return .
    3. If the member did not contribute to the hybrid cash balance plan or the County Employees Retirement System during the fiscal year, the interest credit added to the member’s account for that fiscal year shall be determined by multiplying the member’s accumulated account balance on June 30 of the preceding fiscal year by a percentage increase equal to four percent (4%).
    4. For purposes of this subsection, “system’s geometric average net investment return”:
      1. Means the annual average geometric investment return, net of administrative and investment fees and expenses, over the last five (5) fiscal years as of the date the interest is credited to the member’s account; and
      2. Shall be expressed as a percentage and based upon the system in which the member has an account.
    5. No employer pay credits or interest credits shall be provided to a member who has taken a refund of contributions as provided by KRS 61.625 or who has retired and annuitized his or her accumulated account balance as prescribed by this section.
    1. Upon termination of employment, a member who has less than five (5) years of service credited under KRS 16.543(1), 61.543(1), and 78.615(1), who elects to take a refund of his or her accumulated account balance as provided by KRS 61.625 , shall forfeit the accumulated employer credit, and shall only receive a refund of his or her accumulated contributions. (5) (a) Upon termination of employment, a member who has less than five (5) years of service credited under KRS 16.543(1), 61.543(1), and 78.615(1), who elects to take a refund of his or her accumulated account balance as provided by KRS 61.625 , shall forfeit the accumulated employer credit, and shall only receive a refund of his or her accumulated contributions.
    2. Upon termination of employment, a member who has five (5) or more years of service credited under KRS 16.543(1), 61.543(1), and 78.615(1), who elects to take a refund of his or her accumulated account balance as provided by KRS 61.625, shall receive a full refund of his or her accumulated account balance.
  3. A member participating in the hybrid cash balance plan provided by this section may retire:
    1. At his or her normal retirement date, provided he or she has earned five (5) or more years of service credited under KRS 16.543(1), 61.543(1), 78.615(1), or another state-administered retirement system; or
    2. If the member is at least age fifty-seven (57) and has an age and years of service total of at least eighty-seven (87) years. The years of service used to determine eligibility for retirement under this paragraph shall only include years of service credited under KRS 16.543(1), 61.543(1), 78.615(1), or another state-administered retirement system.
  4. A member eligible to retire under subsection (6) of this section may elect to:
    1. Receive a monthly retirement allowance payable for life by having his or her accumulated account balance annuitized by the retirement systems in accordance with the actuarial assumptions and actuarial methods adopted by the board and in effect on the member’s retirement date;
    2. Receive the actuarial equivalent of his or her retirement allowance calculated under paragraph (a) of this subsection payable under one (1) of the options set forth in KRS 61.635 , except for the option provided by KRS 61.635 (11); or
    3. Take a refund of his or her account balance as provided by KRS 61.625 .
  5. The provisions of this section shall not apply to members who began participating in the Kentucky Employees Retirement System prior to January 1, 2014, except for the those members who make an election pursuant to KRS 61.5955 .

HISTORY: Enact. Acts 2013, ch. 120, § 9, effective July 1, 2013; 2017 ch. 125, § 7, effective March 27, 2017; 2018 ch. 107, § 19, effective July 14, 2018; 2021 ch. 102, § 59, effective June 29, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

61.598. Limitations and exclusions on increases in creditable compensation in last five years of service for employees retiring on or after January 1, 2018 — Exceptions — Employer to pay actuarial costs resulting from certain increases in creditable compensation — Inquiries from employers — Hearing and appeal — Reporting of exemptions — Inapplicability to hybrid cash balance and money purchase plan participants. [Declared void — See LRC Note Below]

  1. For purposes of this section, “bona fide promotion or career advancement”:
    1. Means a professional advancement in substantially the same line of work held by the employee in the four (4) years immediately prior to the final five (5) fiscal years preceding retirement or a change in employment position based on the training, skills, education, or expertise of the employee that imposes a significant change in job duties and responsibilities to clearly justify the increased compensation to the member; and
    2. Does not include any circumstance where an elected official participating in the Kentucky Employees Retirement System or the County Employees Retirement System takes a position of employment with a different employer participating in any of the state-administered retirement systems.
    1. For employees retiring from the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System on or after January 1, 2018, the systems shall, for each of the retiring employee’s last five (5) fiscal years of employment, identify any fiscal year in which the creditable compensation increased at a rate of ten percent (10%) or more annually over the immediately preceding fiscal year’s creditable compensation. The employee’s creditable compensation in the fiscal year immediately prior to the employee’s last five (5) fiscal years of employment shall be utilized to compare the initial fiscal year in the five (5) fiscal year period. (2) (a) For employees retiring from the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System on or after January 1, 2018, the systems shall, for each of the retiring employee’s last five (5) fiscal years of employment, identify any fiscal year in which the creditable compensation increased at a rate of ten percent (10%) or more annually over the immediately preceding fiscal year’s creditable compensation. The employee’s creditable compensation in the fiscal year immediately prior to the employee’s last five (5) fiscal years of employment shall be utilized to compare the initial fiscal year in the five (5) fiscal year period.
    2. Except as limited or excluded by subsections (3) and (4) of this section, any amount of increase in creditable compensation for a fiscal year identified under paragraph (a) of this subsection that exceeds ten percent (10%) more than the employee’s creditable compensation from the immediately preceding fiscal year shall not be included in the creditable compensation used to calculate the retiring employee’s monthly retirement allowance. If the creditable compensation for a specific fiscal year identified under paragraph (a) of this subsection as exceeding the ten percent (10%) increase limitation is not used to calculate the retiring employee’s monthly retirement allowance, then no reduction in creditable compensation shall occur for that fiscal year.
    3. If the creditable compensation of the retiring employee is reduced as provided by paragraph (b) of this subsection, the retirement systems:
      1. Shall refund the employee contributions and interest attributable to the reduction in creditable compensation; and
      2. Shall not refund the employer contributions paid but shall utilize those funds to pay down the unfunded liability of the pension fund in which the retiring employee participated.
    1. In order to ensure the prospective application of the limitations on increases in creditable compensation contained in subsection (2) of this section, only the creditable compensation earned by the retiring employee on or after July 1, 2017, shall be subject to reduction under subsection (2) of this section. Creditable compensation earned by the retiring employee prior to July 1, 2017, shall not be subject to reduction under subsection (2) of this section. (3) (a) In order to ensure the prospective application of the limitations on increases in creditable compensation contained in subsection (2) of this section, only the creditable compensation earned by the retiring employee on or after July 1, 2017, shall be subject to reduction under subsection (2) of this section. Creditable compensation earned by the retiring employee prior to July 1, 2017, shall not be subject to reduction under subsection (2) of this section.
    2. If the reductions in creditable compensation during a retiring member’s entire last five (5) years of employment results in a reduction in his or her monthly retirement allowance of less than twenty-five dollars ($25) per month or an actuarially equivalent value under the various payment options, then no reduction in creditable compensation or retirement allowances shall occur under subsection (2) of this section.
  2. Subsection (2) of this section shall not apply to:
    1. A bona fide promotion or career advancement as defined by subsection (1) of this section;
    2. A lump-sum payment for compensatory time paid to an employee upon termination of employment;
    3. A lump-sum payment made pursuant to an alternate sick leave program under KRS 78.616(5) that is paid to an employee upon termination of employment;
    4. Increases in creditable compensation in a fiscal year over the immediately preceding fiscal year, where in the immediately preceding fiscal year the employer reported the employee as being on leave without pay for any reason, including but not limited to sick leave without pay, maternity leave, leave authorized under the Family Medical Leave Act, and any period of time where the employee received workers’ compensation benefit payments that were not reported to the plan as creditable compensation;
    5. Increases in creditable compensation directly attributable to an employee’s receipt of compensation for overtime hours worked while serving as a participating employee under any state or federal grant, grant pass-through, or similar program that requires overtime as a condition or necessity of the employer’s receipt of the grant; and
    6. Increases in creditable compensation directly attributable to an employee’s receipt of compensation for overtime performed during a state of emergency declared by the President of the United States or the Governor of the Commonwealth of Kentucky.
    1. For employees retiring on or after January 1, 2014, but prior to July 1, 2017, the last participating employer shall be required to pay for any additional actuarial costs resulting from annual increases in an employee’s creditable compensation greater than ten percent (10%) over the employee’s last five (5) fiscal years of employment that are not the direct result of a bona fide promotion or career advancement. The cost shall be determined by the retirement systems. (5) (a) For employees retiring on or after January 1, 2014, but prior to July 1, 2017, the last participating employer shall be required to pay for any additional actuarial costs resulting from annual increases in an employee’s creditable compensation greater than ten percent (10%) over the employee’s last five (5) fiscal years of employment that are not the direct result of a bona fide promotion or career advancement. The cost shall be determined by the retirement systems.
    2. Lump-sum payments for compensatory time paid to an employee upon termination of employment shall be exempt from this subsection.
    3. Kentucky Retirement Systems shall be required to answer inquiries from participating employers regarding this subsection. Upon request of the employer prior to the employee’s change of position or hiring, the systems shall make a determination that is binding to the systems as to whether or not a change of position or hiring constitutes a bona fide promotion or career advancement.
    4. For any additional actuarial costs charged to the employer under this subsection, the systems shall allow the employer to pay the costs without interest over a period of one (1) year from the date of receipt of the employer’s final invoice.
  3. The Kentucky Retirement Systems shall determine whether increases in creditable compensation during the last five (5) fiscal years of employment prior to retirement constitute a bona fide promotion or career advancement and may promulgate administrative regulations in accordance with KRS Chapter 13A to administer this section. All state-administered retirement systems shall cooperate to implement this section.
  4. Any employer who disagrees with a determination made by the system in accordance with this section regarding whether an increase in compensation constitutes a bona fide promotion or career advancement for purposes of subsection (5) of this section may request a hearing and appeal the decision in accordance with KRS 61.645(16).
  5. For the fiscal year beginning July 1, 2017, and subsequent years, the Kentucky Retirement Systems shall provide a means for employers to separately report the specific exceptions provided in subsection (4) of this section within the reporting system utilized by the employers for making employer reports under KRS 16.645 , 61.675 , and 78.545 . The Kentucky Retirement Systems shall continually provide communication, instructions, training, and educational opportunities for employers regarding how to appropriately report exemptions established by subsection (4) of this section.
  6. This section shall not apply to employees participating in the hybrid cash balance plan as provided by KRS 16.583 and 61.597 or to service in the 401(a) money purchase plan as provided by KRS 61.5956 .

HISTORY: Enact. Acts 2013, ch. 120, § 10, effective July 1, 2013; 2017 ch. 125, § 3, effective March 27, 2017; 2018 ch. 107, § 85, effective July 14, 2018; 2021 ch. 96, § 6, effective June 29, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

NOTES TO DECISIONS

—2.—Burden of proof.

Kentucky Retirement Systems correctly placed the burden on the county sheriff’s office, the employer, be cause the statute did not impose a penalty, and the assessment was clearly not a revocation of a benefit grant; an assessment under Ky. Rev. Stat. Ann. § 67.598(3) is not punitive because employers are not prohibited or bound by law not to increase employee compensation, but they may do so at their discretion, and even up to a 10 percent increase, there is no effect at all on the employer. Jefferson Cty. Sheriff's Office v. Ky. Ret. Sys., 2021 Ky. LEXIS 146 (Ky. June 17, 2021).

61.598. Limitations and exclusions on increases in creditable compensation in last five years of service for employees retiring on or after January 1, 2018 — Exceptions — Employer to pay actuarial costs resulting from certain increases in creditable compensation — Inquiries from employers — Hearing and appeal — Reporting of exemptions — Inapplicability to hybrid cash balance and money purchase plan participants. [Declared void — See LRC Note Below]

  1. For purposes of this section, “bona fide promotion or career advancement”:
    1. Means a professional advancement in substantially the same line of work held by the employee in the four (4) years immediately prior to the final five (5) fiscal years preceding retirement or a change in employment position based on the training, skills, education, or expertise of the employee that imposes a significant change in job duties and responsibilities to clearly justify the increased compensation to the member; and
    2. Does not include any circumstance where an elected official participating in the Kentucky Employees Retirement System or the County Employees Retirement System takes a position of employment with a different employer participating in any of the state-administered retirement systems.
    1. For employees retiring from the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System on or after January 1, 2018, the systems shall, for each of the retiring employee’s last five (5) fiscal years of employment, identify any fiscal year in which the creditable compensation increased at a rate of ten percent (10%) or more annually over the immediately preceding fiscal year’s creditable compensation. The employee’s creditable compensation in the fiscal year immediately prior to the employee’s last five (5) fiscal years of employment shall be utilized to compare the initial fiscal year in the five (5) fiscal year period. (2) (a) For employees retiring from the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System on or after January 1, 2018, the systems shall, for each of the retiring employee’s last five (5) fiscal years of employment, identify any fiscal year in which the creditable compensation increased at a rate of ten percent (10%) or more annually over the immediately preceding fiscal year’s creditable compensation. The employee’s creditable compensation in the fiscal year immediately prior to the employee’s last five (5) fiscal years of employment shall be utilized to compare the initial fiscal year in the five (5) fiscal year period.
    2. Except as limited or excluded by subsections (3) and (4) of this section, any amount of increase in creditable compensation for a fiscal year identified under paragraph (a) of this subsection that exceeds ten percent (10%) more than the employee’s creditable compensation from the immediately preceding fiscal year shall not be included in the creditable compensation used to calculate the retiring employee’s monthly retirement allowance. If the creditable compensation for a specific fiscal year identified under paragraph (a) of this subsection as exceeding the ten percent (10%) increase limitation is not used to calculate the retiring employee’s monthly retirement allowance, then no reduction in creditable compensation shall occur for that fiscal year.
    3. If the creditable compensation of the retiring employee is reduced as provided by paragraph (b) of this subsection, the retirement systems:
      1. Shall refund the employee contributions and interest attributable to the reduction in creditable compensation; and
      2. Shall not refund the employer contributions paid but shall utilize those funds to pay down the unfunded liability of the pension fund in which the retiring employee participated.
  2. In order to ensure the prospective application of the limitations on increases in creditable compensation contained in subsection (2) of this section, only the creditable compensation earned by the retiring employee on or after July 1, 2017, shall be subject to reduction under subsection (2) of this section. Creditable compensation earned by the retiring employee prior to July 1, 2017, shall not be subject to reduction under subsection (2) of this section.
  3. Subsection (2) of this section shall not apply to:
    1. A bona fide promotion or career advancement as defined by subsection (1) of this section;
    2. A lump-sum payment for compensatory time paid to an employee upon termination of employment;
    3. A lump-sum payment made pursuant to an alternate sick leave program under KRS 78.616(5) that is paid to an employee upon termination of employment;
    4. Increases in creditable compensation in a fiscal year over the immediately preceding fiscal year, where in the immediately preceding fiscal year the employer reported the employee as being on leave without pay for any reason, including but not limited to sick leave without pay, maternity leave, leave authorized under the Family Medical Leave Act, and any period of time where the employee received workers’ compensation benefit payments that were not reported to the plan as creditable compensation;
    5. Increases in creditable compensation directly attributable to an employee’s receipt of compensation for overtime hours worked while serving as a participating employee under any state or federal grant, grant pass-through, or similar program that requires overtime as a condition or necessity of the employer’s receipt of the grant; and
    6. Increases in creditable compensation directly attributable to an employee’s receipt of compensation for overtime performed during a state of emergency declared by the President of the United States or the Governor of the Commonwealth of Kentucky.
    1. For employees retiring on or after January 1, 2014, but prior to July 1, 2017, the last participating employer shall be required to pay for any additional actuarial costs resulting from annual increases in an employee’s creditable compensation greater than ten percent (10%) over the employee’s last five (5) fiscal years of employment that are not the direct result of a bona fide promotion or career advancement. The cost shall be determined by the retirement systems. (5) (a) For employees retiring on or after January 1, 2014, but prior to July 1, 2017, the last participating employer shall be required to pay for any additional actuarial costs resulting from annual increases in an employee’s creditable compensation greater than ten percent (10%) over the employee’s last five (5) fiscal years of employment that are not the direct result of a bona fide promotion or career advancement. The cost shall be determined by the retirement systems.
    2. Lump-sum payments for compensatory time paid to an employee upon termination of employment shall be exempt from this subsection.
    3. The Authority shall be required to answer inquiries from participating employers regarding this subsection. Upon request of the employer prior to the employee’s change of position or hiring, the systems shall make a determination that is binding to the systems as to whether or not a change of position or hiring constitutes a bona fide promotion or career advancement.
    4. For any additional actuarial costs charged to the employer under this subsection, the systems shall allow the employer to pay the costs without interest over a period of one (1) year from the date of receipt of the employer’s final invoice.
  4. The Authority shall determine whether increases in creditable compensation during the last five (5) fiscal years of employment prior to retirement constitute a bona fide promotion or career advancement and may promulgate administrative regulations in accordance with KRS Chapter 13A to administer this section. All state-administered retirement systems shall cooperate to implement this section.
  5. Any employer who disagrees with a determination made by the system in accordance with this section regarding whether an increase in compensation constitutes a bona fide promotion or career advancement for purposes of subsection (5) of this section may request a hearing and appeal the decision in accordance with KRS 61.645(16) or 78.782(16).
  6. For the fiscal year beginning July 1, 2017, and subsequent years, the Kentucky Retirement Systems and the County Employees Retirement System shall provide a means for employers to separately report the specific exceptions provided in subsection (4) of this section within the reporting system utilized by the employers for making employer reports under KRS 16.645 , 61.675 , and 78.545 . The Kentucky Retirement Systems and the County Employees Retirement System shall continually provide communication, instructions, training, and educational opportunities for employers regarding how to appropriately report exemptions established by subsection (4) of this section.
  7. This section shall not apply to employees participating in the hybrid cash balance plan as provided by KRS 16.583 , 61.597 , Section 2 of this Act, and Section 4 of this Act.

HISTORY: Enact. Acts 2013, ch. 120, § 10, effective July 1, 2013; 2017 ch. 125, § 3, effective March 27, 2017; 2018 ch. 107, § 85, effective July 14, 2018; 2021 ch. 102, § 60, effective June 29, 2021.

61.599. Calculation of retirement allowance for members of Kentucky Employees Retirement System.

  1. The annual retirement allowance for a member of the Kentucky Employees Retirement System shall not exceed the maximum benefit as set forth in the Internal Revenue Code.
    1. The retirement allowance for a member of the Kentucky Employees Retirement System shall be calculated by using the member’s known creditable compensation prior to his or her last month’s employment and an estimate of his or her creditable compensation during the last month he or she was employed. Based upon this calculation, the State Treasurer shall be requested to issue the initial retirement payment. (2) (a) The retirement allowance for a member of the Kentucky Employees Retirement System shall be calculated by using the member’s known creditable compensation prior to his or her last month’s employment and an estimate of his or her creditable compensation during the last month he or she was employed. Based upon this calculation, the State Treasurer shall be requested to issue the initial retirement payment.
    2. A new calculation shall be made when the official report has been received of the member’s creditable compensation during his or her last month’s employment. However, the retirement allowance determined in accordance with paragraph (a) of this subsection shall be the official retirement allowance unless the new calculation derives an amount which is two dollars ($2) greater or less than the amount of the initial retirement payment. If the member or beneficiary chose an actuarial equivalent refund payment option, the amount of estimated retirement allowance shall be the official retirement allowance unless the new calculation produces an amount which is one hundred dollars ($100) greater or less than the amount of the initial retirement payment.

History. Enact. Acts 2013, ch. 120, § 11, effective July 1, 2013.

61.5991. Quasi-governmental employers participating in KERS — Required reports — Audits — Legislative intent regarding future appropriations to subsidize retirement costs.

Except as otherwise provided by this section, the following shall apply to nonhazardous employers in the Kentucky Employees Retirement System, who contributed to the system in fiscal year 2019-2020 except in the case of county attorneys, who are local and district health departments governed by KRS Chapter 212, state-supported universities and community colleges, county attorneys, mental health/mental retardation boards, domestic violence shelters, rape crisis centers, child advocacy centers, or any other agency that is eligible to voluntarily cease participation in the Kentucky Employees Retirement System as provided by KRS 61.522 :

    1. Each employer, except for county attorneys, shall report to the Authority for each fiscal year occurring on or after July 1, 2021, the following persons for which no employer contributions were paid by the employer to the system during the fiscal year for services provided to the employer: (1) (a) Each employer, except for county attorneys, shall report to the Authority for each fiscal year occurring on or after July 1, 2021, the following persons for which no employer contributions were paid by the employer to the system during the fiscal year for services provided to the employer:
      1. Persons employed as an independent contractor, a leased employee, or via any other employment arrangement as determined by the Authority, who if employed directly by the employer would qualify as a regular full-time employee in accordance with KRS 61.510(21); and
      2. Persons employed directly by the employer who meet the definition of a regular full-time employee in accordance with KRS 61.510(21), who are not being reported to the system in accordance with KRS 61.675 ;
    2. The reporting required by this paragraph shall:
      1. Be reported in a format, detail, and frequency as determined solely by the Authority;
      2. Include persons provided services to the employer as an independent contractor, a leased employee, or via any other employment arrangement as determined by the Authority, and those services have historically been provided or are currently being provided by employees eligible to participate in the system through the employer; and
      3. Exclude:
        1. Contracts for professional services that have not historically been provided by employees of the employer; and
        2. Any contracts entered into prior to January 1, 2021, with a person or company to provide services as an independent contractor, a leased employee, or other employment arrangement as determined by the Authority, but only for the duration of the original contract, excluding any renewal periods, and only for those services and persons included in the original contract.
    3. In any case of doubt, the Authority shall determine whether data should be reported on a specific person providing services to the employer and the Authority may by promulgation of administrative regulation provide guidance on which persons should be included for reporting purposes.
    4. If Kentucky Retirement Systems determines a person who was not reported to the system under this subsection should be reported to the system as a regular full-time employee, the system shall require the employer covered by this section to report the employee on or after July 1, 2021, and pay employer contributions prospectively but shall not, notwithstanding any other statute to the contrary, bill the employer for any contributions or penalties for any service occurring prior to July 1, 2021, for that specific employee;
    1. Notwithstanding any other provision of statute to the contrary, the Authority shall have full power, including any authority under KRS 61.685 , to audit an employer who is subject to the provisions of this section to ensure compliance and accuracy of the data required to be reported by the employer in accordance with this section. (2) (a) Notwithstanding any other provision of statute to the contrary, the Authority shall have full power, including any authority under KRS 61.685 , to audit an employer who is subject to the provisions of this section to ensure compliance and accuracy of the data required to be reported by the employer in accordance with this section.
    2. If the Authority determines an employer has knowingly falsified data required to be reported under this section:
      1. The Authority shall indicate in the annual report submitted in accordance with subsection (3) of this section that the employer has knowingly falsified data and shall include a brief summary of the reasons for the Authority’s determination;
      2. The employer shall no longer be eligible to receive any future appropriations or subsidies from the state to assist in paying employer contributions to the system; and
      3. The employer shall be required to pay back to the state any appropriations or subsidies provided in the biennial executive branch budget that were used to directly assist the employer in paying employer contributions to the system on or after July 1, 2021.
    3. If an employer fails to submit the information required by this section or does not comply with requests from the Authority regarding subsections (1) and (2) of this section to verify or audit the employer’s information:
      1. The Authority shall indicate in the annual report submitted in accordance with subsection (3) of this section that the employer is noncompliant with the Authority’s requests and shall include a brief summary of the reasons for the Authority’s determination; and
      2. The employer may lose eligibility to receive any future appropriations or subsidies from the state to assist in paying employer contributions to the system;
  1. The Authority shall within sixty (60) days following the close of each fiscal year occurring on or after July 1, 2021, determine and report the following to the state budget director’s office and the Legislative Research Commission for each employer subject to this section, except for county attorneys:
    1. The number of regular full-time employees of the employer who were reported to the system during the prior fiscal year for which contributions were reported in accordance with KRS 61.675 ;
    2. The number of persons providing services to the employer under subsection (1) of this section during the prior fiscal year who were not reported to the system and for which no contributions were reported;
    3. A percentage computed by dividing the number of employees reported in paragraph (a) of this subsection by the combined sum of the number of employees and persons reported in paragraphs (a) and (b) of this subsection and multiplying by one hundred (100); and
    4. The information required by subsection (2) of this section for any employer who has been determined by the Authority to have knowingly falsified data or is noncompliant in submitting the data required by this section to the Authority;
  2. It is the intent of the General Assembly in fiscal years occurring on or after July 1, 2021, to provide appropriations for county attorneys for retirement costs in the Kentucky Employees Retirement System that is equal to the difference between the dollar value of actual contributions paid by the employer in fiscal year 2019-2020 to the system and the dollar value of contributions projected to be paid by the employer to the system in fiscal year 2021-2022;
  3. For fiscal year 2021-2022, it is the intent of the General Assembly to provide a subsidy towards the retirement costs of employers covered by this section, except for county attorneys who are provided a subsidy by subsection (4) of this section, that is equal to the difference between the dollar value of actual contributions paid by the employer to the system in fiscal year 2019-2020 and the dollar value of contributions projected to be paid by the employer to the system in fiscal year 2021-2022;
  4. It is the intent of the General Assembly that for fiscal years occurring on or after July 1, 2022:
    1. To provide a subsidy towards the retirement costs of each employer subject to this section, except for county attorneys who are provided a subsidy by subsection (4) of this section, who has made efforts to increase or maintain the number of employees reported to the system. Specifically, it is the intent of the General Assembly to provide subsidies only to those employers who have a percentage of employees reported to the system as specified by subsection (3)(c) of this section, equal to or greater than:
      1. Sixty percent (60%) for any subsidies provided in fiscal years occurring on or after July 1, 2022, to June 30, 2024; and
      2. Eighty percent (80%) for any subsidies provided in fiscal years occurring on or after July 1, 2024.

        Eligibility for a subsidy provided in each fiscal year of the budget shall be based upon the most recent percentage of employees reported by the Authority;

    2. For those employers eligible for a subsidy under paragraph (a) of this subsection, to provide a subsidy that is equal to the dollar value of the subsidy provided to the employer in fiscal year 2021-2022 multiplied by the following percentage:
      1. For local and district health departments governed by KRS Chapter 212, state-supported universities and community colleges, and any other employer subject to this section that has taxing or fee authority:
        1. Ninety percent (90%) in fiscal year 2022-2023;
        2. Eighty percent (80%) in fiscal year 2023-2024;
        3. Seventy percent (70%) in fiscal year 2024-2025;
        4. Sixty percent (60%) in fiscal year 2025-2026; and
        5. Fifty percent (50%) in fiscal years occurring on or after July 1, 2026; and
      2. For any other employer who does not have taxing or fee authority:
        1. Ninety percent (90%) in fiscal years 2022-2024; and
        2. Seventy-five percent (75%) in fiscal years occurring on or after July 1, 2024; and
    3. The subsidy provided by this subsection shall be adjusted to reflect the assignment of liabilities based upon the appeal process in KRS 61.565(1)(d)5.;
  5. The Council on State Governments (CSG), the Kentucky Educational Television (KET) Foundation, Association of Commonwealth’s Attorneys, the Kentucky High School Athletic Association (KHSAA), the Municipal Power Association of Kentucky, the Kentucky Office of Bar Admissions, the Nursing Home Ombudsman, the Kentucky Association of Regional Programs (KARP), and the Kentucky Association of Sexual Assault Programs are, notwithstanding the provisions of subsections (1) to (6) of this section, exempt from the reporting requirements and from receiving a subsidy to assist in paying employer contribution rates; and
  6. The provisions of this section shall not obligate the General Assembly to provide any specific level of subsidy to assist in paying employer contributions of any employer covered by this section, and employers shall be responsible for any and all future retirement contributions payable by the employer regardless of the actual amount of subsidy included in future executive branch budgets.

HISTORY: 2021 ch. 83, § 7, effective March 23, 2021.

61.600. Disability retirement.

  1. Any person may qualify to retire on disability, subject to the following conditions:
    1. The person shall have sixty (60) months of service, twelve (12) of which shall be current service credited under KRS 16.543(1), 61.543(1), or 78.615(1);
    2. For a person whose membership date is prior to August 1, 2004, the person shall not be eligible for an unreduced retirement allowance;
    3. The person’s application shall be on file in the retirement office no later than twenty-four (24) months after the person’s last day of paid employment, as defined in KRS 61.510 , in a regular full-time position, as defined in KRS 61.510 ; and
    4. The person shall receive a satisfactory determination pursuant to KRS 61.665 .
  2. A person’s disability reapplication based on the same claim of incapacity shall be accepted and reconsidered for disability if accompanied by new objective medical evidence. The reapplication shall be on file in the retirement office no later than twenty-four (24) months after the person’s last day of paid employment in a regular full-time position.
  3. Upon the examination of the objective medical evidence by licensed physicians pursuant to KRS 61.665 , it shall be determined that:
    1. The person, since his last day of paid employment, has been mentally or physically incapacitated to perform the job, or jobs of like duties, from which he received his last paid employment. In determining whether the person may return to a job of like duties, any reasonable accommodation by the employer as provided in 42 U.S.C. sec. 12111(9) and 29 C.F.R. Part 1630 shall be considered;
    2. The incapacity is a result of bodily injury, mental illness, or disease. For purposes of this section, “injury” means any physical harm or damage to the human organism other than disease or mental illness;
    3. The incapacity is deemed to be permanent; and
    4. The incapacity does not result directly or indirectly from bodily injury, mental illness, disease, or condition which pre-existed membership in the system or the County Employees Retirement System or reemployment, whichever is most recent. For purposes of this subsection, reemployment shall not mean a change of employment between employers participating in the retirement systems administered by the Kentucky Retirement Systems or the County Employees Retirement System with no loss of service credit.
  4. Paragraph (d) of subsection (3) of this section shall not apply if:
    1. The incapacity is a result of bodily injury, mental illness, disease, or condition which has been substantially aggravated by an injury or accident arising out of or in the course of employment; or
    2. The person has at least sixteen (16) years’ current or prior service for employment with employers participating in the retirement systems administered by the Kentucky Retirement Systems or the County Employees Retirement System.
      1. An incapacity shall be deemed to be permanent if it is expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months from the person’s last day of paid employment in a regular full-time position. (5) (a) 1. An incapacity shall be deemed to be permanent if it is expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months from the person’s last day of paid employment in a regular full-time position.
      2. The determination of a permanent incapacity shall be based on the medical evidence contained in the member’s file and the member’s residual functional capacity and physical exertion requirements.
    1. The person’s residual functional capacity shall be the person’s capacity for work activity on a regular and continuing basis. The person’s physical ability shall be assessed in light of the severity of the person’s physical, mental, and other impairments. The person’s ability to walk, stand, carry, push, pull, reach, handle, and other physical functions shall be considered with regard to physical impairments. The person’s ability to understand, remember, and carry out instructions and respond appropriately to supervision, coworkers, and work pressures in a work setting shall be considered with regard to mental impairments. Other impairments, including skin impairments, epilepsy, visual sensory impairments, postural and manipulative limitations, and environmental restrictions, shall be considered in conjunction with the person’s physical and mental impairments to determine residual functional capacity.
    2. The person’s physical exertion requirements shall be determined based on the following standards:
      1. Sedentary work shall be work that involves lifting no more than ten (10) pounds at a time and occasionally lifting or carrying articles such as large files, ledgers, and small tools. Although a sedentary job primarily involves sitting, occasional walking and standing may also be required in the performance of duties.
      2. Light work shall be work that involves lifting no more than twenty (20) pounds at a time with frequent lifting or carrying of objects weighing up to ten (10) pounds. A job shall be in this category if lifting is infrequently required but walking and standing are frequently required, or if the job primarily requires sitting with pushing and pulling of arm or leg controls. If the person has the ability to perform substantially all of these activities, the person shall be deemed capable of light work. A person deemed capable of light work shall be deemed capable of sedentary work unless the person has additional limitations such as the loss of fine dexterity or inability to sit for long periods.
      3. Medium work shall be work that involves lifting no more than fifty (50) pounds at a time with frequent lifting or carrying of objects weighing up to twenty-five (25) pounds. If the person is deemed capable of medium work, the person shall be deemed capable of light and sedentary work.
      4. Heavy work shall be work that involves lifting no more than one hundred (100) pounds at a time with frequent lifting or carrying of objects weighing up to fifty (50) pounds. If the person is deemed capable of heavy work, the person shall also be deemed capable of medium, light, and sedentary work.
      5. Very heavy work shall be work that involves lifting objects weighing more than one hundred (100) pounds at a time with frequent lifting or carrying of objects weighing fifty (50) or more pounds. If the person is deemed capable of very heavy work, the person shall be deemed capable of heavy, medium, light, and sedentary work.

HISTORY: Enact. Acts 1956, ch. 110, § 19; 1960, ch. 165, part II, § 8; 1962, ch. 58, § 11; 1966, ch. 35, § 9; 1970, ch. 101, § 5; 1972, ch. 116, § 37; 1974, ch. 128, § 20, effective March 26, 1974; 1984, ch. 232, § 6, effective July 13, 1984; 1988, ch. 349, § 19, effective July 15, 1988; 1988, ch. 387, § 1, effective July 15, 1988; 1990, ch. 346, § 5, effective July 13, 1990; 1992, ch. 240, § 30, effective July 14, 1992; 1994, ch. 485, § 16, effective July 15, 1994; 1996, ch. 167, § 12, effective July 15, 1996; 1998, ch. 105, § 11, effective July 15, 1998; 2000, ch. 385, § 19, effective July 14, 2000; 2002, ch. 52, § 25, effective July 15, 2002; 2004, ch. 36, § 15, effective July 13, 2004; 2021 ch. 102, § 61, effective June 29, 2021.

NOTES TO DECISIONS

1.Time to File Application.

The plaintiff filed her application for disability retirement within twelve (12) months of her last day of paid employment and, therefore, was eligible for disability retirement where (1) she was employed full-time by the Administrative Office of the Courts as a pre-trial release officer; (2) she suffered a work-related back injury in April 1994 and was off work from April 1994 until November 27, 1995; (3) she returned to work for three days before being re-hospitalized and has not been able to work since that time; and (4) she filed an application for disability retirement benefits on November 25, 1996, listing her last day of paid employment as November 29, 1995. Roland v. Kentucky Retirement Sys., 52 S.W.3d 579, 2000 Ky. App. LEXIS 46 (Ky. Ct. App. 2000).

2.Pre-existing Conditions.

State employee’s bipolar illness, although dormant through most of her employment with a state agency, was a pre-existing mental condition that precluded the employee, under KRS 61.600(2)(d), from receiving disability retirement benefits when stress aggravated the illness; stress did not fall within the definition of injury in KRS 61.600(2)(b) and the employee could not get around KRS 61.600(2)(d) by claiming that she had suffered a work related injury under KRS 61.600(3)(a). Lindall v. Ky. Ret. Sys., 112 S.W.3d 391, 2003 Ky. App. LEXIS 186 (Ky. Ct. App. 2003).

Worker’s claim for disability benefits was properly denied because substantial evidence supported findings that the worker’s condition was caused by a preexisting injury, and it was unnecessary to reach the question of whether cumulative trauma may have been considered an injury under KRS 61.600(3). Caudill v. Commonwealth, 240 S.W.3d 662, 2007 Ky. App. LEXIS 426 (Ky. Ct. App. 2007).

Where an employee came forward with evidence of the nonexistence of a preexisting condition in the form of pre-employment X-rays indicating the absence of chronic obstructive pulmonary disease (COPD) or its symptoms, as well as medical proof that for the first six (6) years of her employment there was no mention of COPD and no diagnosis for nine (9) years, a rebuttable presumption was created. Ky. Ret. Sys. v. Brown, 2007 Ky. App. LEXIS 486 (Ky. Ct. App. Dec. 28, 2007) sub. nom.Sizemore v. Ky. Ret. Sys., 2009 Ky. LEXIS 300 (Ky. May 13, 2009), aff'd, 336 S.W.3d 8, 2011 Ky. LEXIS 34 ( Ky. 2011 ).

Trial court properly held that an employee’s chronic obstructive pulmonary disease was not a preexisting condition, based on contemporary objective medical records, X-rays, and diagnoses by her attending physicians. Subjective retrospective diagnoses were based on nothing other than the fact that the employee smoked before beginning her employment. Ky. Ret. Sys. v. Brown, 2007 Ky. App. LEXIS 486 (Ky. Ct. App. Dec. 28, 2007) sub. nom.Sizemore v. Ky. Ret. Sys., 2009 Ky. LEXIS 300 (Ky. May 13, 2009), aff'd, 336 S.W.3d 8, 2011 Ky. LEXIS 34 ( Ky. 2011 ).

The Legislature specifically used the phrase “bodily injury, mental illness, disease, or condition” in KRS 61.600(3)(d) to indicate medically and psychiatrically diagnosable maladies only. The definition of “condition” is not broad enough to include an employee’s behavior, even an employee’s bad habits. Ky. Ret. Sys. v. Brown, 2007 Ky. App. LEXIS 486 (Ky. Ct. App. Dec. 28, 2007) sub. nom.Sizemore v. Ky. Ret. Sys., 2009 Ky. LEXIS 300 (Ky. May 13, 2009), aff'd, 336 S.W.3d 8, 2011 Ky. LEXIS 34 ( Ky. 2011 ).

An employee’s longtime smoking was not a preexisting condition in itself disqualifying her from receiving disability retirement benefits. Ky. Ret. Sys. v. Brown, 2007 Ky. App. LEXIS 486 (Ky. Ct. App. Dec. 28, 2007) sub. nom.Sizemore v. Ky. Ret. Sys., 2009 Ky. LEXIS 300 (Ky. May 13, 2009), aff'd, 336 S.W.3d 8, 2011 Ky. LEXIS 34 ( Ky. 2011 ).

Interpreting the word “condition” in KRS 61.600(3)(d) to include pre-employment smoking behavior would run entirely contrary to the Legislature’s policy in KRS 344.040 prohibiting discrimination against an employee merely because the individual is a smoker. Ky. Ret. Sys. v. Brown, 2007 Ky. App. LEXIS 486 (Ky. Ct. App. Dec. 28, 2007) sub. nom.Sizemore v. Ky. Ret. Sys., 2009 Ky. LEXIS 300 (Ky. May 13, 2009), aff'd, 336 S.W.3d 8, 2011 Ky. LEXIS 34 ( Ky. 2011 ).

Because osteoarthritis could be caused by several different factors, obesity could not constitute a pre-existing condition to preclude retirement disability benefits where there was no objective evidence that the claimant, a 62-year-old morbidly obese preschool bus driver, suffered osteoarthritis of the knees prior to the claimant’s employment. Ky. Ret. Sys. v. Robb, 2009 Ky. App. LEXIS 239 (Ky. Ct. App. Nov. 25, 2009, sub. op., 2009 Ky. App. Unpub. LEXIS 1095 (Ky. Ct. App. Nov. 25, 2009).

Trial court had to determine whether the combined effects of the employee’s impairments rendered him unable to return to his former position or like positions, and the appellate court found that KRS 61.600(3)(d) referred to medically and psychiatrically diagnosable maladies only; a claimant bore the burden to come forward with some evidence that his condition did not preexist his service with the Commonwealth, and upon such a threshold showing, the burden of going forward shifted back to the Kentucky Retirement Systems, and smoking could not be considered a preexisting condition. West v. Ky. Ret. Sys., 2010 Ky. App. LEXIS 97 (Ky. Ct. App. May 28, 2010).

Kentucky Retirement Systems erroneously denied disability benefits to two employees on the basis that their conditions preexisted their membership because, with respect to one employee, it misconstrued the term “condition” to include behavior and with respect to the other, it relied on a medical treatise not related to the applicant. Ky. Ret. Sys. v. Brown, 336 S.W.3d 8, 2011 Ky. LEXIS 34 ( Ky. 2011 ).

In a case involving disability retirement benefits under KRS 61.600 , prior smoking and tobacco use could not have been considered as a “pre-existing condition” to a diagnosis of chronic obstructive pulmonary disease because smoking was a behavior, rather than a condition. West v. Ky. Ret. Sys., 2011 Ky. App. LEXIS 125 (Ky. Ct. App. July 15, 2011).

Employee had to satisfy his burden of proving that his COPD did not pre-exist his membership in the Kentucky Retirement Systems, KRS 13B.090 , 61.600 , and the hearing officer’s conclusion that the employee’s COPD was a pre-existing condition was reasonable; the hearing officer did not consider the combined effect of the employee’s impairments and addressed all medical records presented. Ky. Ret. Sys. v. West, 413 S.W.3d 578, 2013 Ky. LEXIS 374 ( Ky. 2013 ).

Court of appeals erred in affirming the denial of disability retirement benefits because the hearing officer’s original recommendation correctly found the post-employment medical proof, alone, established the employee’s disabling Hereditary Hemorrhagic Telangiectasia remained asymptomatic and reasonably undiscoverable; the employee’s affidavit and testimony, along with a reasoned reading of his medical records, was sufficient to allow the hearing officer to make an informed determination. Elder v. Ky. Ret. Sys., 617 S.W.3d 310, 2020 Ky. LEXIS 291 ( Ky. 2020 ).

Because precedent did not replace the law regarding the burden of proof under subsection (7), the Kentucky Retirement Systems erred in remanding the hearing officer’s original recommendation that an employee’s Hereditary Hemorrhagic Telangiectasia remained asymptomatic and reasonably undiscoverable and approving of disability retirement benefits. Elder v. Ky. Ret. Sys., 617 S.W.3d 310, 2020 Ky. LEXIS 291 ( Ky. 2020 ).

3.Disability Awarded.

Employee was entitled to disability retirement benefits pursuant to KRS 61.600 , as the employee presented objective medical evidence supporting the employee’s claim that the employee was permanently incapacitated from performing the employee’s job duties by the employee’s asthma. Ledford v. Ky. Ret. Sys., 2007 Ky. App. LEXIS 237 (Ky. Ct. App. July 27, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 936 (Ky. Ct. App. July 27, 2007).

Hearing officer’s recommendation that decedent’s retirement disability benefits should be terminated was not supported by substantial evidence that decedent was not presently or permanently incapacitated pursuant to KRS 61.600(1) and (3)(a)(c). That decedent had stopped receiving psychiatric counseling when decedent received the retirement disability award at most showed that decedent’s condition had improved, and not that decedent could perform decedent’s job, and the psychologist’s determination that decedent’s depression and anxiety would not be disabling conditions with proper treatment did not show that decedent was not presently incapacitated. Bd. of Trs. of the Ky. Ret. Sys. v. Estate of Chaney, 253 S.W.3d 67, 2008 Ky. App. LEXIS 115 (Ky. Ct. App. 2008).

County clerk was entitled to disability retirement benefits because the clerk met the burden to prove that she was permanently and totally disabled due to the considerable number of maladies from which she suffered. Ky. Ret. Sys. v. Martin, 2009 Ky. App. LEXIS 66 (Ky. Ct. App. May 22, 2009).

4.Reasonable Accommodation.

The only logical construction of the term “reasonable accommodation” in the context of KRS 61.600(3)(a) is that it is an accommodation which enables an employee’s immediate or eventual return to work at an acceptable level of proficiency. Recuperative leaves of absence fit this definition. Ky. Ret. Sys. v. Brown, 2007 Ky. App. LEXIS 486 (Ky. Ct. App. Dec. 28, 2007) sub. nom.Sizemore v. Ky. Ret. Sys., 2009 Ky. LEXIS 300 (Ky. May 13, 2009), aff'd, 336 S.W.3d 8, 2011 Ky. LEXIS 34 ( Ky. 2011 ).

Allowing an employee with chronic obstructive pulmonary disease to take leave was not a reasonable accommodation that made her ineligible for disability retirement. The evidence indicated that the employee had needed oxygen continuously; thus, the only kind of leave that would have met her disability needs was a permanent leave of absence, which was in effect proposing termination as a solution. Ky. Ret. Sys. v. Brown, 2007 Ky. App. LEXIS 486 (Ky. Ct. App. Dec. 28, 2007) sub. nom.Sizemore v. Ky. Ret. Sys., 2009 Ky. LEXIS 300 (Ky. May 13, 2009), aff'd, 336 S.W.3d 8, 2011 Ky. LEXIS 34 ( Ky. 2011 ).

Where the Kentucky Retirement System denied a county employee’s application for disability retirement benefits, reversal was warranted because (1) a hearing officer failed to indicate why the hearing officer chose to side with the government physicians and not the employee’s treating physicians, and (2) the statements of the government’s physicians might have been improperly admitted since it was unclear from the record when exactly these statements were submitted and whether or not the employee was given adequate time to inspect these documents or respond to them. Claxon v. Ky. Ret. Sys., 2008 Ky. App. LEXIS 25 (Ky. Ct. App. Feb. 1, 2008).

Opinion of a treating physician, if based on sufficient medical data, should be given greater weight than that of a non-treating government physician in retirement disability cases. Claxon v. Ky. Ret. Sys., 2008 Ky. App. LEXIS 25 (Ky. Ct. App. Feb. 1, 2008).

Since incapacity sufficient to warrant disability retirement benefits is to be based on objective medical evidence pursuant to KRS 61.600(3), and under KRS 61.510(33) pain is subjective, any failure of the government’s physicians to comment on the employee’s pain was harmless to the claim. Claxon v. Ky. Ret. Sys., 2008 Ky. App. LEXIS 25 (Ky. Ct. App. Feb. 1, 2008).

County clerk was entitled to disability retirement benefits, pursuant to KRS 61.600 , because accommodations she had to provide to herself in order to perform the clerk’s job in light of her numerous disabilities became unreasonable; the delegation of the clerk’s supervisory duties to the magnitude the accommodations required was unreasonable. Ky. Ret. Sys. v. Martin, 2009 Ky. App. LEXIS 66 (Ky. Ct. App. May 22, 2009).

5.Cumulative Effect of Ailments.

The Board of Trustees of the Kentucky Retirement Systems exceeded the constraints of its statutory powers and arbitrarily denied the employee’s disability claim by failing to properly consider the cumulative effect standard implicit in KRS 61.600 ; the employee produced sufficient evidence of disability due to her various ailments that she was entitled to a determination of whether the cumulative effect of her ailments rendered her unable to work, and the hearing officer’s review and findings regarding the employee’s injuries failed to consider her multiple ailments in accordance with the “residual functional capacity” standard in KRS 61.600 (5)(a)(2), which supported an additional “cumulative effects” analysis. Ky. Ret. Sys. v. Bowens, 281 S.W.3d 776, 2009 Ky. LEXIS 49 ( Ky. 2009 ).

When a county clerk sought disability retirement benefits, it was error to totally discount the opinion of the clerk’s treating physician on the basis that the physician had not treated the clerk for a year; the physician was still a qualified medical professional who had treated the clerk. Ky. Ret. Sys. v. Martin, 2009 Ky. App. LEXIS 66 (Ky. Ct. App. May 22, 2009).

When a county clerk sought disability retirement benefits, it was error to totally discount the opinion of a physician due to the physician’s comment about the number of years of the clerk’s service because the comment was taken out of context and was used to show that the clerk’s disabilities were not due to preexisting conditions. Ky. Ret. Sys. v. Martin, 2009 Ky. App. LEXIS 66 (Ky. Ct. App. May 22, 2009).

In a case involving disability retirement benefits under KRS 61.600 , a hearing officer erred by failing to consider the cumulative effect of a former employee’s impairments when determining whether he was incapacitated from performing his job or jobs of like duties. West v. Ky. Ret. Sys., 2011 Ky. App. LEXIS 125 (Ky. Ct. App. July 15, 2011).

6.Evidence.

Kentucky Court of Appeals erred in determining that the opinions of treating physicians were entitled to more weight than the opinions of non-examining physicians; pursuant to KRS 13B.150(2), the Court of Appeals was without authority to adopt and apply the treating physician rule in an administrative hearing regarding disability retirement benefits. Ky. Ret. Sys. v. Bowens, 281 S.W.3d 776, 2009 Ky. LEXIS 49 ( Ky. 2009 ).

Under KRS 61.600 , a claimant bears the burden to come forward with some evidence that his condition did not preexist his service with the Commonwealth, and, upon such a threshold showing, the burden of going forward shifts back to the retirement systems. While the ultimate burden of persuasion is not moved from the party upon which it was originally cast (the claimant), the systems must come forward with some evidence in rebuttal where a claimant makes a threshold showing that his or her condition was not preexisting, and, while the fact-finder is free to accept or reject any evidence it chooses, it is not free to reject uncontested evidence; therefore, the fact-finder was not free to reject the unrebutted testimony of a doctor relating to the fact that it was highly unlikely that an employee had experienced chronic obstructive pulmonary disease on the year of his re-employment, despite his smoking. West v. Ky. Ret. Sys., 2011 Ky. App. LEXIS 125 (Ky. Ct. App. July 15, 2011).

It was clearly error for the Kentucky Retirement System to have found that there was no objective medical evidence under KRS 61.510(33) that the claimant was disabled, given that all four of the claimant’s treating physicians found her to be disabled, plus a psychologist found she was unable to return to her previous position; the court rejected the argument that the findings of the physicians were not objective evidence because they were based on the claimant’s subjective complaints of pain, and the court affirmed the decision that overturned a ruling that denied the claimant disability retirement benefits under KRS 61.600 . Ky. Ret. Sys. v. Lowe, 343 S.W.3d 642, 2011 Ky. App. LEXIS 162 (Ky. Ct. App. 2011).

Treating physicians’ reports are clearly objective medical evidence, and while the Kentucky Retirement System is at liberty to point to other objective medical evidence to contradict the findings of treating physicians when denying a claim, and while the Retirement System is at liberty to give greater weight to its own reviewing physicians if it so chooses, it may not discount treating physicians’ reports as failing the standard of objective medical evidence; indeed, simply because a physician’s diagnoses are based in part upon the subjective complaints of a patient (such as pain) does not remove them from the realm of objective medical evidence, and the opinions and conclusions of a treating physician must be considered objective medical evidence for purposes of KRS 61.600 . Ky. Ret. Sys. v. Lowe, 343 S.W.3d 642, 2011 Ky. App. LEXIS 162 (Ky. Ct. App. 2011).

Under KRS 13B.090(7), a claimant bore the burden of proof in demonstrating that she was entitled to disability retirement benefits. Ky. Ret. Sys. v. Lowe, 343 S.W.3d 642, 2011 Ky. App. LEXIS 162 (Ky. Ct. App. 2011).

Circuit court properly denied a motion by the state retirement systems' board of trustees to alter, amend, or vacate an order finding that a state employee was entitled to disability benefits because his alleged alcohol abuse could never constitute a statutory condition, his ability to drive his personal vehicle in no way indicated an ability to perform the duties of his former position, he could and did file a second application for benefits based on new objective medical evidence, and the board did not preserve the issue of res judicata. Ky. Ret. Sys. v. Wimberly, 2015 Ky. App. LEXIS 28 (Ky. Ct. App. Feb. 27, 2015), aff'd, 495 S.W.3d 141, 2016 Ky. LEXIS 323 ( Ky. 2016 ).

Substantial evidence did not support denying an employee's reapplication for disability retirement benefits because (1) finding the employee's prior alcohol abuse indirectly caused the employee's heart condition was unsupported, and (2) the employee's ability to drive the employee's own car did not show the employee could drive a bus, as the employee's heart disease made the employee unqualified, under 49 C.F.R. § 391.41(b)(4), 49 C.F.R. § 391.43(f)(1) said the demands placed on a commercial motor vehicle driver had to be considered, and a person driving his or her car did not drive eight hours a day. Ky. Ret. Sys. v. Wimberly, 495 S.W.3d 141, 2016 Ky. LEXIS 323 ( Ky. 2016 ).

Circuit court properly affirmed the Kentucky Retirement Systems' Board of Trustees' denial of a former employee's application for disability retirement benefits because the employee's argument on appeal impermissibly shifted her burden of proof to the Board, the persuasive effect of the evidence submitted by the employee was undermined by a doctor's independent psychological examination of the employee, which suggested that she might be feigning or malingering her symptoms, and there was a lack of objective medical evidence to support that any of her conditions were disabling. Bartrum v. Ky. Ret. Sys., 2017 Ky. App. LEXIS 17 (Ky. Ct. App. Jan. 20, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 956 (Ky. Ct. App. Jan. 20, 2017).

Ky. Rev. Stat. Ann. § 61.600 does not require a person to follow all recommendations from medical professionals in order to be deemed permanently disabled. Jett v. Ky. Ret. Sys., 2017 Ky. App. LEXIS 418 (Ky. Ct. App. Aug. 4, 2017).

Decision by the Board of Trustees of the Kentucky Retirement Systems denying an employee disability retirement benefits was reversed where the uncontroverted medical evidence showed that her depression and PTSD lasted for over one year, there was no medical evidence that her condition would have definitely improved with proper treatment, and thus, the decision was not based on substantial evidence. Jett v. Ky. Ret. Sys., 2017 Ky. App. LEXIS 418 (Ky. Ct. App. Aug. 4, 2017).

Substantial evidence supported the Kentucky Retirement Systems Board of Trustee’s decision denying the former employee’s application for disability benefits because two physicians, a vocational consultant, and an exercise physiologist provided credible and convincing evidence that the employee was capable of performing medium-duty work, and the employee’s proof and his physicians’ evidence was not so compelling that no reasonable person could fail to be persuaded by it. Ky. Ret. Sys. v. Ashcraft, 559 S.W.3d 812, 2018 Ky. LEXIS 442 ( Ky. 2018 ).

When a government employee applied for disability retirement, it was no error to consider evidence of the employee’s capacity more than 12 months after the last day of the employee’s government employment because (1) all credible evidence of record relevant to the issue of permanent disability was properly considered, and (2) the evidence was not artificially limited to the 12 months following government employment. Bradley v. Ky. Ret. Sys., 567 S.W.3d 114, 2018 Ky. LEXIS 446 ( Ky. 2018 ).

Medical records predating employment can be dispositive of many disability retirement claims, but not all, and post-employment medical records can also offer compelling proof to disprove preexistence of a disabling condition; absence or inclusion of symptoms or treatment reported in any medical record, pre-hire or post-employment, may be probative. Elder v. Ky. Ret. Sys., 617 S.W.3d 310, 2020 Ky. LEXIS 291 ( Ky. 2020 ).

Claimant’s pre-employment medical records may not always be available, assuming the claimant has had access to regular medical care, and claimants should not be precluded from submitting other medical proof deemed equally convincing. Elder v. Ky. Ret. Sys., 617 S.W.3d 310, 2020 Ky. LEXIS 291 ( Ky. 2020 ).

7.Reapplication.

Administrative res judicata did not apply to a Kentucky Employees Retirement Systems member's second application for disability benefits as Ky. Rev. Stat. Ann. § 61.600(2) very clearly permitted the filing of a reapplication based on the same claim of incapacity and reconsidered for disability if accompanied by new objective medical evidence, and did not require that the member first appeal the denial of her first application. Ky. Ret. Sys. v. Carson, 2015 Ky. App. LEXIS 6 (Ky. Ct. App. Jan. 23, 2015).

When an employee reapplied for disability retirement benefits, the Kentucky Retirement Systems (KERS) had to reconsider the employee's reapplication's denial because Ky. Rev. Stat. Ann. § 61.600(2) required KERS to review prior evidence with new evidence filed with the reapplication instead of stating findings on the prior application bound KERS due to the employee's failure to appeal that application's denial, as the statute (1) did not limit the employee's ability to reapply or KERS's reconsideration to judicially reviewed claims, and (2) required a reapplication within 24 months of the employee's last paid employment. Ky. Ret. Sys. v. Carson, 495 S.W.3d 135, 2016 Ky. LEXIS 326 ( Ky. 2016 ).

Administrative res judicata did not bar an employee's Ky. Rev. Stat. Ann. § 61.600(2) disability retirement benefit reapplication because the statute required the Kentucky Retirement Systems (KERS) to accept the reapplication if accompanied by new objective medical evidence, which KERS had to review with prior evidence, instead of adopting the prior evidence due to the employee's failure to appeal the prior application's denial. Ky. Ret. Sys. v. Wimberly, 495 S.W.3d 141, 2016 Ky. LEXIS 323 ( Ky. 2016 ).

61.605. Disability retirement allowance. [Declared void — See LRC Note Below]

  1. Upon disability retirement, except as provided by subsection (2) of this section, an employee may receive an annual retirement allowance payable monthly during his lifetime which shall be determined in the same manner as for retirement at his normal retirement date with years of service and final compensation being determined as of the date of his disability except that service credit shall be added to the person’s total service beginning with his last date of paid employment and continuing to his sixty-fifth birthday; however, the maximum service credit added shall not exceed the total service the person had upon his last day of paid employment, and the maximum combined service credit for calculating his disability retirement allowance, including total service and added service shall not exceed twenty-five (25) years. If, however, a person has accumulated twenty-five (25) or more years of total service, he shall receive added service necessary to bring his combined service credit, including total and added service, to twenty-seven (27) years.
    1. For a member whose participation begins on or after August 1, 2004, but prior to January 1, 2014, the disability retirement allowance shall be the higher of twenty percent (20%) of the member’s monthly final rate of pay or the retirement allowance determined in the same manner as for retirement at his normal retirement date with years of service and final compensation being determined as of the date of his disability. (2) (a) For a member whose participation begins on or after August 1, 2004, but prior to January 1, 2014, the disability retirement allowance shall be the higher of twenty percent (20%) of the member’s monthly final rate of pay or the retirement allowance determined in the same manner as for retirement at his normal retirement date with years of service and final compensation being determined as of the date of his disability.
    2. For a member who begins participating on or after January 1, 2014, in the hybrid cash balance plan as provided by KRS 61.597 , the disability retirement allowance shall be the higher of twenty percent (20%) of the member’s monthly final rate of pay or the retirement allowance determined in the same manner as for retirement at his or her normal retirement date under KRS 61.597 .

HISTORY: Enact. Acts 1956, ch. 110, § 20; 1960, ch. 165, part II, § 9; 1962, ch. 58, § 12; 1966, ch. 35, § 10; 1970, ch. 101, § 6; 1972, ch. 116, § 38; 1974, ch. 128, § 21, effective March 26, 1974; 1980, ch. 186, § 24, effective July 15, 1980; 1998, ch. 105, § 12, effective July 15, 1998; 2000, ch. 385, § 20, effective July 14, 2000; 2004, ch. 33, § 4, effective July 13, 2004; 2004, ch. 36, § 16, effective July 13, 2004; 2013, ch. 120, § 59, effective July 1, 2013; 2018 ch. 107, § 35, effective July 14, 2018; 2021 ch. 102, § 62, effective June 29, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

NOTES TO DECISIONS

1.Disability Awarded.

Hearing officer’s recommendation that decedent’s retirement disability award be terminated was not supported by substantial evidence. The fact that decedent stopped receiving psychiatric counseling after receiving the disability award showed at most that decedent’s condition improved, and not that decedent was not presently incapacitated, and a psychologist’s determination that decedent’s depression and anxiety would not be disabling conditions with the proper treatment did not show that decedent’s incapacity would not continuously last for less than 12 months pursuant to KRS 61.600(5)(a). Bd. of Trs. of the Ky. Ret. Sys. v. Estate of Chaney, 253 S.W.3d 67, 2008 Ky. App. LEXIS 115 (Ky. Ct. App. 2008).

61.607. Maximum disability benefit — Determination.

Notwithstanding any other provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , or 78.510 to 78.852 , a maximum disability benefit is hereby established which shall apply, upon disability retirement, to any disabled employee’s account to which service credit is added to determine disability benefits or in any case where disability benefits are determined by computing a percentage of the disabled employee’s final monthly rate of pay or monthly average pay. The maximum disability benefit shall be determined by the following formula:

  1. Add the monthly benefit payable to the disabled employee from the retirement system, using the monthly disability retirement allowance (not optional plan) but excluding dependent children’s allowances, if any, to his monthly benefit, if any, from Social Security, even though these payments may not begin for a period of time as required for qualification under the federal Social Security law, excluding spouse or dependent benefits, and his monthly benefit, if any, from workers’ compensation, even though these payments may not have begun as of the date the disabled member applies for disability retirement benefits, excluding spouse or dependent children’s allowances, from workers’ compensation, to arrive at a projected combined monthly benefit.
  2. If the projected combined monthly benefit exceeds one hundred percent (100%) of the disabled employee’s final rate of pay or his final compensation, whichever is greater, his disability retirement allowance from the retirement system shall be reduced to an amount which would cause his projected combined monthly benefit to equal one hundred percent (100%) of his final rate of pay or his final compensation, whichever is greater; however, the disability retirement allowance shall not be reduced below an amount which would result from a computation of his disability retirement allowance from the retirement system using the disabled employee’s actual total service.
  3. The system may pay estimated benefits to a disabled employee, upon qualification for disability retirement, based on an estimate of his Social Security and workers’ compensation benefits until the amounts are actually determined, at which time a final calculation of the member’s actual benefits shall be determined and his account corrected retroactive to his effective retirement date.
  4. Any increase in Social Security benefits or workers’ compensation benefits which becomes law, regardless of their effective date, subsequent to the disabled employee’s effective retirement date, shall not be considered in determination of the maximum benefit payable, as the maximum benefit payable is based on the amount of combined benefits under these programs as of the disabled employee’s effective retirement date.
  5. Any disabled recipient whose potential payments from the system were reduced as provided for in this section shall advise the system if his payments under the Federal Social Security Act or Workers’ Compensation Act cease at any time subsequent to his effective retirement date. Upon investigation, if the system determines that the disabled recipient continues to be eligible for disability benefits, the system may increase his retirement allowance by adding to his payment an amount equal to the reduction applied upon the effective retirement date in accordance with subsection (2) of this section.
  6. Subsequent to his or her effective retirement date, each disability recipient who is still eligible to receive disability payments based upon a total and permanent disability that occurred as a direct result of an act in line of duty as defined in Section 1 of this Act or a disablement that occurred as a result of a duty-related injury as defined in Section 3 of this Act, shall annually file on a form or via an electronic method established by the Authority, information on whether payments to the recipient have ceased or began under the Federal Social Security Act or Workers’ Compensation Act and the Authority shall make any necessary adjustments as provided by this section.

HISTORY: Enact. Acts 1974, ch. 128, § 31; 1976, ch. 321, § 40; 1984, ch. 232, § 7, effective July 13, 1984; 1988, ch. 349, § 20, effective July 15, 1988; 1992, ch. 240, § 31, effective July 14, 1992; 2021 ch. 106, § 7, effective June 29, 2021.

NOTES TO DECISIONS

1.Workers’ Compensation Benefits.

In determining a claimant’s combined monthly benefit under the statute, the retirement systems properly used the gross amount of his workers’ compensation award instead of the reduced amount he actually receives after deduction of attorney’s fees. Rue v. Kentucky Retirement Sys., 32 S.W.3d 87, 2000 Ky. App. LEXIS 49 (Ky. Ct. App. 2000).

Because it was clear that an annuity received by an injured worker was a substitute for workers’ compensation benefits he was entitled to as a result of his injury incident, the board of trustees properly determined that the injured worker had been overpaid disability benefits, and that his disability benefits were subject to offset pursuant to KRS 61.607 . Metzinger v. Ky. Ret. Sys., 2007 Ky. App. LEXIS 81 (Ky. Ct. App. Mar. 9, 2007).

Under KRS 61.607 , the Kentucky Retirement Systems could not consider the employee’s annuity payments in calculating his maximum disability benefit; the employee did not receive monthly payments from his original workers’ compensation award, and the legislature did not intend the statute to capture annuity payments exchanged for a workers’ compensation award. Metzinger v. Ky. Ret. Sys., 299 S.W.3d 541, 2009 Ky. LEXIS 188 ( Ky. 2009 ).

Under KRS 61.607 , the Kentucky Retirement Systems could not consider the employee’s annuity payments in calculating his maximum disability benefit; the employee did not receive monthly payments from his original workers’ compensation award, and the legislature did not intend the statute to capture annuity payments exchanged for a workers’ compensation award. Metzinger v. Ky. Ret. Sys., 299 S.W.3d 541, 2009 Ky. LEXIS 188 ( Ky. 2009 ).

Opinions of Attorney General.

Reading subdivision (b) (now (2)) of this section as a whole, “final monthly rate of pay” should be read as “final rate of pay,” since there is no indication the drafter of the statute had any intention to define final monthly rate of pay other than final rate of pay. OAG 82-329 (opinion prior to 1984 amendment).

Since there is a statutory definition of final rate of pay, but not one for final monthly rate of pay, the insertion of the term monthly in subdivision (b) (now (2)) of this section does not change the application of the term “final rate of pay,” since that rate is based, by definition, on the employee’s earnings “during the twelve (12) month period immediately preceding the member’s effective retirement date . . . . . ” Therefore, “final rate of pay” is in effect the employee’s “final monthly rate of pay” for the twelve (12) months prior to his date of retirement. OAG 82-329 (opinion prior to 1984 amendment).

61.607. Maximum disability benefit — Determination.

Notwithstanding any other provisions of KRS 16.505 to 16.652 or 61.510 to 61.705 , a maximum disability benefit is hereby established which shall apply, upon disability retirement, to any disabled employee’s account to which service credit is added to determine disability benefits or in any case where disability benefits are determined by computing a percentage of the disabled employee’s final monthly rate of pay. The maximum disability benefit shall be determined by the following formula:

  1. Add the monthly benefit payable to the disabled employee from the Kentucky Retirement Systems and the County Employees Retirement System, using the monthly disability retirement allowance without any reduction due to the selection of an optional payment plan under KRS 61.635 but excluding dependent children’s allowances, if any, to his monthly benefit, if any, from Social Security, even though these payments may not begin for a period of time as required for qualification under the federal Social Security law, excluding spouse or dependent benefits, and his monthly benefit, if any, from workers’ compensation, even though these payments may not have begun as of the date the disabled member applies for disability retirement benefits, excluding spouse or dependent children’s allowances, from workers’ compensation, to arrive at a projected combined monthly benefit.
  2. If the projected combined monthly benefit exceeds one hundred percent (100%) of the disabled employee’s final rate of pay or his final compensation, whichever is greater, his disability retirement allowance from the Kentucky Retirement Systems and the County Employees Retirement System shall be reduced to an amount which would cause his projected combined monthly benefit to equal one hundred percent (100%) of his final rate of pay or his final compensation, whichever is greater; however, the disability retirement allowance shall not be reduced below an amount which would result from a computation of his disability retirement allowance from the Kentucky Retirement Systems and the County Employees Retirement System using the disabled employee’s actual total service.
  3. The system may pay estimated benefits to a disabled employee, upon qualification for disability retirement, based on an estimate of his Social Security and workers’ compensation benefits until the amounts are actually determined, at which time a final calculation of the member’s actual benefits shall be determined and his account corrected retroactive to his effective retirement date.
  4. Any increase in Social Security benefits or workers’ compensation benefits which becomes law, regardless of their effective date, subsequent to the disabled employee’s effective retirement date, shall not be considered in determination of the maximum benefit payable, as the maximum benefit payable is based on the amount of combined benefits under these programs as of the disabled employee’s effective retirement date.
  5. Any disabled recipient whose potential payments from the system were reduced as provided for in this section shall advise the Authority if his payments under the Federal Social Security Act or Workers’ Compensation Act cease at any time subsequent to his effective retirement date. Upon investigation, if the system determines that the disabled recipient continues to be eligible for disability benefits, the system may increase his retirement allowance by adding to his payment an amount equal to the reduction applied upon the effective retirement date in accordance with subsection (2) of this section.
  6. The amount of combined disability benefit payments made to an individual on or after April 1, 2021, from the Kentucky Retirement Systems or the County Employees Retirement System shall not be increased as a result of the passage of this Act.

HISTORY: Enact. Acts 1974, ch. 128, § 31; 1976, ch. 321, § 40; 1984, ch. 232, § 7, effective July 13, 1984; 1988, ch. 349, § 20, effective July 15, 1988; 1992, ch. 240, § 31, effective July 14, 1992; 2021 ch. 102, § 63, effective June 29, 2021.

61.610. Employment and medical review after disability retirement — Filing of review forms — Duty of system to assist in obtaining records.

  1. Once each year following the retirement of a person on a disability retirement allowance, except for persons who become totally and permanently disabled as a direct result of an act in line of duty as defined in Section 1 of this Act or become disabled as a result of a duty-related injury as defined in Section 3 of this Act in which case shall be once every three (3) years following retirement, or less frequently as determined by the board’s medical examiner but not less than once every five (5) years, the system may require the person, prior to his normal retirement date, to undergo an employment and medical staff review and, if necessary, be required to file at the retirement office on the review form prescribed by the board current employment information and current medical information for the bodily injury, mental illness, or disease for which he receives a disability retirement allowance. The person shall have one hundred eighty (180) days from the day the system mailed the review form to the person’s last address on file in the retirement office to file at the retirement office the review form and the current employment and medical information. The person shall certify to the retirement office that the review form, including current employment and medical information, is ready to be evaluated by the medical examiner in accordance with KRS 61.615 .
  2. If, after good faith efforts, the person informs the system that he has been unable to obtain the employment or medical information, the system shall assist the person in obtaining the records and may use the authority granted pursuant to KRS 61.685(1) to obtain the records.
  3. If the person fails or refuses to file at the retirement office the review form, including the current employment and medical information, his retirement allowance shall be discontinued or reduced on the first day of the month following the expiration of the one hundred eighty (180) days from the day the system mailed the review form to the person’s last address on file in the retirement office. The system shall send notice of the discontinuance or reduction of the disability retirement allowance by United States first-class mail to the person’s last address on file in the retirement office. If the person’s benefits are discontinued or reduced under this section, his rights to further disability retirement allowances shall cease, except as provided by KRS 61.615 .
  4. The system shall hire or contract for the services of an investigator to investigate potential fraud involving disability benefits with the system. The investigator shall evaluate potential cases of disability fraud and conduct spot audits for potential fraud as determined by the system in cases involving members who become totally and permanently disabled as a direct result of an act in line of duty as defined in Section 1 of this Act or become disabled as a result of a duty-related injury as defined in Section 3 of this Act.

History. Enact. Acts 1956, ch. 110, § 21; 1962, ch. 58, § 13; 1972, ch. 116, § 39; 1988, ch. 349, § 41, effective July 15, 1988; 1988, ch. 387, § 2, effective July 15, 1988; 1992, ch. 240, § 32, effective July 14, 1992; 1998, ch. 105, § 13, effective July 15, 1998; 2004, ch. 36, § 17, effective July 13, 2004; 2021 ch. 106, § 8, effective June 29, 2021.

61.615. Disability retirement allowance — Reduction — Discontinuance — Medical examiners — Hearings and appeals — Early retirement upon discontinuance of disability allowance for member who began participating before January 1, 2014.

  1. If the board’s medical examiner determines that a recipient of a disability retirement allowance is, prior to his or her normal retirement date, employed in a position with the same or similar duties, or in a position with duties requiring greater residual functional capacity and physical exertion, as the position from which he or she was disabled, except where the recipient has returned to work on a trial basis not to exceed nine (9) months, the system may reduce or discontinue the retirement allowance. Each recipient of a disability retirement allowance who is engaged in gainful employment shall notify the system of any employment; otherwise, the system shall have the right to recover payments of a disability retirement allowance made during the employment.
  2. If the board’s medical examiner determines that a recipient of a disability retirement allowance is, prior to his or her normal retirement date, no longer incapacitated by the bodily injury, mental illness, or disease for which he or she receives a disability retirement allowance, the board may reduce or discontinue the retirement allowance.
  3. The system shall have full power and exclusive authority to reduce or discontinue a disability retirement allowance and the system shall utilize the services of a medical examiner as provided in KRS 61.665 , in determining whether to continue, reduce, or discontinue a disability retirement allowance under this section.
    1. The system shall select a medical examiner to evaluate the forms and medical information submitted by the person. If there is objective medical evidence of a mental impairment, the medical examiner may request the board’s licensed mental health professional to assist in determining the level of the mental impairment.
    2. The medical examiners shall be paid a reasonable amount by the retirement system for each case evaluated.
    3. The medical examiner shall recommend that disability retirement allowance be continued, reduced, or discontinued.
      1. If the medical examiner recommends that the disability retirement allowance be continued, the system shall make retirement payments in accordance with the retirement plan selected by the person.
      2. If the medical examiner recommends that the disability retirement allowance be reduced or discontinued, the system shall send notice of the recommendation by United States first-class mail to the person’s last address on file in the retirement office.
        1. The person shall have sixty (60) days from the day that the system mailed the notice to file at the retirement office additional supporting employment or medical information and certify to the retirement office that the forms and additional supporting employment information or medical information are ready to be evaluated by the medical examiner or to appeal the recommendation of the medical examiner to reduce or discontinue the disability retirement allowance by filing at the retirement office a request for a formal hearing.
        2. If the person fails or refuses to file at the retirement office the forms, the additional supporting employment information, and current medical information or to appeal the recommendation of the medical examiners to reduce or discontinue the disability retirement allowance, his or her retirement allowance shall be discontinued on the first day of the month following the expiration of the period of the sixty (60) days from the day the system mailed the notice of the recommendation to the person’s last address on file in the retirement office.
    4. The medical examiner shall make a recommendation based upon the evaluation of additional supporting medical information submitted in accordance with paragraph (c)2.a. of this subsection.
      1. If the medical examiner recommends that the disability retirement allowance be continued, the system shall make disability retirement payments in accordance with the retirement plan selected by the person.
      2. If the medical examiner recommends that the disability retirement allowance be reduced or discontinued based upon the evaluation of additional supporting medical information, the system shall send notice of this recommendation by United States first-class mail to the person’s last address on file in the retirement office.
        1. The person shall have sixty (60) days from the day that the system mailed the notice of the recommendation to appeal the recommendation to reduce or discontinue the disability retirement allowance by filing at the retirement office a request for formal hearing.
        2. If the person fails or refuses to appeal the recommendation of the medical examiners to reduce or discontinue the disability retirement allowance, his or her retirement allowance shall be discontinued on the first day of the month following the expiration of the period of the sixty (60) days from the day the system mailed the notice of the recommendation to the person’s last address on file in the retirement office.
    5. Any person whose disability benefits have been reduced or discontinued, pursuant to paragraph (c)2. or (d)2. of this subsection, may file at the retirement office a request for formal hearing to be conducted in accordance with KRS Chapter 13B. The right to demand a formal hearing shall be limited to a period of sixty (60) days after the person had notice, as described in paragraph (c) or (d) of this subsection. The request for formal hearing shall be filed with the system, at the retirement office in Frankfort. The request for formal hearing shall include a short and plain statement of the reasons the reduction, discontinuance, or denial of disability retirement is being contested.
    6. Failure of the person to request a formal hearing within the period of time specified shall preclude the person from proceeding any further with contesting the reduction or discontinuation of disability retirement allowance, except as provided in subsection (6)(d) of this section. This paragraph shall not limit the person’s right to appeal to a court.
    7. A final order of the board shall be based on substantial evidence appearing in the record as a whole and shall set forth the decision of the board and the facts and law upon which the decision is based. If the board orders that the person’s disability retirement allowance be discontinued or reduced, the order shall take effect on the first day of the month following the day the system mailed the order to the person’s last address on file in the retirement office. Judicial review of the final board order shall not operate as a stay and the system shall discontinue or reduce the person’s disability retirement allowance as provided in this section.
    8. Notwithstanding any other provisions of this section, the system may require the person to submit to one (1) or more medical or psychological examinations at any time. The system shall be responsible for any costs associated with any examinations of the person requested by the medical examiner or the system for the purpose of providing medical information deemed necessary by the medical examiner or the system. Notice of the time and place of the examination shall be mailed to the person or his or her legal representative. If the person fails or refuses to submit to one (1) or more medical examinations, his or her rights to further disability retirement allowance shall cease.
    9. All requests for a hearing pursuant to this section shall be made in writing.
  4. The board may establish an appeals committee whose members shall be appointed by the chair and who shall have the authority to act upon the recommendations and reports of the hearing officer pursuant to this section on behalf of the board.
  5. Any person aggrieved by a final order of the board may seek judicial review after all administrative appeals have been exhausted by filing a petition for judicial review in the Franklin Circuit Court in accordance with KRS Chapter 13B.
  6. If a disability retirement allowance is reduced or discontinued for a person who began participating in the system prior to January 1, 2014, the person may apply for early retirement benefits as provided under KRS 61.559 , subject to the following provisions:
    1. The person may not change his or her beneficiary or payment option, except as provided by KRS 61.542(5);
    2. If the person has returned to employment with an employer participating in one (1) of the systems administered by Kentucky Retirement Systems, the service and creditable compensation shall be used in recomputing his or her benefit, except that the person’s final compensation shall not be less than the final compensation last used in determining his or her retirement allowance;
    3. The benefit shall be reduced as provided by KRS 61.595(2);
    4. The person shall remain eligible for reinstatement of his or her disability allowance upon reevaluation by the medical review board until his or her normal retirement age. The person shall apply for reinstatement of disability benefits in accordance with the provisions of this section. An application for reinstatement of disability benefits shall be administered as an application under KRS 61.600 , and only the bodily injuries, mental illnesses, diseases, or conditions for which the person was originally approved for disability benefits shall be considered. Bodily injuries, mental illnesses, diseases, or conditions that came into existence after the person’s last day of paid employment shall not be considered as a basis for reinstatement of disability benefits. Bodily injuries, mental illnesses, diseases, or conditions alleged by the person as being incapacitating, but which were not the basis for the award of disability retirement benefits, shall not be considered. If the person establishes that the disability benefits should be reinstated, the retirement system shall pay disability benefits effective from the first day of the month following the month in which the person applied for reinstatement of the disability benefits; and
    5. Upon attaining normal retirement age, the person shall receive the higher of either his or her disability retirement allowance or his or her early retirement allowance.
  7. No disability retirement allowance shall be reduced or discontinued by the system after the person’s normal retirement date except in case of reemployment as provided for by KRS 61.637 . If a disability retirement allowance has been reduced or discontinued, except if the person is reemployed as provided for by KRS 61.637 , the retirement allowance shall be reinstated upon attainment of the person’s normal retirement date to the retirement allowance prior to adjustment. No reinstated payment shall be less than the person is receiving upon attainment of the person’s normal retirement date.

History. Enact. Acts 1956, ch. 110, § 22; 1962, ch. 58, § 14; 1972, ch. 116, § 40; 1976, ch. 321, § 23; 1978, ch. 311, § 16, effective June 17, 1978; 1988, ch. 349, § 21, effective July 15, 1988; 1992, ch. 240, § 33, effective July 14, 1992; 1994, ch. 473, § 1, effective July 15, 1994; 1994, ch. 485, § 17, effective July 15, 1994; 1996, ch. 167, § 28, effective July 15, 1996; 2004, ch. 36, § 18, effective July 13, 2004; 2009, ch. 77, § 15, effective June 25, 2009; 2013, ch. 120, § 60, effective July 1, 2013; 2021 ch. 96, § 7, effective June 29, 2021.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

Section 2 of Acts 1994, ch. 473 provides that: “Notwithstanding any provision to the contrary, subsections (4)(d) and (5) of Section 1 of this Act shall be suspended retroactively to July 15, 1988, and the suspension shall extend through December 31, 1994. Any disability retiree whose early retirement benefit was reduced by the actuarial value of the total amount of the disability retirement allowances received prior to reduction or discontinuance shall be paid the amount of the reduction between July 15, 1988 and December 31, 1994.”

NOTES TO DECISIONS

1.Continuing Incapacity.

Hearing officer’s recommendation that decedent’s retirement disability benefits be terminated was not supported by substantial evidence of decedent’s present incapacity. Pursuant to KRS 61.615(2), the evidence did not support a finding that decedent was presently no longer incapacitated, as the fact that decedent stopped receiving psychiatric counseling after decedent started receiving disability benefits only showed at most that decedent’s condition had improved and a psychologist’s suggestion that decedent’s depression and anxiety conditions would not be disabling with proper treatment did not show that decedent was not presently incapacitated. Bd. of Trs. of the Ky. Ret. Sys. v. Estate of Chaney, 253 S.W.3d 67, 2008 Ky. App. LEXIS 115 (Ky. Ct. App. 2008).

Opinions of Attorney General.

If the retirement board discontinues or reduces a disability retirement allowance of a recipient that individual would not have the right to request early retirement benefits under KRS 61.595 . OAG 77-319 .

The practical effect of Senate Bill 80 (1994 Kentucky Acts, ch. 473) is to work a suspension of paragraph 4(d) of this section and nothing else; the attempted suspension of subsection 5 of this section is meaningless. OAG 94-66 .

Research References and Practice Aids

ALR

Constitutionality, construction and application of statute or ordinance providing for reduction of pension or retirement benefit of public officer or employee because of independent income. 7 A.L.R.2d 692.

61.620. Disability retirement allowance — Cessation — Effect of reemployment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 110, § 23; 1962, ch. 58, § 15; 1968, ch. 26, § 2; 1972, ch. 116, § 41) was repealed by Acts 1976, ch. 321, § 41.

61.621. Fred Capps Memorial Act — Eligibility for benefits for duty-related injury — Benefits for surviving spouse and dependent children — Receipt of benefits under KRS 61.640 pending final determination.

  1. Notwithstanding any provision of any statutes to the contrary, effective June 1, 2000, any employee participating in one (1) of the state-administered retirement systems who is not in a hazardous duty position, as defined in KRS 61.592 , shall be eligible for minimum benefits equal to the benefits payable under this section or KRS 61.702 if the employee dies or becomes totally and permanently disabled to engage in any occupation for remuneration or profit as a result of a duty-related injury.
    1. For purposes of this section, “duty-related injury” means: (2) (a) For purposes of this section, “duty-related injury” means:
        1. A single traumatic event that occurs while the employee is performing the duties of his position; or 1. a. A single traumatic event that occurs while the employee is performing the duties of his position; or
        2. A single act of violence committed against the employee that is found to be related to his job duties, whether or not it occurs at his job site; and
      1. The event or act of violence produces a harmful change in the human organism evidenced by objective medical findings.
    2. “Duty-related injury” does not include the effects of the natural aging process, a communicable disease unless the risk of contracting the disease is increased by nature of the employment, or a psychological, psychiatric, or stress-related change in the human organism unless it is the direct result of a physical injury.
    1. If the employee dies as a result of a duty-related injury and is survived by a spouse, the surviving spouse shall be the beneficiary, and this shall supersede the designation of all previous beneficiaries of the deceased employee’s retirement account, except as provided in KRS 61.542(2)(e). (3) (a) If the employee dies as a result of a duty-related injury and is survived by a spouse, the surviving spouse shall be the beneficiary, and this shall supersede the designation of all previous beneficiaries of the deceased employee’s retirement account, except as provided in KRS 61.542(2)(e).
    2. The surviving spouse, provided he or she supersedes all previously designated beneficiaries, may elect to receive the benefits payable under KRS 61.640 or other applicable death benefit statutes, or may elect to receive a lump-sum payment of ten thousand dollars ($10,000) and a monthly payment equal to seventy-five percent (75%) of the member’s monthly average pay beginning in the month following the member’s death and continuing each month until the death of the surviving spouse.
    3. In addition, if the member is also survived by dependent children, monthly payments shall be made for each dependent child equal to ten percent (10%) of the deceased member’s monthly average pay, except that the combined maximum payment made to the:
      1. Surviving spouse and dependent children under this subsection shall not exceed one hundred percent (100%) of the deceased member’s monthly average pay; and
      2. Dependent children, while the surviving spouse is living, shall not exceed twenty-five percent (25%) of the deceased member’s monthly average pay. Payments made to the dependent children under this subsection shall be divided equally among all the dependent children.
  2. If the employee dies as a result of a duty-related injury and is not survived by a spouse but is survived by a dependent child or children, the following benefits shall be paid to the dependent child or children:
    1. Fifty percent (50%) of the deceased member’s monthly average pay, if the deceased member has one (1) dependent child;
    2. Sixty-five percent (65%) of the deceased member’s monthly average pay, if the deceased member has two (2) dependent children; or
    3. Seventy-five percent (75%) of the deceased member’s monthly average pay, if the deceased member has three (3) or more dependent children.

      Payments made to the dependent children under this subsection shall be divided equally among all the dependent children.

  3. If the employee is determined to be disabled as provided in KRS 61.600 , or other applicable disability statutes in any other state-administered retirement system, as the result of a duty-related injury, the employee may elect to receive benefits determined under the provisions of KRS 61.605 , or other applicable disability statutes in any other state-administered retirement system, except that:
    1. If an employee is working in a nonhazardous position that could be certified as a hazardous position based upon KRS 61.592 , the monthly retirement allowance shall not be less than seventy-five percent (75%) of the employee’s monthly average pay; or
    2. If an employee is working in a nonhazardous position that could not be certified as a hazardous position based upon KRS 61.592 , the monthly retirement allowance shall not be less than twenty-five percent (25%) of the employee’s monthly final rate of pay. For purposes of determining a disability that is the result of a duty related injury, the service requirement in KRS 61.600 (1)(a), or other applicable statutes in any other state-administered retirement system, shall be waived.
    1. In the period of time following the disability of a member covered by paragraph (5)(a) of this subsection during which dependent children survive, a monthly payment shall be made for each dependent child who is alive which shall be equal to ten percent (10%) of the disabled member’s monthly average pay, except that: (6) (a) In the period of time following the disability of a member covered by paragraph (5)(a) of this subsection during which dependent children survive, a monthly payment shall be made for each dependent child who is alive which shall be equal to ten percent (10%) of the disabled member’s monthly average pay, except that:
      1. Member and dependent children payments under this section shall not exceed one hundred percent (100%) of the member’s monthly average pay; and
      2. Total maximum dependent children’s benefits shall not exceed twenty-five percent (25%) of the member’s monthly average pay while the member is living and forty percent (40%) of the disabled member’s monthly average pay after the member’s death. The payment shall commence in the month following the date of disability of the member and shall be payable to the dependent children, or to a legally appointed guardian, or as directed by the system and shall be divided equally among all dependent children.
    2. In the period of time following the disability of a member covered by paragraph (5)(b) of this subsection during which dependent children survive, a monthly payment shall be made for each dependent child who is alive which shall be equal to ten percent (10%) of the disabled member’s monthly final rate of pay; except that total maximum dependent children’s benefits shall not exceed forty percent (40%) of the disabled member’s monthly final rate of pay at the time any particular payment is due. The payment shall commence in the month following the date of disability of the member and shall be payable to the dependent children, or to a legally appointed guardian, or as directed by the system.
  4. Benefits for death as a result of a duty-related injury to a dependent child shall be payable under this section notwithstanding an election by a surviving spouse or beneficiary to withdraw the deceased member’s accumulated account balance as provided in KRS 61.625 or benefits under any other provisions of KRS 61.515 to 61.705 or other applicable death benefit statutes in any other state-administered retirement system.
    1. A spouse applying for benefits under this section who is also eligible for benefits under KRS 61.640 may elect to receive benefits under KRS 61.640 (2)(a) or (b) while the application for benefits under this section is pending. (8) (a) A spouse applying for benefits under this section who is also eligible for benefits under KRS 61.640 may elect to receive benefits under KRS 61.640(2)(a) or (b) while the application for benefits under this section is pending.
    2. If a final determination results in a finding of eligibility for benefits under this section, the system shall recalculate the benefits due the spouse in accordance with this subsection.
    3. If the spouse has been paid less than the amount of benefits to which the spouse was entitled to receive under this section, the system shall pay the additional funds due to the spouse.
    4. If the spouse has been paid more than the benefit the spouse was eligible to receive under this section, then the system shall deduct the amount owed by the spouse from the ten thousand dollars ($10,000) lump-sum payment and from the monthly retirement allowance payments until the amount owed to the systems has been recovered.
  5. For purposes of this section, “dependent child” has the same meaning as in KRS 16.505 .
  6. This section shall be known as “The Fred Capps Memorial Act.”

HISTORY: Enact. Acts 2001, ch. 7, § 1, effective June 21, 2001; 2002, ch. 176, § 1, effective July 15, 2002; 2004, ch. 36, § 19, effective July 13, 2004; 2013, ch. 120, § 61, effective July 1, 2013; 2016 ch. 114, § 2, effective April 13, 2016; 2018 ch. 151, § 5, effective July 14, 2018; 2020 ch. 46, § 2, effective March 27, 2020; 2021 ch. 106, § 3, effective June 29, 2021.

Legislative Research Commission Notes.

(4/13/2018). This statute was amended in 2018 Ky. Acts ch. 151, sec. 5. Section 8 of that Act reads as follows:

“Notwithstanding KRS 16.505 to 16.652 , 61.510 to 61.705 , 78.510 to 78.852 , 161.220 to 161.716, or any provision of Sections 1 to 7 of this Act to the contrary, the Kentucky Retire- ment Systems shall provide the following ben- efit adjustments to surviving spouses and de- pendent children of those members who died prior to the effective date of this Act [April 13, 2018] and whose death was determined by the systems to be a direct result of an act in line of duty as defined in subsection (19) of Section 1 of this Act [KRS 16.505 ] or whose death resulted from a duty-related injury as defined in Section 5 of this Act [this statute]:

  1. In the month following the effective date of this Act [April 13, 2018], the surviving spouse, if the spouse is receiving a monthly benefit due to a member's death, shall have his or her monthly benefit increased to the amount specified by Section 2 or 5 of this Act [KRS 16.601 or this statute], as applicable, except that the amount shall not be increased above a level that exceeds 100 percent of the member's monthly average pay when combined with any dependent child payments from the systems;
  2. In the month following the effective date of this Act [April 13, 2018], any dependent child who is receiving a monthly benefit due to a member's death shall have his or her monthly benefit increased to the amount specified by Section 2 or 5 of this Act [KRS 16.601 or this statute], as applicable, if the member was not married at the time of death;
  3. In the month following the effective date of this Act [April 13, 2018], a surviving spouse who was married to the deceased member at the time of death but who was ineligible for monthly benefits payable to the surviving spouse under KRS 16.601 as codified prior to the effective date of this Act [April 13, 2018], shall receive the monthly benefit payable to the surviving spouse in Section 2 of this Act [KRS 16.601 ], provided the member's death occurred on or after January 1, 2017; and
  4. In the month following the effective date of this Act [April 13, 2018], any surviving spouse and any dependent child of a deceased member who is receiving a monthly benefit shall be eligible for the health benefits specified by Section 6 of this Act [KRS 61.702 ].

The provisions of this section shall only be construed to provide benefit adjustments to surviving spouses and dependent children of those members who died prior to the effective date of this Act [April 13, 2018] and only in situations where the member's death was de- termined by the systems to be the direct result of an act in line of duty as defined in subsection (19) of Section 1 of this Act [KRS 16.505 ] or resulted from a duty-related injury as defined in Section 5 of this Act [this statute].”

61.621. Fred Capps Memorial Act — Eligibility for benefits for duty-related injury — Benefits for surviving spouse and dependent children — Receipt of benefits under KRS 61.640 pending final determination.

  1. Notwithstanding any provision of any statutes to the contrary, effective June 1, 2000, any employee participating in one (1) of the state-administered retirement systems who is not in a hazardous duty position, as defined in KRS 61.592 or Section 6 of this Act, shall be eligible for minimum benefits equal to the benefits payable under this section or KRS 61.702 , or Section 14 of this Act, as applicable, if the employee dies or becomes totally and permanently disabled to engage in any occupation for remuneration or profit as a result of a duty-related injury.
    1. For purposes of this section,“duty-related injury” means: (2) (a) For purposes of this section,“duty-related injury” means:
        1. A single traumatic event that occurs while the employee is performing the duties of his position; or 1. a. A single traumatic event that occurs while the employee is performing the duties of his position; or
        2. A single act of violence committed against the employee that is found to be related to his job duties, whether or not it occurs at his job site; and
      1. The event or act of violence produces a harmful change in the human organism evidenced by objective medical findings.
    2. “Duty-related injury” does not include the effects of the natural aging process, a communicable disease unless the risk of contracting the disease is increased by nature of the employment, or a psychological, psychiatric, or stress-related change in the human organism unless it is the direct result of a physical injury.
    1. If the employee dies as a result of a duty-related injury and is survived by a spouse, the surviving spouse shall be the beneficiary, and this shall supersede the designation of all previous beneficiaries of the deceased employee’s retirement account, except as provided in KRS 61.542(2)(e). (3) (a) If the employee dies as a result of a duty-related injury and is survived by a spouse, the surviving spouse shall be the beneficiary, and this shall supersede the designation of all previous beneficiaries of the deceased employee’s retirement account, except as provided in KRS 61.542(2)(e).
    2. The surviving spouse, provided he or she supersedes all previously designated beneficiaries, may elect to receive the benefits payable under KRS 61.640 or other applicable death benefit statutes, or may elect to receive a lump-sum payment of ten thousand dollars ($10,000) and a monthly payment equal to seventy-five percent (75%) of the member’s monthly average pay beginning in the month following the member’s death and continuing each month until the death of the surviving spouse.
    3. In addition, if the member is also survived by dependent children, monthly payments shall be made for each dependent child equal to ten percent (10%) of the deceased member’s monthly average pay, except that the combined maximum payment made to the:
      1. Surviving spouse and dependent children under this subsection shall not exceed one hundred percent (100%) of the deceased member’s monthly average pay; and
      2. Dependent children, while the surviving spouse is living, shall not exceed twenty-five percent (25%) of the deceased member’s monthly average pay. Payments made to the dependent children under this subsection shall be divided equally among all the dependent children.
  2. If the employee dies as a result of a duty-related injury and is not survived by a spouse but is survived by a dependent child or children, the following benefits shall be paid to the dependent child or children:
    1. Fifty percent (50%) of the deceased member’s monthly average pay, if the deceased member has one (1) dependent child;
    2. Sixty-five percent (65%) of the deceased member’s monthly average pay, if the deceased member has two (2) dependent children; or
    3. Seventy-five percent (75%) of the deceased member’s monthly average pay, if the deceased member has three (3) or more dependent children.

      Payments made to the dependent children under this subsection shall be divided equally among all the dependent children.

  3. If the employee is determined to be disabled as provided in KRS 61.600 , or other applicable disability statutes in any other state-administered retirement system, as the result of a duty-related injury, the employee may elect to receive benefits determined under the provisions of KRS 61.605 , or other applicable disability statutes in any other state-administered retirement system, except that the monthly retirement allowance shall not be less than twenty-five percent (25%) of the employee’s monthly final rate of pay. For purposes of determining disability, the service requirement in KRS 61.600 (1)(a), or other applicable statutes in any other state-administered retirement system, shall be waived.
  4. In the period of time following a member’s disability during which dependent children survive, a monthly payment shall be made for each dependent child who is alive which shall be equal to ten percent (10%) of the disabled member’s monthly final rate of pay; however, total maximum dependent children’s benefits shall not exceed forty percent (40%) of the disabled member’s monthly final rate of pay at the time any particular payment is due. The payment shall commence in the month following the date of disability of the member and shall be payable to the beneficiaries, or to a legally appointed guardian, or as directed by the system.
  5. Benefits for death as a result of a duty-related injury to a dependent child shall be payable under this section notwithstanding an election by a surviving spouse or beneficiary to withdraw the deceased member’s accumulated account balance as provided in KRS 61.625 or benefits under any other provisions of KRS 61.515 to 61.705 or other applicable death benefit statutes in any other state-administered retirement system.
    1. A spouse applying for benefits under this section who is also eligible for benefits under KRS 61.640 or Section 12 of this Act may elect to receive benefits under KRS 61.640 (2)(a) or (b) or subsection (2)(a) or (b) of Section 12 of this Act while the application for benefits under this section is pending. (8) (a) A spouse applying for benefits under this section who is also eligible for benefits under KRS 61.640 or Section 12 of this Act may elect to receive benefits under KRS 61.640(2)(a) or (b) or subsection (2)(a) or (b) of Section 12 of this Act while the application for benefits under this section is pending.
    2. If a final determination results in a finding of eligibility for benefits under this section, the system shall recalculate the benefits due the spouse in accordance with this subsection.
    3. If the spouse has been paid less than the amount of benefits to which the spouse was entitled to receive under this section, the system shall pay the additional funds due to the spouse.
    4. If the spouse has been paid more than the benefit the spouse was eligible to receive under this section, then the system shall deduct the amount owed by the spouse from the ten thousand dollars ($10,000) lump-sum payment and from the monthly retirement allowance payments until the amount owed to the systems has been recovered.
  6. For purposes of this section, “dependent child” has the same meaning as in KRS 16.505 .
  7. This section shall be known as “The Fred Capps Memorial Act.”

HISTORY: Enact. Acts 2001, ch. 7, § 1, effective June 21, 2001; 2002, ch. 176, § 1, effective July 15, 2002; 2004, ch. 36, § 19, effective July 13, 2004; 2013, ch. 120, § 61, effective July 1, 2013; 2016 ch. 114, § 2, effective April 13, 2016; 2018 ch. 151, § 5, effective July 14, 2018; 2020 ch. 46, § 2, effective March 27, 2020; 2021 ch. 102, § 64, effective June 29, 2021.

61.623. Electronic fund transfer of retirement allowance required — Exceptions.

  1. A recipient who begins receiving a retirement allowance August 1, 2000, or after, from the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System shall have the retirement allowance paid by electronic fund transfer to a financial institution designated by the recipient except as provided by subsection (5) of this section.
  2. When an individual becomes eligible to receive a monthly retirement allowance, the retirement system shall provide an authorization for deposit of retirement payment form to the recipient to have the monthly retirement allowance deposited to an account in a financial institution.
  3. The recipient shall provide the information and authorization required for the electronic transfer of funds from the State Treasurer’s office to the designated financial institution.
  4. At any time while receiving a retirement allowance, the recipient may change the designated institution by completing a new authorization for deposit of retirement payment form and filing the form at the retirement office in Frankfort. The last authorization for deposit of retirement payment on file at the retirement office shall control the electronic transfer of the recipient’s retirement allowance.
    1. A recipient may request to be paid by check issued by the State Treasurer instead of by electronic transfer by completing and filing at the retirement office a request for payment by check form. (5) (a) A recipient may request to be paid by check issued by the State Treasurer instead of by electronic transfer by completing and filing at the retirement office a request for payment by check form.
    2. The request shall be approved if:
      1. The recipient certifies that he does not currently have an account with a financial institution; or
      2. The recipient’s bank certifies that it does not participate in the electronic funds transfer program.
    3. The retirement office shall, every five (5) years, require the recipient to certify that the original conditions under which he requested payment by check continue. If the original conditions do not exist, the recipient shall complete an authorization for direct deposit of retirement payment form and file it with the retirement office.

History. Enact. Acts 2000, ch. 385, § 30, effective July 14, 2000; 2004, ch. 36, § 20, effective July 13, 2004; 2008, ch. 89, § 1, effective July 15, 2008; 2009, ch. 77, § 16, effective June 25, 2009.

Compiler’s Notes.

Acts 2008, ch. 89, § 2 provides: “This Act shall be known as ‘The Clancy Barnes Act.’”

61.625. Refund of account balance or contributions.

    1. Prior to the member’s effective retirement date, a member if living, or if not living, his designated beneficiary, shall have the right to request a refund of his accumulated account balance if the member’s employment has been terminated and the member is not participating in the same system. (1) (a) Prior to the member’s effective retirement date, a member if living, or if not living, his designated beneficiary, shall have the right to request a refund of his accumulated account balance if the member’s employment has been terminated and the member is not participating in the same system.
    2. Upon the death of a member occurring on or after his or her effective retirement date, the member’s beneficiary shall have the right to request a refund of the member’s accumulated contributions, reduced by the amount of any retirement allowances previously received.
  1. Payments made under this section shall be in lieu of any other benefits due for the period of service under any of the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 , unless the period of service is regained as provided under KRS 61.552 . Payments of taxable distributions made pursuant to this section shall be subject to state and federal tax as appropriate.
  2. A refund of contributions of members whose benefits have been terminated pursuant to KRS 6.696 shall be governed by that section.
  3. A refund of contributions to members whose benefits have been terminated pursuant to KRS 61.535(3) shall be governed by the provisions of that subsection.

History. Enact. Acts 1956, ch. 110, § 24; 1960, ch. 165, part II, § 10; 1962, ch. 58, § 16; 1966, ch. 35, § 11; 1972, ch. 116, § 42; 1974, ch. 128, § 22; 1976, ch. 321, §§ 24, 40; 1982, ch. 166, § 23, effective July 15, 1982; 1982, ch. 423, § 9, effective July 15, 1982; 1984, ch. 232, § 1, effective July 13, 1984; 1986, ch. 90, § 16, effective July 15, 1986; 1992, ch. 240, § 34, effective July 14, 1992; 1993 (1st Ex. Sess.), ch. 4, § 77, effective September 16, 1993; 1994, ch. 485, § 18, effective July 15, 1994; 1998, ch. 105, § 14, effective July 15, 1998; 2000, ch. 385, § 21, effective July 14, 2000; 2013, ch. 120, § 62, effective July 1, 2013.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

Opinions of Attorney General.

A resigned state employee cannot receive service credit in the Kentucky Employees’ Retirement System for the time he spent as a county employee. OAG 61-695 .

Where member repaid accumulated contributions in attempting to regain prior service credit on an account which had previously been refunded to him, one-half (1/2) of the interest he paid should have been credited to the retirement allowance account and one-half (1/2) should have been credited to the member’s contribution account, which half would then be refundable to his beneficiary in the event of death as part of his accumulated contributions. OAG 74-193 .

Since this section provides that a payment of a refund of contributions to a member “shall be in lieu of any other benefits due for such period of service” under the provisions of the Kentucky Employees Retirement System, a member may not be permitted to receive a refund of his contributions and at the same time be permitted to reserve the right to seek disability or other retirement options. OAG 79-586 .

61.626. Transfer of contributions — Conditions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 116, § 43; 1976, ch. 321, § 40; 1980, ch. 186, § 10, effective July 15, 1980; 1988, ch. 349, § 22, effective July 15, 1988; 1992, ch. 240, § 35, effective July 14, 1992) was repealed by Acts 2009, ch. 77, § 30, effective June 25, 2009.

61.630. Death after retirement — Refund of contributions.

  1. If a retired member who did not elect an optional retirement plan dies at any time on or after the first day of the month in which the member received or would have received his or her first retirement allowance but before receiving total retirement allowances provided in KRS 16.510 to 16.652 , KRS 61.515 to 61.705 , and KRS 78.520 to 78.852 at least equal to his accumulated contributions as of the date of his or her retirement, the difference between the accumulated contributions and the total allowances shall be payable in a lump sum to the properly designated beneficiary. Except as otherwise provided by KRS 61.542(5), if a living person designated as the beneficiary predeceases the retired member, the estate shall become the beneficiary. Except as otherwise provided by KRS 61.542(5), if a spouse designated as the beneficiary is divorced from the retired member as of the member’s death, the estate shall become the beneficiary.
  2. If a retired member who elected an optional retirement plan and his or her beneficiary both die at any time on or after the first day of the month in which the member received or would have received his or her first retirement allowance but before receiving total retirement allowances provided in KRS 16.510 to 16.652 , KRS 61.515 to 61.705 , and KRS 78.520 to 78.852 at least equal to the retired member’s accumulated contributions as of the date of his or her retirement, the difference between the accumulated contributions and the total allowances shall be payable in a lump sum to the estate of the last deceased, except that the retired member’s estate shall receive the payment if the beneficiary was the spouse and they were divorced as of the date of the member’s death. If the retired member and beneficiary die simultaneously, the estate of the retired member shall become the beneficiary.
  3. If a beneficiary receiving a lifetime retirement allowance under KRS 16.578 or 61.640 dies before receiving total retirement allowances provided in KRS 16.510 to 16.652 , KRS 61.515 to 61.705 , and KRS 78.520 to 78.852 at least equal to the member’s accumulated contributions as of the date of the member’s death, the difference between the accumulated contributions and the total allowances shall be payable in a lump sum to the estate of the beneficiary.
  4. If a beneficiary receiving a retirement allowance for sixty (60) or one hundred twenty (120) months certain under KRS 16.576 , 16.578 , or 61.640 , or a beneficiary receiving a retirement allowance under KRS 61.635(5), (6), or (7), dies before receiving all payments under the plan, the executor or administrator of his or her estate shall receive a lump sum payment which shall be the actuarial equivalent to the remaining payments.
  5. If the system is unable to verify a recipient’s whereabouts or whether the recipient is living, the system shall suspend the recipient’s retirement allowance. If the recipient is located, the system shall restore to the recipient all suspended retirement allowances.

History. Enact. Acts 1956, ch. 110, § 25; 1960, ch. 165, part II, § 11; 1968, ch. 26, § 3; 1972, ch. 116, § 44; 1976, ch. 321, §§ 25, 40; 1980, ch. 186, § 21, effective July 15, 1980; 1986, ch. 90, § 30, effective July 15, 1986; 1992, ch. 240, § 36, effective July 14, 1992; 1996, ch. 167, § 13, effective July 15, 1996; 2004, ch. 36, § 21, effective July 13, 2004; 2009, ch. 77, § 17, effective June 25, 2009; 2010, ch. 173, § 5, effective July 15, 2010; 2021 ch. 96, § 8, effective June 29, 2021.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

Research References and Practice Aids

ALR

Rights in survival benefits under public pension or retirement plan as between designated beneficiary and heirs, legatees, or personal representative of deceased employee. 5 A.L.R.3d 644.

61.635. Optional retirement plans.

  1. Each member shall have the right to elect to have his retirement allowance payable under any one (1) of the options set forth in this section in lieu of the retirement allowance otherwise payable to him upon retirement under any of the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 . The amount of any optional retirement allowance shall be actuarially equivalent to the amount of retirement allowance otherwise payable to him.
  2. Survivorship one hundred percent (100%). The member may elect to receive a decreased retirement allowance during his lifetime and have the retirement allowance continued after his death to his beneficiary during the lifetime of the person.
  3. Survivorship sixty-six and two-thirds percent (66-2/3%). The member may elect to receive a decreased retirement allowance during his lifetime and have two-thirds (2/3) of the retirement allowance continue after his death to his beneficiary during the lifetime of the person.
  4. Survivorship fifty percent (50%). The member may elect to receive a decreased retirement allowance during his lifetime and have one-half (1/2) of the retirement allowance continued after his death to his beneficiary during the lifetime of the person.
  5. Life with ten (10) years certain. The member less than age seventy-six (76) may elect to receive a monthly retirement allowance during his lifetime which shall guarantee payments for one hundred twenty (120) months. If the member dies before receiving payments for one hundred twenty (120) months, his beneficiary shall receive the remaining payments monthly, for the duration of the one hundred twenty (120) months’ period. However, if the trust is designated as beneficiary, the trustee of the trust may elect to receive a lump-sum payment which shall be the actuarial equivalent to the remaining payments, or the trustee may elect to continue the remaining monthly payments to the trust of the member. If the estate is designated as beneficiary, the estate shall receive a lump-sum payment which shall be the actuarial equivalent to the remaining payments.
  6. Life with fifteen (15) years certain. The member less than age sixty-eight (68) may elect to receive a monthly retirement allowance during his lifetime which shall guarantee payments for one hundred and eighty (180) months. If the member dies before receiving payments for one hundred and eighty (180) months, his beneficiary shall receive the remaining payments monthly for the duration of the one hundred and eighty (180) months’ period. However, if the trust is designated as beneficiary, the trustee of the trust may elect to receive a lump-sum payment which shall be the actuarial equivalent to the remaining payments, or the trustee may elect to continue the remaining payments to the trust of the member. If the estate is designated as beneficiary, the estate shall receive a lump-sum payment which shall be the actuarial equivalent to the remaining payments.
  7. Life with twenty (20) years certain. The member less than age sixty-two (62) may elect to receive a monthly retirement allowance during his lifetime which shall guarantee payments for two hundred and forty (240) months. If the member dies before receiving payments for two hundred and forty (240) months, his beneficiary shall receive the remaining payments for the duration of the two hundred and forty (240) months period. However, if the trust is beneficiary, the trustee of the trust may elect to receive a lump-sum payment which shall be the actuarial equivalent to the remaining payments, or the trustee may elect to continue the remaining payments to the trust of the member. If the estate is designated as beneficiary, the estate shall receive a lump-sum payment which shall be the actuarial equivalent to the remaining payments.
  8. Social Security adjustment options. These options shall be available to any member who has not attained age sixty-two (62) as follows:
    1. No survivor rights. The member may elect to receive an increased retirement allowance from his effective retirement date through the month he attains age sixty-two (62) at which time his retirement allowance shall be decreased for the remainder of his lifetime;
    2. Survivor rights. The member may elect to receive an increased retirement allowance from his effective retirement date through the month he attains age sixty-two (62) based on the option payable under subsection (2) of this section, if the retirement allowance shall be decreased in the month following the month he attains age sixty-two (62), or the month following the month he would have attained age sixty-two (62), in event of his death, and have the retirement allowance continue after his death to his beneficiary during the lifetime of the person.
  9. Beneficiary Social Security adjustment option. This option is available to the beneficiary of a deceased member if the beneficiary, who is a person, has not attained age sixty (60), and is eligible to receive Social Security payments at age sixty (60). The beneficiary may elect to receive during his lifetime an increased retirement allowance based on his annual benefit payable for life. The payment shall begin on his effective retirement date and continue through the month he attains age sixty (60) at which time his retirement allowance shall be decreased for the remainder of his lifetime.
  10. Pop-up option. The member may elect to receive a decreased retirement allowance during his lifetime and have the retirement allowance continued after his death to his beneficiary during the lifetime of the person. If the beneficiary dies prior to the member, or if the beneficiary is the member’s spouse and they divorce, the member’s retirement allowance shall increase to the amount that would have been payable as a single life annuity.
  11. Actuarial equivalent refund. A member who began participating in the system prior to January 1, 2014, may elect to receive a one (1) time lump-sum payment which shall be the actuarial equivalent of the amount payable for a period of sixty (60) months under KRS 61.595 (1).
  12. Partial lump-sum option.
    1. No survivor rights. A member retiring on or before January 1, 2009, may elect to receive a one-time lump-sum payment equal to twelve (12), twenty-four (24), or thirty-six (36) monthly retirement allowances payable under the applicable retirement formula for the system and receive a reduced monthly retirement allowance payable for his or her lifetime. The lump-sum payment shall be paid in the month the first monthly retirement allowance is payable.
    2. Survivor rights. A member retiring on or before January 1, 2009, may elect to receive a one-time lump-sum payment equal to twelve (12), twenty-four (24), or thirty-six (36) monthly retirement allowances payable under subsection (2) of this section and receive a reduced monthly retirement allowance payable for his or her lifetime. The lump-sum payment shall be paid in the month the first monthly retirement allowance is payable. The reduced retirement allowance shall be continued after the member’s death to his beneficiary during the lifetime of the person.
  13. The other provisions of this section notwithstanding, the beneficiary of a retired member of the General Assembly shall, after the member’s death, receive sixty-six and two-thirds percent (66-2/3%) of the member’s retirement allowance during his or her lifetime if the member of the General Assembly began participating in the system prior to January 1, 2014, and has elected this option and has made contributions in accordance with subsection (14) of this section and of KRS 61.560 . The retirement allowance of the retired member of the General Assembly shall not be actuarially reduced to provide for this survivor benefit.
  14. A member of the General Assembly who began participating in the system prior to January 1, 2014, who wishes to obtain the survivorship option specified in subsection (13) of this section shall so notify the Kentucky retirement systems:
    1. Within thirty (30) days after first becoming a member of the General Assembly if he is not a member of the General Assembly on July 15, 1980; or
    2. Within thirty (30) days after July 15, 1980, if he is a member of the General Assembly on July 15, 1980.
  15. The system shall forward to members of the General Assembly a form on which a member who began participating in the system prior to January 1, 2014, may elect the option provided for in subsections (13) and (14) of this section.
  16. The options described in subsections (2), (3), (4), (8)(b), (10), (12)(b), and (13) of this section shall be extended to the member only if the designated beneficiary is a person.

History. Enact. Acts 1956, ch. 110, § 26; 1960, ch. 165, part II, § 12; 1962, ch. 58, § 17; 1964, ch. 86, § 5; 1968, ch. 26, § 4; 1972, ch. 116, § 45; 1974, ch. 128, § 23; 1976, ch. 321, § 26, 40; 1978, ch. 384, § 553, effective June 17, 1978; 1980, ch. 97, § 1, effective July 15, 1980; 1980, ch. 186, § 11, effective July 15, 1980; 1986, ch. 90, § 17, effective July 15, 1986; 1988, ch. 349, § 23, effective July 15, 1988; 1992, ch. 240, § 37, effective July 14, 1992; 1996, ch. 167, § 14, effective July 15, 1996; 2002, ch. 52, § 9, effective July 15, 2002; 2008 (1st Ex. Sess.), ch. 1, § 19, effective June 27, 2008; 2013, ch. 120, § 63, effective July 1, 2013.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

NOTES TO DECISIONS

1.Selecting Retirement Option.

In a dissolution of marriage case, a trial court did not abuse its discretion by refusing to award the wife damages and attorney’s fees as a result of the husband’s failure to consult with her prior to selecting the “life with 20 years certain” option on his Kentucky Employees Retirement System and State Police Retirement System accounts; the right to choose a retirement option belonged solely to the husband, and even if the wife had been informed of the husband’s decision, she had no legal right to force him to choose a different option. Overstreet v. Overstreet, 144 S.W.3d 834, 2003 Ky. App. LEXIS 315 (Ky. Ct. App. 2003).

61.637. Suspension of retirement payments on reemployment — Reinstatement — Recomputation of allowance — Waiver of provisions in certain instances — Reemployment in a different position — Effect of reemployment of retired member participating on or after September 1, 2008, except as provided by KRS 70.291 to 70.293.

  1. A retired member who is receiving monthly retirement payments under any of the provisions of KRS 61.510 to 61.705 and 78.510 to 78.852 and who is reemployed as an employee by a participating agency prior to August 1, 1998, shall have his or her retirement payments suspended for the duration of reemployment. Monthly payments shall not be suspended for a retired member who is reemployed if he or she anticipates that he or she will receive less than the maximum permissible earnings as provided by the Federal Social Security Act in compensation as a result of reemployment during the calendar year. The payments shall be suspended at the beginning of the month in which the reemployment occurs.
  2. Employer and employee contributions shall be made as provided in KRS 61.510 to 61.705 and 78.510 to 78.852 on the compensation paid during reemployment, except where monthly payments were not suspended as provided in subsection (1) of this section or would not increase the retired member’s last monthly retirement allowance by at least one dollar ($1), and the member shall be credited with additional service credit.
  3. In the month following the termination of reemployment, retirement allowance payments shall be reinstated under the plan under which the member was receiving payments prior to reemployment.
    1. Notwithstanding the provisions of this section, the payments suspended in accordance with subsection (1) of this section shall be paid retroactively to the retired member, or his or her estate, if he or she does not receive more than the maximum permissible earnings as provided by the Federal Social Security Act in compensation from participating agencies during any calendar year of reemployment. (4) (a) Notwithstanding the provisions of this section, the payments suspended in accordance with subsection (1) of this section shall be paid retroactively to the retired member, or his or her estate, if he or she does not receive more than the maximum permissible earnings as provided by the Federal Social Security Act in compensation from participating agencies during any calendar year of reemployment.
    2. If the retired member is paid suspended payments retroactively in accordance with this section, employee contributions deducted during his or her period of reemployment, if any, shall be refunded to the retired employee, and no service credit shall be earned for the period of reemployment.
    3. If the retired member is not eligible to be paid suspended payments for his or her period of reemployment as an employee, his or her retirement allowance shall be recomputed under the plan under which the member was receiving payments prior to reemployment as follows:
      1. The retired member’s final compensation shall be recomputed using creditable compensation for his or her period of reemployment; however, the final compensation resulting from the recalculation shall not be less than that of the member when his or her retirement allowance was last determined;
      2. If the retired member initially retired on or subsequent to his or her normal retirement date, his or her retirement allowance shall be recomputed by using the formula in KRS 61.595(1);
      3. If the retired member initially retired prior to his or her normal retirement date, his or her retirement allowance shall be recomputed using the formula in KRS 61.595(2), except that the member’s age used in computing benefits shall be his or her age at the time of his or her initial retirement increased by the number of months of service credit earned for service performed during reemployment;
      4. The retirement allowance payments resulting from the recomputation under this subsection shall be payable in the month following the termination of reemployment in lieu of payments under subparagraph 3. of this paragraph. The member shall not receive less in benefits as a result of the recomputation than he or she was receiving prior to reemployment or would receive as determined under KRS 61.691 ; and
      5. Any retired member who was reemployed prior to March 26, 1974, shall begin making contributions to the system in accordance with the provisions of this section on the first day of the month following March 26, 1974.
  4. A retired member, or his or her estate, shall pay to the retirement fund the total amount of payments which are not suspended in accordance with subsection (1) of this section if the member received more than the maximum permissible earnings as provided by the Federal Social Security Act in compensation from participating agencies during any calendar year of reemployment, except the retired member or his or her estate may repay the lesser of the total amount of payments which were not suspended or fifty cents ($0.50) of each dollar earned over the maximum permissible earnings during reemployment if under age sixty-five (65), or one dollar ($1) for every three dollars ($3) earned if over age sixty-five (65).
    1. “Reemployment” or “reinstatement” as used in this section shall not include a retired member who has been ordered reinstated by the Personnel Board under authority of KRS 18A.095 . (6) (a) “Reemployment” or “reinstatement” as used in this section shall not include a retired member who has been ordered reinstated by the Personnel Board under authority of KRS 18A.095 .
    2. A retired member who has been ordered reinstated by the Personnel Board under authority of KRS 18A.095 or by court order or by order of the Human Rights Commission and accepts employment by an agency participating in the Kentucky Employees Retirement System or County Employees Retirement System shall void his or her retirement by reimbursing the system in the full amount of his or her retirement allowance payments received.
    1. Effective August 1, 1998, the provisions of subsections (1) to (4) of this section shall no longer apply to a retired member who is reemployed in a position covered by the same retirement system from which the member retired. Reemployed retired members shall be treated as new members upon reemployment. Any retired member whose reemployment date preceded August 1, 1998, who does not elect, within sixty (60) days of notification by the retirement systems, to remain under the provisions of subsections (1) to (4) of this section shall be deemed to have elected to participate under this subsection. (7) (a) Effective August 1, 1998, the provisions of subsections (1) to (4) of this section shall no longer apply to a retired member who is reemployed in a position covered by the same retirement system from which the member retired. Reemployed retired members shall be treated as new members upon reemployment. Any retired member whose reemployment date preceded August 1, 1998, who does not elect, within sixty (60) days of notification by the retirement systems, to remain under the provisions of subsections (1) to (4) of this section shall be deemed to have elected to participate under this subsection.
    2. A retired member whose disability retirement was discontinued pursuant to KRS 61.615 and who is reemployed in one (1) of the systems administered by the Kentucky Retirement Systems or County Employees Retirement System prior to his or her normal retirement date shall have his or her accounts combined upon termination for determining eligibility for benefits. If the member is eligible for retirement, the member’s service and creditable compensation earned as a result of his or her reemployment shall be used in the calculation of benefits, except that the member’s final compensation shall not be less than the final compensation last used in determining his or her retirement allowance. The member shall not change beneficiary or payment option designations. This provision shall apply to members reemployed on or after August 1, 1998.
  5. If a retired member accepts employment or begins serving as a volunteer with an employer participating in the systems administered by Kentucky Retirement Systems or County Employees Retirement System within twelve (12) months of his or her retirement date, the retired member shall notify the Authority and the participating employer shall submit the information required or requested by the Authority to confirm the individual’s employment or volunteer status. The retired member shall not be required to notify the Authority regarding any employment or volunteer service with a participating agency that is accepted after twelve (12) months following his or her retirement date.
  6. If the retired member is under a contract to provide services as an independent contractor or leased employee to an employer participating in the systems administered by Kentucky Retirement Systems or County Employees Retirement System within twelve (12) months of his or her retirement date, the member shall submit a copy of that contract to the Authority, and the Authority shall determine if the member is an independent contractor or leased employee for purposes of retirement benefits. The retired member and the participating employer shall submit the information required or requested by the Authority to confirm the individual’s status as an independent contractor or leased employee. The retired member shall not be required to notify the Authority regarding any services entered into as an independent contractor or leased employee with a participating agency that the employee enters into after twelve (12) months following his or her retirement date.
  7. If a member is receiving a retirement allowance, or has filed the forms required for a retirement allowance, and is employed within one (1) month of the member’s initial retirement date in a position that is required to participate in the same retirement system from which the member retired, the member’s retirement shall be voided and the member shall repay to the retirement system all benefits received. The member shall contribute to the member account established for him or her prior to his or her voided retirement. The retirement allowance for which the member shall be eligible upon retirement shall be determined by total service and creditable compensation.
    1. If a member of the Kentucky Employees Retirement System retires from a department which participates in more than one (1) retirement system and is reemployed within one (1) month of his or her initial retirement date by the same department in a position participating in another retirement system, the retired member’s retirement allowance shall be suspended for the first month of his or her retirement, and the member shall repay to the retirement system all benefits received for the month. (11) (a) If a member of the Kentucky Employees Retirement System retires from a department which participates in more than one (1) retirement system and is reemployed within one (1) month of his or her initial retirement date by the same department in a position participating in another retirement system, the retired member’s retirement allowance shall be suspended for the first month of his or her retirement, and the member shall repay to the retirement system all benefits received for the month.
    2. A retired member of the County Employees Retirement System who after initial retirement is hired by the county from which the member retired shall be considered to have been hired by the same employer.
    1. If a hazardous member who retired prior to age fifty-five (55), or a nonhazardous member who retired prior to age sixty-five (65), is reemployed within six (6) months of the member’s termination by the same employer, the member shall obtain from his or her previous and current employers a copy of the job description established by the employers for the position and a statement of the duties performed by the member for the position from which he or she retired and for the position in which he or she has been reemployed. (12) (a) If a hazardous member who retired prior to age fifty-five (55), or a nonhazardous member who retired prior to age sixty-five (65), is reemployed within six (6) months of the member’s termination by the same employer, the member shall obtain from his or her previous and current employers a copy of the job description established by the employers for the position and a statement of the duties performed by the member for the position from which he or she retired and for the position in which he or she has been reemployed.
    2. The job descriptions and statements of duties shall be filed with the retirement office.
  8. If the retirement system determines that the retired member has been employed in a position with the same principal duties as the position from which the member retired:
    1. The member’s retirement allowance shall be suspended during the period that begins on the month in which the member is reemployed and ends six (6) months after the member’s termination;
    2. The retired member shall repay to the retirement system all benefits paid from systems administered by Kentucky Retirement Systems or County Employees Retirement System under reciprocity, including medical insurance benefits, that the member received after reemployment began;
    3. Upon termination, or subsequent to expiration of the six (6) month period from the date of termination, the retired member’s retirement allowance based on his or her initial retirement account shall no longer be suspended, and the member shall receive the amount to which he or she is entitled, including an increase as provided by KRS 61.691 ;
    4. Except as provided in subsection (7) of this section, if the position in which a retired member is employed after initial retirement is a regular full-time position, the retired member shall contribute to a second member account established for him or her in the retirement system. Service credit gained after the member’s date of reemployment shall be credited to the second member account; and
    5. Upon termination, the retired member shall be entitled to benefits payable from his or her second retirement account.
    1. If the retirement system determines that the retired member has not been reemployed in a position with the same principal duties as the position from which he or she retired, the retired member shall continue to receive his or her retirement allowance. (14) (a) If the retirement system determines that the retired member has not been reemployed in a position with the same principal duties as the position from which he or she retired, the retired member shall continue to receive his or her retirement allowance.
    2. If the position is a regular full-time position, the member shall contribute to a second member account in the retirement system.
    1. If a retired member is reemployed at least one (1) month after initial retirement in a different position, or at least six (6) months after initial retirement in the same position, and prior to normal retirement age, the retired member shall contribute to a second member account in the retirement system and continue to receive a retirement allowance from the first member account. (15) (a) If a retired member is reemployed at least one (1) month after initial retirement in a different position, or at least six (6) months after initial retirement in the same position, and prior to normal retirement age, the retired member shall contribute to a second member account in the retirement system and continue to receive a retirement allowance from the first member account.
    2. Service credit gained after reemployment shall be credited to the second member account. Upon termination, the retired member shall be entitled to benefits payable from the second member account.
  9. A retired member who is reemployed and contributing to a second member account shall not be eligible to purchase service credit under any of the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , or 78.510 to 78.852 which he or she was eligible to purchase prior to his or her initial retirement.
  10. Notwithstanding any provision of subsections (1) to (7)(a) and (10) to (15) of this section, the following shall apply to retired members who are reemployed by an agency participating in one (1) of the systems administered by Kentucky Retirement Systems or County Employees Retirement System on or after September 1, 2008:
    1. Except as provided by paragraphs (c) and (d) of this subsection, if a member is receiving a retirement allowance from one (1) of the systems administered by Kentucky Retirement Systems or County Employees Retirement System, or has filed the forms required to receive a retirement allowance from one (1) of the systems administered by Kentucky Retirement Systems or County Employees Retirement System, and is employed in a regular full-time position required to participate in one (1) of the systems administered by Kentucky Retirement Systems or County Employees Retirement System or is employed in a position that is not considered regular full-time with an agency participating in one (1) of the systems administered by Kentucky Retirement Systems or County Employees Retirement System within three (3) months following the member’s initial retirement date, the member’s retirement shall be voided, and the member shall repay to the retirement system all benefits received, including any health insurance benefits. If the member is returning to work in a regular full-time position required to participate in one (1) of the systems administered by Kentucky Retirement Systems:
      1. The member shall contribute to a member account established for him or her in one (1) of the systems administered by Kentucky Retirement Systems or County Employees Retirement System, and employer contributions shall be paid on behalf of the member by the participating employer; and
      2. Upon subsequent retirement, the member shall be eligible for a retirement allowance based upon total service and creditable compensation, including any additional service or creditable compensation earned after his or her initial retirement was voided;
    2. Except as provided by paragraphs (c) and (d) of this subsection, if a member is receiving a retirement allowance from one (1) of the systems administered by Kentucky Retirement Systems or County Employees Retirement System and is employed in a regular full-time position required to participate in one (1) of the systems administered by Kentucky Retirement Systems or County Employees Retirement System after a three (3) month period following the member’s initial retirement date, the member may continue to receive his or her retirement allowance during the period of reemployment subject to the following provisions:
      1. If a member is reemployed by a participating agency within twelve (12) months of the member’s retirement date, the participating agency shall certify in writing on a form prescribed by the Authority that no prearranged agreement existed between the employee and agency prior to the employee’s retirement for the employee to return to work with the participating agency. If an elected official is reelected to a new term of office in the same position and has retired from the elected office within twelve (12) months prior to taking the new term of office, he or she shall be deemed by the system as having a prearranged agreement under the provisions of this subparagraph and shall have his or her retirement voided. If the participating agency fails to complete the certification, the member’s retirement shall be voided and the provisions of paragraph (a) of this subsection shall apply to the member and the employer. Employment that is accepted by the retired member after twelve (12) months following the member’s retirement date shall not constitute a prearranged agreement under this paragraph;
      2. Notwithstanding any other provision of KRS Chapter 16, 61, or 78 to the contrary, the member shall not contribute to the systems and shall not earn any additional benefits for any work performed during the period of reemployment;
      3. Except as provided by KRS 70.291 to 70.293 , 95.022 , and 164.952 and except for any retiree employed as a school resource officer as defined by KRS 158.441, the employer shall pay employer contributions as specified by KRS 61.565 , 61.702 , and 78.635 , as applicable, on all creditable compensation earned by the employee during the period of reemployment. The additional contributions paid shall be used to reduce the unfunded actuarial liability of the systems; and
      4. Except as provided by KRS 70.291 to 70.293 , 95.022 , and 164.952 and except for any retiree employed as a school resource officer as defined by KRS 158.441, the employer shall be required to reimburse the systems for the cost of the health insurance premium paid by the systems to provide coverage for the retiree, not to exceed the cost of the single premium. Effective July 1, 2015, local school boards shall not be required to pay the reimbursement required by this subparagraph for retirees employed by the board for eighty (80) days or less during the fiscal year;
    3. If a member is receiving a retirement allowance from the State Police Retirement System or from hazardous duty retirement coverage with the Kentucky Employees Retirement System or the County Employees Retirement System, or has filed the forms required to receive a retirement allowance from the State Police Retirement System or from hazardous duty retirement coverage with the Kentucky Employees Retirement System or the County Employees Retirement System, and is employed in a regular full-time position required to participate in the State Police Retirement System or in a hazardous duty position with the Kentucky Employees Retirement System or the County Employees Retirement System within one (1) month following the member’s initial retirement date, the member’s retirement shall be voided, and the member shall repay to the retirement system all benefits received, including any health insurance benefits. If the member is returning to work in a regular full-time position required to participate in one (1) of the systems administered by Kentucky Retirement Systems or County Employees Retirement System:
      1. The member shall contribute to a member account established for him or her in one (1) of the systems administered by Kentucky Retirement Systems or County Employees Retirement System, and employer contributions shall be paid on behalf of the member by the participating employer; and
      2. Upon subsequent retirement, the member shall be eligible for a retirement allowance based upon total service and creditable compensation, including any additional service or creditable compensation earned after his or her initial retirement was voided;
    4. If a member is receiving a retirement allowance from the State Police Retirement System or from hazardous duty retirement coverage with the Kentucky Employees Retirement System or the County Employees Retirement System and is employed in a regular full-time position required to participate in the State Police Retirement System or in a hazardous duty position with the Kentucky Employees Retirement System or the County Employees Retirement System after a one (1) month period following the member’s initial retirement date, the member may continue to receive his or her retirement allowance during the period of reemployment subject to the following provisions:
      1. If a member is reemployed by a participating agency within twelve (12) months of the member’s retirement date, the participating agency shall certify in writing on a form prescribed by the Authority that no prearranged agreement existed between the employee and agency prior to the employee’s retirement for the employee to return to work with the participating agency. If an elected official is reelected to a new term of office in the same position and has retired from the elected office within twelve (12) months prior to taking the new term of office, he or she shall be deemed by the Authority as having a prearranged agreement under the provisions of this subparagraph and shall have his or her retirement voided. If the participating agency fails to complete the certification, the member’s retirement shall be voided and the provisions of paragraph (c) of this subsection shall apply to the member and the employer. Employment that is accepted by the retired member after twelve (12) months following the member’s retirement date shall not constitute a prearranged agreement under this paragraph;
      2. Notwithstanding any other provision of KRS Chapter 16, 61, or 78 to the contrary, the member shall not contribute to the systems and shall not earn any additional benefits for any work performed during the period of reemployment;
      3. Except as provided by KRS 70.291 to 70.293, 95.022, and 164.952 and except for any retiree employed as a school resource officer as defined by KRS 158.441, the employer shall pay employer contributions as specified by KRS 61.565 , 61.702 , and 78.635 , as applicable, on all creditable compensation earned by the employee during the period of reemployment. The additional contributions paid shall be used to reduce the unfunded actuarial liability of the systems;
      4. Except as provided by KRS 70.291 to 70.293, 95.022, and 164.952 and except for any retiree employed as a school resource officer as defined by KRS 158.441, the employer shall be required to reimburse the systems for the cost of the health insurance premium paid by the systems to provide coverage for the retiree, not to exceed the cost of the single premium;
    5. Notwithstanding paragraphs (a) to (d) of this subsection, a retired member who qualifies as a volunteer for an employer participating in one (1) of the systems administered by Kentucky Retirement Systems or County Employees Retirement System and who is receiving reimbursement of actual expenses, a nominal fee for his or her volunteer services, or both, shall not be considered an employee of the participating employer and shall not be subject to paragraphs (a) to (d) of this subsection if:
      1. Prior to the retired member’s most recent retirement date, he or she did not receive creditable compensation from the participating employer in which the retired member is performing volunteer services;
      2. Any reimbursement or nominal fee received prior to the retired member’s most recent retirement date has not been credited as creditable compensation to the member’s account or utilized in the calculation of the retired member’s benefits;
      3. The retired member has not purchased or received service credit under any of the provisions of KRS 61.510 to 61.705 or 78.510 to 78.852 for service with the participating employer for which the retired member is performing volunteer services; and
      4. Other than the status of volunteer, the retired member does not become an employee, leased employee, or independent contractor of the employer for which he or she is performing volunteer services for a period of at least twelve (12) months following the retired member’s most recent retirement date. If a retired member, who provided volunteer services with a participating employer under this paragraph violates any provision of this paragraph, then he or she shall be deemed an employee of the participating employer as of the date he or she began providing volunteer services and both the retired member and the participating employer shall be subject to paragraphs (a) to (d) of this subsection for the period of volunteer service;
    6. Notwithstanding any provision of this section, any mayor or member of a city legislative body shall not be required to resign from his or her position as mayor or as a member of the city legislative body in order to begin drawing benefits from the systems administered by Kentucky Retirement Systems or subject to any provision of this section as it relates solely to his or her service as a mayor or member of the city legislative body if the mayor or member of a city legislative body:
      1. Has not participated in the County Employees Retirement System prior to retirement, but is otherwise eligible to retire from the Kentucky Employees Retirement System or the State Police Retirement System; or
      2. Has been or is participating in the County Employees Retirement System and is at least sixty-two (62) years of age. If a mayor or member of a city legislative body who is at least sixty-two (62) years of age retires from the systems administered by Kentucky Retirement Systems but remains in office after his or her effective retirement date, the mayor or member of the city legislative body shall not accrue any further service credit or benefits in the systems administered by Kentucky Retirement Systems for any employment occurring on or after the effective retirement date;
    7. If a member is receiving a retirement allowance from any of the retirement systems administered by the Kentucky Retirement Systems or County Employees Retirement System and enters into a contract or becomes a leased employee of an employer under contract with an employer participating in one (1) of the systems administered by the Kentucky Retirement Systems or County Employees Retirement System:
      1. At any time following retirement, if the Authority determines the employment arrangement does qualify as an independent contractor or leased employee, the member may continue to receive his or her retirement allowance during the period of the contract;
      2. Within three (3) months following the member’s initial retirement date, if the Authority determines the employment arrangement does not qualify as an independent contractor or leased employee, the member’s retirement shall be voided in accordance with paragraph (a) of this subsection;
      3. After three (3) months but within twelve (12) months following the member’s initial retirement, if the Authority determines the employment arrangement does not qualify as an independent contractor or leased employee and that a prearranged agreement existed between the member and the agency for the member to return to work with the agency, the member’s retirement shall be voided in accordance with paragraph (a) of this subsection; and
      4. After a twelve (12) month period following the member’s initial retirement, the member may continue to receive his or her retirement allowance during the period of the contract and the member shall not be required to notify the system or submit any documentation for purposes of this section to the system. The initiation of a contract or the initial date of the leased employment of a retired member by a participating agency that occurs after twelve (12) months or more following the retired member’s retirement date shall not constitute a prearranged agreement under this subsection; and
    8. The Authority shall issue a final determination regarding a certification of the absence of a prearranged agreement or the retired member’s qualification as an independent contractor or leased employee as required under this section no later than thirty (30) days after the retired member and participating employer provide all required forms and additional information required by the Authority.
  11. The Authority shall promulgate administrative regulations to implement the requirements of this section, including incorporating by reference board-prescribed forms that a retired member and participating agency shall provide the systems under subsections (8), (9), and (17) of this section.

HISTORY: Enact. Acts 1966, ch. 35, § 17; 1970, ch. 101, § 8; 1972, ch. 116, § 46; 1974, ch. 128, § 24; 1976, ch. 321, § 27; 1978, ch. 311, § 17, effective June 17, 1978; 1978, ch. 384, § 17, effective June 17, 1978; 1980, ch. 186, § 12, effective July 15, 1980; 1982, ch. 448, § 64, effective July 15, 1982; 1986, ch. 90, § 18, effective July 15, 1986; 1992, ch. 240, § 38, effective July 14, 1992; 1994, ch. 485, § 19, effective July 15, 1994; 1996, ch. 167, § 15, effective July 15, 1996; 1998, ch. 75, § 1, effective July 15, 1998; 1998, ch. 105, § 28, effective July 15, 1998; 2000, ch. 210, § 5, effective July 14, 2000; 2000, ch. 385, § 22, effective July 14, 2000; 2001, ch. 41, § 1, effective June 21, 2001; 2002, ch. 52, § 10, effective July 15, 2002; 2008 (1st Ex. Sess.), ch. 1, § 20, effective June 27, 2008; 2011, ch. 52, § 3, effective June 8, 2011; 2014, ch. 96, § 4, effective July 15, 2014; 2015 ch. 25, § 1, effective June 24, 2015; 2016 ch. 25, § 3, effective July 15, 2016; 2016 ch. 68, § 1, effective July 15, 2016; 2016 ch. 78, § 2, effective July 15, 2016; 2018 ch. 171, § 20, effective April 13, 2018; 2018 ch. 207, § 20, effective April 27, 2018; 2018 ch. 107, § 28, effective July 14, 2018; 2019 ch. 127, § 2, effective June 27, 2019; 2019 ch. 161, § 2, effective June 27, 2019; 2019 ch. 189, § 1, effective June 27, 2019; 2020 ch. 79, § 25, effective April 1, 2021; 2020 ch. 121, § 10, effective July 15, 2020; 2021 ch. 102, § 65, effective April 1, 2021.

Compiler’s Notes.

The federal Social Security Act, referred to in (1), (4)(a) and (5), may be found as 42 USCS § 301 et seq.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

Legislative Research Commission Notes.

(4/1/2021). This statute was amended by 2020 Ky. Acts chs. 79 and 121, which do not appear to be in conflict and have been codified together.

(6/27/2019). This statute was amended by 2019 Ky. Acts chs. 127, 161, and 189. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 127, which was last enacted by the General Assembly, prevails under KRS 446.250 .

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 ( 2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

(6/27/2008). A manifest clerical or typographical error in 2008 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 20 (this statute), has been corrected in codification by the Reviser of Statutes under the authority of KRS 7.136(1)(h).

NOTES TO DECISIONS

1.Equitable Estoppel.

Equitable estoppel was properly invoked against the Kentucky Retirement Systems to prevent it from voiding an employee’s retirement benefits; exceptional equities were present when the confused employee violated KRS 61.637(10) after the employee relied on bad information from a benefits counselor charged with giving retirees accurate information. Ky. Ret. Sys. v. Fryrear, 316 S.W.3d 307, 2009 Ky. App. LEXIS 170 (Ky. Ct. App. 2009).

Retired employee was not disqualified from receiving state retirement benefits based on her part time and subsequent employment with a participating agency; the employee relied on the advice of her benefits counselor to her detriment when she retired believing that her work with the agency was not an issue. Ky. Ret. Sys. v. Stephens, 2015 Ky. App. LEXIS 144 (Ky. Ct. App. Oct. 9, 2015), review denied, ordered not published, 2016 Ky. LEXIS 281 (Ky. June 8, 2016).

2.Suspension of Benefits.

Regarding the reduction of retirement benefits, the overwhelming implication of KRS 61.692 and KRS 418.075 was that the Commonwealth had waived sovereign immunity, even if it was not clear that there was an express waiver of such as indicated by the language of the statutes themselves. That the Commonwealth could not successfully claim that the doctrine of sovereign immunity could bar a declaratory judgment action against it was evident in KRS 61.645(2)(a) that stated the Board could sue and be sued, which included the attempt under KRS 61.637(1) to reduce retiree benefits for those individuals who had returned to public employment and Ky. Const. § 231 stating that the legislature had to authority to waive immunity. Commonwealth v. Ky. Ret. Sys., 396 S.W.3d 833, 2013 Ky. LEXIS 84 ( Ky. 2013 ).

While the circuit court erred in considering the suspension of a retiree’s benefits in light of the parties’ stipulation, it properly reversed an order by the Kentucky Retirement System (KERS) that voided the retiree’s benefits after he became employed as a part-time bailiff within three months of his retirement because he contacted KERS several times regarding reemployment and the record reflected that KERS never discussed the severe penalty for violating reemployment rules, and its demand that the retiree repay approximately five years of earned retirement benefits because of work in a position that would never be eligible for retirement benefits was the sort of “gross inequity” that triggered the doctrine of equitable estoppel. Ky. Ret. Sys. v. Chamberlain, 558 S.W.3d 482, 2018 Ky. App. LEXIS 109 (Ky. Ct. App. 2018).

Opinions of Attorney General.

Subsection (2) precludes retired state employees who have been rehired full-time from contributing to the state retirement system and, as a result, pursuant to KRS 18.410(2) (now see KRS 18A.205(2)), these employees are not eligible for group life and group hospitalization insurance since they are not at the present time contributing members of the state retirement system. OAG 73-156 .

A person retired pursuant to KRS 61.535 who has been reemployed by the state on a full time basis and who is presently participating in the retirement system pursuant to this section may purchase military service credit under KRS 61.555 providing that the reemployed retired member meets the requisites of KRS 61.559 and such military service credit is to be applied to the formula set out in this section in recomputing the employee’s retirement benefits at the time of the termination of his reemployment. OAG 74-373 .

A retiree of the state or county, age 72 or older, may become reemployed by the state or county and continue receiving full retirement benefits because, after age 72, there is no limit on maximum permissible earnings. OAG 77-759 .

If retirement payments are suspended, member and employer contributions should be withheld from wages and service credit granted for reemployed retirees classified as seasonal, emergency, temporary or part-time. OAG 79-117 .

Retirement payments should be suspended for a retired member who is reemployed in a seasonal, emergency, temporary or part-time position if he anticipates that he will receive calendar year earnings equal or greater than the maximum permissible earnings as provided by the Federal Social Security Act. OAG 79-117 .

Where a member of the County Employees Retirement System (CERS) terminated his employment with a county clerk’s office on December 15, 1975, and began receiving retirement payments from the CERS effective in January, 1976, and meanwhile on December 1, 1975, he was employed by a city, which did not participate in the CERS until April, 1977, that individual was eligible to purchase service credit in the CERS for the period of time he worked for the city prior to its participation date in the CERS, even though he had already received retirement payments from the CERS. OAG 80-168 .

Retroactive amendment to subdivision (7)(a) of this section would “impair the obligations” of the “inviolable contract” of the Commonwealth created by KRS 61.510 to 61.705 thereby interfering with the vested rights of current members of the Kentucky Retirement Systems in violation of both the Contract Clause of the United States Constitution and Section 19 of the Kentucky Constitution. OAG 04-001 .

61.640. Death before retirement — Beneficiary’s options — Taxable distributions.

  1. If a member dies prior to the first day of the month in which the member would have received his or her first retirement allowance, the member’s beneficiary shall be eligible for the benefits provided by this section if the member had on file a written designation of a beneficiary with the retirement office as provided by KRS 61.542 and the member met the following conditions at the date of his or her death:
    1. The member was eligible to retire under KRS 61.559(2) or (3), 61.5956(5)(a) or (b), or 61.597(6)(a) or (b);
    2. The member was in active employment or on authorized leave of absence with five (5) or more years of service credit and died prior to his or her normal retirement date or was normal retirement age or older and had at least four (4) years of service credit; or
    3. The member was not in active employment or on authorized leave of absence with twelve (12) or more years of service credit and died prior to his or her normal retirement date.
  2. If the beneficiary eligible for benefits as provided in subsection (1) of this section is a single person, then the beneficiary may elect to receive:
    1. A monthly benefit payable for the life of the beneficiary that is equal to the benefit that would have been paid had the member retired immediately prior to his or her date of death and elected to receive benefits payable under the survivorship one hundred percent (100%) option as provided in KRS 61.635(2);
    2. A monthly benefit payable for the life of the beneficiary under the beneficiary Social Security adjustment option as provided in KRS 61.635(9) that is the actuarial equivalent to the amount computed under paragraph (a) of this subsection;
    3. A monthly benefit payable for a period of sixty (60) months that is the actuarial equivalent to the amount computed under paragraph (a) of this subsection;
    4. A monthly benefit payable for a period of one hundred twenty (120) months that is the actuarial equivalent to the amount computed under paragraph (a) of this subsection;
    5. If the member began participating in the system prior to January 1, 2014, a monthly benefit payable for:
      1. Sixty (60) months certain;
      2. One hundred twenty (120) months certain;
      3. The actuarial equivalent refund; or
      4. The Social Security adjustment option;

        that is equivalent to the benefit the member would have been entitled to receive based on his or her years of service and final compensation at the date of his or her death reduced by the survivorship fifty percent (50%) factor as provided for in KRS 61.635(4), then reduced by fifty percent (50%), and that is the actuarial equivalent to the amount computed under paragraph (a) of this subsection; or

    6. The higher of a refund of the member’s accumulated account balance as described in KRS 61.625(1) or one (1) time lump-sum payment which shall be the actuarial equivalent of the amount payable under paragraph (a) of this subsection for a period of sixty (60) months.
  3. If the beneficiary eligible for benefits as provided by subsection (1) of this section are multiple beneficiaries or a trust, then the multiple beneficiaries by consensus or the trustee may elect to receive the actuarial equivalent amounts payable under subsection (2)(c), (d), (e), or (f) of this section using the assumption that the beneficiary’s age is the same as the member’s age.
  4. If the beneficiary eligible for benefits as provided in subsection (1) of this section is the member’s estate, then the beneficiary shall receive the higher of a refund of the member’s accumulated account balance as described in KRS 61.625(1) or the one (1) time lump-sum payment payable under subsection (2)(f) of this section, using the assumption that the beneficiary’s age is the same as the member’s age.
  5. Payments of taxable distributions made pursuant to this section shall be subject to state and federal income tax as appropriate.

HISTORY: Enact. Acts 1956, ch. 110, § 27; 1960, ch. 165, part II, § 13; 1962, ch. 58, § 18; 1964, ch. 86, § 6; 1966, ch. 35, § 12; 1972, ch. 116, § 47; 1974, ch. 128, § 25; 1976, ch. 321, § 28; 1982, ch. 423, § 10, effective July 15, 1982; 1986, ch. 90, § 19, effective July 15, 1986; 1992, ch. 240, § 39, effective July 14, 1992; 1994, ch. 485, § 20, effective July 15, 1994; 1996, ch. 167, § 16, effective July 15, 1996; 1998, ch. 154, § 68, effective July 15, 1998; 2004, ch. 36, § 22, effective July 13, 2004; 2009, ch. 77, § 18, effective June 25, 2009; 2010, ch. 173, § 6, effective July 15, 2010; 2013, ch. 120, § 64, effective July 1, 2013; 2018 ch. 107, § 36, effective July 14, 2018; 2021 ch. 96, § 9, effective June 29, 2021.

Legislative Research Commission Notes.

(6/29/2021). 2021 Ky. Acts ch. 96, sec. 12 provides that the amendments to KRS 61.640 in 2021 Ky. Acts ch. 96, sec. 9 are retroactive to June 25, 2009.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

Compiler's Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

61.645. Board of trustees — Powers — Members — Executive director and other employees — Appeals — Other duties — Annual financial report — Trustee education program.

  1. The Kentucky Employees Retirement System and State Police Retirement System shall be administered by the board of trustees of the Kentucky Retirement Systems composed of nine (9) members, who shall be selected as follows:
    1. One (1) trustee, who shall be a member or retired from the State Police Retirement System, elected by the members and retired members of the State Police Retirement System;
    2. Two (2) trustees, who shall be members or retired from the Kentucky Employees Retirement System, elected by the members and retired members of the Kentucky Employees Retirement System;
    3. Six (6) trustees, appointed by the Governor of the Commonwealth, subject to Senate confirmation in accordance with KRS 11.160 for each appointment or reappointment. Of the six (6) trustees appointed by the Governor, three (3) trustees shall have investment experience and three (3) trustees shall have retirement experience;
    4. For purposes of paragraph (c) of this subsection, a trustee with “investment experience” means an individual who does not have a conflict of interest, as provided by KRS 61.655 , and who has at least ten (10) years of experience in one (1) of the following areas of expertise:
      1. A portfolio manager acting in a fiduciary capacity;
      2. A professional securities analyst or investment consultant;
      3. A current or retired employee or principal of a trust institution, investment or finance organization, or endowment fund acting in an investment-related capacity;
      4. A chartered financial analyst in good standing as determined by the CFA Institute; or
      5. A university professor, teaching investment-related studies; and
    5. For purposes of paragraph (c) of this subsection, a trustee with “retirement experience” means an individual who does not have a conflict of interest, as provided by KRS 61.655 , and who has at least ten (10) years of experience in one (1) of the following areas of expertise:
      1. Experience in retirement or pension plan management;
      2. A certified public accountant with relevant experience in retirement or pension plan accounting;
      3. An actuary with relevant experience in retirement or pension plan consulting;
      4. An attorney licensed to practice law in the Commonwealth of Kentucky with relevant experience in retirement or pension plans; or
      5. A current or former university professor whose primary area of emphasis is economics or finance.
  2. The board is hereby granted the powers and privileges of a corporation, including but not limited to the following powers:
    1. To sue and be sued in its corporate name;
    2. To make bylaws not inconsistent with the law;
    3. To conduct the business and promote the purposes for which it was formed;
    4. Except as provided in KRS 61.650(6), to contract for investment counseling, auditing, medical, and other professional or technical services as required to carry out the obligations of the board subject to KRS Chapters 45, 45A, 56, and 57. Actuarial consulting services shall be provided by a firm hired by the Kentucky Public Pensions Authority;
    5. To purchase fiduciary liability insurance;
    6. Except as provided in KRS 61.650(6), to acquire, hold, sell, dispose of, pledge, lease, or mortgage, the goods or property necessary to exercise the board’s powers and perform the board’s duties subject to KRS Chapters 45, 45A, and 56; and
    7. The board shall reimburse any trustee, officer, or employee for any legal expense resulting from a civil action arising out of the performance of his or her official duties. The hourly rate of reimbursement for any contract for legal services under this paragraph shall not exceed the maximum hourly rate provided in the Legal Services Duties and Maximum Rate Schedule promulgated by the Government Contract Review Committee established pursuant to KRS 45A.705 , unless a higher rate is specifically approved by the secretary of the Finance and Administration Cabinet or his or her designee.
    1. Notwithstanding the provisions of subsection (1) of this section, each trustee shall serve a term of four (4) years or until his or her successor is duly qualified except as otherwise provided in this section. An elected trustee or a trustee appointed by the Governor under subsection (1)(c) of this section, shall not serve more than three (3) consecutive four (4) year terms. An elected trustee or a trustee appointed by the Governor under subsection (1)(c) of this section, who has served three (3) consecutive terms may be elected or appointed again after an absence of four (4) years from the board. (3) (a) Notwithstanding the provisions of subsection (1) of this section, each trustee shall serve a term of four (4) years or until his or her successor is duly qualified except as otherwise provided in this section. An elected trustee or a trustee appointed by the Governor under subsection (1)(c) of this section, shall not serve more than three (3) consecutive four (4) year terms. An elected trustee or a trustee appointed by the Governor under subsection (1)(c) of this section, who has served three (3) consecutive terms may be elected or appointed again after an absence of four (4) years from the board.
    2. The term limits established by paragraph (a) of this subsection shall apply to trustees serving on or after July 1, 2012, and all terms of office served prior to July 1, 2012, shall be used to determine if the trustee has exceeded the term limits provided by paragraph (a) of this subsection.
    1. The trustees selected by the membership of each of the various retirement systems shall be elected by ballot. For each trustee to be elected, the board may nominate, not less than six (6) months before a term of office of a trustee is due to expire, three (3) constitutionally eligible individuals. (4) (a) The trustees selected by the membership of each of the various retirement systems shall be elected by ballot. For each trustee to be elected, the board may nominate, not less than six (6) months before a term of office of a trustee is due to expire, three (3) constitutionally eligible individuals.
    2. Individuals may be nominated by the retirement system members which are to elect the trustee by presenting to the executive director, not less than four (4) months before a term of office of a trustee is due to expire, a petition, bearing the name, last four (4) digits of the Social Security number, and signature of no less than one-tenth (1/10) of the number voting in the last election by the retirement system members.
    3. Within four (4) months of the nominations made in accordance with paragraphs (a) and (b) of this subsection, the executive director shall cause to be prepared an official ballot. The ballot shall include the name, address, and position title of each individual nominated by the board and by petition. Provisions shall also be made for write-in votes.
    4. Except as provided by paragraph (j) of this subsection, the ballots shall be distributed to the eligible voters by mail to their last known residence address.
    5. The ballots shall be addressed to the Kentucky Retirement Systems in care of a predetermined box number at a United States Post Office or submitted electronically as provided by paragraph (j) of this subsection. Access to this post office box shall be limited to the board’s contracted firm. The individual receiving a plurality of votes shall be declared elected.
    6. The eligible voter shall cast his or her ballot by selecting the candidate of his or her choice. He or she shall sign and mail the ballot or submit the electronic ballot at least thirty (30) days prior to the date the term to be filled is due to expire. The latest mailing date, or date of submission in the case of electronic ballots, shall be provided on the ballot.
    7. The board’s contracted firm shall report in writing the outcome to the chair of the board of trustees. Cost of an election shall be payable from the funds of the system for which the trustee is elected.
    8. For purposes of this subsection, an eligible voter shall be a person who was a member of the retirement system on December 31 of the year preceding the election year.
    9. Each individual who submits a request to be nominated by the board under paragraph (a) of this subsection and each individual who is nominated by the membership under paragraph (b) of this subsection shall:
      1. Complete an application developed by the retirement systems which shall include but not be limited to a disclosure of any prior felonies and any conflicts of interest that would hinder the individual’s ability to serve on the board;
      2. Submit a resume detailing the individual’s education and employment history and a cover letter detailing the member’s qualifications for serving as trustee to the board; and
      3. Authorize the systems to have a criminal background check performed. The criminal background check shall be performed by the Department of Kentucky State Police.
    10. In lieu of the ballots mailed to members and retired members as provided by this subsection, the systems may by promulgation of administrative regulation pursuant to KRS Chapter 13A conduct trustee elections using electronic ballots, except that the systems shall mail a paper ballot upon request of any eligible voter.
    1. Any vacancy which may occur in an appointed position during a term of office shall be filled in the same manner which provides for the selection of the particular trustee, and any vacancy which may occur in an elected position during a term of office shall be filled by appointment by a majority vote of the remaining elected trustees with a person selected from the system in which the vacancy occurs; however, any vacancy shall be filled only for the duration of the unexpired term. In the event of a vacancy of an elected trustee during a term of office, Kentucky Retirement Systems shall notify members of the system in which the vacancy occurs of the vacancy and the opportunity to be considered for the vacant position. Any vacancy during a term of office shall be filled within ninety (90) days of the position becoming vacant. (5) (a) Any vacancy which may occur in an appointed position during a term of office shall be filled in the same manner which provides for the selection of the particular trustee, and any vacancy which may occur in an elected position during a term of office shall be filled by appointment by a majority vote of the remaining elected trustees with a person selected from the system in which the vacancy occurs; however, any vacancy shall be filled only for the duration of the unexpired term. In the event of a vacancy of an elected trustee during a term of office, Kentucky Retirement Systems shall notify members of the system in which the vacancy occurs of the vacancy and the opportunity to be considered for the vacant position. Any vacancy during a term of office shall be filled within ninety (90) days of the position becoming vacant.
    2. Any appointments or reappointments to an appointed position on the board shall be made no later than thirty (30) days prior to an appointed member’s term of office ending.
    1. Membership on the board of trustees shall not be incompatible with any other office unless a constitutional incompatibility exists. No trustee shall serve in more than one (1) position as trustee on the board; and if a trustee holds more than one (1) position as trustee on the board, he or she shall resign a position. (6) (a) Membership on the board of trustees shall not be incompatible with any other office unless a constitutional incompatibility exists. No trustee shall serve in more than one (1) position as trustee on the board; and if a trustee holds more than one (1) position as trustee on the board, he or she shall resign a position.
    2. A trustee shall be removed from office upon conviction of a felony or for a finding of a violation of any provision of KRS 11A.020 or 11A.040 by a court of competent jurisdiction.
    3. A current or former employee of Kentucky Retirement Systems, County Employees Retirement System, or the Kentucky Public Pensions Authority shall not be eligible to serve as a member of the board.
  3. Trustees who do not otherwise receive a salary from the State Treasury shall receive a per diem of eighty dollars ($80) for each day they are in session or on official duty, and they shall be reimbursed for their actual and necessary expenses in accordance with state administrative regulations and standards.
    1. The board shall meet at least once in each quarter of the year and may meet in special session upon the call of the chair or the chief executive officer. (8) (a) The board shall meet at least once in each quarter of the year and may meet in special session upon the call of the chair or the chief executive officer.
    2. The board shall elect a chair and a vice chair. The chair shall not serve more than four (4) consecutive years as chair or vice-chair of the board. The vice-chair shall not serve more than four (4) consecutive years as chair or vice-chair of the board. A trustee who has served four (4) consecutive years as chair or vice-chair of the board may be elected chair or vice-chair of the board after an absence of two (2) years from the positions.
    3. A majority of the trustees shall constitute a quorum and all actions taken by the board shall be by affirmative vote of a majority of the trustees present.
    1. The board of trustees shall appoint or contract for the services of a chief executive officer and general counsel and fix the compensation and other terms of employment for for these without limitation of the provisions of KRS Chapters 18A and 45A and KRS 64.640 . The chief executive officer shall serve as the legislative and executive adviser to the board. The general counsel shall serve as legal adviser to the board. The chief executive officer and general counsel shall work with the executive director of the Kentucky Public Pensions Authority to carry out the provisions of KRS 16.505 to 16.652 and 61.510 to 61.705 . The executive director of the Kentucky Public Pensions Authority shall be the chief administrative officer of the board. (9) (a) The board of trustees shall appoint or contract for the services of a chief executive officer and general counsel and fix the compensation and other terms of employment for for these without limitation of the provisions of KRS Chapters 18A and 45A and KRS 64.640 . The chief executive officer shall serve as the legislative and executive adviser to the board. The general counsel shall serve as legal adviser to the board. The chief executive officer and general counsel shall work with the executive director of the Kentucky Public Pensions Authority to carry out the provisions of KRS 16.505 to 16.652 and 61.510 to 61.705 . The executive director of the Kentucky Public Pensions Authority shall be the chief administrative officer of the board.
    2. Prior to April 1, 2021, the board of trustees shall authorize the executive director to appoint the employees deemed necessary to transact the business of the system. Effective April 1, 2021, the responsibility of appointing employees and managing personnel needs shall be transferred to the Kentucky Public Pensions Authority established by KRS 61.505 .
    3. The board shall require the chief executive officer and may require the General Counsel to execute bonds for the faithful performance of his or her duties notwithstanding the limitations of KRS Chapter 62.
    4. The board shall have a system of accounting established by the Kentucky Public Pensions Authority.
    5. The board shall do all things, take all actions, and promulgate all administrative regulations, not inconsistent with the provisions of KRS 16.505 to 16.652 and 61.510 to 61.705, necessary or proper in order to carry out the provisions of KRS 16.505 to 16.652 and 61.510 to 61.705. Notwithstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that the provisions of KRS 16.505 to 16.652 and 61.510 to 61.705 conform with federal statute or regulation and meet the qualification requirements under 26 U.S.C. sec. 401(a) , applicable federal regulations, and other published guidance. Provisions of KRS 16.505 to 16.652 and 61.510 to 61.705 which conflict with federal statute or regulation or qualification under 26 U.S.C. sec. 401(a) , applicable federal regulations, and other published guidance shall not be available. The board shall have the authority to promulgate administrative regulations to conform with federal statute and regulation and to meet the qualification requirements under 26 U.S.C. sec. 401(a), including an administrative regulation to comply with 26 U.S.C. sec. 401(a)(9) .
    6. Notwithstanding any other provision of statute to the contrary, including but not limited to any provision of KRS Chapter 12, the Governor shall have no authority to change any provision of KRS 16.505 to 16.652 and 61.510 to 61.705 by executive order or action, including but not limited to reorganizing, replacing, amending, or abolishing the membership of the Kentucky Retirement Systems board of trustees.
  4. Notwithstanding any statute to the contrary, employees shall not be considered legislative agents under KRS 6.611 .
  5. The Attorney General, or an assistant designated by him or her, may attend each meeting of the board and may receive the agenda, board minutes, and other information distributed to trustees of the board upon request. The Attorney General may act as legal adviser and attorney for the board, and the board may contract for legal services, notwithstanding the limitations of KRS Chapter 12 or 13B.
    1. The system shall publish an annual financial report showing all receipts, disbursements, assets, and liabilities. The annual report shall include a copy of an audit conducted in accordance with generally accepted auditing standards. Except as provided by paragraph (b) of this subsection, the board may select an independent certified public accountant or the Auditor of Public Accounts to perform the audit. If the audit is performed by an independent certified public accountant, the Auditor of Public Accounts shall not be required to perform an audit pursuant to KRS 43.050(2)(a), but may perform an audit at his or her discretion. All proceedings and records of the board shall be open for inspection by the public. The system shall make copies of the audit required by this subsection available for examination by any member, retiree, or beneficiary in the offices of the Kentucky Public Pensions Authority and in other places as necessary to make the audit available to all members, retirees, and beneficiaries. A copy of the annual audit shall be sent to the Legislative Research Commission no later than ten (10) days after receipt by the board. (12) (a) The system shall publish an annual financial report showing all receipts, disbursements, assets, and liabilities. The annual report shall include a copy of an audit conducted in accordance with generally accepted auditing standards. Except as provided by paragraph (b) of this subsection, the board may select an independent certified public accountant or the Auditor of Public Accounts to perform the audit. If the audit is performed by an independent certified public accountant, the Auditor of Public Accounts shall not be required to perform an audit pursuant to KRS 43.050(2)(a), but may perform an audit at his or her discretion. All proceedings and records of the board shall be open for inspection by the public. The system shall make copies of the audit required by this subsection available for examination by any member, retiree, or beneficiary in the offices of the Kentucky Public Pensions Authority and in other places as necessary to make the audit available to all members, retirees, and beneficiaries. A copy of the annual audit shall be sent to the Legislative Research Commission no later than ten (10) days after receipt by the board.
    2. At least once every five (5) years, the Auditor of Public Accounts shall perform the audit described by this subsection, and the system shall reimburse the Auditor of Public Accounts for all costs of the audit. The Auditor of Public Accounts shall determine which fiscal year during the five (5) year period the audit prescribed by this paragraph will be completed.
  6. All expenses incurred by or on behalf of the system and the board in the administration of the system during a fiscal year shall be paid from the retirement allowance account, including any administrative expenses for the Kentucky Public Pensions Authority that are assigned to the Kentucky Retirement Systems by KRS 61.505 . The board shall submit any administrative expenses that are specific to the Kentucky Retirement Systems that are not otherwise covered by subsection (11)(a) of Section 76 of this Act.
  7. Any person adversely affected by a decision of the board, except as provided under subsection (16) of this section or KRS 61.665 , involving KRS 16.505 to 16.652 and 61.510 to 61.705 , may appeal the decision of the board to the Franklin Circuit Court within sixty (60) days of the board action.
    1. A trustee shall discharge his or her duties as a trustee, including his or her duties as a member of a committee: (15) (a) A trustee shall discharge his or her duties as a trustee, including his or her duties as a member of a committee:
      1. In good faith;
      2. On an informed basis; and
      3. In a manner he or she honestly believes to be in the best interest of the Kentucky Retirement Systems.
    2. A trustee discharges his or her duties on an informed basis if, when he or she makes an inquiry into the business and affairs of the Kentucky Retirement Systems or into a particular action to be taken or decision to be made, he or she exercises the care an ordinary prudent person in a like position would exercise under similar circumstances.
    3. In discharging his or her duties, a trustee may rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by:
      1. One (1) or more officers or employees of the Kentucky Retirement Systems whom the trustee honestly believes to be reliable and competent in the matters presented;
      2. Legal counsel, public accountants, actuaries, or other persons as to matters the trustee honestly believes are within the person’s professional or expert competence; or
      3. A committee of the board of trustees of which he or she is not a member if the trustee honestly believes the committee merits confidence.
    4. A trustee shall not be considered as acting in good faith if he or she has knowledge concerning the matter in question that makes reliance otherwise permitted by paragraph (c) of this subsection unwarranted.
    5. Any action taken as a trustee, or any failure to take any action as a trustee, shall not be the basis for monetary damages or injunctive relief unless:
      1. The trustee has breached or failed to perform the duties of the trustee’s office in compliance with this section; and
      2. In the case of an action for monetary damages, the breach or failure to perform constitutes willful misconduct or wanton or reckless disregard for human rights, safety, or property.
    6. A person bringing an action for monetary damages under this section shall have the burden of proving by clear and convincing evidence the provisions of paragraph (e)1. and 2. of this subsection, and the burden of proving that the breach or failure to perform was the legal cause of damages suffered by the Kentucky Retirement Systems.
    7. Nothing in this section shall eliminate or limit the liability of any trustee for any act or omission occurring prior to July 15, 1988.
    8. In discharging his or her administrative duties under this section, a trustee shall strive to administer the retirement system in an efficient and cost-effective manner for the taxpayers of the Commonwealth of Kentucky and shall take all actions available under the law to contain costs for the trusts, including costs for participating employers, members, and retirees.
  8. When an order by the system substantially impairs the benefits or rights of a member, retired member, or recipient, except action which relates to entitlement to disability benefits, or when an employer disagrees with an order of the system as provided by KRS 61.598 , the affected member, retired member, recipient, or employer may request a hearing to be held in accordance with KRS Chapter 13B. The board may establish an appeals committee whose members shall be appointed by the chair and who shall have authority to act upon the recommendations and reports of the hearing officer on behalf of the board. The member, retired member, recipient, or employer aggrieved by a final order of the board following the hearing may appeal the decision to the Franklin Circuit Court, in accordance with KRS Chapter 13B. The board may establish a joint administrative appeals committee with the County Employees Retirement System and may also establish a joint disability appeals committee with the County Employees Retirement System.
  9. The board shall give the Kentucky Education Support Personnel Association twenty-four (24) hours notice of the board meetings, to the extent possible.
  10. The board shall establish a formal trustee education program for all trustees of the board. The program shall include but not be limited to the following:
    1. A required orientation program for all new trustees elected or appointed to the board. The orientation program shall include training on:
      1. Benefits and benefits administration;
      2. Investment concepts, policies, and current composition and administration of retirement systems investments;
      3. Laws, bylaws, and administrative regulations pertaining to the retirement systems and to fiduciaries; and
      4. Actuarial and financial concepts pertaining to the retirement systems. If a trustee fails to complete the orientation program within one (1) year from the beginning of his or her first term on the board, the retirement systems shall withhold payment of the per diem and travel expenses due to the board member under this section and KRS 16.640 until the trustee has completed the orientation program;
    2. Annual required training for board members on the administration, benefits, financing, and investing of the retirement systems. If a trustee fails to complete the annual required training during the calendar or fiscal year, the retirement systems shall withhold payment of the per diem and travel expenses due to the board member under this section and KRS 16.640 until the board member has met the annual training requirements; and
    3. The retirement systems shall incorporate by reference in an administrative regulation, pursuant to KRS 13A.2251 , the trustee education program.
  11. In order to improve public transparency regarding the administration of the systems, the board of trustees shall adopt a best practices model by posting the following information to the Kentucky Public Pensions Authority’s Web site and shall make available to the public:
    1. Meeting notices and agendas for all meetings of the board. Notices and agendas shall be posted to the Kentucky Public Pensions Authority’s Web site at least seventy-two (72) hours in advance of the board or committee meetings, except in the case of special or emergency meetings as provided by KRS 61.823 ;
    2. The Comprehensive Annual Financial Report with the information as follows:
      1. A general overview and update on the retirement systems by the executive director;
      2. A listing of the board of trustees;
      3. A listing of key staff;
      4. An organizational chart;
      5. Financial information, including a statement of plan net assets, a statement of changes in plan net assets, an actuarial value of assets, a schedule of investments, a statement of funded status and funding progress, and other supporting data;
      6. Investment information, including a general overview, a list of the retirement system’s professional consultants, a total net of fees return on retirement systems investments over a historical period, an investment summary, contracted investment management expenses, transaction commissions, and a schedule of investments;
      7. The annual actuarial valuation report on the pension benefit and the medical insurance benefit; and
      8. A general statistical section, including information on contributions, benefit payouts, and retirement systems’ demographic data;
    3. All external audits;
    4. All board minutes or other materials that require adoption or ratification by the board of trustees. The items listed in this paragraph shall be posted within seventy-two (72) hours of adoption or ratification of the board;
    5. All bylaws, policies, or procedures adopted or ratified by the board of trustees;
    6. The retirement systems’ summary plan description;
    7. A document containing an unofficial copy of the statutes governing the systems administered by Kentucky Retirement Systems;
    8. A listing of the members of the board of trustees and membership on each committee established by the board, including any investment committees;
    9. All investment holdings in aggregate, fees, and commissions for each fund administered by the board, which shall be updated on a quarterly basis for fiscal years beginning on or after July 1, 2017. The systems shall request from all managers, partnerships, and any other available sources all information regarding fees and commissions and shall, based on the requested information received:
      1. Disclose the dollar value of fees and commissions paid to each individual manager or partnership;
      2. Disclose the dollar value of any profit sharing, carried interest, or any other partnership incentive arrangements, partnership agreements, or any other partnership expenses received by or paid to each manager or partnership; and
      3. As applicable, report each fee or commission by manager or partnership consistent with standards established by the Institutional Limited Partners Association (ILPA). In addition to the requirements of this paragraph, the systems shall also disclose the name and address of all individual underlying managers or partners in any fund of funds in which system assets are invested;
    10. An update of net of fees investment returns, asset allocations, and the performance of the funds against benchmarks adopted by the board for each fund, for each asset class administered by the board, and for each manager. The update shall be posted on a quarterly basis for fiscal years beginning on or after July 1, 2017;
    11. A searchable database of the systems’ expenditures and a listing of each individual employed by the systems along with the employee’s salary or wages. In lieu of posting the information required by this paragraph to the Kentucky Public Pensions Authority’s Web site, the systems may provide the information through a Web site established by the executive branch to inform the public about executive branch agency expenditures and public employee salaries and wages;
    12. All contracts or offering documents for services, goods, or property purchased or utilized by the systems; and
    13. Information regarding the systems’ financial and actuarial condition that is easily understood by the members, retired members, and the public.
  12. Notwithstanding the requirements of subsection (19) of this section, the retirement systems shall not be required to furnish information that is protected under KRS 61.661 , exempt under KRS 61.878 , or that, if disclosed, would compromise the retirement systems’ ability to competitively invest in real estate or other asset classes, except that no provision of this section or KRS 61.878 shall exclude disclosure and review of all contracts, including investment contracts, by the board, the Auditor of Public Accounts, and the Government Contract Review Committee established pursuant to KRS 45A.705 or the disclosure of investment fees and commissions as provided by this section. If any public record contains material which is not excepted under this section, the systems shall separate the excepted material by removal, segregation, or redaction, and make the nonexcepted material available for examination.
  13. Notwithstanding any other provision of KRS 16.505 to 16.652 and 61.510 to 61.705 to the contrary, no funds of the systems administered by Kentucky Retirement Systems, including fees and commissions paid to an investment manager, private fund, or company issuing securities, who manages systems assets, shall be used to pay fees and commissions to placement agents. For purposes of this subsection, “placement agent” means a third-party individual, who is not an employee, or firm, wholly or partially owned by the entity being hired, who solicits investments on behalf of an investment manager, private fund, or company issuing securities.

HISTORY: Enact. Acts 1956, ch. 110, § 28; 1956 (1st Ex. Sess.), ch. 7, Art. XV; 1960, ch. 165, part II, § 14; 1962, ch. 58, § 19; 1972, ch. 116, § 48; 1974, ch. 128, § 26; 1976, ch. 321, § 29, 40; 1978, ch. 110, § 100, effective January 1, 1979; 1980, ch. 186, § 13, effective July 15, 1980; 1980, ch. 246, § 8, effective July 15, 1980; 1982, ch. 448, § 65, effective July 15, 1982; 1984, ch. 232, § 2, effective July 13, 1984; 1986, ch. 90, § 20, effective July 15, 1986; 1988, ch. 349, § 24, effective July 15, 1988; 1988, ch. 351, § 3, effective July 15, 1988; 1990, ch. 299, § 1, effective July 13, 1990; 1990, ch. 489, § 6, effective July 13, 1990; 1990, ch. 496, § 39, effective July 13, 1990; 1992, ch. 240, § 40, effective July 14, 1992; 1992, ch. 437, § 1, effective July 14, 1992; 1994, ch. 406, § 3, effective July 15, 1994; 1994, ch. 485, § 21, effective July 15, 1994; 1996, ch. 167, § 17, effective July 15, 1996; 1996, ch. 318, § 29, effective July 15, 1996; 1998, ch. 105, § 15, effective July 15, 1998; 1998, ch. 154, § 59, effective July 15, 1998; 1998, ch. 246, § 2, effective July 15, 1998; 2000, ch. 385, § 23, effective July 14, 2000; 2002, ch. 52, § 11, effective July 15, 2002; 2003, ch. 169, § 10, effective March 31, 2003; 2004, ch. 36, § 23, effective July 13, 2004; 2008 (1st Ex. Sess.), ch. 1, § 21, effective June 27, 2008; 2009, ch. 77, § 19, effective June 25, 2009; 2010, ch. 127, § 1, effective July 15, 2010; 2012, ch. 75, § 8, effective April 11, 2012; 2013, ch. 120, § 65, effective July 1, 2013; 2017 ch. 12, § 3, effective March 10, 2017; 2019 ch. 182, § 1, effective June 27, 2019; 2020 ch. 79, § 4, effective April 1, 2021; 2021 ch. 102, § 66, effective April 1, 2021.

Legislative Research Commission Notes.

(4/1/2021). This statute was amended by Section 4 of 2020 Ky. Acts ch. 79. Section 46 of that Act reads as follows: “The three trustees elected by the County Employees Retirement System membership to serve a term on the Kentucky Retirement Systems board of trustees that includes April 1, 2021, shall serve as the three elected trustees of the County Employees Retirement System board of trustees as provided by Section 3 of this Act and shall serve for the duration of the terms for which they were elected. The two trustees elected by the Kentucky Employees Retirement System membership and the one trustee elected by the State Police Retirement System membership who are serving as trustees of the Kentucky Retirement Systems board of trustees immediately prior to the effective date of this Act shall serve as the three elected trustees of the Kentucky Retirement Systems board of trustees as provided by Section 4 of this Act and shall serve for the duration of the terms for which they were elected. The three trustees who were appointed by a Governor to the Kentucky Retirement Systems board prior to April 1, 2021, who were selected by a Governor from lists submitted by the Kentucky Association of Counties, the Kentucky League of Cities, and the Kentucky School Boards Association and serving on the Kentucky Retirement Systems board immediately prior to April 1, 2021, shall, notwithstanding any other provision of Section 3 of this Act to the contrary, serve on the County Employees Retirement System board of trustees as provided by Section 3 of this Act for the duration of their term of office and shall be considered the three trustees appointed by the Governor who have retirement experience as provided by subsection (1)(b) and (1)(d) of Section 3 of this Act. Notwithstanding any other provision of Section 4 of this Act [this statute] to the contrary, the six trustees with investment experience appointed by a Governor to the Kentucky Retirement Systems board prior to April 1, 2021, and serving on the Kentucky Retirement Systems board immediately prior to April 1, 2021, shall serve for the duration of their term of office as the appointed trustees with investment experience and retirement experience of the newly constituted Kentucky Retirement Systems board of trustees effective April 1, 2021.”

(4/1/2021). This statute was amended by Section 4 of 2020 Ky. Acts ch. 79. In that Act, Section 48 (effective 4/7/2020) reads as follows: “Notwithstanding any other provision of statute to the contrary, including but not limited to any provision of KRS Chapter 12: (1) The Governor shall have no authority to change any provision of KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 as it relates to reorganizing, replacing, amending, or abolishing the membership of the County Employees Retirement System board of trustees as provided by Section 3 of this Act, the Kentucky Retirement Systems board of trustees as provided by KRS 61.645 , or the Kentucky Public Pensions Authority as provided by Section 2 of this Act; and (2) Effective April 1, 2021, the board of trustees of the Kentucky Retirement Systems and the County Employees Retirement System shall include the number and composition of the boards established by Sections 3, and 4 [this statute], 46, and 47 of this Act, as applicable respectively.”

(6/27/2019). Section 5 of 2019 Ky. Acts ch. 182 reads, “Notwithstanding the provisions of Section 1 of this Act [this statute] or 2013 Ky. Acts ch. 120 to the contrary, the successor of the County Employees Retirement System trustee whose election as trustee was completed in accordance with 2013 Ky. Acts ch. 120, sec. 82, shall be elected during the period of January 1, 2021, through March 31, 2021, in accordance with procedures set forth in Section 1 of this Act [this statute] and the election policy adopted by the board of trustees, but shall not take office until November 1, 2021, and shall serve a term of office ending March 31, 2025.”

(3/10/2017). 2017 Ky. Acts ch. 12, sec. 12 provided that amendments made to subsections (2) and (21) of this statute in 2017 Ky. Acts ch. 12, sec. 3 governing placement agents and contracts or offerings entered into by the state-administered retirement systems shall apply to contracts and offerings established or contracts or offerings renewed on or after July 1, 2017.

(3/10/2017). 2017 Ky. Acts ch. 12, sec. 13 provided that amendments made to subsection (2) of this statute in 2017 Ky. Acts ch. 12, sec. 3 governing the application of the Model Procurement Code, KRS Chapter 45A, and related statutes to the state-administered retirement systems, shall apply to contracts and offerings established or contracts or offerings renewed on or after July 1, 2017.

(3/10/2017). 2017 Ky. Acts ch. 12, sec. 14 provided that amendments made to subsection (1)(e) of this statute in 2017 Ky Acts ch. 12, sec. 14 provided that amendments made to subsection (1)(e) of this statute in 2017 Ky. Acts ch. 12, sec. 3 that require Senate confirmation of, and modify the requirements for, gubernatorial appointments to the Judicial Form Retirement System and the Kentucky Retirement Systems board of trustees shall apply to appointments or reappointments made on or after March 10, 2017, the effective date of that Act.

(4/11/2012). 2012 Ky. Acts ch. 75, sec. 18, provides that the amendments made to subsection (21) of this statute regarding unregulated placement agents by 2012 Ky. Acts ch. 75, sec. 8, “shall apply to contracts established or contracts renewed on or after July 1, 2012.”

(6/27/2008). The Reviser of Statutes has altered the numbering of subsection (18)(a) of this statute from the way it appears in 2008 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 21, under the authority of KRS 7.136(1)(c).

(6/27/2008). 2008 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 44, provides “The provisions of subsection (3) of Section 21 of this Act (this statute)... that reduce the term limits of elected or appointed members of the board of trustees of the Kentucky Retirement Systems... shall apply to terms of office beginning after July 1, 2008.”

NOTES TO DECISIONS

1.In General.

Retiree’s declaratory judgment action was dismissed because the highest court held that the retiree was required by KRS 61.645 to exhaust KRS ch. 13B administrative remedies before she could appeal a final order of the Kentucky Employees Retirement Systems based upon the constitutionality of 105 KAR 1:210 that a hearing officer had held was to be applied or based upon her argument that § 1:210 as it was going to be applied was in conflict with KRS 61.665(2)(e). Ky. Ret. Sys. v. Lewis, 163 S.W.3d 1, 2005 Ky. LEXIS 85 ( Ky. 2005 ).

Regarding the reduction of retirement benefits, the overwhelming implication of KRS 61.692 and KRS 418.075 was that the Commonwealth had waived sovereign immunity, even if it was not clear that there was an express waiver of such as indicated by the language of the statutes themselves. That the Commonwealth could not successfully claim that the doctrine of sovereign immunity could bar a declaratory judgment action against it was evident in KRS 61.645(2)(a) that stated the Board could sue and be sued, which included the attempt under KRS 61.637(1) to reduce retiree benefits for those individuals who had returned to public employment and Ky. Const. § 231 stating that the legislature had to authority to waive immunity. Commonwealth v. Ky. Ret. Sys., 396 S.W.3d 833, 2013 Ky. LEXIS 84 ( Ky. 2013 ).

Cited:

Jones v. Board of Trustees, 910 S.W.2d 710, 1995 Ky. LEXIS 131 ( Ky. 1995 ).

Opinions of Attorney General.

KRS chapter 18 (now repealed) and regulations issued pursuant thereto do not control the payment of unused leave to the executive secretary of the Kentucky Employees Retirement System, and he is entitled to such leave. OAG 69-291 .

Where the commissioner of personnel indicated his approval of the worth of a salary increase for the executive secretary of the state and county retirement systems but denied it on the basis of the limitations set by KRS 64.640 which did not apply to the position, it was an abuse of discretion to deny the increase. OAG 71-369 .

No county or city officer may be a member of the board of trustees of the Kentucky Retirement System. OAG 72-594 .

Employee of the Legislative Research Commission is not an employee of the legislative branch of government within the meaning of Const., §§ 27, 28 and 249 and therefore such employee would not be prohibited from being appointed to the board of trustees of the Kentucky Employees’ Retirement System. OAG 73-817 .

The board of trustees of the Kentucky Employees Retirement System must first comply with the dictates of the provision of 1978, chapter 167, part I, requiring a request to the auditor of public accounts, which has been rejected, before it can enter into a contract for auditing services pursuant to subsection (2)(d) of this section. OAG 78-503 .

Where the board of trustees, pursuant to subsection (9)(e) of this section, has adopted specific forms to be used by members when they seek service or disability retirement or when they wish to receive a refund of their contributions, it would be improper for the Kentucky Employees Retirement System to conduct such business on any unauthorized form. OAG 79-586 .

Eligible members of the board of trustees of the Kentucky Retirement Systems may receive per diem payments from each of the three (3) state retirement systems providing they have acted for each of those systems at a particular board meeting and such is specifically reflected in the minutes thereof. OAG 80-10 .

The contract for a general manager for the Retirement Systems is not one which would come within the purview of subdivision (2)(d) of this section and would therefore not be exempt from review by the Finance and Administration Cabinet pursuant to KRS 45.360 (now repealed); the contract for a general manager would also be subject to review by the Personal Service Contract Review Subcommittee. OAG 88-39 .

The term “appoint” in subdivision (9)(a) refers to the employment of an individual as general manager. This appointment may be accomplished by a resolution of the board, which may set the compensation of the general manager, since such is specifically permitted by the statute; however, all other terms and conditions of employment must be consistent with the state personnel law. OAG 88-39 .

The shortening of term limits under KRS 61.645(3) as amended in 2008 is merely prospective, so that a Kentucky Retirement Systems trustee who had been eligible to seek an additional consecutive term in 2009 is still so eligible. OAG 09-006 .

Research References and Practice Aids

Cross-References.

Incompatible offices, Const., §§ 44, 165, 237.

61.646. Transfer of administration of County Employees Retirement System from Kentucky Retirement Systems board of trustees to County Employees Retirement System board of trustees established in KRS 78.782 — Intent to enact future legislation.

  1. Effective April 1, 2021:
    1. Except as provided by KRS 61.505 , the administration of the County Employees Retirement System shall be transferred from the Kentucky Retirement Systems board of trustees to the County Employees Retirement System board of trustees established by KRS 78.782 .
    2. Except as provided by KRS 61.505 , the administration of the Kentucky Employees Retirement System and the State Police Retirement System shall continue to be the responsibility of the Kentucky Retirement Systems board of trustees as amended by KRS 61.645 .
    3. The Kentucky Public Pensions Authority established by KRS 61.505 shall provide personnel needs, day-to-day administrative needs, and other duties specified by KRS 61.505 to the Kentucky Retirement Systems board of trustees and the County Employees Retirement System board of trustees. The staff of the Kentucky Retirement Systems shall become the staff of the Kentucky Public Pensions Authority.
  2. It is the intent of the General Assembly to enact legislation in the 2021 Regular Session to create separate statutory structures as it relates to benefits for the Kentucky Retirement Systems and the County Employees Retirement System that are currently shared by the Kentucky Employees Retirement System, the County Employees Retirement System, and the State Police Retirement System while retaining shared statutes that relate to administrative provisions that will be the responsibility of the Kentucky Public Pensions Authority.

HISTORY: 2020 ch. 79, § 1, effective April 1, 2021.

61.650. Board trustee of funds — Investment committee — Standards of conduct — Registration of securities — Application of open records law — Cap on amount of assets managed by any one investment manager — Investment procurement policy.

    1. The board shall be the trustee of the several funds created by KRS 16.510 , 61.515 , and 61.701 as it pertains to the trust fund for the Kentucky Retirement Systems insurance trust fund, notwithstanding the provisions of any other statute to the contrary, and shall have exclusive power to invest and reinvest such funds in accordance with federal law. (1) (a) The board shall be the trustee of the several funds created by KRS 16.510 , 61.515 , and 61.701 as it pertains to the trust fund for the Kentucky Retirement Systems insurance trust fund, notwithstanding the provisions of any other statute to the contrary, and shall have exclusive power to invest and reinvest such funds in accordance with federal law.
      1. The board shall establish an investment committee whose membership shall be composed of the following: (b) 1. The board shall establish an investment committee whose membership shall be composed of the following:
        1. The three (3) trustees appointed by the Governor pursuant to KRS 61.645 who have investment experience; and
        2. Additional trustees appointed by the board chair.
      2. The investment committee shall have authority to implement the investment policies adopted by the board and act on behalf of the board on all investment-related matters and to acquire, sell, safeguard, monitor, and manage the assets and securities of the several funds.
    2. A trustee, officer, employee, employee of the Kentucky Public Pensions Authority, or other fiduciary shall discharge duties with respect to the retirement system:
      1. Solely in the interest of the members and beneficiaries;
      2. For the exclusive purpose of providing benefits to members and beneficiaries and paying reasonable expenses of administering the system;
      3. With the care, skill, and caution under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with those matters would use in the conduct of an activity of like character and purpose;
      4. Impartially, taking into account any differing interests of members and beneficiaries;
      5. Incurring any costs that are appropriate and reasonable; and
      6. In accordance with a good-faith interpretation of the law governing the retirement system.
    3. In addition to the standards of conduct prescribed by paragraph (c) of this subsection:
      1. All internal investment staff, including investment staff of the Kentucky Public Pensions Authority, and investment consultants shall adhere to the Code of Ethics and Standards of Professional Conduct, and all board trustees shall adhere to the Code of Conduct for Members of a Pension Scheme Governing Body. All codes cited in this subparagraph are promulgated by the CFA Institute; and
      2. Investment managers shall comply with all applicable provisions of the federal Investment Advisers Act of 1940, as amended, and the rules and regulations promulgated thereunder, and shall comply with all other applicable federal securities statutes and related rules and regulations that apply to investment managers.
  1. All securities acquired under authority of KRS 61.510 to 61.705 shall be registered in the name “Kentucky Retirement Systems” or nominee name as provided by KRS 286.3-225 and every change in registration, by reason of sale or assignment of such securities, shall be accomplished pursuant to written policies adopted by the board.
  2. The board, in keeping with its responsibility as trustee and wherever consistent with its fiduciary responsibilities, shall give priority to the investment of funds in obligation calculated to improve the industrial development and enhance the economic welfare of the Commonwealth.
  3. The contents of real estate appraisals, engineering or feasibility estimates, and evaluations made by or for the system relative to the acquisition or disposition of property, until such time as all of the property has been acquired or sold, shall be excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction.
  4. Based upon market value at the time of purchase, the board shall limit the amount of assets managed by any one (1) active or passive investment manager to fifteen percent (15%) of the assets in the pension and insurance funds.
  5. All contracts for the investment or management of assets of the systems shall not be subject to KRS Chapters 45, 45A, 56, and 57. Instead, the board shall conduct the following process to develop and adopt an investment procurement policy with which all prospective contracts for the investment or management of assets of the systems shall comply:
    1. On or before July 1, 2017, the board shall consult with the secretary of the Finance and Administration Cabinet or his or her designee to develop an investment procurement policy, which shall be written to meet best practices in investment management procurement;
    2. Thirty (30) days prior to adoption, the board shall tender the preliminary investment procurement policy to the secretary of the Finance and Administration Cabinet or his or her designee for review and comment;
    3. Upon receipt of comments from the secretary of the Finance and Administration Cabinet or his or her designee, the board shall choose to adopt or not adopt any recommended changes;
    4. Upon adoption, the board shall tender the final investment procurement policy to the secretary of the Finance and Administration Cabinet or his or her designee;
    5. No later than thirty (30) days after receipt of the investment procurement policy, the secretary or his or her designee shall certify whether the board’s investment procurement policy meets or does not meet best practices for investment management procurement; and
    6. Any amendments to the investment procurement policy shall adhere to the requirements set forth by paragraphs (b) to (e) of this subsection.

History. Enact. Acts 1956, ch. 110, § 29; 1960, ch. 165, part II, § 15; 1962, ch. 58, § 20; 1964, ch. 86, § 9; 1966, ch. 35, § 13; 1972, ch. 116, § 49; 1974, ch. 128, § 27, effective March 26, 1974; 1976, ch.321, § 40; 1980, ch. 246, § 11, effective July 15, 1980; 1984, ch. 232, § 3, effective July 13, 1984; 1988, ch. 349, § 25, effective July 15, 1988; 1998, ch. 105, § 16, effective July 15, 1998; 2002, ch. 52, § 12, effective July 15, 2002; 2003, ch. 169, § 11, effective March 31, 2003; 2004, ch. 36, § 24, effective July 13, 2004; 2010, ch. 127, § 2, effective July 15, 2010; 2010, ch. 173, § 7, effective July 15, 2010; 2013, ch. 120, § 66, effective July 1, 2013; 2017 ch. 12, § 4, effective March 10, 2017; 2019 ch. 72, § 1, effective March 25, 2019; 2020 ch. 79, § 6, effective April 1, 2021.

Legislative Research Commission Notes.

(3/10/2017). 2017 Ky. Acts ch. 12, sec. 13 provided that amendments made to subsection (6) of this statute in 2017 Ky. Acts ch. 12, sec. 4 governing the application of the Model Procurement Code, KRS Chapter 45A, and related statutes to the state-administered retirement systems, shall apply to contracts and offerings established or contracts or offerings renewed on or after July 1, 2017.

(7/12/2006). 2006 Ky. Acts ch. 247 instructs the Reviser of Statutes to adjust KRS references throughout the statutes to conform with the 2006 renumbering of the Financial Services Code, KRS Chapter 286. Such an adjustment has been made in this statute.

NOTES TO DECISIONS

1.Duties of Employees.

KRS 61.650(1)(c)(3) imposes on every employee within the Kentucky Retirement Systems the duty of utilizing the care, skill, and caution of a prudent person in like circumstances and acting in like capacity. Ky. Ret. Sys. v. Fryrear, 316 S.W.3d 307, 2009 Ky. App. LEXIS 170 (Ky. Ct. App. 2009).

Equitable estoppel was properly invoked against the Kentucky Retirement Systems to prevent it from voiding an employee’s retirement benefits for violation of KRS 61.637(10) after the confused employee relied on bad information from a benefits counselor charged with giving retirees accurate information under KRS 61.650(1)(c)(3). Ky. Ret. Sys. v. Fryrear, 316 S.W.3d 307, 2009 Ky. App. LEXIS 170 (Ky. Ct. App. 2009).

2.Duty of Retirement System.

While the circuit court erred in considering the suspension of a retiree’s benefits in light of the parties’ stipulation, it properly reversed an order by the Kentucky Retirement System (KERS) that voided the retiree’s benefits after he became employed as a part-time bailiff within three months of his retirement because he contacted KERS several times regarding reemployment and the record reflected that KERS never discussed the severe penalty for violating reemployment rules, and its demand that the retiree repay approximately five years of earned retirement benefits because of work in a position that would never be eligible for retirement benefits was the sort of “gross inequity” that triggered the doctrine of equitable estoppel. Ky. Ret. Sys. v. Chamberlain, 558 S.W.3d 482, 2018 Ky. App. LEXIS 109 (Ky. Ct. App. 2018).

Cited:

Jones v. Board of Trustees, 910 S.W.2d 710, 1995 Ky. LEXIS 131 ( Ky. 1995 ).

Opinions of Attorney General.

Kentucky Employees Retirement System could not offer a plan wherein amounts deferred were invested in mutual funds. OAG 79-414 .

The Kentucky Employees Retirement System can invest in common stocks. OAG 79-414 .

The Kentucky Employees Retirement System cannot administer and offer a deferred compensation plan to employees wherein the amounts deferred (the employee’s contributions) are invested in common stocks. OAG 79-414 .

A short term exchange or transfer of securities from the Kentucky Retirement System to certain brokerage firms which was secured by U.S. Treasury bills or equivalent securities with a market value equaling or exceeding that of the borrowed securities was proper under this section since the security which was being used for collateral was one in which the system in its fiduciary capacity would have the power to invest. OAG 80-84 .

61.650. Board trustee of funds — Investment committee — Registration of securities — Duties owed retirement system — Application of open records law — Cap on amount of assets managed by any one investment manager.

    1. The board shall be the trustee of funds created by KRS 16.510 , 61.515 , and 61.701 pertaining to the accounts for the Kentucky Employees Retirement System or State Police Retirement System, notwithstanding the provisions of any other statute to the contrary, and shall have exclusive power to invest and reinvest such assets in accordance with federal law. (1) (a) The board shall be the trustee of funds created by KRS 16.510 , 61.515 , and 61.701 pertaining to the accounts for the Kentucky Employees Retirement System or State Police Retirement System, notwithstanding the provisions of any other statute to the contrary, and shall have exclusive power to invest and reinvest such assets in accordance with federal law.
      1. The board shall establish an investment committee whose membership shall be composed of the following: (b) 1. The board shall establish an investment committee whose membership shall be composed of the following:
        1. The three (3) trustees of the Kentucky Retirement Systems board appointed by the Governor pursuant to KRS 61.645 who have investment experience; and
        2. Additional trustees appointed by the board chair.
      2. The investment committee shall have authority to implement the investment policies adopted by the board and act on behalf of the board on all investment-related matters and to acquire, sell, safeguard, monitor, and manage the assets and securities of the several funds.
    2. A trustee, officer, employee, employee of the Kentucky Public Pensions Authority, or other fiduciary shall discharge duties with respect to the retirement system:
      1. Solely in the interest of the members and beneficiaries;
      2. For the exclusive purpose of providing benefits to members and beneficiaries and paying reasonable expenses of administering the system;
      3. With the care, skill, and caution under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with those matters would use in the conduct of an activity of like character and purpose;
      4. Impartially, taking into account any differing interests of members and beneficiaries;
      5. Incurring any costs that are appropriate and reasonable; and
      6. In accordance with a good-faith interpretation of the law governing the retirement system.
    3. In addition to the standards of conduct prescribed by paragraph (c) of this subsection:
      1. All internal investment staff of the Kentucky Public Pensions Authority, and investment consultants shall adhere to the Code of Ethics and Standards of Professional Conduct, and all board trustees shall adhere to the Code of Conduct for Members of a Pension Scheme Governing Body. All codes cited in this subparagraph are promulgated by the CFA Institute; and
      2. Investment managers shall comply with all applicable provisions of the federal Investment Advisers Act of 1940, as amended, and the rules and regulations promulgated thereunder, and shall comply with all other applicable federal securities statutes and related rules and regulations that apply to investment managers.
  1. The board, through adopted written policies, shall maintain ownership and control over its assets held in its unitized managed custodial account.
  2. The board, in keeping with its responsibility as trustee and wherever consistent with its fiduciary responsibilities, shall give priority to the investment of funds in obligation calculated to improve the industrial development and enhance the economic welfare of the Commonwealth.
  3. The contents of real estate appraisals, engineering or feasibility estimates, and evaluations made by or for the system relative to the acquisition or disposition of property, until such time as all of the property has been acquired or sold, shall be excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction.
  4. Based upon market value at the time of purchase, the board shall limit the amount of assets managed by any one (1) active or passive investment manager to fifteen percent (15%) of the assets in the pension and insurance funds.
  5. All contracts for the investment or management of assets of the systems shall not be subject to KRS Chapters 45, 45A, 56, and 57. Instead, the board shall conduct the following process to develop and adopt an investment procurement policy with which all prospective contracts for the investment or management of assets of the systems shall comply:
    1. On or before July 1, 2017, the board shall consult with the secretary of the Finance and Administration Cabinet or his or her designee to develop an investment procurement policy, which shall be written to meet best practices in investment management procurement;
    2. Thirty (30) days prior to adoption, the board shall tender the preliminary investment procurement policy to the secretary of the Finance and Administration Cabinet or his or her designee for review and comment;
    3. Upon receipt of comments from the secretary of the Finance and Administration Cabinet or his or her designee, the board shall choose to adopt or not adopt any recommended changes;
    4. Upon adoption, the board shall tender the final investment procurement policy to the secretary of the Finance and Administration Cabinet or his or her designee;
    5. No later than thirty (30) days after receipt of the investment procurement policy, the secretary or his or her designee shall certify whether the board’s investment procurement policy meets or does not meet best practices for investment management procurement; and
    6. Any amendments to the investment procurement policy shall adhere to the requirements set forth by paragraphs (b) to (e) of this subsection.

HISTORY: Enact. Acts 1956, ch. 110, § 29; 1960, ch. 165, part II, § 15; 1962, ch. 58, § 20; 1964, ch. 86, § 9; 1966, ch. 35, § 13; 1972, ch. 116, § 49; 1974, ch. 128, § 27, effective March 26, 1974; 1976, ch.321, § 40; 1980, ch. 246, § 11, effective July 15, 1980; 1984, ch. 232, § 3, effective July 13, 1984; 1988, ch. 349, § 25, effective July 15, 1988; 1998, ch. 105, § 16, effective July 15, 1998; 2002, ch. 52, § 12, effective July 15, 2002; 2003, ch. 169, § 11, effective March 31, 2003; 2004, ch. 36, § 24, effective July 13, 2004; 2010, ch. 127, § 2, effective July 15, 2010; 2010, ch. 173, § 7, effective July 15, 2010; 2013, ch. 120, § 66, effective July 1, 2013; 2017 ch. 12, § 4, effective March 10, 2017; 2019 ch. 72, § 1, effective March 25, 2019; 2020 ch. 79, § 6, effective April 1, 2021; 2021 ch. 102, § 77, effective April 1, 2021.

61.652. Administration of all excess benefit plans — Participation in plan — Determination of benefit amount — Required contribution of plans.

  1. The Kentucky Employees Excess Benefit Plan established in KRS 61.663 and the State Police Excess Benefit Plan established in KRS 16.568 shall be administered by the board of trustees of the Kentucky Retirement Systems. The County Employees Excess Benefit Plan established in KRS 78.652 shall be administered by the board of trustees of the County Employees Retirement System. Each board shall have the same authority in its administration as it has in the administration of the Kentucky Employees Retirement System, the County Employees Retirement System, and the State Police Retirement System, as applicable.
  2. The plans shall constitute qualified governmental excess benefit plans as provided in 26 U.S.C. sec. 415(m) .
  3. All retired members and beneficiaries of the two (2) retirement systems administered by the Kentucky Retirement Systems and (1) retirement system administered by the County Employees Retirement System, whose effective retirement dates are July 1, 1998, or after, and whose retirement allowances have been limited by 26 U.S.C. sec. 415 shall be participants in the plans. Each member’s participation in the plans shall be determined each fiscal year and will cease for any year in which the retirement allowance is not limited by 26 U.S.C. sec. 415 .
  4. A participant shall receive a benefit equal to the difference between the retirement allowance otherwise payable from the system prior to any reduction or limitation required by 26 U.S.C. sec. 415 and the actual retirement allowance payable as limited by 26 U.S.C. sec. 415 . The benefit shall be subject to withholding for applicable state and federal taxes. The benefit shall be paid in accordance with the retirement payment option selected by the member or beneficiary for the retirement allowance.
    1. Each board, in accordance with the recommendation of the actuary, shall determine the required contribution for each plan the respective board administers in order to pay benefits each fiscal year. The required contribution for each of the three (3) plans in each fiscal year shall be the total amount of benefits payable under this section to all participants plus the amount required to pay the administrative expenses of the plan and the employer’s share of any employment taxes on the benefits paid from the plan. (5) (a) Each board, in accordance with the recommendation of the actuary, shall determine the required contribution for each plan the respective board administers in order to pay benefits each fiscal year. The required contribution for each of the three (3) plans in each fiscal year shall be the total amount of benefits payable under this section to all participants plus the amount required to pay the administrative expenses of the plan and the employer’s share of any employment taxes on the benefits paid from the plan.
    2. The required contribution shall be paid by the participating employers.
    3. The required contribution for each plan shall be deposited into the separate fund. The plan is intended to be exempt from federal income tax under 26 U.S.C. sec. 115 and 26 U.S.C. sec. 415(m)(1) .
    4. The benefit liability of each plan shall be determined on a fiscal year basis, and contributions shall not be accumulated to pay benefits in future fiscal years. Any assets of the plans not used to pay benefits in the current fiscal year shall be used for payment of the administrative expenses of the plan for the current or future fiscal years or shall be paid to the appropriate retirement system as an additional employer contribution.
  5. The benefits payable from the plans shall be treated in accordance with KRS 61.690 .
  6. The board shall promulgate administrative regulations to modify the benefits payable under the plans as necessary for the plans to be qualified under 26 U.S.C. sec. 415(m) .
  7. The provisions of this section, and any administrative regulations promulgated as a result of this section, shall be applied retroactively to retired members, and beneficiaries, whose effective retirement dates are between July 1, 1998, and July 14, 2000.

HISTORY: Enact. Acts 2000, ch. 385, § 32, effective July 14, 2000; 2021 ch. 102, § 67, effective June 29, 2021.

61.655. Conflict of interest — Trustees, employees, members of General Assembly, public servants.

  1. No trustee or employee of the Kentucky Retirement Systems board shall:
    1. Have any interest, direct or indirect, in the gains or profits of any investment or any other legal, business, or financial transaction made by the board, save insofar as any such trustee or employee may be a member, employee, or beneficiary of the retirement system;
    2. Directly or indirectly, for himself or as an agent, use the assets of the retirement system, except to make current and necessary payments authorized by the board;
    3. Become an endorser or surety or in any manner an obligor for moneys loaned by or borrowed from the board;
    4. Have a contract or agreement with the retirement system, individually or through a business owned by the trustee or the employee;
    5. Use his or her official position with the retirement system to obtain a financial gain or benefit or advantage for himself or herself or a family member;
    6. Use confidential information acquired during his or her tenure with the retirement system to further his or her own economic interests or that of another person; or
    7. Hold outside employment with, or accept compensation from, any person or business with which he or she has involvement as part of his or her official position with the retirement system. The provisions of this subsection shall not prohibit a trustee from serving as an employee of an agency participating in one (1) of the systems administered by Kentucky Retirement Systems.
  2. No trustee or employee of the board of trustees, who has served as a trustee or employee of the board on or after July 1, 2017, shall have any interest, direct or indirect, in the gains or profits of any investment or any other legal, business, or financial transaction made by the board of trustees for a period of five (5) years following termination of his or her position, except that any such trustee or employee may be a member, employee, or beneficiary of the systems administered by Kentucky Retirement Systems.
    1. No person who is serving as a member of the General Assembly or is a public servant as defined by KRS 11A.010(9) shall have any interest, direct or indirect, in the gains or profits of any investment or any other legal, business, or financial transaction made by the board of trustees, except that any such member or public servant may be a member, employee, or beneficiary of the systems administered by Kentucky Retirement Systems. (3) (a) No person who is serving as a member of the General Assembly or is a public servant as defined by KRS 11A.010(9) shall have any interest, direct or indirect, in the gains or profits of any investment or any other legal, business, or financial transaction made by the board of trustees, except that any such member or public servant may be a member, employee, or beneficiary of the systems administered by Kentucky Retirement Systems.
    2. No person who was serving as a member of the General Assembly on or after July 1, 2017, or was serving as a public servant as defined by KRS 11A.010(9) on or after July 1, 2017, shall have any interest, direct or indirect, in the gains or profits of any investment or any other legal, business, or financial transaction made by the board of trustees for a period of five (5) years following termination of his or her position, except that any such member or public servant may be a member, employee, or beneficiary of the systems administered by Kentucky Retirement Systems.

HISTORY: Enact. Acts 1956, ch. 110, § 30; 1972, ch. 116, § 50; 2012, ch. 75, § 9, effective April 11, 2012; 2018 ch. 107, § 39, effective July 14, 2018; 2019 ch. 72, § 2, effective March 25, 2019.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

61.660. Custodian of funds — Cash and securities.

  1. The State Treasurer shall be the custodian of the funds received under authority of KRS 61.510 to 61.705 , 16.510 to 16.652 and 78.510 to 78.852 and shall be responsible for the safekeeping of all cash and securities in his custody. All payments from the fund shall be made by him on warrants issued by the Finance and Administration Cabinet. Payments may be in the form of checks, which shall clearly show on the envelope or other mailing device the name and address of the Kentucky Retirement Systems, County Employees Retirement System, or direct deposit bank transfers.
  2. The Kentucky Public Pensions Authority shall appoint a custodian or custodians of the cash and securities acquired under authority of KRS 61.510 to 61.705 , 16.510 to 16.652 , and 78.510 to 78.852 ; and the custodian or custodians shall be responsible for the safekeeping of all cash and securities in its custody.

HISTORY: Enact. Acts 1956, ch. 110, § 31; 1962, ch. 58, § 21; 1966, ch. 35, § 14; 1972, ch. 116, § 51; 1974, ch. 74, Art. II, § 9(1); 1976, ch. 321, § 40; 1980, ch. 186, § 14, effective July 15, 1980; 1988, ch. 349, § 26, effective July 15, 1988; 1992, ch. 240, § 41, effective July 14, 1992; 2004, ch. 36, § 25, effective July 13, 2004; 2021 ch. 102, § 68, effective June 29, 2021.

Opinions of Attorney General.

A slight variation in the name of the fund from that directed by the statutes would not invalidate the security or becloud the ownership therein, since KRS 355.8-308(2) of the Uniform Commercial Code provides that a special indorsement is one that specifies the person to whom the security is transferred. OAG 61-478 .

Securities purchased for the Kentucky Employees Retirement System may be registered in the name of “Kentucky Employees Retirement System of the Commonwealth of Kentucky.” OAG 61-478 .

Records of the Kentucky Retirement System and the Teacher’s Retirement System which listed employees’ length of service, total employee contributions and total employer contributions were exempt from the mandatory requirement of public inspection by KRS 61.878(1)(j) (now l)) which exempts from mandatory public inspection public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly since the records in question were made confidential by this section which requires that members accounts be confidential. OAG 80-506 .

61.661. Member’s account confidential — Response to subpoenas.

    1. Each current, former, or retired member’s account shall be administered in a confidential manner, and specific data regarding a current, former, or retired member shall not be released for publication, except that: (1) (a) Each current, former, or retired member’s account shall be administered in a confidential manner, and specific data regarding a current, former, or retired member shall not be released for publication, except that:
      1. The member or recipient may authorize the release of his or her account information;
      2. Kentucky Retirement Systems may release account information to the employer or to other state and federal agencies as it deems necessary or in response to a lawful subpoena or order issued by a court of law; or
        1. Upon request by any person, the systems shall release the following information from the accounts of any member or retired member of the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System, if the member or retired member is a current or former officeholder in the Kentucky General Assembly: 3. a. Upon request by any person, the systems shall release the following information from the accounts of any member or retired member of the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System, if the member or retired member is a current or former officeholder in the Kentucky General Assembly:
          1. The first and last name of the member or retired member;
          2. The system or systems in which the member has an account or from which the retired member is receiving a monthly retirement allowance;
          3. The status of the member or retired member, including but not limited to whether he or she is a contributing member, a member who is not currently contributing to the systems but has not retired, a retired member, or a retired member who has returned to work following retirement with an agency participating in the systems;
          4. If the individual is a retired member, the monthly retirement allowance that he or she was receiving at the end of the most recently completed fiscal year;
          5. If the individual is a member who has not yet retired, the estimated monthly retirement allowance that he or she is eligible to receive at his or her normal retirement date based upon his or her service credit, final compensation, and accumulated account balance at the end of the most recently completed fiscal year; and
          6. The current employer or last participating employer of the member or retired member, if applicable.
        2. No information shall be disclosed under this subparagraph from an account that is paying benefits to a beneficiary due to the death of a member or retired member.
    2. A current, former, or retired member’s account shall be exempt from the provisions of KRS 171.410 to 171.990 .
    3. The release of information under paragraph (a)3. of this subsection shall not constitute a violation of the Open Records Act, KRS 61.870 to 61.884 .
    1. When a subpoena is served upon any employee of the Kentucky Retirement Systems, requiring production of any specific data regarding a current, former, or retired member, it is sufficient if the employee of the Kentucky Retirement Systems charged with the responsibility of being custodian of the original delivers within five (5) working days, by certified mail or by personal delivery, legible and durable copies of records, certified by the employee, or an affidavit stating the information required by the subpoena to the person specified in the subpoena. The production of documents or an affidavit shall be in lieu of any personal testimony of any employee of the Kentucky Retirement Systems unless, after the production of documents or affidavit, a separate subpoena is served upon the systems specifically directing the testimony of an employee of the systems. When a subpoena is served on any employee of the systems requiring the employee to give deposition for any purpose, in the absence of a court order requiring the deposition of a specific employee, the systems may designate an employee to be deposed upon the matter referred to in the subpoena. (2) (a) When a subpoena is served upon any employee of the Kentucky Retirement Systems, requiring production of any specific data regarding a current, former, or retired member, it is sufficient if the employee of the Kentucky Retirement Systems charged with the responsibility of being custodian of the original delivers within five (5) working days, by certified mail or by personal delivery, legible and durable copies of records, certified by the employee, or an affidavit stating the information required by the subpoena to the person specified in the subpoena. The production of documents or an affidavit shall be in lieu of any personal testimony of any employee of the Kentucky Retirement Systems unless, after the production of documents or affidavit, a separate subpoena is served upon the systems specifically directing the testimony of an employee of the systems. When a subpoena is served on any employee of the systems requiring the employee to give deposition for any purpose, in the absence of a court order requiring the deposition of a specific employee, the systems may designate an employee to be deposed upon the matter referred to in the subpoena.
    2. The certification required by this subsection shall be signed before a notary public by the employee and shall include the full name of the member or recipient, the member’s or recipient’s Social Security number, and a legend substantially to the following effect: “The records are true and complete reproductions of the original or microfiched records which are housed in the retirement systems office. This certification is given in lieu of his or her personal appearance.”
    3. When an affidavit or copies of records are personally delivered, a receipt shall be presented to the person receiving the records for his signature and shall be immediately signed and returned to the person delivering the records. When an affidavit or copies of records are sent via certified mail, the receipt used by the postal authorities shall be sufficient to prove delivery and receipt of the affidavit or copies of records.
    4. When the affidavit or copies of records are delivered to a party for use in deposition, they shall, after termination of the deposition, be delivered personally or by certified mail to the clerk of the court or other body before which the action or proceeding is pending. It shall be the responsibility of the party or attorney to transmit the receipt obtained to the employee of the Kentucky Retirement Systems charged with responsibility of being custodian of the original. Upon issuance of a final order terminating the case and after the normal retention period for court records expires, the affidavit or copies of records shall be permanently disposed of by the clerk in a manner that protects the confidentiality of the information contained therein.
    5. Records of the Kentucky Retirement Systems that are susceptible to photostatic reproduction may be proved as to foundation, identity, and authenticity without any preliminary testimony, by use of legible and durable copies, certified in accordance with the provisions of this subsection.

History. Enact. Acts 1972, ch. 116, § 52; 1988, ch. 349, § 44, effective July 15, 1988; 1990, ch. 346, § 9, effective July 13, 1990; 1992, ch. 240, § 42, effective July 14, 1992; 1994, ch. 485, § 22, effective July 15, 1994; 1996, ch. 167, § 18, effective July 15, 1996; 2017 ch. 4, § 1, effective January 9, 2017.

Opinions of Attorney General.

The law exempts data on the accounts of individual members of the Kentucky Retirement System from the Open Records Act and therefore information about a member’s account is confidential and need not be subject to public inspection without a court order. OAG 76-479 .

61.663. Excess benefit plan — Purpose — Excess benefit fund.

There is created and established:

  1. An excess benefit plan to be known as the Kentucky Employees Retirement System Excess Benefit Plan. The plan is created for the purpose of providing the retirement allowances payable from the retirement system under KRS 61.515 to 61.705 that would otherwise be limited by 26 U.S.C. sec. 415 .
  2. A state fund to be known as the Kentucky Employees Retirement System Excess Benefit Fund which shall consist of all the assets of the plan.
  3. The administration and assets of the plan shall be as set forth in KRS 61.652 .

History. Enact. Acts 2000, ch. 385, § 31, effective July 14, 2000.

61.665. Medical examiners — Ruling on disability retirement — Appeal — Referral for evaluation and retraining.

  1. The Authority shall employ at least three (3) physicians, licensed in the state and not members of the system, upon terms and conditions it prescribes to serve as medical examiners, whose duty it shall be to pass upon all medical examinations required under KRS 61.510 to 61.705 , 16.505 to 16.652 , and 78.510 to 78.852 , to investigate all health or medical statements and certificates made by or in behalf of any person in connection with the payment of money to the person under KRS 61.510 to 61.705 , 16.505 to 16.652 , and 78.510 to 78.852 , and who shall report in writing to the system the conclusions and recommendations upon all matters referred to them. The Authority may employ one (1) or more licensed mental health professionals in making recommendations regarding mental impairments.
    1. Each person requesting disability retirement shall file at the retirement office an application for disability retirement and supporting medical information to report the person’s physical and mental condition. The person shall also file at the retirement office a complete description of the job and duties from which he received his last pay as well as evidence that the person has made a request for reasonable accommodation as provided for in 42 U.S.C. sec. 12111(9) and 29 C.F.R. Part 1630. The person shall certify to the retirement office that the application for disability retirement and supporting medical information are ready to be evaluated by the medical examiners in accordance with paragraph (d) of this subsection. If, after good faith efforts, the person informs the Authority that he has been unable to obtain the employment or medical information, the Authority shall assist the person in obtaining the records and may use the authority granted pursuant to KRS 61.685(1) to obtain the records. If the person fails to file, at the retirement office within one hundred eighty (180) days of the date the person filed his notification of retirement, any of the forms, certifications, or information required by this subsection, the person’s application for disability retirement shall be void. Any subsequent filing of an application for disability retirement or supporting medical information shall not be evaluated, except as provided in paragraph (f) of this subsection or KRS 61.600(2) or Section 7 or 8 of this Act. (2) (a) Each person requesting disability retirement shall file at the retirement office an application for disability retirement and supporting medical information to report the person’s physical and mental condition. The person shall also file at the retirement office a complete description of the job and duties from which he received his last pay as well as evidence that the person has made a request for reasonable accommodation as provided for in 42 U.S.C. sec. 12111(9) and 29 C.F.R. Part 1630. The person shall certify to the retirement office that the application for disability retirement and supporting medical information are ready to be evaluated by the medical examiners in accordance with paragraph (d) of this subsection. If, after good faith efforts, the person informs the Authority that he has been unable to obtain the employment or medical information, the Authority shall assist the person in obtaining the records and may use the authority granted pursuant to KRS 61.685(1) to obtain the records. If the person fails to file, at the retirement office within one hundred eighty (180) days of the date the person filed his notification of retirement, any of the forms, certifications, or information required by this subsection, the person’s application for disability retirement shall be void. Any subsequent filing of an application for disability retirement or supporting medical information shall not be evaluated, except as provided in paragraph (f) of this subsection or KRS 61.600(2) or Section 7 or 8 of this Act.
    2. The employer shall file at the retirement office a complete description of the job and duties for which the person was last paid and shall submit a detailed description of reasonable accommodations attempted.
    3. The cost of medical examinations and the filing of the medical information, reports, or data with the retirement office shall be paid by the person applying for disability retirement.
    4. The Authority shall select three (3) medical examiners to evaluate the medical evidence submitted by the person. The medical examiners shall recommend that disability retirement be approved, or that disability retirement be denied. If there is evidence of a mental impairment, the medical examiners may request the Authority’s licensed mental health professional to assist in determining the level of the mental impairment.
    5. If two (2) or more of the three (3) medical examiners recommend that the person be approved for disability retirement, the system shall make retirement payments in accordance with the retirement plan selected by the person.
    6. If two (2) or more of the three (3) medical examiners recommend that the person be denied disability retirement, the Authority shall send notice of this recommendation by United States first-class mail to the person’s last address on file in the retirement office. The person shall have one hundred eighty (180) days from the day that the Authority mailed the notice to file at the retirement office additional supporting medical information and certify to the retirement office that the application for disability retirement and supporting medical information are ready to be evaluated by the medical examiners or to appeal his denial of disability retirement by filing at the retirement office a request for a formal hearing. Any subsequent filing of an application for disability retirement or supporting medical information shall not be evaluated, except as provided in KRS 61.600(2) or Section 7 or 8 of this Act.
    7. If two (2) or more of the three (3) medical examiners recommend that the person be approved for disability retirement based upon the evaluation of additional supporting medical information in accordance with paragraph (f) of this subsection, the system shall make retirement payments in accordance with the retirement plan selected by the person.
    8. If two (2) or more of the three (3) medical examiners recommend that the person be denied disability retirement based upon the evaluation of additional supporting medical information in accordance with paragraph (f) of this subsection, the Authority shall send notice of this recommendation by United States first-class mail to the person’s last address on file in the retirement office. The person shall have one hundred eighty (180) days from the day that the Authority mailed the notice to appeal his denial of disability retirement by filing at the retirement office a request for a formal hearing.
    9. The medical examiners shall be paid a reasonable amount by the retirement system for each case evaluated.
    10. Notwithstanding the foregoing provisions of this section, the Authority may pay for one (1) or more medical examinations of the person requested by the medical examiners for the purpose of providing medical information deemed necessary by the medical examiners. The system may require the person to submit to one (1) or more medical examinations.
    1. Any person whose disability benefits have been reduced, discontinued, or denied pursuant to subsection (2)(f) or (2)(h) of this section may file at the retirement office a request for a formal hearing to be conducted in accordance with KRS Chapter 13B. The right to demand a formal hearing shall be limited to a period of one hundred eighty (180) days after the person had notice of the system’s determination, as described in subsection (2)(f) or (2)(h) of this section. The request for a formal hearing shall be filed with the executive director, at the retirement office in Frankfort. The request for a formal hearing shall include a short and plain statement of the reasons the denial of disability retirement is being contested. (3) (a) Any person whose disability benefits have been reduced, discontinued, or denied pursuant to subsection (2)(f) or (2)(h) of this section may file at the retirement office a request for a formal hearing to be conducted in accordance with KRS Chapter 13B. The right to demand a formal hearing shall be limited to a period of one hundred eighty (180) days after the person had notice of the system’s determination, as described in subsection (2)(f) or (2)(h) of this section. The request for a formal hearing shall be filed with the executive director, at the retirement office in Frankfort. The request for a formal hearing shall include a short and plain statement of the reasons the denial of disability retirement is being contested.
    2. Failure of the person to request a formal hearing within the period of time specified shall preclude the person from proceeding any further with the application for disability retirement, except as provided in KRS 61.600(2) or Section 7 or 8 of this Act. This paragraph shall not limit the person’s right to appeal to a court.
    3. The system may require the person requesting the formal hearing to submit to one (1) or more medical or psychological examinations. Notice of the time and place of the examination shall be mailed to the person or his legal representative. The system shall be responsible for the cost of the examination.
    4. A final order of the board shall be based on substantial evidence appearing in the record as a whole and shall set forth the decision of the board and the facts and law upon which the decision is based.
    5. All requests for a hearing pursuant to this section shall be made in writing.
  2. The board may establish an appeals committee whose members shall be appointed by the chair and who shall have the authority to act upon the recommendations and reports of the hearing officer pursuant to this section on behalf of the board. The Authority may upon the joint approval of the board of the Kentucky Retirement Systems and the County Employees Retirement System establish an appeals committee whose members shall be appointed by the chair of the Authority who have the authorization to act upon the recommendations and reports of the hearing officer pursuant to this section on behalf of both boards.
  3. Any person aggrieved by a final order of the board may seek judicial review after all administrative appeals have been exhausted by filing a petition for judicial review in the Franklin Circuit Court in accordance with KRS Chapter 13B.
  4. The system, pursuant to regulations, may refer an employee determined by it to be disabled to the Kentucky Office of Vocational Rehabilitation for evaluation and, if appropriate, retraining.
    1. The cost of the evaluation and retraining shall be paid by the system in accordance with the regulations established by the board.
    2. The member shall perform all acts that are necessary to enroll in and satisfy the requirements of Vocational Rehabilitation as prescribed by the board. This shall include the exchange of confidential information between Kentucky Retirement Systems and the Kentucky Office of Vocational Rehabilitation as necessary to conduct the rehabilitation process. Failure of the member to cooperate with the system or Vocational Rehabilitation may result in his disability allowance being discontinued, reduced, or denied until the member complies with the agency requests. If the refusal continues for one (1) year, all his rights to any further disability allowance shall cease.

HISTORY: Enact. Acts 1956, ch. 110, § 32; 1972, ch. 116, § 53; 1974, ch. 128, § 28; 1976, ch. 321, § 40; 1978, ch. 311, § 18, effective June 17, 1978; 1982, ch. 423, § 11, effective July 15, 1982; 1984, ch. 232, § 8, effective July 13, 1984; 1986, ch. 90, § 21, effective July 15, 1986; 1988, ch. 349, § 42, effective July 15, 1988; 1988, ch. 387, § 3, effective July 15, 1988; 1990, ch. 346, § 6, effective July 13, 1990; 1992, ch. 240, § 43, effective July 14, 1992; 1994, ch. 406, § 4, effective July 15, 1994; 1994, ch. 485, § 23, effective July 15, 1994; 1996, ch. 167, § 19, effective July 15, 1996; 1996, ch. 318, § 30, effective July 15, 1996; 1998, ch. 105, § 17, effective July 15, 1998; 2000, ch. 385, § 24, effective July 14, 2000; 2003, ch. 169, § 12, effective March 31, 2003; 2004, ch. 36, § 26, effective July 13, 2004; 2021 ch. 102, § 69, effective June 29, 2021.

NOTES TO DECISIONS

1.In General.

Hearing officer did not improperly assign a disability claimant a burden to prove that the causation of his disability was other than his pre-existing diabetes as KRS 61.665 did not allocate the burden of proof, but specified that hearings were to be conducted in accordance with KRS ch. 13B, which in KRS 13B.090 placed the burden of proof on the claimant. McManus v. Ky. Ret. Sys., 124 S.W.3d 454, 2003 Ky. App. LEXIS 339 (Ky. Ct. App. 2003).

There was substantial evidence supporting a hearing officer’s finding that a disability claimant’s coronary artery disease directly or indirectly resulted from his pre-existing diabetes where: (1) diabetes was generally considered a major risk factor for coronary artery disease, (2) the claimant had been coping with his diabetes for over 20 years at the time he became re-employed, (3) the claimant’s condition just one (1) year after re-employment was described as “diffuse” and “end-stage,” suggesting that it was well-developed prior to re-employment, (4) the claimant experienced complications from his diabetes such as renal insufficiency, neuropathy, nephropathy, and hyperlipidemia, and (5) he failed to present evidence suggesting other pre-dominant causes. McManus v. Ky. Ret. Sys., 124 S.W.3d 454, 2003 Ky. App. LEXIS 339 (Ky. Ct. App. 2003).

Disability claimant’s application for benefits was properly reviewed by three (3) physicians as required by KRS 61.665(1), even though the physicians were not treating physicians, as the Kentucky Retirement Systems had certified that the physicians were not members of the System; KRS 61.665(1) was clear and unambiguous, and required only that the physicians be licensed to practice in Kentucky. McManus v. Ky. Ret. Sys., 124 S.W.3d 454, 2003 Ky. App. LEXIS 339 (Ky. Ct. App. 2003).

Retiree’s declaratory judgment action was dismissed because the highest court held that the retiree was required by KRS 61.645 to exhaust KRS ch. 13B administrative remedies before she could appeal a final order of the Kentucky Employees Retirement Systems based upon the constitutionality of 105 KAR 1:210 that a hearing officer had held was to be applied or based upon her argument that § 1:210 as it was going to be applied was in conflict with KRS 61.665(2)(e). Ky. Ret. Sys. v. Lewis, 163 S.W.3d 1, 2005 Ky. LEXIS 85 ( Ky. 2005 ).

McManus standard to review the denial of a disability retirement application met statutory standards because (1) the standard first decided if substantial evidence supported the denial, and, if so, whether the applicant’s evidence was so compelling that no reasonable person could fail to be persuaded, and (2) it was inappropriate to re-apply the preponderance standard on judicial review, given the deference to which an administrative determination was entitled. Bradley v. Ky. Ret. Sys., 567 S.W.3d 114, 2018 Ky. LEXIS 446 ( Ky. 2018 ).

Substantial evidence supported the denial of a government employee’s application for disability retirement because (1) no objective medical evidence supported the application, and (2) the employee’s evidence was not so compelling that no reasonable person could have failed to be persuaded. Bradley v. Ky. Ret. Sys., 567 S.W.3d 114, 2018 Ky. LEXIS 446 ( Ky. 2018 ).

When a government employee applied for disability retirement, it was no error to consider evidence of the employee’s capacity more than 12 months after the last day of the employee’s government employment because (1) all credible evidence of record relevant to the issue of permanent disability was properly considered, and (2) the evidence was not artificially limited to the 12 months following government employment. Bradley v. Ky. Ret. Sys., 567 S.W.3d 114, 2018 Ky. LEXIS 446 ( Ky. 2018 ).

61.670. Duties of board — Actuarial tables, valuations, investigations, and analyses — Audit — Actuary for Legislative Research Commission.

    1. As soon as practicable after its organization, the board shall adopt the actuarial tables necessary for the administration of the system and for the annual determination of actuarial assets and liabilities of the system. (1) (a) As soon as practicable after its organization, the board shall adopt the actuarial tables necessary for the administration of the system and for the annual determination of actuarial assets and liabilities of the system.
    2. The board shall cause an actuarial valuation to be made annually. The valuation shall at a minimum include:
      1. A description of the actuarial assumptions used in the actuarial valuation, which shall be reasonably related to the experience of the system and represent the actuary’s best estimate of anticipated experience;
      2. A description of any funding methods utilized or required by state law in the development of the actuarial valuation results;
      3. A description of any changes in actuarial assumptions and methods from the previous year’s actuarial valuation;
      4. The actuarially recommended contribution rate for employers for the upcoming budget periods;
      5. A thirty (30) year projection of the funding levels, unfunded liabilities, and actuarially recommended contribution rates for employers based upon the actuarial assumptions, funding methods, and experience of the system as of the valuation date; and
      6. A sensitivity analysis that evaluates the impact of changes in system assumptions, including but not limited to the investment return assumption, payroll growth assumption, and medical inflation rates, on employer contribution rates, funding levels, and unfunded liabilities.
    3. At least once in each five (5) year period, the board shall cause an actuarial investigation to be made of all the experience under the retirement system relative to the actuarial assumptions and funding methods previously adopted by the board. The actuarial investigation shall include at a minimum a summary of the changes in actuarial assumptions and funding methods recommended in the investigation and the projected impact of the recommended changes on funding levels, unfunded liabilities, and actuarially recommended contribution rates for employers over a thirty (30) year period.
    4. Pursuant to the actuarial investigation the board shall, from time to time, revise the actuarial tables previously adopted by the board and shall thereupon revise the bases of the rates of contributions required under KRS 61.510 to 61.692 and KRS 16.505 to 16.652 .
    5. For any change in actuarial assumptions, funding methods, retiree health insurance premiums and subsidies, or any other decisions made by the board that impact system liabilities and actuarially recommended contribution rates for employers and that are not made in conjunction with the actuarial investigation required by paragraph (c) of this subsection, an actuarial analysis shall be completed showing the projected impact of the changes on funding levels, unfunded liabilities, and actuarially recommended contribution rates for employers over a thirty (30) year period.
    6. All actuarial investigations, analyses, and valuations shall be certified to the board by an actuary who shall be a fellow of the Conference of Consulting Actuaries or a member of the American Academy of Actuaries.
  1. A copy of each five (5) year actuarial investigation, actuarial analysis, and annual valuation required by subsection (1) of this section shall be forwarded electronically to the Legislative Research Commission no later than ten (10) days after receipt by the board, and the Legislative Research Commission shall distribute the information received to the committee staff and co-chairs of any committee that has jurisdiction over the Kentucky Retirement Systems. The actuarial valuation required by subsection (1)(b) of this section shall be submitted no later than November 15 following the close of the fiscal year.
  2. The Legislative Research Commission may employ an actuary with the same qualifications as the actuary employed by the board, and the board shall, free of charge, provide the actuary employed by the Commission with the same data provided to its own actuary, and any supplementary data he or she may require. The actuary employed by the Commission shall review the assumptions, determinations and recommendations of the board actuary, and legislative proposals related to the retirement systems, and report his or her findings to the Commission and to the board. The board shall pay fifty percent (50%) of the cost of the Commission’s actuary, and the Commission shall pay the other fifty percent (50%).

History. Enact. Acts 1956, ch. 110, § 33; 1962, ch. 58, § 22; 1972, ch. 116, § 54; 1976, ch. 321, § 40; 1980, ch. 246, § 5, effective July 15, 1980; 1990, ch. 489, § 12, effective July 13, 1990; 1992, ch. 240, § 44, effective July 14, 1992; 1994, ch. 406, § 5, effective July 15, 1994; 2016 ch. 133, § 5, effective July 15, 2016; 2020 ch. 79, § 26, effective April 1, 2021; 2021 ch. 64, § 3, effective June 29, 2021.

61.675. Employer’s administrative duties — Audit — Filing of contributions and reports — Delinquency in making installment payments.

  1. The employer shall prepare the records and, from time to time, shall furnish the information the system may require in the discharge of its duties. Upon employment of an employee, the employer shall inform him of his duties and obligations in connection with the system as a condition of employment.
  2. The system may at any time conduct an audit of the employer in order to determine if the employer is complying with the provisions of KRS 16.505 to 16.652 , 61.610 to 61.705 , or 78.510 to 78.852 . The system shall have access to and may examine all books, accounts, reports, correspondence files, and records of any employer. Every employer, employee, or agency reporting official of a department or county, as defined in KRS 78.510 (3), having records in his possession or under his control, shall permit access to and examination of the records upon the request of the system.
    1. Any agency participating in the Kentucky Employees Retirement System which is not an integral part of the executive branch of state government shall file the following at the retirement office on or before the tenth day of the month following the period being reported: (3) (a) Any agency participating in the Kentucky Employees Retirement System which is not an integral part of the executive branch of state government shall file the following at the retirement office on or before the tenth day of the month following the period being reported:
      1. The employer and employee contributions required under KRS 61.560 , 61.565 , and 61.702 ;
      2. The employer contributions and reimbursements for retiree health insurance premiums required under KRS 61.637 ; and
      3. A record of all contributions to the system on the forms prescribed by the board.
    2. If the agency fails to file all contributions and reports on or before the tenth day of the month following the period being reported, interest on the delinquent contributions at the actuarial rate adopted by the board compounded annually, but not less than one thousand dollars ($1,000), may be added to the amount due the system.
  3. If a nonhazardous employer in the Kentucky Employees Retirement System is delinquent in paying the employer contributions required by KRS 61.565 for a period of ninety (90) days or more for those contributions payable on or after July 1, 2021, or if an employer who voluntarily ceases participation in the Kentucky Employees Retirement System as provided by KRS 61.522(8) elects to pay off the costs of ceasing participation by installment payments as provided by KRS 61.522(8)(g) and subsequently is delinquent in making installment payments for a period of ninety (90) days or more:
    1. Employees of the employer who are participating in the system or who are continuing to participate in the system after the employer’s effective cessation date as provided by KRS 61.522(8)(d)2. shall not accrue any additional service credit or benefits in the system through the employer or ceasing employer until such time as the employer has satisfied the required employer contributions or installment payments to the system;
    2. The board may file an action in the Franklin Circuit Court to collect any delinquent employer contributions or installment payments owed by the employer and to attach so much of the general fund appropriations of the delinquent employer as is necessary to achieve full compliance with the provisions of KRS 61.522(8) or 61.565 ; and
    3. The systems shall notify the Finance and Administration Cabinet, and the Finance and Administration Cabinet may withhold or intercept from the employer or ceasing employer a sufficient portion of any appropriated state funds not yet disbursed to the employer or ceasing employer to satisfy the required employer contributions or installment payments to the system.

History. Enact. Acts 1956, ch. 110, § 34; 1972, ch. 116, § 55; 1992, ch. 240, § 45, effective July 14, 1992; 1998, ch. 105, § 18, effective July 15, 1998; 2004, ch. 36, § 27, effective July 13, 2004; 2009, ch. 77, § 20, effective June 25, 2009; 2010, ch. 173, § 8, effective July 15, 2010; 2019 ch. 182, § 3, effective June 27, 2019; 2019 (1st Ex. Sess.), ch. 1, § 2, effective July 24, 2019; 2021 ch. 83, § 5, effective March 23, 2021.

NOTES TO DECISIONS

1.Construction With Other Law.

During bankruptcy reorganization, a nonprofit provider of mental health services was required to make post-petition contributions to the Kentucky Employees Retirement System because the valid state laws the provider had to follow as a debtor in possession under 28 U.S.C.S. ? 959, which are not limited to health and safety laws, included the provider’s statutory obligations as a system participant. Ky. Emple. Ret. Sys. v. Seven Counties Servs., Inc., 823 Fed. Appx. 300, 2020 FED App. 419N, 2020 U.S. App. LEXIS 22839 (6th Cir. Ky. 2020 ).

61.680. Consent of employees to deductions — Consolidation for determination of eligibility and determination of benefits — Waiver — Choice among retirement systems — Reciprocal arrangements. [Declared void — See LRC Note Below]

Except as limited by KRS 6.525 , 21.374, 61.5955 , or 61.5956 :

  1. Prior to August 1, 1982, every employee shall be deemed to consent and agree to any deduction from his compensation required by KRS 6.500 to 6.535 , 16.505 to 16.652 , 61.510 to 61.692 , 78.510 to 78.852 , and to all other provisions thereof. Thereafter, employee contributions shall be picked up by the employer pursuant to KRS 61.560(4).
    1. Notwithstanding any other provisions of KRS 6.500 to 6.535 , 16.505 to 16.652 , 61.510 to 61.692 , 78.510 to 78.852 and 161.220 to 161.714: (2) (a) Notwithstanding any other provisions of KRS 6.500 to 6.535 , 16.505 to 16.652 , 61.510 to 61.692 , 78.510 to 78.852 and 161.220 to 161.714:
      1. Upon death, disability, or service retirement, a member’s accounts under the Legislators’ Retirement Plan, State Police Retirement System, Kentucky Employees Retirement System, County Employees Retirement System, and Teachers’ Retirement System, except for service prohibited by KRS 161.623(2), shall be consolidated for the purpose of determining eligibility and amount of benefits, including those members who participate in the hybrid cash balance plan or 401(a) money purchase plans within the Kentucky Employees Retirement System, the County Employees Retirement System, the State Police Retirement System, or the Teachers’ Retirement System;
      2. Vested service credit in a retirement system, other than the Teachers’ Retirement System, sponsored by a Kentucky institution of higher education and accepted by the Kentucky Employees Retirement System or the County Employees Retirement System, may be used to determine eligibility for twenty-seven (27) year retirement for an employee who begins participating before September 1, 2008, but not the amount of benefits;
      3. The computation of benefits shall be based on the applicable formula in each system and service credit in each system, but the final compensation, excluding compensation earned under KRS 161.155(10), shall be determined as if all service were in one (1) system;
      4. If the member has prior service in more than one (1) system administered by Kentucky Retirement Systems, he shall obtain at least twelve (12) months’ current service in each system in which he has prior service in order to validate the prior service in each system for purposes of determining consolidated benefits under this subsection; and
      5. Upon the determination of benefits, each system shall pay the applicable amount of benefits due the member.
    2. The provisions of paragraph (a) of this subsection shall be waived if the member:
      1. Notifies the system of his desire to maintain separate retirement accounts in the State Police Retirement System, Kentucky Employees Retirement System, or County Employees Retirement System; or
      2. Fails to simultaneously retire from all state-administered retirement systems in which the member has an account or fails to retire from any other systems not administered by Kentucky Retirement Systems within one (1) month of the member’s effective retirement date in the systems administered by Kentucky Retirement Systems.
    3. If the member has not contributed at least one (1) year in a system in which he has prior service, his current service in the system shall be valid for purposes of determining eligibility and in computation of benefits on a consolidated basis.
    1. A member with service credit in the Kentucky Employees Retirement System, State Police Retirement System, or the County Employees Retirement System who becomes the holder of an office entitling him to membership in the Judicial Retirement Plan or the Legislators’ Retirement Plan, but who does not elect within thirty (30) days after taking office in such service to participate in the plan, in accordance with KRS 6.505 or 21.360, shall be deemed to have elected to retain membership in the system in which he is a member, either the Kentucky Employees Retirement System, State Police Retirement System, or the County Employees Retirement System. In that event, the agency employing the member shall withhold employee contributions, or picked-up employee contributions after August 2, 1982, make employer contributions and remit these contributions to the system in which the member retained his membership. (3) (a) A member with service credit in the Kentucky Employees Retirement System, State Police Retirement System, or the County Employees Retirement System who becomes the holder of an office entitling him to membership in the Judicial Retirement Plan or the Legislators’ Retirement Plan, but who does not elect within thirty (30) days after taking office in such service to participate in the plan, in accordance with KRS 6.505 or 21.360, shall be deemed to have elected to retain membership in the system in which he is a member, either the Kentucky Employees Retirement System, State Police Retirement System, or the County Employees Retirement System. In that event, the agency employing the member shall withhold employee contributions, or picked-up employee contributions after August 2, 1982, make employer contributions and remit these contributions to the system in which the member retained his membership.
    2. Any person entitled to membership in the Judicial Retirement Plan or the Legislators’ Retirement Plan, who does not elect within thirty (30) days after taking office to participate in the plan, in accordance with KRS 6.505 or 21.360, and who at the time of taking office is not a contributing member of, or does not have service credit in, any of the retirement systems mentioned in this section, or the Teachers’ Retirement System, shall participate in the Kentucky Employees Retirement System.
    3. A member of one (1) of the state-administered retirement plans who ceases to contribute to the plan as provided in KRS 21.360 and who is employed in a nonelected position by an agency participating in the Kentucky Retirement Systems or Kentucky Teachers’ Retirement System shall be deemed to have elected membership in the system in which the employer of the nonelected position participates. A member of one (1) of the state-administered retirement plans who ceases to contribute to the plan as provided in KRS 21.360 and who is not employed in a nonelected position by an agency participating in the Kentucky Retirement Systems shall be deemed to have elected membership in the Kentucky Employees Retirement System.
    1. Prior to July 1, 1976, a person entering the service of an employer participating in the Kentucky Employees Retirement System or the County Employees Retirement System with service credit in the Teachers’ Retirement System and who desires to retain membership in the Teachers’ Retirement System, and who is permitted by that system to continue, shall be exempt from participating in the Kentucky Employees Retirement System or the County Employees Retirement System. (4) (a) Prior to July 1, 1976, a person entering the service of an employer participating in the Kentucky Employees Retirement System or the County Employees Retirement System with service credit in the Teachers’ Retirement System and who desires to retain membership in the Teachers’ Retirement System, and who is permitted by that system to continue, shall be exempt from participating in the Kentucky Employees Retirement System or the County Employees Retirement System.
    2. Any person who has elected to retain membership in the Teachers’ Retirement System as provided in paragraph (a) of this subsection may cancel his election and participate in the system under which his position would normally participate, if he elects to cancel his option prior to January 1, 1977.
    3. Any member of the General Assembly who upon election is a contributing member of the Teachers’ Retirement System and who does not elect within thirty (30) days after taking office to participate in the Legislators’ Retirement Plan, in accordance with KRS 6.505 , shall during his term of office participate in the Kentucky Employees Retirement System unless an election to retain membership in the Teachers’ Retirement System is filed in writing within ninety (90) days after his term of office begins. No contributions may be made to the Teachers’ Retirement System for the same period of service under the Legislators’ Retirement Plan or the Kentucky Employees Retirement System as a member of the General Assembly, but contributions made to the Teachers’ Retirement System while a member of the General Assembly shall be transferred to the Legislators’ Retirement Plan, as provided for in KRS 6.535 , when the member elects to join the Legislators’ Retirement Plan, and service credit in the Legislators’ Retirement Plan shall be granted as provided for in KRS 6.505 (5).
  2. Any member of the Kentucky Employees Retirement System or County Employees Retirement System who is working in a position covered by one (1) of these retirement systems and his employee contributions, service credit and employer contributions made on his behalf are being transferred to the other retirement system shall contribute to the system in which his employer participates, or after August 1, 1982, the employer shall pick up the employee contributions, and no further contributions or service credit shall be transferred to the system in which he elected to retain membership, as subsection (2) of this section eliminates the necessity of the transfers.
  3. Except as provided by subsection (3)(b)2. of Section 4 of this Act, any member of the Kentucky Employees Retirement System or County Employees Retirement System who is working in more than one (1) position covered by the same retirement system, shall have his wages and contributions consolidated and his retirement account administered as a single account. If part-time positions are involved, an accumulation of all hours worked within the same retirement system shall be used to determine eligibility under KRS 61.510(21).
    1. Notwithstanding the provisions of subsection (2) of this section, a person who does not have the amount of service required for service retirement in the State Police Retirement System, Kentucky Employees Retirement System, County Employees Retirement System, Legislators’ Retirement Plan, or Teachers’ Retirement System, but who is a member of one (1) of the systems or is a former member of one (1) or more of the systems with valid service credit therein, shall become eligible for service retirement benefits attributable to the amount of his actual service credit in each system in which he has service credit when his combined service credit in all the systems, plus any service credit he has in the Judicial Retirement Plan, is equal to that required for service retirement in each respective system. The computation of benefits shall be based on the applicable formula in each system and service credit in each system, except that total service in all systems, unless prohibited by KRS 161.623(2), shall be used to determine the reduction for early retirement, if any. Except as provided in KRS 21.360, the final compensation shall be determined by using the creditable compensation reported to the State Police Retirement System, Kentucky Employees Retirement System, County Employees Retirement System, Legislators’ Retirement Plan, or Teachers’ Retirement System and only as much of the compensation earned in the Judicial Retirement Plan as is needed to satisfy the final compensation requirement applicable in the respective retirement systems. (7) (a) Notwithstanding the provisions of subsection (2) of this section, a person who does not have the amount of service required for service retirement in the State Police Retirement System, Kentucky Employees Retirement System, County Employees Retirement System, Legislators’ Retirement Plan, or Teachers’ Retirement System, but who is a member of one (1) of the systems or is a former member of one (1) or more of the systems with valid service credit therein, shall become eligible for service retirement benefits attributable to the amount of his actual service credit in each system in which he has service credit when his combined service credit in all the systems, plus any service credit he has in the Judicial Retirement Plan, is equal to that required for service retirement in each respective system. The computation of benefits shall be based on the applicable formula in each system and service credit in each system, except that total service in all systems, unless prohibited by KRS 161.623(2), shall be used to determine the reduction for early retirement, if any. Except as provided in KRS 21.360, the final compensation shall be determined by using the creditable compensation reported to the State Police Retirement System, Kentucky Employees Retirement System, County Employees Retirement System, Legislators’ Retirement Plan, or Teachers’ Retirement System and only as much of the compensation earned in the Judicial Retirement Plan as is needed to satisfy the final compensation requirement applicable in the respective retirement systems.
    2. Paragraph (a) of this subsection shall be waived if the member fails to simultaneously retire from all state-administered retirement systems in which the member has an account or fails to retire from any other systems not administered by Kentucky Retirement Systems within one (1) month of the member’s effective retirement date in the systems administered by the Kentucky Retirement Systems.
  4. Each retirement system from which the member retires shall pay a retirement allowance upon receipt of required forms and documents, except that no retirement system shall pay a retirement allowance or annuity until all forms and documents are filed at all retirement systems in compliance with each system’s requirements.

HISTORY: Enact. Acts 1956, ch. 110, § 35; 1960, ch. 165, part II, § 16; 1964, ch. 86, § 7; 1972, ch. 116, § 56; 1974, ch. 128, § 29; 1976, ch. 321, § 30, 40; 1980, ch. 186, § 15, effective July 15, 1980; 1980, ch. 188, § 19, effective July 15, 1980; 1982, ch. 166, § 8, effective July 15, 1982; 1982, ch. 326, § 15, effective July 1, 1982; 1982, ch. 458, § 3, effective April 15, 1982; 1984, ch. 111, § 42, effective July 13, 1984; 1988, ch. 351, § 2, effective July 15, 1988; 1992, ch. 240, § 46, effective July 14, 1992; 1998, ch. 105, § 19, effective July 15, 1998; 2000, ch. 385, § 25, effective July 14, 2000; 2002, ch. 52, § 13, effective July 15, 2002; 2005, ch. 86, § 9, effective June 20, 2005; 2006, ch. 52, § 5, effective July 12, 2006; 2008, ch. 78, § 1, effective July 1, 2008; 2008 (1st Ex. Sess.), ch. 1, § 22, effective June 27, 2008; 2013, ch. 120, § 67, effective July 1, 2013; 2017 ch. 32, § 16, effective June 29, 2017; 2018 ch. 107, § 29, effective July 14, 2018; 2021 ch. 96, § 10, effective June 29, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

Compiler's Notes.

Section 42 of Acts 1976, ch. 321 provides: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

NOTES TO DECISIONS

1.Calculation of Benefits.

When a former state senator reached 100% maximum contribution to the Kentucky Legislators’ Retirement Plan (LRP) and no longer contributed, his inviolable contract right was in place for purposes of Kentucky’s funding his defined benefit under the LRP; thus, he was entitled to receive retirement benefits based on an assumed salary of $27,500. He was not entitled to combine his service in both the LRP and the Kentucky County Employees’ Retirement System to determine his final compensation. Karem v. Bd. of Trs. of the Judicial Form Ret. Sys., 293 S.W.3d 401, 2009 Ky. App. LEXIS 62 (Ky. Ct. App. 2009).

Although KRS 61.680(2)(a) is ambiguous, the other statutes governing Kentucky’s retirement system indicate that retirement benefits under the Kentucky Legislators’ Retirement Plan (LRP), KRS 6.500 to 6.577 , are calculated on an assumed salary of $27,500. Karem v. Bd. of Trs. of the Judicial Form Ret. Sys., 293 S.W.3d 401, 2009 Ky. App. LEXIS 62 (Ky. Ct. App. 2009).

Opinions of Attorney General.

A resigned state employee cannot receive service credit in the Kentucky Employees Retirement System for the time he spent as a county employee. OAG 61-695 .

Persons who are covered by any of the three publicly financed Kentucky retirement systems can maintain their coverage in the system of their choice provided they are qualified when they change jobs. While the statutes do not specifically prohibit a subsequent change after an election has been made, neither do they give a covered employee the unqualified right to make such a change. However, in the absence of a specific provision prohibiting subsequent change after an election, and in view of the broad authorization for reciprocal arrangements, we believe the statutes would permit the various retirement systems to authorize a subsequent change, provided appropriate regulations are promulgated. OAG 69-501 .

There is no statutory right for an employee who has made an election to remain in one of the three (3) publicly financed Kentucky retirement systems to have his account frozen in that system and be treated as a new employee by the agency which has been employing him. Such procedure could not be permitted without appropriate reciprocal regulations by the retirement systems involved. OAG 69-501 .

Any employee of the Kentucky authority for educational television who is currently a member of the Kentucky Employees Retirement System and who, because of KRS 161.220(4)(d), may be qualified to participate in the Teachers’ Retirement System, has the option of joining the Teachers’ Retirement System as provided by KRS 161.607(3) or retaining membership in Kentucky Employees Retirement System as provided by this section. OAG 74-305 .

This section does not permit a member of the Kentucky Employees Retirement System, who also has an account with the Teachers’ Retirement System, to consolidate those two (2) accounts for the purpose of meeting the requirements of KRS 61.555 and 61.559 in order to purchase prior military service. OAG 74-305 .

This section and KRS 161.608 are to be interpreted to mean that where an individual with joint accounts in the various state retirement systems consolidates those accounts and is eligible to retire in the system under which he is presently covered and does so, all other retirement systems in which he has an account must pay their proportionate share of benefits to him even though he might not otherwise be eligible due to his age. OAG 74-904 .

A member of the Kentucky Employees Retirement System, who took early retirement in 1969 and received benefits until February, 1972, at which time he was reemployed in a full time position, would be eligible to consolidate his various state retirement accounts under this section. OAG 77-397 .

Since a state legislator’s salary does not fall within the definition of “annual compensation” in KRS 161.220, a legislator who retains membership in the KTRS cannot legally make contributions to the KTRS or acquire credit in the KTRS, but must, in effect, relinquish his participation in the KTRS and participate in the KERS in order to acquire any service credit in a public retirement system — in this case, the KERS. OAG 78-226 .

Once an individual retires and begins to draw benefits from one (1) or more of the state retirement systems and is thereafter elected or appointed to a position covered by the JRS, he cannot count the service credit in those other state retirement systems from which he is receiving benefits toward vesting them in the JRS, and subsection (6) of this section is not applicable where an individual retires from service in one (1) of the state retirement systems since, once membership has ceased in a particular state retirement system because the individual has taken service retirement and is now receiving benefits from that system, he may not use his service credit in that system at some subsequent time to achieve vesting in the JRS should he become employed in a position covered by the JRS. OAG 78-538 .

In the present situation, the language of KRS 161.607(5) and subsection (4)(b) of this section is clear and unambiguous, and while these statutes provide that an employee may retain Kentucky Teachers’ Retirement System membership upon transfer to another agency covered by other government retirement systems, and that such an employee may cancel his election to retain KTRS membership, it specifically provides that any cancellation of option election must be made prior to January 1, 1977. OAG 78-744 .

Where a retiring employee had been employed as a teacher and participated in the state Teachers’ Retirement System and was later employed in a state position which was covered by the Kentucky Employees’ Retirement System, it was proper for KERS to disallow credit for unused sick leave accrued while the employee was a member of TRS since the language in subsection (1) of KRS 61.546 means that a member of KERS or TRS may receive credit for unused sick leave accrued in state service while a member of either KERS or TRS and since KRS 61.546 and the reciprocal agreement statute under this section, when read in pari materia, would not harmonize unless KRS 61.546 is interpreted to mean that the KERS and the state police retirement system are responsible for crediting only that amount of sick leave which an individual has accrued while participating as a member of each particular system. OAG 81-224 .

61.680. Consent of employees to deductions — Consolidation for determination of eligibility and determination of benefits — Waiver — Choice among retirement systems — Reciprocal arrangements. [Declared void — See LRC Note Below]

  1. Prior to August 1, 1982, every employee shall be deemed to consent and agree to any deduction from his compensation required by KRS 6.500 to 6.535 , 16.505 to 16.652 , 61.510 to 61.692 , 78.510 to 78.852 , and to all other provisions thereof. Thereafter, employee contributions shall be picked up by the employer pursuant to KRS 61.560(4).
    1. Notwithstanding any other provisions of KRS 6.500 to 6.535 , 16.505 to 16.652 , 61.510 to 61.692 , 78.510 to 78.852 and 161.220 to 161.714: (2) (a) Notwithstanding any other provisions of KRS 6.500 to 6.535 , 16.505 to 16.652 , 61.510 to 61.692 , 78.510 to 78.852 and 161.220 to 161.714:
      1. Upon death, disability, or service retirement, a member’s accounts under the Legislators’ Retirement Plan, State Police Retirement System, Kentucky Employees Retirement System, County Employees Retirement System, and Teachers’ Retirement System, except for service prohibited by KRS 161.623(2), shall be consolidated for the purpose of determining eligibility and amount of benefits, including those members who participate in the hybrid cash balance plan within the Kentucky Employees Retirement System, the County Employees Retirement System, and the State Police Retirement System, on or after January 1, 2014, and regardless of the transition of administration of the County Employees Retirement System to the County Employees Retirement System board of trustees;
      2. Vested service credit in a retirement system, other than the Teachers’ Retirement System, sponsored by a Kentucky institution of higher education and accepted by the Kentucky Employees Retirement System or the County Employees Retirement System, may be used to determine eligibility for twenty-seven (27) year retirement for an employee who begins participating before September 1, 2008, but not the amount of benefits;
      3. The computation of benefits shall be based on the applicable formula in each system and service credit in each system, but the final compensation, excluding compensation earned under KRS 161.155(10), shall be determined as if all service were in one (1) system;
      4. If the member has prior service in more than one (1) system administered by Kentucky Retirement Systems, he shall obtain at least twelve (12) months’ current service in each system in which he has prior service in order to validate the prior service in each system for purposes of determining consolidated benefits under this subsection; and
      5. Upon the determination of benefits, each system shall pay the applicable amount of benefits due the member.
    2. The provisions of paragraph (a) of this subsection shall be waived if the member:
      1. Notifies the system of his desire to maintain separate retirement accounts in the State Police Retirement System, Kentucky Employees Retirement System, or County Employees Retirement System; or
      2. Fails to simultaneously retire from all state-administered retirement systems in which the member has an account or fails to retire from any other systems not administered by Kentucky Retirement Systems within one (1) month of the member’s effective retirement date in the systems administered by Kentucky Retirement Systems.
    3. If the member has not contributed at least one (1) year in a system in which he has prior service, his current service in the system shall be valid for purposes of determining eligibility and in computation of benefits on a consolidated basis.
    1. A member with service credit in the Kentucky Employees Retirement System, State Police Retirement System, or the County Employees Retirement System who becomes the holder of an office entitling him to membership in the Judicial Retirement Plan or the Legislators’ Retirement Plan, but who does not elect within thirty (30) days after taking office in such service to participate in the plan, in accordance with KRS 6.505 or 21.360, shall be deemed to have elected to retain membership in the system in which he is a member, either the Kentucky Employees Retirement System, State Police Retirement System, or the County Employees Retirement System. In that event, the agency employing the member shall withhold employee contributions, or picked-up employee contributions after August 2, 1982, make employer contributions and remit these contributions to the system in which the member retained his membership. (3) (a) A member with service credit in the Kentucky Employees Retirement System, State Police Retirement System, or the County Employees Retirement System who becomes the holder of an office entitling him to membership in the Judicial Retirement Plan or the Legislators’ Retirement Plan, but who does not elect within thirty (30) days after taking office in such service to participate in the plan, in accordance with KRS 6.505 or 21.360, shall be deemed to have elected to retain membership in the system in which he is a member, either the Kentucky Employees Retirement System, State Police Retirement System, or the County Employees Retirement System. In that event, the agency employing the member shall withhold employee contributions, or picked-up employee contributions after August 2, 1982, make employer contributions and remit these contributions to the system in which the member retained his membership.
    2. Any person entitled to membership in the Judicial Retirement Plan or the Legislators’ Retirement Plan, who does not elect within thirty (30) days after taking office to participate in the plan, in accordance with KRS 6.505 or 21.360, and who at the time of taking office is not a contributing member of, or does not have service credit in, any of the retirement systems mentioned in this section, or the Teachers’ Retirement System, shall participate in the Kentucky Employees Retirement System.
    3. A member of one (1) of the state-administered retirement plans who ceases to contribute to the plan as provided in KRS 21.360 and who is employed in a nonelected position by an agency participating in the Kentucky Retirement Systems or Kentucky Teachers’ Retirement System shall be deemed to have elected membership in the system in which the employer of the nonelected position participates. A member of one (1) of the state-administered retirement plans who ceases to contribute to the plan as provided in KRS 21.360 and who is not employed in a nonelected position by an agency participating in the Kentucky Retirement Systems shall be deemed to have elected membership in the Kentucky Employees Retirement System.
    1. Prior to July 1, 1976, a person entering the service of an employer participating in the Kentucky Employees Retirement System or the County Employees Retirement System with service credit in the Teachers’ Retirement System and who desires to retain membership in the Teachers’ Retirement System, and who is permitted by that system to continue, shall be exempt from participating in the Kentucky Employees Retirement System or the County Employees Retirement System. (4) (a) Prior to July 1, 1976, a person entering the service of an employer participating in the Kentucky Employees Retirement System or the County Employees Retirement System with service credit in the Teachers’ Retirement System and who desires to retain membership in the Teachers’ Retirement System, and who is permitted by that system to continue, shall be exempt from participating in the Kentucky Employees Retirement System or the County Employees Retirement System.
    2. Any person who has elected to retain membership in the Teachers’ Retirement System as provided in paragraph (a) of this subsection may cancel his election and participate in the system under which his position would normally participate, if he elects to cancel his option prior to January 1, 1977.
    3. Any member of the General Assembly who upon election is a contributing member of the Teachers’ Retirement System and who does not elect within thirty (30) days after taking office to participate in the Legislators’ Retirement Plan, in accordance with KRS 6.505 , shall during his term of office participate in the Kentucky Employees Retirement System unless an election to retain membership in the Teachers’ Retirement System is filed in writing within ninety (90) days after his term of office begins. No contributions may be made to the Teachers’ Retirement System for the same period of service under the Legislators’ Retirement Plan or the Kentucky Employees Retirement System as a member of the General Assembly, but contributions made to the Teachers Retirement System while a member of the General Assembly shall be transferred to the Legislators’ Retirement Plan, as provided for in KRS 6.535 , when the member elects to join the Legislators’ Retirement Plan, and service credit in the Legislators’ Retirement Plan shall be granted as provided for in KRS 6.505 (5).
  2. Any member of the Kentucky Employees Retirement System or County Employees Retirement System who is working in a position covered by one (1) of these retirement systems and his employee contributions, service credit and employer contributions made on his behalf are being transferred to the other retirement system shall contribute to the system in which his employer participates, or after August 1, 1982, the employer shall pick up the employee contributions, and no further contributions or service credit shall be transferred to the system in which he elected to retain membership, as subsection (2) of this section eliminates the necessity of the transfers.
  3. Any member of the Kentucky Employees Retirement System or County Employees Retirement System who is working in more than one (1) position covered by the same retirement system, shall have his wages and contributions consolidated and his retirement account administered as a single account. If part-time positions are involved, an accumulation of all hours worked within the same retirement system shall be used to determine eligibility under KRS 61.510(21).
    1. Notwithstanding the provisions of subsection (2) of this section, a person who does not have the amount of service required for service retirement in the State Police Retirement System, Kentucky Employees Retirement System, County Employees Retirement System, Legislators’ Retirement Plan, or Teachers’ Retirement System, but who is a member of one (1) of the systems or is a former member of one (1) or more of the systems with valid service credit therein, shall become eligible for service retirement benefits attributable to the amount of his actual service credit in each system in which he has service credit when his combined service credit in all the systems, plus any service credit he has in the Judicial Retirement Plan, is equal to that required for service retirement in each respective system. The computation of benefits shall be based on the applicable formula in each system and service credit in each system, except that total service in all systems, unless prohibited by KRS 161.623(2), shall be used to determine the reduction for early retirement, if any. Except as provided in KRS 21.360, the final compensation shall be determined by using the creditable compensation reported to the State Police Retirement System, Kentucky Employees Retirement System, County Employees Retirement System, Legislators’ Retirement Plan, or Teachers’ Retirement System and only as much of the compensation earned in the Judicial Retirement Plan as is needed to satisfy the final compensation requirement applicable in the respective retirement systems. (7) (a) Notwithstanding the provisions of subsection (2) of this section, a person who does not have the amount of service required for service retirement in the State Police Retirement System, Kentucky Employees Retirement System, County Employees Retirement System, Legislators’ Retirement Plan, or Teachers’ Retirement System, but who is a member of one (1) of the systems or is a former member of one (1) or more of the systems with valid service credit therein, shall become eligible for service retirement benefits attributable to the amount of his actual service credit in each system in which he has service credit when his combined service credit in all the systems, plus any service credit he has in the Judicial Retirement Plan, is equal to that required for service retirement in each respective system. The computation of benefits shall be based on the applicable formula in each system and service credit in each system, except that total service in all systems, unless prohibited by KRS 161.623(2), shall be used to determine the reduction for early retirement, if any. Except as provided in KRS 21.360, the final compensation shall be determined by using the creditable compensation reported to the State Police Retirement System, Kentucky Employees Retirement System, County Employees Retirement System, Legislators’ Retirement Plan, or Teachers’ Retirement System and only as much of the compensation earned in the Judicial Retirement Plan as is needed to satisfy the final compensation requirement applicable in the respective retirement systems.
    2. Paragraph (a) of this subsection shall be waived if the member fails to simultaneously retire from all state-administered retirement systems in which the member has an account or fails to retire from any other systems not administered by Kentucky Retirement Systems within one (1) month of the member’s effective retirement date in the systems administered by the Kentucky Retirement Systems.
  4. Each retirement system from which the member retires shall pay a retirement allowance upon receipt of required forms and documents, except that no retirement system shall pay a retirement allowance or annuity until all forms and documents are filed at all retirement systems in compliance with each system’s requirements.

HISTORY: Enact. Acts 1956, ch. 110, § 35; 1960, ch. 165, part II, § 16; 1964, ch. 86, § 7; 1972, ch. 116, § 56; 1974, ch. 128, § 29; 1976, ch. 321, § 30, 40; 1980, ch. 186, § 15, effective July 15, 1980; 1980, ch. 188, § 19, effective July 15, 1980; 1982, ch. 166, § 8, effective July 15, 1982; 1982, ch. 326, § 15, effective July 1, 1982; 1982, ch. 458, § 3, effective April 15, 1982; 1984, ch. 111, § 42, effective July 13, 1984; 1988, ch. 351, § 2, effective July 15, 1988; 1992, ch. 240, § 46, effective July 14, 1992; 1998, ch. 105, § 19, effective July 15, 1998; 2000, ch. 385, § 25, effective July 14, 2000; 2002, ch. 52, § 13, effective July 15, 2002; 2005, ch. 86, § 9, effective June 20, 2005; 2006, ch. 52, § 5, effective July 12, 2006; 2008, ch. 78, § 1, effective July 1, 2008; 2008 (1st Ex. Sess.), ch. 1, § 22, effective June 27, 2008; 2013, ch. 120, § 67, effective July 1, 2013; 2017 ch. 32, § 16, effective June 29, 2017; 2018 ch. 107, § 29, effective July 14, 2018; 2021 ch. 102, § 70, effective June 29, 2021.

61.685. Records — Audits — System’s authority to enforce its powers — Limitation of liability — Fraudulent claims to obtain benefits — Investigation, enforcement, and penalties.

  1. Notwithstanding the provisions of KRS Chapter 413, upon discovery of any error or omission in system records, the system shall correct all records, including but not limited to membership in the system, service credit, member and employer contributions, and benefits paid or payable. The system may conduct audits to detect possible fraud, misrepresentation, and change in circumstance, which may result in errors or omissions in the system’s records. The system, by its executive director or by representatives appointed in writing by the executive director, may take testimony or depositions, and may examine records, documents, or files of any person whose records, documents, or files may furnish knowledge concerning any system records, when the executive director or representative deems this reasonably necessary for purposes incident to the performance of the system’s functions. The system may enforce these powers by application to the Franklin Circuit Court, which court may compel compliance with the orders of the executive director or representatives appointed by the executive director.
  2. Neither the board nor any of its individual members shall be liable to any person for any claim arising from the failure of any participating employer, or any employer who should have been participating in any retirement system operated by the board, to make retirement contributions on behalf of the person.
    1. For purposes of this subsection: (3) (a) For purposes of this subsection:
      1. “Knowingly” means, with respect to conduct or to a circumstance described by this subsection, that a person is aware that his or her conduct is of that nature or that the circumstance exists; and
      2. “Person” means a natural person, individual, county, city, agency, board or commission, sole proprietorship, partnership, corporation, limited liability company, organization, association, business, trust, or other legal entity. “Person” may be construed as singular or plural.
    2. A person shall be liable under this subsection if he or she knowingly:
      1. Submits or causes to be submitted a false or fraudulent claim for the payment or receipt of any benefit provided under KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 ;
      2. Makes, uses, or causes to be made or used a false record or statement material to a false or fraudulent claim to obtain benefits provided under KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 ; or
      3. Possesses or otherwise has custody or control of money, records, or property used or to be used by the Kentucky Public Pensions Authority or the systems it administers and fails to deliver or delivers less than all of the money, records, or property to which the authority or the retirement systems it administers are entitled, including but not limited to member agencies failing to report and remit employer and employee contributions and employment records to the authority.
    3. A person found to have committed one (1) or more of the actions under paragraph (b) of this subsection by a preponderance of the evidence in an administrative process before the authority or in an action before the Franklin Circuit Court in conformity with all due process protections shall be liable for:
      1. Restitution of any payments received for which the person was not entitled to receive by reason of violation of KRS 16.505 to 16.652, 61.510 to 61.705, or 78.510 to 78.852 and interest at the maximum legal rate pursuant to KRS 360.010 in effect on the date any payment was made for the period from the date payment was made to the date of repayment to the authority;
      2. A civil payment in an amount up to three (3) times the amount of the excess payments;
      3. A civil payment of five hundred dollars ($500) for each false or fraudulent claim submitted for the payment of benefits under KRS 16.505 to 16.652, 61.510 to 61.705, and 78.510 to 78.852; and
      4. Legal fees and costs of investigation and enforcement of civil remedies, including all attorneys’ fees and costs of litigation.
    4. Upon the written request of the authority, the Attorney General shall investigate and file the necessary actions to enforce civil penalties for violations of this subsection and, if funds are recovered by or on behalf of the authority in any legal action, may recover reasonable costs of litigation as determined by the court as provided by KRS 48.005 .
    5. Civil payments, interest, and costs of investigation and enforcement of civil remedies, including attorneys’ fees and other costs not included under paragraph (d) of this subsection, recovered on behalf of the authority under this subsection shall be made payable to the State Treasurer and remitted to the Kentucky Public Pensions Authority for deposit in the affected trusts administered by the Kentucky Public Pension Authority. The affected trusts shall be made whole, and any additional penalties and fees shall be distributed to the trusts as a whole consistent with the methods used to distribute administrative expenses between the trusts.
    6. The remedies under this section are separate from and cumulative to any other administrative, civil, or criminal remedies available to the authority and the systems it administers under federal or state law or regulation.

History. Enact. Acts 1956, ch. 110, § 36; 1972, ch. 116, § 57; 1992, ch. 240, § 47, effective July 14, 1992; 1994, ch. 485, § 24, effective July 15, 1994; 1996, ch. 167, § 20, effective July 15, 1996; 2004, ch. 36, § 28, effective July 13, 2004; 2021 ch. 189, § 1, effective June 29, 2021.

Legislative Research Commission Notes.

(6/29/2021). Under the authority of KRS 7.136(1), the Reviser of Statutes has altered the format of subsection (3)(a) of this statute during codification to place the terms in alphabetical order. The words in the text were not changed.

61.690. Exemption of retirement allowances — Taxability after December 31, 1997 — Domestic relations and child support orders.

  1. Except as otherwise provided by this section and KRS 61.705 (4), all retirement allowances and other benefits accrued or accruing to any person under the provisions of KRS 61.510 to 61.705 , 16.505 to 16.652 , and 78.510 to 78.852 , and the accumulated account balance and cash securities in the funds created under KRS 61.510 to 61.705, 16.505 to 16.652 , and 78.510 to 78.852 , are hereby exempt from any state, county, or municipal tax, and shall not be subject to execution, attachment, garnishment, or any other process, and shall not be assigned.
  2. Notwithstanding the provisions of subsection (1) of this section, retirement benefits accrued or accruing to any person under the provisions of KRS 61.510 to 61.705 , 16.505 to 16.652 , and 78.510 to 78.852 on or after January 1, 1998, shall be subject to the tax imposed by KRS 141.020 , to the extent provided in KRS 141.010 and 141.0215
  3. Qualified domestic relations orders issued by a court or administrative agency shall be honored by the retirement system if:
    1. The benefits payable pursuant to the order meet the requirements of a qualified domestic relations order as provided by 26 U.S.C. sec. 414(p) . The retirement system shall follow applicable provisions of 26 U.S.C. sec. 414(p) in administering qualified domestic relations orders;
    2. The order meets the requirements established by the retirement system and by subsections (3) to (11) of this section. The board of trustees of the retirement system shall establish the requirements, procedures, and forms necessary for the administration of qualified domestic relations orders by promulgation of administrative regulations in accordance with KRS Chapter 13A; and
    3. The order is on the form established by the retirement system pursuant to the retirement system’s authority provided under paragraph (3)(b) of this subsection.
  4. A qualified domestic relations order shall not:
    1. Require the retirement system to take any action not authorized under state or federal law;
    2. Require the retirement system to provide any benefit, allowance, or other payment not authorized under state or federal law;
    3. Grant or be construed to grant the alternate payee any separate right, title, or interest in or to any retirement benefit other than to receive payments from the participant’s account in accordance with the administrative regulations promulgated by the retirement system and as provided by subsections (3) to (11) of this section; or
    4. Grant any separate interest to any person other than the participant.
  5. Any qualified domestic relations order submitted to the retirement system shall specify the dollar amount or percentage amount of the participant’s benefit to be paid to the alternate payee. In calculating the amount to be paid to the alternate payee, the court or administrative agency that is responsible for issuing the order shall follow the requirements set forth in the administrative regulations promulgated by the board of trustees. Notwithstanding any other statute to the contrary, the board shall not be required to honor a qualified domestic relations order that does not follow the requirements set forth in the administrative regulations promulgated by the board of trustees.
  6. If the qualified domestic relations order meets the requirements established by the system and by subsections (3) to (11) of this section, payments to the alternate payee shall begin under the following conditions:
    1. If the participant is retired and is receiving a monthly retirement allowance, the month following the date the retirement system receives a qualified domestic relations order that complies with the administrative regulations promulgated by the retirement system and subsections (3) to (11) of this section; or
    2. If the participant is not retired, the month of the participant’s effective retirement date in which the first retirement allowance is payable to the participant or the month in which the participant receives a refund of his or her accumulated account balance as provided by KRS 61.625 .
  7. An alternate payee’s benefits and rights under a qualified domestic relations order shall terminate upon the earlier of:
    1. The death of the participant;
    2. The death of the alternate payee; or
    3. The termination of the participant’s benefits under any of the provisions of KRS 16.505 to 16.652 , 61.510 to 61.705 , and 78.510 to 78.852 .
  8. An alternate payee shall not receive a monthly payment under a qualified domestic relations order if the participant is not receiving a monthly retirement allowance.
  9. The cost of living adjustment provided to the participant pursuant to KRS 61.691 or Section 5 of this Act shall be divided between the participant and alternate payee in a qualified domestic relations order as follows:
    1. If the order specifies the alternate payee is to receive a percentage of the participant’s benefit, then the cost of living adjustment shall be divided between the participant and the alternate payee based upon the percentage of the total benefit each is receiving upon the participant’s retirement or upon the date the order is approved by the retirement system, whichever is later; or
    2. If the order specifies that the alternate payee is to receive a set dollar amount of the participant’s benefit, then the order shall specify that:
      1. The cost of living adjustment shall be divided between the participant and the alternate payee based upon the percentage of the total benefit each is receiving upon the participant’s retirement or upon the date the order is approved by the retirement system, whichever is later; or
      2. The alternate payee shall receive no cost of living adjustment. If the order does not specify the division of the cost of living adjustment as required by this paragraph, then no cost of living adjustment shall be payable to the alternate payee. If no cost of living adjustment is provided to the alternate payee, then the participant shall receive the full cost of living adjustment he or she would have received if the order had not been applied to the participant’s account.
  10. Except in cases involving child support payments, the retirement system may charge reasonable and necessary fees and expenses to the recipient and the alternate payee of a qualified domestic relations order for the administration of the qualified domestic relations order by the retirement system. All fees and expenses shall be established by administrative regulations promulgated by the board of trustees of the retirement system. The qualified domestic relations order shall specify whether the fees and expenses provided by this subsection shall be paid:
    1. Solely by the participant;
    2. Solely by the alternate payee; or
    3. Equally shared by the participant and alternate payee.
  11. The retirement system shall honor a qualified domestic relations order issued prior to July 15, 2010, if:
    1. The order was on file and approved by the retirement system prior to July 15, 2010. All benefits, including cost of living adjustments payable to the alternate payee, for orders that meet the requirements of this paragraph shall not be eliminated or reduced as a result of the provisions of subsections (3) to (10) of this section and KRS 61.510(27) and 78.510(26); or
    2. The order or an amended version of the order meets the requirements established by this section and the administrative regulations promulgated by the retirement system. The order shall not apply to benefit payments issued by the retirement system prior to the date the order was approved by the retirement system.

HISTORY: Enact. Acts 1956, ch. 110, § 37; 1972, ch. 116, § 58; 1976, ch. 321, § 40; 1984, ch. 319, § 1, effective April 9, 1984; 1988, ch. 349, § 27, effective July 15, 1988; 1992, ch. 240, § 48, effective July 14, 1992; 1995 (2nd Ex. Sess.), ch. 1, § 4, effective April 28, 1995; 1998, ch. 255, § 35, effective July 15, 1998; 2000, ch. 385, § 26, effective July 14, 2000; 2002, ch. 52, § 14, effective July 15, 2002; 2010, ch. 148, § 6, effective July 15, 2010; 2011, ch. 68, § 3, effective June 8, 2011; 2013, ch. 120, § 68, effective July 1, 2013; 2021 ch. 102, § 71, effective June 29, 2021.

Legislative Research Commission Note.

(7/15/2010). After consultation with the drafter and under the authority of KRS 7.136 , a change was made in codification to subsection (11)(a) of this statute to correct a manifest clerical or typographical error and clarify the particular provisions of the Act at issue.

NOTES TO DECISIONS

1.Retirement Exemption.

General Assembly had amended KRS 61.690 to exempt Kentucky Employees Retirement System benefits from consideration as marital property, but this amended language was deleted in 2002 and has not been reinstated; thus, the exemption provision no longer has any legal effect. Young v. Young, 314 S.W.3d 306, 2010 Ky. App. LEXIS 90 (Ky. Ct. App. 2010).

Provision for the exemption of Kentucky Employees Retirement System benefits from consideration as marital property was not in effect on either the date the divorce action was filed or the date of dissolution, such that it was unnecessary to determine in this appeal which date controlled as the law remained unchanged during the litigation Young v. Young, 314 S.W.3d 306, 2010 Ky. App. LEXIS 90 (Ky. Ct. App. 2010).

It is inescapable that the Legislature did not intend for the statute to exempt firefighter pension plans from distribution as marital property as it promptly deleted the provision; thus, an ex-husband’s argument that his pension should not have been considered a marital asset to be divided based on the prohibition contained in KRS 61.690 was without merit. Young v. Young, 314 S.W.3d 306, 2010 Ky. App. LEXIS 90 (Ky. Ct. App. 2010).

Because the provision in KRS 61.690 exempting pensions was of no legal consequence because it was not in effect during the time of this action, it would have been improper for the trial court to exempt contributions made during the period in which the prohibition portion of the statute was in effect. Young v. Young, 314 S.W.3d 306, 2010 Ky. App. LEXIS 90 (Ky. Ct. App. 2010).

Opinions of Attorney General.

The authority given under the power of attorney when a state employee signs his application for membership in the commonwealth credit union that allows the treasurer of the credit union to indorse any refund check, and permits the credit union to negotiate the check and apply the proceeds to any outstanding debt owed the credit union by the employee constitutes an “assignment” within the meaning of this section, and such an assignment is not enforceable in any court. ( OAG 43-338 withdrawn). OAG 72-163 .

The power of attorney given when state employees apply for membership in the commonwealth credit union that results in an agreement to provide for indorsement of refund checks is not prohibited by the language “other process” in this section. OAG 72-163 .

Under this section, state credit unions cannot use the remedies of execution, attachment, and garnishment against retirement refund checks issued by the Kentucky Employees’ Retirement System. ( OAG 43-338 withdrawn). OAG 72-163 .

The exemption of retirement allowances and related benefits reflects a deliberate legislative intent to establish a protection from provisional remedies. OAG 83-97 .

“Other process” refers to any other court process. OAG 83-97 .

A contract between a state credit union and an employee of a county government wherein the employee authorizes the credit union to intercept any refund check covering the employee’s paid-in contributions to the county employees’ retirement system, with interest, upon the termination of his employment, would be an assignment, which is in effect prohibited by this section; there are no circumstances, when the contract is executed while the employee is still employed by the county, under which the prohibition would not apply. OAG 83-97 .

Department of Personnel improperly denied request for computer printout of the salaries of all paralegals and legal secretaries employed by state agencies, their places of employment, and their classifications, if it maintains a database containing such information; it must release such information in electronic or hard copy format, but may redact any nonpublic information also contained in the database such as social security numbers or home addresses. 93-ORD-118.

61.691 Increase of benefits.

  1. Effective August 1, 1996, to July 1, 2008, a recipient of a retirement allowance under KRS 16.505 to 16.652 and 61.510 to 61.705 shall have his retirement allowance increased on July 1 of each year by the percentage increase in the annual average of the consumer price index for all urban consumers for the most recent calendar year as published by the federal Bureau of Labor Statistics, not to exceed five percent (5%). In determining the annual employer contribution rate, only the cost of increases granted as of the most recent valuation date shall be recognized. The benefits of this subsection as provided on August 1, 1996, to July 1, 2008, shall not be considered as benefits protected by the inviolable contract provisions of KRS 16.652 and 61.692 . The General Assembly reserves the right to suspend or reduce the benefits conferred in this subsection if in their judgment the welfare of the Commonwealth so demands.
    1. Effective July 1, 2009, and on July 1 of each year thereafter, a recipient of a retirement allowance under KRS 16.505 to 16.652 and 61.510 to 61.705 shall have his or her retirement allowance increased by one and one-half percent (1.5%), if: (2) (a) Effective July 1, 2009, and on July 1 of each year thereafter, a recipient of a retirement allowance under KRS 16.505 to 16.652 and 61.510 to 61.705 shall have his or her retirement allowance increased by one and one-half percent (1.5%), if:
      1. The funding level of the system is greater than one hundred percent (100%) and subsequent legislation authorizes the use of any surplus actuarial assets to provide an increase in retirement allowances described by this subsection for the system which has the surplus actuarial assets; or
      2. The General Assembly appropriates sufficient funds or directs payment of funds to fully prefund the increase described by this subsection in the year the increase is provided.
    2. The board of trustees of the Kentucky Retirement Systems shall, at least thirty (30) days prior to the beginning of regular sessions of the General Assembly held in even-numbered years, advise the General Assembly of the following:
      1. Which systems have a funding level greater than one hundred percent (100%) and can support an increase in recipients’ retirement allowances as provided by paragraph (a) of this subsection over the next budget biennium without reducing the funding level of the system below one hundred percent (100%); and
      2. If no surplus actuarial assets are available, the level of funds needed to fully prefund an increase for system recipients over the next budget biennium if a one and one-half percent (1.5%) increase is provided annually over the biennium.
    3. For purposes of this subsection, “funding level” means the actuarial value of assets divided by the actuarially accrued liability expressed as a percentage that is determined and reported by the system’s actuary in the system’s actuarial valuation.
    4. The full increase described by this subsection shall only be provided if the recipient has been receiving a benefit for at least twelve (12) months prior to the effective date of the increase. If the recipient has been receiving a benefit for less than twelve (12) months prior to the effective date of the increase provided by this subsection, the increase shall be reduced on a pro rata basis for each month the recipient has not been receiving benefits in the twelve (12) months preceding the effective date of the increase.
    5. In determining the annual employer contribution rate, only the cost of increases granted as of the most recent valuation date shall be recognized.
    6. The benefits of this subsection as provided on July 1, 2009, and thereafter shall not be considered as benefits protected by the inviolable contract provisions of KRS 16.652 and 61.692 . The General Assembly reserves the right to suspend or reduce the benefits conferred in this subsection if, in its judgment, the welfare of the Commonwealth so demands.
  2. A reemployed retired member whose payments are suspended as provided under KRS 61.637 shall be eligible for an increase in his suspended retirement allowance as provided under this section, computed as if he were receiving the retirement allowance at the time the increase under this section is effective.
  3. In addition to the increase to a recipient’s retirement allowance as provided by subsection (2) of this section, the General Assembly may, by subsequent legislation, provide supplemental increases to a recipient’s retirement allowance to help adjust for actual changes in the recipient’s cost of living if the General Assembly appropriates sufficient funds to fully prefund the benefit in the year the increase is provided.

HISTORY: Enact. Acts 1972, ch. 116, § 59; 1976, ch. 321, § 31; 1978, ch. 311, § 19, effective June 17, 1978; 1978, ch. 384, § 554, effective June 17, 1978; 1980, ch. 186, § 16, effective July 15, 1980; 1982, ch. 423, § 12, effective July 15, 1982; 1984, ch. 232, § 9, effective July 13, 1984; 1986, ch. 293, § 2, effective July 15, 1986; 1988, ch. 349, § 28, effective July 15, 1988; 1990, ch. 489, § 3, effective July 13, 1990; 1990, ch. 517, § 2, effective July 1, 1990; 1992, ch. 240, § 49, effective July 14, 1992; 1994, ch. 105, § 1, effective July 1, 1994; 1994, ch. 502, § 1, effective April 13, 1994; 1994, ch. 406, § 6, effective June 30, 1996; 1996, ch. 320, § 1, effective July 15, 1996; 2008 (1st Ex. Sess.), ch. 1, § 23, effective June 27, 2008; 2013, ch. 120, § 69, effective July 1, 2013; 2021 ch. 102, § 72, effective June 29, 2021.

Compiler’s Notes.

Section 42 of Acts 1976, ch. 321 provided: “This Act shall not be construed as repealing any of the provisions of 1976 House Bill 142 [ch. 224 amending KRS 61.595 by adding provisions relating to members of general assembly] but shall be held and construed as ancillary and supplementary thereto.”

Section 13 of Acts 1994, ch. 406 provided that: “The amendment of KRS 61.691 in Section 6 of this Act shall take effect on June 30, 1996.”

Legislative Research Commission Note.

(7/1/2013). This statute was amended by Section 69 of 2013 Ky. Acts ch. 120. Section 81 of that Act reads, “Notwithstanding any other provision of this Act to the contrary, the amendments in Sections 16, 25, and 69 of this Act shall in no way nullify the provisions of 2012 Ky. Acts ch. 19, Part I, 1.(4), 2012 Ky. Acts ch. 68, Part I, 2.(2), or 2012 Ky. Acts ch. 144, Part IV, 10., which suspended the cost-of-living adjustment that would have been provided to retirees and beneficiaries of the Legislative Retirement Plan, the Judicial Retirement Plan, the State Police Retirement System, the Kentucky Employees Retirement System, and the County Employees Retirement System on July 1, 2012, and July 1, 2013.”

(7/15/94). This section was amended by 1994 Ky. Acts chs. 105, 406, and 502. The amendments of this section by 1994 Ky. Acts chs. 105 and 502 are in conflict. Under KRS 446.250 , Acts ch. 502 as the last enactment prevails.

61.692. Benefits not to be reduced or impaired for members who began participating before January 1, 2014 — Exceptions — Amendment of benefits and rights. [Declared void — See LRC Note Below]

  1. For members who begin participating in the Kentucky Employees Retirement System prior to January 1, 2014, it is hereby declared that in consideration of the contributions by the members and in further consideration of benefits received by the state from the member’s employment, KRS 61.510 to 61.705 shall constitute an inviolable contract of the Commonwealth, and the benefits provided therein shall not be subject to reduction or impairment by alteration, amendment, or repeal, except:
    1. As provided in KRS 6.696 ; and
    2. The General Assembly reserves the right to amend, reduce, or suspend any legislative changes to the provisions of KRS 61.510 to 61.705 that become effective on or after July 1, 2018.
    1. For members who begin participating in the Kentucky Employees Retirement System on or after January 1, 2014, the General Assembly reserves the right to amend, suspend, or reduce the benefits and rights provided under KRS 61.510 to 61.705 if, in its judgment, the welfare of the Commonwealth so demands, except that the amount of benefits the member has accrued at the time of amendment, suspension, or reduction shall not be affected. (2) (a) For members who begin participating in the Kentucky Employees Retirement System on or after January 1, 2014, the General Assembly reserves the right to amend, suspend, or reduce the benefits and rights provided under KRS 61.510 to 61.705 if, in its judgment, the welfare of the Commonwealth so demands, except that the amount of benefits the member has accrued at the time of amendment, suspension, or reduction shall not be affected.
    2. For purposes of this subsection, the amount of benefits the member has accrued at the time of amendment, suspension, or reduction shall be limited to the accumulated account balance the member has accrued at the time of amendment, suspension, or reduction.
    3. The provisions of this subsection shall not be construed to limit the General Assembly’s authority to change any other benefit or right specified by KRS 61.510 to 61.705, except the benefits specified by paragraph (b) of this subsection, for members who begin participating in the Kentucky Employees Retirement System on or after January 1, 2014.
  2. The provisions of this section shall not be construed to limit the General Assembly’s authority to amend, reduce, or suspend the benefits and rights of members of the Kentucky Employees Retirement System as provided by KRS 61.510 to 61.705 that the General Assembly had the authority to amend, reduce, or suspend, prior to July 1, 2013.

HISTORY: Enact. Acts 1972, ch. 116, § 60; 1976, ch. 321, § 40; 1988, ch. 349, § 29, effective July 15, 1988; 1993 (1st Ex. Sess.), ch. 4, § 78, effective September 16, 1993; 1996, ch. 167, § 21, effective July 15, 1996; 2013, ch. 120, § 70, effective July 1, 2013; 2018 ch. 107, § 33, effective July 14, 2018.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

NOTES TO DECISIONS

1.Budget Bill.
2.— Setting of Contribution Rates.

Governor and General Assembly were not immune and were properly before the court in a declaratory judgment action to determine whether the 1992 Budget Bill usurped the authority of the Board of Trustees of the Kentucky Employees Retirement System to act independently to set employer contribution rates under this section and Const., § 19. Jones v. Board of Trustees, 910 S.W.2d 710, 1995 Ky. LEXIS 131 ( Ky. 1995 ).

Passage of the 1992 Budget Bill maintaining the rate of state contribution to the Kentucky Employment Retirement System (KERS) and suspending KRS 61.565 which allows the Board of Trustees of KERS to set the contribution rate, and the Governor’s failure to follow the board’s recommendations and his recommendation that KERS assets be modified to reflect market value and not book value as used by the board did not violate Kentucky statutes or the constitutionally protected contractual rights of KERS members as such modifications of the board’s recommendations were within the discretion of the Governor and General Assembly and the board could show no substantial infringement of promised benefits to KERS members. Jones v. Board of Trustees, 910 S.W.2d 710, 1995 Ky. LEXIS 131 ( Ky. 1995 ).

3.Reduction of Benefits.

Regarding the reduction of retirement benefits, the overwhelming implication of KRS 61.692 and KRS 418.075 was that the Commonwealth had waived sovereign immunity, even if it was not clear that there was an express waiver of such as indicated by the language of the statutes themselves. That the Commonwealth could not successfully claim that the doctrine of sovereign immunity could bar a declaratory judgment action against it was evident in KRS 61.645(2)(a) that stated the Board could sue and be sued, which included the attempt under KRS 61.637(1) to reduce retiree benefits for those individuals who had returned to public employment and Ky. Const. § 231 stating that the legislature had to authority to waive immunity. Commonwealth v. Ky. Ret. Sys., 396 S.W.3d 833, 2013 Ky. LEXIS 84 ( Ky. 2013 ).

Opinions of Attorney General.

In light of the contractual obligation created by this section, the General Assembly may now limit retirement benefits to a certain maximum percentage of the final annual salary only prospectively as to present nonretired and future members of the retirement plan. OAG 78-4 .

The General Assembly could enact legislation guaranteeing members of this retirement system only the amount each has contributed toward his retirement benefits but such legislation may not have retroactive effect. OAG 78-4 .

The fact that the moneys compulsorily deducted from the employee’s pay in Kentucky Employees Retirement System are his from the moment of deduction makes such compulsory deductions constitutional. OAG 79-414 .

The funds of the Kentucky Employees Retirement System are those of the employee at the moment they are withheld for him. OAG 79-414 .

The transfer of funds from the Kentucky Retirement System’s Retirement Allowance Account to the General Fund by the 1988 General Assembly by Acts 1988, Chapter 437, Part VIII, Fund Transfer was unconstitutional, regardless of the accounting process used. Since the Legislature made no provision for replacing these transferred funds in the future, the transfer of funds was not reasonable under the Legislature’s reserved power to make reasonable modification in the pension plan. Moreover, since the inviolable contract statute (KRS 61.692 ) was left in effect, as it had to be, the fund transfer constituted an unlawful impairment of the state’s obligation to its employees under the KERS retirement statutes to ensure that the contribution rates are sufficient to maintain the pension fund on an actuarially sound basis. OAG 90-6 .

The employee has a contractual interest not only in future benefits but in the security and integrity of the source of funds available to pay future benefits on a long term basis. This inviolable contract includes the retirement program as a whole. OAG 90-6 .

Retroactive amendment to KRS 61.637(7)(a) would “impair the obligations” of the “inviolable contract” of the Commonwealth created by KRS 61.510 to 61.705 thereby interfering with the vested rights of current members of the Kentucky Retirement Systems in violation of both the Contract Clause of the United States Constitution and its state counterpart, Section 19 of the Kentucky Constitution. OAG 04-001 .

61.695. Alteration, amendment or repeal. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 110, § 38) was repealed by Acts 1972, ch. 116, § 78.

61.699. System’s ability to require statements under oath.

  1. Any person, including, but not limited to, members and agency reporting officials, who makes a statement, report, or representation, shall, at the request of the system, make the statement, report, or representation under oath with an acknowledgment that a false statement, report, or representation shall be punishable by law.
  2. Notwithstanding subsection (1) of this section, the system may, in its discretion, rely in good faith on any unsworn statement, report, or representation without further inquiry.

History. Enact. Acts 1992, ch. 240, § 50, effective July 14, 1992; 1996, ch. 167, § 22, effective July 15, 1996.

61.700. False statements or falsification of records — Penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 110, § 39) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

61.701. Kentucky Retirement Systems insurance trust fund and County Employees Retirement System insurance trust fund — Purpose — Administration — Participation, regulation, and termination.

    1. There is hereby maintained a trust fund known as “Kentucky Retirement Systems insurance trust fund.” (1) (a) There is hereby maintained a trust fund known as “Kentucky Retirement Systems insurance trust fund.”
    2. Insurance trust fund assets shall be deemed trust funds to be held and applied solely as provided in this section. Assets shall not be used for any other purpose and shall not be used to pay the claims of creditors or any individual, person, or employer participating in the Kentucky Employees Retirement System, County Employees Retirement System, or State Police Retirement System.
    3. The trust fund has been established as a trust exempt from taxation under 26 U.S.C. sec. 115 .
  1. The insurance trust fund has been created for the purpose of providing a trust separate from the retirement funds. Trust fund assets are dedicated for use for health benefits as provided in KRS 61.702 , and Section 14 of this Act, and as permitted under 26 U.S.C. secs. 105 and 106, to retired recipients and employees of employers participating in the Kentucky Employees Retirement System, County Employees Retirement System, and State Police Retirement System, and to certain of their dependents or beneficiaries, including but not limited to qualified beneficiaries as described in 42 U.S.C. secs. 300 bb-1 et seq.
  2. The boards shall manage the assets of the insurance fund in the same manner in which the respective board administers its retirement funds, except that separate accounting and financial reporting shall be maintained for the insurance trust fund.
  3. In addition to the requirements of subsection (2) of this section, the employers participating in the trust funds are limited to the Commonwealth, political subdivisions of the Commonwealth, and entities whose income is exempt from taxation under 26 U.S.C. sec. 115 . No other entity may participate in the insurance trust funds.
  4. If the insurance trust fund is terminated, the assets in the insurance trust fund may revert, after the payment of all liabilities, to the participating employers as determined by the board of trustees.
  5. The respective board of trustees may adopt regulations and procedures and take all action necessary and appropriate to provide that the income of the insurance trust fund the board administers is exempt from taxation under Title 26 of United States Code.
  6. The establishment of the Kentucky Retirement Systems insurance trust fund shall not diminish or expand the rights of any recipients, employees, or dependents to health benefits.

History. Enact. Acts 1978, ch. 311, § 8, effective June 17, 1978; 1980, ch. 97, § 3, effective July 15, 1980; 1998, ch. 351, § 1, effective July 15, 1998; 2000, ch. 385, § 27, effective July 14, 2000; 2002, ch. 52, § 15, effective July 15, 2002; 2004, ch. 36, § 29, effective July 13, 2004; 2009, ch. 77, § 21, effective June 25, 2009; 2020 ch. 79, § 27, effective April 1, 2021; 2021 ch. 102, § 79, effective April 1, 2021.

61.702. Group hospital and medical insurance and managed care plan coverage — Employee and employer contributions — Minimum service requirements.

      1. The board of trustees of Kentucky Retirement Systems and the County Employees Retirement System shall arrange by appropriate contract or on a self-insured basis to provide a group hospital and medical insurance plan for present and future recipients of a retirement allowance from the systems the respective boards administer, except as provided in subsection (8) of this section. Each respective board shall also arrange to provide health care coverage through an insurer licensed pursuant to Subtitle 38 of KRS Chapter 304 and offering a managed care plan as defined in KRS 304.17A-500 , as an alternative to group hospital and medical insurance for any person eligible for hospital and medical benefits under this section. (1) (a) 1. The board of trustees of Kentucky Retirement Systems and the County Employees Retirement System shall arrange by appropriate contract or on a self-insured basis to provide a group hospital and medical insurance plan for present and future recipients of a retirement allowance from the systems the respective boards administer, except as provided in subsection (8) of this section. Each respective board shall also arrange to provide health care coverage through an insurer licensed pursuant to Subtitle 38 of KRS Chapter 304 and offering a managed care plan as defined in KRS 304.17A-500 , as an alternative to group hospital and medical insurance for any person eligible for hospital and medical benefits under this section.
      2. Any person who chooses coverage under a hospital and medical insurance plan shall pay, by payroll deduction from the retirement allowance or by another method, the difference in premium between the cost of the hospital and medical insurance plan coverage and the benefits to which he or she would be entitled under this section.
      3. For purposes of this section, “hospital and medical insurance plan” may include, at each respective board’s discretion, any one (1) or more of the following:
        1. Any hospital and medical expense policy or certificate, provider-sponsored integrated health delivery network, self-insured medical plan, health maintenance organization contract, or other health benefit plan;
        2. Any health savings account as permitted by 26 U.S.C. sec. 223 or health reimbursement arrangement or a similar account as may be permitted by 26 U.S.C. sec. 105 or 106. Such arrangement or account, in the board’s discretion, may reimburse any medical expense permissible under 26 U.S.C. sec. 213 ; or
        3. A medical insurance reimbursement program established by the board through the promulgation of administrative regulation under which members purchase individual health insurance coverage through a health insurance exchange established under 42 U.S.C. sec. 18031 or 18041.
    1. Each respective board may authorize present and future recipients of a retirement allowance from any of the retirement systems the board administers to be included in the state employees’ group for hospital and medical insurance and shall provide benefits for recipients equal to those provided to state employees having the same Medicare hospital and medical insurance eligibility status, except as provided in subsection (8) of this section. Notwithstanding the provisions of any other statute, recipients shall be included in the same class as current state employees in determining medical insurance policies and premiums.
    2. For recipients of a retirement allowance who are not eligible for the same level of hospital and medical benefits as recipients living in Kentucky having the same Medicare hospital and medical insurance eligibility status, each respective board shall provide a medical insurance reimbursement plan as described in subsection (7) of this section.
    3. Notwithstanding anything in KRS Chapter 61 to the contrary, each respective board of trustees, in its discretion, may take necessary steps to ensure compliance with 42 U.S.C. secs. 300 bb-1 et seq., including but not limited to receiving contributions and premiums from, and providing benefits pursuant to this section to, persons entitled to continuation coverage under 42 U.S.C. secs. 300 bb-1 et seq., regardless of whether such persons are recipients of a retirement allowance.
    1. Each employer participating in the State Police Retirement System as provided for in KRS 16.505 to 16.652 , each employer participating in the County Employees Retirement System as provided in KRS 78.510 to 78.852 , and each employer participating in the Kentucky Employees Retirement System as provided for in KRS 61.510 to 61.705 shall contribute to the insurance trust funds established by KRS 61.701 the amount necessary to provide hospital and medical insurance as provided for under this section. Such employer contribution rate shall be developed by appropriate actuarial method as a part of the determination of each respective employer contribution rate to each respective retirement system determined under KRS 61.565 or 78.635 , as applicable. (2) (a) Each employer participating in the State Police Retirement System as provided for in KRS 16.505 to 16.652 , each employer participating in the County Employees Retirement System as provided in KRS 78.510 to 78.852 , and each employer participating in the Kentucky Employees Retirement System as provided for in KRS 61.510 to 61.705 shall contribute to the insurance trust funds established by KRS 61.701 the amount necessary to provide hospital and medical insurance as provided for under this section. Such employer contribution rate shall be developed by appropriate actuarial method as a part of the determination of each respective employer contribution rate to each respective retirement system determined under KRS 61.565 or 78.635 , as applicable.
      1. Each employer described in paragraph (a) of this subsection shall deduct from the creditable compensation of each member having a membership date on or after September 1, 2008, an amount equal to one percent (1%) of the member’s creditable compensation. The deducted amounts shall, at the discretion of the board, be credited to accounts established pursuant to 26 U.S.C. sec. 401(h) , within the funds established in KRS 16.510 , 61.515 , and 78.520 , or the insurance trust funds established under KRS 61.701, or partially to one (1) fund with the remainder deposited to the other fund. Notwithstanding the provisions of this paragraph, a transfer of assets between the accounts established pursuant to 26 U.S.C. sec. 401(h) , within the funds established in KRS 16.510 , 61.515 , and 78.520 , and the insurance trust funds established under KRS 61.701 shall not be allowed. (b) 1. Each employer described in paragraph (a) of this subsection shall deduct from the creditable compensation of each member having a membership date on or after September 1, 2008, an amount equal to one percent (1%) of the member’s creditable compensation. The deducted amounts shall, at the discretion of the board, be credited to accounts established pursuant to 26 U.S.C. sec. 401(h), within the funds established in KRS 16.510, 61.515, and 78.520, or the insurance trust funds established under KRS 61.701, or partially to one (1) fund with the remainder deposited to the other fund. Notwithstanding the provisions of this paragraph, a transfer of assets between the accounts established pursuant to 26 U.S.C. sec. 401(h), within the funds established in KRS 16.510, 61.515, and 78.520, and the insurance trust funds established under KRS 61.701 shall not be allowed.
      2. The employer shall file the contributions as provided by subparagraph 1. of this paragraph at the retirement office in accordance with KRS 61.675 and 78.625 . Any interest or penalties paid on any delinquent contributions shall be credited to accounts established pursuant to 26 U.S.C. sec. 401(h), within the funds established in KRS 16.510, 61.515, and 78.520, or the insurance trust funds established under KRS 61.701. Notwithstanding any minimum compensation requirements provided by law, the deductions provided by this paragraph shall be made, and the compensation of the member shall be reduced accordingly.
      3. Each employer shall submit payroll reports, contributions lists, and other data as may be required by administrative regulation promulgated by each respective board of trustees pursuant to KRS Chapter 13A.
      4. Every member shall be deemed to consent and agree to the deductions made pursuant to this paragraph, and the payment of salary or compensation less the deductions shall be a full and complete discharge of all claims for services rendered by the person during the period covered by the payment, except as to any benefits provided by KRS 16.505 to 16.652, 61.510 to 61.705, and 78.510 to 78.852. No member may elect whether to participate in, or choose the contribution amount payable to accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520, or the insurance trust funds established under KRS 61.701. The member shall have no option to receive the contribution required by this paragraph directly instead of having the contribution paid to accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520, or the insurance trust funds established under KRS 61.701. No member may receive a rebate or refund of contributions. If a member establishes a membership date prior to September 1, 2008, pursuant to KRS 61.552(1) or 61.552(20), then this paragraph shall not apply to the member and all contributions previously deducted in accordance with this paragraph shall be refunded to the member without interest. The contribution made pursuant to this paragraph shall not act as a reduction or offset to any other contribution required of a member or recipient under KRS 16.505 to 16.652, 61.510 to 61.705, and 78.510 to 78.852.
      5. The respective board of trustees, at its discretion, may direct that the contributions required by this paragraph be accounted for within accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520, or the insurance trust funds established under KRS 61.701, through the use of separate accounts.
    1. The premium required to provide hospital and medical benefits under this section shall be paid: (3) (a) The premium required to provide hospital and medical benefits under this section shall be paid:
      1. Wholly or partly from funds contributed by the recipient of a retirement allowance, by payroll deduction, or otherwise;
      2. Wholly or partly from funds contributed by the insurance trust funds established under KRS 61.701 ;
      3. Wholly or partly from funds contributed to accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510 , 61.515 , and 78.520 ;
      4. Wholly or partly from funds contributed by another state-administered retirement system under a reciprocal arrangement, except that any portion of the premium paid from the insurance trust funds or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510 , 61.515 , and 78.520 under a reciprocal agreement shall not exceed the amount that would be payable under this section if all the member’s service were in one (1) of the systems administered by the Kentucky Retirement Systems or County Employees Retirement System;
      5. Partly from subparagraphs 1. to 4. of this paragraph, except that any premium for hospital and medical insurance over the amount contributed by the insurance trust funds; accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520; or another state-administered retirement system under a reciprocal agreement shall be paid by the recipient by an automatic electronic transfer of funds. If the board provides for cross-referencing of insurance premiums, the employer’s contribution for the working member or spouse shall be applied toward the premium, and the insurance trust funds or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520 shall pay the balance, not to exceed the monthly contribution; or
      6. In full from the insurance trust funds or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520 for all recipients of a retirement allowance from any of the three (3) retirement systems administered by the Kentucky retirement systems or the County Employees Retirement System where such recipient is a retired former member of one (1) or more of the three (3) retirement systems administered by the Kentucky retirement systems or the County Employees Retirement System (not a beneficiary or dependent child receiving benefits) and had two hundred and forty (240) months or more of service upon retirement. Should such recipient have less than two hundred forty (240) months of service but have at least one hundred eighty (180) months of service, seventy-five percent (75%) of such premium shall be paid from the insurance trust fund or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520, provided such recipient agrees to pay the remaining twenty-five percent (25%) by payroll deduction from his or her retirement allowance or by another method. Should such recipient have less than one hundred eighty (180) months of service but have at least one hundred twenty (120) months of service, fifty percent (50%) of such premium shall be paid from the insurance trust fund or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520, provided such recipient agrees to pay the remaining fifty percent (50%) by payroll deduction from his or her retirement allowance or by another method. Should such recipient have less than one hundred twenty (120) months of service but have at least forty-eight (48) months of service, twenty-five percent (25%) of such premium shall be paid from the insurance trust fund or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520, provided such recipient agrees to pay the remaining seventy-five percent (75%) by payroll deduction from his or her retirement allowance or by another method. Notwithstanding the foregoing provisions of this subsection, an employee participating in one (1) of the retirement systems administered by the Kentucky Retirement Systems who becomes disabled as a direct result of an act in line of duty as defined in KRS 16.505 or as a result of a duty-related injury as defined in KRS 61.621 , shall have his or her premium paid in full as if he or she had two hundred forty (240) months or more of service. Further, an employee participating in one (1) of the retirement systems administered by the Kentucky Retirement Systems who dies as a direct result of an act in line of duty as defined in KRS 16.505 , or dies as a result of a duty-related injury as defined in KRS 61.621 , becomes totally and permanently disabled as a direct result of an act in line of duty as defined in Section 1 of this Act, or becomes disabled as a result of a duty-related injury as defined in Section 3 of this Act and is eligible for the benefits provided by subsection (5)(a) of Section 3 of this Act, shall have the premium for his or her spouse, if the member is disabled, his or her beneficiary, if the beneficiary is the member’s spouse and the member is deceased, and for each dependent child as defined in KRS 16.505, paid so long as the member, beneficiary, or dependent child individually remains eligible for a monthly retirement benefit. “Months of service” as used in this section shall mean the total months of combined service used to determine benefits under any or all of the three (3) retirement systems administered by the Kentucky retirement systems or the County Employees Retirement System, except service added to determine disability benefits shall not be counted as “months of service.” For current and former employees of the Council on Postsecondary Education who were employed prior to January 1, 1993, and who earn at least fifteen (15) years of service credit in the Kentucky Employees Retirement System, “months of service” shall also include vested service in another retirement system other than the Kentucky Teachers’ Retirement System sponsored by the Council on Postsecondary Education.
      1. For a member electing insurance coverage through the Kentucky Retirement Systems or County Employees Retirement System, “months of service” shall include, in addition to service as described in paragraph (a) of this subsection, service credit in one (1) of the other state-administered retirement plans. (b) 1. For a member electing insurance coverage through the Kentucky Retirement Systems or County Employees Retirement System, “months of service” shall include, in addition to service as described in paragraph (a) of this subsection, service credit in one (1) of the other state-administered retirement plans.
      2. Effective August 1, 1998, the Kentucky Retirement Systems or County Employees Retirement System shall compute the member’s combined service, including service credit in another state-administered retirement plan, and calculate the portion of the member’s premium to be paid by the insurance trust fund accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520, according to the criteria established in paragraph (a) of this subsection. Each state-administered retirement plan annually shall pay to the insurance trust fund the percentage of the system’s cost of the retiree’s monthly contribution for single coverage for hospital and medical insurance which shall be equal to the percentage of the member’s number of months of service in the other state-administered retirement plan divided by his or her total combined service. The amounts paid by the other state-administered retirement plans and the insurance trust fund or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520 shall not be more than one hundred percent (100%) of the monthly contribution adopted by the respective boards of trustees.
      3. A member may not elect coverage for hospital and medical benefits under this subsection through more than one (1) of the state-administered retirement plans.
      4. A state-administered retirement plan shall not pay any portion of a member’s monthly contribution for medical insurance unless the member is a recipient or annuitant of the plan.
      5. The premium paid by the insurance trust funds established by KRS 61.701 or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520 shall not exceed one hundred percent (100%) of the monthly contribution rate toward hospital and medical insurance coverage approved by the board of trustees of the Kentucky Retirement Systems or the board of trustees of the County Employees Retirement System.
    1. Group rates under the hospital and medical insurance plan shall be made available to the spouse, each dependent child, and each disabled child, regardless of the disabled child’s age, of a recipient who is a former member or the beneficiary, if the premium for the hospital and medical insurance for the spouse, each dependent child, and each disabled child, or beneficiary is paid by payroll deduction from the retirement allowance or by another method. For purposes of this subsection only, a child shall be considered disabled if he or she has been determined to be eligible for federal Social Security disability benefits or meets the dependent disability standard established by the Department of Employee Insurance in the Personnel Cabinet. (4) (a) Group rates under the hospital and medical insurance plan shall be made available to the spouse, each dependent child, and each disabled child, regardless of the disabled child’s age, of a recipient who is a former member or the beneficiary, if the premium for the hospital and medical insurance for the spouse, each dependent child, and each disabled child, or beneficiary is paid by payroll deduction from the retirement allowance or by another method. For purposes of this subsection only, a child shall be considered disabled if he or she has been determined to be eligible for federal Social Security disability benefits or meets the dependent disability standard established by the Department of Employee Insurance in the Personnel Cabinet.
    2. The other provisions of this section notwithstanding, the insurance trust funds or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510 , 61.515 , and 78.520 shall pay a percentage of the monthly contribution for the spouse and for each dependent child of a recipient who was a member of the General Assembly and is receiving a retirement allowance based on General Assembly service, of the Kentucky Employees Retirement System and determined to be in a hazardous position, of the County Employees Retirement System, and determined to be in a hazardous position or of the State Police Retirement System. The percentage of the monthly contribution paid for the spouse and each dependent child of a recipient who was in a hazardous position shall be based solely on the member’s service with the State Police Retirement System or service in a hazardous position using the formula in subsection (3)(a) of this section, except that for any recipient of a retirement allowance from the County Employees Retirement System who was contributing to the system on January 1, 1998, for service in a hazardous position, the percentage of the monthly contribution shall be based on the total of hazardous service and any nonhazardous service as a police or firefighter with the same agency, if that agency was participating in the County Employees Retirement System but did not offer hazardous duty coverage for its police and firefighters at the time of initial participation.
    3. The insurance trust funds or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510 , 61.515 , and 78.520 shall continue the same level of coverage for a recipient who was a member of the County Employees Retirement System after the age of sixty-five (65) as before the age of sixty-five (65), if the recipient is not eligible for Medicare coverage. If the insurance trust funds or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520 provides coverage for the spouse or each dependent child of a former member of the County Employees Retirement System, the insurance trust fund or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510, 61.515, and 78.520 shall continue the same level of coverage for the spouse or each dependent child after the age of sixty-five (65) as before the age of sixty-five (65), if the spouse or dependent child is not eligible for Medicare coverage.
  1. After July 1, 1998, notwithstanding any other provision to the contrary, a member who holds a judicial office but did not elect to participate in the Judicial Retirement Plan and is participating instead in the Kentucky Employees Retirement System, the County Employees Retirement System, or the State Police Retirement System, as provided in KRS 61.680 , and who has at least twenty (20) years of total service, one-half (1/2) of which is in a judicial office, shall receive the same hospital and medical insurance benefits, including paid benefits for spouse and dependents, as provided to persons retiring under the provisions of KRS 21.427. The Administrative Office of the Courts shall pay the cost of the medical insurance benefits provided by this subsection.
  2. Premiums paid for hospital and medical insurance coverage procured under authority of this section shall be exempt from any premium tax which might otherwise be required under KRS Chapter 136. The payment of premiums by the insurance trust funds or accounts established pursuant to 26 U.S.C. sec. 401(h) within the funds established in KRS 16.510 , 61.515 , and 78.520 shall not constitute taxable income to an insured recipient. No commission shall be paid for hospital and medical insurance procured under authority of this section.
  3. Each respective board shall promulgate an administrative regulation to establish a medical insurance reimbursement plan to provide reimbursement for hospital and medical insurance premiums of recipients of a retirement allowance who are not eligible for the same level of hospital and medical benefits as recipients living in Kentucky and having the same Medicare hospital and medical insurance eligibility status. An eligible recipient shall file proof of payment for hospital and medical insurance at the retirement office. Reimbursement to eligible recipients shall be made on a quarterly basis. The recipient shall be eligible for reimbursement of substantiated medical insurance premiums for an amount not to exceed the total monthly premium determined under subsection (3) of this section. The plan shall not be made available if all recipients are eligible for the same coverage as recipients living in Kentucky.
      1. For employees having a membership date on or after July 1, 2003, and before September 1, 2008, participation in the insurance benefits provided under this section shall not be allowed until the employee has earned at least one hundred twenty (120) months of service in the state-administered retirement systems. (8) (a) 1. For employees having a membership date on or after July 1, 2003, and before September 1, 2008, participation in the insurance benefits provided under this section shall not be allowed until the employee has earned at least one hundred twenty (120) months of service in the state-administered retirement systems.
      2. For an employee having a membership date on or after September 1, 2008, participation in the insurance benefits provided under this section shall not be allowed until the employee has earned at least one hundred eighty (180) months of service credited under KRS 16.543(1), 61.543(1), or 78.615(1) or another state-administered retirement system.
    1. An employee who meets the minimum service requirements as provided by paragraph (a) of this subsection shall be eligible for benefits as follows:
      1. For employees who are not in a hazardous position, a monthly insurance contribution of ten dollars ($10) for each year of service as a participating employee.
      2. For employees who are in a hazardous position or who participate in the State Police Retirement System, a monthly insurance contribution of fifteen dollars ($15) for each year of service as a participating employee in a hazardous position or as a participating member of the State Police Retirement System. Upon the death of the retired member, the beneficiary, if the beneficiary is the member’s spouse, shall be entitled to a monthly insurance contribution of ten dollars ($10) for each year of service the member attained as a participating employee in a hazardous position or as a participating member of the State Police Retirement System.
      1. The minimum service requirement to participate in benefits as provided by paragraph (a) of this subsection shall be waived for a member who receives a satisfactory determination of a hazardous disability that is a direct result of an act in line of duty as defined in KRS 16.505 , and the member or his spouse and eligible dependents shall be entitled to the benefits payable under this subsection as though the member had twenty (20) years of service in a hazardous position. (c) 1. The minimum service requirement to participate in benefits as provided by paragraph (a) of this subsection shall be waived for a member who receives a satisfactory determination of a hazardous disability that is a direct result of an act in line of duty as defined in KRS 16.505 , and the member or his spouse and eligible dependents shall be entitled to the benefits payable under this subsection as though the member had twenty (20) years of service in a hazardous position.
      2. The minimum service required to participate in benefits as provided by paragraph (a) of this subsection shall be waived for a member who is disabled as a result of a duty-related injury as defined in KRS 61.621 and is eligible for the benefits provided by subsection (5)(b) of Section 3 of this Act,, and the member shall be entitled to the benefits payable under this subsection as though the member has twenty (20) years of service in a nonhazardous position.
      3. Notwithstanding the provisions of this section, the minimum service required to participate in benefits as provided by paragraph (a) of this subsection shall be waived for a member who dies as a direct result of an act in line of duty as defined in KRS 16.505, who becomes totally and permanently disabled as a direct result of an act in line of duty as defined in Section 1 of this Act, who dies as a result of a duty-related injury as defined in KRS 61.621 , or becomes disabled as a result of a duty-related injury as defined in Section 3 of this Act and is eligible for the benefits provided by subsection (5)(a) of Section 3 of this Act, and the premium for the member, member’s spouse, and for each dependent child as defined in KRS 16.505 shall be paid in full by the systems so long as they individually remain eligible for a monthly retirement benefit.
    2. Except as provided by paragraph (c)3. of this subsection, the monthly insurance contribution amount shall be increased July 1 of each year by one and one-half percent (1.5%). The increase shall be cumulative and shall continue to accrue after the member’s retirement for as long as a monthly insurance contribution is payable to the retired member or beneficiary.
    3. The benefits of this subsection provided to a member whose participation begins on or after July 1, 2003, shall not be considered as benefits protected by the inviolable contract provisions of KRS 61.692 , 16.652 , and 78.852 . The General Assembly reserves the right to suspend or reduce the benefits conferred in this subsection if in its judgment the welfare of the Commonwealth so demands.
    4. An employee whose membership date is on or after September 1, 2008, who retires and is reemployed in a regular full-time position required to participate in one (1) of the systems administered by Kentucky Retirement Systems shall not be eligible for health insurance coverage or benefits provided by this section and shall take coverage with his or her employing agency during the period of reemployment in a regular full-time position.

HISTORY: Enact. Acts 1978, ch. 311, § 9, effective June 17, 1978; 1980, ch. 97, § 4, effective July 15, 1980; 1980, ch. 186, § 17, effective July 15, 1980; 1982, ch. 423, § 13, effective July 15, 1982; 1986, ch. 295, § 1, effective July 15, 1986; 1990, ch. 489, § 9, effective July 13, 1990; 1992, ch. 92, § 1, effective July 14, 1992; 1996, ch. 167, §§ 23, 31, effective July 15, 1996; 1998, ch. 105, § 20, effective July 15, 1998; 1998, ch. 351, § 2, effective July 15, 1998; 2000, ch. 341, § 6, effective July 14, 2000; 2000, ch. 385, § 28, effective July 14, 2000; 2001, ch. 7, § 2, effective June 21, 2001; 2003, ch. 155, § 1, effective June 24, 2003; 2004, ch. 33, § 5, effective July 13, 2004; 2004, ch. 36, § 30, effective July 13, 2004; 2006, ch. 164, § 3, effective July 12, 2006; 2008 (1st Ex. Sess.), ch. 1, § 24, effective June 27, 2008; 2009, ch. 77, § 22, effective June 25, 2009; 2013, ch. 120, § 71, effective July 1, 2013; 2017 ch. 32, § 21, effective June 29, 2017; 2018 ch. 107, § 30, effective July 14, 2018; 2018 ch. 151, § 6, effective April 13, 2018; 2019 ch. 182, § 4, effective June 27, 2019; 2020 ch. 79, § 28, effective April 1, 2021; 2021 ch. 106, § 4, effective June 29, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the pas-sage of 2018 SB 151 ( 2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

(4/13/2018). This statute was amended in 2018 Ky. Acts ch. 151, sec. 6. Section 8 of that Act reads as follows:

“Notwithstanding KRS 16.505 to 16.652 , 61.510 to 61.705 , 78.510 to 78.852 , 161.220 to 161.716, or any provision of Sections 1 to 7 of this Act to the contrary, the Kentucky Retirement Systems shall provide the following benefit adjustments to surviving spouses and dependent children of those members who died prior to the effective date of this Act [April 13, 2018] and whose death was determined by the systems to be a direct result of an act in line of duty as defined in subsection (19) of Section 1 of this Act [ KRS 16.505 ] or whose death resulted from a duty-related injury as defined in Section 5 of this Act [ KRS 61.621 ]:

  1. In the month following the effective date of this Act [April 13, 2018], the surviving spouse, if the spouse is receiving a monthly benefit due to a member's death, shall have his or her monthly benefit increased to the amount specified by Section 2 or 5 of this Act [  KRS 16.601 or 61.621 ], as applicable, except that the amount shall not be increased above a level that exceeds 100 percent of the member's monthly average pay when combined with any dependent child payments from the systems;
  2. In the month following the effective date of this Act [April 13, 2018], any dependent child who is receiving a monthly benefit due to a member's death shall have his or her monthly benefit increased to the amount specified by Section 2 or 5 of this Act [  KRS 16.601 or 61.621 ], as applicable, if the member was not married at the time of death;
  3. In the month following the effective date of this Act [April 13, 2018], a surviving spouse who was married to the deceased member at the time of death but who was ineligible for monthly benefits payable to the surviving spouse under   KRS 16.601 as codified prior to the effective date of this Act [April 13, 2018], shall receive the monthly benefit payable to the surviving spouse in Section 2 of this Act [  KRS 16.601 ], provided the member's death occurred on or after January 1, 2017; and
  4. In the month following the effective date of this Act [April 13, 2018], any surviving spouse and any dependent child of a deceased member who is receiving a monthly benefit shall be eligible for the health benefits specified by Section 6 of this Act [this statute].

The provisions of this section shall only be construed to provide benefit adjustments to surviving spouses and dependent children of those members who died prior to the effective date of this Act [April 13, 2018] and only in situations where the member's death was determined by the systems to be the direct result of an act in line of duty as defined in subsection (19) of Section 1 of this Act [ KRS 16.505 ] or resulted from a duty-related injury as defined in Section 5 of this Act [ KRS 61.621 ].”

(6/27/2008). 2008 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 43, provides “Notwithstanding any provision of KRS 61.565 or 61.702 to the contrary, the employer contribution rates for the County Employees Retirement Systems (sic) from July 1, 2008, through June 30, 2009, shall be 13.5 percent, consisting of 7.76 percent for pension and 5.74 percent for insurance, for nonhazardous duty employees; and 29.5 percent, consisting of 15.04 percent for pension and 14.46 percent for insurance, for hazardous duty employees.”

(6/27/2008). The Reviser of Statutes has altered the numbering of subsection (3)(b) of this statute under the authority of KRS 7.136(1)(c).

NOTES TO DECISIONS

1.Minimum Insurance Standards.

Where the class members were recipients of a state retirement allowance and had a stake in the controversy over what group health insurance must be offered, they had standing to sue the Board of Trustees of the Kentucky Retirement Systems; because genuine issues of material fact existed as to whether the benefits provided for the time period covered by the complaint comported with the minimum requirements set forth in KRS 18A.225(2)(a), the Board was not entitled to summary judgment. Kurtsinger v. Bd. of Trs. of Ky. Ret. Sys., 2004 Ky. App. LEXIS 261 (Ky. Ct. App. Apr. 30, 2004).

Opinions of Attorney General.

In order to take advantage of the group rates available for hospital and medical insurance coverage provided by subsection (4) of this section, premiums may only be paid by payroll deductions and not in any other manner. OAG 79-360 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. IV, 6 at 938.

61.703. Collection of benefit less than $1,000 by surviving relative.

  1. Upon the death of a member, retiree, or recipient who has an existing account or other benefit in a retirement system administered by the Kentucky Retirement Systems that totals no more than one thousand dollars ($1,000), the surviving spouse, or if none, a surviving child, or if none, a surviving parent, or if none, a surviving brother or sister, may without formal administration of the estate collect the account subject to the provisions of this section.
  2. The surviving spouse, child, parent, or brother or sister who makes demand for the deceased member, retiree, or recipient account shall file with the retirement office an affidavit stating that he or she is entitled to payment of the account. The affidavit shall conform to the requirements of the administrative regulation promulgated by the board.
  3. After having paid the account to the surviving spouse, child, parent, or brother or sister, the retirement system shall be discharged and held harmless to the same extent as if conducting business with a personal representative. The retirement system shall not be required to inquire into the truth or veracity of any statement made in the affidavit. In the event any person or entity establishes a superior right to the account, the surviving spouse, child, parent, or brother or sister, and not the Kentucky Retirement Systems, shall be answerable and accountable to any appointed personal representative for the estate.

History. Enact. Acts 2002, ch. 52, § 17, effective July 15, 2002.

61.705. Death benefit — Designation of beneficiary — Debt owed at death — Assignment of benefit — Limited application for members who began participating on or after January 1, 2014. [Declared void — See LRC Note Below]

  1. Upon the death of a retired member of the Kentucky Employees Retirement System or State Police Retirement System who was receiving a monthly retirement allowance based on a minimum of forty-eight (48) months of service or whose retirement allowance based on a minimum of forty-eight (48) months was suspended in accordance with KRS 61.637 , a death benefit of five thousand dollars ($5,000) shall be paid. If the retired member had more than one (1) account in the Kentucky Employees Retirement System or State Police Retirement System, or was eligible for a benefit under Section 15 of this Act from the County Employees Retirement System, the systems shall pay only one (1) five thousand dollar ($5,000) death benefit. Each system’s cost shall be prorated between the systems based upon the level of service credit in each system. Application for the death benefit made to the Kentucky Retirement Systems shall include acceptable evidence of death and of the eligibility of the applicant to act on the deceased retired member’s behalf.
  2. The death benefit shall be paid to a beneficiary named by the retired member. Upon retirement or any time thereafter, the retired member may designate on the form prescribed by the board, death benefit designation, a person, the retired member’s estate, a trust or trustee, or a licensed funeral home, as the beneficiary of the death benefit provided by this section or Section 15 of this Act. The beneficiary for the death benefit may or may not be the same beneficiary designated in accordance with KRS 61.590(1) but only one (1) designation shall be available to a retired member who has service in both the County Employees Retirement System and the Kentucky Retirement Systems. If the beneficiary designated under this section is a person and that person dies prior to the member, or if the beneficiary was the retired member’s spouse and they were divorced on the date of the retired member’s death, then the retired member’s estate shall become the beneficiary, unless the retired member has filed a subsequent death benefit designation. If a licensed funeral home is designated as beneficiary and the licensed funeral home cannot be reasonably identified or located by Kentucky Retirement Systems at the time of the retired member’s death, then the retired member’s estate shall become the beneficiary of the death benefit.
  3. If, at the time of the retired member’s death, a debt to the Kentucky Retirement Systems remains on his or her account, the balance owed shall be deducted from the five thousand dollars ($5,000) death benefit.
  4. Upon the death of a retired member, the death benefit provided pursuant to this section may be assigned by the designated beneficiary to a bank or licensed funeral home.

.

HISTORY: Enact. Acts 1980, ch. 186, § 18, effective July 15, 1980; 1982, ch. 423, § 14, effective July 15, 1982; 1988, ch. 349, § 30, effective July 15, 1988; 1998, ch. 123, § 2, effective July 15, 1998; 2000, ch. 385, § 29, effective July 14, 2000; 2002, ch. 52, § 16, effective July 15, 2002; 2009, ch. 77, § 23, effective June 25, 2009; 2011, ch. 68, § 1, effective June 8, 2011; 2018 ch. 107, § 31, effective July 14, 2018; 2021 ch. 102, § 74, effective June 29, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

Unfunded Liability Trust Fund

61.706. Kentucky Retirement Systems unfunded liability trust fund.

  1. The Kentucky Retirement Systems unfunded liability trust fund is created and shall be administered by the Finance and Administration Cabinet.
    1. The trust fund shall consist of: (2) (a) The trust fund shall consist of:
      1. Contributions, gifts, and donations;
      2. Any moneys designated by the General Assembly for deposit into the fund; and
      3. Any other proceeds from grants, appropriations, or other moneys made available for the purposes of the trust fund.
    2. Any donor may designate to which system within the Kentucky Retirement Systems the donation shall benefit, including:
      1. The Kentucky Employees Retirement System nonhazardous fund;
      2. The Kentucky Employees Retirement System hazardous fund;
      3. The County Employees Retirement System nonhazardous fund;
      4. The County Employees Retirement System hazardous fund; or
      5. The State Police Retirement System.
    3. Checks submitted for donations shall be made payable to the Kentucky State Treasurer.
  2. Moneys in the trust fund:
    1. Shall be disbursed quarterly to the Kentucky Retirement Systems;
    2. Shall be used to eliminate any unfunded liability and supplement the investible assets of the Kentucky Retirement Systems; and
    3. Are hereby appropriated for the purposes set forth in paragraph (b) of this subsection.
  3. Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of the fiscal year shall not lapse but shall be carried forward into the succeeding fiscal year to be used for the purposes provided by subsection (3) of this section.
  4. Interest earned on any moneys in the trust fund shall accrue to the trust fund.
    1. The Finance and Administration Cabinet shall separately account for each contribution, gift, or donation made to the trust fund and shall publish on its Web site a listing of each contribution, gift, or donation made and a cumulative total of the value of all contributions, gifts, or donations, including the cumulative total, since the creation of the fund, for each donor or association of donors or entities, other than those wishing to remain anonymous. (6) (a) The Finance and Administration Cabinet shall separately account for each contribution, gift, or donation made to the trust fund and shall publish on its Web site a listing of each contribution, gift, or donation made and a cumulative total of the value of all contributions, gifts, or donations, including the cumulative total, since the creation of the fund, for each donor or association of donors or entities, other than those wishing to remain anonymous.
    2. Information listed on the Web site related to each contribution may include all information set out in this paragraph, as reported by the donor:
      1. The name of donor;
      2. The location of the donor by county, if the donor is located in Kentucky, or by state, if the donor is located outside Kentucky; and
      3. The title or position of the donor, or the association of the donor with any other entity.
    3. Anonymous donations shall be accepted without requiring any of the information provided in paragraph (b) of this subsection.
  5. The Finance and Administration Cabinet may work in conjunction with management consultants and others willing to give of their time and talents to create a strategic plan to encourage individuals, foundations, associations, corporations, and other entities to make donations to the fund.

History. Enact. Acts 2013, ch. 119, § 22, effective June 25, 2013.

Financial Disclosure

61.710. Persons subject to KRS 61.710 to 61.780.

  1. KRS 61.710 to 61.780 apply to Justices and Judges of the Court of Justice, Commonwealth’s attorneys, and all candidates for all those offices. KRS 61.710 to 61.780 also apply to a person appointed to a vacancy in an unexpired term of any office mentioned above.
  2. KRS 61.710 to 61.780 also apply to:
    1. Any employee of a daily newspaper of 50,000 or more circulation published in Kentucky who either orally, or in writing contributes to the editorial policy of the newspaper; and
    2. Any employee of a radio or television station that is owned in common with a newspaper described above who directly or indirectly contributes to the editorial policy of the station.

History. Enact. Acts 1972, ch. 229, § 1; 1976, ch. 62, § 57; 1978, ch. 288, § 6, effective June 17, 1978; 1993 (1st Ex. Sess.), ch. 4, § 79, effective September 16, 1993.

Opinions of Attorney General.

Insofar as this section requires financial disclosure by newspaper, radio and television station employees it is unconstitutional as an arbitrary classification as the act was designed solely to apply to public officials and candidates for public office and as being special legislation in violation of sections 3, 59 and 60 of the Constitution. OAG 72-289 .

The disclosure provisions of this act are also invalid as to the principal employers of the employees referred to in this section. OAG 72-324 .

Since eight (8) members of the board of regents of Northern Kentucky State College were appointed by Governor pursuant to KRS 164.320 (now repealed) they were required to file with the Kentucky Registry of Election Finance under the Financial Disclosure Law. OAG 73-242 .

Since the president and other employees of a university or state college are not appointed directly by the Governor or with the approval of the Governor these officials, due to the peculiar language found in this section and by referral to KRS 12.040 and KRS 12.050 are not required to file financial statements under the disclosure law. OAG 73-242 .

All of the commissioners of the Kentucky Savings Bond Authority consisting of three (3) ex officio members appointed under KRS 12.040 and four (4) members appointed by the Governor under KRS 12.070 , are required to file in accordance with the Financial Disclosure Act. OAG 73-726 .

61.720. Definitions.

As used in KRS 61.710 to 61.780 :

“Financial interest” means an economic interest in the form of stocks, bonds, realty, equity or credit or interests in a corporation, proprietorship or partnership or otherwise.

History. Enact. Acts 1972, ch. 229, § 2; 1974, ch. 308, § 26.

Opinions of Attorney General.

The term “financial interest” embraces an economic interest in the form of bonds which would seem necessarily to embrace municipal bonds even though they are tax emempt. OAG 73-12 .

Reading the definition of “financial interest” in conjunction with the filing requirements under KRS 61.740(1)(a) would exclude the necessity of officers or candidates listing property occupied as their home, as it appears to refer only to property held for income producing purposes. OAG 73-286 .

61.730. Date for filing reports.

Each person subject to KRS 61.710 to 61.780 , while holding office or employment, shall file with the Kentucky Registry of Election Finance, by March 15 of each year, the written report required by KRS 61.740 . Each person who is a candidate for any of the subject offices shall file with the Registry of Election Finance, by March 15 of the year in which he becomes a candidate, the report required by KRS 61.740 . Nothing in KRS 61.710 to 61.780 shall be construed to require the filing of more than one (1) complete report for each subject individual each year, except that each individual shall, in writing, notify the Registry of Election Finance of the acquisition or termination of any interests subject to the requirements of KRS 61.710 to 61.780 by January 1 of each year.

History. Enact. Acts 1972, ch. 229, § 3; 1990, ch. 203, § 1, effective July 13, 1990.

Opinions of Attorney General.

As this section did not become effective until June 16, 1972, the deadline provided herein would not apply to office holders and candidates until 1973. OAG 72-289 .

61.740. Information required to be filed.

  1. Persons required to file information under KRS 61.710 to 61.780 shall file with the Registry of Election Finance the following:
    1. A description of each financial interest, direct or indirect, of a value of $1,000 or greater of himself, his spouse and his dependents, and his principal employer. Exempted from this disclosure are interests in the form of accounts in banks, savings and loan associations, and credit unions and equity interests valued at less than $1,000.
    2. A list of every office, directorship or employment held by the subject individual and by his spouse and dependents and his principal employer in any entity regardless of the income received or equity held, excepting such activities in political, religious or charitable entities if compensation of less than $1,000 per year is received.
    3. A list of all entities to whom the subject individual and his principal employer furnished compensated services valued at more than $1,000 during the period covered by the report.
  2. The values of the interests required to be reported under this section need not be disclosed. Any entity required to be reported under this section need not be identified by name. Such entity may instead be identified by the principal types of economic activities in which it engages, together with such additional detail, to be prescribed by the registry, as will fairly indicate its interests. Where disclosure is required because of legal services rendered to it, such entity may also be described by the type of legal services rendered to it.

History. Enact. Acts 1972, ch. 229, § 4.

Opinions of Attorney General.

Reading the definition of “financial interest” from KRS 61.720 in conjunction with the filing requirements under subsection (1)(a) would exclude the necessity of officers or candidates listing property occupied as his home, as it appears to refer only to property held for income producing purposes. OAG 73-286 .

61.750. Reports are public records — Publication of names of persons failing to file.

Reports required by KRS 61.710 to 61.780 shall be filed with the Kentucky Registry of Election Finance and shall be public record, subject to inspection by any citizen of the Commonwealth. Within thirty (30) days after reports are due, the Registry of Election Finance shall publish a list of those persons who have filed reports, and shall notify any person required to file, who has failed to file such report, by certified mail, return receipt requested of his failure to comply with KRS 61.710 to 61.780 .

History. Enact. Acts 1972, ch. 229, § 5; 1974, ch. 315, § 5; 1980, ch. 114, § 9, effective July 15, 1980.

61.760. Registry may appoint employees, adopt regulations, hold hearings.

  1. The Registry of Election Finance shall appoint such employees as are necessary to provide the service to carry out all purposes of KRS 61.710 to 61.780 , including an attorney or attorneys on a full or part-time basis.
  2. The registry shall adopt such regulations and official forms and perform such duties as are necessary to implement the provisions of KRS 61.710 to 61.780 . The registry is authorized and empowered to:
    1. Develop prescribed forms for the making of the required reports;
    2. Prepare and publish a manual for the individuals subject to KRS 61.710 to 61.780 describing the requirements of the law, including uniform methods of reporting;
    3. Permit copying or photocopying of any reports as requested by any person;
    4. Ascertain whether any individual subject to the requirements of KRS 61.710 to 61.780 has failed to file a report or has filed a defective report, give notice to delinquents of failure to file the report, as provided in KRS 61.740 ;
    5. Hold public hearings, investigate any violations in reporting, and issue subpoenas for the production of documents and attendance of witnesses.

History. Enact. Acts 1972, ch. 229, § 6.

61.770. Registry may institute action to declare vacancy upon determination violation occurred.

The office or candidacy of any person required by KRS 61.710 to 61.780 to file a report who fails to file the report required by KRS 61.710 to 61.780 within thirty (30) days after receipt of the registry’s notice of noncompliance provided in KRS 61.750 or willfully files fraudulent information shall be void, and the office or candidacy shall be filled as provided by law for the filling of the vacancy. An action to declare a vacancy under KRS 61.710 to 61.780 may be brought by the registry upon its determination, after investigation and hearing, that a violation of KRS 61.710 to 61.780 has occurred.

History. Enact. Acts 1972, ch. 229, § 7.

Opinions of Attorney General.

Provisions on vacating office are inapplicable to persons named in KRS 61.710 holding offices listed in Const., §§ 68 and 227 which provide for the exclusive method of their removal but the provisions are applicable to candidates prior to their election and to all appointive officers. OAG 72-289 .

61.780. Construction.

Nothing contained in KRS 61.710 to 61.780 shall be construed so as to cause any person to violate the provisions of KRS 421.210 .

History. Enact. Acts 1972, ch. 229, § 8.

Compiler’s Notes.

KRS 421.210 referred to in this section has been repealed. For present law see Kentucky Rules of Evidence, Rules 501 to 511.

Financial Disclosure Review Commission

61.782. Financial Disclosure Review Commission created. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 288, § 1, effective June 17, 1978) was repealed by Acts 1992, ch. 287, § 16, effective July 14, 1992. For present law see KRS Chapter 11A.

61.784. Membership — Appointment — Terms — Compensation — Executive director. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 288, § 2, effective June 17, 1978) was repealed by Acts 1992, ch. 287, § 16, effective July 14, 1992. For present law see KRS Chapter 11A.

61.786. Officers subject to review. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 288, § 3, effective June 17, 1978) was repealed by Acts 1992, ch. 287, § 16, effective July 14, 1992. For present law see KRS Chapter 11A.

61.788. Submission of information by officers — Form — Questioning by commission — Meetings of commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 288, § 4, effective June 17, 1978) was repealed by Acts 1992, ch. 287, § 16, effective July 14, 1992. For present law see KRS Chapter 11A.

61.790. Information held confidential. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 288, § 5, effective June 17, 1978) was repealed by Acts 1992, ch. 287, § 16, effective July 14, 1992. For present law see KRS Chapter 11A.

Open Meetings of Public Agencies

61.800. Legislative statement of policy.

The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.

History. Enact. Acts 1992, ch. 162, § 1, effective July 14, 1992.

NOTES TO DECISIONS

1.Coverage.

While the coverage of the Open Meetings Act, KRS 61.800 , was broad enough to include a police captain’s termination hearing, the police captain did not follow the procedures in KRS 61.846 and 61.848 , and so was not entitled to relief. Howard v. City of Independence, 199 S.W.3d 741, 2005 Ky. App. LEXIS 230 (Ky. Ct. App. 2005), abrogated in part, Pearce v. Univ. of Louisville, 2011 Ky. App. Unpub. LEXIS 998 (Ky. Ct. App. Nov. 18, 2011).

School board ran afoul of the Kentucky Open Meetings Act, KRS 61.800 et. seq., when it negotiated the terms of a resignation and personal services contract with a superintendent for consulting services behind closed doors. Carter v. Smith, 2010 Ky. App. LEXIS 66 (Ky. Ct. App. Apr. 2, 2010), sub. op., 2010 Ky. App. LEXIS 117 (Ky. Ct. App. June 25, 2010).

County Board of Education’s negotiation of a consulting contract with a superintendent as an independent contractor during a closed session violated the Kentucky Open Meetings Act, KRS 61.800 et seq. Carter v. Smith, 2010 Ky. App. LEXIS 117 (Ky. Ct. App. June 25, 2010).

County Board of Education violated Kentucky’s Open Meetings Act, KRS 61.800 - 61.850 , by discussing in a closed session the resignation of the superintendent of schools and his appointment as a consultant to the school district. Neither the litigation exception in KRS 61.810 (l)(c) nor the personnel exception in KRS 61.810 (l)(f) applied; there was only a remote possibility of litigation, and the enumerated personnel topics did not include either an employee’s resignation or a contractor’s hiring. Carter v. Smith, 366 S.W.3d 414, 2012 Ky. LEXIS 66 ( Ky. 2012 ).

City did not violate the Open Meetings Act, KRS 61.800 et seq., when it conducted settlement negotiations privately with the property owners regarding a zoning matter where the settlement agreement itself was voted on in an open meeting. Although the residents claimed that the private settlement negotiations violated that law, an exception in the Open Meetings Act, KRS 61.810(1)(c), allowed discussion regarding proposed or pending litigation to be conducted privately so long as the final settlement agreement itself was voted on in an open meeting. Cunningham v. Whalen, 373 S.W.3d 438, 2012 Ky. LEXIS 109 ( Ky. 2012 ), cert. denied, 568 U.S. 1158, 133 S. Ct. 1245, 185 L. Ed. 2d 179, 2013 U.S. LEXIS 1105 (U.S. 2013).

Litigation exception to open public meetings was not applicable to the school board’s decision directing legal counsel to pursue a challenge to the petition to recall the board’s nickel tax because it was a “final action” of the board to authorize litigation. Webster County Bd. of Educ. v. Newell, 392 S.W.3d 431, 2013 Ky. App. LEXIS 31 (Ky. Ct. App. 2013).

Action of the school board at a closed meeting could not be ratified at the open public meeting because no vote was taken during an open session and because consensus was not established. Webster County Bd. of Educ. v. Newell, 392 S.W.3d 431, 2013 Ky. App. LEXIS 31 (Ky. Ct. App. 2013).

Cited in:

Bd. of Comm'rs of Danville v. Advocate Communs., 527 S.W.3d 803, 2017 Ky. LEXIS 501 ( Ky. 2017 ).

Opinions of Attorney General.

The interview and discussion portion of a parole release hearing with the prisoner are meetings open to the public, but the deliberations for decisions of the parole board may be conducted in closed sessions. The hearings conducted pursuant to subsection (5) of KRS 439.340 may be closed pursuant to a closure request by the persons having a right to appear at such hearings for reasons of personal security. OAG 92-146 .

The litigation exception of subdivision (1)(c) of KRS 61.810 , like other exceptions to the basic policy of open and public meetings, must be narrowly construed; it cannot be invoked when the agency does nothing more than monitor cases which have not been filed against or on behalf of the public agency attempting to utilize the exception. OAG 93-OMD-119.

When university board of regents was considering an appointment or several appointments to a presidential search committee the appointees were not employees of the university or the board but were persons filling positions on an entity created by the board and their temporary existence would end when their task was complete; the board was not appointing, at that time, a university employee, the university president and thus the board incorrectly relied on KRS 61.810(1)(f) to close an otherwise public meeting to discuss the appointment of persons to the search committee. OAG 97-OMD-80.

Public agency violated the Open Meetings Act when it invoked the exceptions set forth in KRS 61.810(1)(f) and gave as its reasons the intent to discuss individual personnel matters or specific employee matters. Since the only personnel matters which can be discussed in a closed session pertain to the possible appointment, discipline, or dismissal of personnel of that particular agency, the public agency should have indicated which of those particular authorized exceptions it was utilizing and why the session was being closed (which frequently involves privacy considerations). OAG 97-OMD-110.

Research References and Practice Aids

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Candid Kentucky: The Commonwealth’s Devotion to an Open Government, 39 N. Ky. L. Rev. 45 (2012).

61.805. Definitions for KRS 61.805 to 61.850.

As used in KRS 61.805 to 61.850 , unless the context otherwise requires:

  1. “Meeting” means all gatherings of every kind, including video teleconferences, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting;
  2. “Public agency” means:
    1. Every state or local government board, commission, and authority;
    2. Every state or local legislative board, commission, and committee;
    3. Every county and city governing body, council, school district board, special district board, and municipal corporation;
    4. Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
    5. Any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government;
    6. Any entity when the majority of its governing body is appointed by a “public agency” as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a “public agency,” a state or local officer, or any combination thereof;
    7. Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a “public agency” as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection; and
    8. Any interagency body of two (2) or more public agencies where each “public agency” is defined in paragraph (a), (b), (c), (d), (e), (f), or (g) of this subsection;
  3. “Action taken” means a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body; and
  4. “Member” means a member of the governing body of the public agency and does not include employees or licensees of the agency.
  5. “Video teleconference” means one (1) meeting, occurring in two (2) or more locations, where individuals can see and hear each other by means of video and audio equipment.

History. Enact. Acts 1974, ch. 377, § 1; 1992, ch. 162, § 2, effective July 14, 1992; 1994, ch. 245, § 1, effective July 15, 1994.

NOTES TO DECISIONS

1.Legislative Intent.

Clearly, the intent of the legislature in enacting the Open Meetings Act was to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies. E.W. Scripps Co. v. Maysville, 790 S.W.2d 450, 1990 Ky. App. LEXIS 71 (Ky. Ct. App. 1990).

2.Executive Sessions.

Public bodies may discuss proposed or pending litigation with their counsel in executive session. Fiscal Court of Jefferson County v. Courier-Journal & Louisville Times Co., 554 S.W.2d 72, 1977 Ky. LEXIS 480 ( Ky. 1977 ).

3.Injunctive Relief.

Injunction directing members of fiscal court to obey the Kentucky Open Meetings Act was both overbroad and vague and, thus, erroneously granted. Fiscal Court of Jefferson County v. Courier-Journal & Louisville Times Co., 554 S.W.2d 72, 1977 Ky. LEXIS 480 ( Ky. 1977 ).

Injunction was proper under KRS 61.848 — even without a showing that petitioners had no adequate remedy at law — when a school board violated the Open Meeting Law by discussing a personnel reorganization plan in closed “executive” meetings; the preparation-for-litigation exception would not apply to mere discussion of whether dismissed administrators might sue the board. Also, the board failed to adhere to KRS 61.815 , which requires that, before going into a closed session, a public body must state the exact exception it relies on to go into a closed meeting. Floyd County Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 1997 Ky. LEXIS 145 ( Ky. 1997 ).

Action of the school board at a closed meeting could not be ratified at the open public meeting because no vote was taken during an open session and because consensus was not established. Webster County Bd. of Educ. v. Newell, 392 S.W.3d 431, 2013 Ky. App. LEXIS 31 (Ky. Ct. App. 2013).

4.Violations.

Closed meetings of the fiscal court which were held at a luncheon at a boat club and thereafter on a boat to discuss the continuing effort of the county police to have the fraternal order of police recognized as their bargaining agent, the operation of the park and recreation department and the Belle of Louisville, and the potential acquisition of an island were illegal under the Kentucky Open Meetings Law. Fiscal Court of Jefferson County v. Courier-Journal & Louisville Times Co., 554 S.W.2d 72, 1977 Ky. LEXIS 480 ( Ky. 1977 ).

Closed meeting of fiscal court with county attorney to discuss draft of a proposed county ordinance prepared by the county attorney which would permit electioneering near the polls was illegal under the Kentucky Open Meetings Law; however, discussion at meeting of the implied threat of legal action by organized political group was not illegal. Fiscal Court of Jefferson County v. Courier-Journal & Louisville Times Co., 554 S.W.2d 72, 1977 Ky. LEXIS 480 ( Ky. 1977 ).

Telephone votes of fiscal court which promoted and set the salary of a county employee and which approved the lease by the county of real estate for use of the social services department are void under the Kentucky Open Meetings Law. Fiscal Court of Jefferson County v. Courier-Journal & Louisville Times Co., 554 S.W.2d 72, 1977 Ky. LEXIS 480 ( Ky. 1977 ).

Fiscal court considering zoning plan violated the Open Meetings Act when it improperly considered the record of a previous zoning request; therefore, the proceedings were sufficiently prejudicial to void the action of the fiscal court. Ridenour v. Jessamine County Fiscal Court, 842 S.W.2d 532, 1992 Ky. App. LEXIS 202 (Ky. Ct. App. 1992).

Adoption of a dress code by a middle school did not violate the Kentucky Open Meetings Act, KRS 61.805 et seq.; the council minutes stated that a second reading of the dress code was conducted and the minutes recorded the action taken, which was all that was required under KRS 61.835 . Further, adoption of the dress code by “consensus” was an “action taken” within the meaning of KRS 61.805 (3). Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 2005 FED App. 0058P, 2005 U.S. App. LEXIS 1969 (6th Cir. Ky. 2005 ).

5.Local Ordinances and Resolutions.

“Resolution” as used in this section refers to an action of a municipal legislative body such as the resolutions referred to in KRS 83.090(3) (now repealed), KRS 84.100(2), (3) (now repealed), KRS 85.110(3) (now repealed); it is not intended to include resolutions of another public agency but refers to local ordinances and resolutions used interchangeably. Courier-Journal & Louisville Times Co. v. University of Louisville Bd. of Trustees, 596 S.W.2d 374, 1979 Ky. App. LEXIS 524 (Ky. Ct. App. 1979).

6.University Foundations.

As long as the bylaws of the University of Louisville Foundation, Inc. provide for a membership of a quorum of the Board of Trustees of the University of Louisville, meetings of the University of Louisville Foundation, Inc. are subject to the Open Meetings Law. Courier-Journal & Louisville Times Co. v. University of Louisville Bd. of Trustees, 596 S.W.2d 374, 1979 Ky. App. LEXIS 524 (Ky. Ct. App. 1979).

7.Public Agency.

The State Board of Accountancy is not a quasi-judicial body excluded from the definition of “public agency” found in this section, since otherwise any administrative agency which occasionally held hearings on certain matters could exempt itself from the open meetings statutes and, moreover, there would be no need for the exception to the open meeting requirement found in KRS 61.810(6) (now (1)(f)), because any agency which held any disciplinary hearings would be quasi-judicial; accordingly, the board violated the open meeting laws by conducting its final deliberations on the question of whether to censure an accountant in a closed session. Stinson v. State Bd. of Accountancy, 625 S.W.2d 589, 1981 Ky. App. LEXIS 304 (Ky. Ct. App. 1981).

A public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency. Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 1987 Ky. LEXIS 227 ( Ky. 1987 ).

The Board of Trustees of the University of Kentucky was created by statute, so that the Presidential Search Committee, which was created by formal action of the Board of Trustees, was a public agency and therefore subject to the provisions of this section. Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 1987 Ky. LEXIS 227 ( Ky. 1987 ).

8.Meeting.

For a meeting to take place within the meaning of the Open Meetings Act, public business must be discussed or action must be taken by the agency. Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 1998 Ky. LEXIS 140 ( Ky. 1998 ).

Kentucky Open Meetings Act, KRS 61.805 et seq., does not impose upon government agencies the requirement to conduct business only in the most convenient locations at the most convenient times. Knox County v. Hammons, 129 S.W.3d 839, 2004 Ky. LEXIS 74 ( Ky. 2004 ).

While the coverage of the Open Meetings Act, KRS 61.800 , was broad enough to include a police captain’s termination hearing, the police captain did not follow the procedures in KRS 61.846 and 61.848 , and so was not entitled to relief. Howard v. City of Independence, 199 S.W.3d 741, 2005 Ky. App. LEXIS 230 (Ky. Ct. App. 2005), abrogated in part, Pearce v. Univ. of Louisville, 2011 Ky. App. Unpub. LEXIS 998 (Ky. Ct. App. Nov. 18, 2011).

Action of the school board at a closed meeting could not be ratified at the open public meeting because no vote was taken during an open session and because consensus was not established. Webster County Bd. of Educ. v. Newell, 392 S.W.3d 431, 2013 Ky. App. LEXIS 31 (Ky. Ct. App. 2013).

Litigation exception to open public meetings was not applicable to the school board’s decision directing legal counsel to pursue a challenge to the petition to recall the board’s nickel tax because it was a “final action” of the board to authorize litigation. Webster County Bd. of Educ. v. Newell, 392 S.W.3d 431, 2013 Ky. App. LEXIS 31 (Ky. Ct. App. 2013).

9.Action Taken.

Vote was not rendered unnecessary at the school board meeting under KRS 61.805 because it was not possible to determine if a consensus or collective decision was made. Webster County Bd. of Educ. v. Newell, 392 S.W.3d 431, 2013 Ky. App. LEXIS 31 (Ky. Ct. App. 2013).

Court of appeals properly found that the exception to open meetings related to the acquisition of real property did not apply because a board of commissioners went into closed session to discuss its intention to bid on real property offered for sale pursuant to an absolute auction, an auction without reserve; the board's post-auction approvals, while public, were window-dressing because the city was already compelled to complete the purchase or answer a complaint for specific performance. Bd. of Comm'rs of Danville v. Advocate Communs., 527 S.W.3d 803, 2017 Ky. LEXIS 501 ( Ky. 2017 ).

Cited:

Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977); Bell v. Board of Education, 557 S.W.2d 433, 1977 Ky. App. LEXIS 836 (Ky. Ct. App. 1977); Carter v. Craig, 574 S.W.2d 352, 1978 Ky. App. LEXIS 626 (Ky. Ct. App. 1978); Frankfort Pub. Co. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 1992 Ky. LEXIS 103 ( Ky. 1992 ).

Opinions of Attorney General.

The board of Kentucky Occupational Safety and Health Review Commission is not a “public agency” but a quasi-judicial body and is not subject to the open meeting provisions of this section. OAG 74-318 .

Licensing boards are not exempted from this section by the parenthetical phrase “(other than judicial or quasi-judicial bodies)” even though the boards hold hearings as they are primarily administrative bodies. OAG 74-497 .

The State Board of Registration for Professional Engineers and Land Surveyors was established by the Governor and performs a governmental function, and therefore it is a “public agency.” OAG 74-497 .

The Personnel Board created by KRS 18.160 (now repealed) is exempt from the Open Meeting Law as it is primarily a quasi-judicial body and not a “public agency” within the definition in subsection (2) of this section. OAG 74-605 .

An in-office meeting of school staff and employees is not covered by KRS 61.805 to 61.991 and, while the school board is an administrative body created by statute and is covered by the Open Meetings Law, this does not mean that the board may not attend a school staff meeting in the role of guests or observers as long as the meeting does not in any way become a board meeting. OAG 75-125 .

The meetings of the citizens advisory subcommittee on legislative compensation should be open to the public under KRS 61.805 to 61.991 as the Legislative Research Commission and the interim committees that operate under its auspices are not to be considered a part of the General Assembly and not entitled to any exemption from the Open Meetings Law. OAG 75-142 .

The fiscal court is a public agency and any private session it holds is illegal unless the meeting comes within the exceptions to the open meetings provision in KRS 61.810 . OAG 75-280 .

A community mental health board established by a nonprofit corporation is not a public agency and thus the meetings of an organization operated by said board, such as comprehensive care centers, are not subject to KRS 61.805 to 61.850 . OAG 75-402 .

Community mental health boards organized pursuant to KRS 210.380 to govern the management of regional mental health programs are public agencies and the meetings of any organizations which are operated by said boards, such as comprehensive care centers, are subject to the Open Meetings Law. OAG 75-402 .

A private or voluntary association is not a “public agency” and since the citizen’s advisory committee was not created pursuant to any statute, ordinance or executive order it does not come under the jurisdiction of the open meetings law and, if the membership votes to do so, the association may legally exclude the news media from its meetings. OAG 75-501 .

A coroner may, in his discretion, close inquest proceedings to the public as an inquest is a quasi-judicial function and thus not a public agency. OAG 76-37 .

The practice of a school board in scheduling a meeting at a given time and then all the members showing up forty-five (45) minutes early and holding a little private session in the back room of which meeting the press is neither notified, nor admitted to is contrary to the spirit and the letter of the Open Meetings Law for which a person attending such meeting could be punished as provided in KRS 61.991 . OAG 76-378 .

Since KRS 61.870(1) contains a different definition of a public agency than this section, in that it includes “any other body which is created by state or local authority in any branch of government or which derives at least twenty-five percent (25%) of its funds from state or local authority” some organizations which are not under the purview of the Open Meetings Law may be under the purview of the Open Records Law. OAG 76-648 .

A special district created when a group of public agencies combine together to carry out a special purpose is required to comply with the Open Meetings Law and the Open Records Law. OAG 76-663 .

A decision by the city council of a fourth class city to authorize the mayor to request a grant of funds for the city could not be made by a poll of the members over the telephone, instead the action should be in the form of an ordinance or a resolution. OAG 77-302 .

A hospital district created under KRS 216.310 to 216.360 is a public agency within the meaning of the Open Meetings Law, although the meetings of a board of a hospital district shall, of course, be allowed the subject matter exemptions in KRS 61.810 . OAG 78-138 .

There is nothing in the Open Meetings Law which proscribes divulging information about a closed meeting but if an agency has a provision in its bylaws or has adopted a rule to that effect, a person violating a bylaw or rule would be guilty of official misconduct in the first degree under KRS 522.020(1)(c) providing he divulged information with the intent to obtain or confer a benefit or to injure another person. OAG 78-182 .

As a policymaking board of an institution of education and as a subagency of a public agency created pursuant to statute, the regular and special meetings of the board of control of the Kentucky High School Athletic Association are subject to the requirements of the Open Meetings Law. OAG 78-191 .

Although the Kentucky Dental Association is assigned certain prerogatives by statute, it is a private professional association and not a public agency as defined by this section and, accordingly, is not subject to the Open Meetings Law. OAG 78-203 .

The Harrison County Water Association, Inc., is a nonprofit, nonstock private corporation and as such it would not be subject to the Open Meetings Law, KRS 61.805 to 61.850 ; however, a water district organized under the provisions of KRS Chapter 74 is subject to the provisions of both the Open Meetings and Open Records laws since a water district organized under KRS 74.012 is not a private nonprofit corporation and is therefore a public agency. OAG 78-395 .

All gatherings of a public agency, wherever held, and whether regular or special and whether formally convened or casual gatherings held in anticipation of or in conjunction with a regular or special meeting, where a quorum is present and any public business is discussed, are subject to all of the provisions of the Open Meetings Law, KRS 61.805 to 61.850 and 61.991 . OAG 78-411 .

The city-county planning and zoning commission, in voting at a meeting, has no authority to vote by secret ballot; since it is an open meeting, it must be conducted strictly out in the open in order that the public will know precisely how each member of that agency votes on public matters. OAG 78-488 .

A committee created by formal action of a public agency is subject to the Open Meetings Law to the same extent that the agency itself is, and school boards are public agencies under the law, and therefore the committee formed by the school board is subject to the open meetings requirements. OAG 78-496 .

One of the exceptions to the open meeting requirements is collective bargaining negotiations between public employers and their employees or their representatives, but where the board of education has not committed itself to recognize and bargain with the teacher’s committee, the meetings cannot be called bargaining negotiations, and therefore they do not come under the exception to the Open Meetings Law. OAG 78-496 .

A committee appointed by the superintendent of schools at the discretion of the board of education is a public agency within the meaning of the Open Meetings Law. OAG 78-571 .

A committee appointed by the superintendent of schools on his own initiative, and without any formal direction of the board of education, would not constitute a public agency. OAG 78-571 .

A public agency cannot conduct its business by telephone in lieu of an open meeting, moreover the deciding of policy matters by memorandum alone and simple acquiescence by the agency members could not be condoned but it cannot be said that the Frankfort electric and water plant board has committed any violation of the Open Meetings Law simply because its meetings are short. OAG 78-710 .

The screening committee for a president of Western Kentucky University is not a public agency subject to the Kentucky Open Meetings Law, KRS 61.805 to 61.850 . OAG 78-776 .

All meetings of the Beaver-Elkhorn water district commission are required to be open to the public. OAG 78-787 .

The joint planning commission of Jessamine County-City of Wilmore improperly went into a closed session after its regular meeting for the purpose of adopting procedures for zoning map amendment, adoption of procedures for major subdivision plat applications, and approval of the expenditure of funds for preparation of the community’s comprehensive plan, thus violating the Open Meetings Law. OAG 78-804 .

A conference telephone call is a gathering or meeting within the statutory definition. OAG 78-808 .

Where a county judge/executive made application for a housing and urban development grant and appointed a committee to hold hearings and make plans for it, the committee so appointed is a public agency within the meaning of this section and KRS 61.850 . OAG 79-7 .

Where three (3) women not hired as firemen for a city of the third class filed a complaint of sex discrimination with the city human rights commission, a conference, held under KRS 344.200 , designed to achieve conciliation, need not be meeting open to the public under KRS 61.805 to 61.850 . OAG 79-412 .

A port authority is clearly a “public agency” as defined in this section. OAG 79-512 .

A rural electric cooperative corporation is not a public agency within the definition of the Open Meetings Law (KRS 61.805 to 61.850 ). OAG 79-560 .

The borrowing of money from the federal REA does not constitute a rural electric cooperative corporation as a public agency under either the Open Meetings Law (KRS 61.805 to 61.850 ) or the Open Records Law (KRS 61.870 to 61.882 ). OAG 79-560 .

The Open Meetings Law makes no mention of the source of funds in the definition of a public agency. OAG 79-560 .

The term “special purpose district boards” in subdivision (2) of this section covers boards which are created by statute but are not designated as corporations such as boards of water districts, sewer districts, public road districts, hospital districts, library districts, etc. OAG 79-560 .

The meeting of four (4) councilmen, constituting a quorum of the six-man council, at which they discussed and decided how they would vote on a matter subsequently brought before the council at a regular meeting, constituted a public meeting open to the public and requiring public notice and specific notification in compliance with the Open Meetings Act. OAG 80-81 .

A private nonprofit corporation is not subject to the Open Meetings Law under the definition of a “public agency” in subsection (2) of this section; a private corporation does not have the power to levy taxes, and even though it makes a contract with a tax levying authority to provide fire protection, it is not a public agency. OAG 80-292 .

If a county school board’s affirmative action advisory committee was created by formal action of the county board of education, then the committee is a public agency which is required to conduct its meetings according to the Open Meetings Law, KRS 61.805 to 61.850 . OAG 80-398 .

Telephone conversations among members of a port authority board prior to one of its regularly scheduled meetings did not violate the Open Meetings Law because the board accepted the resignation of the executive director and appointed an interim director in formal action at the regularly scheduled meeting; regardless, the accepting of a resignation and the appointment of an interim director were personnel matters which are exempt from the Open Meetings requirement by KRS 61.810(6) (now (1)(f)). OAG 80-426 .

The board of trustees of the policemen’s and fire fighters’ pension fund in a city of the second class constitutes a “public agency,” and the meetings of such a “public agency” are open to the public at all times unless the particular meeting in question comes within the exceptions to the “Open Meetings” Law. OAG 80-569 .

Where newspaper reporter sought records of unrestricted expenditures of the University of Louisville Foundation, Inc. for certain years, it was improper for university custodian of records to deny inspection of records on the basis of a judicial determination that the foundation was not a public agency under this section and the Open Meetings Law since the request for the records and the response thereto was not made by or to the foundation but by the university which is a public agency under KRS 61.870 and the Open Records Law. OAG 81-2 .

A nonprofit water corporation organized under KRS Chapter 273 which is not a water district and which has no rights and liabilities of a water district in its articles of incorporation is not a “public agency” pursuant to subsection (2) of this section and thus the attendance policies for who will be allowed to attend corporation meetings are governed by the corporation’s bylaws rather than the Open Meetings Law. OAG 81-238 .

The meetings of a county hospital board of a nonprofit corporation which operates the hospital are not subject to the Open Meetings Law, since a nonprofit corporation is not a public agency as defined in this section, even though the fiscal court is designated by the articles of incorporation to appoint the members of the board of directors. OAG 81-266 .

A county hospital foundation, incorporated as a nonprofit corporation is not, as a nonprofit, nonstock private corporation, a “public agency” as defined in subsection (2) of this section and, therefore, is not covered by the Open Meetings Law. OAG 81-296 .

A county public hospital corporation which is formed as a nonprofit, nonstock corporation pursuant to KRS Chapter 273 is not a public agency which is subject to the Open Meetings Law (KRS 61.805 to 61.850 ). OAG 82-1 .

A task force formed by a city commission to study problems in the city’s community development department is a “public agency” as defined in subsection (2) of this section and subject to the Open Meetings Law since it was created by formal action of the commission. OAG 82-56 .

A county fiscal court work session dealing with the preparation of the county budget and attended by a quorum of the fiscal court is an open meeting as defined in KRS 61.805 and 61.810 . OAG 82-91 .

A fire protection district or department existing pursuant to KRS Ch. 75 is a “type of municipal corporation,” and is a public agency within the meaning of the “Open Meetings Act” and, thus, meetings of the board of trustees are open meetings and the board may only hold closed meetings or executive sessions under specifically enumerated conditions; however, even when an exception to the open meetings provision arises, such exceptions are permissive rather than mandatory and the board of trustees is not required to hold a closed session. OAG 82-182 .

An appointment of a city councilman’s family member to a nonelective office must be approved by the council at a regular or special meeting that is required to be open to the public under the Open Meetings Act; such person cannot be legally hired at a closed meeting. OAG 82-184 .

Implementation of anticipated budget cuts in the Title I program was a general personnel matter which should not have been discussed in secret as long as the county board of education was discussing which positions to eliminate, if the issue was, for example, whether to eliminate social workers or music teachers or science teachers; on the other hand, if a decision had been reached to eliminate two (2) out of four (4) social worker positions and the question became which two (2) of the four (4) persons holding those positions would be dismissed, it then being necessary for the board to discuss qualifications and personalities, the board would have been justified in going into closed session for the purpose of that discussion. OAG 82-300 .

Advisory committees are not public agencies under the Open Meetings Law. OAG 82-331 .

Committees which are created by legislative act of the city council are public agencies and are required to hold open meetings subject to the provisions of KRS 61.810 . OAG 82-331 .

A board of levee commissioners is a public agency as defined in this section. OAG 82-412 .

When the personnel board is deciding a case involving the complaint of an applicant or an employee it is performing a quasi-judicial function and after the evidence is received in open session it may go into closed session to deliberate its decision. OAG 83-20 .

Since the Special Commission on Youth Residential Facilities was created by executive order of the Secretary of the Cabinet for Human Resources, the Commission is a public agency which must comply with the Open Meetings Law. OAG 83-127 .

An exclusively quasi-judicial board or commission does not have to comply with the Open Meetings Law but must comply with the procedures which pertain to courts; where court hearings are open to the public, quasi-judicial hearings must be open to the public and, where court deliberations are conducted in closed session, quasi-judicial hearings may be conducted in closed session. OAG 83-259 .

When an administrative board which sometimes performs a quasi-judicial function is conducting a fact finding hearing, upon notice to the parties, wherein it will make a decision according to its discretion, it is performing a quasi-judicial function and the hearing must be open to the public as is required of courts. After the evidence has been received and arguments heard the commission can retire into closed session to deliberate and reach a decision. OAG 83-259 .

The Kentucky Occupational Safety and Health Review Commission (KOSHRC) is an exclusively quasi-judicial body and is not subject to the Open Meetings Law; its hearings must be open to the public when it is receiving evidence but after a hearing it may deliberate in private as a jury would. OAG 83-259 .

The Kentucky Human Rights Commission and Health Certificate of Need and Licensure Board have both administrative and quasi-judicial functions; they must comply with either the Kentucky Open Meetings Law or court procedures depending on which function it is performing. OAG 83-259 .

When a public agency, such as a city council, after giving notice to the parties, is conducting a fact-finding hearing which will affect the substantial rights of an individual and will render a decision based on its discretion, the agency is performing a quasi-judicial function. Hearings held by a city council regarding rezoning proposals are open to the public, as mandated in rezoning amendments by KRS 100.211 ; however, once arguments are heard and evidence received, the city council can then retire into closed session to deliberate and reach a decision. OAG 83-446 .

The Fayette County Board of Education is a public agency subject to the Open Meetings Law pursuant to subdivision (2) of this section. OAG 83-455 .

Where a land use regulation ordinance proposed an informal meeting between land developers and owners of adjacent property regarding site approval for land development projects, where it would be up to the assembled land developers and property owners to make any decisions or compromises and where no members of the county planning commission or the fiscal court were required or expected to attend, the meeting in the proposed ordinance was not subject to the Open Meetings Law as long as a quorum of either public agency was not present. OAG 84-45 .

A county hospital board was a “public agency,” as defined in subdivision (2) of this section; however, where a closed meeting of such board involved a substantial discussion of the suspension of a county hospital employee, such discussions brought it under the personnel discussion exception to open meetings stated in KRS 61.810(6) (now (1)(f)). OAG 84-46 .

Where newspapers were prohibited from covering a closed hospital board meeting, but county judge/executive, who served on the board, also controlled one (1) newspaper, there was no impropriety on part of county judge/executive since his newspaper carried no mention of the discussions of the closed meeting. OAG 84-46 .

Where city council was comprised of twelve (12) members, seven (7) members of the council constituted a quorum; consequently, where private meetings in the mayor’s office were attended by six (6) and four (4) members, respectively, the absence of a quorum of council members in the mayor’s office at each meeting rendered the Open Meetings Law inapplicable. OAG 84-49 .

The city council of a third-class city is a public agency pursuant to subdivision (2) of this section and is thus subject to the Open Meetings Law; however, the Open Meetings Law only applies when a quorum of the public agency meets to discuss public business. OAG 84-49 .

A planning and zoning commission was acting as a quasi-judicial body when it went into closed session to discuss and reach a decision following a public hearing on rezoning, held pursuant to KRS 100.211(1); accordingly, as a quasi-judicial body, the commission was not subject to and therefore did not violate the Open Meetings Law. OAG 84-162 .

Private, nonprofit, nonstock corporations are not public agencies and are therefore not subject to the Open Meetings Law; thus, a nonprofit, nonstock corporation formed under KRS Ch. 273 for the purpose of local approval of loans for small businesses is not subject to the Open Meetings Law. OAG 84-186 .

A nonprofit corporation which was formed pursuant to KRS Ch. 273 for the purpose of community development through making loans to small businesses, and which received no funds from state or local authority was not a public agency and thus was not subject to the Open Records or the Open Meetings laws. OAG 84-237 .

A closed session meeting held by a city council following one (1) of its regular meetings, for the announced purpose of discussing burglary charges against certain resident teenagers, as well as discussing the public belief that these and other teenagers had been conducting cult rituals in the city, was an improper meeting since the topic of discussion did not fit any of the enumerated exceptions to the Open Meetings Law. OAG 84-317 .

Advisory committee appointed by the superintendent of a county board of education, on his own initiative and without any formal direction by the board, was subject to the Open Meetings Act since committee was created by executive order; to the extent it conflicts with this opinion, OAG 78-571 is hereby modified. OAG 89-25 .

The Judicial Retirement and Removal Commission was not required to disclose the minutes of a meeting because it is clearly not a “public agency” within the meaning of subsection (2) of this section and was therefore not bound by KRS 61.835 . OAG 91-45 .

Regardless of the label attached to the body, it is, in fact, subject to the Open Meetings Act if it is a public agency within the meaning of subsection (2) of this section, and the business it conducts does not fall within the parameters of one (1) of the narrowly defined exceptions contained in KRS 61.810 . OAG 91-54 .

The Formulary Subcommittee of the Advisory Council for Medical Assistance, a public agency, may not properly conduct closed meetings immediately before their regular public meetings to discuss and vote on the approval of drugs for the Medicaid Formulary. OAG 92-4 .

The planning and zoning commission is legally obligated to notify the newspaper of any and all special meetings of the commission. OAG 92-OMD-1203.

Where in the purchase of the recycling equipment the mayor and the executive department of the city were proceeding pursuant to authority conferred upon them by budget ordinance in the form of an appropriation by the city council and no meeting was held as none was required at the time, the provisions of the Open Meetings Act were not applicable. The mayor by authorizing phone calls to be made to council members concerning the recycling equipment, as the head of the executive branch of government, was merely advising and updating the legislative branch on the proceedings undertaken pursuant to the budget appropriation. OAG 92-OMD-1688.

City’s response to complaint that meeting of city commissioners violated the Open Meetings Act with no citations or explanations, merely concluding that no meeting was held in violation of the Open Meetings Act and that if any violation occurred “it was purely accidental and unintentional” was completely unacceptable as a response or solution to a complaint alleging a violation of the Open Meetings Act. OAG 92-OMD-1840.

A city council is a “public agency” for purposes of the Open Meetings Act. OAG 93-OMD-49.

A committee appointed by the mayor would be a “public agency” under the Open Meetings Act pursuant to either subdivisions (2)(e), (2)(f) or (2)(g) of this section. OAG 93-OMD-49.

A public agency cannot go into a closed session to discuss personnel matters generally. The only personnel matters which can be discussed in a closed session by a public agency are those which might lead to the appointment, discipline or dismissal of personnel of that particular agency. Therefore, a committee created by the mayor violated the Open Meetings Act when it went into a closed session to discuss personnel matters other than those which might lead to the appointment, discipline or dismissal of municipal personnel. OAG 93-OMD-49.

City council violated the Open Meetings Act when it went into a closed session to discuss personnel matters other than those which might lead to the appointment, discipline or dismissal of municipal personnel. OAG 93-OMD-49.

The University Senate, faculties of colleges, and faculties of departments are committees subject to the open meetings law. OAG 94-25 .

Where city council at a public meeting made a choice as to what particular architect it had selected, that decision constituted “action taken” pursuant to subsection (3) of this section and the public, including the media, was entitled to know at that specific point in time the nature of the action taken which in this situation would involve the name of the architect selected. OAG 94-OMD-127.

Open meetings law is intended to provide public access to meetings of decision-making bodies, and is not intended to provide public access to the day-to-day administrative work of a public agency. OAG 95-OMD-71.

The President’s Cabinet and the President’s Leadership Team, established, created, and controlled by the university president, do not fall within the meaning of “public agencies” as defined in KRS 61.805(2); consequently, these groups do not have to record minutes of their meetings or meet other requirements of the Open Meetings Act. OAG 95-OMD-71.

A meeting of a group of public officials, officers, and employees from various governmental entities where none of those entities is represented by a quorum and where the group does not exist pursuant to statute, ordinance, order, resolution, or any act of any public agency does not constitute a meeting of a public agency governed by the terms and provisions of the Open Meetings Act. OAG 96-OMD-174.

On the basis of the evidence made available at this time, a nonprofit corporation providing mental health services to the community is not a public agency pursuant to subsection (2) of this section of the Open Meetings Act and thus not subject to the constraints on closed sessions of public meetings set forth in the Open Meetings Act. OAG 96-OMD-180.

The Workers’ Compensation Advisory Council, which serves in an advisory capacity and makes recommendations to the Governor and the General Assembly on all matters relating to workers’ compensation, is obviously a “public agency” for purposes of the applicability of the Open Meetings Act. 96-OMD-261.

The Housing Appeals Committee of Eastern Kentucky University is a public agency subject to the terms and provisions of the Open Meetings Act and its meetings are open to the public unless it can invoke an exception to open and public meetings; pursuant to KRS 61.810(1)(k) and 20 USCS, § 1232g, it may properly go into closed session to discuss student housing appeals. OAG 97-OMD-139.

While the Housing Appeals Committee of Eastern Kentucky University, a public agency, may properly go into closed session to discuss student housing appeals pursuant to KRS 61.810(1)(k) and is required to do so under 20 USCS, § 1232g, an eligible student, that is a student who is eighteen (18) or is attending an institution of postsecondary education, may waive his privacy rights under the Federal Educational Rights and Privacy Act by written consent, thus permitting public discussion of his housing appeal; however, if such appeal raises housing issues or evidence concerning other students, the Housing Committee would be bound by 20 USCS, § 1232g(b)(1) and thus required to conduct the hearing in closed session. OAG 97-OMD-139.

The Financial Aid Professional Judgment Committee is a public agency because its members act as a unit, authority has been officially delegated to it, specific matters are entrusted to it, and its responsibility is to consider, investigate, take action on, or report to a higher authority; it is therefore subject to the Open Meetings Act. OAG 98-OMD-142.

The Finance and Budget Committee of the Franklin County Fiscal Court is a public agency as defined in subsection (2)(g), and such conclusion is not altered by the fact that the committee does not have authority to take action. OAG 99-OMD-77.

A complaint that the outcome of a meeting was “greased,” “rigged,” or “rubber stamped” was not cognizable under the Open Meetings Act insofar as it does not state a violation of the provisions of KRS 61.805 to 61.850 . OAG 99-OMD-183.

A county schools local facility planning committee was a public agency within the meaning of the statute. OAG 99-OMD-196.

The Telecommunications Board of Northern Kentucky was a public agency formed under the Interlocal Cooperation Act by Kenton and Boone counties, and cities located therein, and, therefore, was a public agency pursuant to subsection (2)(g). OAG 00-OMD-96.

A city council did not violate the Open Meetings Act by conducting a meeting, meetings, or series of less than quorum meetings for the purpose of discussing public business outside of the requirements of the Act and authoring a letter that was distributed to the media regarding their decision where the evidentiary record was insufficient to support the allegation that a meeting or meetings occurred and, even if the evidentiary record supported this allegation, the record did not support the claim that a single meeting was conducted where a quorum was present, or that a series of less than quorum meetings was conducted where the members attending one (1) or more of the meetings collectively constituted at least a quorum. OAG 00-OMD-2.

The evidence was insufficient to support a claim that a county industrial development authority committed specific violations at meetings pertaining to certain real property, where the complainant alleged only that the meetings were improperly held sessions of the authority. OAG 00-OMD-109.

A meeting of seven (7) Kentucky Department of Education employees, four (4) contractor representatives, and one (1) employee of the Office of Education Accountability did not constitute a meeting of a public agency within the statute. OAG 00-OMD-141.

The Kentucky Bourbon Festival, Inc., a private non-profit corporation formed for the purpose of “directing the celebration and annual promotion of all facets of the Bourbon Industry,” is not a public agency as defined in KRS 61.805(2), and is not bound by the requirements of the Open Meetings Act. OAG 01-OMD-34.

The Board of Directors of the Assistance Center Fund, Inc. does not meet the criteria of KRS 61.805(2)(f) in that only four of the eight Directors are appointed by a public agency. Four appointed directors would not constitute a majority of the governing body. Thus, the Assistance Center Fund, Inc. is not a “public agency” under KRS 61.805(2)(f) or any other of the subsections of KRS 61.805(2). OAG 02-OMD-87.

An absent member cannot be counted as part of a quorum, and, by logical extension, an absent member cannot vote although he or she may be constructively present by audio connection. The statute only permits video teleconferencing. OAG 02-OMD-206.

Where five (5) of the six (6) newly sworn council members participated in a meeting at the mayor’s office in which the mayor distributed a memorandum of city business, even though the mayor’s comments were succinct, unilateral, and not delivered for the purpose of inviting discussion or debate, and that there was no action taken, there was nevertheless a meeting which was not properly noticed pursuant to the Act. OAG 03-OMD-22.

The Kuttawa Relocation Foundation, Inc., formed as a private non-profit corporation “to aid in the plans of the city of Kuttawa for relocations which were made necessary by the construction of Barkley Dam and the formation of Lake Barkley,” is not a public agency as defined in KRS 61.805(2), and is not bound by the requirements of the Open Meetings Act. OAG 03-OMD-37.

A violation of the Open Meetings Act occurred when a quorum of the members of the SBDM met in the office between the 4:30 work session and the 5:30 special meeting for the purpose of discussing potential applicants for employment, notwithstanding the fact that those in attendance made no collective decision or promise to make a positive or negative decision or took an actual vote. OAG 03-OMD-192.

A private, non-profit corporation may be a public agency for purposes of the Open Records Act, though it is not a public agency for purposes of the Open Meetings Act; this dichotomy arises from the differences in the definition of “public agency” found in each of the Acts. The definition of “public agency” which appears at KRS 61.805(2) does not include “any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds.” OAG 04-OMD-02.

The Case Review Committee of the Kentucky Board of Pharmacy is a public agency for purposes of the Open Meetings Act; the Kentucky Board of Pharmacy is a public agency within the meaning of KRS 61.805(2)(a), and any committee established, created, and controlled by it is a public agency pursuant to KRS 61.805(2)(g). OAG 04-OMD-148.

The faculty of the Lincoln County High School is not a public agency for open meetings purposes, and the faculty did not violate the Open Meetings Act by failing to provide notice of its February 25 meeting. OAG 04-OMD-230.

Since the Master Plan Review Committee was established, created, and controlled by the City Council, the Committee is a public agency as defined at KRS 61.805(2)(g), and meetings of the committee are required to conform to the requirements of the Open Meetings Act. This conclusion is not altered by the fact that the committee is not empowered to take action but instead operates in an advisory capacity. By its express language KRS 61.805(2)(g) applies to advisory committees established, created, and controlled by a public agency. OAG 05-OMD-117.

A committee formed by the City Council consisting of members of the council and the public to review a zoning ordinance, consider possible amendments and present to the City Council a proposed text amendment at the next regular meeting, was “established, created and controlled” by the City, a public agency; thus, the committee is a public agency pursuant to KRS 61.805(2)(g). It does not matter that there is not a quorum of council members on the committee. OAG 06-OMD-068.

Insofar as the Reorganization Subcommittee, standing alone, constitutes a public agency for purposes of the Open Meetings Act, the total composition of the Subcommittee itself, rather than the total composition of the District Board, is used in determining whether a quorum of the Subcommittee was present. If a quorum of the Subcommittee comes together to discuss public business, a meeting occurs. Such meetings must be open to the public unless one of the exceptions codified at KRS 61.810(1) is properly invoked. This conclusion is not altered by the fact that the Subcommittee does not have authority to take action. OAG 06-OMD-211.

When viewed in conjunction, KRS 61.805(2)(e) and the mandatory language of KRS 311A.055 remove any doubt as to whether the Board is properly characterized as a public agency in this context. Insofar as the Review Board, standing alone, constitutes a public agency for purposes of the Open Meetings Act, the attorney general considers the total composition of the Board itself, rather than the total composition of the KBEMS, in determining whether a quorum of the Board was present on the date in question. OAG 06-OMD-262.

Research References and Practice Aids

Kentucky Law Journal.

Comments, Access to Public Documents in Kentucky, 64 Ky. L.J. 165 (1975-76).

Northern Kentucky Law Review.

Ziegler, The Kentucky Open Records Act: A Preliminary Analysis, 7 N. Ky. L. Rev. 7 (1980).

61.810. Exceptions to open meetings.

  1. All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following:
    1. Deliberations for decisions of the Kentucky Parole Board;
    2. Deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency;
    3. Discussions of proposed or pending litigation against or on behalf of the public agency;
    4. Grand and petit jury sessions;
    5. Collective bargaining negotiations between public employers and their employees or their representatives;
    6. Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee’s, member’s, or student’s right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret;
    7. Discussions between a public agency and a representative of a business entity and discussions concerning a specific proposal, if open discussions would jeopardize the siting, retention, expansion, or upgrading of the business;
    8. State and local cabinet meetings and executive cabinet meetings;
    9. Committees of the General Assembly other than standing committees;
    10. Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency’s governing body or staff is present, but not including any meetings of planning commissions, zoning commissions, or boards of adjustment;
    11. Meetings which federal or state law specifically require to be conducted in privacy;
    12. Meetings which the Constitution provides shall be held in secret;
    13. That portion of a meeting devoted to a discussion of a specific public record exempted from disclosure under KRS 61.878(1)(m). However, that portion of any public agency meeting shall not be closed to a member of the Kentucky General Assembly; and
    14. Meetings of any selection committee, evaluation committee, or other similar group established under KRS Chapter 45A or 56 to select a successful bidder for award of a state contract.
  2. Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.

HISTORY: Enact. Acts 1974, ch. 377, § 2; 1992, ch. 162, § 3, effective July 14, 1992; 2005, ch. 93, § 1, effective March 16, 2005; 2018 ch. 176, § 4, effective July 14, 2018.

Legislative Research Commission Note.

(3/16/2005). The Office of the Kentucky Attorney General requested that amendments in 2005 Ky. Acts ch. 93, sec. 1, to the arrangement of the paragraphs of subsection (1) of this section be changed. The change was requested “in the interest of preventing confusion to the public and public agencies” and was made by the Statute Reviser under the authority of KRS 7.136 .

NOTES TO DECISIONS

1.Acquisition or Sale of Property.

Notice given in open meeting preparatory to closed session that the closed meeting would be held to discuss “property and negotiations” was not sufficient compliance with the requirement of notice of subsection (1) of KRS 61.815 for the term “property” fails to reveal whether it is real or personal, for purchase or for sale or whether publicity would affect its value. Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977).

In order to fully comply with subsection (2) of this section and KRS 61.815(1) notice of the county board of education of the business intended to be discussed in a closed session should contain information that the board of education intends to conduct an executive session for the purpose of discussing the sale or acquisition of real property and that the reason for privacy is due to the fact that publicity at the deliberation stage might be likely to affect the value instead of merely saying that the business to be discussed was “property and negotiations.” Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977).

Court of appeals properly found that the exception to open meetings related to the acquisition of real property did not apply because a board of commissioners went into closed session to discuss its intention to bid on real property offered for sale pursuant to an absolute auction, an auction without reserve; the board's post-auction approvals, while public, were window-dressing because the city was already compelled to complete the purchase or answer a complaint for specific performance. Bd. of Comm'rs of Danville v. Advocate Communs., 527 S.W.3d 803, 2017 Ky. LEXIS 501 ( Ky. 2017 ).

2.Proposed or Pending Litigation.

There is no requirement in the Open Meetings Law that the county board of education and its governing body give notice of an executive session in order to confer with their attorneys concerning proposed or pending litigation, for this matter is expressly excluded by the terms of this section and moreover involves the attorney-client relationship. Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977).

Where a planning commission explained it was going into closed session, the minutes reflected the discussion concerning litigation, motions to authorize the litigation were made in open meetings, and there was no record of anyone requesting to address the commission or voice concern about the commission’s actions, there was no evidence that the owners were prejudiced by a planning commission’s failure to state a specific provision of KRS 61.810(1)(c), 61.815(1) when it went into closed session. Chandler v. Bullitt County Joint Planning Comm'n, 125 S.W.3d 851, 2002 Ky. App. LEXIS 2358 (Ky. Ct. App. 2002) sub. nom.City of Shepherdsville v. Bullitt County Joint Planning Comm'n, 2004 Ky. LEXIS 29 (Ky. Feb. 11, 2004).

Exception to the mootness doctrine for cases that were capable of repetition, yet evading review was not applied on appeal when a county government’s declaratory judgment action against a newspaper asking for closed council meetings under the litigation exception to the Open Meetings Act was dismissed as moot because the county government did not show that a similarly-situated party would be subject to the same action again. Lexington-Fayette Urban County Gov't v. Lexhl, L.P., 315 S.W.3d 331, 2009 Ky. App. LEXIS 218 (Ky. Ct. App. 2009).

City did not violate the Open Meetings Act, KRS 61.800 et seq., when it conducted settlement negotiations privately with the property owners regarding a zoning matter where the settlement agreement itself was voted on in an open meeting. Although the residents claimed that the private settlement negotiations violated that law, an exception in the Open Meetings Act, KRS 61.810(1)(c), allowed discussion regarding proposed or pending litigation to be conducted privately so long as the final settlement agreement itself was voted on in an open meeting. Cunningham v. Whalen, 373 S.W.3d 438, 2012 Ky. LEXIS 109 ( Ky. 2012 ), cert. denied, 568 U.S. 1158, 133 S. Ct. 1245, 185 L. Ed. 2d 179, 2013 U.S. LEXIS 1105 (U.S. 2013).

Litigation exception to open public meetings was not applicable to the school board’s decision directing legal counsel to pursue a challenge to the petition to recall the board’s nickel tax because it was a “final action” of the board to authorize litigation. Webster County Bd. of Educ. v. Newell, 392 S.W.3d 431, 2013 Ky. App. LEXIS 31 (Ky. Ct. App. 2013).

3.Collective Bargaining Negotiations.

Whenever a public agency is formulating its demands or position preparatory to collective bargaining negotiations, either by way of deliberation or instructions to its advocates, such type of sessions are within the purview of subsection (5) (now (e)) of this section and thus such meetings of a public agency may be in closed session. Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977).

A report by an associate superintendent on the status of a proposed contract between the county board of education and two (2) teachers’ associations and a recommendation to the board that negotiations should take place did not come under the exception of subsection (5) (now (e)) of this section so as to permit such discussion to take place in a closed meeting. Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977).

The collective bargaining negotiations referred to in subsection (5) (now (e)) of this section means the settling of disputes by negotiation between employer and the representatives of the employees and does not embrace reports or status briefings on the labor negotiations. Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977).

4.Discipline Hearings.

The hearing and the board’s decision based on the evidence are separate phases of the termination proceeding, and the school board’s power to reach its decision in closed session is preserved by this section despite the requirement of KRS 161.790 that the hearing be public. Bell v. Board of Education, 557 S.W.2d 433, 1977 Ky. App. LEXIS 836 (Ky. Ct. App. 1977); Carter v. Craig, 574 S.W.2d 352, 1978 Ky. App. LEXIS 626 (Ky. Ct. App. 1978).

A discussion by a county board of education concerning the termination of the expenditure of funds on an educational television station operated by the county board of education and the attendant potential dismissal of all the employees of such station dealt only with a general personnel matter and therefore did not come under the exemption of subsection (6) (now (f)) of this section as an exemption to the requirement of the Open Meetings Law that all meetings be public meetings. Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977).

Nothing in subdivision (6) (now (f)) of this section permits a public agency to condition an employee’s right to a public hearing upon written or timely notice. Reed v. Richmond, 582 S.W.2d 651, 1979 Ky. App. LEXIS 417 (Ky. Ct. App. 1979).

Where disciplinary action was brought against the chief of police and eight officers, pursuant to KRS 95.450 , at a session closed to the public despite the accuseds’ request for an open hearing pursuant to subsection (6) (now (f)) of this section, and with neither a motion for a closed meeting nor announcement of it at an open meeting, in violation of KRS 61.815 , the action taken must be voided and a new hearing held. Reed v. Richmond, 582 S.W.2d 651, 1979 Ky. App. LEXIS 417 (Ky. Ct. App. 1979).

The vote of the board of education to demote a school principal need not be held in public. Miller v. Board of Educ., 610 S.W.2d 935, 1980 Ky. App. LEXIS 414 (Ky. Ct. App. 1980).

The State Board of Accountancy is not a quasi-judicial body excluded from the definition of “public agency” found in KRS 61.805 , since otherwise any administrative agency which occasionally held hearings on certain matters could exempt itself from the open meetings statutes and, moreover, there would be no need for the exception to the open meeting requirement found in subsection (6) (now (f)) of this section, because any agency which held any disciplinary hearings would be quasi-judicial; accordingly, the Board violated the open meeting laws by conducting its final deliberations on the question of whether to censure an accountant in a closed session. Stinson v. State Bd. of Accountancy, 625 S.W.2d 589, 1981 Ky. App. LEXIS 304 (Ky. Ct. App. 1981).

While the coverage of the Open Meetings Act, KRS 61.800 , was broad enough to include a police captain’s termination hearing, the police captain did not follow the procedures in KRS 61.846 and 61.848 , and so was not entitled to relief. Howard v. City of Independence, 199 S.W.3d 741, 2005 Ky. App. LEXIS 230 (Ky. Ct. App. 2005), abrogated in part, Pearce v. Univ. of Louisville, 2011 Ky. App. Unpub. LEXIS 998 (Ky. Ct. App. Nov. 18, 2011).

5.Personnel Matters.

Where a university board of trustees, during its July 18, 1977, meeting, closed said meeting to consider the election of one (1) of two (2) individual members to the position of chairman of the board of trustees, the meeting was a properly closed session. Courier-Journal & Louisville Times Co. v. University of Louisville Bd. of Trustees, 596 S.W.2d 374, 1979 Ky. App. LEXIS 524 (Ky. Ct. App. 1979).

The Presidential Search Committee created by the Board of Trustees of the University of Kentucky was not excepted from declaring public meetings when discussing the appointment of a president. Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 1987 Ky. LEXIS 227 ( Ky. 1987 ).

Although a quorum of the commissioners may have discussed the issue among themselves at a gathering other than a regular meeting, the trial court specifically found that no secret meetings were held in violation of the Open Meetings Act, where the entire matter concerning the salaries was publicly aired in the press and broadcast media, and there was testimony at trial that the police officers, themselves and through counsel, engaged in discussions with the commissioners regarding the reduction of their salaries. Beckham v. Bowling Green, 743 S.W.2d 858, 1987 Ky. App. LEXIS 603 (Ky. Ct. App. 1987).

Injunction was proper under KRS 61.848 — even without a showing that petitioners had no adequate remedy at law — when a school board violated the Open Meeting Law by discussing a personnel reorganization plan in closed “executive” meetings; the preparation-for-litigation exception would not apply to mere discussion of whether dismissed administrators might sue the board. Also, the board failed to adhere to KRS 61.815 , which requires that, before going into a closed session, a public body must state the exact exception it relies on to go into a closed meeting. Floyd County Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 1997 Ky. LEXIS 145 ( Ky. 1997 ).

County Board of Education violated Kentucky’s Open Meetings Act, KRS 61.800 - 61.850 , by discussing in a closed session the resignation of the superintendent of schools and his appointment as a consultant to the school district. Neither the litigation exception in KRS 61.810 (l)(c) nor the personnel exception in KRS 61.810 (l)(f) applied; there was only a remote possibility of litigation, and the enumerated personnel topics did not include either an employee’s resignation or a contractor’s hiring. Carter v. Smith, 366 S.W.3d 414, 2012 Ky. LEXIS 66 ( Ky. 2012 ).

6.University Foundations.

As long as the bylaws of the University of Louisville Foundation, Inc. provide for a membership of a quorum of the Board of Trustees of the University of Louisville, meetings of the University of Louisville Foundation, Inc. are subject to the Open Meetings Law. Courier-Journal & Louisville Times Co. v. University of Louisville Bd. of Trustees, 596 S.W.2d 374, 1979 Ky. App. LEXIS 524 (Ky. Ct. App. 1979).

7.Absence of a Quorum.

In the absence of a quorum of board of adjustment members, the Open Meetings Act was not applicable to the private review of a taped public meeting by a committee of two (2) board members, an administrative employee, and legal counsel for the purpose of preparing amended findings pursuant to Circuit Court order. Bourbon County Bd. of Adjustment v. Currans, 873 S.W.2d 836, 1994 Ky. App. LEXIS 36 (Ky. Ct. App. 1994).

8.Evidence of Meeting.

The mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Open Meetings Act. Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 1998 Ky. LEXIS 140 ( Ky. 1998 ).

9.Consequences of Failure to Comply.

Because a closed session in a meeting of a county board of education was not justified by any of the statutory exceptions in KRS 61.810 , substantial compliance could not be found under KRS 61.848 . There cannot be substantial compliance when an agency entirely fails to comply with the law by entering a closed session to which none of the exceptions apply. Carter v. Smith, 366 S.W.3d 414, 2012 Ky. LEXIS 66 ( Ky. 2012 ).

Trial court properly exercised it authority to void the action of the school board directing legal counsel to pursue litigation because the board did not substantially comply with the Open Meetings Act. Webster County Bd. of Educ. v. Newell, 392 S.W.3d 431, 2013 Ky. App. LEXIS 31 (Ky. Ct. App. 2013).

Cited:

Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658, 1982 Ky. App. LEXIS 232 (Ky. Ct. App. 1982); Frankfort Pub. Co. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 1992 Ky. LEXIS 103 ( Ky. 1992 ); Brownsboro Rd. Area Def., Inc. v. McClure, — S.W.3d —, 2004 Ky. App. LEXIS 77 (Ky. Ct. App. 2004).

Opinions of Attorney General.

The open meeting requirement applies to “work sessions” held by a board of education preceding a regular or special meeting. OAG 74-370 .

A meeting to discuss and decide whether to negotiate with teacher’s association on a collective bargaining agreement does not fit under the exception stated in subsection (5) (now (e)) of this section and thus should be a meeting open to the public. OAG 74-441 .

A licensing board’s meetings must be open to the public when considering an application for a license, but meetings may be closed to the public when considering complaints against a licensee unless the licensee demands a public hearing. OAG 74-497 .

If a representative of an industrial prospect is present at a meeting of the Kentucky Industrial Development Finance Authority to discuss a proposed project, that portion of the meeting in which the project is discussed by the board and the industrial prospect may be legally closed to the public under subsection (7) (now (g)) of this section. OAG 74-523 (opinion prior to 1992 amendment).

Not all meetings of the Kentucky Industrial Development Finance Authority are exempt from the provision of the Open Meetings Law but only such meetings as precisely fit one or more of the exceptions. OAG 74-523 .

“Public agency” does not include a chamber of commerce under the generally accepted definition of that kind of organization and, whether organized under KRS Chs. 102 or 273, the organization is not subject to the open meetings law. OAG 74-566 .

Whether or not meetings of a student government association are open to the news media and the public may be decided by the organization which created the association or by the by-laws adopted by the association since it is a private association not covered by the Open Meetings Law. OAG 74-639 .

Meetings of the State Fair Board to consider sealed preliminary hotel proposals submitted in response to the Board’s invitation would be exempt under subsection (2) (now (b)) of this section but when final bids are opened the bidders and the public are entitled to know what they contain and to witness the deliberations of the Board as to which bid is to be accepted. OAG 74-665 .

A complaint to the city council by a private citizen is not an exception to the Open Meetings Law and thus the city council should have either heard the complaint in a public hearing or requested that said complaint be put in writing and placed on the agenda for a future meeting rather than hearing said complaint in a closed session since the city council is a public agency and therefore subject to the requirements of KRS 61.805 to 61.850 . OAG 75-3 .

School board members may attend an in-office meeting of school staff and employees as guests or observers and the requirements of this section for an open meeting do not apply as long as the meeting in no way becomes a school board meeting. OAG 75-125 .

The entire school board or any part thereof may participate in a professional negotiation session since this subject matter is expressly exempted from the open meetings requirement. OAG 75-125 .

Neither the citizens advisory subcommitte on legislative compensation nor the subject matter of its investigation falls within the exemptions of this section and therefore the meetings of the subcommittee should be open to the public. OAG 75-142 .

The citizens’ advisory subcommittee on legislative compensation, an interim committee of the General Assembly, is a public agency. OAG 75-142 .

The fiscal court is a public agency as defined in KRS 61.805 and any private session it holds is illegal unless the meeting comes within the exceptions to the open meetings provision in this section. OAG 75-280 .

At a county board of education’s special meeting, the discussion in closed session concerning the adoption of a regulation pertaining to payment of per diem allowances to board members was not within any exception to the requirement of open public meetings. OAG 75-299 .

Where the procedure followed by members of a county board of education in discussing a regulation pertaining to a per diem allowance violated the requirement of open public meetings, the decision of the board would remain in effect in the absence of a court judgment declaring the action valid. OAG 75-299 .

Meetings of the city board of commissioners dealing with the granting of individual salary increases to city employees must be open to the public since the subject matter of the meeting does not come within an exception to either this section or KRS 61.815 . OAG 75-340 .

An employee being given a hearing by a city civil service board under KRS 90.360 or 95.450 may compel the exclusion from the hearing of all persons except the board members, himself, legal counsel, a stenographer and witnesses while testifying. OAG 75-354 .

In view of this section, hearings by a city civil service board under KRS 90.360 or 95.450 need not be open to the public. OAG 75-354 .

A meeting of a board of education to discuss the rehiring of a high school coach must be open to the public if the coach so requests but he is not entitled to take any part in the meeting, be represented by counsel, produce witnesses or make any argument before the board. OAG 75-369 .

The discussion by the board of education as to the employment, discipline or promotion of an individual employee may be held in a closed meeting while the discussion of general personnel policies should be conducted in an open meeting. OAG 75-506 .

A meeting of a city council to suspend a policeman may be held in secret and the policeman is not entitled to a hearing before removal for cause but may not be removed without cause. OAG 75-564 .

A properly called special meeting may be conducted in closed session if the subject matter to be discussed falls within one (1) of the exceptions to open meetings provided in this section and if the motion for closed session is made and carried by a majority vote in open public session as provided in KRS 61.815 . OAG 75-709 .

The discussion and election of a new school board member, by the school board, upon resignation of one (1) of the board members should be in an open meeting. OAG 76-4 .

Since the collective bargaining negotiations exception provided for in subsection (5) (now (e)) of this section applies only when a governmental agency is negotiating with an authorized union or association representing the employees when the terms of a contract are being discussed, a meeting of a board of commissioners in an executive session to discuss recommendations regarding salaries of police officers and a list of grievances between city employees and the city manager where no contractual relationship between the city or employees existed and where the city had not recognized any union or association of city employees such meeting did not come within the exception provided for in subsection (5) (now (e)) of this section. OAG 76-456 .

Since public agency discussions concerning litigation are expressly exempted from the requirements of the Open Meetings Law under subsection (3) (now (c)) of this section, the prohibition of subsection (3) (now (c)) of KRS 61.815 does not apply to those discussions. OAG 76-643 .

Since a county school board’s consideration of the reappointment of the superintendent does not come under the exception provided by this section, documents presented at a board meeting by the superintendent in support of his candidacy for reappointment should be made available for public inspection. OAG 77-69 .

Since it is not necessary that any discussion occur or any action be taken to bring a meeting under the open meetings requirement, a meeting of the county fiscal court for the sole purpose of receiving a briefing by staff members of the county planning commission should be open to the public. OAG 77-171 .

The consideration by a board of education of the appointment of a superintendent may be conducted in a closed meeting, where such consideration includes personal interviews with candidates, but the final action of voting on whether to employ and appoint a particular candidate should take place in an open session. OAG 77-392 .

Inasmuch as threats or intimidation are not included in the exceptions to the open meetings requirement, a board of zoning adjustment could not meet in closed session because of threatening phone calls. OAG 77-464 .

A joint meeting of a city commission and the county magistrates to discuss setting ambulance service rates should be held in open session. OAG 77-529 .

Any person who a board of education believes can contribute information or advice on the subject matter under discussion may be invited into a closed executive session but he should remain only so long as is necessary to make his contribution to the discussion. OAG 77-560 .

Since a condemnation suit is litigation and therefore a proper subject for a closed session, a county board of education could go into executive session to discuss the acquisition of a tract of land. OAG 77-577 .

As long as no final action is taken, a public agency may meet in closed session to discuss the appointment of employees. OAG 77-758 .

It is permissible for a public agency to hold a closed meeting on the subject of personnel matters; however, this does not include the election of officers. OAG 78-176 .

The legislative intent of the exception to the closed meeting requirement of the statute is to assure the agency’s right to keep its litigation strategy confidential when necessary. OAG 78-227 .

The procedure for closed sessions does not have to be followed when the subject of the meeting is pending litigation against or on behalf of a public agency and it does not make any difference what the subject of the litigation is. OAG 78-227 .

The open meetings exception of subsection (5) (now (e)) of this section has been broadened by judicial interpretation in the case of Jefferson County Bd. of Educ. v. Courier Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. App. 1955) to allow a public agency which is formulating its demands or position preparatory to collective bargaining negotiations either by way of deliberations or instructions to its advocate to be held in closed session. OAG 78-371 .

The reasons for which a closed session may be held by a public agency are set forth in this section and do not include the negotiation of a franchise or any such matter as the rate to be charged for TV cable service. OAG 78-469 .

When a quorum of the river development commission attends a meeting which is convened by an authority or association other than the commission, such a meeting is not a meeting of a quorum of the commission within the meaning of this section, rather it is only when the commission itself by the direction of the chairman or some of its members convenes the meeting that the Open Meetings Law comes into play. OAG 78-634 .

A student is entitled to an orderly hearing, either closed or open, as the student desires, at which he must be given full opportunity to give his or her side of the story before the board and to produce either oral testimony or written affidavits of witnesses in his or her behalf, and the opportunity should be given to cross-examine witnesses. OAG 78-673 .

Discussion regarding suspension of a local superintendent may be held in closed session by the state board. OAG 79-394 .

The term “individual employee,” as it appears in subdivision (6) (now (f)) of this section does not apply to the procurement of professional services of a corporation or other private business entity. OAG 79-512 .

“Financial problems” are not a legal subject of a closed session. OAG 79-516 .

If a school board discovers that, either deliberately or inadvertently, it has dealt with a matter in closed session which is not authorized under the law, it should take corrective action by acting on the same matter again in an open meeting to demonstrate its good faith in complying with the Open Meetings Law before the matter is adjudicated. OAG 79-516 .

If a school board proposes to go into closed session to discuss “a personnel problem,” a motion should be made and passed in open session to go into closed session to discuss a personnel problem involving a particular employee or employees; it is not necessary to name the employee or employees to be discussed. OAG 79-516 .

Subdivision (6) (now (f)) of this section allows a closed session for discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, but not to discussions of general personnel questions involving all employees or a group of employees and does not apply to the business of fixing salaries or the financial matters before the school board. OAG 79-516 .

The meeting of four (4) councilmen, constituting a quorum of the six-man council, at which they discussed and decided how they would vote on a matter subsequently brought before the council at a regular meeting, constituted a public meeting open to the public and requiring public notice and specific notification in compliance with the Open Meetings Act. OAG 80-81 .

Where a county board of education was considering applicants for the office of superintendent of schools and had been conducting interviews with applicants in closed session, there was no violation of the Open Meetings Law in the proposal of the board to have a select committee sit with it in closed session and take an active part in the interviews and discussions. OAG 80-247 .

Telephone conversations among members of a port authority board prior to one of its regularly scheduled meetings did not violate the Open Meetings Law because the board accepted the resignation of the executive director and appointed an interim director in formal action at the regularly scheduled meeting; regardless, the accepting of a resignation and the appointment of an interim director were personnel matters which are exempt from the Open Meetings requirement by paragraph (6) (now (f)) of this section. OAG 80-426 .

Confidentiality per se is not the purpose of paragraphs (2) (now (b)) and (7) (now (g)) of this section but, rather, confidentiality is only permissible when the public interest will be directly affected financially. OAG 80-530 .

The exception provided by paragraph (7) (now (g)) of this section applies only in a case where a representative of an industrial prospect is present at a meeting with the governing body of a public agency; the meeting must be between the public agency and the industrial prospect. OAG 80-530 .

Where an agency is discussing whether it will buy or sell a specific piece of property and the discussion, if made public, would affect the purchase or sale price of that property or other property to be bought or sold on the same project, the agency may discuss the matter in a closed session. OAG 80-530 .

An urban county airport board is a public agency and all of its papers are public records under KRS 61.870 . OAG 80-586 .

Paragraph (6) (now (f)) of this section which provides an exception to the Open Meetings Law allowing hearings on personnel matters to be held in closed session, has no pertinency as to whether documents concerning the dismissal of five (5) employees should be made available for public inspection; in denying inspection of a public record a public agency must rely on one (1) of the exceptions provided in the Open Records Law, KRS 61.878(1). OAG 80-586 .

Where a disciplinary hearing about a particular student in a public school is held, the hearing is exempt from the formalities of going into a closed session under subdivision (6) (now (f)) of this section or the necessity of taking final action in an open session according to the procedure set forth in KRS 61.815 . OAG 81-135 .

A board of education cannot meet in closed session to discuss either the acquisition or transfer of real estate resulting from one school district ceasing to exist and transferring its assets and liabilities to another district, since no public property is being bought or sold, and the merger will not affect the value of the property being transferred to the surviving school district; thus the exemption under subdivision (2) (now (b)) of this section would not apply. OAG 81-136 .

A board of education cannot meet in closed session to discuss items related to a merger with another board of education since the merger of school districts is not one (1) of the five (5) subject matter exemptions under this section. OAG 81-136 .

A board of education cannot meet in closed session to discuss personnel issues created by a move for the consolidation of two (2) school districts when those issues relate to a group of employees affected by a disagreement surrounding the terms of a merger, since subdivision (6) (now (b)) of this section cannot be interpreted to permit discussion of general personnel matters in secret. OAG 81-136 .

When a closed session of a school board is held as authorized by this section, minutes of the closed session should be made, but the board, in its discretion, may require the minutes to be sealed and withheld from public inspection and such minutes will not be part of the regular minutes of the meeting required by subsection (2) of KRS 160.270. OAG 81-235 .

A county hospital, as a public agency, is not permitted by any exception to this section to discuss the annual audit of its books in a closed session, unless the audit revealed a mishandling of funds leading in turn to a discussion of personnel matters involving named personnel, which would come under subdivision (6) (now (f)) of this section. OAG 81-343 .

A city commission hearing held to evaluate the city manager’s performance for the past two (2) years can properly be held in closed session pursuant to subsection (6) (now (f)) of this section since the discussions held might lead to some personnel action. OAG 81-413 .

A closed session can be held on a personnel matter without formal charges being made against the person who is the subject of the session and such a discussion can be either preliminary to deciding whether to reject the idea of disciplinary dismissal action or preliminary to a decision to make formal charges and hold another hearing. OAG 81-413 .

A county fiscal court work session dealing with the preparation of the county budget and attended by a quorum of the fiscal court is an open meeting as defined in KRS 61.805 and this section. OAG 82-91 .

The Open Meetings Law permits the holding of a meeting by telephone conference call by the State Board of Education on the subject of the expulsion of a student of one of the schools of which the State Board has the direct oversight in disciplinary matters and the news media should be notified, at least twenty-four (24) hours in advance, that the meeting by conference telephone is to be held on disciplinary matters and will be closed to the public; however, this opinion is confined to the following circumstances: (1) the State Board of Education meets regularly only every two (2) months and the membership of the Board may reside anywhere within the boundaries of the commonwealth; (2) by regulation there has been established an appeal procedure utilizing hearing officers to review disciplinary cases where expulsion may be ordered; (3) the hearing officer shall hear proof, oral arguments and/or may request written briefs and shall make findings of fact, conclusions of law and recommendations to the State Board, and the State Board is required to make a final determination of the case within thirty (30) days; (4) before the appeal procedure is begun the student has been provided a due process hearing at the local level; (5) the role of the State Board of Education on expulsion appeals is to review the record made up under the presiding of the hearing officer and to approve or disapprove the hearing officer’s recommendation. OAG 82-179 .

The State Board of Education may meet in closed session to act on a recommendation of a hearing officer on the expulsion of a student without any preliminary action in an open meeting and may take final action on the matter in a closed session. OAG 82-179 .

Implementation of anticipated budget cuts in the Title I program was a general personnel matter which should not have been discussed in secret as long as the county board of education was discussing which positions to eliminate, if the issue was, for example, whether to eliminate social workers or music teachers or science teachers; on the other hand, if a decision had been reached to eliminate two (2) out of four (4) social worker positions and the question became which two (2) of the four (4) persons holding those positions would be dismissed, it then being necessary for the board to discuss qualifications and personalities, the board would have been justified in going into closed session for the purpose of that discussion. OAG 82-300 .

Advisory committees are not public agencies under the Open Meetings Law. OAG 82-331 .

Committees which are created by legislative act of the city council are public agencies and are required to hold open meetings subject to the provisions of this section. OAG 82-331 .

A meeting between two (2) school districts to discuss the matter of a mutual contract agreement, whereby students residing within the boundaries of one district could attend school in the other district, concerned the placement of over 400 students which would affect the employment and assignment of professional personnel in the two (2) school districts; this issue was a general personnel matter which did not involve the reputation of individual persons and therefore did not come within the exemption of subsection (6) (now (f)) of this section and, thus, such meeting could not be held in secret. OAG 82-566 .

Except when the Personnel Board is deliberating a decision on a particular case involving an individual, or discussing a matter which is exempt under this section, its meetings are required to be open to the public under the provisions of KRS 18A.070(3). OAG 83-20 .

The Personnel Board may go into closed session at the time of its deliberation on recommended orders submitted by hearing officers and/or board members, or to deliberate after it has received evidence in an open hearing, by following the procedure set forth in KRS 61.815 . The Personnel Board is authorized to conduct such closed sessions for the purpose of deliberation under subdivision (6) (now (f)) of this section; however, no final action by vote may be taken on such matter in the closed session. OAG 83-20 .

It was permissible for the fiscal court to allow the members of the board of directors of a nursing home to attend a closed session to discuss the possible sale of the nursing home; on the other hand, it was not proper to allow the representatives of some prospective buyers of the property to attend the closed session since there could well be other prospective buyers and the consideration of the sale of public property should not be limited to negotiations with a limited number of prospective purchasers. OAG 83-61 .

While the presence and the input of the representatives of the prospective buyers of nursing home may have influenced the decision of the fiscal court not to sell the property and may have been in the public interest, the Open Meetings Law does not permit this type of closed negotiations to decide whether the property is surplus to public purpose and whether it should be sold or retained in the public interest. OAG 83-61 .

A newspaper reporter has the same standing as any other citizen and a reporter cannot be barred from a meeting unless all other nonparticipants in the meeting are also barred. OAG 83-102 .

Under this section, whenever a quorum of the members of any public agency meet and discuss any public business the meeting is a public meeting as defined in the Open Meetings Law; thus, where the entire county board of education called itself a “committee” and added several other people to the “committee” before conducting a private session with representatives of the county education association, the school board was required to comply with the Open Meetings Law. OAG 83-102 .

Where a proposed meeting between the Special Commission on Youth Residential Facilities and employees of the Department for Social Services would involve discussions with employees as to their job performance and the performance of their colleagues, where reputations would be involved and where this type of investigation might lead to the disciplining or dismissal of employees, it could be held in closed session. OAG 83-127 .

An electric and water plant board’s stated proposal to discuss “personnel matters” at a closed session was a sufficient notice and reason given under KRS 61.815(1). OAG 83-377 .

The discussion of a salary increase by an electric and water plant board for its general manager in closed session was violative of the Open Meetings Law. OAG 83-377 .

Before going into closed session notice must be given by the board of education in a regular open meeting of the general nature of the business to be discussed in the closed session and a motion must be made and carried by majority vote to go into closed session. It is sufficient if the notice and motion to go into closed session simply states that the purpose of the session is to discuss personnel matters affecting certain individuals; the names of the individuals do not have to be stated in the notice and motion. OAG 83-379 .

Discussion by a city board of aldermen of “an ordinance ratifying and approving the collective bargaining agreement between the city and the fraternal order of police” would not be exempt from the open meetings requirement; the topic indicates that the dispute had been settled and the collective bargaining negotiations completed. Since the meeting was held to discuss ratification and approval of the agreement instead of negotiations between employers and employees, it was not exempt from open meetings under subdivision (5) (now (e)) of this section. OAG 83-389 .

A metropolitan sewer district (MSD) cannot discuss in closed session whether to accept the resignation of an individual MSD official. Subdivision (6) (now (f)) of this section provides for closed session only to discuss appointment, discipline, or dismissal of an individual in order to protect his reputation; any other personnel matters are prohibited as subjects for closed meetings pursuant to subdivision (6) (now (f)) as they constitute discussion of general personnel matters in secret. OAG 83-415 , modifying OAG 80-246 .

When a public agency, such as a city council, after giving notice to the parties, is conducting a fact-finding hearing which will affect the substantial rights of an individual and will render a decision based on its discretion, the agency is performing a quasi-judicial function. Hearings held by a city council regarding rezoning proposals are open to the public, as mandated in rezoning amendments by KRS 100.211 ; however, once arguments are heard and evidence received, the city council can then retire into closed session to deliberate and reach a decision. OAG 83-446 .

The board is only required to announce the general nature of the business to be discussed in the closed session; no particular candidate need be named in the announcement of a closed session to discuss appointment of a new superintendent, as that would subvert the intent of subdivision (6) (now (f)) of this section. OAG 83-455 .

Discussion by county board of education about selection inquiries and qualification suggestions concerning appointment of a new superintendent of schools was not exempted from open session by subdivision (6) (now (f)) of this section since no individual was involved to whom reputational damage might occur; accordingly, board acted improperly in discussing such matters in closed session and subsequently taking action, in open session, to direct inquiries and suggestions concerning the appointment to a certain person. OAG 83-455 .

Where a school board heard evidence in an open meeting regarding the proposed expulsion of a student and then properly went into closed session pursuant to subdivision (6) (now (f)) of this section in order to deliberate, the school superintendent’s presence at the closed session was improper where the superintendent had represented the school board in a quasi-attorney role throughout the open session. OAG 83-488 .

Although subdivision (6) (now (f)) of this section allows closed sessions to discuss appointment, discipline, or dismissal of an individual employee it is designed to protect the reputation of individual persons and should not be interpreted to permit discussion of general personnel matters in secret; in other words, discussion in closed session is specifically limited to discussions pertaining to the appointment, discipline, or dismissal of a specific individual. Accordingly, the Morehead State University Board of Regents erred when they went into closed session and merely discussed the selection process for a new president rather than specific individual candidates. OAG 83-489 .

Where a land use regulation ordinance proposed an informal meeting between land developers and owners of adjacent property regarding site approval for land development projects, where it would be up to the assembled land developers and property owners to make any decisions or compromises and where no members of the county planning commission or the fiscal court were required or expected to attend, the meeting in the proposed ordinance was not subject to the Open Meetings Law as long as a quorum of either public agency was not present. OAG 84-45 .

A county hospital board was a “public agency,” as defined in KRS 61.805(2); however, where a closed meeting of such board involved a substantial discussion of the suspension of a county hospital employee, such discussions brought it under the personnel discussion exception to open meetings stated in subdivision (6) (now (f)) of this section. OAG 84-46 .

Where newspapers were prohibited from covering a closed hospital board meeting, but county judge/executive, who served on the board, also controlled one newspaper, there was no impropriety on part of county judge/executive since his newspaper carried no mention of the discussions of the closed meeting. OAG 84-46 .

The city council of a third-class city is a public agency pursuant to KRS 61.805(2) and is thus subject to the Open Meetings Law; however, the Open Meetings Law only applies when a quorum of the public agency meets to discuss public business. OAG 84-49 .

Where city council was comprised of twelve members, seven members of the council constituted a quorum; consequently, where private meetings in the mayor’s office were attended by six (6) and four (4) members, respectively, the absence of a quorum of council members in the mayor’s office at each meeting rendered the Open Meetings Law inapplicable. OAG 84-49 .

Where one of the magistrates of fiscal court filed a suit against county to prevent the performance of contract with hospital corporation, the fiscal court could meet in closed session to discuss various pertinent aspects of the hospital contract and the pending litigation and the magistrate who brought the suit against the county could be excluded from the closed session while the contract and the suit were subjects of discussion and action. OAG 84-234 .

Where a cable authority announced at an open meeting that it was going into closed session to discuss possible litigation brought against the authority by a cable service company over the regulation of cable rates, the nature of the closed session was proper and the notice of the session was sufficient; also, the authority properly limited discussion during the closed session to the topic of litigation with the cable company. OAG 84-240 .

City council improperly closed meeting after the affected individuals requested that the meeting remain open; the council, pursuant to subsection (6) (now (f)) of this section should have honored that request. OAG 84-302 .

A closed session meeting held by a city council following one (1) of its regular meetings, for the announced purpose of discussing burglary charges against certain resident teenagers, as well as discussing the public belief that these and other teenagers had been conducting cult rituals in the city, was an improper meeting since the topic of discussion did not fit any of the enumerated exceptions to the Open Meetings Law. OAG 84-317 .

Advisory committee appointed by the superintendent of a county board of education, on his own initiative and without any formal direction by the board, was subject to the Open Meetings Act since committee was created by executive order; to the extent it conflicts with the opinion, OAG 78-571 is hereby modified. OAG 89-25 .

The Buckley Amendment cannot be invoked to close an otherwise public meeting of a public agency, as that amendment is concerned with the release of the “educational records” of students and not with the holding of meetings of public agencies; in addition, the Buckley Amendment cannot be invoked to prohibit comment on or discussion of facts about a student learned independently of his school records; however, the Buckley Amendment can be invoked by the University of Louisville to prohibit the release of material, the source of which is a student’s educational records. OAG 90-125 .

Where meetings have not involved the appointment of specific persons by the University of Louisville or the discipline or dismissal of specific persons employed by or working or studying at the University, the assertion of subsection (6) (now (f)) of this section as the ground for closing a public meeting of a university committee is inapplicable and invalid. OAG 90-125 .

Mere speculation about the possibility of litigation at some point in the future does not trigger the exception codified in subdivision (3) of this section. OAG 91-141 .

In absence of a contract between the parties, discussions between the school board and a prospective school superintendent, involving his specific salary and the length of his contract, were subject to the exceptions to open meetings. OAG 91-144 .

Since three (3) members of the Parole Board constitute a quorum concerning parole hearings (KRS 439.320(4)) any hearing conducted under KRS 439.340(2) by three (3) or more members of the Parole Board would be a public meeting of a public body and open to the public. Two (2) members of the Parole Board do not constitute a quorum and thus prior to the 1992 amendments to the Open Meetings Act, such a hearing would not be a public meeting of a public agency. However, the Open Meetings Act as amended in 1992, in KRS 61.810(2), deals with “less than quorum meetings.” KRS 61.810(2) would prohibit the Parole Board from adopting a procedure whereby it utilizes two-person panels to conduct hearings and to prohibit public accessibility when panels of three (3) or more Parole Board members conducting the same kinds of hearings would be clearly open meetings open to the public. Thus, if the Parole Board utilizes two-person panels to conduct the hearings required by KRS 439.340(2) such hearings are open to the public. OAG 92-146 .

The interview and discussion portion of a parole release hearing with the prisoner are meetings open to the public, but the deliberations for decisions of the parole board may be conducted in closed sessions. The hearings conducted pursuant to subsection (5) of KRS 439.340 may be closed pursuant to a closure request by the persons having a right to appear at such hearings for reasons of personal security. OAG 92-146 .

University’s board of regents did not forfeit its right to invoke the legitimate exceptions to the Open Records Act just because it violated the Open Meetings Law. The records reviewed by the board relative to the proposed budget which occurred during an improperly closed meeting, and all other records of a preliminary character, still enjoyed the protection of KRS 61.878(1)(i), independent of the Open Meetings issue, until final action was taken by the Board. OAG 92-ORD-1346.

A university’s board of regents denial of a request for access to certain records which were generated in the course of a closed session conducted by the board of regents in its regular meeting was improper. The board of regents violated this section to the extent that its closed discussions focused on classes of, as opposed to specific, individuals. However, only those records which reflected discussions of classes of individuals were subject to inspection. OAG 92-ORD-1346.

City properly invoked the provisions of subsection (1)(c) of this section when it met in a closed session to discuss matters pertaining to ongoing litigation and person bringing objection to the closed session presented no evidence in this regard to contradict assertions that only matters pertaining to the litigation were discussed; moreover since the city council properly invoked the litigation exception and met in a closed session to discuss specific litigation involving the city, the city was not legally obligated to reveal what transpired at that closed session relative to its strategy, tactics, possible settlement and other matters pertaining to that particular case. OAG 92-OMD-1728.

Where unidentified person invited into the executive session at some point after city council had concluded its discussion relative to litigation involving the city was a paving contractor and the city was invoking the litigation exception to the Open Meetings Act in this matter because either the paving contractor or his attorney or both of them had threatened the city with litigation over work done by the paving contractor for the city, the city properly invoked the litigation exception because the threat of a lawsuit by the company against the city in such situation was more than a “remote” possibility of litigation involving the city. OAG 92-OMD-1728.

Where three (3) physicians met with hospital board during a closed session to discuss “an agreement” with the physicians and there was no evidence that the board was considering the physicians as possible employees of the public hospital subsection (1)(f) of this section would not authorize a public agency to conduct a closed session with persons not being considered for employment with the agency or to discuss the general subject of “an agreement” with those persons and since the services being rendered or to be rendered by a public hospital are a matter of public interest, subsection (1)(g) of this section would not justify the closing of the meeting relative to the matters concerning business opportunities. OAG 92-OMD-1735.

Where a draft of an ordinance was being prepared for discussion at an open and public meeting and the person preparing the draft merely sought comments and suggestions from the individual fiscal court members relative to the terms and provisions of that ordinance, there was no violation of the Open Meetings Act. OAG 93-OMD-20.

A public agency cannot go into a closed session to discuss personnel matters generally. The only personnel matters which can be discussed in a closed session by a public agency are those which might lead to the appointment, discipline or dismissal of personnel of that particular agency. Therefore, a committee created by the mayor violated the Open Meetings Act when it went into a closed session to discuss personnel matters other than those which might lead to the appointment, discipline or dismissal of municipal personnel. OAG 93-OMD-49.

City council violated the Open Meetings Act when it went into a closed session to discuss personnel matters other than those which might lead to the appointment, discipline or dismissal of municipal personnel. OAG 93-OMD-49.

The Board of Commissioners of hospital did not violate the Open Meetings Act when the Board went into a closed session to deliberate the proposed sale of the hospital building and the property on which it is located as the Board was of the opinion that publicity would likely affect the value of the property to be sold. OAG 93-OMD-56.

A meeting of House Members who had gathered for the purpose of obtaining information about the Governor’s health care reform proposal was not a public meeting under the Open Meetings Act where a quorum was not present. OAG 93-OMD-63.

In order to utilize the exception in subsection (2) of this section it must be shown that the public agency is meeting with less than a quorum over a series of meetings to avoid the application of the provisions relating to open and public meetings. OAG 93-OMD-63.

The litigation exception of subdivision (1)(c) of this section, like other exceptions to the basic policy of open and public meetings, must be narrowly construed; it cannot be invoked when the agency does nothing more than monitor cases which have not been filed against or on behalf of the public agency attempting to utilize the exception. OAG 93-OMD-119.

Generally the discussion of cases in which a public agency is not a party or defendant must be conducted in open and public sessions; when a public agency has become a party plaintiff or defendant in a lawsuit, when a public agency has been threatened with litigation, or when the chance of litigation involving that agency is more than a remote possibility, the agency can then legally and properly invoke the exception set forth in subdivision (1)(c) of this section and can at that time discuss in closed session such matters as strategy, tactics, possible settlement and other matters pertaining to that case or that anticipated or probable case. OAG 93-OMD-119.

A public agency cannot invoke subdivision (1)(c) of this section to discuss, generally, in closed sessions, cases which have not been filed against or on behalf of that particular public agency; to the extent that such agency went into closed session merely to discuss litigation to which it was not a party, it was in violation of the Open Meetings Law but to the extent the session involved discussion of threatened litigation, the closed session was proper. OAG 93-OMD-119.

The House Democratic Caucus, an entity established by the Legislative Research Commission, does not qualify as a committee of the General Assembly; therefore, it is subject to the provisions of the Open Meetings Act. OAG 94-OMD-23.

Where negotiations and discussion with an employee of county planning and zoning commission did not involve the possible appointment, discipline, or dismissal of that person, the negotiations and discussions should not have taken place in a closed session — the exception in subdivision (1)(f) of this section was not applicable. OAG 94-OMD-63.

County planning and zoning commission properly went into a closed session pursuant to subdivision (1)(f) of this section to consider possible disciplinary charges against a commission employee. OAG 94-OMD-63.

Where the agenda for the special meeting listed as the only item a matter pertaining to a change or an addition to contracts, the city’s committee violated the Open Meetings Act when it went into a closed session during that special meeting to discuss matters involving litigation. OAG 94-OMD-78.

City did not violate the Open Meetings Act merely because everyone at a particular board of aldermen meeting could not be admitted into the meeting room where the meeting was held in a facility which normally could accommodate all those desiring to attend and where the city offered to allow the overflow crowd to view the meeting from another room by television. OAG 94-ORD-87.

County board of education violated the Open Meetings Act when it went into a closed session to discuss the possibility of creating a new position with the school system. OAG 94-OMD-103.

Fiscal court violated the provisions of the Open Meetings Act when its members met individually or in small groups in a series of meetings with the county’s industrial recruiter and persons from a private corporation relative to the possible location of that corporation in the county. While subdivision (1)(g) of this section could not be invoked to justify such meetings, that such subdivision could probably have been utilized at a properly called regular or special meeting of the fiscal court as a body to discuss the issue of a specific corporate entity locating in the county. OAG 94-OMD-106.

Municipal utility officials violated the Open Meetings Act as they improperly invoked the litigation exception to close a meeting to discuss cancellation of a contract. The fact that the company whose contract was to be terminated might file a bankruptcy petition in response to the contract cancellation did not justify the invoking of subdivision (1)(c) of this section. OAG 94-OMD-110.

“Industrial prospects” exception to open and public meetings under former subsection (7) of this section was repealed by the 1992 amendments to the Open Meetings Act (1992 Acts, ch. 162, HB 16) and replaced by subdivision (1)(g) of this section. Under the new provision a meeting between a city and a representative of a business entity or a meeting of the city commission pertaining to a specific proposal could only be closed if an open and public discussion would jeopardize, among other things, the locating of the business in the area. OAG 94-OMD-119.

Where business has already publicly announced at a ceremony attended by the Governor and other officials that it is locating in the area, city could not invoke subdivision (1)(g) of this section to close a meeting pertaining to discusssions concerning that firm locating in the area. OAG 94-OMD-119.

A city may properly invoke subdivison (1)(f) of this section to go into a closed or executive session to discuss the possible dismissal of a particular employee. That specific section does not require that the affected employee be given notice of the discussion or an opportunity to attend that discussion. However, city was required to announce in the open and public portion of its meeting that it was invoking the provisions of subdivision (1)(f) of this section to go into a closed session to discuss the possible termination of a particular municipal employee. OAG 94-OMD-122.

Where city council at a public meeting made a choice as to what particular architect it had selected, that decision constituted “action taken” pursuant to KRS 61.805(3) and the public, including the media, was entitled to know at that specific point in time the nature of the action taken which in this situation would involve the name of the architect selected. OAG 94-OMD-127.

If a public agency is to utilize the exception set forth in subsection (1)(b) of this section, it must be involved in the sale or acquisition of real estate and any publicity relative to the matter would likely affect the value of the property to be sold or acquired, thus justifying a closed proceeding. OAG 95-OMD-57.

At the time of the closed council meeting, the purpose of which was to discuss the city’s obligations and liabilities relative to certain property and to discuss a Memorandum of Understanding executed between the urban county government and the Commonwealth involving that property, there was no indication that the urban county government was a party to litigation concerning the property involved, had been threatened by the Commonwealth with a law suit, or that litigation involving the urban county government and the specific property involved was more than a remote possibility; thus, the urban county government was precluded from relying upon subsections (1)(b) and (c) of this section’s litigation exception, to close an otherwise public meeting. OAG 95-OMD-57.

Where the stated purpose of a Revenue Commission meeting was to discuss the matter of whether or not a Revenue Commission employee would be retained, this subject matter was a proper subject for a closed session under KRS 61.810(1)(f); however, the closed session had to be limited to whether or not the Revenue Commission employee would be terminated, and matters such as the development or selection of a search procedure to fill the position were not proper subjects for a closed session, regardless of whether or not the Revenue Commission had complied with KRS 61.815(1)(d), by publicly announcing the matters to be discussed during the closed session. OAG 95-OMD-93.

The Open Meetings Act gives a municipal employee the right to an open and public hearing if the hearing has been scheduled by the municipal authorities concerning a termination proceeding and dismissal, but the Open Meetings Act does not require notice and a hearing if the city merely announces that it is going into a closed session to discuss the possible dismissal of a particular employee. OAG 95-OMD-93.

A quorum of the members of a public agency may attend a professional or social event, such as a convention, without violating the Open Meetings Act. OAG 95-OMD-136.

Attendance by a quorum of the members of the urban county council at a convention or conference organized by someone other than the council does not in and of itself constitute a meeting of the council within the meaning of this section. Council members attending such a convention or meeting are not authorized to take action affecting their city nor are they permitted to discuss matters directly affecting their city. OAG 95-OMD-136.

Where a complaint was filed as to the legality of the Workers’ Compensation Advisory Council adjourning into private caucuses meeting separately as business and labor interests, there could not be a definitive finding made by the Office of the Attorney General because the evidence was insufficient as to whether there was contemplated a “series of less than quorum meetings” or whether the purpose of these less than quorum gatherings was to avoid the requirements of the Open Meetings Act. If there were a series of less than quorum meetings and if those meetings were conducted for the purpose of avoiding the requirements of the Open Meetings Act, the Open Meetings Act would be violated. OAG 96-OMD-261.

When university board of regents was considering an appointment or several appointments to a presidential search committee the appointees were not employees of the university or the board but were persons filling positions on an entity created by the board and their temporary existence would end when their task was complete; the board was not appointing, at that time, a university employee, the university president and thus the board incorrectly relied on subsection (1)(f) of this section to close an otherwise public meeting to discuss the appointment of persons to the search committee. OAG 97-OMD-80.

Public agency violated the Open Meetings Act when it invoked the exceptions set forth in subsection (1)(f) of this section and gave as its reasons the intent to discuss individual personnel matters or specific employee matters. Since the only personnel matters which can be discussed in a closed session pertain to the possible appointment, discipline, or dismissal of personnel of that particular agency, the public agency should have indicated which of those particular authorized exceptions it was utilizing and why the session was being closed (which frequently involves privacy considerations). OAG 97-OMD-110.

Mayor and city council violated Open Meetings Act, specifically subsection (1)(f) of this section, when stated reason for going into open session was ‘discussion of personnel’; since the only personnel matters which can be discussed in a closed session pertain to the possible appointment, discipline, or dismissal of personnel of that particular agency, the public agency should have indicated which of those particular exceptions it was utilizing and why the session was being closed. OAG 97-OMD-124.

A public agency’s authority to go into closed session relative to personnel matters is severely restricted. General personnel matters cannot be discussed in a closed session; the only personnel matters which can be discussed in a closed session by a public agency are those which might lead to the appointment, discipline, or dismissal of personnel of that particular agency. OAG 97-OMD-124.

The Housing Appeals Committee of Eastern Kentucky University is a public agency subject to the terms and provisions of the Open Meetings Act and its meetings are open to the public unless it can invoke an exception to open and public meetings; pursuant to subsection (1)(k) of this section and 20 USCS, § 1232g, it may properly go into closed session to discuss student housing appeals. OAG 97-OMD-139.

While the Housing Appeals Committee of Eastern Kentucky University, a public agency, may properly go into closed session to discuss student housing appeals pursuant to subsection (1)(k) of this section and is required to do so under 20 USCS, § 1232g, an eligible student, that is a student who is 18 or is attending an institution of postsecondary education, may waive his privacy rights under the Federal Educational Rights and Privacy Act by written consent, thus permitting public discussion of his housing appeal; however, if such appeal raises housing issues or evidence concerning other students, the Housing Committee would be bound by 20 USCS, § 1232g(b)(1) and thus required to conduct the hearing in closed session. OAG 97-OMD-139.

In general, meetings of a quorum of the members of the Financial Aid Committee at which public business is discussed or at which action is taken must be open to the public at all times; however, the committee is authorized to go into closed session to discuss student financial aid appeals pursuant to subsection (1)(k) and 20 USCS § 1232, which restricts discussion of personally identifiable information in education records in a public meeting without a parent or eligible student’s prior written consent. OAG 98-OMD-142.

A county regional airport board properly conducted an executive session to discuss proposed or pending litigation where, prior to the meeting, the board had received written notice from a group of pilots demanding reconsideration of parts of the fueling policy adopted by the board and giving notice of areas of the policy which would be contested in the absence of action on the issue. OAG 99-OMD-6.

An agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) by announcing, in open session, that pursuant to KRS 61.810(1)(f) it is going into closed session to discuss either the appointment, the discipline, or the dismissal of an employee or employees of the agency, indicating which of these particular actions is contemplated; however, the agency is not required to identify, by name, the employee or employees who will be discussed, nor is it restricted to a discussion of one individual employee at a time. OAG 99-OMD-49.

A planning and zoning task force violated the Open Meetings Act when it went into closed session to discuss personnel issues as the task force had no authority with regard to personnel issues. OAG 99-OMD-94.

Although it did not comply with the procedural requirements of the Open Meetings Act in responding to a complaint concerning a closed session, and although it initially relied on the wrong exceptions, a city council subsequently justified its actions on the basis of subsection (1)(g) where the closed session pertained to a sale and leaseback of real property. OAG 99-OMD-104.

A county school system violated the Open Meetings Act when it failed to give notice of a meeting of its local facility planning committee. OAG 99-OMD-117.

A closed session of a planning and zoning commission with regard to a controversial conditional use permit was not justified by the pending litigation exception, notwithstanding a statement that “this matter has been in litigation and inevitably will end up in litigation again.” OAG 99-OMD-146.

A county fiscal court violated the Open Meetings Act when it went into closed session at a regular meeting in order to discuss the payment of an employee’s claim for reimbursement of expenses as such did not constitute a personnel matter. OAG 99-OMD-221.

A county fiscal court violated the statute when a judge conducted a series of separate meetings with other individual members of the court to discuss newly received information regarding a jail site, even if no collective decision was reached through these meetings, as it was apparent that the matters discussed in the meetings influenced the court’s ultimate decision in some manner and were, therefore, the public’s business. OAG 00-OMD-63.

A city commission properly relied on subsection (1)(b) in conducting a closed session discussion of issues relating to the purchase of a building. OAG 00-OMD-64.

A county fiscal court violated the Open Meetings Act at a special meeting when it went into closed session to discuss personnel matters where the court’s discussion in closed session apparently consisted of recommendations relating to a new job description and the hiring of a part-time employee, rather than the qualifications of an individual applicant, and the pros and cons of hiring him or her. OAG 00-OMD-86.

To the extent that a closed session discussion of a city commission went beyond a discussion of the personnel discipline issue, it was not authorized under subsection (1)(f) and constituted a violation of the Open Meetings Act. OAG 00-OMD-113.

A city council violated the Open Meetings Act when a quorum of its members conducted an informal discussion prior to a regular meeting while waiting for the courtroom in which the regular meeting was to be held to become available. OAG 00-OMD-114.

A city council properly relied on subsection (1)(b) in conducting a closed session discussion of issues relating to the purchase of the real estate that were likely to affect its value, and insufficient evidence existed to support the allegation that action was taken in the course of the closed session discussion. OAG 00-OMD-146.

A city council did not violate the statute when a quorum of the members met at a local restaurant following a regular meeting where those present stated under oath that they did not discuss public business. OAG 00-OMD-147.

A county fiscal court violated the Open Meetings Act by failing to establish that discussions in an executive session were authorized under the “pending litigation” exception and by failing to offer sufficient justification for the admission of a single media representative and the exclusion of all others, as well as the general public. OAG 00-OMD-219.

An inquiry by a board of ethics charged with enforcement of the code into allegations of code violations may be conducted in closed session if authorized under one of the exceptions to the general rule of openness for the public good under KRS 61.810 (l)(f); such a closed session must conform in all particulars with the requirements of KRS 61.815 (l)(a) through (d), including the requirement that no final action may be taken during the closed session. OAG 01-OMD-18.

Since a meeting takes place within the meaning of the Open Meetings Act if a quorum is present and public business is discussed or action is taken, the January 15 meeting of five (5) of the members of the fiscal court and the county judge to discuss the progress of renovations on the old post office building constituted a violation KRS 61.810(1) inasmuch as it was conducted without proper notice to the public. OAG 01-OMD-30.

A lawsuit need not be pending by or against a public agency before it can properly rely on KRS 61.810(1)(c) so long as there have been “direct suggestions of litigation conditioned on the occurrence or nonoccurrence of a specific event.” Since it appears that the Planning Commission will be named as a party in the pending legal action, and/or will initiate legal action against the developer, if settlement is not reached, KRS 61.810(1)(c) authorized the closed session, and specific and complete notification of the topic to be discussed was given in open session. OAG 01-OMD-41.

The Hopkins County Fiscal Court violated the Open Meetings Act when it went into closed session pursuant to KRS 61.810(1)(b) and (g) at its February 14, 2001, special meeting “to discuss cost estimates for remodeling the old Post Office building” with an architect; the fiscal court’s reliance on the cited exceptions was misplaced. OAG 01-OMD-45.

The Taylor County Fiscal Court violated the Open Meetings Act by engaging in whispered discussions of the public’s business at its May 15 public meeting. Because a quorum of the members were present, and public business was being discussed, the meeting was required to the “open to the public at all times . . .,” and not interrupted by whispered discussions to which the public was effectively denied access. OAG 01-OMD-110.

Because the Meade County Fiscal Court is not named as a party defendant in the tort action against a deputy sheriff, it is therefore not entitled to invoke KRS 61.810(1)(c) for the purpose of conducting a closed session discussion of the case, regardless of whether that discussion focuses on appellate procedures, reasons for the verdict against the deputy sheriff, or avoidance of future liability. OAG 01-OMD-130.

The Martin County Fiscal Court violated the Open Meetings Act at its August 9, 2001, special meeting when it went into executive session to discuss the issue of seeking legal advice regarding a suit filed against it, since, although litigation has been initiated against the fiscal court, the closed session discussion was not “of proposed or pending litigation,” but of the need to hire legal counsel, and that even if the topic discussed fell within the parameters of KRS 61.810(1)(c), the presence of persons who were not members of the public agency in the closed session was inconsistent with the fiscal court’s invocation of the exemption. OAG 01-OMD-152.

Where the nonmenber (the State Manager) was invited into the closed session “to provide his perspective on pending litigation especially the case on which authority to settle was granted,” since it was the State Manager who gathered all evidence available to the school district in defense of that civil action, and the State Manager who had the right pursuant to statute and written agreement with the school district to exercise veto power over actions of the board of education, his presence in the Floyd County Board of Education’s closed session was justified. OAG 01-OMD-181.

KRS 61.810(1)(g) applies to meetings between a public agency and a representative of a business entity, or a meeting of the agency to discuss a specific proposal, but in either case, only if open discussion could jeopardize the siting, retention, expansion, or upgrading of the business. Since neither of the conditions for invocation of this exemption were met when the Governor’s Council of Economic Advisors retired to executive session to discuss the “potential plans” of the companies they represent based on current economic conditions, the Council’s reliance on KRS 61.810(1)(g) was misplaced, and it violated the Open Meetings Act when it went into closed session at its November 6 meeting. OAG 01-OMD-227.

Although the applicants for the vacant instructor positions were already under contract with the Board of Education for their normal teaching jobs, the vacant positions were separate from the positions they held, no offer of employment had been made to any of the applicants to fill the vacant positions, and no contracts had been executed relative to the vacant positions. The closed session discussion therefore focused not on securing the employees continued employment by renegotiating the terms and conditions of their existing contracts, but on the comparative qualifications of the competing applicants for the purpose of selecting the best qualified to fill the vacant positions. This is, and has long been, recognized as an appropriate subject for closed session discussion under KS 61.810(1)(f). OAG 02-OMD-21.

Where the Commission took the occasion of the closed session to permit the employee the opportunity to address the Commission members on the topic of her termination, if the employee had already been terminated by unilateral action of the Mayor under the authority vested in him by city ordinance, the closed session discussion could not have led to her dismissal, as required by KRS 61.810(1)(f), and was therefore improper. OAG 02-OMD-153.

Since KRS 61.810(2) prohibits all less than quorum meetings where the members attending one or more of the meetings collectively constitute at least a quorum, and not just those which culminate in a collective decision, the series of less than quorum discussions between the Mayor and the Commission members was a discussion of public business, a discussion of the various alternatives to a given issue about which the Commission had the option to take action, and not merely an update from the Mayor. OAG 02-OMD-153.

To the extent that the purchase of the real property could not be consummated until the offer on the table was approved by the council, acquisition of the property was prospective, or in the future, when the council conducted its May 16 closed session, pursuant to KRS 61.810(1)(b), to deliberate its various options. OAG 02-OMD-166.

Although the board could discuss the value assigned to particular properties in closed session under KRS 61.810(1)(b), with respect to the 48%-28% formula, however, the board adopted a general policy relating to all PDR participants and the public is completely in the dark as to why the policy was adopted. To the extent that the Board’s closed session discussions focused on the formula, as opposed to the formula applied to a particular property, it was improper. OAG 02-ORD-86.

Because the record is devoid of evidence that publicity was likely to affect the value of the ten (10) acres of real property owned by the Authority that are adjacent to the industrial park, and because confidentiality is only permissible when the public interest will be directly affected financially, the Authority’s reliance on KRS 61.810(1)(b) in holding a closed session was misplaced. OAG 03-OMD-47.

Since the primary focus of the meeting was which, if any, of the three (3) alternate proposals submitted by CHP to “change the member relationship between CHP and ODCH, or have either CHP or ODCH acquire the member interest of the other,” was most attractive, the dismissal of an individual employee was not the focus of the closed session discussion but was instead an unavoidable consequence which would flow from selection of two (2) of the three (3) proposals, and the employee’s reputational interest was implicated, if at all, only indirectly. Therefore, ODCH’s liberal construction of KRS 61.810(1)(f) in this context is not supported by the language of the exception. OAG 03-OMD-89.

Standing alone, a single telephone conversation between two members of a public agency cannot constitute a violation of the Open Meetings Act. Where, however, that telephonic meeting follows an earlier less than quorum meeting of the members of a public agency, and the members attending one or more of the meetings collectively constitute at least a quorum, that series of less than quorum meetings constitutes a violation of KRS 61.810(2) if the meetings are held for the purpose of avoiding the requirements of KRS 61.810(1). OAG 03-OMD-92.

Because discussions relating to the propriety of posting a position constitute general personnel matters, and because the Board had no authority to resolve that question, or questions relating to relieving an employee of extra duties, and because relieving an employee of extra duties cannot be equated with “discipline or dismissal,” the Board’s reliance on KRS 61.810(1)(f) was misplaced. OAG 03-OMD-148.

The Commission violated KRS 61.810(1) in that access to the meeting was temporarily blocked, albeit unintentionally, when the doors to the building were locked while the meeting was in session. OAG 03-OMD-169.

The private discussion between an attorney and a quorum of the members of the Spencer County Board of Education, during which he instructed the board members on the formal and procedural requirements of a hearing designed to provide due process to an individual whose employment status was at issue, constituted a violation of KRS 61.810(1). OAG 03-OMD-178.

The record supports the City’s position that it was warranted in conducting a closed session to engage in mediation discussion of the possible settlement of the then pending litigation and thus, the mediation discussion fell squarely within the parameters of KRS 61.810(1)(c). OAG 03-OMD-234.

The protection afforded by KRS 61.810(1)(c) is broad enough to extend to closed session briefings by agency counsel on the strengths and weaknesses of a case, actual or threatened, based on legal precedent and in light of the status of current litigation. The fact that the actual or threatened litigation relates to an ordinance does not deprive the agency of the right to shield its litigation strategy from public scrutiny. OAG 04-OMD-39.

The record is devoid of evidence that a quorum of the members of the Smaller Learning Communities Committee met in advance of the scheduled meeting in contravention of KRS 61.810(1). Although public business, namely the freshman transition strategy, was discussed by four members of the twenty-four member committee, and a proposal formulated, no final decisions or commitments were made prior to consideration of the proposal by the full committee at its regularly scheduled meeting. OAG 04-OMD-73.

The record on appeal does not support the city’s position that public discussion is likely to affect the value of the specific piece of property because the city already executed an option on the property and the price of that property has been agreed upon and will culminate in a sale, or no sale, based on studies which are underway. Moreover, the language of KRS 61.810(1)(b) does not support the city’s position relative to the purchase or condemnation of another property; these alternate sites do not qualify as “a specific piece of property” within the meaning of KRS 61.810(1)(b). OAG 04-OMD-127.

Citation to the specific exception authorizing the closed session is not simply “the best practice,” so that the failure to do so is a mere “technical” violation, but it is instead a statutory requirement along with the requirement that the agency describe the general nature of the business to be discussed. OAG 04-OMD-179.

Because the Judge-Executive was not bringing a discipline issue to the court regarding the director, nor does the evidence of record indicate that the Fiscal Court was engaged in a discussion regarding the performance evaluation process as applied to the director which might have led to the discipline or dismissal of the director as authorized by KRS 61.810(1)(f), the Fiscal Court expanded the scope of the personnel exception and improperly concealed matters otherwise appropriate to the view of the public. OAG 04-OMD-225.

KRS 61.810(1)(j) permits the Board of Medical Licensure to go into closed session to consider and deliberate a grievance against a physician, including the Governor. Such a closed session must conform in all particulars with the requirements of KRS 61.815(1)(a) through (d), including the requirement that no final action may be taken during the closed session. OAG 05-OMD-17.

The Mayor’s telephonic discussions with individual City Council members cannot be properly characterized as “informational,” “educational,” or “advisory.” By voting on the loan guarantee issue at a regular meeting, the City Council exercised its option to take action on that issue, which, perforce, must be characterized as public business. The series of less than quorum private discussions which preceded the vote therefore fell within the zone of conduct prohibited by KRS 61.810(2). OAG 05-OMD-26.

Because publicity “would be likely to affect” the value of the specific piece or pieces of property to be acquired or sold, and there is not sufficient evidence to support the allegation that a vote on the purchase proposal submitted by the Public Health Board was the sole purpose for conducting the closed session, the Fiscal Court properly relied upon KRS 61.810(1)(b). OAG 05-OMD-32.

Discussions concerning the course of action to take with the entire fire department do not qualify under the exception KRS 61.810(1)(f) because they do not constitute discussions which might lead to the appointment, discipline, or dismissal of an individual employee. Instead, such discussions relate to general personnel matters, and KRS 61.810(1)(f) expressly prohibits discussion of general personnel matters in secret. ccordingly, the City violated the Open Meetings Act in going into closed session to discuss the fire department. OAG 05-OMD-82.

By its express terms, KRS 61.810(1)(f) authorizes discussions or hearings “which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student.” Based on the common and approved meaning of the term removal, removal is the functional equivalent of dismissal among those specific topics encompassed by the literal language of KRS 61.810(1)(f). Because the individual qualifies as a “member” of the Student Government Association, whose removal or “dismissal” was being contemplated, the SGA properly relied upon KRS 61.810(1)(f) in holding the closed session. OAG 05-OMD-86.

Because the mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Act, there is no violation when the members lingered after properly adjourning the meeting to engage in small talk and private conversations. OAG 05-OMD-96.

Under a strict construction of the exemption and in light of its underlying policy, KRS 61.810(1)(g) does not authorize closed session discussions relating to the selection of a consultant to provide consulting services to a public agency. OAG 05-OMD-148.

Unless the Personnel Board is deliberating a decision on a particular case involving an individual, within the meaning of KRS 61.810(1)(j), or discussing a matter which is otherwise exempt under one or more of the twelve remaining exceptions, its meetings are required to be open to the public under the provisions of KRS 18A.070(23) and the Open Meetings Act. OAG 05-OMD-159.

The Governor’s Office of Agricultural Policy did not violate the Open Meetings Act by conducting unpublicized roundtable discussions across the state with members of county agricultural development councils and county extension agents to discuss the operations and future of the Agricultural Development Fund. Although the matters discussed during these discussions were clearly of public interest, since a quorum of the members of GOAP or its governing body was not present at any of the discussions, KRS 61.810(1) did not require that the discussions be open to the public. OAG 05-OMD-164.

Although employment status was tangentially related to the subject of the closed session discussion, the primary focus of the discussion was the hiring of a bookkeeping service. The elimination of the employee’s position was the unavoidable consequence that proceeded from the hiring of a bookkeeping service. Inasmuch as there is no exception in the existing Open Meetings Act for discussions relating to the hiring of a bookkeeping service, or, for that matter, the elimination of a current position, the Board’s reliance on KRS 61.810(1)(f) was misplaced. OAG 06-OMD-257.

The Preliminary Inquiry Board violated the Open Meetings Act in relying upon KRS 61.810(1)(f) to conduct the closed session to discuss discipline of a licensee since this exception does not encompass licensees. Additionally, although the Board was operating as a “quasi-judicial” body engaged in deliberations regarding “individual adjudications,” the presence of “the person involved, his representatives,” and/or an individual “not a member of the agency’s governing body or staff” rendered KRS 61.810(1)(j) inapplicable. OAG 06-OMD-262.

Research References and Practice Aids

Northern Kentucky Law Review.

Ziegler, The Kentucky Open Records Act: A Preliminary Analysis, 7 N. Ky. L. Rev. 7 (1980).

Bales and Hamilton, Jr., Workplace Investigations in Kentucky, 27 N. Ky. L. Rev. 201 (2000).

2012 Kentucky Survey Issue: Article: Candid Kentucky: The Commonwealth’s Devotion to an Open Government, 39 N. Ky. L. Rev. 45 (2012).

61.815. Requirements for conducting closed sessions.

  1. Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810 :
    1. Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session;
    2. Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session;
    3. No final action may be taken at a closed session; and
    4. No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
  2. Public agencies and activities of public agencies identified in paragraphs (a), (c), (d), (e), (f), but only so far as (f) relates to students, (g), (h), (i), (j), (k), (l), and (m) of subsection (1) of KRS 61.810 shall be excluded from the requirements of subsection (1) of this section.

History. Enact. Acts 1974, ch. 377, § 3; 1992, ch. 162, § 4, effective July 14, 1992; 2005, ch. 93, § 2, effective March 16, 2005.

NOTES TO DECISIONS

1.Notice.

This section instructs that notice of a closed session must come prior to every such session in the regular open meeting and must supply the general nature of the business to be considered and the reason for the secrecy. Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977).

In order to fully comply with KRS 61.810(2) and subsection (1) of this section notice of the county board of education of the business intended to be discussed in a closed session should contain information that the board of education intends to conduct an executive session for the purpose of discussing the sale or acquisition of real property and that the reason for privacy is due to the fact that publicity at the deliberation stage might be likely to affect the value instead of merely saying that the business to be discussed was “property and negotiations.” Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977).

Notice given in open meeting preparatory to closed session that the closed meeting would be held to discuss “property and negotiations” was not sufficient compliance with the requirement of notice of subsection (1) of this section for the term “property” fails to reveal whether it is real or personal, for purchase or for sale or whether publicity would affect its value. Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977).

Injunction was proper under KRS 61.848 — even without a showing that petitioners had no adequate remedy at law — when a school board violated the Open Meeting Law by discussing a personnel reorganization plan in closed “executive” meetings; the preparation-for-litigation exception would not apply to mere discussion of whether dismissed administrators might sue the board. Also, the board failed to adhere to this section, which requires that, before going into a closed session, a public body must state the exact exception it relies on to go into a closed meeting. Floyd County Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 1997 Ky. LEXIS 145 ( Ky. 1997 ).

2.Action Void.

Where disciplinary action was brought against the chief of police and eight officers, pursuant to KRS 95.450 , at a session closed to the public despite the accuseds’ request for an open hearing pursuant to subsection (6) (now (1)(f)) of KRS 61.810 , and with neither a motion for a closed meeting nor announcement of it at an open meeting, in violation of this section, the action taken must be voided and a new hearing held. Reed v. Richmond, 582 S.W.2d 651, 1979 Ky. App. LEXIS 417 (Ky. Ct. App. 1979).

Trial court properly exercised it authority to void the action of the school board directing legal counsel to pursue litigation because the board did not substantially comply with the Open Meetings Act. Webster County Bd. of Educ. v. Newell, 392 S.W.3d 431, 2013 Ky. App. LEXIS 31 (Ky. Ct. App. 2013).

3.Final Actions.

By conducting its final deliberations in a closed session without substantial compliance with this section, the State Board of Accountancy rendered its action in censuring an accountant voidable under KRS 61.830 (now repealed); however, since the accountant raised no objection and demonstrated no prejudice as a result of the Board’s action, the action was not void. Stinson v. State Bd. of Accountancy, 625 S.W.2d 589, 1981 Ky. App. LEXIS 304 (Ky. Ct. App. 1981).

Where a planning commission explained it was going into closed session, the minutes reflected the discussion concerning litigation, motions to authorize the litigation were made in open meetings, and there was no record of anyone requesting to address the commission or voice concern about the commission’s actions, there was no evidence that the owners were prejudiced by a planning commission’s failure to state a specific provision of KRS 61.810(1)(c), 61.815(1) when it went into closed session. Chandler v. Bullitt County Joint Planning Comm'n, 125 S.W.3d 851, 2002 Ky. App. LEXIS 2358 (Ky. Ct. App. 2002) sub. nom.City of Shepherdsville v. Bullitt County Joint Planning Comm'n, 2004 Ky. LEXIS 29 (Ky. Feb. 11, 2004).

Litigation exception to open public meetings was not applicable to the school board’s decision directing legal counsel to pursue a challenge to the petition to recall the board’s nickel tax because it was a “final action” of the board to authorize litigation. Webster County Bd. of Educ. v. Newell, 392 S.W.3d 431, 2013 Ky. App. LEXIS 31 (Ky. Ct. App. 2013).

4.Action Voidable.

Pursuant to KRS 61.848 , a consulting contract that had been improperly approved following a closed session in a meeting of a county board of education, the attempted ratification of which was an action taken without substantial compliance with KRS 61.815 , was voidable by the circuit court. As such, the contractor could retain amounts already paid for services under the contract but was not entitled to any additional payments. Carter v. Smith, 366 S.W.3d 414, 2012 Ky. LEXIS 66 ( Ky. 2012 ).

Cited:

Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884, 1987 Ky. LEXIS 227 ( Ky. 1987 ).

Opinions of Attorney General.

Meetings of the city board of commissioners dealing with the granting of individual salary increases to city employees must be open to the public since the subject matter of the meeting does not come within an exception of either this section or KRS 61.810 . OAG 75-340 .

In view of this section, closed hearings of a city civil service board under KRS 90.360 or 95.450 require no public notice. OAG 75-354 .

A properly called special meeting may be conducted in closed session if the subject matter to be discussed falls within one of the exceptions to open meetings provided in KRS 61.810 and if the motion for closed session is made and carried by a majority vote in open public session. OAG 75-709 .

Since public agency discussions concerning litigation are expressly exempted from the requirements of the Open Meetings Law under subsection (3) (now (1)(c)) of KRS 61.810 , the prohibition of subsection (3) (now (1)(c)) of this section does not apply to those discussions. OAG 76-643 .

A county school board may go into closed session for the purpose of interviewing candidates it is considering to fill a vacancy on the school board. OAG 77-674 .

Where the purpose of a school board meeting in a discussion or hearing which might lead to the disciplining of a student, the board is not required to give notice in a regular meeting, or to make a motion in open session to conduct a closed session, or to take final action in an open session. OAG 77-674 .

Conditions precedent to conducting a valid closed session are: notice of a closed session given at a regular open meeting, majority vote to hold the closed session, no final action taken at the closed session, and subject matter limited to that announced at the public session. OAG 77-758 .

The minutes of the closed session should be made available to the public as soon as practicable and when the revelation of the minutes will not defeat the purpose for the holding of the closed session. OAG 78-227 .

The procedure for closed sessions does not have to be followed when the subject of the meeting is pending litigation against or on behalf of a public agency and it does not make any difference what the subject of the litigation is. OAG 78-227 .

It is sufficient under subsection (1) of this section for a governing body going into a closed session to state that the reason for the closed session is “litigation.” OAG 80-248 .

The general rule to be followed is that in every case where an agency goes into closed session because of a subject matter exemption, except in the case involving the disciplining of a student, the procedures of this section must be observed. OAG 80-248 .

The legislative intent of this section is that agencies, per se, which are exempt from complying with the Open Meetings Law, such as the Parole Board, juries, the Governor’s cabinet, committees of the general assembly and other agencies exempted by statute or by the Constitution do not have to go through the formalities set forth in this section, and that agencies which are not exempt per se but which go in closed session to deal with an excepted subject matter must observe those formalities. OAG 80-248 .

Where a disciplinary hearing about a particular student in a public school is held, the hearing is exempt from the formalities of going into a closed session under subdivision (6) (now (1)(f)) of KRS 61.810 or the necessity of taking final action in an open session according to the procedure set forth in this section. OAG 81-135 .

The minutes of the State Board of Education must be recorded and open to public inspection pursuant to KRS 61.835 , but they need show only the formal action taken and the votes cast by the members; the minutes of a closed session should show that the statutory formality of this section was observed before going into a closed session and should indicate the general subject of the closed session but they need not show information which would defeat the purpose of holding a closed session on the authorized subject matter. OAG 81-387 .

Where a city commission wishes to hold a closed session to discuss an employee’s performance, all that is required is that the motion to go into closed session should state that the purpose of the closed session will be to discuss a personnel matter involving a particular employee; if any negative action is taken against the employee in the closed session without giving him the option of an open hearing, he will be entitled to an open hearing later if he so desires. OAG 81-413 .

A task force formed by a city commission to study the problems of the city’s community development department could not exclude the press from its meetings without first observing the formalities of this section. OAG 82-56 .

The Open Meetings Law permits the holding of a meeting by telephone conference call by the State Board of Education on the subject of the expulsion of a student of one (1) of the schools of which the State Board has the direct oversight in disciplinary matters and the news media should be notified, at least 24 hours in advance, that the meeting by conference telephone is to be held on disciplinary matters and will be closed to the public; however, this opinion is confined to the following circumstances: (1) the State Board of Education meets regularly only every two months and the membership of the Board may reside anywhere within the boundaries of the commonwealth; (2) by regulation there has been established an appeal procedure utilizing hearing officers to review disciplinary cases where expulsion may be ordered; (3) the hearing officer shall hear proof, oral arguments and/or may request written briefs and shall make findings of fact, conclusions of law and recommendations to the State Board, and the State Board is required to make a final determination of the case within thirty (30) days; (4) before the appeal procedure is begun the student has been provided a due process hearing at the local level; (5) the role of the State Board of Education on expulsion appeals is to review the record made up under the presiding of the hearing officer and to approve or disapprove the hearing officer’s recommendation. OAG 82-179 .

The State Board of Education may meet in closed session to act on a recommendation of a hearing officer on the expulsion of a student without any preliminary action in an open meeting and may take final action on the matter in a closed session. OAG 82-179 .

An agency holding a properly conducted closed session may take a straw vote by secret ballot for the purpose of reaching a general consensus among the members, as the purpose of a closed session is to allow free discussion by the members and there are no statutory restrictions on how the discussion may be conducted. But if final action is finally taken, it must be taken in open session (with certain exceptions) and the vote of each member, or his abstention, must be recorded in the minues. OAG 82-341 .

The Personnel Board may go into closed session at the time of its deliberation on recommended orders submitted by hearing officers and/or board members, or to deliberate after it has received evidence in an open hearing, by following the procedure set forth in this section. The Personnel Board is authorized to conduct such closed sessions for the purpose of deliberation under KRS 61.810(6) (now (1)(f)) which exempts from the open meetings requirement discussion or hearings which might lead to the appointment, discipline or dismissal of an individual employee; however, no final action by vote may be taken on such matter in the closed session. OAG 83-20 .

It was proper for the fiscal court to decide in its closed session not to sell certain property but, in order to be in technical compliance with the Open Meetings Law, it should have taken a vote on the question in an open session after the closed session since the action was “final action.” OAG 83-61 .

Under KRS 61.810 , whenever a quorum of the members of any public agency meet and discuss any public business, the meeting is a public meeting is defined in the Open Meetings Law, KRS 61.805 to 61.850 ; thus, where the entire county board of education called itself a “committee” and added several other people to the “committee” before conducting a private session with representatives of the county education association, the school board was required to comply with the Open Meetings Law. OAG 83-102 .

A newspaper reporter has the same standing as any other citizen and a reporter cannot be barred from a meeting unless all other nonparticipants in the meeting are also barred. OAG 83-102 .

The minutes of a public agency should show that the Open Meetings Law was complied with when a closed session was held. OAG 83-102 .

If an electric and water plant board granted a salary increase to its general manager and a utility right-of-way at a closed meeting, those actions were violative of the Open Meetings Law as they constitute final board action; any final action must be passed in open meeting after the closed session. OAG 83-377 .

Where an electric and water plant board called for a closed session in order to discuss “personnel matters,” it was improper for the board to discuss a utility right-of-way at the closed session. OAG 83-377 .

An electric and water plant board’s stated proposal to discuss “personnel matters” at a closed session was a sufficient notice and reason given under subdivision (1) of this section. OAG 83-377 .

Before going into closed session notice must be given by the board of education in a regular open meeting of the general nature of the business to be discussed in the closed session and a motion must be made and carried by majority vote to go into closed session. It is sufficient if the notice and motion to go into closed session simply states that the purpose of the session is to discuss personnel matters affecting certain individuals; the names of the individuals do not have to be stated in the notice and motion. OAG 83-379 .

Where a cable authority announced at an open meeting that it was going into closed session to discuss possible litigation brought against the authority by a cable service company over the regulation of cable rates, the nature of the closed session was proper and the notice of the session was sufficient; also, the authority properly limited discussion during the closed session to the topic of litigation with the cable company. OAG 84-240 .

Where the agenda for the special meeting listed as the only item a matter pertaining to a change or an addition to contracts, the city’s committee violated the Open Meetings Act when it went into a closed session during that special meeting to discuss matters involving litigation. OAG 94-OMD-78.

A city may properly invoke KRS 61.810(1)(f) to go into a closed or executive session to discuss the possible dismissal of a particular employee. That specific statute does not require that the affected employee be given notice of the discussion or an opportunity to attend that discussion. However, city was required to announce in the open and public portion of its meeting that it was invoking the provisions of KRS 61.810(1)(f) to go into a closed session to discuss the possible termination of a particular municipal employee. OAG 94-OMD-122.

Subdivision (1)(c) of this section specifically states that no final action may be taken in a closed session; thus, city commission, after discussing the matter of the termination of municipal employee in a closed session, was required to go back into an open and public session and at that time make its decision to terminate the employment of municipal employee. OAG 94-OMD-122.

Where the open and public session of a county’s board of education meeting began in the school library, the open and public session should have resumed in the school library following a tour of the school, and the gathering of board members in the home economics classroom, where the closed meeting was to be held later, was in violation of this section, which as applied, would require the board members to have returned to the designated site for the open and public meeting, to have made a motion for a closed session and vote, before adjourning to the site of the closed or executive session of the otherwise public meeting. OAG 95-OMD-92.

When the notice, motion, and vote relative to a closed session of a county’s board of education meeting were given, made and taken at a site which did not constitute the forum for the open and public board meeting, the members of the board of education violated the Open Meetings Act. OAG 95-OMD-92.

Where the stated purpose of a Revenue Commission meeting was to discuss the matter of whether or not a Revenue Commission employee would be retained, this subject matter was a proper subject for a closed session under KRS 61.810(1)(f); however, the closed session had to be limited to whether or not the Revenue Commission employee would be terminated, and matters such as the development or selection of a search procedure to fill the position were not proper subjects for a closed session, regardless of whether or not the Revenue Commission had complied with subdivision (1)(d) of this section, by publicly announcing the matters to be discussed during the closed session. OAG 95-OMD-93.

If the agenda incorporated into the written notice of a special meeting, held by the board of regents of university, listed only one substantive item for discussion, then discussion of any other substantive matter, whether discussed in an open or closed session is a violation of the Open Meetings Act. OAG 95-OMD-149.

While a public agency may meet in a closed session to discuss proposed or pending litigation, including topics such as litigation tactics and strategy, a final decision as to whether to litigate a particular situation cannot be made in closed session. If the Board of Directors of the Kentucky Employers’ Mutual Insurance Authority decided in a closed session to file suit in regard to a specific situation, such decision was made in violation of the Open Meetings Act. OAG 97-OMD-96.

Public agency violated the Open Meetings Act when it invoked the exceptions set forth in KRS 61.810(1)(f) and gave as its reasons the intent to discuss individual personnel matters or specific employee matters. Since the only personnel matters which can be discussed in a closed session pertain to the possible appointment, discipline, or dismissal of personnel of that particular agency, the public agency should have indicated which of those particular authorized exceptions it was utilizing and why the session was being closed (which frequently involves privacy considerations). OAG 97-OMD-110.

A public agency’s authority to go into closed session relative to personnel matters is severely restricted. General personnel matters cannot be discussed in a closed session; the only personnel matters which can be discussed in a closed session by a public agency are those which might lead to the appointment, discipline, or dismissal of personnel of that particular agency. OAG 97-OMD-124.

Mayor and city council violated Open Meetings Act, specifically KRS 61.810(1)(f), when stated reason for going into open session was “discussion of personnel”; since the only personnel matters which can be discussed in a closed session pertain to the possible appointment, discipline, or dismissal of personnel of that particular agency, the public agency should have indicated which of those particular exceptions it was utilizing and why the session was being closed. OAG 97-OMD-124.

An agency complies with the requirements of subsection (1)(a) and KRS 61.810(1)(f) by announcing, in open session, that pursuant to KRS 61.810(1)(f) it is going into closed session to discuss either the appointment, the discipline, or the dismissal of an employee or employees of the agency, indicating which of these particular actions is contemplated; however, the agency is not required to identify, by name, the employee or employees who will be discussed, nor is it restricted to a discussion of one (1) individual employee at a time. OAG 99-OMD-49.

A planning and zoning commission violated the Open Meetings Act when it went into closed session as there was no motion made and carried in open session and the specific exception which authorized the closed session was not stated. OAG 99-OMD-146.

The Open Meetings Act contemplates more than agency recitation of language of the exception authorizing the closed session, but less than a detailed description of the matter to be discussed. OAG 00-OMD-64.

Because it was incumbent on the Floyd County Board of Education to provide more than a single word descriptor, such as “litigation, property, and personnel,” of the reason for, and general nature of the business to be discussed in, its closed session, to the extent that the Board failed to strictly comply with the requirements for conducting a closed session, it violated the Open Meetings Act. OAG 01-OMD-181.

KRS 61.810(1)(g) applies to meetings between a public agency and a representative of a business entity, or a meeting of the agency to discuss a specific proposal, but in either case, only if open discussion could jeopardize the siting, retention, expansion, or upgrading of the business. Since neither of the conditions for invocation of this exemption were met when the Governor’s Council of Economic Advisors retired to executive session to discuss the “potential plans” of the companies they represent based on current economic conditions, the Council’s reliance on KRS 61.810(1)(g) was misplaced, and it violated the Open Meetings Act when it went into closed session at its November 6 meeting. OAG 01-OMD-227.

KRS 61.815(1)(c) specifically states that no final action may be taken in closed session. Thus, the Board, after discussing the matter of termination of the employee in closed session, would have been required to go back into open and public session and, at that time, vote to take final agency action on the question of the termination. OAG 02-OMD-126.

Violations arising under KRS 61.815(1)(d) typically occur when the agency directly or indirectly acknowledges discussion of matters tangential to the matter publicly announced in open session. In this instance, no description of the general nature of the business to be discussed in closed session was given in open session, and thus the ensuing closed session discussion contravened KRS 61.815(1)(d). OAG 03-OMD-47.

The Meade County Solid Waste and Recycling Board’s discussions in closed session of matters not publicly announced prior to convening that closed session constituted a violation of the Open Meetings Act regardless of who initiated them and whether or not strict compliance with the law was administratively inefficient. OAG 03-OMD-170.

Where the Hopkins County Fiscal Court did not identify the general nature of the business to be discussed in its October 2 closed session and made only vague reference to “litigation” as the reason for the closed session, this is not enough. The fiscal court must not only identify the exception but must also describe the business to be discussed in closed session with sufficient specificity to enable the public to assess the propriety of its action. OAG 03-OMD-221.

The City Commission did not violate either KRS 61.823(3) or KRS 61.815(1)(a) in electing to discuss the personnel matter, originally scheduled to be discussed in closed session, in an open session. OAG 04-OMD-199.

The legislative intent on KRS 61.815 (2) is that agencies, per se, which are exempt from complying with the Open Meetings Law, such as the Parole Board, juries, the Governor’s cabinet, committees of the General Assembly and other agencies exempted by statute or by the Constitution do not have to go through the formalities set forth in KRS 61.815 ; and agencies which are not exempt per se but which go in closed session to deal with an excepted subject matter must observe those formalities. The Kentucky Board of Medical Licensure is not exempt, per se, from complying with the Open Meetings Act, and therefore it is required to comply with the requirements for conducting a closed session codified at KRS 61.815(1). OAG 05-OMD-17.

61.820. Schedule of regular meetings to be made available.

  1. All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public. In considering locations for public meetings, the agency shall evaluate space requirements, seating capacity, and acoustics.
  2. All public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.

History. Enact. Acts 1974, ch. 377, § 4; 1992, ch. 162, § 5, effective July 14, 1992; 2013, ch. 124, § 10, effective June 25, 2013.

NOTES TO DECISIONS

1.No Violation Found.

County did not violate the Kentucky Open Meetings Act, specifically KRS 61.820 and KRS 61.840 , in passing a county occupational tax ordinance at a meeting held in the county courthouse during a festival held on the courthouse square, even though the date and location of the meeting might not have been the most convenient time and location to hold the meeting; the fact that a large number of citizens attended the meeting proved that the time and location were not inconvenient, and there was nothing to indicate that persons wishing to attend or participate in the meeting were effectively prevented from doing so. Knox County v. Hammons, 129 S.W.3d 839, 2004 Ky. LEXIS 74 ( Ky. 2004 ).

Opinions of Attorney General.

The county fiscal court is a public agency and any committees which it has created by ordinance or resolution are also public agencies within the meaning of the law and should comply with the Open Meetings Law. OAG 75-508 .

There is no provision in the Open Records Law that an agency must announce the agenda of matters to be discussed in a regular or special meeting. OAG 78-499 .

This section does not require a newspaper to advertise the time and place of regular meetings of a levee board. OAG 82-412 .

The statutes do not prescribe any particular method of publicizing the schedule of regular meetings of a levee board. The board may use such method of publicity as it sees fit including paid announcements in the newspaper or a news item in the local newspaper concerning the meeting. OAG 82-412 .

The city council of a fourth-class city may enact an ordinance providing that regular meetings shall be held at different locations, specifically identified, within the city on stated dates and at specified times. OAG 83-208 .

When the city deviated from its regular meeting schedule and rescheduled that regular meeting, any rescheduled meeting became a special meeting even if it eventually ended up being rescheduled again on the original regular meeting date. The meeting was a special meeting which required the city to follow the requirements of KRS 61.823 including those pertaining to notice and posting. Failure to follow these provisions constituted a violation of the Open Meetings Act. OAG 92-OMD-1473.

While this section provides in part that meetings of public agencies shall be held at specified times and places which are convenient to the public, there is no provision in the Open Meetings Act prohibiting meetings after a certain hour and while a late night council meeting conducted past midnight may be inconvenient to the public in many instances, other than the adjournment of the meeting, where late night activity consisted of a closed session pertaining to two (2) items of litigation involving the city, the city did not violate the Open Meetings Act. OAG 92-OMD-1728.

Fiscal court meetings which normally began at 9:00 a.m. were not at an inconvenient time for the public. OAG 93-OMD-20.

Since council meeting held August 10 was an adjourned meeting and as an adjourned meeting was a continuation of the regular meeting of August 9 as opposed to a special meeting with the various notice and posting requirements, as a meeting pursuant to an adjournment of a regular meeting such meeting was itself a regular meeting and any business which could have been transacted at the regular meeting could have been transacted at the adjourned meeting. OAG 93-OMD-123.

County Fiscal Court violated the Open Meetings Act where the “Notice” of the magistrates did not conform to the provisions of this section, concerning notice of regular meetings, or the provisions of KRS 61.823 , pertaining to notice of special meetings. OAG 94-OMD-50.

Because no agenda is required for a regular meeting under KRS 61.820 , public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings. The description of items to be discussed or acted upon in the non-mandatory agenda for a regular meeting need not be sufficiently specific to insure fair notice to the public. OAG 01-OMD-181.

Unless the work session is a regularly scheduled meeting, within the meaning of KRS 61.820 , it must be treated as a special meeting and is subject to all the notice requirements appertaining thereto. OAG 02-OMD-11.

Neither KRS 164.340, nor the provision in the Board of Regent’s bylaws relating to quarterly meetings in regular session, is sufficient in content to be a schedule of regular meetings. Because the November 2 meeting was not a regular meeting within the meaning of KRS 61.820 , it was a special meeting. OAG 02-OMD-22.

KRS 61.820 requires city commissions, and other local government agencies such as county fiscal courts, to conduct their meetings within the jurisdictional limits of the governmental units they serve. Anything, that tends to inhibit the public’s ability to freely attend local government agency meetings, including distance, is destructive of the rights granted to the public, and the duties imposed on public agencies, by the Open Meetings Act. OAG 02-OMD-78.

The thirty minute delay in convening the February 17 regular meeting of the council was occasioned by the parent-teacher conferences conducted earlier in the evening and an apparent desire to insure that all interested parties could attend the meeting in its entirety; there is no error for a half hour delay in starting time when such a delay could easily result from other unforeseen circumstances such as inclement weather. To hold otherwise would be tantamount to elevating form over substance, resulting in the unnecessary cancellation of properly “noticed” regular meetings. OAG 04-OMD-56.

Although the location at which the City held its August meeting was clearly not the most convenient, the location was also not inconvenient as evidenced by the large turnout. The meeting was announced to the public, and there is nothing on the record to indicate that persons wishing to attend or participate in the proceeding were effectively prevented from doing so. Accordingly, no violation of KRS 61.820 or KRS 61.840 occurred at the meeting. OAG 04-OMD-145.

The City Council did not violate the Open Meetings Act in changing its meeting location of the special meeting due to unforeseen exigency, such as a scheduling conflict, as long as the change could not otherwise be avoided and the Council took the reasonable measures described to notify the public of the change. OAG 05-OMD-11.

City did not violate the Open Meetings Act merely because everyone at a particular board of aldermen meeting could not be admitted into the meeting room where the meeting was held in a facility which normally could accommodate all those desiring to attend and where the city offered to allow the overflow crowd to view the meeting from another room by television. OAG 94-ORD-87.

Although the county judge/executive has the unilateral authority to fix the dates of commencement of the regular terms of the fiscal court, no statute expressly provides the unilateral authority to designate the beginning time of regular meetings of the fiscal court; however, if the fiscal court properly passes a resolution providing, for example, that the regular term meetings of the fiscal court shall begin at 7:30 p.m., there being no statute to the contrary, it would be the duty of the county judge/executive to ensure the execution of such resolution. OAG 95-26 .

The county board of education’s response to party complaining that at meeting some people could not hear, that the meeting site was inadequate and that people were forced to stand in the hallway and outside in the winter cold, violated the Open Meetings Act in that its written answer to the complaining party did not address the specific issues of accessibility to the meeting, noise in the meeting room, persons outside the meeting room in the hallway, and persons outside the building on a winter night; in addition, the response did not cite a section of the Open Meetings Act in support of the public agency’s position and it did not provide a brief explanation of how that particular statutory provision applied to the situation involving the public agency. OAG 97-OMD-28.

Board of education violated the Open Meetings Act because even if the board met in a facility that would accomodate the number of persons normally expected to attend such meetings, where there was an overflow of attendees the board of education should have made a good faith effort to handle the overflow crowd so that persons in the hallway and outside the building could have observed the public proceedings. OAG 97-OMD-28.

When the school board moved the meeting site of the board meeting which began in the school board office from the office to the school library, the latter location became the designated site from which all remaining proceedings and actions relative to the meeting should have been conducted and in the absence of any compelling reason to do so, the school board was not justified in moving the meeting to yet another location as such action is inconvenient to the public. OAG 97-OMD-84.

The failure of a park board to establish a regular schedule of meetings did not constitute a violation of the statute. OAG 99-OMD-166.

The statute does not require that a fiscal court hold its meetings at the county seat or other county government centers and, therefore, a fiscal court may hold a meeting at a state park. OAG 99-OMD-213.

A county fiscal court appeared to have violated either this section or KRS 61.823 in connection with meetings of the jail commission where it did not appear that the commission adopted a schedule of regular meetings and made that schedule available to the public, thus obviating the need for special meeting notice pursuant to KRS 61.823 , or whether the meeting was a special meeting and proper notice was given in full compliance with KRS 61.823. OAG 00-OMD-63.

61.823. Special meetings — Emergency meetings.

  1. Except as provided in subsection (5) of this section, special meetings shall be held in accordance with the provisions of subsections (2), (3), and (4) of this section.
  2. The presiding officer or a majority of the members of the public agency may call a special meeting.
  3. The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
    1. As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed. (4) (a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.
    2. A public agency may satisfy the requirements of paragraph (a) of this subsection by transmitting the written notice by electronic mail to public agency members and media organizations that have filed a written request with the public agency indicating their preference to receive electronic mail notification in lieu of notice by personal delivery, facsimile machine, or mail. The written request shall include the electronic mail address or addresses of the agency member or media organization.
    3. As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.
  4. In the case of an emergency which prevents compliance with subsections (3) and (4) of this section, this subsection shall govern a public agency’s conduct of a special meeting. The special meeting shall be called pursuant to subsection (2) of this section. The public agency shall make a reasonable effort, under emergency circumstances, to notify the members of the agency, media organizations which have filed a written request pursuant to subsection (4)(a) of this section, and the public of the emergency meeting. At the beginning of the emergency meeting, the person chairing the meeting shall briefly describe for the record the emergency circumstances preventing compliance with subsections (3) and (4) of this section. These comments shall appear in the minutes. Discussions and action at the emergency meeting shall be limited to the emergency for which the meeting is called.

History. Enact. Acts 1992, ch. 162, § 6, effective July 14, 1992; 2008, ch. 20, § 1, effective July 15, 2008.

NOTES TO DECISIONS

1.Change of Meeting Date.

Where school board changed monthly meeting date in open meeting, where press release had been issued, where newspaper article appeared, and where citizens appeared at the meeting, there was no positive showing that the board had decided any matters regarding closing the school in closed session. Coppage v. Ohio County Bd. of Educ., 860 S.W.2d 779, 1992 Ky. App. LEXIS 182 (Ky. Ct. App. 1992).

2.Notice.

A newspaper was entitled, upon request, to receive notice of special commission meetings called by a city which was located within the 12-county region in which the newspaper was distributed; the newspaper was ruled a local newspaper with general circulation because of its limited distribution region and because it gathered and reported economic, educational, sports, human interest, government and court news at the local level. E.W. Scripps Co. v. Maysville, 790 S.W.2d 450, 1990 Ky. App. LEXIS 71 (Ky. Ct. App. 1990) (decided under prior law).

To be entitled to notice of special meetings, a newspaper must show that it serves a limited geographical area and that its coverage of news in a particular city or county is regular and intensive. E.W. Scripps Co. v. Maysville, 790 S.W.2d 450, 1990 Ky. App. LEXIS 71 (Ky. Ct. App. 1990) (decided under prior law).

3.Order of Censure.

By conducting its final deliberations in a closed session without substantial compliance with KRS 61.815 , the State Board of Accountancy rendered its action in censuring an accountant voidable under former law making action of public agency void for noncompliance with the requirements of these statutes; however, since the accountant raised no objection and demonstrated no prejudice as a result of the Board’s action, the action was not void. Stinson v. State Bd. of Accountancy, 625 S.W.2d 589, 1981 Ky. App. LEXIS 304 (Ky. Ct. App. 1981) (decided under prior law).

Opinions of Attorney General.

When the city deviated from its regular meeting schedule and rescheduled that regular meeting, any rescheduled meeting became a special meeting even if it eventually ended up being rescheduled again on the original regular meeting date. The meeting was a special meeting which required the city to follow the requirements of this section including those pertaining to notice and posting. Failure to follow these provisions constituted a violation of the Open Meetings Act. OAG 92-OMD-1473.

Since council meeting held August 10 was an adjourned meeting and as an adjourned meeting was a continuation of the regular meeting of August 9 as opposed to a special meeting with the various notice and posting requirements, as a meeting pursuant to an adjournment of a regular meeting such meeting was itself a regular meeting and any business which could have been transacted at the regular meeting could have been transacted at the adjourned meeting. OAG 93-OMD-123.

County Fiscal Court violated the Open Meetings Act where the “Notice” of the magistrates did not conform to the provisions of KRS 61.820 , concerning notice of regular meetings, or the provisions of this section, pertaining to notice of special meetings. OAG 94-OMD-50.

Where the agenda for the special meeting listed as the only item a matter pertaining to a change or an addition to contracts, the city’s committee violated the Open Meetings Act when it went into a closed session during that special meeting to discuss matters involving litigation. OAG 94-OMD-78.

If the agenda incorporated into the written notice of a special meeting, held by the board of regents of university, listed only one substantive item for discussion, then discussion of any other substantive matter, whether discussed in an open or closed session is a violation of the Open Meetings Act. OAG 95-OMD-149.

While the school board violated the Open Meetings Act by its failure to file a written response to the complaint within the statutorily mandated time frame, its decision to not renew the superintendent’s contract was not a violation of the Open Meetings Act as that action was within the agenda of activities set forth in the notice for that special meeting which stated that “The purpose of the meeting will be to discuss renewal/or action of the superintendent’s contract.” OAG 97-OMD-43.

Where city clerks have certified or, in the case of the May 9, 1996 meeting, would certify that notices of the special meetings were timely faxed to the newspaper of record and there was no evidence that the newspaper was not timely notified of the special meetings, the city has complied with the requirements of subdivision (4)(a) of this section as the record indicates that notices of special meetings were timely faxed to the newspaper which had filed a written request with the city to be notified of special meetings. OAG 97-OMD-49.

Where city’s fax machine did not provide printed proof of times and dates faxes containing notices or special meetings were sent to newspapers, city did not violate the provisions of the Open Records Act when it failed to furnish copies of documents which it did not have or which did not exist. OAG 97-OMD-49.

County Board of Education and Superintendent of County Schools violated the Open Meetings Act, specifically subsection (4)(a) of this section, by their failure to notify in writing all board members of the special meetings of the school board at least twenty-four (24) hours prior to the commencement of those meetings even though the Board and the Superintendent had complied with the requirements of KRS 160.270(1). OAG 97-OMD-90.

The failure of a city park board to fail to give notice and record minutes constituted violations of KRS 61.823 and 61.835 , respectively. OAG 99-OMD-166.

Notices of meetings were insufficient where they did not contain an agenda of the items to be discussed at the meetings, in addition to the date, time, and place of the meetings, and where there was no evidence that the notices were posted in a conspicuous place in the building where the meetings took place or in a conspicuous place in the building which housed the headquarters of the agency. OAG 99-OMD-184.

The statute does not require the term “public” to appear in a notice of a meeting. OAG 99-OMD-184.

There was no violation of the statute where a local facility planning committee provided correct information to a newspaper regarding the date, time, and place of a meeting, but the newspaper printed incorrect information; further, the agenda advertised for the meeting was adequate. OAG 99-OMD-203.

Newspaper articles about the timeline and meeting agendas of a committee do not serve as a substitute for strict compliance with the statute, since the notice must still contain the date, time, and place of the special meeting and the agenda; however, publication of the timeline for the committee’s meetings and their agendas in the local newspaper and a posting of the same in the building where the special meetings took place and in the building which housed its headquarters constituted a substantial compliance with the notification requirements, and any noncompliance was mitigated by the committee’s efforts to furnish additional information to the media and the public. OAG 99-OMD-203.

Notice of special meetings of a county fiscal court was deficient where the notice only stated the date, time, and place of an initial meeting, but did not state the date, time, or place of subsequent work sessions/meetings or the topic to be discussed at those meetings. OAG 99-OMD-213.

A county fiscal court appeared to have violated either KRS 61.820 or this section in connection with meetings of the jail commission where it did not appear that the commission adopted a schedule of regular meetings and made that schedule available to the public, thus obviating the need for special meeting notice pursuant to this section, or whether the meeting was a special meeting and proper notice was given in full compliance with this section. OAG 00-OMD-63.

A streetscape committee did not fully comply with the statute in notifying the public of a meeting where the record was devoid of evidence that the committee complied with subsection (4)(b) by posting notice of the meeting in a conspicuous place in the building where the special meeting was held and in the building which houses the headquarters of the committee at least fourteen (14) hours before the meeting. OAG 00-OMD-65.

A community college board of directors erred in characterizing a meeting as an emergency meeting and in failing to identify the subject to be discussed in the notice of that meeting; however, because the board complied with the requirements for conducting a special meeting, with the exception of identifying the matter to be discussed, and because the record was devoid of evidence that the complainant newspaper submitted a request for written notification of special meetings of the board, the only violation of the Open Meetings Act consisted of the deficiency in the content of the notice otherwise delivered and posted in a timely manner. OAG 00-OMD-80.

A telecommunications board violated the statute with regard to a series of special meetings that preceded a special meeting of the board of directors at which an executive director was appointed where proper written notice was not delivered or posted as required by the statute. OAG 00-OMD-96.

A city commission complied in all particulars with the requirements of the statute prior to, and in the course of, a special meeting where a majority of the commission members called the meeting, written notice was prepared consisting of the date, time, and place of the special meeting and the agenda, written notice was faxed to the media in excess of twenty-four (24) hours before the meeting, the notice was posted on the public bulletin board at city hall on the same morning, and the mayor did not dispute that a copy of the notice was placed on her desk twenty-four (24) hours before the meeting. OAG 00-OMD-142.

The record contained insufficient evidence to support the contention that the a county board of education rescheduled a regular 4:00 p.m. meeting when it issued an agenda which mistakenly stated that the meeting would begin at 6:00 p.m., thus triggering the posting and notice requirements of the statute. OAG 99-OMD-153.

A city commission did not violate the statute as the items discussed, and acted upon at a special meeting were limited to items listed on the agenda, with one (1) exception not complained of. OAG 00-OMD-154.

The Kentucky Access Subcommittee of the Department of Insurance’s Health Insurance Advisory Committee violated the Open Meetings Act by failing to comply with the statute prior to a special meeting; the record was devoid of proof that the subcommittee delivered the required written notice of the meeting or that the subcommittee posted written notice, at least twenty-four (24) hours before the special meeting, in a conspicuous place in the building where the meeting took place, and in the building that housed its headquarters. OAG 00-OMD-227.

The Cumberland High School Site Based Council violated the Open Meetings Act by failing to comply with the notice requirements set forth in KRS 61.823 prior to its June 2, June 18, and June 25, 2001, special meetings by failing to include an agenda in the written notices of special meetings directed to the media organizations which had requested notification. OAG 01-OMD-135.

The Nominating Committee’s failure to strictly comply with the notice requirements codified at KRS 61.823 constituted a violation. While there is nothing wrong with the Board of Commission’s public announcement of the upcoming Nominating Committee meeting at its January and February regular meetings, inclusion of the meeting on the Hospital’s March 2001 calendar of events, and reference to the meeting date in correspondence directed to various officials, these steps should have been taken in addition to, rather than in lieu of, the requirements found at KRS 61.823 (2), (3), and (4). OAG 01-OMD-141.

The discussion that occurred at the close of the June 19 special meeting of the Child Support Guidelines Review Commission exceeded the scope of any of the items listed on the agenda for that meeting, and was therefore improper. KRS 61.823(3) does not contain an exception for educational discussions, or discussion of items previously discussed. The fact that no formal action was taken as a consequence of the discussion does not alter that conclusion. OAG 01-OMD-154.

KRS 61.823(3) does not prohibit revision of regular meeting agendas, since no agenda is required for a regular meeting, and discussions at regular meetings are not restricted to items listed on the agenda. Nor can the statute be read so narrowly as to prohibit a public agency from revising the order of the agenda items to be discussed at a special meeting. KRS 61.823(3) does not place such severe restrictions on agency action, and revision of the order of agenda items is permissible. OAG 01-OMD-154.

While notice that was calculated to be delivered closer in time to the date of the meeting, but not less than twenty-four (24) hours before it, might have been preferred, the June 26 notice of the July 24 meeting was not deficient. OAG 01-OMD-154.

The Paintsville City Council violated the Open Meetings Act at its September 18, 2001, special meeting by including agenda items on its notice of special meeting that included “discussion of old business,” “discussion of new business,” “open to floor,” and “open to counsel.” The express purpose of the Open Meetings Act to maximize notice of public meetings and actions mandate special meetings agendas that give fair notice of the particular topics to be discussed or acted upon. OAG 01-OMD-175.

There was not a sufficient basis for declaring that an emergency existed; the perceived necessity of enacting an ordinance to facilitate a new negotiating posture, under these circumstances, cannot be equated to “a serious, unexpected situation or occurrence that demands immediate action,” especially in view of the fact that the proposed ordinance had apparently been under consideration for several months; organized opposition cannot generally be equated to “civil unrest” unless it is accompanied by acts of lawlessness that necessitate an immediate official response; finally, discussions pertaining to the renewal of an option to purchase real property and the payment of bills, as well as a consultant’s report and litigation concerning a separate and unrelated ordinance, were tangential to the alleged emergency for which the meeting was called. OAG 02-OMD-91.

The language of the statute directing agency action is exact. It requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least 24 hours before the meeting is to occur. The statute makes no distinction between the written notice delivered to agency members and the media and the written notice posted in the named locations. Failure to include an agenda in the posted notice clearly constitutes less than strict compliance with the law. OAG 02-OMD-121.

Because there was not a quorum present at the April 1 meeting, the decision to adjourn and reconvene had not legal efect. The rescheduled April 15 meeting was not a recessed meeting, an adjourned meeting, or a continued meeting. Instead, it was a special meeting subject to the notice and agenda requirements codified at KRS 61.823 . OAG 02-OMD-127.

Since the circumstances prevented the council from conducting its meeting per its regular meeting schedule, and because it rescheduled the regular meeting to a later date, the council was obligated to treat the meeting as a special meeting. Further, because discussions and action at a special meeting must be limited to items listed on the agenda in the notice that it is obligated to provide pursuant to KRS 61.823(3), the council’s refusal to permit comments and questions from the members of the public attending the September 4, special meeting cannot be said to have violated the Open Meetings Act inasmuch as the Act itself does not endow the public with the right to participate by comment. OAG 02-OMD-181.

If the December 6 meeting was a regular meeting and a motion was made to recess or adjourn the meeting to December 13, and a quorum of the Board voted to do so, then the December 13 meeting would constitute an “adjourned meeting.” An “adjourned meeting” should be treated as a special meeting so far as giving notice to the media is concerned. OAG 03-OMD-21.

The work session of the School Site Based Decision Making Council was a special meeting for purposes of open meetings analysis, and the apparent omission of an agenda for the meeting and the location of the meeting violated KRS 61.823(3). OAG 03-OMD-192.

The SBDM satisfied the requirement of sufficient specificity when it employed the phrase “Student Dress Code” to describe the topic to be discussed. OAG 03-OMD-192.

The Danville Board of Ethics violated KRS 61.823(3) and (4)(a) by failing to personally deliver, fax, or mail the members of the Board written notice of the June 23 meeting. Such notice as was communicated by telephone or email did not satisfy the strict legal requirements codified in that statute, and should have been utilized in addition to, rather than in lieu of, the statutorily required methods of communication. OAG 03-OMD-197.

The Kentucky General Assembly has not particularized a place on which notice of special meetings must be posted, and, absent proof of an attempt to conceal such notices, discretion rests with the public agency to determine what constitutes a conspicuous place. A bulletin board that is accessible to the public is “conspicuous,” notwithstanding the fact that more conspicuous places may be available or the fact that it may not be conspicuous to the public for the full twenty-four (24) hours preceding the special meeting. OAG 03-OMD-250.

Because the Open Meetings Act does not recognize the validity of oral notification, delivered in person or by telephone, the Council violated KRS 61.823(3) and KRS 61.823(4)(a), requiring written notice of special meetings to be delivered personally, by fax, or by mail. Oral notice may be utilized in addition to, but not in lieu of, the statutorily required methods of communication. OAG 04-OMD-184.

Since written notice was posted only eight hours before the scheduled meeting time, the belated posting did not constitute strict, or even substantial, compliance with the explicit requirements of the Open Meetings Act. Also, the availability of the written agenda for the special meeting on the posted meeting notice did not satisfy the requirement that the Council provide written notice, including the date, time, and place of the meeting, and the agenda for the special meeting to the Council members at least twenty-four hours before the meeting. OAG 04-OMD-184.

The fact that the City has no regular office open to the public during regular business hours and holds its regular meetings in another building may complicate compliance with the Open Meetings Act. However, a proper posting of the notice of the special meeting would have required that it be posted at the home of the city clerk, where its records are kept, and in the room in the house where the special meeting was to be held. OAG 04-OMD-194.

The City Commission did not violate either KRS 61.823(3) or KRS 61.815(1)(a) in electing to discuss the personnel matter, originally scheduled to be discussed in closed session, in an open session. OAG 04-OMD-199.

Since the Advisory Team has not established a schedule of regular meetings as required of all public agencies, and committees and subcommittees thereof, by KRS 61.820 , the March 14 meeting was therefore a special meeting for which KRS 61.823 notice was required. OAG 05-OMD-114.

The City Council violated the Open Meetings Act in failing to include the date with the time, place, and agenda in the notice of the special meetings posted on the front door of City Hall, and discussing matters outside the scope of the item listed on the agenda in the posted notice. OAG 05-OMD-138.

The meeting of the County Fiscal Court on June 29, 2006, was an emergency meeting, notwithstanding the fact that the emergency resulted from its own failure to enact a budget ordinance before the expiration of the fiscal year. Whatever the circumstances that accounted for the delay, the Fiscal Court presented adequate proof of an imminent emergency that would result from its failure to enact a budget ordinance, specifically, the cessation of all vital services to the citizens of the County. OAG 06-OMD-156.

61.825. Requirements for holding special meetings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 377, § 5) was repealed by Acts 1992, ch. 162, § 9, effective July 14, 1992. For present law see KRS 61.823 .

61.826. Video teleconferencing of meetings.

  1. A public agency may conduct any meeting through video teleconference.
  2. Notice of a video teleconference shall comply with the requirements of KRS 61.820 or 61.823 as appropriate. In addition, the notice of a video teleconference shall:
    1. Clearly state that the meeting will be a video teleconference; and
    2. Precisely identify a primary location of the video teleconference where all members can be seen and heard and the public may attend in accordance with KRS 61.840 .
  3. The same procedures with regard to participation, distribution of materials, and other matters shall apply in all video teleconference locations.
  4. Any interruption in the video or audio broadcast of a video teleconference at any location shall result in the suspension of the video teleconference until the broadcast is restored.

HISTORY: Enact. Acts 1994, ch. 245, § 2, effective July 15, 1994; 2018 ch. 200, § 2, effective April 26, 2018.

61.830. Action voidable for noncompliance. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 377, § 6) was repealed by Acts 1992, ch. 162, § 9, effective July 14, 1992. For present law see KRS 61.823 .

61.835. Minutes to be recorded — Open to public.

The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.

History. Enact. Acts 1974, ch. 377, § 7.

NOTES TO DECISIONS

1.Compliance.

Adoption of a dress code by a middle school did not violate the Kentucky Open Meetings Act, KRS 61.805 et seq.; the council minutes stated that a second reading of the dress code was conducted and the minutes recorded the action taken, which was all that was required under KRS 61.835 . Further, adoption of the dress code by “consensus” was an “action taken” within the meaning of KRS 61.805 (3). Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 2005 FED App. 0058P, 2005 U.S. App. LEXIS 1969 (6th Cir. Ky. 2005 ).

Opinions of Attorney General.

A public agency which has a board and board meetings speaks through its minutes as to actions taken and the minutes of the public agency should be made available to the public as soon as they are finally approved by the board and such approval should be no later than the next meeting of the board. OAG 80-421 .

The minimum statutory requirement for minutes are a record of formal motions made in a meeting and the vote of the members on the motion; anything more than such a record is a matter of parliamentary procedure and the discretion of the public body. OAG 81-387 .

The minutes of the State Board of Education must be recorded and open to public inspection pursuant to this section, but they need show only the formal action taken and the votes cast by the members; the minutes of a closed session should show that the statutory formality of KRS 61.815 was observed before going into a closed session and should indicate the general subject of the closed session but they need not show information which would defeat the purpose of holding a closed session on the authorized subject matter. OAG 81-387 .

An agency holding a properly conducted closed session may take a straw vote by secret ballot for the purpose of reaching a general consensus among the members, as the purpose of a closed session is to allow free discussion by the members and there are no statutory restrictions on how the discussion may be conducted. But if final action is finally taken, it must be taken in open session (with certain exceptions) and the vote of each member, or his abstention, must be recorded in the minutes. OAG 82-341 .

When final action is taken by a public agency in open session the vote cannot be by secret ballot and it must be recorded in the minutes how each member voted. OAG 82-341 .

This section does not require that the levee board commissioner who made a motion, the commissioner who seconded the motion and the names of each commissioner voting for and against the motion be specified. It is required, however, that the minutes show how each member voted or if he abstained; if the vote was unanimous it is sufficient to so state in the minutes. OAG 82-412 .

Both the Open Meetings Statute, KRS 61.805 to 61.850 , and the Open Records Statute, KRS 61.870 to 61.884 , mandate public access to the minutes of a public body. Since the Open Meetings Statute allows closed or executive sessions on the discussion of five (5) subjects listed in KRS 61.810 , the minutes of an agency may omit matters decided in such discussions; otherwise, no final action is to be taken in a closed session and action taken in an open session after a closed session should be recorded in the minutes and made available to the public. OAG 83-139 .

The names, positions, and addresses of all the persons who were on the disciplinary board which found for student’s suspension were open to student’s inspection under this section; however, the selection and appointment documents were exempt as “preliminary recommendations” under KRS 61.878 . OAG 83-332 .

This section provides that a city is required to accurately record the minutes of all of its meetings and make such records available for public inspection; if a city does not do this, then it has violated the provisions of this section and the Open Records Act since the council minutes are public records under subsection (2) of KRS 61.870 . OAG 86-20 .

Minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection or even recorded to the extent that so doing would defeat the purpose of conducting the closed session. OAG 87-16 .

Tape recordings of board of education meetings were public records within the meaning of KRS 61.870(2), although inspection thereof could be denied on the ground that the recordings were preliminary drafts regarding preparation of the official minutes, as inspection of preliminary drafts may be denied pursuant to KRS 61.878(1)(g). OAG 89-93 .

The Judicial Retirement and Removal Commission is a quasi-judicial body expressly exempted from the provisions of the Open Meetings Act and is not bound by this section, which requires disclosure of the minutes of meetings held by public agencies. OAG 91-45 .

The Judicial Retirement and Removal Commission was not required to disclose the minutes of a meeting because it is clearly not a “public agency” within the meaning of KRS 61.805(2), and was therefore not bound by this section. OAG 91-45 .

The Board of Adjustments, a public body, cannot vote by secret ballot and the minutes of the meetings must indicate how each member voted on each issue before the Board. OAG 91-196 .

The Madison County Fiscal Court, through its subcommittee, violated both the Open Meetings and Open Records Act by failing to record its minutes and make them available to the public. OAG 92-32 .

After a request for certain public records under the Open Records Act, the custodian of such records need only advise the requester that his or her request will be honored and either append the records or notify the requester that they are available for immediate inspection per subdivision (3)(a) or (b) of KRS 61.872 ; failure of the custodian to state that the requested records exist or that the records provided are those requested does not constitute a violation of the statute. OAG 94-ORD-15.

The Open Records Act does not require the custodian of records to state that meeting minutes which were released to the requester per his request were created under the mandate of this section. OAG 94-ORD-15.

A public agency would not be violating the Open Meetings Act if it failed to keep minutes concerning a properly conducted and legally authorized closed session to the extent that doing so would defeat the purpose of conducting the closed session and no final action was taken at that closed session. OAG 94-OMD-110.

A copy of minutes from an improperly closed meeting should be made available for public inspection pursuant to this section. OAG 95-OMD-57.

The President’s Cabinet and the President’s Leadership Team, established, created, and controlled by the university president, do not fall within the meaning of “public agencies” as defined in KRS 61.805(2); consequently, these groups do not have to record minutes of their meetings or meet other requirements of the Open Meetings Act. OAG 95-OMD-71.

The failure of a city park board to fail to give notice and record minutes constituted violations of KRS 61.823 and this section, respectively. OAG 99-OMD-166.

The statute does not require that records reflecting final action taken be appended to the minutes. OAG 99-OMD-183.

A telecommunications board violated the statute with regard to a series of special meetings that preceded a special meeting of the board of directors at which an executive director was appointed where minutes of the meetings were not recorded. OAG 00-OMD-96.

Notwithstanding the fact that the ballots used by the members of the Nominating Committee would have been made available for inspection, upon request, at the Committee’s March 14 meeting, the method used for conducting the vote for the Board of Commissioners candidates can only be described as a secret ballot. To the extent that the public was unable to ascertain how each member of the Committee voted on each candidate, either by observing the vote, or by reviewing the minutes of the meeting reflecting the vote, the Nominating Committee failed to comply with the requirements of KRS 61.835 . OAG 01-OMD-141.

The City Council did not violate the Open Meetings Act in refusing to amend its minutes to reflect the discussion relating to the city police car which occurred at its November 4 regular meeting. Although it is within the discretion of any public agency, including the Council, to record discussions occurring in the course of its meetings, it is not required to do so; the minutes of a public meeting need show only the formal actions taken and the votes cast by the members. OAG 03-OMD-06.

The Board did not violate the Open Records Act in failing to provide a copy of the minutes of its regular December 6th meeting and the December 13th recessed or adjourned meeting on the basis that they had not been approved and adopted as the official minutes of the Board, since the approval would not occur until the next regularly scheduled meeting in March. OAG 03-ORD-33.

Because KRS 61.835 requires public agency’s to maintain “an accurate record of votes and actions taken” at every meeting, the agency may not direct the modification of the draft minutes to show something other than what had actually occurred at the previous meeting. Since the modifications to the minutes approved by the City Commission change the minutes to show something other than what actually occurred at the previous meeting, those modifications violate KRS 61.835 . OAG 04-OMD-179.

With reference to ad-hoc committees whose functions are entirely advisory, the minutes must be maintained even if those minutes only reflect that the meeting was convened, the minutes of the last meeting approved, and the meeting was adjourned. OAG 04-OMD-182.

If at the meeting in question nothing was decided or acted upon or voted upon the minutes could, under KRS 61.835 , consist of nothing more than a record of the actions which opened and adjourned the meeting. This material would be subject to public inspection. While some agencies may by their own regulations require more thorough minutes, the Open Meetings Act requires only what is set forth in KRS 61.835 relative to the minutes. OAG 04-OMD-182.

Because the corporation does not fall within the parameters of KRS 61.805(2)(a) through (h), defining the term “public agency” for purposes of open meetings analysis, the corporation was not governed by the Open Meetings Act, Thus, the corporation has no obligation under the Open Meetings Act to create, or otherwise afford the public access to, minutes of its meetings, and the corporation properly denied the open records request for its minutes. OAG 04-ORD-12.

An industrial development corporation erred in redacting portions of the minutes from regular public meetings provided to requester regardless of whether the material would otherwise be removed from application of the Open Records Act pursuant to one or more of the exemptions in KRS 61.878(1) or could have properly been discussed during a closed session. OAG 05-ORD-209.

Because inclusion of “clarification” in the minutes of the County Fiscal Court’s meeting did not result in inaccuracies in the records of votes and actions taken at the meeting, within the meaning of KRS 61.835 , no violation of the Open Meetings Act can be imputed to the Fiscal Court. Nevertheless, such practice compromises the value of minutes as record evidence, undermining the public’s faith in the verity thereof, and should be avoided. OAG 06-OMD-103.

61.840. Conditions for attendance.

No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.

History. Enact. Acts 1974, ch. 377, § 8; 2013, ch. 124, § 11, effective June 25, 2013.

NOTES TO DECISIONS

1.No Violation Found.

County did not violate the Kentucky Open Meetings Act, specifically KRS 61.820 and KRS 61.840 , in passing a county occupational tax ordinance at a meeting held in the county courthouse during a festival held on the courthouse square, even though the date and location of the meeting might not have been the most convenient time and location to hold the meeting; the fact that a large number of citizens attended the meeting proved that the time and location were not inconvenient, and there was nothing to indicate that persons wishing to attend or participate in the meeting were effectively prevented from doing so. Knox County v. Hammons, 129 S.W.3d 839, 2004 Ky. LEXIS 74 ( Ky. 2004 ).

Opinions of Attorney General.

The requirement that the fiscal court make only those provisions necessary to keep order at its meetings applies to the attendance of the public and does not affect the court’s ability to establish rules regulating the handling of county’s business and the presentation of new business. OAG 76-128 .

A public body may prohibit news photographs during a public meeting only where such prohibition is required to maintain order. OAG 77-755 .

The Open Meetings Law applies to fiscal courts under the definition of “public agency” as set out in KRS 61.805 . OAG 77-755 .

Since a coroner’s inquest is a criminal investigatory proceeding and in nature a quasi-judicial proceeding, the Open Meetings Law and the provisions for the attendance and operation of the news media have no application. OAG 78-28 .

If a woman, who attended a fiscal court meeting and took photographs, was from one of the news media, the fiscal court was required to permit her to take photographs of the fiscal court; however, where there was nothing in connection with the attire or equipment of the woman that suggested her connection with the news media, she should have identified herself as representing one of the news media in order to take advantage of her right to engage in news media coverage, including taking photographs. OAG 80-156 .

Where the fiscal court can visually note the connection of an observer with the news media by way of some obviously identifying insignia, or other device, or equipment, identification on the part of the news media representative is not necessary for the representative to assert his or her right to engage in coverage of the meeting, and the representative may photograph the proceedings even though they tend to be somewhat disruptive of the meeting. OAG 80-156 .

If the room in the post office where a levee board meeting was held was large enough to accommodate the members of the public who wanted to attend and was accessible to the public, it was a suitable meeting place. OAG 82-412 .

Under this section, the Personnel Board is not required to permit television coverage when it is hearing an appeal under KRS 18A.095 as a quasi-judicial body, but may do so if it adopts administrative regulations so permitting and stating restrictions and procedures for such coverage, pursuant to KRS 13A.100 . OAG 84-371 .

This section is compatible with Supreme Court holdings on the First Amendment. OAG 85-74 .

Under this section, the fiscal court must permit news media coverage, including recording and broadcasting, use of television and other cameras and tape recording, subject only to the condition that order must be maintained. OAG 85-74 .

Persons not connected with the media must have permission of the fiscal court in order to photograph or tape court proceedings. OAG 85-74 .

With limited exceptions as provided for open meetings of public agencies, a local school board may prohibit nonstudents from entering upon school property, irrespective of the nature of activities which at the time are being conducted upon the property. OAG 90-11 .

As a general rule a public meeting of a public body is either open to everyone under the Open Meetings Act or it is closed to everyone under a statutorily recognized exception to the Open Meetings Act; there is no principle of selective admission set forth in the Act. OAG 92-146 .

A regulation, rule, or policy of a public body which uniformly prohibits the tape recording of a public meeting is arbitrary, capricious, restrictive, and unreasonable, and a person should be permitted to tape record a public meeting so long as that person and his or her taping equipment do not interfere with the orderly conduct of the public meeting. To the extent that OAG 85-74 conflicts with the decision and principles set forth in this decision, the earlier opinion is modified. OAG 96-ORD-143.

The county board of education’s response to party complaining that at meeting some people could not hear, that the meeting site was inadequate and that people were forced to stand in the hallway and stand outside in the winter cold, violated the Open Meetings Act in that its written answer to the complaining party did not address the specific issues of accessibility to the meeting, noise in the meeting room, persons outside the meeting room in the hallway, and persons outside the building on a winter night; in addition, the response did not cite a section of the Open Meetings Act in support of the public agency’s position and it did not provide a brief explanation of how that particular statutory provision applied to the situation involving the public agency. OAG 97-OMD-28.

Board of education violated the Open Meetings Act because even if the board met in a facility that would accomodate the number of persons normally expected to attend such meetings, where there was an overflow of attendees, the board of education should have made a good faith effort to handle the overflow crowd so that persons in the hallway and outside the building could have observed the public proceedings. OAG 97-OMD-28.

When the school board moved the meeting site of the board meeting which began in the school board office from the office to the school library, the latter location became the designated site from which all remaining proceedings and actions relative to the meeting should have been conducted and in the absence of any compelling reason to do so, the school board was not justified in moving the meeting to yet another location as such action is inconvenient to the public. OAG 97-OMD-84.

A city’s practice of asking its residents to identify themselves in order to receive preferential seating at a city council meeting impermissibly places a condition upon attendance other than that required for maintenance of order; moreover, a person’s place of residence is, in itself a personal identifier, and the city’s practice contravenes this section by impermissibly requiring attendees to provide identifying information. OAG 98-OMD-44.

A county school system violated the Open Meetings Act when it reconvened a meeting in a high school library after a break from the public hearing held in the high school auditorium. OAG 99-OMD-117.

A county schools local facility planning committee violated the Open Meetings Act when it denied requests that committee members use microphones so that persons attending its meetings could hear the committee’s discussion. OAG 99-OMD-196.

A county fiscal court violated the statute where it placed a sign-in sheet at the entrance to the fiscal court’s meeting room, accompanied by a posted notice advising attendees to sign in before entering, and security men enforced the requirement, notwithstanding that the court asserted that no one was denied admittance for refusing to sign in and that the sheets were placed at the entrance for the purpose of determining how many people were present, where they lived, and their sentiments. OAG 00-OMD-63.

The Kentucky Board of Emergency Medical Services did not violate KRS 61.840 by conducting its January 4, 2001, meeting in the Public Health Auditorium of the Human Resources Building, a secure state facility at which visitor registration is required; the Board did not instruct the security officers attached to the Human Resources Building to require identification as a condition of attendance at the meeting. OAG 01-OMD-23.

A regulation, rule, or policy of a public body which uniformly prohibits the tape recording of a public meeting is arbitrary, capricious, restrictive, and unreasonable, and a person should be permitted to tape record a public meeting so long as that person and his or her taping equipment do not interfere with the orderly conduct of the public meeting. OAG 01-OMD-166.

The School Board effectively denied the request to record the May 26 meeting while it “studies all issues surrounding the issue of televising and videotaping its meetings.” The Open Meetings Act invests all members of the public with the right to tape that meeting and future meetings unless his, or their, individual conduct poses a threat to the maintenance of order; there is no legal basis for the Board’s proposal to adopt “procedures to ensure that the recording of its meetings will be done in a manner so as not to significantly interfere with the conduct of” its business. Instead, the Board must permit the media and the public to record its meetings, and may impose restrictions or prohibitions only where individual circumstances warrant. OAG 04-OMD-102.

Although the location at which the City held its August meeting was clearly not the most convenient, the location was also not inconvenient as evidenced by the large turnout. The meeting was announced to the public, and there is nothing on the record to indicate that persons wishing to attend or participate in the proceeding were effectively prevented from doing so. Accordingly, no violation of KRS 61.820 or KRS 61.840 occurred at the meeting. OAG 04-OMD-145.

The Fiscal Court’s guidelines for the meeting, published in the local paper, clearly evidenced the agency’s intention that there would be a sign-up sheet at the door for all individuals attending the meeting and people would be required to give their name and address, a violation of KRS 61.840 and the Open Meetings Act. However, the Fiscal Court’s violation was mitigated by the fact that compliance with such a guideline was neither required nor made a condition for attendance at the meeting. OAG 04-OMD-227.

Since it appears that the City Council does not condition attendance on signing the sign-in sheet that is passed around during the meetings, and because the Open Meetings Act does not prohibit inclusion of the names of attendees in the minutes of its meetings, and because attendees can “opt out” of inclusion in the minutes by refusing to identify themselves, the City Council’s conduct does not constitute a violation of the Act. OAG 05-OMD-200.

61.845. Enforcement. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 377, § 9) was repealed by Acts 1992, ch. 162, § 9, effective July 14, 1992. For present law see KRS 61.846 .

61.846. Enforcement by administrative procedure — Appeal.

  1. If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850 . The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. An agency’s response denying, in whole or in part, the complaint’s requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency’s denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
  2. If a complaining party wishes the Attorney General to review a public agency’s denial, the complaining party shall forward to the Attorney General a copy of the written complaint and a copy of the written denial within sixty (60) days from receipt by that party of the written denial. If the public agency refuses to provide a written denial, a complaining party shall provide a copy of the written complaint within sixty (60) days from the date the written complaint was submitted to the presiding officer of the public agency. The Attorney General shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850 . In arriving at the decision, the Attorney General may request additional documentation from the agency. On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who filed the complaint.
    1. If a public agency agrees to remedy an alleged violation pursuant to subsection (1) of this section, and the person who submitted the written complaint pursuant to subsection (1) of this section believes that the agency’s efforts in this regard are inadequate, the person may complain to the Attorney General. (3) (a) If a public agency agrees to remedy an alleged violation pursuant to subsection (1) of this section, and the person who submitted the written complaint pursuant to subsection (1) of this section believes that the agency’s efforts in this regard are inadequate, the person may complain to the Attorney General.
    2. The person shall provide to the Attorney General:
      1. The complaint submitted to the public agency;
      2. The public agency’s response; and
      3. A written statement of how the public agency has failed to remedy the alleged violation.
    3. The adjudicatory process set forth in subsection (2) of this section shall govern as if the public agency had denied the original complaint.
    1. A party shall have thirty (30) days from the day that the Attorney General renders his decision to appeal the decision. An appeal within the thirty (30) day time limit shall be treated as if it were an action brought under KRS 61.848 . (4) (a) A party shall have thirty (30) days from the day that the Attorney General renders his decision to appeal the decision. An appeal within the thirty (30) day time limit shall be treated as if it were an action brought under KRS 61.848 .
    2. If an appeal is not filed within the thirty (30) day time limit, the Attorney General’s decision, as to whether the agency violated the provisions of KRS 61.805 to 61.850 , shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or where the alleged violation occurred.
  3. A public agency shall notify the Attorney General of any actions filed against that agency in Circuit Court regarding enforcement of KRS 61.805 to 61.850 .

History. Enact. Acts 1992, ch. 162, § 7, effective July 14, 1992.

NOTES TO DECISIONS

1.Application.

Where court found that closed meeting of county board of education had violated the open meetings of public agencies law and declared all action taken at the meeting void and enjoined the board from holding future closed sessions on certain topics discussed at the meeting, the court remained within the authority supplied it by former law regarding enforcement of law concerning open meetings in granting such relief and as long as the board and its members made a good faith effort to obey they would not be cited for contempt. Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977) (decided under prior law).

While the coverage of the Open Meetings Act, KRS 61.800 , was broad enough to include a police captain’s termination hearing, the police captain did not follow the procedures in KRS 61.846 and 61.848 , and so was not entitled to relief. Howard v. City of Independence, 199 S.W.3d 741, 2005 Ky. App. LEXIS 230 (Ky. Ct. App. 2005), abrogated in part, Pearce v. Univ. of Louisville, 2011 Ky. App. Unpub. LEXIS 998 (Ky. Ct. App. Nov. 18, 2011).

Opinions of Attorney General.

When the city deviated from its regular meeting schedule and rescheduled that regular meeting, any rescheduled meeting became a special meeting even if it eventually ended up being rescheduled again on the original regular meeting date. The meeting was a special meeting which required the city to follow the requirements of KRS 61.823 including those pertaining to notice and posting. Failure to follow these provisions constituted a violation of the Open Meetings Act. OAG 92-OMD-1473.

No matter how many requests or complaints a city may receive under the Open Meetings Act relative to the events of a certain date, each one must be responded to in the manner required by subsection (1) of this section and the fact that the city has previously responded to other complaints about the events does not lessen or eliminate the city’s duties and responsibilities. OAG 92-OMD-1840.

City’s response to complaint that meeting of city commissioners violated the Open Meetings Act with no citations or explanations, merely concluding that no meeting was held in violation of the Open Meetings Act and that if any violation occurred “it was purely accidental and unintentional” was completely unacceptable as a response or solution to a complaint alleging a violation of the Open Meetings Act. OAG 92-OMD-1840.

A person cannot seek relief from Attorney General’s Office under this section when the same and additional questions under the Kentucky Open Meetings Act are currently pending before a circuit court under KRS 61.848 . OAG 93-OMD-81.

Where the school board, at an open and public meeting, voted to employ a certain law firm as of the date of that meeting, the school board did not violate the Open Meetings Act even though prior to such meeting the chairman and one member of the board hired such firm and paid for their services with their personal funds; nothing in the Open Meetings Act prohibits public officials from securing legal representation and advice with their personal funds outside the scope of a public meeting. OAG 94-OMD-83.

As a public agency subject to the terms and provisions of the Open Meetings Act, the Workers’ Compensation Advisory Council violated subsection (1) of this section by failing to furnish a timely written response to the person filing a complaint as to the legality of the Council adjourning into private caucuses meeting separately as business and labor interests. OAG 96-OMD-261.

Had the complaint as to the legality of the Workers’ Compensation Advisory Council adjourning into private caucuses meeting separately as business and labor interests been an appeal under the Open Records Act (KRS 61.870 to KRS 61.884 ), which imposes the burden of proof in sustaining a denial of a request upon the public agency, KRS 61.880(2)(c), the matter could have been conclusively resolved in favor of the complaining party, however, because the Open Meetings Act contains no such provision relative to the public agency’s burden of proof, it could not be decided that the public agency failed to meet its burden of proof and no definitive finding could be made. OAG 96-OMD-261.

Where a complaint was filed as to the legality of the Workers’ Compensation Advisory Council adjourning into private caucuses meeting separately as business and labor interests, there could not be a definitive finding made by the Office of the Attorney General because the evidence was insufficient as to whether there was contemplated a “series of less than quorum meetings” or whether the purpose of these less than quorum gatherings was to avoid the requirements of the Open Meetings Act. If there were a series of less than quorum meetings and if those meetings were conducted for the purpose of avoiding the requirements of the Open Meetings Act, the Open Meetings Act would be violated. OAG 96-OMD-261.

The county board of education’s response to party complaining that some at meeting some people could not hear, that the meeting site was inadequate and people were forced to stand in the hallway and outside in the winter cold, violated the Open Meetings Act in that its written answer to the complaining party did not address the specific issues of accessibility to the meeting, noise in the meeting room, persons outside the meeting room in the hallway, and persons outside the building on a winter night; in addition, the response did not cite a section of the Open Meetings Act in support of the public agency’s position and it did not provide a brief explanation of how that particular statutory provision applied to the situation involving the public agency. OAG 97-OMD-28.

While the school board violated the Open Meetings Act by its failure to file a written response to the complaint within the statutorily mandated time frame, its decision to not renew the superintendent’s contract was not a violation of the Open Meetings Act as that action was within the agenda of activities set forth in the notice for that special meeting which stated that “The purpose of the meeting will be to discuss renewal/or action of the superintendent’s contract.” OAG 97-OMD-43.

The function of the Attorney General’s Office relative to the handling of an appeal under the Open Meetings Act is to issue a written decision stating whether the public agency violated the Act. The Attorney General cannot void actions taken or impose penalties for violations of the Act; only the Circuit Court can do that. OAG 97-OMD-90.

A city commission violated subsection (1), requiring an agency response to an open meetings complaint in writing and within three (3) business days, by failing to respond to complaint; a letter directed to the Attorney General following initiation of an open meetings appeal does not satisfy the statutory requirement. OAG 99-OMD-49.

A city council’s failure to respond in writing and within three (3) business days to a complaint constituted a procedural violation of the statute. OAG 99-OMD-104.

A planning and zoning commission’s failure to respond in writing, and within three (3) days, to a complaint, constituted a violation of the statute. OAG 99-OMD-146.

The failure of a county fiscal court to respond to an open meeting complaint within three (3) business days constituted a violation of the statute. OAG 99-OMD-213.

A county fiscal court’s response to a combined meetings complaint and records request was procedurally deficient insofar as it was not issued within three (3) business days, it failed to cite a statutory basis for the fiscal court’s position, and it failed to contain a brief supporting explanation. OAG 99-OMD-221.

A streetscape committee violated the statute by failing to respond in writing, and within three (3) business days, to an open meetings complaint. OAG 00-OMD-65.

The Attorney General is not authorized by the statute to declare actions taken at an improperly held meeting to be null and void. OAG 00-OMD-109.

A city commission’s failure to respond in writing to a complaint pertaining to a special meeting constituted a violation of the statute. OAG 00-OMD-142.

A complaint pertaining to a meeting of a city council failed to substantially conform to the requirements of subsection (1) where the complaint was not addressed to the mayor and did not propose a remedy. OAG 00-OMD-156.

Since KRS 61.846(2) assigns to the Attorney General the role of dispute mediator in an open meetings appeal, and since the statute directs the Attorney General to review appeals without reference to the identity of the requester or to the agency issuing the denial, and since it does not provide for the appointment of an “independent authority” under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances, the Attorney General will endeavor to research the law thoroughly and to apply that law to the facts presented without favoritism or bias. OAG 01-OMD-154.

By its express terms, KRS 61.846(2) forecloses Attorney General review of an open meetings appeal that is not initiated within sixty (60) days of the date of receipt of the agency’s denial of an open meetings complaint or within sixty (60) days of the date the complaint was submitted if the agency refuses to provide a written denial. Accordingly, the appeal is time barred. OAG 03-OMD-53.

Where the complaint was placed in the mail on November 22, a Saturday, and presumably reached the Mayor on Monday or Tuesday of the following week, and where the City’s offices were no doubt closed on Thursday and Friday, November 27 and 28, for the Thanksgiving holiday, and this appeal was initiated on the following Tuesday, December 2, no more than three (3) business days after his complaint reached the Mayor, the appeal was therefore premature, and the Council did not violate KRS 61.846(1). OAG 03-OMD-250.

61.848. Enforcement by judicial action — De novo determination in appeal of Attorney General’s decision — Voidability of action not substantially complying — Awards in willful violation actions.

  1. The Circuit Court of the county where the public agency has its principal place of business or where the alleged violation occurred shall have jurisdiction to enforce the provisions of KRS 61.805 to 61.850 , as they pertain to that public agency, by injunction or other appropriate order on application of any person.
  2. A person alleging a violation of the provisions of KRS 61.805 to 61.850 shall not have to exhaust his remedies under KRS 61.846 before filing suit in a Circuit Court. However, he shall file suit within sixty (60) days from his receipt of the written denial referred to in subsections (1) and (2) of KRS 61.846 or, if the public agency refuses to provide a written denial, within sixty (60) days from the date the written complaint was submitted to the presiding officer of the public agency.
  3. In an appeal of an Attorney General’s decision, where the appeal is properly filed pursuant to subsection (4)(a) of KRS 61.846 , the court shall determine the matter de novo.
  4. Except as otherwise provided by law or rule of court, proceedings arising under this section take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date.
  5. Any rule, resolution, regulation, ordinance, or other formal action of a public agency without substantial compliance with the requirements of KRS 61.810 , 61.815 , 61.820 , and KRS 61.823 shall be voidable by a court of competent jurisdiction.
  6. Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.805 to 61.850 , where the violation is found to be willful, may be awarded costs, including reasonable attorneys’ fees, incurred in connection with the legal action. In addition, it shall be within the discretion of the court to award the person an amount not to exceed one hundred dollars ($100) for each instance in which the court finds a violation. Attorneys’ fees, costs, and awards under this subsection shall be paid by the agency responsible for the violation.

History. Enact. Acts 1992, ch. 162, § 8, effective July 14, 1992.

NOTES TO DECISIONS

1.Application.

Where court found that closed meeting of county board of education had violated the open meetings of public agencies law and declared all action taken at the meeting void and enjoined the board from holding future closed sessions on certain topics discussed at the meeting, the court remained within the authority supplied it by this section in granting such relief and as long as the board and its members made a good faith effort to obey they would not be cited for contempt. Jefferson County Board of Education v. Courier-Journal, 551 S.W.2d 25, 1977 Ky. App. LEXIS 693 (Ky. Ct. App. 1977) (decided under prior law).

Injunction was proper under this section — even without a showing that petitioners had no adequate remedy at law — when a school board violated the Open Meeting Law by discussing a personnel reorganization plan in closed “executive” meetings; the preparation-for-litigation exception would not apply to mere discussion of whether dismissed administrators might sue the board. Also, the board failed to adhere to KRS 61.815 , which requires that, before going into a closed session, a public body must state the exact exception it relies on to go into a closed meeting. Floyd County Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 1997 Ky. LEXIS 145 ( Ky. 1997 ).

While the coverage of the Open Meetings Act, KRS 61.800 , was broad enough to include a police captain’s termination hearing, the police captain did not follow the procedures in KRS 61.846 and 61.848 , and so was not entitled to relief. Howard v. City of Independence, 199 S.W.3d 741, 2005 Ky. App. LEXIS 230 (Ky. Ct. App. 2005), abrogated in part, Pearce v. Univ. of Louisville, 2011 Ky. App. Unpub. LEXIS 998 (Ky. Ct. App. Nov. 18, 2011).

Pursuant to KRS 61.848 , a consulting contract that had been improperly approved following a closed session in a meeting of a county board of education, the attempted ratification of which was an action taken without substantial compliance with KRS 61.815 , was voidable by the circuit court. As such, the contractor could retain amounts already paid for services under the contract but was not entitled to any additional payments. Carter v. Smith, 366 S.W.3d 414, 2012 Ky. LEXIS 66 ( Ky. 2012 ).

Trial court properly exercised it authority to void the action of the school board directing legal counsel to pursue litigation because the board did not substantially comply with the Open Meetings Act. Webster County Bd. of Educ. v. Newell, 392 S.W.3d 431, 2013 Ky. App. LEXIS 31 (Ky. Ct. App. 2013).

While a board of commissioners violated the Open Meetings Act, the court of appeals erred in assessing fees and costs against it because the violation was not willful; the violation stemmed more from the board's effort to avoid the publicity adversely affecting the value of the property and its misconception of the law applicable to bidding at public auction without reserve, than from a willful attempt to violate the Act. Bd. of Comm'rs of Danville v. Advocate Communs., 527 S.W.3d 803, 2017 Ky. LEXIS 501 ( Ky. 2017 ).

2.Order of Censure.

By conducting its final deliberations in a closed session without substantial compliance with KRS 61.815 , the State Board of Accountancy rendered its action in censuring an accountant voidable under this section; however, since the accountant raised no objection and demonstrated no prejudice as a result of the Board’s action, the action was not void. Stinson v. State Bd. of Accountancy, 625 S.W.2d 589, 1981 Ky. App. LEXIS 304 (Ky. Ct. App. 1981) (decided under prior law).

3.Substantial Compliance.

Because a closed session in a meeting of a county board of education was not justified by any of the statutory exceptions in KRS 61.810 , substantial compliance could not be found under KRS 61.848 . There cannot be substantial compliance when an agency entirely fails to comply with the law by entering a closed session to which none of the exceptions apply. Carter v. Smith, 366 S.W.3d 414, 2012 Ky. LEXIS 66 ( Ky. 2012 ).

Opinions of Attorney General.

A person cannot seek relief from Attorney General’s Office under KRS 61.846 when the same and additional questions under the Kentucky Open Meetings Act are currently pending before a circuit court under this section. OAG 93-OMD-81.

The function of the Attorney General’s Office relative to the handling of an appeal under the Open Meetings Act is to issue a written decision stating whether the public agency violated the Act. The Attorney General cannot void actions taken or impose penalties for violations of the Act; only the Circuit Court can do that. 97-OMD-90.

61.850. Construction.

KRS 61.805 to 61.850 shall not be construed as repealing any of the laws of the Commonwealth relating to meetings but shall be held and construed as ancillary and supplemental thereto.

History. Enact. Acts 1974, ch. 377, § 11.

Open Records

61.870. Definitions for KRS 61.870 to 61.884.

As used in KRS 61.870 to 61.884 , unless the context requires otherwise:

  1. “Public agency” means:
    1. Every state or local government officer;
    2. Every state or local government department, division, bureau, board, commission, and authority;
    3. Every state or local legislative board, commission, committee, and officer;
    4. Every county and city governing body, council, school district board, special district board, and municipal corporation;
    5. Every state or local court or judicial agency;
    6. Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
    7. Any body created by state or local authority in any branch of government;
    8. Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection;
    9. Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
    10. Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
    11. Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection;
  2. “Public record” means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. “Public record” shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority;
    1. “Software” means the program code which makes a computer system function, but does not include that portion of the program code which contains public records exempted from inspection as provided by KRS 61.878 or specific addresses of files, passwords, access codes, user identifications, or any other mechanism for controlling the security or restricting access to public records in the public agency’s computer system. (3) (a) “Software” means the program code which makes a computer system function, but does not include that portion of the program code which contains public records exempted from inspection as provided by KRS 61.878 or specific addresses of files, passwords, access codes, user identifications, or any other mechanism for controlling the security or restricting access to public records in the public agency’s computer system.
    2. “Software” consists of the operating system, application programs, procedures, routines, and subroutines such as translators and utility programs, but does not include that material which is prohibited from disclosure or copying by a license agreement between a public agency and an outside entity which supplied the material to the agency;
    1. “Commercial purpose” means the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee. (4) (a) “Commercial purpose” means the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.
    2. “Commercial purpose” shall not include:
      1. Publication or related use of a public record by a newspaper or periodical;
      2. Use of a public record by a radio or television station in its news or other informational programs; or
      3. Use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties;
  3. “Official custodian” means the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control;
  4. “Custodian” means the official custodian or any authorized person having personal custody and control of public records;
  5. “Media” means the physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards;
  6. “Mechanical processing” means any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device;
  7. “Booking photograph and photographic record of inmate” means a photograph or image of an individual generated by law enforcement for identification purposes when the individual is booked into a detention facility as defined in KRS 520.010 or photograph and image of an inmate taken pursuant to KRS 196.099 ; and
  8. “Resident of the Commonwealth” means:
    1. An individual residing in the Commonwealth;
    2. A domestic business entity with a location in the Commonwealth;
    3. A foreign business entity registered with the Secretary of State;
    4. An individual that is employed and works at a location or locations within the Commonwealth;
    5. An individual or business entity that owns real property within the Commonwealth;
    6. Any individual or business entity that has been authorized to act on behalf of an individual or business entity defined in paragraphs (a) to (e) of this subsection; or
    7. A news-gathering organization as defined in KRS 189.635(8)(b)1.a. to e..

History. Enact. Acts 1976, ch. 273, § 1; 1986, ch. 150, § 2, effective July 15, 1986; 1992, ch. 163, § 2, effective July 14, 1992; 1994, ch. 262, § 2, effective July 15, 1994; 2012, ch. 26, § 1, effective July 12, 2012; 2016 ch. 101, § 2, effective July 15, 2016; 2021 ch. 160, § 1, effective June 29, 2021.

NOTES TO DECISIONS

Cited in:

1.Constitutionality.

Pre-amendment version of Ky. Rev. Stat. Ann. § 61.870(1)(h) was constitutional as it was sufficiently definite that a common man of ordinary intelligence could read and subscribe meaning to it. Pike Cnty. Fiscal Court v. Util. Mgmt. Grp., LLC, 2015 Ky. App. LEXIS 88 (Ky. Ct. App. June 12, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 880 (Ky. Ct. App. June 12, 2015).

Former Ky. Rev. Stat. Ann. § 61.870 (1(h) was not unconstitutional for being vague because the statute was not void-as-unintelligible, as (1) the people the statute affected could understand the statute, and (2) courts could deduce the legislature's will, as undefined terms found to render the statute unintelligible were commonly defined. Util. Mgmt. Grp., LLC v. Pike Cty. Fiscal Court, 531 S.W.3d 3, 2017 Ky. LEXIS 441 ( Ky. 2017 ).

2.Public Records.

Due process does not require an appellate court to lay out for inspection by the appellant, even in a capital case, all of the information in its hands from which it may seek perspective and guidance in reviewing the propriety of his sentence. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

The custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

The materials compiled for purposes of reviewing death sentences will be open to the public and, perforce, to all who may be interested, as soon as the Supreme Court has the occasion and opportunity to examine and consider them, and until then they are in the same category as any other source of knowledge or information, apart from the record of proceedings relating to an individual appellant, from which the members of the court may properly seek assistance or inspiration in the formulation of their judgments. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

State university’s response to inquiry by collegiate athletic association into rules violation was not exempt from disclosure under Open Records Act exemption for public records. It is clear that the university is a “public agency” and the entire response submitted by the university to the National Collegiate Athletic Association (NCAA) constitutes a public record. Where the university spent over $400,000.00 for the response and the public has a legitimate interest in its contents, the response is not exempt. Furthermore, the contents of the response are a matter of public interest and release would not constitute a clearly unwarranted invasion of personal privacy. University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 1992 Ky. LEXIS 55 ( Ky. 1992 ).

Any common law regarding access to records maintained by public agencies was codified and preempted by the General Assembly’s passage of the Open Records Act. University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 1992 Ky. LEXIS 55 ( Ky. 1992 ).

Medical records of patients in public hospital were not related to the functioning of the hospital, the activities carried on by the hospital, its programs or its operations and, as such, were not public records under this section. Hardin County v. Valentine, 894 S.W.2d 151, 1995 Ky. App. LEXIS 48 (Ky. Ct. App. 1995).

KRS 61.878 exempts Governor’s daily appointment ledgers from media inspection and summary judgment denying their availability to newspaper under the Open Records Act was appropriate. Courier-Journal v. Jones, 895 S.W.2d 6, 1995 Ky. App. LEXIS 58 (Ky. Ct. App. 1995).

Family Educational Rights and Privacy Act (FERPA) did not bar a university from releasing to a newspaper all records sought under the Open Records Act because, while FERPA barred release of unredacted education records contained in a Title IX investigation file, not all the records sought were education records directly relating to a student. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

4.Prosecutorial File.

The Open Records Act neither intends nor provides that a convicted criminal should have complete access to the prosecutorial file once his conviction has been affirmed on direct appeal. Skaggs v. Redford, 844 S.W.2d 389, 1992 Ky. LEXIS 164 ( Ky. 1992 ), overruled in part, City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 2013 Ky. LEXIS 375 ( Ky. 2013 ).

5.Public Agency.

The Kentucky State University Foundation is a “public agency” as defined in this section and therefore subject to the Open Records law. An interpretation of this section which does not include the Foundation as a public agency is clearly inconsistent with the natural and harmonious reading of this section considering the overall purpose of the Kentucky Open Records law. The obvious purpose of the Open Records law is to make available for public inspection all records in the custody of public agencies by whatever label they have at the moment. The phrase “or agency thereof” in subsection (1) prior to the 1992 amendment is applicable to all units of government listed before it in the same subsection. It is the clear intent of the law to make public the records of all units of government by whatever title for public inspection. Frankfort Pub. Co. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 1992 Ky. LEXIS 103 ( Ky. 1992 ) (decision prior to 1992 amendment).

The role of the Commissioner of the Department of Insurance as “rehabilitator” is legally separate from his official role as the regulator of the state’s insurance department, and although he is appointed by and responsible to the court, the commissioner is not a “governing body” as contemplated in subsection (1)(i) of this section nor does he qualify as a “public agency” as described in subsection (1)(a) of this section. Kentucky Cent. Life Ins. Co. by & Through Stephens v. Park Broadcasting, 913 S.W.2d 330, 1996 Ky. App. LEXIS 6 (Ky. Ct. App. 1996).

The Kentucky State Penitentiary, and other Kentucky facilities, are required to comply with open records requests. Blair v. Hendricks, 30 S.W.3d 802, 2000 Ky. App. LEXIS 69 (Ky. Ct. App. 2000), overruled in part, Lang v. Sapp, 71 S.W.3d 133, 2002 Ky. App. LEXIS 452 (Ky. Ct. App. 2002).

As the status of a public university’s foundation as a public entity under KRS 61.870 had not been clearly established, it was reasonable for donors to the foundation who requested anonymity to expect their request to be honored. Therefore, a newspaper was properly denied access to donor identities and the amounts of their donations under Kentucky's Open Records Act. Cape Pub'ns, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818, 2008 Ky. LEXIS 176 ( Ky. 2008 ).

Future donors to the University of Lousiville Foundation are on notice that their gifts are being made to a public institution and, therefore, are subject to disclosure under KRS 61.871 regardless of any requests for anonymity. Cape Pub'ns, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818, 2008 Ky. LEXIS 176 ( Ky. 2008 ).

Names of donors to a public university’s foundation who had not requested anonymity were subject to the disclosure requirement of KRS 61.871 , as the foundation was a public entity under KRS 61.870 , and the donors had no reasonable expectation of privacy. Cape Pub'ns, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818, 2008 Ky. LEXIS 176 ( Ky. 2008 ).

Circuit court properly found that the operator of a hospital was a public agency and within the scope of Kentucky's Open Records Act because a majority of the operator's board of directors were appointed by a university, itself a public agency. Univ. Med. Ctr., Inc. v. ACLU of Ky., Inc., 467 S.W.3d 790, 2014 Ky. App. LEXIS 159 (Ky. Ct. App. 2014).

6.— Agent.

By virtue of county attorney’s election to participate in program relating to state’s goal of reducing welfare roles by collecting child support payments for welfare recipients, attorney acted as an agent of the Cabinet for Human Resources with respect to administration of the program, and to that extent, attorney was subject to the Open Records Act which governed disclosure of documents related to the program. Edmondson v. Alig, 926 S.W.2d 856, 1996 Ky. App. LEXIS 124 (Ky. Ct. App. 1996).

7.Private Corporation.

The confidential audited financial reports of privately owned, corporate marina operators were exempt from disclosure under KRS 61.878(1)(c)(1). The Legislative Program Review and Investigation Committee could not obtain nor disclose such records under the Open Records Act, but could obtain access to them for its use in evaluation pursuant to KRS 6.910 without disclosure to the public. Marina Management Servs. v. Cabinet for Tourism, Dep't of Parks, 906 S.W.2d 318, 1995 Ky. LEXIS 62 ( Ky. 1995 ).

Private company was subject to the former Open Records Act because (1) the company could be a “body” under Ky. Rev. Stat. Ann. § 61.870(1)(h), and (2) the company derived virtually all the company's income from a water district and city. Util. Mgmt. Grp., LLC v. Pike Cty. Fiscal Court, 531 S.W.3d 3, 2017 Ky. LEXIS 441 ( Ky. 2017 ).

Amendment to Ky. Rev. Stat. Ann. § 61.870 (1(h) which exempted a private company from the Open Records Act was not retroactive because (1) no authority showed the amendment simply clarified existing law, (2) the amendment was not remedial, and (3) a fiscal court's right to inspect the company's records vested when the fiscal court requested the records before the amendment was enacted. Util. Mgmt. Grp., LLC v. Pike Cty. Fiscal Court, 531 S.W.3d 3, 2017 Ky. LEXIS 441 ( Ky. 2017 ).

8.Attorney-Client Privilege.

Public records protected by the attorney-client privilege are ordinarily excludable from the disclosure requirements of the Open Records Act. Hahn v. Univ. of Louisville, 80 S.W.3d 771, 2001 Ky. App. LEXIS 84 (Ky. Ct. App. 2001).

The Governor’s administration was properly ordered to release service description statements on attorney billing records reflecting the general nature of legal services rendered by nongovernmental lawyers retained in connection with an investigation of hiring practices. Such statements were not protected by the attorney-client privilege of KRE 503, and the trial court’s solution of allowing the administration to submit descriptions it believed to be privileged for in camera review balanced the administration’s interest in the confidentiality of privileged materials and the public interest in disclosure. Commonwealth v. Scorsone, 2008 Ky. App. LEXIS 18 (Ky. Ct. App. Jan. 18, 2008), sub. op., 251 S.W.3d 328, 2008 Ky. App. LEXIS 40 (Ky. Ct. App. 2008).

Blanket redaction of descriptions of particular services rendered by nongovernment lawyers to various agencies in the governor’s administration was improper under the Open Records Act, KRS 61.870 to 61.884 , as the attorney-client privilege under KRE 503 did not apply to every communication between an attorney and a client. Commonwealth v. Scorsone, 251 S.W.3d 328, 2008 Ky. App. LEXIS 40 (Ky. Ct. App. 2008).

9.Defamation.

Kentucky Lottery Corporation did not have absolute privilege with respect to a termination memo in a defamation claim by discharged employees. The employees’ alleged more than the simple disclosure of documents prepared in the regular course of business and placed in their personnel files; they presented evidence that their supervisors maliciously created defamatory memoranda so that they would be subject to an open records disclosure, and concealed the existence of the documents to impede the employees’ ability to invoke an exemption to the Open Records Act, KRS 61.870 et. seq. Hill v. Ky. Lottery Corp., 2010 Ky. LEXIS 82 (Ky. Apr. 22, 2010), sub. op., 327 S.W.3d 412, 2010 Ky. LEXIS 317 ( Ky. 2010 ), modified, 2010 Ky. LEXIS 318 (Ky. Dec. 16, 2010).

Absolute privilege does not extend so far as to cloak with immunity one who, with a malicious purpose and under no legal compulsion to do so, creates defamatory material with the expectation that it would be published. Therefore, in a defamation case, a former employer was unable to argue that it was absolutely privileged because it was required to release a termination memorandum under the Kentucky Open Records Act. Hill v. Ky. Lottery Corp., 327 S.W.3d 412, 2010 Ky. LEXIS 317 ( Ky. 2010 ).

10.Harm.

Nothing in the Kentucky Open Records Act conditions an individual’s right to obtain public records on his purpose in seeking those records; further, the propriety of assessing a penalty against non-compliant officials does not depend on whether harm befell the person who is denied records under KRS 61.882(5). Therefore, the fact that an inmate might not have been harmed by the failure to disclose jail records was irrelevant. Eplion v. Burchett, 354 S.W.3d 598, 2011 Ky. App. LEXIS 215 (Ky. Ct. App. 2011).

Cited in:

Kentucky State Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 1983 Ky. App. LEXIS 327 (Ky. Ct. App. 1983); Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 1992 Ky. LEXIS 35 ( Ky. 1992 ).

NOTES TO UNPUBLISHED DECISIONS

1.Public Agency.

Unpublished decision: Under the pre-amendment version of Ky. Rev. Stat. Ann. § 61.870(1)(h), the management group, which provided management and operational services for the county public waterworks district and other services for a local city, and received funds from state and local authorities, qualified as a public agency. Pike Cnty. Fiscal Court v. Util. Mgmt. Grp., LLC, 2015 Ky. App. Unpub. LEXIS 880.

Opinions of Attorney General.

Work papers prepared by members of the state auditor’s staff in pursuing their statutory duties are “public records” which are open to public inspection, and such work papers become public records as they are prepared, formulated, or used by staff members. OAG 76-204 .

The Kentucky Open Records Act, KRS 61.870 to 61.884 , applies to county court clerks and circuit court clerks. OAG 76-243 .

Comprehensive care centers are public agencies and thus all records of comprehensive care centers are public records subject to public inspection unless the nature of the record makes them confidential under the provisions of the statutes. OAG 76-420 .

A request to police department for records pertaining to the criminal history of a certain person which pertained only to the records of criminal prosecutions which had as of the day of the request been completed or in which a determination not to prosecute was made and did not pertain to information gathered for use in respective law enforcement action not yet instituted should have been honored under the Criminal History Records Act, KRS 17.110 to 17.157 and the Open Records Act, KRS 61.870 to 61.884 . OAG 76-424 .

Unless a particular record of the police court is covered by a particular exception set forth in KRS 61.870 to 61.884 the record is subject to public inspection by any person without the necessity of showing a reason for the inspection. OAG 76-443 .

There is nothing in KRS Chapter 315 or the Open Records Law (KRS 61.870 to 61.884 ) prohibiting the release of scores on examinations administered by the Kentucky Board of Pharmacy to applicants for a pharmacist license under KRS 315.050 to colleges of pharmacy or other institutions or agencies. OAG 76-573 .

Since subsection (1) of this section contains a different definition of a public agency than KRS 61.805 , in that it includes “any other body which is created by state or local authority in any branch of government or which derives at least 25% of its funds from state or local authority” some organizations which are not under the purview of the Open Meetings Law may be under the purview of the Open Records Law. OAG 76-648 .

Since the River Region Mental Health-Mental Retardation Board, Inc. receives more than 25% of its funds from state or local authority the books and records of the corporation may be inspected by the public as well as by members of the corporation. OAG 76-648 .

The naming of persons to the post of honorary deputy sheriffs is not an official function of the sheriff’s office but is a personal activity and therefore is not subject to the strictures of the open records act. OAG 76-655 .

A special district created when a group of public agencies combine together to carry out a special purpose is required to comply with the Open Meetings Law and the Open Records Law. OAG 76-663 .

If a citizen requests to see the appointing documents for five (5) employees of the school board or even for twenty-five (25) employees there is no reason he should not be allowed access to the records and requests by school board that when specific individuals are involved in the requests they should be asked for on a one (1) individual at a time basis was not justified. OAG 76-756 .

The State Board of Medical Licensure is a public agency and thus the official actions of the Board including disciplinary action are subject to public disclosure to any citizen. OAG 77-55 .

The “police blotter” or police “incident report” is not exempt from public inspection; if a police department feels it necessary to withhold certain items from public inspection in order to protect a police officer or an informant, it may do so under KRS 17.150 but the burden is upon the custodian to justify the refusal of inspection with specificity, otherwise records of police departments showing complaints received from citizens in other incidences occurring in its daily operation are open to public inspection. OAG 77-102 .

A water district is a public agency and has no general exemption from provisions of the Open Records Law. OAG 77-291 .

The minutes of a board of zoning adjustment are public records and thus are open to public inspection. OAG 77-464 .

A computer tape containing information extracted from corporation files maintained by the Secretary of State is a public record, and upon proper request an applicant would be entitled to a duplicate copy of the tape. OAG 77-480 .

It is not lawful to permanently remove the official seals from land warrants; however, in order to make the land warrants suitable for lamination, such seals may be removed so long as they are replaced so that the warrant is restored to its original condition with the exception of the intervening sheet of plastic laminate, for to hold that the removal and replacement constitutes an unlawful alteration of a public record under KRS 519.060 (1)(b) would render such restoration impossible; moreover since a literal reading of subsection (1)(b) of KRS 519.060 would defeat the legislative policy of preserving these warrants it cannot stand to prevent temporary removal of these seals and their subsequent replacement. OAG 77-516 .

After an inquest verdict and testimony have been filed in the circuit clerk’s office pursuant to KRS 72.060 (now repealed), such record at that point becomes a public record and is subject to the Open Records Law. OAG 78-28 .

If a nonprofit corporation derives at least twenty-five percent (25%) of its funds from state or local authority, the corporation is subject to the Open Records Law and all of its records are subject to public inspection unless they are exempted under KRS 61.878 . OAG 78-32 .

The records pertaining to the salary, expense allowances and employee benefits of the employees of the University of Kentucky are public records subject to public inspection. OAG 78-179 .

Under the Kentucky Open Records Law, a public agency is not required to create a document which does not already exist but is required to allow inspection of all its records unless the records are exempted by their nature under KRS 61.878 . OAG 78-231 .

Although Const., § 14 requires that the courts be open and although the courts are included within the definition of public agency of subsection (1) of this section, any papers produced by judges or staff attorneys during the internal deliberative process of the appellate courts are of such a preliminary nature that they come within the exception of subsection (1)(g) and (h) of KRS 61.878 . OAG 78-262 .

Under the Open Records Law, the Tracy Land Service may have access to and the use of the records in the office of the property valuation administrator of Graves County, for the purpose of securing the necessary information to take oil and gas leases from the mineral owners in Graves County, including: the name and address of the landowners in the county; the legal description of the property, the number of acres it contains, and the book and page of the deed whereby the property was acquired; and, the use of the maps in order to locate the property and to determine the ownership of the land bordering it on all sides. OAG 78-473 ; as modified by OAG 78-549 .

Only the tax rolls of the office of the property valuation administration are required to be open to inspection; maps and other papers designated as working papers are preliminary drafts and notes and exempt from the mandatory provisions of the Open Records Act. OAG 78-549 modifies 78-473.

An agency does not have to supply by mail copies of records in response to a blanket request; the right to have copies of records is ancillary to the right of inspection, and if a citizen wants to make a fishing expedition through public records he must do it himself. OAG 78-728 .

The fact that the Housing Authority of Newport is created by statute is conclusive of the fact that it is a public agency subject to the provisions of the Kentucky Open Records Law, KRS 61.870 to 61.884 . OAG 78-728 .

The public should be allowed access to the business license records of the Lexington-Fayette urban county government insofar as the records reveal only which individuals and businesses are licensed. OAG 78-809 .

KRS 43.090 , in providing that audit and investigative reports are public documents, in effect amends subsection (2) of this section which defines “public records,” since KRS 43.090 , as amended in 1978, is later legislation (KRS 61.870 was enacted in 1976) and constitutes specific legislation as contrasted with general. OAG 78-816 .

The records of a local community action agency as to locations of work performed, identity of all employees and their time and amount of work, and all records with regard to winterization/weatherization program and materials, are properly open to inspection. OAG 78-828 .

Cruiser repair vouchers, bills, receipts, cancelled checks and/or other records for said work, including parts and accessories purchased for the cars the sheriff’s office operates, and gasoline purchase records are all public records within the meaning of the Kentucky Open Records Law, KRS 61.870 to 61.884 . OAG 79-27 .

Records showing those who passed the hairdressing instructor’s examination and were issued an instructor’s license would not be exempt from inspection. OAG 79-58 .

The minutes of the board of hairdressers and cosmetologists and vouchers for compensating members of the board are subject to public inspection. OAG 79-58 .

Where the requested information was described as all public records pertaining to the listing of duly registered voters in each and every county and precinct within the Commonwealth of Kentucky, the request was specific and the tapes and discs requested were public records. OAG 79-77 .

A national bank is not a public agency within the meaning of the Kentucky Open Records Law, nor is a state bank. OAG 79-325 .

The Open Records Law does not provide any mandate against the opening for inspection of any public records even records which may be exempt from the requirements of being open for inspection. OAG 79-326 .

The Somerset Community College, an agency under the control of the board of trustees of the University of Kentucky, is a public agency within the definition of the Kentucky Open Records Law. OAG 79-348 .

KRS 68.360 provides for a monthly statement of the county treasurer to be filed with the county judge/executive and the fiscal court, showing the balance of county funds available for governmental expenditure, and for the county judge/executive’s filing similar quarterly reports as to status of county funds, showing receipts and expenditures of county funds, which records are public records, as defined in this section, and are subject to inspection by any person under the conditions of KRS 61.872 . OAG 79-374 .

While “incident reports” should be open to public inspection, there is no requirement that a police department prepare a special report for the news media unless it sees fit to do so voluntarily. OAG 79-387 .

A notation “Do Not Publish” on a public record would have no effect on the right to inspect, copy and publish the information in the record. OAG 79-413 .

Records of marriage, divorce and transfer of property are not protected by any right of privacy, but adoption records are made confidential by statute, KRS 199.570 , and kept sealed by the court; there are no administrative records kept by a county clerk which are exempt from public inspection. OAG 79-413 .

Where a request was made for inspection of correspondence between the United States Attorney General and an alderman, which correspondence had not been authorized by action of the board of aldermen nor dealt with public functions, activities, programs or operations, the documents were not “public records” within the meaning of subsection (2) of this section, since the alderman’s letters would be only private correspondence in the absence of such board approval. OAG 79-496 .

It is not necessary for an agency to make a list of items from its records if such a list does not already exist. OAG 79-547 .

The purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law. OAG 79-547 .

The borrowing of money from the federal REA does not constitute a rural electric cooperative corporation as a public agency under either the Open Meetings Law (KRS 61.805 to 61.850 ) or the Open Records Law (KRS 61.870 to 61.882 ). OAG 79-560 .

A county jailer is a “public agency” within KRS 61.870 to 61.884 . OAG 79-575 .

Checks, check stubs and financial records of a county jail, jail logs and records for reimbursement for prisoner care and feeding, jail logs retained showing dates prisoners were arrested and released, and records of jail income and expenses are “public records” under KRS 61.870 to 61.884 . OAG 79-575 .

A local human rights commission is a public agency operating under the authority of the laws of the Commonwealth of Kentucky. OAG 79-608 .

An urban county division of police comes within the meaning of “public agency” as defined in subsection (1) of this section. OAG 79-608 .

The internal affairs division of the department of safety of the city of Louisville is a public agency within the meaning of the Kentucky Open Records Law (KRS 61.870 to 61.884 ). OAG 80-43 .

The Kentucky Housing Corporation is a “public agency” as defined in this section and is subject to the provisions of the Open Records Law. OAG 80-207 .

The Lexington-Fayette urban county housing authority is a public agency subject to the Open Records Law, KRS 61.870 to 61.884 , and its housing assistance payments contracts and its property inspection reports are public records which are not exempt from public inspection and should be made available for inspection by the requester. OAG 80-288 .

Where a member of an electric plant board has requested to inspect numerous plant board records covering a five-year period and that certain lists be compiled for him, it will be sufficient under the Open Records Law for the board to allow the requester access to the records he wants to inspect if they exist and the board does not have to prepare lists which are not already in existence. OAG 80-308 .

The public is not entitled mandatorily to access to the home addresses of voluntary members of an organization such as the action league for physically handicapped adults (ALPHA), even though ALPHA received more than 25 percent of its funding from a state or local authority and is, therefore, a public agency under the Open Records Law. OAG 80-432 .

Bank statements, cancelled checks and check stubs are public records when they pertain to the funds of a public agency, and under the Open Records Law they should be made available to any person who requests to inspect them; however, the bank’s records are not public records and are therefore not subject to the Open Records Law. OAG 80-454 .

The account books of the CETA program, any record of bills paid, payroll, check stubs or cancelled checks, and all other records which show funds received and disbursed are public records and if the demand is refused by the custodian, the requester can file suit in the circuit court under the Open Records Law. OAG 80-454 .

Where one public agency has investigated the financial transactions and procedures of another public agency through the use of subpoena, thereafter recommending certain changes and improvements in financial procedures, a request to inspect records of the investigated agency should be made to the chief administrative officer or the designated official custodian of the records for the investigated agency, and such records need not be made available by the investigating agency; however, the investigating agency should make available for inspection any records generated during its investigation where a determination not to prosecute has been made. OAG 80-462 .

The Kentucky Open Records Law is the same as the Freedom of Information Act in that the provisions requiring the disclosure are mandatory and the exceptions are discretionary. OAG 80-519 .

An urban county airport board is a public agency and all of its papers are public records. OAG 80-586 .

KRS 61.810(6) (now (1)(f)), which provides an exception to the Open Meetings Law allowing hearings on personnel matters to be held in closed session, has no pertinency as to whether documents concerning the dismissal of five employees should be made available for public inspection; in denying inspection of a public record a public agency must rely on one (1) of the exceptions provided in the Open Records Law, KRS 61.878(1). OAG 80-586 .

A county housing agency is a public agency under the Open Records Law and it should make its records available for inspection by any person who makes a request to inspect records. OAG 80-597 .

A volunteer fire association organized under KRS 273.161 to 273.273 as a nonstock, nonprofit corporation that derives its funds mainly from contracts with municipalities without bidding and without any competition involved, which makes the use of its funds a matter of public stewardship, is a public agency under the Open Records Law and its records are subject to public inspection under the Open Records Law. OAG 80-633 .

Under the Open Records Law all persons have the same standing to inspect public records and, when making the request to inspect records, they do not have to state any reason or purpose for making the inspection. OAG 80-641 .

Where newspaper reporter sought records of unrestricted expenditures of the University of Louisville Foundation, Inc. for certain years, it was improper for university custodian of records to deny inspection of records on the basis of a judicial determination that the foundation was not a public agency under KRS 61.805 and the Open Meetings Law since the request for the records and the response thereto was not made by or to the foundation but by the university which is a public agency under the Open Records Law. OAG 81-2 .

Where letter response to person requesting inspection of housing agency records stated that agency would respond once request had been cleared with United States Department of Housing and Urban Development Area Council but cited no state or federal statute authorizing the denial or delay of inspection and where request did not on its face suggest any exemption from inspection under KRS 61.878 , there was improper denial or delay of inspection under the Open Records Law. OAG 81-4 .

Where applicant sought, for a reasonable fee, for the Department of Labor (now Labor Cabinet) to furnish microfiche records of state claims for industrial injury from 1974 through 1980 and an alphabetical computer printout of the same information and the same dates, the sale of complete or selected data by the agency is not restricted by the Open Records Law from such sale, if found to be in the public interest, nor is such sale mandated by the Open Records Law. OAG 81-52 .

The county judge/executive must disclose the time, date and location of the regular meeting of the county health board under the Open Records Act and must notify the requester of any special meetings which are called under KRS 61.825 (now repealed). OAG 81-120 .

Where a public agency has not adopted its own rules and regulations with respect to the storage of agency records, the uniform regulations adopted by the Department of Finance (now Finance and Administration Cabinet) would apply to determine where such records can be kept; thus, in the absence of agency regulations, the records of the board of physical therapy may be kept in the home of the executive director of the board when the residence is designated as the official office of the agency and the responsibility for the keeping of the records is placed on the executive director as the official custodian, with no further precautions necessary; moreover, the listing of the home address in the state directory and city telephone directory serves as sufficient notice as to where the records may be found and inspected under the Open Records Law. OAG 81-269 .

It was a violation of the Open Records Law when a custodian of records did not either send the requester the records he requested, tell him where and when he could inspect the requested records or give him a written response denying the record with an explanation based on a statutory exception. OAG 81-288 .

A letter of transmittal which was presented to a university board chairman prior to charges being preferred against a university president or faculty member is an official document which is required by subsection (3) of KRS 164.360 and, therefore, is a public record which should be made available for public inspection under the Open Records Law. OAG 81-291 .

City records which will disclose the names of employers who are delinquent in paying occupational taxes are open to public inspection, since a city is a public agency and is subject to the provisions of the Open Records Law, and, even though KRS 131.190 prohibits the disclosure of information from tax records “insofar as the information may have to do with the affairs of the person’s business”, it does not prohibit the disclosure of the fact that a person is delinquent in paying his taxes, for although tax records cannot be made totally available for public inspection because of the restrictions of KRS 131.190 , non-exempt information can and must be made available under KRS 61.878(3). OAG 81-309 .

The Department (now Cabinet) for Human Resources properly denied the inspection of all statistical compilations or raw data which it had in its custody concerning the number of children allegedly dependent, neglected or abused who were in the Department’s custody between 1978 and 1981, and other related information, since the Open Records Law only requires an agency to release documents for which a list or compilation has been made, but if no list exists, the agency cannot be required to make one. OAG 81-333 .

An application form provided by a city to open records requesters, which required that the requester state under oath that he is a Kentucky citizen, that he give his home address and telephone number, that he state the reason for his request and that the form be given under oath and certified by a notary public, was defective in that “any person” can inspect public records under KRS 61.872 , so that access is not limited to Kentucky citizens; a requester does not need to give any personal information or his reason for the request under KRS 61.870 to 61.884 , and the application need not be given under oath or notarized. OAG 81-345 .

An individual may inspect the records of the Department of Fish and Wildlife Resources in order to compile a list of licensed trappers, since the records of the Department are opened to inspection by subsection (2) of KRS 150.190 and trapper’s licenses are not made confidential by any statute. OAG 81-362 .

The records of a coal producers association, which was a nonprofit corporation and received no grants or funds from state or local governments, were not subject to inspection under the Open Records Law. OAG 81-377 .

The registrar of vital statistics cannot refuse a request to inspect all death certificates and death verification certificates in the possession or control of a county health department based upon the confidentiality of vital records provision in KRS 213.200 (now repealed), since that section can only be interpreted as preventing the Department (now Cabinet) for Human Resources from requiring a physician to disclose to the Department confidential communications between the physician and his patient, but does not authorize the registrar to withhold vital statistic records from public inspection. OAG 81-400 .

Both a proposed budget and the final approved budget of a fiscal court are public records under this section and are open to inspection by the public under KRS 61.872 . OAG 82-91 .

When any one (1) of the local officers named in KRS 197.170 receives formal notice from the superintendent of the penitentiary that a named convict has been released to reside in his jurisdiction, the formal notice is a public record which any person has a right to inspect under the Open Records Law. The local officer is not required to make any publication of the fact that he has received notice of a prisoner’s release and, therefore, any person desiring such information will have to make an inquiry from time to time and request to inspect any notices which the local officer has received. OAG 82-115 .

All libraries may refuse to disclose for public inspection their circulation records. As far as the Open Records Law is concerned, they may also make the records open if they so choose; however, the privacy rights which are inherent in a democratic society should constrain all libraries to keep their circulation lists confidential. OAG 82-149 .

No person can demand as a matter of right to inspect the circulation records of any type of library — school, public, academic or special — under the Open Records Law. OAG 82-149 .

Clinical income derived from the services of physicians on the University of Kentucky’s faculty in its College of Medicine, which is collected by the University and remitted monthly to the Kentucky Medical Services Foundation, Inc. (KMSF), under an agreement between the University and KMSF whereby KMSF reimburses the University for expenses and disburses clinical income to faculty physicians on the basis of their services, does not at any time become public money so as to constitute funding by state or local authority. OAG 82-216 .

The Kentucky Medical Services Foundation, Inc. is a nonprofit corporation organized under KRS Ch. 273, which receives no state or local funding, and therefore is not a public agency under the Open Records Law. OAG 82-216 .

Payroll vouchers are public records under subdivision (2) of this section, containing a mixture of exempted and nonexempted information under KRS 61.878(1). OAG 82-233 .

A public agency is not required to create a record which does not already exist. OAG 82-234 .

For suggestions as to how the registrar of vital statistics could meet mass requests for inspections or copies of birth certificates, see OAG 82-234 .

The purpose for which a person seeks access to a public record is not relevant to the Open Records Law, and a public agency has no right to inquire as to the purpose for the inspection and copying of the record. Any inspection request form which requires the statement of the purpose of inspection is contrary to the law. OAG 82-234 .

Because, as of January 15, 1982, the Kentucky Department of Energy’s (now Energy Cabinet) previous operational and funding relationship with the Kentucky Export Resources Authority was terminated, there was no basis upon which to conclude that the authority, subsequent to that time, was receiving any funding from state or local authorities. Therefore, unless that situation should change, the authority would no longer be a public agency whose records were subject to disclosure after January 15, 1982. OAG 82-27 7. Withdrawing OAG 82-27 .

Since the Kentucky Export Resources Authority, Inc. was run by Kentucky Department of Energy (now Energy Cabinet) personnel, and the operating expenses of the corporation were primarily paid for with Kentucky Department of Energy funds, from the date the authority was incorporated (March 3, 1981) until January 15, 1982 when the authority became self-sufficient and its personnel were removed from the payroll of the Kentucky Department of Energy, the Authority was a public agency as defined in subdivision (1) of this section from March 3, 1981, until January 15, 1982, and a request made during that period for access to records of the authority was improperly denied. OAG 82-27 7. Withdrawing OAG 82-27 .

A member of the city council is entitled to inspect and make copies of any public records of the city located in the clerk’s office during normal office hours and at other times in emergencies. OAG 82-311 .

The city clerk is responsible for the safekeeping of the city records and is entitled, not only to a key to wherever the records are stored, but it is his or her responsibility that they remain in safekeeping as the Open Records Act (KRS 61.870 to 61.882 ) provides, subject to inspection as the act provides. OAG 82-311 .

The records of a city located in the clerk’s office are public records under this section. OAG 82-311 .

It is not the legislative intent of the Open Records Law to inhibit the free communication between a public employee and his superior by mandating that every preliminary memorandum will eventually become public. OAG 82-339 .

Information about the confiscation of inmate property would generally be exempt from mandatory public disclosure because the privacy rights of the inmates involved outweigh the need for the public to be informed. OAG 82-395 .

The general terms “a deed” or “a will,” “recently recorded,” standing alone, constitute public records as defined in subdivision (2). OAG 83-42 .

Accident reports made by law enforcement officers are not confidential and are open records under the Open Records Law. OAG 83-53 .

The public generally was entitled to inspect correspondence between two (2) public agencies, the Medical Center of the University of Kentucky and the Kentucky Board of Medical Licensure. OAG 83-60 .

Minutes of open meetings are open to public inspection; minutes of closed meetings may be withheld from public inspection. OAG 83-60 .

District health departments are public agencies as defined in subsection (1) of this section. OAG 83-235 .

Generally, when an agency makes an official inspection of one (1) of its licensees and objectively grades the performance or conditions existing on the premises of the licensee, the report and grade is open to public inspection; on the other hand, a report by an agency employee to his superior expressing opinions and making recommendations of policy may be exempted from mandatory public disclosure by KRS 61.878(1)(h). OAG 83-235 .

The fact that a health department report was involved in a class-action lawsuit did not necessarily mean that it was exempt from mandatory public inspection unless the judge issued an order to that effect. OAG 83-235 .

A health department report relating to an outbreak of hepatitis in a certain country club was a “public record.” OAG 83-235 .

School activity funds are under the control, and are the responsibility, of the principal and the principal is the official custodian of the records; any person is entitled to inspect the business records concerning such funds, but any items in the records which are made confidential by the Family Educational Rights and Privacy Act of 1974 or any state law may be deleted from the records before they are made available for public inspection. OAG 83-248 .

The State Board of Accountancy is a public agency pursuant to subsection (1) of this section. OAG 83-308 .

The Department of Corrections (now Corrections Cabinet) is a public agency as defined by subdivision (1) of this section; therefore the records prepared, owned, used, or in possession of the Department of Corrections are public records pursuant to subdivision (2) of this section and are open to public inspection unless exempted under KRS 61.878 . OAG 83-313 ; 83-337.

As a public agency pursuant to subdivision (1) of this section, the documentary materials prepared by the Kentucky Department of Labor (now Labor Cabinet) are public records under subdivision (2) of this section and are open to public inspection unless exempted under KRS 61.878 . OAG 83-326 .

Audit reports are exempt from public inspection when there is a possibility of prospective law enforcement action or administrative adjudication; after the law enforcement action or administrative adjudication is complete or a decision is made to take no action, the final audit is open to public inspection. OAG 83-326 .

Requested documents concerning change of control of several banks were federal documents filed with the Department of Banking and Securities (now Department of Financial Institutions) by federal regulatory agencies and, therefore, the Department of Banking and Securities was just the casual possessor, not the official custodian, of these documents which were still possessed by the federal agencies; the “official custodian” is the proper official to make decisions on policy concerning the release of records and, accordingly, the Department acted properly in denying request for such records and notifying requester of the official custodians with whom he could file a Freedom of Information Act request. OAG 83-342 .

A county ambulance service was a public agency pursuant to subsection (1) of this section since it was created and budgeted by the county fiscal court; therefore, the records prepared by the ambulance service were public records pursuant to subsection (2) of this section and open to public inspection unless exempted. OAG 83-344 .

A decision rendered by referee for unemployment compensation division was a public record under subdivision (2) of this section, and thus open to public inspection unless exempted by KRS 61.878 ; since the referee’s decision was evidence of a final action by the agency, the exemptions of KRS 61.878 did not apply. OAG 83-352 .

Where report was requested by the county judge/executive in order to investigate alleged misuse of county road equipment by an elected magistrate, KRS 61.878(1)(h) would apply to exempt the document from public inspection since the report was not indicative of any final action taken by the fiscal court and as such was preliminary; at most, the report could merely be preliminary memoranda gathered by the county attorney in his investigation. OAG 83-469 .

Since a report concerning investigation of alleged misuse of county equipment, which was made at the request of the county judge/executive, was documentary material in the possession of a public agency, it was a “public record” under subdivision (2) of this section and open to public inspection unless exempted pursuant to KRS 61.878(1). OAG 83-469 .

A fiscal court is a “public agency” pursuant to subdivision (1) of this section and subject to the Open Records Law. OAG 83-469 .

Absentee ballots and applications are public records open to public inspection while in the custody of the circuit clerk; however, pursuant to KRS 30A.080(3) restricting the removal of public records from the circuit clerk’s office, removal may only be gained by court order. OAG 83-476 .

Absentee ballots and applications which were in the custody of the circuit clerk pending an election contest suit were “public records” in the possession of a “public agency” pursuant to KRS 61.870 and open to public inspection while in the clerk’s custody. OAG 83-476 .

Photographs belonging to defendant which were in custody of police officer were subject to the Open Records Law as they fell under the definition of a “public record” in subdivision (2) of this section. OAG 84-178 .

A city budget is a public record under this section and is thus open to public inspection; current budgets are required to be published pursuant to KRS 424.240 . Previous budgets and current budgets are both open to public inspection, as previous budgets have lost any “preliminary” quality by being closed and current budgets are “working” budgets indicative of final action; for the same reasons, the budget ordinances of the city would also be open to inspection. OAG 84-217 .

A nonprofit corporation which was formed pursuant to KRS Ch. 273 for the purpose of community development through making loans to small businesses, and which received no funds from state or local authority was not a public agency and thus was not subject to the Open Records or the Open Meetings laws. OAG 84-237 .

The coroner’s records are public records, as defined in subsections (1) and (2) of this section. OAG 84-246 .

A city-county human rights commission created under KRS 344.310 is a “public agency” as that term is defined in subsection (1) of this section. OAG 84-376 .

A request to inspect public records under the Open Records Law was properly denied to the extent that the request related to documents of the Kentucky Educational Foundation, Inc., as the Foundation is not a public agency and does not appear to derive at least 25% of its funds from state or local authority; however, the request to inspect public records was improperly denied to the extent that the request related to records of the State Department of Education concerning the actual contributions, expenditures and services rendered by the Department to the Kentucky Educational Foundation, Inc. OAG 84-382 .

The signature log of employees and visitors eating meals in the Kentucky State Penitentiary facilities, which the Corrections Cabinet’s policies and procedures document requires each institution to maintain, is a public record, and furthermore, the list of meal tickets sold is a public record, as the Cabinet’s policies and procedures document requires employees and visitors to purchase a meal ticket for each meal eaten in the Cabinet facilities. Thus, the denial of a request to inspect the list of meal tickets was improper and in violation of the Open Records Act. OAG 85-89 .

Since a school district is a public agency under the Open Records Law and the certificates required by KRS 161.020 are public records as defined in Subsection (2) of this section, denial of a request to inspect the certificates required by KRS 161.020 to be filed with the Board of Education was improper under the Open Records Law, except that information, if any, on the certificates of a personal nature, such as social security numbers, home addresses and telephone numbers, need not be released. OAG 85-109 .

A requesting party cannot be required to state or verify why he needs to inspect and copy public records. OAG 85-120 .

The Kentucky Open Records Act does not require that a requesting party state the reason for his request to inspect or copy public records. OAG 85-120 .

The Personnel Board improperly denied the request, made under the Open Records Act, to the Board to inspect and copy the hearing tapes of a hearing conducted by the Board, to the extent that the request was made after the hearing tapes had been submitted to the Board pursuant to its regulations and while those tapes were in the possession of or retained by the Board. OAG 86-15 .

KRS 61.835 provides that a city is required to accurately record the minutes of all of its meetings and make such records available for public inspection; if a city does not do this, then it has violated the provisions of KRS 61.835 and the provisions of the Open Records Act since the council minutes are public records under subsection (2) of this section. OAG 86-20 .

The public agency’s actions in not making public records available for public inspection on the grounds that the documents could not be found and that the request for other records was vague and imprecise were proper responses and actions under the terms and provisions of the Open Records Act. OAG 86-65 .

The school system improperly denied the applicant-teacher’s request for a copy of that portion of a tape containing the applicant-teacher’s answers to questions propounded by the school system, the questions having been asked as part of the school system’s teacher selection process. OAG 87-56 .

The tapes of the hearing concerning a teacher contract termination proceeding conducted pursuant to KRS 161.790 were available for public inspection under the Open Records Law even though the tapes were in the possession of the reporter-transcriber rather than the Board of Education, as the teacher requested a public hearing and the matter had not reached the courts. OAG 87-62 .

While there is no specific provision in the Open Records Act requiring that information pertaining to ambulance reports be kept confidential, there is a provision that a public agency need not permit the inspection of documents if to do so would involve the unwarranted invasion of a person’s privacy. OAG 88-42 .

A university’s copy of a letter from the National Collegiate Athletic Association (NCAA) addressed to counsel representing the University’s assistant coach was a public record subject to public inspection unless one of the exceptions to public inspections could be properly invoked. OAG 88-47 .

Where the private college did not receive any grants or loans from the Higher Education Assistance Authority, there was no evidence that the college was a “public agency” within the meaning of subdivision (1) of KRS 61.870 , and the college properly denied the request to inspect its records and documents as it was not subject to the terms and provisions of the Open Records Act. OAG 88-61 .

A water works company of which a city is the sole shareholder is a public agency within the meaning of subdivision (1) of this section. OAG 88-72 .

If records, though regarding private donations and disbursements, are in the possession of or retained by a state agency, they are, in general, subject to inspection; the open records statutes, however, do not require state personnel to identify private entities that might have records regarding private donations and expenditures from such donations; thus, to the extent agencies have allowed inspection of (or provided) records that they had possession of or retained, and truthfully indicated that they do not have certain records sought by the requests, they have substantially complied with the open records statutes. OAG 89-7 .

A public agency is not required to disseminate, to the public, records which a court has placed under a seal of confidentiality when the person requesting such records was not a party to the litigation. OAG 89-22 .

Kentucky’s Open Records laws do not empower the attorney general’s office to order creation of records, nor do those laws require agencies to create records, e.g., resumes, written recollections, etc. OAG 89-32 .

Where there was a request (and a supplement thereto) for certain records, and the agency promptly responded to the request(s), indicating in substance that records sought by the request(s) did not exist, this office must accept as truthful, absent clear evidence to the contrary, an agency’s response that records of the type requested do not exist. OAG 89-32 .

Records related to an official trust account, such as one maintained for receipt of bail bonds, are clearly related to functions — operation of the bonding program — funded by state or local authority. Checks drawn on a publicly owned account do not take on a private character because they were used for a private purpose. Records of the account, including checks drawn thereon, are public records within the meaning of subdivision (2) of this section. OAG 89-35 .

A county property valuation administrator failed to act consistently with the provisions of KRS 61.870 to 61.884 in failing to respond in writing to a verbal request for access to records, and in responding to a written request by forwarding it to another agency. OAG 89-40 .

A request to provide addresses of individuals for whom the requestor had names and social security numbers was a request for research to be performed, rather than for inspection of reasonably identified public records. Open records provisions do not require public agencies to carry out research or compile information to conform to a given request. OAG 89-45 .

Because it derives at least 25 percent of its funds from local authority, West Lincoln County Emergency Medical Services, Inc., a nonprofit corporation, is subject to provisions of Kentucky’s Open Records Laws. OAG 89-46 .

A bond instrument, or copy thereof, in the hands of the clerk, and any entries or recordations in such regard, e.g., in an “order book,” or “miscellaneous bonds” book, are recognized as being subject to public inspection. No exception set forth in Open Records provisions would support a denial of inspection of records of this type. No court order for inspection is required. OAG 89-47 .

The Elizabethtown Airport Board is a public agency subject to Open Records provisions. OAG 89-53 .

The Pike County Correctional Facilities Corporation is an instrumentality of the fiscal court, and thus is a public agency subject to Open Records provisions within the meaning of subdivision (1) of this section. OAG 89-55 .

Records held by a private entity are beyond the reach of Open Records provisions. OAG 89-55 .

The purpose of the Open Records Law is not to provide information but to provide access to public records not exempted from inspection by law. OAG 89-61 .

Open Records provisions do not empower the Attorney General to order an agency to provide information or prepare records that contain information that perhaps should appear on records sought. OAG 89-66 .

The Property Valuation Administrator, and the office thereof, is a public agency within the meaning of subdivision (1) of this section, and is thus subject to Open Records provisions. OAG 89-66 .

The Kentucky State University Foundation, Inc., is a recognized fund-raising instrumentality of Kentucky State University, and is thus an “agency thereof,” within the meaning of subdivision (1) of this section. OAG 89-92 .

Tape recordings of board of education meetings were public records within the meaning of this section, although inspection thereof could be denied on the ground that the recordings were preliminary drafts regarding preparation of the official minutes, as inspection of preliminary drafts may be denied pursuant to KRS 61.878(1)(g). OAG 89-93 .

As court records are outside the purview of Open Records provisions, the Circuit Court clerk did not act other than consistently with Open Records provisions refusing to furnish copies of certain court records to a penitentiary inmate who requested the same. OAG 90-4 .

Where city manager’s response on behalf of city to request to inspect all documents relating to settlement of legal action against city addressed only records in the possession of the city manager, and not the city as an agency, the response was not consistent with Open Records provisions, and in particular, KRS 61.880(1). OAG 90-36 .

Because an ambulance service received over 25% of its funds from “local authority,” it was a public agency for purposes of the Open Records Act and must comply with act’s requirements. OAG 90-59 .

The request for information to indicate when the Commonwealth’s Attorney’s office first became involved in a particular case was a request for information and not a request for documents as contemplated under the Open Records Act. OAG 90-77 .

Local law enforcement agencies are required to make available for public inspection the arrest records of all persons, and police departments are required to maintain daily logs of arrests made by police officers and to make them available for public inspection; no provision in the Domestic Violence and Abuse Act makes arrest records and incident reports confidential. OAG 91-12 .

While reporters are entitled to inspect the arrest records and incident reports, the public agency is not required to compile the material in a list form nor is it required to make available the material on diskettes or tapes if it already does not exist in that format; basically, what the public gets is what the agency has and in the format in which the agency has it. OAG 91-12 .

A public agency cannot provide records which have been reviewed by public officials and returned to the private individuals; such records would have to be obtained from the individuals involved because obviously a public agency cannot furnish access to documents for which the public agency no longer has custody. OAG 91-15 .

Records maintained by individuals related to the financial operations of the city’s golf courses that pertain to concession monies collected, for which the city gets no percentage, are not open records, but records of monies received by the city for green fees are records open for inspection. OAG 91-15 .

Where an Alderman requested that some or all of the five city golf professionals permit inspection of certain financial records and there was no indication that this request was authorized by a majority of the Board of Aldermen while in session, the records which these golf professionals voluntarily provided to the Alderman in his individual capacity does not constitute “use” of records by the City of Louisville; even if the Alderman were acting in his official capacity on behalf of the Board of Aldermen, the financial records voluntarily produced for review by an individual and then returned to that individual are not converted into “public records.” OAG 91-15 .

Under the Kentucky Open Records Act, a public agency is not required to create a document which does not already exist, so where an agency refuses to disclose a written settlement agreement not yet prepared, there is no violation of the Kentucky Open Records Act yet. OAG 91-20 .

Both microfiche copies and index books of the Kentucky Register of Births & Deaths are public records under subsection (2) of this section and are available for public inspection under KRS 61.872(1) and 213.131(2) and (3); and since the Register has been available for public inspection for many years, the new legislation somewhat limiting public access to vital records, does not in any way make confidential records which have been open to the public for such a lengthy period of time. OAG 91-25 .

If a state employee makes an unlawful disclosure of confidential birth records, for the Cabinet of Human Resources to be liable for such disclosure the aggrieved party would have to prove that the Commonwealth or its agent was negligent. OAG 91-25 .

The fact that sets of the Register of Births and Deaths are presently available for public inspection would not violate any Kentucky statutes, simply because at the time the Register was published the information contained in the Register was not confidential, and the Cabinet of Human Resources had no affirmative duty to restrict public access to the information. OAG 91-25 .

The most recent index book of Births and Deaths published by the Cabinet bears the date of 1969, and under the authority of KRS 44.110 , an alleged injury resulting from the release of birth records would have occurred at the moment the record was released for public inspection and under the applicable statute of limitations for negligence cases against the Commonwealth or its agents, an action for damages cannot be brought if more than two years has elapsed from the date of the alleged negligent act; therefore, the Cabinet is not liable for divulging information that has been available for public inspection for at least twenty-one (21) years. OAG 91-25 .

The custody and control of records maintained by the Judicial Retirement and Removal Commission, including those containing the names of the members of the commission who heard requestor’s complaints, is vested in the Supreme Court. Accordingly, if a requestor is aggrieved by the denial of a record generated by the court, or an agency of the court, he must take his appeal to the Chief Justice. OAG 91-45 .

The Judicial Retirement and Removal Commission is a quasi-judicial body expressly exempted from the provisions of the Open Meetings Act and is not bound by KRS 61.835 , which requires disclosure of the minutes of meetings held by public agencies. OAG 91-45 .

The Open Records Act does not apply generally to records generated by the Judicial Retirement and Removal Commission inasmuch as the commission is an agency of the Court of Justice, created under authority of the Kentucky Constitution and Supreme Court Rule; records of the court and agencies of the court enjoy a special status and are placed under the exclusive jurisdiction of the Court of Justice pursuant to KRS 26A.200 and KRS 26A.220. OAG 91-45 .

Inasmuch as the Kentucky Bar Association and the Board of Bar Examiners are creatures of the court and the constitution, and not statutory creatures, they are not subject to the Open Records Act, and cannot be considered “public agencies” within the meaning of the act; if a requesting party is aggrieved by denial of a record maintained by the court, or an agency of the court, they must take their appeal to the Chief Justice. OAG 91-47 .

The Kentucky Bar Association is not a “public agency” within the meaning of the Open Records Act. OAG 91-47 .

Although marina management services is a private corporation, and not a “public agency” within the meaning of subsection (1) of this section, its records are “public records” within the meaning of subsection (2) of this section to the extent that they are transmitted to, and retained by, the Department of Parks, and since under subsection (2) of this section the term “public record” includes records that are prepared, owned, used, in the possession of or retained by a public agency if records of private entities or agents are in the possession of or retained by a state agency, they are, in general, subject to inspection. If the records are not retained by a public agency, on the other hand, they are private records and are therefore beyond the reach of the Open Records Act. OAG 91-72 .

While an agency must release public records stored on a database, subject to the exceptions codified at KRS 61.878(1)(a) through (j), if requested for a noncommercial purpose, it may, in its discretion, withhold the same records if requested for a commercial purpose. OAG 91-116 .

Clearly, the Open Records Act in no way supersedes a protective order entered by a court of competent jurisdiction when a public agency is properly before that court as a party to the litigation. Indeed, the entry of a protective order removes a document within its terms from the application of the Act; that order is not less valid because it was entered into by agreement of the parties. OAG 91-121 .

Where county airport board entered into agreement with Delta to build a terminal and issued special facilities revenue bonds to finance the project, records of the project manager hired by Delta were excluded from the application of this section. OAG 91-184 .

Tax maps, mapping cards, and property assessment cards are “public records,” within the meaning of subsection (2) of this section and should be made available for review; however, certain information contained in these documents may be exempt pursuant to KRS 61.878(1)(a). OAG 92-30 .

Kentucky Revised Statutes 61.870 , et seq., contemplates the appointment of an official custodian of records to whom all requests are directed for proper disposition; it is imperative that every employee of the Kentucky State Penitentiary acknowledge the authority of the offender records specialist in handling these requests. OAG 92-31 .

Where the Western Kentucky Corrections Complex Grievance Coordinator’s response to an open records request by an inmate did not constitute final agency action, inasmuch as it was not issued by the official custodian or under her authority, the inmate’s appeal was not ripe for review by the Attorney General. OAG 92-51 .

The Interfraternity and Panhellenic Councils at Eastern Kentucky University may be deemed “public agencies” for purposes of the Open Records Act, only if they derive at least 25% of their funds from state or local authority; the term “funds” refers to a sum or sums of money and while it is true that the Interfraternity and Panhellenic Councils derive an appreciable benefit from the University this benefit cannot be quantified, or otherwise translated into a monetary figure; therefore the Interfraternity and Panhellenic Councils are not public agencies within the meaning of KRS 61.870 , et seq. and are not public agencies within the meaning of, or subject to, the Open Meetings Law. OAG 92-62 .

Where records are kept on file in the City Clerk’s office under the terms of lease agreements, and are possessed and retained by that public agency, they must be considered public records for the purposes of the Open Records Act. OAG 92-66 .

The definition of “public record” clearly embraces a taped interview between an inmate and a prison officer. OAG 92-109 .

A tape recording of a public meeting falls within the definition of a “public record” and must also be treated as a public record if the tape is prepared, owned, used, or in the possession of a public agency, and is made at the direction of the agency. OAG 92-111 .

Minutes of a meeting of a public agency are public records within the meaning of this section. OAG 92-111 .

Medicare and Medicaid funds do not constitute “state or local authority funds” in determining whether a body receives 25% or more of its funds from public coffers as provided in subdivision (1)(h) of this section in determining if a body is a public agency. OAG 93-ORD-90.

University Diagnostic Imaging Associates, P.S.C., was not a “public agency” within the meaning of subsection (1) of this section, and was therefore not subject to the Open Records Law. OAG 93-ORD-90.

Since the Kentucky association of counties derives at least 25% of its funds expended by it in the Commonwealth from state or local authority funds, it is a “public agency” for purposes of the Open Records Act and is subject to KRS 61.872(5), relating to timely access to public records, as well as the other provisions of the Act. OAG 93-ORD-96.

By the express terms of subsection (3) of KRS 341.281 and subdivision (1)(k) of this section the KACo Unemployment Insurance Fund is a public agency, and is therefore subject to the Open Records Act. OAG 93-65 .

The KACo Reinsurance Trust Program (KRT) is an interagency body of two (2) or more public agencies within the meaning of sudivision (1)(k) of this section and is therefore subject to the Open Records Act. OAG 93-65 .

The Commissioner of Insurance acting as a rehabilitator of an insurance company is a public agency within the meaning of this section and documents which disclose the names of corporations or individuals who submitted bids for insurance company under KRS 304.33-010 et seq. are public records of a public agency and are not excluded from public inspection under subdivision (1)(h) of KRS 61.878 and thus are subject to disclosure. OAG 93-ORD-113.

Since records of the court are not governed by the Open Records Act and as a jury list is a court record, jury lists are not subject to inspection under the Open Records Act. OAG 93-ORD-122.

Records which were properly destroyed and therefore no longer available cannot be the subject of inspection under the Open Records Act. OAG 93-ORD-122.

Third party administrators of programs operating under the Kentucky Association of Counties (KACo) umbrella, Governmental Services, Inc., KACo Administrative Services, Inc., and Kentucky Risk Insurance Services, Inc., were “public agencies” as defined in subsection (1) of this section since each satisfied the 25% public funding threshold. Selective Mangagement Services, Inc., and Multi-Benefits Systems, Inc., could not be characterized as “public agencies” since neither derived 25% or more of its funds from state or local authority funds. OAG 93-78 .

Records which are prepared, owned, used, in the possession of or retained by the Commissioner of Insurance must be treated as “public records” as defined in subsection (2) of this section. OAG 93-ORD-139.

Since the general counsel of Department of Insurance represents the Commissioner of Insurance as rehabilitator and outside attorneys appointed by the court also represent the Commissioner as the rehabilitator, each represents the same client, and confidential communications between them made for the purpose of facilitating the rendition of professional legal services are protected from disclosure by attorney client privilege; therefore, the Department of Insurance properly denied request of newspaper reporter for correspondence between general counsel of Department and outside counsel since the documents requested were protected from disclosure by the attorney client privilege of KRE Rule 503 and were therefore exempt from public inspection under subdivision (1) (k) of KRS 61.878 . OAG 93-ORD-139.

Since the Open Records Act does not regulate management practices of keeping public records and since the Attorney General’s decisions are limited to whether a requested document is in the possession of a public agency and whether such document is subject to public inspection, the request that university, in not identifying one person as the official custodian in charge of enforcing proper records keeping practices, be charged with violating the Open Records Act, as well as the request for provision of a copy of the contract of the person thought to be the official custodian of the university’s records, were denied. OAG 94-ORD-8.

The Governmental Services Corporation (GSC) is a public agency for purposes of the Open Records Act. (Affirming OAG 93-78 ). OAG 94-ORD-13.

Subdivision (1) (h) of this section does not require that in order to be characterized as a public agency, for Open Records purposes, an entity be both created by state or local authority, and receive at least 25% of its funds from that state or local authority. OAG 94-ORD-13.

The terms “public agency” and “state or local authority” as used in this section are synonymous. OAG 94-ORD-13.

Since the Workers’ Compensation Board is a public agency as defined in subdivision (1) (b) of this section, KACo-KLC, which owes its existence to the Board and the Board continues to regulate or control it, is also a public agency within the meaning of subdivision (1) (j) of this section. OAG 94-ORD-13.

Documents reflecting the identities of corporations and/or individuals who submitted bids for insurance company being rehabilitated or its subsidiaries are public records subject to disclosure under the Open Records Act. OAG 94-ORD-102.

Records containing contents of bids submitted for purchase of insurance company being rehabilitated are public records, within the meaning of subsection (2) of this section, for the same reasons that documents revealing the identities of bidders are public records; specifically, the bids are used in the possession of or retained by a public agency, the Commissioner of the Department of Insurance, in his role as Rehabilitator, and in the discharge of his duties, relative to the bidding process. OAG 94-ORD-102.

Examination reports of insurance company undergoing rehabilitation were public records, within the meaning of subsection (2) of this section, insofar as they were prepared, owned, used, in the possession of or retained by a public agency. Moreover, those portions of the examination report showing the insurer’s current financial condition are subject to inspection under the Open Records Act. OAG 94-ORD-102.

Appraisals conducted on behalf of the Department of Insurance relative to its examination of an insurance company undergoing rehabilitation are public records within the meaning of subsection (2) of this section because they are prepared, owned, used, in the possession of or retained by a public agency. Although such appraisals are clearly a part of the examination report, and subject to the confidentiality provision found at KRS 304.2-270 , the appraisals, like the comparative financial statements which supplement the Statement of Financial Condition, relate to the insurer’s current financial condition, and must be disclosed. OAG 94-ORD-102.

Handwritten notes taken by a public employee in the discharge of his public duties may properly be treated as public records. While in most instances, such notes would be excluded from public inspection by operation of KRS 61.878(1)(h), KRS 61.878(3) mandates the release of “any record including preliminary and other supporting documentation” to a public employee, including a university employee, upon request, as long as those records “relate to him.” OAG 94-ORD-108.

County board of education did not violate the provisions of the Open Records Act by failing to afford access to teacher evaluations of cheerleading tryouts where those records had “disappeared,” insofar as county board could not make available records which have disappeared or otherwise do not exist. OAG 94-ORD-142.

Commercial use of public records is consistent with the spirit of the Open Records Act. OAG 95-ORD-12.

Where an employee of the Lottery Corporation denied an open records request with only a vague reference to “certain proprietary information” and without any further explanation of how the exceptions of KRS 61.880(1) applied to the withheld information, the Lottery Corporation failed to meet its statutory burden of proof. OAG 95-ORD-27.

Where the University’s official custodian of records failed to cite any of the “exceptions” to the general rule, found at KRS 61.872(4), (5), and (6), the University was obligated to physically retrieve and make available for inspection and for copying those specifically identified requested public records that were housed in a separate location. OAG 95-ORD-52.

Where a private investigator, who was retained by a driver involved in an accident to locate the other driver involved in the collision, requested copies of motor vehicle registration records and records reflecting insurance coverage, the Transportation Cabinet did not violate the Open Records Act by partially denying the private investigator’s commercial request since the strong privacy interest outweighed the nominal public interest which would be served by disclosing the owner’s address, birthdate and social security number. OAG 95-ORD-151.

The Jefferson County Department of Animal Control did not violate the provisions of the Open Records Act by denying attorney’s request for animal licensure records, where the records were to be used for mail solicitation, a commercial purpose, and not for the purpose of exposing public agency to public scrutiny, which is fundamental to the Act, and where disclosure of the information contained in these records would constitute a clearly unwarranted invasion of personal privacy. OAG 95-ORD-153.

Records of transcripts, tapes and completed interview questionnaires generated by a study of the Revenue Commission that were not prepared, owned, used, or in possession of the City of Louisville could not be characterized as public records for purposes of the Open Records Act; thus, the City’s denial of a request for access to these records on the grounds that they were not public records was consistent with the Open Records Act. OAG 95-ORD-156.

County public schools system properly relied upon KRS 61.878(1)(a) in denying newspaper reporter’s request for information as to each individual employee’s race and gender. Providing the requester with alternative information, through a computer printout, as to the specific number of employees at each location which included personnel totals by race and sex broken down by schools, salaried employees and hourly employees met the principal purpose of the Open Records Act. This alternative information allowed the citizen to monitor the functioning and operations of the public agency and to be informed as to what their government was doing. OAG 96-ORD-232.

The Legislative Research Commission (LRC) violated the Open Records Act in denying newspaper access to a search warrant issued by a federal court and executed by a federal agency relating to an LRC employee and travels of state legislators. The search warrant was a “public record” for purposes of Kentucky’s Open Records Act and it has never been held that a public agency can rely on an exemption under the federal Freedom of Information Act, the federal Privacy Act, or a federal regulation applicable to the United States Department of Justice as an exception under KRS 61.878(1)(k). 96-ORD-244.

City police division did not have to respond to newspaper’s request to obtain copies of all traffic accident reports within the jurisdiction on a weekly basis. Although traffic accident reports prepared by law enforcement officers pursuant to KRS 189.635 are not confidential and are open records, the right to inspect public records attaches only after those records have been “prepared, owned, used, in the possession of or retained by a public agency.” No such right attaches for records which have not yet come into existence. The Open Records Act governs access to existing public records, not to prospective requests. City can require newspaper to submit a new application each time copies of records are requested and city need only honor requests for existing records. OAG 97-ORD-18.

Kentucky Employers’ Mutual Insurance Authority is a public agency, as that term is defined in subdivisions (1)(b), (f), and (i) of this section, and its records must be made available to the public unless excluded from inspection by one or more of the exceptions codified at KRS 61.878(1)(a) through (l). OAG 97-ORD-66.

Kentucky Employers’ Mutual Insurance Authority is a public agency, as defined in KRS subdivisions (1)(b), (f), and (i) of this section, and its records are public records, as defined in subsection (2) and its operational records, including its personnel handbook, documents reflecting hotel and car rental reservations, leases, contracts for public relations or advertising services, financial audits, travel agency invoices, and contracts and billing records for its attorneys do not qualify for exemption under KRS 61.878(1)(a) and these records must be released; however, with respect to employee personnel files, records unrelated to public employment which are found in those files are excluded from public inspection by KRS 61.878(1)(a) and because both exempt and nonexempt records are commingled in those files, it is incumbent on requester to specifically identify the personnel records he wishes to inspect. OAG 97-ORD-66.

The obvious purpose of the 1992 amendment to KRS 61.878(3) was to broaden the scope of the provision to insure that all public employees, not just state employees governed by KRS Chapter 18A, enjoyed an equal right of access to records relating to them. An interpretation of this provision which does not include former public employees is clearly inconsistent with the natural and harmonious reading of this section considering the overall purpose of the Open Records Act. 97-ORD-87.

As a precondition to inspection, a requesting party must identify with “reasonable particularity” those documents he wishes to review; where inmate requested “all copies” of records in specified classes, his complaint that he received and was charged for records he did not request was unfounded; the proper alternative would be for him to review the records and indicate the exact ones desired. OAG 98-ORD-88.

The General Assembly did not exclude itself from the Open Records Act, but made the Act binding upon itself by defining the term public agency to include “any body created by state or local authority in any branch of government”; the General Assembly is created by the legislative branch of the government, and as there is no reasonable basis for excluding it from the definition of a public agency, its records are subject to public inspection unless otherwise exempt pursuant to KRS 61.878(1)(a) though (l). OAG 98-ORD-92.

The policy of a county 911 center to defer requests for audiotapes of telephone calls to the responding agency was improper as the 911 center was itself a public agency and, therefore, it was required itself to respond to such requests; however, the 911 center could consult with the responding agency before replying to such a request. OAG 99-ORD-10.

It is incumbent on all public agencies to designate an employee to fill the role of official custodian and to adopt and post rules and regulations identifying that employee as official custodian so that open records requests can be directed to him for processing and final agency action; if he does not have custody or control of the public record requested, he must notify the requester and furnish the name and location of the official custodian of those records. OAG 99-ORD-30.

The denial by a training center of an open records request for a copy of Kentucky statutes and a case from the Supreme Court Reporter, both of which were available in the institution’s law library, was not a violation of the Open Records Act as such items were not “public records” subject to the act. OAG 99-ORD 35.

A privately owned corporation which had the contract to administer the vehicle emission testing program in a county failed to establish what percentage of the funds it expended in the Commonwealth were derived from the county testing program and, thus, failed to substantiate that it was not a “public agency” as defined in subsection (1)(h) and exempt from application of the Open Records Act. OAG 99-ORD-41.

Even if a privately owned corporation which had the contract to administer the vehicle emission testing program in a county was a “public agency” as defined in subsection (1)(h), the salaries of its highest ranking directors were not subject to disclosure as such information was not directly related to the vehicle testing service which the corporation performed in the county. OAG 99-ORD-41.

The Kentucky Correctional Psychiatric Center properly denied a request for a copy of the court ordered evaluation of the requester to determine his competency to stand trial where the court which ordered the evaluation directed that a copy of the report be given to the Commonwealth’s Attorney and to the requester’s defense counsel, but did not specify that the requester be given a copy of the report; although the evaluation was a “public record” within the meaning of subsection (2), because it was a record which was prepared and retained by a public agency, the court’s order removed it from the application of the act. OAG 99-ORD-109.

Audio recordings and handwritten notes of private investigators hired by the Kentucky Board of Psychology did not constitute public records where those recordings and notes were not in the possession of the board nor relied upon by the board in its final actions against the psychologists under investigation. OAG 99-ORD-156.

The statutes and Supreme Court Reporter case law in an inmate law library are publications or library reference materials rather than records which reflect the daily functioning, programs, and operations of the correctional facility or the Department of Corrections and, therefore, are not public records subject to the provisions of the Open Records Act. OAG 99-ORD-181.

The Finance and Administration Cabinet did not violate the Open Records Act in partially denying a reporter’s request to inspect invoices or correspondence received by the cabinet related to the renovation and landscaping of the home of the Kentucky State University President and all bids received by the cabinet regarding the renovation project as the disputed records, namely records reflecting the cost of individual items, including but not limited to subcontractor invoices, were not prepared, owned, used, in the possession of, or retained by the cabinet. OAG 99-ORD-202.

A volunteer fire and rescue department was not a public agency within the meaning of the statute and, therefore, its records were not subject to public inspection as it received little or no funds from state or local governments. OAG 99-ORD-208.

Three (3) corporations were not public agencies within the meaning of the statute where none of the corporations derived at least 25% of the funds expended by it in the state from state or local funds. OAG 99-ORD-216.

An agreement reached between a school district and a former employee was a public record, notwithstanding the “limited” role that the school district played in negotiating the terms of the agreement, as there was no doubt that it was a party to the agreement and that the agreement was owned, used, in the possession of or retained by the school district. OAG 00-ORD-5.

A county public defender corporation was a public agency for purposes of the statute, notwithstanding that it was a private corporation, as it received more than 25 percent of its funds from state or local authority. OAG 00-ORD-6.

The question of whether a corporation is a public or private corporation for purposes of a NLRB proceeding is not relevant to the issue of whether the organization is a public agency subject to the application of the Open Records Act. OAG 00-ORD-6.

An eighty-four (84) page document prepared by a consultant for a university board of regents, which evaluated the president of the university, was a public record within the meaning of the statute as it was owned, used, and in the possession of a public agency. OAG 00-ORD-46.

An agency may properly require all records requests to be routed through its official custodian to ensure the timely and orderly processing of open records requests. OAG 00-ORD-73.

The Ephraim McDowell Regional Medical Center is not a public agency for purposes of the Open Records Act as the center is a private nonprofit corporation and Medicare and Medicaid funds do not constitute “state or local funds” in determining whether an entity receives 25% or more of its funds from public coffers. OAG 00-ORD-91.

A volunteer fire department was a public agency for open records purposes because it received 25 percent or more of its funds from state or local authority funds. OAG 00-ORD-93.

The state penitentiary did not violate the Open Records Act when it denied a request by an inmate for a lateral view x-ray of his wrist based on the nonavailability of the record. OAG 00-ORD-120.

The Transportation Cabinet did not violate the Open Records Act by denying a request for information pertaining to vehicles and officers assigned to enforcement details in a particular county where the Division of Motor Vehicle Enforcement did not maintain such records. OAG 00-ORD-121.

A police department did not violate the Open Records Act by denying a request for a “dash cam videotape” of a particular pursuit where the videotape no longer existed. OAG 00-ORD-122.

A correctional complex properly denied an inmate’s request for records pertaining to information gathered from the records of an inmate and through direct questioning prior to his release and provided to Kentucky State Police as it constituted a request for research to be performed, rather than a request for inspection of reasonably identified public records, and as the records did not pertain to the inmate. OAG 00-ORD-130.

The Department of Corrections properly denied a request by an inmate for any information or document regarding whether he fell under specified bills as such was a request for information, rather than a specifically identified record. OAG 00-ORD-131.

The Department of Local Government properly denied a request for identified e-mails where the e-mails had been deleted by the user and backups had already been deleted. OAG 00-ORD-132.

The Office of the Attorney General did not violate the Open Records Act in responding to a request for information relating to “eavesdropping guidelines” as such request was, in reality, a request for research as opposed to a request for precisely described public records. OAG 00-ORD-176.

Computerized criminal record data maintained by the Department of Corrections was a public record, notwithstanding the contention of the department that such data was not related to its functions, activities, programs, or operations. OAG 00-ORD-206.

A city was required to disclose records relating to the settlement of a lawsuit against the city, notwithstanding its contention that it did not have any such records and that the records were in the possession of its insurance carrier, as the insurance carrier held the settlement agreement at the instance of and as custodian on the city’s behalf. OAG 00-ORD-207.

Once in the possession of the Department of Military Affairs, the investigative report generated by Criminal Investigations Division of the United States Department of Defense becomes a public record for purposes of the Open Records Act, notwithstanding the fact that it originated in a federal agency. OAG 01-ORD-59.

Because teacher council member election records are scheduled public records for purposes of records retention and management, the school’s inability to produce these records for inspection and copying because it does not maintain them constituted a subversion of the intent of both the Open Records Act and the State Archive and Records Act. OAG 01-ORD-94.

Experian, NCAC, a national consumer credit bureau and credit reporting service that provides individuals with copies of their personal credit reports, is a private corporation that does not fall within the definition of “public agency,” as defined by KRS 61.870(1), and, thus, is not subject to the provisions of the Open Records Act. OAG 01-ORD-134.

Since the city clerk purchased the audiotape with her own money, and was not directed by the city to tape the meeting, the audiotape is not a public record within the meaning of KRS 61.870(2). OAG 01-ORD-167.

The Office of United States Marshals Service, as a federal agency, is not subject to the provisions of the Kentucky Open Records Act. OAG 02-ORD-43.

A request submitted by an individual acting on behalf of a political candidate, whether paid or unpaid, cannot be characterized as a request submitted for a commercial purpose. OAG 02-ORD-89.

The Open Records Act does not require the Department to obtain itemized billing records from its cell phone provider listing the individual calls. OAG 02-ORD-164.

Records pertaining to honorary deputy sheriffs are public records insofar as they are “prepared, owned, used, in the possession of or retained by a public agency” and notwithstanding the fact that the honorary post does not owe its existence to statute or regulation. Although honorary deputies possess no actual authority, the apparent authority that the title arguably carries, and the privileges that might be procured by virtue of the title, make their identities a matter of legitimate public concern. Accordingly, OAG 76-655 is overruled. OAG 02-ORD-175.

Appointment of a special deputy under either KRS 70.045(1) or (2) is clearly an official function of the sheriff’s office and one in which the public has a legitimate interest. Accordingly, the Sheriff’s reliance on OAG 76-655 as the basis for denying access to records containing information relating to past and present special deputies is misplaced. Although the Sheriff may withhold certain personal information relating to the special deputies, including home addresses and social security numbers, records containing the information sought are public records within the meaning of KRS 61.870(2). OAG 02-ORD-175.

Since a newspaper’s use of a public record is specifically excluded from the definition of “commercial purpose,” it cannot be required to state whether or not its request is for such purpose. Accordingly, requiring such a statement before processing the newspaper’s open records request constitutes a violation of the Open Records Act. OAG 02-ORD-198.

Seven Counties Services, Inc., although it is organized as a private nonprofit corporation as provided for in KRS 210.370 , is not the same as a private healthcare facility, but is instead a facility operating under the comprehensive scheme of legislation embodied in KRS Chapter 210. The monies it derives from the Cabinet do not represent claims payment or fees for services that can properly be analogized to Medicaid or Medicare claims submitted by private healthcare providers; because it derives more than twenty-five percent (25%) of the funds it expends in the Commonwealth from state or local authority funds, Seven Counties is a public agency within the meaning of KRS 61.870(1)(h). OAG 02-ORD-222.

The Master Commissioner of McCreary County, a quasi-judicial officer who serves at the pleasure of the judge or judges of the circuit court pursuant to KRS 31A.010(3) and CR 53.01, is not bound by the provisions of the Open Records Act and therefore did not violate the Act in failing to respond to requests for financial records of the Commissioner’s office. OAG 02-ORD-235.

Electronic mail generated by public agency officials or employees is a public record as defined in KRS 61.870(2), and is therefore subject to the Open Records Act. it is for the records custodian, and not the email account holder, to locate and retrieve these records and to make the determination as to which are exempt and which must be disclosed. OAG 03-ORD-05.

The records of telephones whose numbers are listed on public registers as the contact numbers of the Office of the County Attorney and presumably are the phones upon which the public agency conducts its public business, would be of sufficient public character to constitute “public records,” even though the cost of the phones and their usage are paid for with private funds, to the extent that they record the operation and functioning of the public agency and, thus, would be subject to the Open Records Act. OAG 03-ORD-19.

An audio tape of a public meeting falls squarely within the parameters of KRS 61.870(2) and must be treated as a public record if the tape is prepared, owned, used, or in the possession of the public agency, and is made at the direction of the agency; the audio tape may not properly be treated as a preliminary document, but should be made available to the public upon request. OAG 03-ORD-173.

A councilman for the City is a local government officer. Records generated and maintained by or for him in the discharge of his public function are public records for purposes of the Open Records Act, notwithstanding the fact that they remain in his custody and control. Such records are subject to inspection upon request unless otherwise exempt. OAG 03-ORD-196.

By the express terms of KRS 248.480(2), and without restriction, the Kentucky Tobacco Settlement Trust Corporation is deemed a public agency for open records and open meetings purposes. Neither KRS 248.480(2) nor KRS 61.870 (1)(f) exclude from public inspection records of the Corporation that are “not related to functions, activities, programs, or operations funded by state or local authority.” The latter phrase applies only to records owned or maintained by or for a body referred to in subsection (1)(h) of KRS 61.870 ; the Corporation does not fall within the parameters of KRS 61.870(1)(h). OAG 03-ORD-214.

A private, non-profit corporation may be a public agency for purposes of the Open Records Act, though it is not a public agency for purposes of the Open Meetings Act; this dichotomy arises from the differences in the definition of “public agency” found in each of the Acts. The definition of “public agency” which appears at KRS 61.805(2) does not include “any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds.” OAG 04-OMD-02.

Records generated by the corporation in 2001 that relate to functions, activities, programs, or operations funded by the infusion of $960,000 from the state through the city are accessible to the public under the Open Records Act. If the remaining state funds channeled to the corporation through the city represent at least 25% of its total funds in any subsequent year, records generated by the corporation that relate to functions, activities, programs, or operations funded by those remaining funds and in those years are also accessible under the Open Records Act. OAG 04-ORD-12.

If the Kentucky Animal Care and Control Association membership comprises for most part all or most of the tax-supported animal control programs in each county throughout Kentucky, KACCA could qualify as a “public agency,” subject to the operation of the Open Records Act. OAG 04-ORD-19.

The Administrative Office of the Courts is not bound by the provisions of the Open Records Act. The AOC is part and parcel of the judicial department of the state and inseparable from the office of the Chief Justice itself; records generated by and for the AOC are indisputably records of the Court. It is for the Court to determine which policies evinced by the Open Records Law present interferences with the orderly conduct of its business, and which policies it will accept as a matter of comity. OAG 04-ORD-37.

The purpose for which Clark Publishing Communications obtained the requested records, namely to incorporate them into a professional development seminar for which participants will be assessed a registration fee, and from which Clark expects “a profit either through commission, salary, or fee,” clearly constitutes a “commercial purpose” within the meaning of KRS 61.870(4)(a). OAG 04-ORD-54.

Kentucky Baptist Homes for Children, Inc., although it is organized as a private nonprofit corporation as provided for in KRS 199.640 , is a facility operating under a plan and budget approved by the Cabinet and the comprehensive scheme of legislation. Because KBHC derives at least 25% of the funds it expends in the Commonwealth from state or local authority funds, approximately 56%, it is a public agency within the meaning of KRS 61.870(1)(h) and, therefore, is subject to the provisions of the Open Records Act. OAG 04-ORD-111.

The United States Drug Enforcement Administration is a federal agency; thus the DEA is not a public agency within the meaning of KRS 61.870(1) and is not governed by the Open Records Act. OAG 04-ORD-140.

Pursuant to KRS 61.870(1)(a) and (2), the City Mayor is himself a public agency, and records which he prepares, owns, uses, possesses, or retains, including copies of the speech he gave at a City Council meeting, are public records for open records purposes. His status cannot be equated to that of a private citizen in this factual context. OAG 04-ORD-216.

Because the Court Clerk is not bound by the provisions of the Open Records Act insofar as “records in the hands of the clerk are records of the court,” regardless of whether the requested records directly relate to a specific court action, the Clerk did not violate the Act in his disposition of the request for the specified records relating to the Clerk’s bond. OAG 04-ORD-219.

As evidenced in its Articles of Incorporation, the Ballard County Economics and Industrial Development Board, Inc. was established in 1982 by a group of concerned citizens. Although incorporated as a non-profit organization, the Board does not owe its existence to the legislative act of a governmental body and therefore does not fall within the parameters of KRS 61.870(1)(b), (f), (g), and (j). Further, the Industrial Development Board does not fall within the parameters of KRS 61.870(1)(i). OAG 04-ORD-222.

Although the Kentucky High School Athletic Association was originally created as a private, voluntary, unincorporated association, it assumed a public character as a policy making board of an institution of education when, pursuant to KRS 156.070(2) and 702 KAR 7:065 Section 1, it was designated by the Kentucky Board of Education as the agency responsible for managing interscholastic athletics in the schools. Accordingly, the KHSAA is a public agency for purposes of the Open Records Act. OAG 04-ORD-244.

Court Appointed Special Advocate (CASA) is not a “public agency” within the meaning of KRS 61.870(1), and is therefore not bound by the provisions of the Open Records Act. In addition, CASA officials and volunteers must keep confidential all information contained in records of the type requested except in conferring with or reports to the court pursuant to KRS 620.505(8), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l). OAG 05-ORD-004.

Where the Fiscal Court did not adequately explain why portions of invoices sent by a law firm representing the Court had amounts charged redacted, unless it could substantiate a proper basis for withholding the amounts charged, the redacted amounts should have been made available for the requester’s inspection. OAG 05-ORD-29.

The Kentucky Correctional Psychiatric Center properly denied the request of an individual for a copy of his court ordered evaluation conducted for the purpose of determining his competency to stand trial because, under KRS 26A.200, the requested report is a “court record” under the exclusive jurisdiction of the court. OAG 05-ORD-56.

The American Farrier’s Association, Inc., does not receive twenty-five (25) or more percent funding from any state or local authority to qualify as a “public agency,” pursuant to KRS 61.870(1)(h). OAG 05-ORD-124.

A private corporation created to provide the community with a collaborative apolitical environment for discussion and project development is a public agency within the meaning of KRS 61.870(1), and it therefore violated the Open Records Act in denying requests to inspect its financial and operational records. OAG 05-ORD-156.

City did not violate the Open Records Act in denying a request for letters directed to local businesses by the city attorney because he sent the correspondence as a private citizen rather than in his official capacity and, therefore, the records do not fall within the definition of “Public record.” codified at KRS 61.870(2) OAG 05-ORD-183.

The Center for Women and Families, Inc. is not a public agency within the meaning of KRS 61.870(1). OAG 05-ORD-187.

Because a volunteer fire department is a public agency pursuant to KRS 61.870(1)(h) and records relating to training received by the firefighters like those requested fall within the parameters of KRS 61.870(2), the department violated the Open Records Act in denying a request for such records. OAG 05-ORD-203.

Baptist Hospital East is not a “public agency” within the meaning of KRS 61.870(1). OAG 05-ORD-228.

The Correctional Psychiatric Center properly denied an individual’s request for a copy of his court ordered evaluation conducted for the purpose of determining his competency to stand trial because the requested report is a “court record,” and the Circuit Court has limited its distribution. OAG 05-ORD-257.

Because an oral and maxillofacial surgery association is not a public agency it was not subject to the provisions of the Open Records Act and documents requested from it did not qualify as public records; however, the requester was entitled to receive one free copy of his medical record pursuant to KRS 422.317(1). OAG 06-ORD-006.

The Open Records Act did not apply to an attorney appointed to represent the requester for sentencing purposes only because, as a private attorney, he did not fall within the definition of “public agency,” nor could requested records properly be characterized as “public records.” OAG 06-ORD-011.

Police department did not violate the Open Records Act in failing to produce a recording of a “traffic stop” that may or may not still have existed since the recording did not fall within the definition of a public record in KRS 61.870(2). OAG 06-ORD-039.

As a private attorney, the respondent does not fall within the definition of “public agency” codified at KRS 61.870(1); nor can the requested records properly be characterized as “public records” subject to inspection pursuant to KRS 61.870(2) since the records are not “prepared, owned, used, in the possession of or retained by a public agency.” OAG 2006-ORD-011.

The Kentucky State Law Library is not bound by the provisions of the Open Records Act, and therefore cannot be said to have violated the Act in failing to respond to an open records request. OAG 2006-ORD-038.

Since the officer was not ordered or directed to make any tape recording of the traffice stop and was not provided any equipment to make any tape recordings, any such tape is the private property of the officer and the recording does not fall into the definition of a public record. Since the recording is not a public record, not a part of the case report for the traffic stop, and is the personal property of an individual, the police department is unable to provide the requester with a copy. OAG 2006-ORD-039.

Research References and Practice Aids

Kentucky Bench & Bar.

McClelland, A Never-ending struggle between competing policies: The Kentucky Open Records Act, Vol. 61, No. 4, Fall 1997, Ky. Bench & Bar 25.

Fleischaker, Klimkina & McCauley, The Kentucky Open Records Law: A Retrospective Analysis, Vol. 76, No. 4, July 2012, Ky. Bench & Bar 13.

Kentucky Law Journal.

Note, Judicial v. Legislative Power in Kentucky: A “Comity” of Errors, 71 Ky. L.J. 829 (1982-83).

Out of the Sunshine and into the Shadows: Six Years of Misinterpretation of the Personal Privacy Exemption of the Kentucky Open Records Act, 71 Ky. L.J. 853 (1982-83).

Northern Kentucky Law Review.

Ziegler, The Kentucky Open Records Act: A Preliminary Analysis, 7 N. Ky. L. Rev. 7 (1980).

Bales and Hamilton, Jr., Workplace Investigations in Kentucky, 27 N. Ky. L. Rev. 201 (2000).

2012 Kentucky Survey Issue: Article: Candid Kentucky: The Commonwealth’s Devotion to an Open Government, 39 N. Ky. L. Rev. 45 (2012).

61.871. Policy of KRS 61.870 to 61.884 — Strict construction of exceptions of KRS 61.878.

The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.

History. Enact. Acts 1992, ch. 163, § 1, effective July 14, 1992.

NOTES TO DECISIONS

1.Standing.

Resident had standing to sue under Kentucky’s Open Records Act (KORA), KRS 61.871 , 61.872 , and the trial court erred when it dismissed the resident’s case for lack of standing; KORA granted the resident standing to sue for damages to which a person requesting public records may be entitled pursuant to that act. Taylor v. Barlow, 378 S.W.3d 322, 2012 Ky. App. LEXIS 170 (Ky. Ct. App. 2012).

Commonwealth of Kentucky, Cabinet for Health and Family Services’ (Cabinet) failure to disclose the requested records constituted a “willful” violation of the Open Records Act, KRS 61.871 ; the Cabinet failed to make particularized analysis and instead relied on an all-encompassing policy of nondisclosure despite the purpose of the Act and despite the acknowledged applicability of KRS 620.050(12)(a) under these circumstances, and the circuit court concluded that these denials were made in “bad faith.” Commonwealth v. Lexington H-L Servs., 382 S.W.3d 875, 2012 Ky. App. LEXIS 216 (Ky. Ct. App. 2012).

2.Civil Lawsuits.

An agreement which represents the final settlement of a civil lawsuit whereby a governmental entity pays public funds to compensate for an injury it inflicted is a public record and is open to inspection by any person as provided in subsection (1) of KRS 61.872 and the government is without any basis upon which to claim a right of privacy and unless such documents are excluded from disclosure by one (1) or more provisions of the Open Records Act, they must be produced. Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469, 1997 Ky. LEXIS 38 ( Ky. 1997 ).

3.Records of Donors.

Names of donors to a public university’s foundation who had not requested anonymity were subject to the disclosure requirement of KRS 61.871 , as the foundation was a public entity under KRS 61.870 , and the donors had no reasonable expectation of privacy. Cape Pub'ns, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818, 2008 Ky. LEXIS 176 ( Ky. 2008 ).

4.Construction.

General Assembly did not intend to mandate an iron rule of non-disclosure whenever an exemption contained in the Kentucky Open Records Act applies because such a rule would run counter to the principle, fundamental in the law, that rights, even fundamental rights, may be waived, and the Act’s express policy, is the free and open examination of public records. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 ( Ky. 2013 ).

Family Educational Rights and Privacy Act (FERPA) did not bar a university from releasing to a newspaper all records sought under the Open Records Act because, while FERPA barred release of unredacted education records contained in a Title IX investigation file, not all the records sought were education records directly relating to a student. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

Cited in:

Department of Corrections v. Courier-Journal & Louisville Times, 914 S.W.2d 349, 1996 Ky. App. LEXIS 10 (Ky. Ct. App. 1996); Triplett v. Livingston County Bd. of Educ., 967 S.W.2d 25, 1997 Ky. App. LEXIS 74 (Ky. Ct. App. 1997); Commonwealth v. Chestnut, 250 S.W.3d 655, 2008 Ky. LEXIS 116 ( Ky. 2008 ); Cincinnati Enquirer v. City of Fort Thomas, — S.W.3d —, 2011 Ky. App. LEXIS 202 (Ky. Ct. App. 2011); Parish v. Petter, 608 S.W.3d 638, 2020 Ky. App. LEXIS 10 0 (Ky. Ct. App. 2020).

NOTES TO UNPUBLISHED DECISIONS

1.Final Rulings of Department of Revenue.

Unpublished decision: Department of Revenue was required to produce for inspection redacted copies of its final rulings because the production of the material a tax attorney and tax analysts sought was required by the Open Records Act; the Department's final rulings contained information related to its reasoning and analysis with respect to its task in administration of the tax laws, and that information could be made available without jeopardizing taxpayers' privacy interests under the Taxpayers' Bill of Rights. Fin. & Admin. Cabinet v. Sommer, 2017 Ky. App. LEXIS 9 (Ky. Ct. App. Jan. 13, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 624 (Ky. Ct. App. Jan. 13, 2017).

Opinions of Attorney General.

KRS 154A.040(1)(c) was enacted in response to a concern that the integrity of the lottery might be compromised by disclosure of information bearing on the games, and not by its concern for the safety of the Lottery Corporation’s retailers; therefore, the Lottery Corporation improperly denied a request for records containing cash sales by retailers. OAG 93-ORD-44.

The purpose and intent of the Open Record Act is to permit the free and open examination of public records; however, this right of access is not absolute and as a precondition to inspection, a requesting party must identify the records with sufficient clarity to enable the agency to locate and make them available; if the requester cannot describe the documents he wishes to inspect with specificity, there is is no requirement that the public agency conduct a search for such documents. OAG 94-ORD-12.

Even though request for public record was far from a model of clarity it was not so ambiguous that it precluded custodian from determining the identity of the item sought, thus where custodian did not analyze the request for the record sought but merely informed requester that it did not exist, he violated Open Records Act. OAG 94-ORD-12.

The University of Kentucky subverted the intent of the Open Records Act, which is essentially related to the intent of the State Archives and Records Act, by failing to develop a coherent scheme for the organized maintenance of records at identified maintenance locations. OAG 94-ORD-121.

The University of Kentucky subverted the intent of the Open Records Act, which is essentially related to the intent of the State Archives and Records Act, by failing to develop an adequate program for ensuring records management through agency oversight of employee records handling practices. OAG 94-ORD-121.

For purposes of submitting an open records request, or appealing to the Attorney General, “person” may extend to an unincorporated association. OAG 95-ORD-9.

Where appellant had requested access to a specific type contractual document during a the tenure of a particular president of the Lottery Corporation, the request was specific enough to permit the custodian to determine what records it encompassed necessitating an obligatory search, as opposed to nonobligatory research. OAG 95-ORD-27.

The Open Records Act does not require an agency to conduct an exhaustive exhumation of records or to embark on an unproductive fishing expedition when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight. It is, however, incumbent on an agency to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested. OAG 95-ORD-96.

Although subsection (3) of KRS 61.878 does not contain a specific reference to former employees, its expansive wording, coupled with the state of legislative intent underlying the Open Records Act, codified at this section, that free and open examination of public records is in the public interest, and the rule of statutory construction, codified at KRS 446.080(1), that all statutes are to be interpreted with a view to promote their objects and carry out the intent of the Legislature, compels the result that such subsection applies to former employees. OAG 97-ORD-87.

The Open Records Act exhibits a general bias towards disclosure, and the exceptions to public inspection codified at KRS 61.878(1)(a) though (j) should be given no broader application than is necessary to effecuate their purposes. OAG 97-ORD-168.

The courts and judicial agencies are not bound by the provisions of the Open Records Act except to the extent that those provisions are not in conflict with the court’s rules and regulations governing access to its own records, and are accepted as a matter of comity. All records which are made by or generated for or received by any other court, agency, or officer responsible to the Court, are the property of the Court and are subject to the control of the Supreme Court. Court records are therefore given a special status, and placed under the exclusive jurisdiction of the court. OAG 98-ORD-6.

The General Assembly did not exclude itself from the Open Records Act, but made the Act binding upon itself by defining the term public agency to include “any body created by state or local authority in any branch of government”; the General Assembly is created the legislative branch of the government, and there is no reasonable basis for excluding it from the definition of a public agency; thus it is a “public” agency for purposes of the Open Records Act. OAG 98-ORD-92.

The General Assembly did not exclude itself from the Open Records Act, but made the Act binding upon itself by defining the term public agency to include “any body created by state or local authority in any branch of government”; the General Assembly is created by the legislative branch of the government, and as there is no reasonable basis for excluding it from the definition of a public agency, its records are subject to public inspection unless otherwise exempt pursuant to KRS 61.878(1)(a) though (l). OAG 98-ORD-92.

Public agencies are not required by the act to gather and supply information independent of that which is set forth in public records; the public has a right to inspect public documents and to obtain whatever information is contained in them, but the primary impact of the act is to make records available for inspection and copying and not to require the gathering and supplying of information. OAG 99-ORD-17.

The Transportation Cabinet was not required to answer a series of questions relating to construction, accidents, and the volume of traffic on various roads as public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records, and such conclusion was not altered by the fact that past administrations have furnished the same information to other individuals since the Open Records Act does not prohibit a public agency from voluntarily providing information in response to a request for same, it simply does not require the agency to do so. OAG 99-ORD-71.

The preprinted form developed by the agency, requiring the requester to indicate whether he is a representative of the news media or the reasons for his request and requiring a requester to verify his identity by producing a driver’s license or other form of identification, creates a potential chilling effect on submission of open records requests that is inconsistent with the basic policy of the Open Records Act codified at KRS 61.871 . OAG 03-ORD-86.

Research References and Practice Aids

Kentucky Bench & Bar.

McClelland, A Never-ending struggle between competing policies: The Kentucky Open Records Act, Vol. 61, No. 4, Fall 1997, Ky. Bench & Bar 25.

Fleischaker, Klimkina & McCauley, The Kentucky Open Records Law: A Retrospective Analysis, Vol. 76, No. 4, July 2012, Ky. Bench & Bar 13.

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Candid Kentucky: The Commonwealth’s Devotion to an Open Government, 39 N. Ky. L. Rev. 45 (2012).

61.8715. Legislative findings.

The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740 , dealing with the management of public records, and of KRS 42.720 to 42.742 , 45.253 , 171.420 , 186A.040 , and 186A.285 , dealing with the coordination of strategic planning for computerized information systems in state government; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes. The General Assembly further recognizes that while all government agency records are public records for the purpose of their management, not all these records are required to be open to public access, as defined in this chapter, some being exempt under KRS 61.878 .

History. Enact. Acts 1994, ch. 262, § 1, effective July 15, 1994; 2000, ch. 506, § 17, effective July 14, 2000; 2000, ch. 536, § 17, effective July 14, 2000; 2005, ch. 99, § 16, effective June 20, 2005; 2009, ch. 12, § 32, effective June 25, 2009; 2020 ch. 36, § 5, effective July 15, 2020.

NOTES TO DECISIONS

Cited:

Commonwealth v. Chestnut, 250 S.W.3d 655, 2008 Ky. LEXIS 116 ( Ky. 2008 ).

Opinions of Attorney General.

In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records. OAG 94-ORD-121.

Since July 15, 1994, when the amendments to the Open Records Act took effect, there is a higher standard of review relative to denials based on the nonexistence, or the destruction, of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the missing records. Because the agency failed to provide even a minimal explanation for the loss of the requested records, the agency failed to adequately manage its records. OAG 94-ORD-141.

The Attorney General is not empowered to order an agency to create records, or to declare its failure to do so a subversion of the intent of the Open Records Act. 95-ORD-48.

The Open Records Act does not require an agency to conduct an exhaustive exhumation of records or to embark on an unproductive fishing expedition when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight. It is, however, incumbent on an agency to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested. OAG 95-ORD-96.

In the role as a dispute mediator in an open records appeal, the Attorney General is not authorized to conduct an investigation into the nonexistence of records the public agency declares do not exist and although there are occasions when under the mandate of this section, a records management issue is referred to the Department for Libraries and Archives for further inquiry. OAG 97-ORD-66.

Where an agency denies a request for disclosure of records based on the nonexistence of the requested records, the agency must, at a minimum, offer some explanation for the nonexistence of the records. OAG 99-ORD-22.

The University of Kentucky violated, or otherwise subverted the intent of, the Open Records Act in the disposition of a journalist’s request for a copy of “the fax submitted by scholarship player to the UK Athletics Department regarding his decision to make himself available for the NBA draft.” Because the fax was in the nature of official correspondence terminating the player’s financial relationship with the University, and therefore should have been permanently retained, significant records management issues were raised that are appropriate for review by the Department for Libraries and Archives. OAG 05-ORD-141.

61.872. Right Kentucky residents to inspect public records — Written application — Limitation.

  1. All public records shall be open for inspection by any resident of the Commonwealth, except as otherwise provided by KRS 61.870 to 61.884 , and suitable facilities shall be made available by each public agency for the exercise of this right. No resident of the Commonwealth shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
    1. Any resident of the Commonwealth shall have the right to inspect public records. The official custodian may require a written application, signed by the applicant and with his or her name printed legibly on the application, describing the records to be inspected. The official custodian may require the applicant to provide a statement in the written application of the manner in which the applicant is a resident of the Commonwealth under KRS 61.870(10)(a) to (f). (2) (a) Any resident of the Commonwealth shall have the right to inspect public records. The official custodian may require a written application, signed by the applicant and with his or her name printed legibly on the application, describing the records to be inspected. The official custodian may require the applicant to provide a statement in the written application of the manner in which the applicant is a resident of the Commonwealth under KRS 61.870(10)(a) to (f).
    2. The written application shall be:
      1. Hand delivered;
      2. Mailed;
      3. Sent via facsimile; or
      4. Sent via e-mail to the public agency’s official custodian of public records or his or her designee at the e-mail address designated in the public agency’s rules and regulations adopted pursuant to KRS 61.876 .
    3. A public agency shall not require the use of any particular form for the submission of an open records request, but shall accept for any request the standardized form developed under KRS 61.876 (4).
  2. A resident of the Commonwealth may inspect the public records:
    1. During the regular office hours of the public agency; or
    2. By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he or she precisely describes the public records which are readily available within the public agency. If the resident of the Commonwealth requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
  3. If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency’s public records.
  4. If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed five (5) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
  5. If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.

History. Enact. Acts 1976, ch. 273, § 2; 1992, ch. 163, § 3, effective July 14, 1992; 1994, ch. 262, § 3, effective July 15, 1994; 2019 ch. 64, § 1, effective June 27, 2019; 2021 ch. 160, § 2, effective June 29, 2021.

Legislative Research Commission Notes.

(6/29/2021). Under the authority of KRS 7.136(1), the Reviser of Statutes has altered the format of the text in subsection (2) of this statute during codification. The words in the text were not changed.

NOTES TO DECISIONS

1.Standing.

Resident had standing to sue under Kentucky’s Open Records Act (KORA), KRS 61.871 , 61.872 , and the trial court erred when it dismissed the resident’s case for lack of standing; KORA granted the resident standing to sue for damages to which a person requesting public records may be entitled pursuant to that act. Taylor v. Barlow, 378 S.W.3d 322, 2012 Ky. App. LEXIS 170 (Ky. Ct. App. 2012).

2.Purpose.

The Legislature in adopting the open records law clearly intended to grant any member of the public as much right to access to information as the next; the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. Zink v. Department of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 1994 Ky. App. LEXIS 141 (Ky. Ct. App. 1994).

Public has an interest in the investigatory methods used by its public agencies and to know that a publicly funded university has complied with all federal and state laws, including of the United States Education Amendments of 1972; an investigation into a professor’s sexual abuse of a student is of public interest, not because of the identity of the victim or the details, but because of the interest in seeing universities in compliance with Title IX and allegations dealt with appropriately. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

Family Educational Rights and Privacy Act (FERPA) did not bar a university from releasing to a newspaper all records sought under the Open Records Act because, while FERPA barred release of unredacted education records contained in a Title IX investigation file, not all the records sought were education records directly relating to a student. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

3.Legislative Intent.

In construing the term “party” in KRS 61.878(1), the appellate court attached significance to the Legislature’s word choice, which was “party” not “person” and interpreted this to mean that a newspaper seeking to inspect records of a prison inmate was not a “party” in the litigation involving the inmate, thus KRS 61.878(1) was inapplicable, and the documents requested were open for inspection pursuant to this section. Department of Corrections v. Courier-Journal & Louisville Times, 914 S.W.2d 349, 1996 Ky. App. LEXIS 10 (Ky. Ct. App. 1996).

General Assembly did not intend to mandate an iron rule of non-disclosure whenever an exemption contained in the Kentucky Open Records Act applies because such a rule would run counter to the principle, fundamental in the law, that rights, even fundamental rights, may be waived, and the Act’s express policy, is the free and open examination of public records. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 ( Ky. 2013 ).

Kentucky takes the view that the Family Educational Rights and Privacy Act (FERPA) prohibits disclosure of education records under the Kentucky Open Records Act; Kentucky has adopted its own version of FERPA, applicable to elementary and secondary schools indicating the General Assembly has determined that education records are not subject to the Open Records Act. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

4.Invasion of Privacy.

File of complaints by psychologist’s clients alleging sexual misconduct was a public record containing information “of a very personal nature,” disclosure of which would have constituted a serious invasion of personal privacy. Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 1992 Ky. LEXIS 35 ( Ky. 1992 ).

In determining whether a request for certain public records constitute a clearly unwarranted invasion of person privacy under KRS 61.878(1)(a), the court must first determine whether the subject information is of a “personal nature” and if it finds it is a must then determine whether public disclosure “would constitute a clearly unwarranted invasion of personal privacy.” This latter determination entails a “comparative weighing of antagonistic interests” in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. Zink v. Department of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 1994 Ky. App. LEXIS 141 (Ky. Ct. App. 1994).

Unredacted copies of final settlement agreements which showed payments made by government in connection with lawsuits against the police department were not covered by the privacy exception contained in subdivision (1)(a) of KRS 61.878 even though two or three of the agreements contained confidentiality clauses whereby settlement recipients and their attorneys agreed not to disclose the terms of the agreements. Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469, 1997 Ky. LEXIS 38 ( Ky. 1997 ).

Conciliation agreement between the city and the employee was a settlement involving the payment of public funds, which remained a public record, and to the extent that the conciliation agreement contained personal information including the employee’s salary and accommodations, the disclosure of that information was not an unwarranted invasion of her privacy such that it would have been highly offensive to the reasonable person. Therefore, because the conciliation agreement was a public record under KRS 61.870 et seq., the office manager did not intrude into the employee’s right of seclusion by possessing a public record, and thus, the employee’s claim against the office manager for unreasonable intrusion upon the seclusion of another based on her alleged possession of her conciliation agreement failed as a matter of law. Washington v. City of Georgetown, 2009 U.S. Dist. LEXIS 16394 (E.D. Ky. Mar. 3, 2009).

5.Civil Lawsuit.

An agreement which represents the final settlement of a civil lawsuit whereby a governmental entity pays public funds to compensate for an injury it inflicted is a public record and is open to inspection by any person as provided in subsection (1) of this section and the government is without any basis upon which to claim a right of privacy and unless such documents are excluded from disclosure by one or more provisions of the Open Records Act, they must be produced. Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469, 1997 Ky. LEXIS 38 ( Ky. 1997 ).

Bid protestor was entitled to seek judicial review of the award of the contract for statewide genetic testing services for the 2004 fiscal year, which was made to another vendor, even though the contract had expired as a protestor has standing to seek judicial review as such a matter presents a case and controversy despite the contract ending. However, judgment in favor of the various Commonwealth of Kentucky agencies and the winning bid maker was upheld on appeal, because the substance of the protestor’s complaint alleged alternative interpretation of the bid terms, which was a discretion afforded to the Commonwealth as a contracting officer in a negotiated procurement, and the protestor provided no valid reason, such as fraud, in challenging the award to the winning bid maker. Lab. Corp. of Am. Holdings v. Rudolph, 184 S.W.3d 68, 2005 Ky. App. LEXIS 169 (Ky. Ct. App. 2005).

Former medical resident student did not established that a university’s initial decision to withhold records from her was done willfully, particularly when there was evidence that university officials were not aware that the other documents existed, and once they learned of the other records, they produced them to the student; also the student could not recover attorney’s fees and other expenses after filing a lawsuit to obtain the documents. Shyamashree Sinha v. Univ. of Ky., 284 S.W.3d 159, 2008 Ky. App. LEXIS 375 (Ky. Ct. App. 2008).

Where a school district employee settled her lawsuit against one school district for sexual harassment by a district official and a second lawsuit against another district for allegedly wrongfully failing to hire her, the lower courts erred in denying a newspaper’s request for access to the settlement agreements under the Kentucky Open Records Act, KRS 61.870 to 61.884 , because the settlement of litigation between a government agency and one of its employees and a private citizen and a governmental entity were matters of legitimate public concern that the public is entitled to scrutinize. A confidentiality clause in such agreements was not entitled to protection. Cent. Ky. News-Journal v. George, 306 S.W.3d 41, 2010 Ky. LEXIS 72 ( Ky. 2010 ).

Although the former employees alleged that the general manager’s production of the disciplinary action forms in response to a record request was actionable because, at least as to two employees, the forms contained untrue statements about the employees acting dishonestly when they examined confidential information on the employer’s computer system without permission following one of the employee’s discharge, the general manager’s decisions to discharge the employees were not conditional and did not need the board of directors’ approval; the general manager had the authority to terminate employees, and the terminations represented his final action. That the discharges could potentially have been set aside by the board during the grievance hearing did not transform the disciplinary action forms into preliminary drafts, notes, or correspondence. Burgess v. Paducah Area Transit Auth., 387 Fed. Appx. 538, 2010 FED App. 0421N, 2010 U.S. App. LEXIS 14384 (6th Cir. Ky. 2010 ).

6.Description of Records.

Nothing in KRS 61.872(2) contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application describing the records to be inspected. The General Assembly chose only to require the record to be described; it did not add any modifiers like “particularly” described. Commonwealth v. Chestnut, 250 S.W.3d 655, 2008 Ky. LEXIS 116 ( Ky. 2008 ).

7.Unreasonable Burden.

Winnowing process required of the Department of Corrections by the General Assembly under KRS 197.025 did not rise to the level of an unreasonable burden under KRS 61.872(6), especially in light of the fact that the General Assembly had already mandated that all public agencies had to separate materials exempted from disclosure in a document from materials that were subject to disclosure. The obvious fact that complying with an open records request would have consumed both time and manpower was, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. Commonwealth v. Chestnut, 250 S.W.3d 655, 2008 Ky. LEXIS 116 ( Ky. 2008 ).

Although the task of determining what materials were properly subject to an inmate’s open records request was tedious and time-consuming work, complying with the request did not automatically constitute an unreasonable burden. Regardless of the specificity of the open records request, the Department of Corrections personnel were still obligated to sift through any requested materials in order to determine which documents (or portions of a document) had to be redacted or excised by reasons of privacy or for institutional safety under KRS 197.025 . Commonwealth v. Chestnut, 250 S.W.3d 655, 2008 Ky. LEXIS 116 ( Ky. 2008 ).

Kentucky State Police violated the Open Records Act, Ky. Rev. Stat. Ann. § 61.870 et seq., by failing to produce its entire Uniform Citation File database when requested by a reporter where the time and manpower required to separate exempt material, standing alone, was not sufficiently clear and convincing evidence to show an unreasonable burden under Ky. Rev. Stat. Ann. § 61.872(6). Moreover, the undisputed evidence noted that the necessary categorical extractions could be performed for $15,000, and electronically separating exempt material was not equivalent to creating a new record given the mandate in Ky. Rev. Stat. Ann. § 61.878(4). Commonwealth v. Courier Journal, 601 S.W.3d 501, 2020 Ky. App. LEXIS 42 (Ky. Ct. App. 2020).

8.Explanation Required.

Once it has been determined that records requested under the Kentucky Open Records Act no longer exist, the responsible agency is required to provide the requester with a written explanation for the records’ nonexistence. Therefore, an inmate was entitled to relief under the Act based upon a request for certain jail records, even though the records allegedly no longer existed. Eplion v. Burchett, 354 S.W.3d 598, 2011 Ky. App. LEXIS 215 (Ky. Ct. App. 2011).

Cited:

Marina Management Servs. v. Cabinet for Tourism, Dep’t of Parks, 906 S.W.2d 318, 1995 Ky. LEXIS 62 ( Ky. 1995 ); Cincinnati Enquirer v. City of Fort Thomas, — S.W.3d —, 2011 Ky. App. LEXIS 202 (Ky. Ct. App. 2011).

NOTES TO UNPUBLISHED DECISIONS

1.Final Rulings of Department of Revenue.

Unpublished decision: Department of Revenue was required to produce for inspection redacted copies of its final rulings because the production of the material a tax attorney and tax analysts sought was required by the Open Records Act; the Department's final rulings contained information related to its reasoning and analysis with respect to its task in administration of the tax laws, and that information could be made available without jeopardizing taxpayers' privacy interests under the Taxpayers' Bill of Rights. Fin. & Admin. Cabinet v. Sommer, 2017 Ky. App. LEXIS 9 (Ky. Ct. App. Jan. 13, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 624 (Ky. Ct. App. Jan. 13, 2017).

Opinions of Attorney General.

Copies of documentation pertaining to the purchase of federal excess and surplus property obtained by a county civil defense agency would constitute “public records” and should be open to inspection by a newspaper. OAG 76-235 .

Blanket requests for information on a particular subject without specifying certain documents need not be honored for state employees may not be requested to make compilations of records, but the public has a right to inspect compilations which have been made in the course of business unless the subject matter is confidential by law. OAG 76-375 .

The Open Records Act does not charge state agencies with the duty to provide records upon a request made by mail. OAG 76-375 .

The right to have copies of records is an ancillary to the right of inspection and does not stand by itself; if a person has not inspected the records he desires to copy and cannot describe them with specificity, there is no requirement that copies of any records must be delivered to him; a citizen may make a fishing expedition through public records on his own time and under the restriction and safeguards of the public agency, but a willingness to pay for copies of records is not sufficient to put the state agency under obligation to furnish broad categories of records. OAG 76-375 .

A person does not have a right to require a list to be made from public records if the list described does not already exist; if the list exists and is not otherwise confidential by law, a person may inspect a list and obtain a copy of it; a person desiring that list be made or that he have copies of broad categories of information must expend his own time in digging out the information unless it has already been compiled. OAG 76-375 .

A county fiscal court could not deny a bidder access to inspection of a bid submitted by another office supply company upon an advertised invitation for bids. OAG 76-528 .

Jury lists drawn from the drum by the judge are to be kept secret until the list is delivered to the sheriff and after that time the clerk is required to allow public inspection of the list and to provide a copy to any citizen requesting one for which the clerk may charge a reasonable fee. OAG 76-591 .

Repeated requests to inspect the records of a public agency do not amount to harassment so as to justify an official custodian’s refusal to permit inspection. OAG 77-151 .

Under this section a person does not have to be a resident of any particular place to qualify for inspection of public records; therefore a school office could not withhold records from the inspection of a requestor who is not a resident of the school district. OAG 77-151 .

There is no statutory requirement that an agenda be prepared for regular meetings of the school board but if an agenda is prepared it is a public record; an agenda is required for a special meeting of the school board and it is also a “public record”; such agendas are “public records” pursuant to this section and open for inspection by any person during the regular office hours of the public agency. OAG 77-221 .

The public has the right to all the information regarding the settlement of a civil suit by the city. OAG 78-35 .

The Kentucky Open Records Statute does not require that a requester must state the reason for his request to inspect or copy public records, and an executive order was in error in requiring a statement of a reason before allowing copying of a record. OAG 78-231 .

Since a filed library district petition requires fiscal court to check its validity on its face, it does not become a full-blown public record, for purposes of the Open Records Law, until after fiscal court has determined its validity. OAG 79-265 .

While a library district petition is needed by the clerk and his staff to check the validity of the signatures, etc., for fiscal court, the custodian may reasonably delay inspection of the record and the making of copies until after the verification process has been concluded. OAG 79-265 .

KRS 68.360 provides for a monthly statement of the county treasurer to be filed with the county judge/executive and the fiscal court, showing the balance of county funds available for governmental expenditure, and for the county judge/executive’s filing similar quarterly reports as to status of county funds, showing receipts and expenditures of county funds, which records are public records, as defined in KRS 61.870 , and are subject to inspection by any person under the conditions of this section. OAG 79-374 .

An inmate of a county detention center has the right to inspect public records the same as any other person. OAG 79-546 .

There is nothing wrong with making a request for inspection of public documents by mail, but the response of the agency need only be that the records will be made available for inspection at certain times and places. OAG 79-547 .

The press has only such right of access to public records as the general public has. OAG 79-582 .

The Kentucky Housing Authority should make a proper response to an attorney’s request to inspect a July, 1979, audit of a corporation by agency accountants, and if there is no lawful reason for denying inspection of the audit record, the agency should comply with the request for the record by making it available; if the record is not in the possession of the agency but is in the possession of the agency’s accountant, the agency should obtain a copy of the record and make it available, and a claim of confidentiality between the accountants and the corporation cannot be used to defeat the inspection of the record which is otherwise not exempt by law. OAG 80-207 .

A request to inspect any standard contract or printed contract form used by a county’s schools during the years 1978, 1979 or 1980, for the purchase of instructional materials was specific enough and should have been complied with. OAG 80-289 .

Where a member of an electric plant board has requested to inspect numerous plant board records covering a five-year period and that certain lists be compiled for him, it will be sufficient under the Open Records Law for the board to allow the requester access to the records he wants to inspect if they exist and the board does not have to prepare lists which are not already in existence. OAG 80-308 .

Where a requester sought to inspect the records of all moneys collected by a county from fees charged the public for the use of the county’s copying machines for personal copies, the county clerk’s response that the records would be made available for inspection five (5) weeks later did not comply with the Open Records Law, especially subsection (4) of this section, since the clerk gave no explanation for the five-weeks delay. OAG 80-367 .

The Department (now Cabinet) for Human Resources must honor requests for information regarding payment to specific identifiable providers of health care through the Kentucky Medical Assistance Program since such records come under the mandatory inspection requirements of the Open Records Law. OAG 80-519 .

Response to request to inspect certain public records of the city that the requesters would be allowed to review records one day a month and to examine two month’s worth of records at a time placed an unreasonable and illegal restriction upon the right of the requesters to inspect the records and constituted a subversion of the intent of the Open Records Law and the requesters are entitled to inspect all of the described records immediately and continuously until the inspection is completed to their satisfaction. OAG 80-641 .

Where a newspaper sought all records of agreed orders levying fines against coal companies for certain periods, all records relating to collection of such fines, and all records relating to forfeiture of bonds by coal companies for the same period, and the state environmental agency granted access to some of the records but denied access to all closed files located in a storage warehouse as placing an unreasonable burden on the agency pursuant to subsection (5) of this section, the agency’s denial of access to the warehouse documents was improper, since the newspaper merely requested the right to inspect those documents at suitable facilities rather than requesting state employees to compile or copy the documents, which was not an unreasonable burden and since it was not evident that the newspaper was maliciously harassing and disrupting the operation of the agency. OAG 81-198 .

An application form provided by a city to open records to requesters, which required that the requester state under oath that he is a Kentucky citizen, that he give his home address and telephone number, that he state the reason for his request and that the form be given under oath and certified by a notary public, was defective in that “any person” can inspect public records under this section, so that access is not limited to Kentucky citizens; a requester does not need to give any personal information or his reason for the request under KRS 61.870 to 61.884 , and the application need not be given under oath or notarized. OAG 81-345 .

County government records of occupational taxes should be open to public inspection, for the public has a right to know in addition to the name of the business licensed, the dates of applications and issuances of business licenses and; all the other information about a license issued by the government which is not expressly made confidential by statute. OAG 82-2 .

The date of application and effective period of a county business license is not such information as reveals the affairs of a person’s business contrary to subsection (1) of KRS 131.190 ; however, before making such information available to the public the division of tax collection should either delete confidential matter from the licenses prior to public inspection or provide the requested information in lieu of allowing personal inspection. OAG 82-2 .

Both a proposed budget and the final approved budget of a fiscal court are public records under KRS 61.870 and are open to inspection by the public under this section. OAG 82-91 .

A member of the city council is entitled to inspect and make copies of any public records of the city located in the clerk’s office during normal office hours and at other times in emergencies. OAG 82-311 .

If record is made available to one (1) member of the public for one (1) purpose, it must be made available to the public generally for any purpose. OAG 82-394 .

The Kentucky Board of Nursing should make available to the public, including RN Magazine, the names and addresses of all licensed nurses as contained in the records of the Board without regard to the purpose for which the records are requested. OAG 82-394 .

The Open Records Law requires that all public agencies, state and local, shall allow inspection and copying of public records in their custody, with the exception of certain types of documents named in KRS 61.878 , without regard to the person who is making the request or the purpose for which the person wants to inspect the records; an agency cannot adopt a policy allowing inspection and copying of records for certain purposes and denying it for other purposes. It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement. OAG 82-394 .

The purpose of licensing professions, such as nursing, is to protect the public, and the public is entitled to know who the licensees are. The public is also entitled to know the address of each licensee and if the only address which the board has for a licensee is a home address, the privacy exemption will not apply to that licensee. OAG 82-394 .

The Open Records Law provides that any person can inspect the original record and cannot be required only to purchase a copy of the original record. OAG 82-396 .

Under subsection (2) of this section it is not permissible to limit inspection of the dispatch log of a county dispatch service to one (1) day a week, and any person requesting to inspect the log should be permitted to do so during the regular office hours of the courthouse; since the dispatch service operates twenty-four (24) hours a day, seven (7) days a week, the inspection of the log can be limited to the regular office hours of the courthouse rather than to allow inspection of the log at any time the dispatcher is on the job. OAG 82-396 .

The mayor of a fourth class city may not legally withhold the results of polygraph tests administered to personnel employed by the city police department when a city councilman wants to examine the data. OAG 83-518 .

The only records from the investigation files of internal affairs of a police department which may be inspected by the public are those which reveal the disciplining of an officer by the chief and the reason for the action taken. OAG 82-547 .

The requester is entitled to inspect the records of a named police officer to the extent of the final disciplinary action taken by the chief and the complaint which prompted this action; however, whether the requester is entitled to inspect all such records in the police chief’s office of every police officer who has been the subject of disciplinary action depends on a factual determination by the chief, supported by substantial proof, of whether making the limited records available places an unreasonable burden on his office. OAG 82-547 .

The Open Records Law does not contemplate that a public agency shall send requested records to a person who has not inspected them. OAG 82-629 .

Records related to a criminal prosecution are public records and, if prosecution has been completed, they are open to public inspection. OAG 82-629 .

Although a prison inmate has the same right to inspect public records as any other person, it is not incumbent upon a public agency to provide records to inmates who are unable to go to the office where the records are kept because of their legal confinement. OAG 82-629 .

Attorney for Cabinet for Human Resources did not sufficiently comply with the spirit and the letter of the Open Records Law in responding to request for records by suggesting that requester direct his request to the Director of the Division of Unemployment Insurance; as an employee, agent and attorney for the Division, he should have directed the request to the proper person, i.e., the Director of the Division as official custodian, or to whomever the Director had designated to be the custodian of records. OAG 83-23 .

Where proper request for records was made to attorney in Office of Counsel of Cabinet for Human Resources and attorney stated that he did not have records and instructed requester to make another request to Director of Division of Unemployment Insurance, such Division did not act in accordance with KRS 61.870 to 61.884 in its failure to allow inspection or make a proper response to such request to inspect records after three (3) months from the date of the initial request. OAG 83-23 .

The Open Records Law does not require that a requester state the reason for his request to inspect or copy public records. OAG 83-42 .

The Open Records Act does not require the county clerks of Kentucky to provide copies of public records upon a request made by mail. OAG 83-42 .

Where the requesters of copies of records had not inspected any of the records, and had not described any specific records, custodian of records was under no duty to furnish the copies requested; the right to have copies of records is ancillary to the right of inspection and does not stand by itself. OAG 83-42 .

Public agencies should accommodate requesters whenever they can within the bounds of the efficient operation of their office. Whenever only one (1) item is requested, or a few precisely described items which are readily available within the office, and no special search is required, it will be more convenient both to the agency and to the requester to answer the request through the mail; to require the requester to appear in person at the office of the agency in such a case would not be more convenient to either party and would only inhibit the intended purpose of the Open Records Law. OAG 83-204 .

The provisions of KRS 61.872 , 61.874 and 61.876 , when taken together, require that public agencies have a policy of allowing inspection of public records, of protecting the records, of preventing excessive disruption of the agency’s functions, of providing copies upon request, of providing efficient and timely action in response to applications for inspection and of charging a reasonable fee based on the actual cost of making copies not including the cost of staff required; these three (3) sections allow public agencies a certain amount of leeway as to handling requests for records by mail and mailing copies to requesters who have not personally inspected the records and selected the items which they want copied. OAG 83-204 .

Requested documents concerning change of control of several banks were federal documents filed with the Department of Banking and Securities (now Department of Financial Institutions) by federal regulatory agencies and therefore, the Department of Banking and Securities was just the casual possessor, not the official custodian, of these documents which were still possessed by the federal agencies; the “official custodian” is the proper official to make decisions on policy concerning the release of records and, accordingly, the Department acted properly in denying request for such records and notifying requester of the official custodians with whom he could file a Freedom of Information Act request. OAG 83-342 .

The Department of Transportation’s (now Transportation Cabinet) denial of a request to inspect “all” records in the Kentucky Department of Transportation, Division of Right of Way, District 5, was proper under Open Records Law; the request did not have to be honored as it lacked specificity and it would have placed an unreasonable burden on the agency to separate exempted material from the nonexempted material before inspection. OAG 83-386 .

Final disciplinary actions taken by the state’s licensing boards or agencies against licensed professionals are public information since the public, upon request, has a right to know the final action taken by a state board or agency. OAG 84-55 .

Requested records pertaining to annual copying costs and fees should be made available for public inspection, and any person inspecting the records and requesting a copy should be sold that copy. OAG 84-91 .

A city could compile a list of occupational licensees in its discretion, or allow requestor to make his own list; the city could also separate exempted from nonexempted matter before allowing requestor access to the records. OAG 84-93 .

A request to inspect city occupational license records was not a “blanket” request where requestor specified certain information from a specific document. OAG 84-93 .

The requestor is not required under the Open Records Law to have a legitimate or public purpose for inspection. OAG 84-93 .

The court clerk’s denial of inspection of court records for the previous five (5) years pertaining to traffic violations for driving under the influence was improper, even though there were approximately 10,000 such cases, since the requests were not repetitious and the requestor was willing to inspect a few at a time. OAG 84-278 .

Since subsection (2) of this section and KRS 61.880 provide that an agency must respond to a request for inspection of records within three (3) days timely access to records would thus be any time less than three (3) days from agency receipt of the request. OAG 84-300 .

The denial of a request to inspect the complete institutional file of an inmate was proper, as requests to inspect personnel files must specify the particular documents within such files to be inspected. OAG 85-88 .

A response denying the right to inspect public records was legally insufficient when it did not state what exception to the right to inspect was relied upon and how the exception applied to the records withheld. OAG 85-89 .

There is no provision in the Open Records Act which requires that a person give a reason as to why he wants to inspect public records and that he state what he intends to do with information acquired as a result of inspecting public records. OAG 86-36 .

The public agency’s denial of the request for documents pertaining to adjustments for telephone and travel expenses was proper to the extent that the public agency declined to prepare and furnish lists which were at the time not in existence; however, the public agency was in violation of the Open Records Act to the extent that its response stated or implied that the requesting party would not be afforded the opportunity of examining otherwise nonexempt material of the public agency to attempt to secure the particular records and documents with which he was concerned. OAG 86-51 .

The Department of Insurance’s denial of the request for records pertaining to complaint files concerning claims’ settlement practices was proper to the extent that the Department declined to prepare and furnish a list of data which at the time did not exist; however, the Department violated the Open Records Act to the extent that its response stated that the requesting party would not be afforded the opportunity of examining otherwise nonexempt material to attempt to secure the data with which he is concerned. OAG 86-52 .

The public agency’s actions in not making public records available for public inspection on the grounds that the documents could not be found and that the request for other records was vague and imprecise were proper responses and actions under the terms and provisions of the Open Records Act. OAG 86-65 .

The response of the public agency to the request to inspect documents that some of the requested documents did not exist was sufficient and proper; however, the public agency’s attempt to restrict the requesting party’s inspection of those records which did exist to one-half hour a week was an unreasonable and illegal restriction on the right to inspect public records, and such records were to be made available for inspection immediately. OAG 87-54 .

The public agency’s written response to the requesting party’s request to inspect public documents was legally sufficient pursuant to this section and KRS 61.880 of the Open Records Act and afforded the requesting party a reasonable opportunity to inspect the records and materials requested to obtain the desired information. OAG 88-8 .

It is not incumbent upon a public agency to provide documents to inmates who are unable to go to the office where the records are kept because of their confinement. OAG 88-44 .

Where records accumulating or compiling the information sought did not exist, and a substantial research and compilation effort would be required to attempt to provide the data requested, a request for information on the number of state police officers assigned to executive security duty, and the hours of overtime accumulated by those officers, within specific time periods, could be properly denied. OAG 88-79 .

If records, though regarding private donations and disbursements, are in the possession of or retained by a state agency, they are, in general, subject to inspection; the open records statutes, however, do not require state personnel to identify private entities that might have records regarding private donations and expenditures from such donations; thus, to the extent agencies have allowed inspection of (or provided) records that they had possession of or retained, and truthfully indicated that they do not have certain records sought by the requests, they have substantially complied with the open records statutes. OAG 89-7 .

A request to inspect all records pertaining to two specifically named state troopers is too broad and too general to require a production of documents for inspection. OAG 89-8 .

Denial of a request to view police radio transmission logs based upon subsection (5) of this section, regarding an unreasonable burden in producing voluminous records, is not substantiated where the records sought are of an identified, limited class, typically maintained by month or year, so that they may be made readily available by providing appropriate binders or boxes. OAG 89-20 .

One does not have a right under Open Records provisions to require that a particular list be made. OAG 89-61 .

If particular records sought don’t exist, the individual seeking those records may be entitled to access to records that would enable him to determine the information he wanted; but he must describe, with reasonable particularity, the nature of those records. OAG 89-61 .

City governments and employees are servants of the people, but they are servants of all the people, not just those who may make extreme and unreasonable demands on their time, and one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled. OAG 89-61 .

Compliance with KRS 132.530 , which in part, requires a Property Valuation Administrator to make additions to each column of the tax rolls so that accuracy of calculations may be verified, is a matter not addressed by Open Records provisions. OAG 89-66 .

Where a letter expressly requested permission to inspect all accident reports prepared for a period of four (4) weeks prior to the date of inspection, and where the letter identified without any ambiguity which accident reports were sought, the letter sufficiently described the records to be inspected. OAG 89-76 .

A police department is not required to review voluminous numbers of accident reports and make selected copies of them for an individual, as that individual may be shown where the reports are filed and review the reports himself. OAG 89-76 .

A person requesting to inspect public records does not have to state any reason as to why he wants to see those records and he does not have to show or establish any particular interest in the subject matter of those records; thus, the purpose of the requesting party in wanting to see the records in question has no bearing on whether the public agency should grant or deny his request. OAG 89-79 .

A public agency cannot deny a request to inspect records because information from those documents may or will be used in some future legal action, although, if a legal action is in process when the request to inspect records is made, the public agency may be able to invoke the exception to inspection set forth in KRS 61.878(1)(f), otherwise, a decision not to make records available for inspection because of the possibility or even the probability of a legal action at some future time is a violation of the Open Records Act. OAG 89-79 .

Where a public agency asserts that the number, detail and nature of requests for documents placed an unreasonable burden on the agency, or were intended to disrupt certain of its essential functions, the burden is on that agency to demonstrate, by more than merely referring to fifteen (15) such requests, that those requests either place an unreasonable burden on the agency or that they are intended to disrupt other essential functions of the agency. OAG 89-79 .

While city workers do not have to compile or explain records, they must make a good faith effort to make available for inspection, records related to fiscal assets, receipts, and expenditures of the city, where there is a reasonable description of records sought. OAG 89-81 .

Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation and production of specific information; Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies. OAG 89-81 .

Open Records provisions do not provide for, and agency workers are not required to provide under them, instruction in understanding of the meaning or import of information shown upon records produced. OAG 89-81 .

Although the Cabinet for Human Resources properly declined to provide information which was not consistent with its method of filing and maintaining records, the Cabinet must give the person making the request a reasonable opportunity to inspect nonexempt records pertaining to designated facilities to enable him to attempt to obtain the information he has requested. OAG 89-84 .

Agencies should have uniform policies regarding inspection of their records; if one person, in the absence of a court order, is allowed to inspect a record, all should be allowed to inspect. OAG 89-86 .

Denial by the Department of Insurance, of inspection of some 800 records contained among seventy-seven (77) files, was proper as being unduly burdensome, where the difficulty of separating confidential from nonconfidential material was exacerbated by the substantial volume of records involved. OAG 89-88 .

There may be no general denial of inspection of personnel records; in particular, inspection of employment applications and resumes, and records of educational qualifications — meaning educational levels obtained — insofar as reasonably related to qualification for public employment, must be permitted, where, under the facts of a given request to inspect, such review does not constitute an unwarranted invasion of personal privacy; information to be maintained as confidential may be masked or separated from information to be released, and employee evaluations, involving opinions, are not subject to inspection. OAG 89-90 .

Under Open Records provisions there may not be a general or blanket denial of inspection of records contained in the personnel file of a public employee, or of a resume of application for employment, and to the extent that OAG 84-19 and OAG 87-77 uphold a general denial of inspection of the resume of a public employee, and OAG 79-275 upholds general denial of information on an employment application, they are overruled. OAG 89-90 .

When the media attempts to carry out an evaluation regarding the quality of schools throughout the state, there is no unwarranted invasion of personal privacy in examining relevant prior work experience and educational qualifications of employees or former employees, and the same view applies to educational qualifications or levels attained by public employees. OAG 89-90 .

A schoolteacher’s college transcript is not subject to inspection, where a school board has denied inspection pursuant to KRS 61.878(1)(a). OAG 89-90 .

The Kentucky State University Foundation, Inc., is a recognized fund-raising instrumentality of Kentucky State University, and is thus an “agency thereof,” within the meaning of KRS 61.870(1). OAG 89-92 .

A state university acted consistently with Open Records provisions in denying inspection of records where the majority of the several hundred records sought contained “education records,” as defined, and effectively made confidential by, the federal Buckley Amendment, such that virtually all of the records requested would require redaction or masking to remove information personally identifiable to a student; an unreasonable burden in view of the scope of the request(s), if the records were to be made available for inspection without jeopardizing federal aid. OAG 90-24 .

A state university failed to act consistently with Open Records provisions in denying a request to inspect five (5) particular public safety dispatcher log cards, where the request for those specified items was particular, and narrow in scope, thus making redaction or masking of confidential information feasible without placing an unreasonable burden upon the agency. OAG 90-24 .

Requests not to inspect public records, but for copies of records that had not been inspected were not proper requests under subsection (2) of this section. OAG 90-35 .

City’s actions were not consistent with Open Records provisions where, in contravention of subsection (1) of this section, it denied a requester the use of a film read-printer and a cassette tape player, thereby failing to provide suitable facilities for inspection of its records. Additionally, the city failed to act consistent with Open Records provisions where, in contravention of KRS 61.874(2), it established a twenty-five cents ($.25) per page fee for copies of records, when such fee was not based upon the actual cost, exclusive of personnel expenses, for making copies. OAG 90-50 .

Where a request was made for portions of taped conversations between a police department hostage negotiation team and an individual who allegedly held his family hostage for several hours until he apparently killed his estranged wife and himself, and where these were all conversations in which the alleged perpetrator was a participant, since excepted information could properly be omitted from those portions of the tape, the remaining nonexcepted information had to be produced since the information requested was not so voluminous so as to constitute an unreasonable burden. OAG 90-56 .

The Open Records Act makes no provision for a public agency to refuse to give an applicant access to public records just because the applicant already has obtained the requested information elsewhere. OAG 90-71 .

Where a governmental board does have custody or control over some public records that contain certain requested information, according to the requirements of the Open Records Act, the board should have given the person making the request either: (1) access to the records, or (2) a statement of the specific exceptions authorizing the withholding of the records. OAG 90-71 .

There is no specific exception in the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. OAG 90-71 .

The request for information to indicate when the Commonwealth’s Attorney’s office first became involved in a particular case was a request for information and not a request for documents as contemplated under the Open Records Act. OAG 90-77 .

To the extent the request asked questions such as: How much money was spent for certain items? How many Owensboro-Daviess County Hospital vendors or HCA vendors are from the hospital’s service area? What is the current status of the ODCH case reserve fund? or What banks does ODCH have accounts with?, the request was one for information as distinguished from a request to inspect reasonably identified records. OAG 90-100 .

Although the requesting party has not been supplied with the information in the format he desires as he has not been furnished with an up-to-date computerized listing of the appointments to the various boards and commissions by the Governor, he is only entitled to such a computerized listing when such a list is actually in existence or when it is part of a database. OAG 90-101 .

Determining when an application places an unreasonable burden upon an agency to produce voluminous public records is at best difficult; each request for inspection of public records must be assessed based upon the facts in that particular situation. OAG 90-112 .

Responses denying inspection of public records should include reference to a specific statutory exception authorizing the withholding of the record. OAG 90-112 .

The Office of The Attorney General has rarely, if ever, upheld an agency denial based solely upon subsection (5) of this section. OAG 90-112 .

Where the records sought for inspection were precisely described as all “automobile accident reports prepared by the Kentucky State Police Department, London Post,… for a period of four (4) weeks prior to the date of inspection period.”, there was no ambiguity in this request, and it did not constitute a blanket request for information; it was a request to inspect specific records during a specific and limited period of time. OAG 90-112 .

Although water district has not complied with various procedural requirements set forth in KRS 61.880(1) and subsection (4) of this section relative to the handling and disposition of requests to inspect documents, the water district’s refusal to permit the inspection of polygraph test results is justified under the Open Records Act as such documents may be excluded from public inspection pursuant to KRS 61.878(1)(a). OAG 90-144 .

If an agency elects to rely upon the additional exemption set forth in subsection (5) of this section for denial of access, the agency must sustain its burden by “clear and convincing evidence,” and a more detailed explanation may be warranted. OAG 91-4 .

If a public agency intends to rely upon subsection (5) of this section, indicating that producing records places an unreasonable burden upon the agency or that the requester intends to disrupt other essential agency functions, the refusal of the agency to produce documents for these reasons must be sustained by clear and convincing evidence, and where the requesting party has described the various categories of documents to which she seeks access with sufficient specificity to require the public agency to respond in a good faith manner to those requests by categories pursuant to KRS 61.880(1), documents withheld from inspection or unavailable should be identified and the specific reasons for withholding any documents should be stated in writing; a blanket denial of the request for access to documents was improper. OAG 91-7 .

There is no specific exception in the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. OAG 91-21 .

Both microfiche copies and index books of the Kentucky Register of Births & Deaths are public records under KRS 61.870(2) and are available for public inspection under subsection (1) of this section and KRS 213.131(2) and (3); and since the Register has been available for public inspection for many years, the new legislation somewhat limiting public access to vital records, does not in any way make confidential records which have been open to the public for such a lengthy period of time. OAG 91-25 .

If a state employee makes an unlawful disclosure of confidential birth records for the Cabinet of Human Resources to be liable for such disclosure the aggrieved party would have to prove that the Commonwealth or its agent was negligent. OAG 91-25 .

The fact that sets of the Register of Births and Deaths are presently available for public inspection would not violate any Kentucky statutes simply because, at the time the Register was published, the information contained in the Register was not confidential and the Cabinet of Human Resources had no affirmative duty to restrict public access of the information. OAG 91-25 .

The most recent index book of Births and Deaths published by the Cabinet bears the date of 1969, and under the authority of KRS 44.110 , an alleged injury resulting from the release of birth records would have occurred at the moment the record was released for public inspection, and under the applicable statute of limitations for negligence cases against the Commonwealth or its agents, an action for damages cannot be brought if more than two years has elapsed from the date of the alleged negligent act; therefore, the Cabinet was not liable for divulging information that has been available for public inspection for at least twenty-one (21) years. OAG 91-25 .

Rarely has an agency denial based exclusively upon the statutory exemption of subsection (5) of this section been upheld, however, the instant open record request and appeal, along with prior requests represented a flagrant abuse of the Open Records Law, and have produced an intolerable burden upon an agency to satisfy an unreasonable open records request, clearly disrupting essential functions of the agency. OAG 91-42 .

The official custodian of public records may require written application describing the records to be inspected. This written application may be submitted either in person or by mail and any suggestion contained in OAG 76-375 which is contrary is hereby overruled. OAG 91-42 .

A Water District is a public agency, created under authority of Chapter 74, and is therefore subject to the Open Records Act. Accordingly, its records are open for inspection by any person, unless those records are exempt under of the statutorily authorized exceptions. OAG 91-48 .

Where university treated four (4) separate requests for inspection of certain documents as one request, its response was improper for while it may well have wished to expedite this matter by issuing a single response, it nevertheless erred in failing to address the four (4) requests in four (4) separate responses. OAG 91-111 .

Subsection (4) of this section does not authorize an agency to withhold records not in active use, not in storage and otherwise available until those records which are not available can be located. OAG 91-111 .

Statement advising requester that he would be furnished access to requested records “no later than 8:00 a.m., May 17, 1991” was clearly intended to conform to subsection (4) of this section. OAG 91-111 .

Coroner’s office erred in failing to advise attorney that the taped interviews with his client were in the possession of the Kentucky State Police. OAG 91-147 .

If an agency invokes subsection (5) of this section to authorize nondisclosure of the requested records, then it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden in producing voluminous public records. OAG 91-168 .

The city failed to sustain its burden of proving, by clear and convincing evidence, that the application placed an unreasonable burden on it to produce voluminous records where the letter of denial did not describe with any degree of specificity the volume of records implicated by the request, the difficulty in accessing the records, or the problems associated with redacting exempt materials from those records. OAG 91-168 .

Denial of inspection of case files involving four (4) criminal defendants on the grounds that these case files could not be located and therefore were not available for inspection from the Kentucky State Police, was consistent with the open records law and fully complied with the provisions of subsection (3). OAG 91-173 .

A delay of one hundred twenty-eight (128) days before access to records is allowed suggests an improper disregard for the purpose and intent of the Open Records Law. OAG 91-200 .

This section does not specify the mode or method by which a written request must be made and it is intended to circumvent disputes relative to the identity of the records requested, and not to create additional obstacles to the release of those records; therefore, a fax transmission satisfies this purpose. OAG 92-13 .

Request for access to annual compliance reports prepared since January 1, 1980 by the Justice Cabinet under the Juvenile Justice and Protective Delinquency Act could be satisfied by production of eleven (11) or twelve (12) documents, and redaction of exempt materials should not constitute an undue burden; therefore, the cabinet should make these documents available for inspection. OAG 92-16 .

Request for “All grant applications, proposals, responses and budgets by, for or from the Commonwealth of Kentucky under the Juvenile Justice and Delinquency Prevention Act” was properly denied pursuant to subsection (5) of this section and KRS 61.878(5). OAG 92-16 .

Where requests were not limited to a particular subject, but instead all records of a particular character were requested, e.g., correspondence and memoranda of communication, relating to the Juvenile Justice and Delinquency Prevention Act for the period since January 1, 1984, given the vast number of documents which fell within the parameters of the request and the difficulties which would have attended any attempt to separate exempt from nonexempt materials, reliance on subsection (5) of this section in denial of the request was proper. OAG 92-16 .

The privileges codified at KRS 421.215 (now repealed) and KRS 319.111 (now repealed) are incorporated into the Open Records Act by operation of this provision, and those privileges do not expire after death; records generated in the course of psychiatric treatment, and protected by these privileges, are exempt from inspection, though they come into the hands of the coroner for the purpose of enforcing KRS 72.410 , et seq; his use of the records must be confined to those purposes, and their distribution prohibited accordingly. OAG 92-24 .

A determination of what is a “reasonable time” for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of separating exempt and nonexempt materials. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect. OAG 92-35 .

Inmate mistakenly asserted that he must be afforded access to nonconfidential documents before he identified those documents; accordingly, the Attorney General opined that inmate must identify the specific documents that he wishes to inspect. OAG 92-56 .

Inmate’s request for a list of prison canteen items and their cost was properly denied where no such list existed. OAG 92-64 .

The Kentucky State Penitentiary (KSP) should comply with KRS 61.880 by issuing responses within three (3) working days; if an open records request is misdirected, places an unreasonable burden on the KSP office, or the requested records are not immediately available, KSP’s response should conform to subdivisions (3), (4) or (5) of this section. OAG 92-64 .

Numerous, often duplicative, requests place an unreasonable burden on the agency. Where several categories of documents over a four (4) year period are requested, such production once entails some inconvenience to the agency but to produce them three (3) and four (4) times requires a level of “patience and long-suffering” that the Legislature could not have intended. OAG 92-91 .

The burden is on the public agency to demonstrate, by clear and convincing evidence, that the request either place an unreasonable burden on the agency or that they are intended to disrupt other essential functions of the agency. Mere invocation of the statute is not sufficient to meet this burden of proof. OAG 92-91 .

Subdivision (3) of this section stipulates that if the person to whom the application is directed does not have the custody of the public records requested, he or she should notify the applicant, and furnish the name and address of the custodian of the records. OAG 92-94 .

A prison inmate has the same right to inspect public records as any other person. The identity of the requester is therefor irrelevant. Under existing law, an agency need not provide copies of records to inmates who are unable to go to the office where the records are kept because of their legal confinement, although it may elect to do so. After July 14, 1992, however, an agency will be required to supply copies of records if the applicant resides outside the county in which the records are located, the applicant precisely describes the records, and the records are readily available within the public agency, upon receipt of a reasonable fee for making copies. OAG 92-94 .

Where agency denied request to make records available on the ground that such request placed an unreasonable burden on the office of a county hospital such denial consisted of little more than an invocation of the statute; the fact that the records were stored off-site was a relevant consideration only insofar as it related to their immediate availability since subdivision (4) of this section provides that if a public record is in active use, in storage or not otherwise available, the custodian should immediately notify the applicant and designate a place, time, and date for inspection not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause for further delay is given and arrangements are made for inspection at the earliest possible date and did not relieve county hospital of its duty to furnish access to nonexempt public records. OAG 92-102 .

Twenty-one (21) days did not constitute an inordinate delay in the release of public records, where the initial open records request was submitted on May 18, 1992, and the requestee responded on May 20, 1992, advising the requester that the requested records must be retrieved and forwarded to requestee’s office to determine if the statutes permit release and that the earliest possible date that the records could be made available would be July 1, 1992, and in fact, the investigation was completed, and the records copied and forwarded to requestee within nineteen (19) work days and the requester was afforded access to the documents within twenty-one (21) work days of his initial request. OAG 92-117 .

“Timely access” to public records has been defined as “any time less than three (3) days from agency receipt of the request.” OAG 92-117 .

The Open Records Act does not prescribe a reasonable time within which a requester must be afforded access to public records. However, subdivision (4) of this section normally requires an agency to notify the requester and designate an inspection date not to exceed three (3) days from agency receipt of the request. A determination of what is a “reasonable time” for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of retrieving those documents. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect. OAG 92-117 .

A request can be made in person, by mail, or by fax transmission. An agency is not relieved of its duty of responding to an open records request simply because the applicant’s request was not hand delivered. OAG 92-123 . (Opinion prior to 1992 amendment.)

OAG 90-24 is overruled; records of a campus law enforcement unit maintained by the unit for the purpose of law enforcement are no longer subject to the federal law, but are instead governed by the Kentucky Open Records Law. OAG 93-3 .

City Manager’s abusive conduct created a hostile atmosphere which rendered the facilities provided by the city unsuitable for inspection. OAG 93-ORD-39.

While a requester cannot expect an agency to provide facilities offering the enforced silence of a library, he may certainly expect that those facilities will afford him adequate opportunity to inspect the records without interruption, and without harassment. OAG 93-ORD-39.

Any notification of a delay in affording access to records in excess of three (3) days must be accompanied by a detailed explanation of the cause and a statement of the earliest date, time, and place on which they will be available for inspection; therefore, the Department for Social Services erred in postponing notification until it could decide “how to best handle a request for records.” OAG 93-ORD-43.

An agency may not elect to release copies of records in any format it chooses without regard to the requesting party’s ability to access those records. OAG 93-ORD-46.

High school site based decision making council subverted the intent of the Open Records Law short of denial of inspection by releasing records to a requester in a format, a computer disk, to which he had no means of gaining access. OAG 93-ORD-46.

While the school superintendent was not the presiding officer of the school board, against whom a complaint was made, failure to direct the letter to the presiding officer is a mere technicality which will not prohibit the invoking of the Open Meetings Act. OAG 93-OMD-61.

Since the Kentucky Association of Counties derives at least 25% of its funds expended by it in the Commonwealth from state or local authority funds, it is a “public agency” for purposes of the Open Records Act and is subject to the provisions of subsection (5) of this section, relating to timely access to public records, as well as the other provisions of the Act. OAG 93-ORD-96.

After a request for certain public records under the Open Records Act, the custodian of such records need only advise the requester that his or her request will be honored and either append the records or notify the requester that they are available for immediate inspection per subdivision (3)(a) or (b) of this section; failure of the custodian to state that the requested records exist or that the records provided are those requested does not constitute a violation of the Act. OAG 94-ORD-15.

A public agency cannot demand or require more in regard to a request to inspect public records more than is required by subsection (2) of this section. OAG 94-ORD-101.

A public agency may require, if it desires to do so, that a request or application for copies of records be in writing. If a written request or application is required, the statute is satisfied if the written application, whether or not submitted on the public agency’s form, contains the following: 1. applicant’s signature, 2. applicant’s name printed legibly, and 3. description of records to be inspected. OAG 94-ORD-101.

While a public agency may require a written application for copies of records, as opposed to an oral request, there is nothing in this section which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records. OAG 94-ORD-101.

If a person cannot describe the documents he seeks to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material. OAG 95-ORD-2.

Objecting to a party’s request to inspect open records kept by the Revenue Cabinet, the Cabinet claimed that the files requested were not readily accessible, that they would have to be manually retrieved and examined which would be “time consuming, unduly burdensome, and disruptive of the essential functions of the Cabinet” especially since the Cabinet’s Legal Services Division already maintained a heavy case load; however, the facts presented by the Cabinet were found to be insufficient to satisfy the Cabinet’s burden of establishing, by clear and convincing evidence, that the party’s request imposed an unreasonable burden upon the agency. OAG 95-ORD-2.

By requesting only the “circuit court agreed judgments” which required payments to the State in excess of ten thousand dollars ($10,000) that were contained in closed files from January, 1993 through September, 1994, the requesting party who sought to inspect open records kept by the Revenue Cabinet satisfied the precondition to inspection, which requires the documents to be of a limited class and the requesting party to be able to identify with reasonable particularity the documents he seeks to inspect. OAG 95-ORD-2.

If an agency then invokes subsection (6) of this section to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden on it. OAG 95-ORD-2.

A request for nonexempt public records which are maintained in a hard copy format, or electronically stored, must be honored regardless of whether the requester’s purpose is commercial or noncommercial. OAG 95-ORD-12.

Where the Lottery Corporation agreed to release information requested but stated that because of the breadth of the request, the information would not be available within the three (3) days required by statute and where the Lottery did not indicate how many documents were implicated by the request or the difficulties it faced in retrieving them, the Lottery improperly delayed access to records since their response failed to contain a sufficiently detailed explanation of the cause for delay as required by this section. OAG 95-ORD-27.

Where appellant had failed to identify a specific record or records which he wished to inspect, but instead made a “standing request” to inspect records electronically stored with the county clerk’s office, his request was not proper under law. OAG 95-ORD-43.

Where the University’s official custodian of records failed to cite any of the “exceptions” to the general rule, found in subsections (4), (5) and (6), the University was obligated to physically retrieve and make available for inspection and for copying the specifically identified requested public records that were housed in a separate location. OAG 95-ORD-52.

The Department may discharge its duty under the Open Records Act by simply opening its records to a person so requesting and allowing him to expend his own time and efforts extracting the information in which he has an interest. Although such person may wish to assert his ancillary right to obtain copies of those records once he has inspected them, providing copies of five thousand (5000) documents is, in and of itself, unreasonably burdensome. OAG 96-ORD-155.

If the requested records are in active use, in storage, or not otherwise immediately available, the agency should refer to subsection (5) of this section to determine its obligations under the Act. OAG 96-ORD-135.

The language at the foot of a facsimile cover sheet warning against “unauthorized dissemination or copying,” which is standard prescriptive language appearing on facsimile cover sheets, does not relieve a public agency of its duties under the Open Records Act, or otherwise abrogate, abridge, or nullify the Act. The language is aimed at notifying unintended recipients of the facsimile transmission that the records contained therein may be confidential, and should be returned to the sender. It does not constitute an independent basis for denying access to public records. OAG 96-ORD-267.

Where response from the Transportation Cabinet, Division of Driver Licensing to a request to inspect various records relating to a client’s licensing process initially required payment to a rehabilitation center for $40.00 for an “in-car driver evaluation” performed at the center, later modified to a cost of $1.00 per page for the report, the Cabinet violated the reasonable fee provision of the Open Records Act, KRS 61.874(3). The courts and the Office of the Attorney General have determined that a charge of ten cents ($0.10) per page is reasonable for a standard 8-1/2 inches x 11 inches paper copy. It should also be noted that under KRS 422.317(1), if the Cabinet had not retained a copy or if the requesting party had not proceeded under the Open Records Act, KRS 422.317(1) may have required a release of the records without charge. OAG 96-ORD-267.

Response of county board of education to request to inspect records containing the results of drug tests administered to school bus drivers that although records were available, counsel was reviewing the matter and a decision would be rendered in ten days was procedurally deficient as a public agency cannot postpone or delay the statutory deadline of KRS 61.880(1). Although the burden on the agency to respond in three (3) working days is an onerous one, the only exceptions to this general rule are found at subsection (4) of this section and did not apply. OAG 97-ORD-2.

City police division did not have to respond to newspaper’s request to obtain copies of all traffic accident reports within the jurisdiction on a weekly basis. Although traffic accident reports prepared by law enforcement officers pursuant to KRS 189.635 are not confidential and are open records, the right to inspect public records attaches only after those records have been “prepared, owned, used, in the possession of or retained by a public agency.” No such right attaches for records which have not yet come into existence. The Open Records Act governs access to existing public records, not to prospective requests. City can require newspaper to submit a new application each time copies of records are requested and city need only honor requests for existing records. OAG 97-ORD-18.

Where requester who lived in one county and records were located in another county he satisfied the first requirement of subdivision (3)(b) of this section. OAG 97-ORD-46.

A requester satisfies the second requirement of subdivision (3)(b) of this section of precisely describing the records, if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail. OAG 97-ORD-46.

Where request for records mirrored the language of KRS 337.522 , although it covered a broad range of records, the request described, in definite, specific, and unequivocal terms, categories of documents which requestor wished to access by receipt of copies through the mail, he satisfied the requirement of subdivision (3)(b) of this section insofar as precisely describing the categories of records he wished to access. OAG 97-ORD-46.

Agency’s response to request that if request were responded to fully it would be too voluminous and would pose a financial and personnel hardship on the Division of Employment Standards Apprenticeship and Training was not sufficient to establish that the requested records are not readily available within the public agency, for the agency did not indicate the number of records implicated by the request, the locations at which they might be stored, or the difficulty in accessing those records. OAG 97-ORD-46.

Upon request for records relating to recruitment and hiring in the Division of Police, the Civil Service Board improperly relied on KRS 61.878(1) to extend its response time to thirty days, under Fed. R. Civ. P. 34(b), and it was instead bound to conform to the procedural requirements of the Open Records Act, and in particular that it respond to the request within three (3) days, and its failure to do so constituted a violation of the Open Records Act. OAG 97-ORD-98.

Where requester of copies of various records relating to recruitment and hiring in Division of Police was engaged in federal litigation with city and Civil Service Board on issues relating to his eligibility as a police recruit and he was represented by an attorney, Board could not refuse to directly communicate with requester regarding his records request and instead communicate with his attorney relying on SCR 3.130, Rule 4.2, since there was no impediment to direct communication between the Board, the Board’s attorney and the requester relative to his open records request. OAG 97-ORD-98.

Cabinet for Health Service properly relied on subsection (6) of this section and 61.878(1)(a), (k) and (l) and various confidentiality provisions found in both state (KRS 209.140 , 210.235 , 214.420 , 214.625 and 620.050 ) and federal law, in denying request for inspection of all nursing facility licensure inspection reports for a two (2) year period where the Cabinet sustained the burden of showing that such request was an unreasonable burden on the Cabinet in describing with specificity the actual volumes of records implicated by the request and where the exemptions to disclosure provided by the state and federal law were mandatory and the difficulty of separation of confidential from releasable informmation constituted an unreasonable burden. OAG 97-ORD-88.

University could not and was not required to furnish former employee records that did not exist; however, the university was obligated to furnish former employee records that had been furnished to the EEOC and KCHR upon prepayment of reasonable copying charges as a public agency cannot withhold public records from an applicant simply because they may be obtained from another source. OAG 97-ORD-87.

Request for documents “pertaining to any sexual harassment complaints” implicating more than 2000 documents, did not place an unreasonable burden upon state agency where the agency offered no proof relative to the difficulty in accessing the records or the problems associated with redacting exempt information from the records, assuming that the records contain exempt information. OAG 98-ORD-45.

A request to examine phone records specifically identified by two telephone lines and eight telephone numbers belonging to known individuals or entities did not place an unreasonable burden upon the agency; it is therefore incumbent upon the agency to review and disclose the specific records; if no records exist which satisfy the request, or if any of the entries requested is properly excludable, the agency must cite the exception authorizing nondisclosure and briefly explain how it applies. OAG 98-ORD-92.

The Open Records Act does not require that an inmate who has been placed in disciplinary segregation be furnished with an escort so that he may exercise his right of on-site inspection, or that the records custodian bring the records to him. He may conduct an on-site inspection, subject to the facility’s governing open records policies, after he is released from disciplinary segregation, or he may access the records by receipt of copies when there are sufficient funds in his inmate account to pay for those copies. Until that time, he must accept the necessary consequences of his confinement. OAG 98-ORD-157.

The Cabinet for Public Protection and Regulation of the Office of Petroleum Storage Tank Environmental Assurance Fund met its burden to establish that compliance with a request to inspect all claim forms containing a request for reimbursement of costs associated with four (4) types of work done and related documentation would place an undue burden on it since requiring the agency to search through 7,724 claim form files, in order to segregate them by categories of type of work, a format by which the agency did not retain its records, would constitute such a burden. OAG 99-ORD-1.

Requests for tax records did not become unduly burdensome on the basis that the requester made four (4) requests in a three and one half (31/2) week period. OAG 99-ORD-4.

Public agencies must demonstrate, by clear and convincing evidence, that a requester’s applications to inspect public records have become unreasonably burdensome. OAG 99-ORD-4.

An inmate’s request to inspect his “entire medical file” was not too general and, therefore, the correctional institution’s denial of the request was improper. OAG 99-ORD-7.

A response by the Kentucky State Police to a request for information regarding the investigation of allegations that involved any activity involving the requester and two (2) other specified persons was proper where the police responded in writing that they had no such records and that the matter was investigated by a specified local police department. OAG 99-ORD-9.

A city properly denied a request to inspect all records relating to the enforcement by the city of all its ordinances, municipal orders, executive orders, and resolutions put into effect by the city council during a certain period as such request did not identify with reasonable particularity any records he wished to review. OAG 99-ORD-12.

A request by an employee of the Kentucky Revenue Cabinet for “all documents, in whatever form, that contain [the requester’s] name or relate to [her], including preliminary and other supporting documentation, from January 1, 1995, to the present” was impermissibly burdensome as the records to which access was requested were not identified with “reasonable particularity,” were not of an identified, limited class, and could have numbered in the thousands. OAG 99-ORD-14.

KRS 61.878(3) vests public agency employees with a right of access to otherwise exempt public records which relate to them; however, it does not relieve public agency employees of the duty to describe those records with sufficient specificity to permit the agency from which the records are sought to identify, locate, and retrieve the records and does not impose an additional duty on the agency to conduct an exhaustive exhumation of records or embark on an unproductive fishing expedition in order to satisfy a nonspecific request. OAG 99-ORD-14.

Public agencies are not required by the act to gather and supply information independent of that which is set forth in public records; the public has a right to inspect public documents and to obtain whatever information is contained in them, but the primary impact of the act is to make records available for inspection and copying and not to require the gathering and supplying of information. OAG 99-ORD-17.

A county board of education did not violate the statute where the requester sought to inspect voluminous records, many of which were not immediately accessible, and the board arranged for the requester to inspect the documents over a two (2) day period beginning 20 days after the statutory deadline for inspection. OAG 99-ORD-26.

This section and KRS 61.874 contain no provision for waiver of the prepayment requirement for inmates; thus, it is entirely proper for a correctional facility to require prepayment and to enforce its standard policy relative to assessment of charges to inmate accounts, despite the delays this may entail. OAG 99-ORD-30.

It is incumbent on all public agencies to designate an employee to fill the role of official custodian and to adopt and post rules and regulations identifying that employee as official custodian so that open records requests can be directed to him for processing and final agency action; if he does not have custody or control of the public record requested, he must notify the requester and furnish the name and location of the official custodian of those records. OAG 99-ORD-30.

Because the requested records were not immediately available for inspection, it was incumbent on the agency to provide a detailed explanation of the cause of the delay and to designate the place, time, and earliest date on which the records could be reviewed. OAG 99-ORD-32.

The Transportation Cabinet afforded timely access to the records identified in a request where the cabinet received the request on January 22, the requestor was notified that the records would be available for inspection on February 2, and the requester exercised his right of inspection on February 3; the cabinet exceeded the three (3) day statutory deadline by only four (4) days and, given the breadth of his request and the number of documents it encompassed, as well as the apparent difficulty in accessing and retrieving those records, this was not an unreasonable delay. OAG 99-ORD-32.

Where the requester sought information from a board of education which was contained in numerous records, the board properly afforded the requester an opportunity to examine the records and to compile the information herself. OAG 99-ORD-33.

The State Treasurer properly denied a request for copies of all unclaimed property reports filed by banks with the Treasury Department for a specified year as the reports contained information of a personal or confidential nature the disclosure of which would have constituted an unwarranted invasion of the owner’s personal privacy and would have required unduly burdensome redaction in order to comply with the request. OAG 99-ORD-34.

A board of education unreasonably postponed the requester’s right of access to public records where the board extended the deadline for inspection of an abbreviated list of records for an additional 27 days, noting that eight (8) of these days were weekends and that its offices would be officially closed on three (3) other days during the 27 day period. OAG 99-ORD-44.

A board of education could not restrict the requester’s right of on-site access to three (3) hours on a single day, notwithstanding that the board elected to assign an employee and a law enforcement officer to monitor the requester’s inspection of the records, where the board acknowledged that no restraining order was issued against the requester to prevent him from entering the board’s offices. OAG 99-ORD-44.

A response by a county attorney to a request for records was sufficient where the response informed the requester that the county attorney was not the keeper of the records and furnished the requester with the name of the custodian of the records. OAG 99-ORD-46.

If a request is made by mail, the official custodian must mail copies of the requested copies upon receipt of all fees and the cost of mailing; there is nothing in the statute which authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the agency. OAG 99-ORD-46.

The Revenue Cabinet did not establish by clear and convincing evidence that disclosure of the Kentucky Revenue Cabinet Protest and Appeals Guidelines, which could be characterized as a general summary of revenue statutes, regulations, and policies and the uniform operating standards and procedures to be followed by cabinet employees to ensure fair and consistent handling of taxpayer protests and appeals, would undermine the agency’s ability to administer the tax laws, thus requiring constant revision of the document. OAG 99-ORD-51.

A requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies; but a requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. OAG 99-ORD-63.

A requester satisfies the second requirement of subsection (3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail. OAG 99-ORD-63.

A request for records did not describe the records sought with reasonable particularity where the requester sought copies of various coal leases, but only identified those leases as leases in which a named person(s) was a party to the lease, without naming the other parties to the leases, the dates the leases were entered into, or the places the leases were entered into. OAG 99-ORD-63.

A request for records was not vague where, in response to a prior request, the requester received two pages which contained printing at the top indicating that they were part of a 14-page fax, and the requester then sought copies of the other 12 pages of that fax. OAG 99-ORD-65.

A request for records to be supplied by mail was sufficiently precise where the language used by the requester to describe the records was the agency’s own language which it had used in a previous denial of another open records request; while such language might be characterized as indefinite, nonspecific, and equivocal if taken out of context, it was sufficiently precise when it appeared in its original context. OAG 99-ORD-66.

A county fiscal court violated the Open Records Act in denying a request that copies of various records relating to animal control in the county be mailed to the requester where the court did not argue that the requested records were excluded from public inspection by one or more of the exceptions codified at KRS 61.878(1) and did not argue that the requested records were not precisely described or not readily available with the agency and, instead, incorrectly asserted that it was not required to examine the records, sort through them, copy the records, and mail them to the requester. OAG 99-ORD-67.

The Department of Workers Claims did not violate the Open Records Act in a request for certain data from the department’s coverage/compliance database as the department did not maintain the requested information in the format proposed by the requester and special programming would have been required to fulfill the request. OAG 99-ORD-68.

A request for records was sufficiently precise, as required by subsection (3)(b), as the description, although not precise as to date and other identifying information, was sufficiently specific and of an identified, limited class to enable the use of a search method reasonably expected to produce the records. OAG 99-ORD-70.

A request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and it generally need not be honored; such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. OAG 99-ORD-70.

The Transportation Cabinet was not required to answer a series of questions relating to construction, accidents, and the volume of traffic on various roads as public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records, and such conclusion was not altered by the fact that past administrations have furnished the same information to other individuals since the Open Records Act does not prohibit a public agency from voluntarily providing information in response to a request for same, it simply does not require the agency to do so. OAG 99-ORD-71.

The Kentucky State Penitentiary properly denied an inmate’s request for a copy of all grievances he had filed against the medical department at the penitentiary since grievances were not filed under inmate names but by year and the grievance numbers, and it would have been unduly burdensome to manually retrieve the requested records from among 4,000 to 5,000 records. OAG 99-ORD-79.

The Office of Education Accountability (OEA) properly denied a request for records pertaining to its director’s computer pursuant to subsection (6) based on information received by the OEA from a credible source that the requester intended to attempt to hack into the hard drive of the computer after receiving the records. OAG 99-ORD-96.

An agency is not required to satisfy an identical request a second time in the absence of some justification for resubmitting that request. OAG 99-ORD-107.

Where an agency did not describe with any degree of specificity the volume of records implicated by a request for records, the difficulty in assessing the records, or other problems associated with redacting exempt materials from those records, the agency’s response was substantively deficient because the agency failed to meet its burden of establishing by clear and convincing evidence that producing the requested records would place an unreasonable burden on it, justifying a denial of the request. OAG 99-ORD-180.

Because the requester lived in the county in which the requested records were located, she could be required to view the requested records at the offices of the agency before obtaining copies. OAG 99-ORD-180.

A correctional facility’s offer to provide an inmate in segregation with copies of a requested document upon prepayment of the appropriate copying fee or to reapply for the opportunity to inspect once he was released from segregation was consistent with the Open Records Act. OAG 99-ORD-181.

An agency complied with the statute when it responded to a request for records by informing the requester that it did not have the requested record, advised the requester of the name and location of the official custodian of the requested record, and forwarded the request accordingly. OAG 99-ORD-200.

In connection with a request for copies of any and all minutes of a city that mentioned the requester during a specified period of time, the city was not obligated to mail copies upon request inasmuch as the requester worked in the county where the records were maintained and he failed to precisely describe the records he wished to access by receipt of copies. OAG 99-ORD-210.

The temporary absence of a dog warden did not render unavailable financial information, expenditures, and other public records of a county fiscal court relative to the providing of animal control services. OAG 99-ORD-222.

A county fiscal court erred in postponing action on a request for ten (10) days without explanation and without reference to subsection (5) and in characterizing the request as so nonspecific as to preclude the fiscal court from determining what records were requested. OAG 99-ORD-225.

A request for records could not be denied on the basis of subsection (6) since mere invocation of the subsection did not sustain the agency’s burden and the agency did not describe, with any degree of specificity, the volume of records implicated by the request, the difficulty in accessing the records, or the problems associated with redacting exempt material from these records. OAG 99-ORD-225.

Although the statute clearly authorizes a public agency to adopt a uniform policy requiring that requests for records be submitted in writing, it does not authorize a policy of selective enforcement. OAG 00-ORD-1.

A request for “Any and all records of the person(s) who made the decision to place [the requester] … on agency directed sick leave” and, thereafter, to suspend her was properly denied since the request was a blanket request for information and failed to identify the records sought or the names of the persons whose records were being sought with sufficient specificity to enable the agency to identify, locate, and retrieve the records. OAG 00-ORD-7.

A county fiscal court did not violate the Open Records Act by affording the requester access to printouts of the records which were responsive to his request rather than permitting him to inspect the “original documents” which were stored in its computer database; however, the court could not recover its actual costs for reproduction where copies were not requested. OAG 00-ORD-8.

A county fiscal court violated the statute when it required that requests for records be submitted by means of first class mail, as opposed to hand delivery or facsimile. OAG 00-ORD-8.

An agency failed to establish that the requester’s multiple requests for records had become unduly burdensome or intentionally disruptive where the record demonstrated a total of only thirty (30) requests in twenty (20) months. OAG 00-ORD-72.

An agency may properly require all records requests to be routed through its official custodian to ensure the timely and orderly processing of open records requests. OAG 00-ORD-73.

The policy of a county fiscal court that it would not allow on-site inspection of public records and instead only provide copies of the requested records through the mail constituted a violation of the Open Records Act since such a policy denied a requester of her statutory right to an on-site inspection and might subject a requester to payment for unwanted records which she may not have selected had the opportunity for on-site inspection been provided. OAG 00-ORD-74.

It is properly within the discretion of an agency and its official custodian of records to determine whether a requester may remove original records from the offices of the agency to be copied or whether she could use her own equipment and materials to copy the records. OAG 00-ORD-74.

An out-of-county requester failed to precisely describe the records that he wished to have copied and mailed to him where he described the general nature of the records he was seeking, i.e., records relating to granting of easements for connecting to sewer lines during a specified period and the relevant activities of the city’s legal counsel and fees associated with the granting of the easements, but failed to describe the precise records he was seeking. OAG 00-ORD-79.

Although an agency timely responded to an initial open records request, the response was procedurally deficient to the extent that it failed to inform the requester as to the earliest date the requested records would be available for inspection; telling the requester that she would be advised “as soon as we learn” was not definite enough to meet the requirements of subsection (5). OAG 00-ORD-88.

A county fiscal court properly responded to a request for records where the request was addressed to the “Chief Administrative Officer of [the] County Fiscal Court c/o … County Judge-Executive” and the court responded by informing the requester that he should send his request to the official records custodian at a specified address. OAG 00-ORD-94.

While the requester’s refusal to observe established open records procedures was indicative of a lack of good faith, the record did not contain sufficient evidence to support the claim that the requests were intended to disrupt the agency’s essential functions. OAG 00-ORD-94.

The requestor did not precisely describe the records sought and the records were not readily available and, therefore, she was not entitled to have copies of the records mailed to her, notwithstanding that her residence was outside the county in which the records were located, since her request was an “open ended any-and-all-records-that-relate-type of request” and the records were maintained by several different county entities. OAG 00-ORD-75.

The Department of Local Government properly denied broadly worded requests for internal communications containing specified words and phrases as such requests imposed an unreasonable burden on the department in producing public records. OAG 00-ORD-132.

A city improperly relied on the statute when it denied a request to inspect the computerized city check registry, notwithstanding the assertion that it would be too difficult to separate confidential from nonconfidential materials because of the substantial volume of records involved; the city’s assertion that there were 800 records in 27 files and that more than 300 lines required redaction did not constitute clear and convincing evidence of an undue burden. OAG 00-ORD-133.

A response to a request for records properly noted that the records were in the custody of a different public official and provided the address for that official. OAG 99-ORD-154.

It was incumbent on a board of education to adopt a uniform policy relative to release of board packets for upcoming meetings. OAG 99-ORD-155.

A board of education was not obligated to honor a standing request for access to board packets for upcoming meetings. OAG 99-ORD-155.

The Department of Corrections failed to establish clear and convincing evidence of an unreasonable burden in producing complaints brought against the Kentucky Department of Corrections or any of its divisions or against the Kentucky Parole Board during the past two (2) years that involved the issue of drug testing by Kentucky probation and/or parole officers. OAG 00-ORD-180.

A city’s delay of three (3) months in providing requested records constituted a procedural violation of the Open Records Act. OAG 00-ORD-184.

A city failed to establish that a request for records pertaining to a wastewater treatment facility placed an unreasonable burden on the city and was intended to disrupt essential functions where the request was for an identified, limited class of records for a discrete period of time and the only support for the city’s contention was that the city clerk expended five (5) hours in redacting information for which exemption was claimed and that the requester continued to inquire into the status of his request after an informal agreement on an extension of the three (3) day deadline for agency response. OAG 00-ORD-188.

A requester was not entitled to have records mailed to him since he lived in the county in which the requested records were located. OAG 00-ORD-205.

The Labor Cabinet failed to produce clear and convincing evidence that disclosure of certain information pertaining to work-related fatalities over a multi-year period would have placed an unreasonable burden on the cabinet where the cabinet did not describe with any degree of specificity the volume of records implicated in the request or the difficulty in accessing the requested documents and the denial consisted of little more than a recitation that the 47 files at issue were large and that it would take two (2) weeks of full time work to retrieve and review the files. OAG 00-ORD-210.

A county fiscal court properly required the requester to inspect the records at issue before furnishing him with copies, as he lived an worked in the county in which the records were located, even though this might require that he use at least a portion of a vacation or personal day to briefly inspect, and then receive copies of the records. OAG 00-ORD-211.

A settlement agreement between a party litigant and a school district, sealed or unsealed, is a public record and cannot be withheld from public disclosure, unless the document is properly excluded from disclosure by one or more of the applicable exceptions of KRS 61.878(1) of the Open Records Act or other applicable law; if the settlement agreement is sealed by order of a court, the question of whether the document is subject to public inspection must be raised in the judicial system, and the burden of showing that the record is exempt from disclosure falls upon the public agency or the affected party. OAG 01-6 .

Where requester sought records relating to the asbestos inspection and maintenance at local high school, the response of the school was in substantial compliance with the Open Records Act when the principal of the school notified the requester that he had not been able to find the requested records, and, in the alternative, he provided the requester with the address and telephone number of the architectural firm that drew up the requested records. OAG 01-ORD-2.

KRS 61.872(2) does not authorize public agencies to inquire into a requester’s motives in seeking access to public records, or to consider those motives in determining whether the records should be released. The police department therefore erred in inquiring into and denying the request on the basis of the requester’s “invalid” reasons for requesting these reports. OAG 01-ORD-8.

If an agency invokes KRS 61.872(6) as a basis for the nondisclosure of requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden on it. This burden is not sustained by the bare allegation that the request is unreasonably burdensome. OAG 01-ORD-8.

Where police department proposed that requester inspect the requested documents in person rather than being provided copies, if the requester both resides and works in the county, there is no error in the department’s position, notwithstanding the fact that the requester may be required to use his personal or vacation time to conduct an on-site inspection. If the requester works outside the county, the department is in error in refusing to furnish him with copies of records that are precisely described and readily available within the agency. OAG 01-ORD-8.

KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. The response in this instance was deficient in failing to state the place, time, and earliest date certain on which the records would be available. OAG 01-ORD-38.

Since KRS 61.872(3)(b) and KRS 61.874(1) contain no provision for waiver of the prepayment requirement for inmates, it was entirely proper for the correctional facility to require prepayment and to enforce its prepayment policy relative to assessment of charges to inmate accounts. OAG 01-ORD-44.

The Department of Corrections did not violate the Open Records Act in denying an inmate’s request to inspect records maintained in its central office in Frankfort since the inmate was restricted from on-site inspection by virtue of his incarceration and properly required prepayment for copies of non-exempt records from that facility. OAG 01-ORD-44.

The fact that the requester wished to obtain a copy of the specific and individual policy, as opposed to the entire policy handbook, did not transform his request for a document into a request for information. The fact that he could not identify the desired policy by page and section number did not render his request imprecise or nonspecific. The request was a properly framed request for an individual policy or policies pertaining to the subject, and the school district was statutorily obligated to furnish him with copies of the policy or policies, as opposed to the entire handbook, or unequivocally advise him that no responsive policy exists. OAG 01-ORD-51.

The fire districts must honor a request for copies of precisely described public records that are readily available within the districts’ offices if the requester resides, or has his principal place of business, outside Campbell County, and if the requester pre-pays a reasonable copying charge not to exceed ten cents ($0.10) per page, plus postage. If the requester both resides and works in Campbell County, the districts may properly require on-site inspection as a precondition to furnishing him with copies, but may also accommodate the request “within the bounds of the efficient operation of” the districts by mailing him copies. OAG 01-ORD-75.

Although the records descriptions are certainly nonspecific when viewed in the abstract, it is not any and all “notes” generated by the districts that the requester wishes to access, but “notes” generated by the districts in relation to the April 9, 2000 fire on the NKU campus. The requests satisfy the standard insofar as they are definite, specific, and unequivocal as to category (i.e., notes, fire marshal reports, logs) and incident (i.e., the April 9, 2000, fire at the NKU campus). OAG 01-ORD-75.

The record does not suggest that the custodian of records made “a good faith effort to conduct a search using methods which could reasonably be expected to produce the requested records,” but instead relied upon his limited knowledge of available records. The methodology employed did not constitute an adequate search. The custodian’s exclusive reliance on his own knowledge of existing responsive records, and failure to document a good faith effort to identify and locate the requested records using methods that could reasonably be expected to produce the records, did not satisfy the agency’s statutorily imposed burden of proof in sustaining its action. OAG 01-ORD-81.

Whatever the status of the ballots when the parents cast their votes at the PTA election, once they were conveyed to the school they became public records because they were “in the possession of or retained by a public agency.” The record before us does not support the school’s position that it lacked custody or control of the parent election records. Nothing in KRS 160.345(2)(b)1. addresses the disposition of open records requests for records generated in the course of a PTA election or in any way vests exclusive custody and control of parent election records in the PTA. OAG 01-ORD-94.

Because the requester affirmed that his principal place of business is outside the county, and the police department failed to produce any persuasive proof to the contrary, the department is required to mail the requester copies of the records identified in his request upon receipt of all fees and the cost of mailing. OAG 01-ORD-162.

Since the requester failed to describe the records he wished to access by receipt of copies through the mail in definite, specific, and unequivocal terms, and therefore failed to satisfy the requirements of KRS 61.872(3)(b), even though he resides and works outside of the county, the county may require him to conduct an on-site inspection of the records prior to furnishing him with copies of the records. OAG 01-ORD-185.

While the county went beyond its duties and obligations in creating a record containing the responsive information, and is to be commended for its attempt to accommodate the request, the requirements of the statute are not fully discharged until existing documents substantiating that information are disclosed. Acknowledging that the county’s efforts in this matter were meritorious, the county must retrieve the records from which the information was extracted, calculate its actual costs at a rate of ten cents ($0.10) per page for copies, plus postage, notify the requester of the costs, and mail copies of those records to him upon receipt of this amount. OAG 01-ORD-195.

Although the out-of-county request, notwithstanding the fact that it covers a broad range of records, satisfies the second requirement of KRS 61.872(3)(b) insofar as the requester’s attorneys precisely describe the records to which access is sought, the record supports the agency’s claim that the requested documents are not “readily available within the public agency” and the agency properly refused to copy and mail the requested documents. OAG 01-ORD-225.

An “outside the county” requester that elects to access public records through the mail rather than to make an on-site inspection bears a greater burden in describing the records he is asking the agency to locate, copy, and mail to him. OAG 02-ORD-26.

Although the agency’s original response to the request failed to satisfy the requirements of KRS 61.872(5), relative to detailed notification to the requester of the cause for delay beyond three business days and the earliest date for inspection, the agency explained the problems associated with retrieving the records in its supplemental response. Given the broad parameters of the request, the difficulties in locating and retrieving responsive records, and the necessity of reviewing them for purposes of redacting private information pursuant to KRS 61.878(1)(a) and 61.878(4) prior to disclosure, the fourteen (14) day extension of the deadline for inspection was not unreasonable. OAG 02-ORD-62.

The information the requester was required to submit in the “Request for Reproduction of PVA Public Records,” relating to his specific purpose in requesting the records, and including the “Non-Commercial Applicant’s Certified Statement,” exceeded the permissible limits of KRS 61.872 and KRS 61.874(4)(b). Further, a request submitted by an individual acting on behalf of a political candidate, whether paid or unpaid, cannot be characterized as a request submitted for a commercial purpose. OAG 02-ORD-89.

Where the school system employed mandatory language, instructing the requester to call or write to set an appointment to view and/or copy the records, notwithstanding the school system’s earlier assertion that it would permit access to nonexempt public records during regular business hours of the school board office, this response required the requester to make an appointment. In so doing, the school system improperly restricted the hours of access to public records and thereby violated KRS 61.872(3)(a). OAG 02-ORD-114.

Where the records custodian directed her inquiry to the first, and most obvious source, of data relating to student athletes, it would not have been overly burdensome for her search to extend beyond the athletic directors to the assistant directors, or other personnel in the athletic departments or the schools’ administrations, who could reasonably be expected to maintain records relating to the student athletes. The fact that a responsive database was located in one of the high schools on the third and final inquiry only after the appeal was initiated, suggests the inadequacy of the earlier searches. OAG 02-ORD-120.

Since the requester failed to describe the records she wishes to access by receipt of copies through the mail in definite, specific, and unequivocal terms, she failed to satisfy the requirements of KRS 61.872(3)(b). Because the records were not precisely described, they cannot be characterized as records that are readily available within the offices of the public agencies. This being the case, the agencies may require her to conduct an on-site inspection of the records prior to furnishing her with copies of the records. Having extended an offer to to conduct an on-site inspection, the agencies fully discharged their duties under the Open Records Act. OAG 02-ORD-129.

Given the broad parameters of the request and the difficulties in locating and retrieving responsive records, an extension of the deadline for inspection of just under one (1) month was not unreasonable, especially in view of its ongoing production of records within that time period. OAG 02-ORD-142.

The Kentucky Community and Technical College System is a public agency, and any documentation, regardless of physical form or characteristics, which is prepared, owned, used, in the possession of or retained by a public agency is a public record pursuant to KRS 61.870(2). Records that are generated by or for KCTCS officials or employees who serve on their President’s Cabinet or teams, or that are directed to KCTCS officials or employees, are public records and subject to the mandatory disclosure requirements of the Open Records Act unless otherwise exempt pursuant to KRS 61.878(1)(a) through (l). OAG 02-ORD-142.

The department apparently directed its inquiry to the first, and most obvious, source of responsive records, its computer. Since that computer having been infected by a virus, and the records stored therein having been rendered irretrievable, the department made no effort to extend its search beyond the obvious. In the absence of any verifiable statement that the only existing copies of the requested records were maintained on the department’s computer, the department did not conduct a search using methods which could reasonably be expected to produce the records requested. OAG 02-ORD-149.

The record supports the estimated one month delay, where the requester requested copies of all preliminary and final development plans submitted to the planning commission for Houston Creek Drive and Bourbon Hills Drive, “including, but not limited to, plans for Houston Creek Villas, Bourbon Hills and Houston Creek Townhomes,” and the minutes of meetings at which any of these plans was discussed, for a twenty-two (22) year period. OAG 02-ORD-158.

The request for any and all files or documents that relate to the requester is overbroad, and a search for all responsive records that cover a six (6) year period would impose an unreasonable burden on the agency. OAG 02-ORD-161.

Where, among other things, the request covers records maintained over a period of twenty-two (22) years, the agency does not maintain a compendium of the requested information, the Cabinet licenses and certifies over 300 nursing facilities in this state, the Cabinet maintains all records by facility/fiscal year, and the Cabinet does not maintain decisions on the rate, by appeal, by decisions on appeal, or by issue, the Cabinet properly denied the request as overbroad pursuant to KRS 61.872(6). OAG 02-ORD-196.

The medium in which the Kentucky State Police has elected to store the record should not operate as a bar to public inspection if the record is otherwise nonexempt. The agency cannot, for example, factor the ten (10) hours that it claims was required to restore the corrupted agency file into its calculations. Restoration of a corrupted agency file is an agency records management issue and not an open records issue. OAG 02-ORD-204.

The Child Support Division was not obligated to conduct legal research in order to locate records that contain the procedures and criteria, and proof of procedures, as requested, since the Division did not maintain a separate procedures manual. OAG 02-ORD-213.

The Jail’s initial response did not conform to the specific requirements set forth at KRS 61.872(5). Although the Jail indicated that the records would be available for inspection some thirty (30) days later, its response did not contain a detailed explanation of the cause of the delay. OAG 02-ORD-217.

The broadly worded request, coupled with the requester’s past pattern of conduct and his conviction for harassing communications related to activities aimed at causing annoyance and harm to past and present city employees and serving no purpose of legitimate communication, support the City’s position that his October 2 request was intended to disrupt the city’s essential functions. The city properly denied of the request on the basis of KRS 61.872(6). OAG 02-ORD-230.

While the Department’s entire database may contain more or less information than the requester seeks, it clearly contains information that is responsive to her request and the Department is obligated to afford her access to it after redacting individual Medicaid recipient information and other information made confidential by federal enactment. Redaction of the latter information from an existing database is not equivalent to nonobligatory creation of a new record. OAG 03-ORD-04.

Campaigning for reelection, or discharging duties associated with private employment, do not provide a sufficient legal basis for temporarily suspending the legal obligations imposed on a public agency by KRS 61.880(1). Invocation of, and reliance upon, KRS 61.872(5) should occur on rare occasions and only when the circumstances are such as to clearly warrant extension of the standard three day deadline for agency response and release of records. OAG 03-ORD-05.

A request for access to a personnel file requires no greater degree of specificity than any other open records requests, and that the agency must therefore “determine what is and is not subject to Open Records.” Pursuant to KRS 61.878(4), the agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, cite the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld. OAG 03-ORD-12.

Where the revised request was e-mailed to the head of the agency at his home via a private and unpublished e-mail account, since the request was not sent or delivered to the office of the public agency, but to a private e-mail address, it was not delivered in accordance with the requirements of KRS 61.872(2) and, thus, the failure to respond did not constitute a violation of the Open Records Act. OAG 03-ORD-19.

KRS 61.872(2) provides that a public agency may require that open records requests be in writing, but the Open Records Act does nor mandate it. So long as an agency meets the minimum requirements of the Act in timely responding to an open records request, it cannot be said to be in violation of the Act. OAG 03-ORD-24.

The Board did not violate the Open Records Act in failing to provide a copy of the minutes of its regular December 6th meeting and the December 13th recessed or adjourned meeting on the basis that they had not been approved and adopted as the official minutes of the Board, since the approval would not occur until the next regularly scheduled meeting in March. OAG 03-ORD-33.

It is entirely proper for the City to require prepayment of a reasonable copying charge that does not exceed the actual cost of duplication, not including staff costs, and to enforce a standard policy relative to assessment of those charges. Moreover, KRS 61.872 and KRS 61.874 contain no provision for the waiver of such fees for any party. OAG 03-ORD-57.

The City’s response to the request was deficient insofar as it failed to provide a detailed explanation for its inability to produce the records requested within three business days as required by KRS 61.872(5). “An extremely heavy workload” does not constitute a legitimate basis for postponing a requester’s right of access, or even minimally constitute a “detailed explanation.” OAG 03-ORD-83.

Where the City indicated that responsive records would be available for inspection on a certain date between the hours of 12:00 p.m. and 4:00 p.m., this represents an unreasonable restriction on the right of inspection in contravention of KRS 61.872(3)(a); an individual has a right to inspect public records during the regular office hours of the public agency and any attempt by a public agency to limit the period of time within which a requester may inspect public records places an unreasonable and illegal restriction upon the requester’s right of access. OAG 03-ORD-83.

The preprinted form developed by the agency, requiring the requester to indicate whether he is a representative of the news media or the reasons for his request and requiring a requester to verify his identity by producing a driver’s license or other form of identification, creates a potential chilling effect on submission of open records requests that is inconsistent with the basic policy of the Open Records Act codified at KRS 61.871 . OAG 03-ORD-86.

Western Kentucky Correctional Complex (WKCC) did not properly respond to an inmate’s open records requests for “all” records from his inmate file. The request were sufficiently specific to require the WKCC to respond to the request, since the request was limited to a specific class of documents. In addition, WKCC was obligated to identify and withhold those documents for which statutory protection exists from the requested inmate file and to provide him with a written explanation including citation to the statute authorizing nondisclosure. OAG 03-ORD-117.

Thirty (30) Open Records requests in a period of approximately eighteen (18) months is not per se burdensome under the Open Records Act. OAG 03-ORD-157.

If the City refused to provide copies of the requested records because the requester did not sign the agency’s official request form, its actions were contrary to the requirements of the Open Records Act; if the request that the requester faxed to the City contained his signature and his name was printed legibly and described the records to be inspected, that would have met the minimum requirements for inspection. There is no requirement in the Act that requires a requester to acknowledge receipt of the copies he receives prior to receiving the copies. OAG 03-ORD-183.

Although it is incumbent on the Fiscal Court to ascertain whether records exist that are responsive to the request, to promptly advise the requester of its findings, and to release to him all existing records identified in his request, it is not, however, incumbent on the Fiscal Court to certify the appropriate records in such manner that they may be introduced as evidence in a Court of Law. Such a requirement does not exist in the Open Records Act. OAG 03-ORD-207.

Where the City described, in detail, the problems associated with retrieving and duplicating the nearly 6,000 pages implicated by the request, provided a date on which the copies would be available, and the City extended an offer to the requester to conduct an onsite inspection of the requested records during regular business hours in the intervening period, the four (4) week delay in reproducing the voluminous and widely dispersed records was not inordinate, and the City’s explanation for the delay was adequate for purposes of KRS 61.872(5). OAG 03-ORD-248.

Where the requester requested a broad range of financial and operational records of the City for periods of time as great as 23 years, and did not request a specific record or records, but categories of records such as invoices, check registers, documentation for income received, grant papers, and complaints or summons, such a description is not “clear” or “very specific.” OAG 03-ORD-248.

The City is entirely correct in the view that its employees have no express obligation to assist the requester should he elect to conduct an onsite inspection of nonexempt public records. Public agency employees are not required to provide instruction in understanding the meaning or impact of information which appears upon records produced. Instead, they are required to make available for inspection, during normal office hours, the record requested and thereafter permit the requester to make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. OAG 03-ORD-248.

Where the Cabinet indicated that because the division’s records were not indexed in a manner in which the requested information could be retrieved, the request would require that 1,485 over-time case files be pulled and reviewed manually to determine which files might meet the request, and once the relevant files had been pulled, they would have to be sanitized by separating exempt for nonexempt materials which would disrupt the Division of Employment Standards for several weeks, the Cabinet met its burden of establishing that compliance with the request would place an unreasonable burden on the agency. OAG 03-ORD-254.

Given the requester’s confinement at EKCC, he is foreclosed from exercising the right to on-site inspection of the requested record codified at KRS 61.872(3)(a). Instead, he must “precisely describe” the record “which he wishes to access by mail.” The inability to satisfy this threshold requirement relieves the County Clerk of the duty to conduct a search for a responsive record which may or may not exist, but that is clearly not readily available within the public agency. OAG 04-ORD-11.

Because the corporation does not fall within the parameters of KRS 61.805(2)(a) through (h), defining the term “public agency” for purposes of open meetings analysis, the corporation was not governed by the Open Meetings Act, Thus, the corporation has no obligation under the Open Meetings Act to create, or otherwise afford the public access to, minutes of its meetings, and the corporation properly denied the open records request for its minutes. OAG 04-ORD-12.

Unless the inmate can explain the necessity of reproducing the same records which either already have been provided or have been inspected by him at a prior facility, such as loss or destruction of the records, there is no reason why the agency must satisfy the same request a second time. OAG 04-ORD-18.

Since the agency does not indicate the locations at which the requested records might be stored or otherwise elaborate as to the difficulty in accessing those records, although the request may very well involve “thousands of documents,” such a “voluminous” request is not necessarily unreasonably burdensome. In the absence of any evidence to support the bare allegation that granting the request places an unreasonable burden the agency, the requested records are readily available within the agency. OAG 04-ORD-28.

Although some of the records requested may be privileged or contain exempt information, the fact that the agency will have to separate confidential documents from nonconfidential documents cannot serve as a basis for denying a request under KRS 61.872(6). OAG 04-ORD-28.

While the interest implicated may not rise to the level of public security and administrative order, it could not have been the Legislature’s goal to require disclosure of football practice video tapes of state supported educational institutions. Open records requests for such tapes may properly be denied under KRS 61.872(6) as unreasonably burdensome because their disclosure will necessitate an immediate revision of the subject team’s strategy, tactics, and plays. Thus, the Open Records Act authorizes nondisclosure of the requested records. OAG 04-ORD-58.

The city’s four plus week extension of the deadline for inspection was unreasonable where the city belatedly acknowledged that it could produce records containing the information sought but stated that the process of counting the pages, sending an invoice, and removing protected information would “take an uncertain period of time.” Clearly, this response did not satisfy the second requirement in KRS 61.872(5) because it did not indicate the place, time, and earliest date on which the records would be available for inspection. OAG 04-ORD-63.

The City failed to satisfy its statutory burden of proof in denying the request for access to the minutes and records of the Cemetery Caretaker Committee on the basis of KRS 61.872(6). The requester has not requested that copies of these records be mailed to him, but has only asked that he be afforded an opportunity to inspect records of a single city committee for a period of slightly more than two (2) years, and the the city has adduced no proof of a single request of unreasonable scope or multiple requests collectively constituting an unreasonable demand. OAG 04-ORD-66.

The faculty meeting agendas for the high school faculty meetings and the schedule of regular faculty meetings for the academic year, if they exist, are clearly public records for which no statutory exemption is, or in all likelihood, can be invoked. Although they are generated by and/or for a group to which the Open Meetings Act has been determined not to extend, they are records that are prepared, owned, used, and, at some juncture, in the possession of a public agency, namely, Lincoln County High School. OAG 04-ORD-98.

The City’s sending the requested records by certified mail and charging the requester for that cost is excessive and unnecessarily adds to the cost to the public for access to public records. While there may be circumstances on occasion for sending public records by certified mail, the extra cost in doing so must be absorbed by the public agency. Regular mail delivery is sufficient under the Act. OAG 04-ORD-100.

Since the hospital was not obliged to honor the first two (2) requests submitted, since it may recover a substantial portion of its costs pursuant to KRS 61.874(3), since the uses to which public records are put have no bearing on the validity of the requests that produce them, and since the records are of a discrete, limited class that have traditionally been treated as nonexempt public records, the record on appeal contains insufficient empirical evidence to support a claim under KRS 61.872(6). The record on appeal requester submitted three requests in a two (2) month period, but does not reflect the personnel hours expended or estimated costs incurred in fulfilling those requests. For this reason, the hospital’s reliance on KRS 61.872(6) was misplaced. OAG 04-ORD-113.

Since the records requested are of an identified, but by no means limited, class, and based on the sheer volume of records implicated by the request, coupled with the difficulties associated with separating excepted and nonexcepted materials, invocation of KRS 61.872(6) is warranted in this case. There are some 20,000 files are at issue, and each file contains attorney work product and privileged material, as well as property appraisals which may be protected by KRS 61.878(1)(f), even if the case is closed, if adjoining properties have not been acquired. OAG 04-ORD-117.

Regardless of where records pertaining to drainage matters are located, they were prepared, owned, and used at the instance of the city and are therefore essentially the city’s documents. Although the private attorney holds them as custodian on the city’s behalf it is their nature and purpose that is determinative of their status as public records. There is no support for the proposition that the city has no control over its own records, wherever they are reposed, and they are public records as defined at KRS 61.870(2). OAG 04-ORD-123.

Because these records are city records, it is reasonable to require their production on city premises. Since the City of Windy Hills maintains a city hall wherein the records can be inspected, the records consist of a single file which can easily be transported the seven (7) miles from the private attorney’s downtown office to the Windy Hills City Hall, it is incumbent on the city to produce the requested records in suitable facilities located in its city hall. OAG 04-ORD-123.

Given the relatively narrow parameters of the request, by time frame as well as subject, a delay of over one month was unwarranted, particularly in light of the fact that the city offered no written explanation for that delay. OAG 04-ORD-138.

A public agency has no authority to ignore a misdirected request pursuant to KRS 61.872(4). The fact that the City Clerk is the official custodian of public records maintained by the City did not relieve the Police Chief or the Mayor of their statutory obligation to promptly so notify the requester, in writing, and to furnish the name and location of the official custodian of the agency’s public records. OAG 04-ORD-216.

The school district violated KRS 61.880(1) in failing to respond to the request because the requester did not comply with a Board of Education policy requiring the submission of an open records request on a preprinted form developed by the Board. The October 25 request conformed, in all particulars, with the requirements found at KRS 61.872(2). It was therefore incumbent on the school district to respond in writing, and within three business days, to that request. OAG 04-ORD-242.

Insofar as the record did not contain clear and convincing evidence that an individual requesting all records pertaining to complaints against city employees intended to disrupt other essential functions performed by the city, or that honoring his request would otherwise be “unreasonably burdensome,” the city did not satisfy its burden of proof relative to KRS 61.872(6). To the extent that the request was duplicative, an issue which could not be resolved on the existing record, the city was not statutorily obligated to honor the request absent some explicit justification for reproducing identical records. OAG 05-ORD-21.

Where in a jailer’s initial denial of a request for grievances and in his supplemental response to notification of receipt of the open records appeal, he did not, for example, indicate how long he had held office, the number of grievances implicated by the request, the difficulties in accessing those grievances, or the problems otherwise associated with production, the jailer did not meet the requirements of KRS 61.872(6). OAG 05-ORD-24.

Where, in response to a question as to how many court actions for the collection of delinquent taxes were filed by his office, a county attorney affirmatively advised that such a record was not maintained and explained that the Circuit Court kept records of cases filed and might have records containing the information being sought, this response was consistent with the requirement of KRS 61.872(4). OAG 05-ORD-45.

A request for any and all records of a particular type, or which contain a specific name, term, or phrase, is not a properly framed open records request, and generally need not be honored; accordingly, a police department did not violate the Open Records Act in denying a request for “any and all complaints pertaining to any officer within the department” on this basis. OAG 05-ORD-57.

Although an agency expressed the good faith belief that requests for financial and operational records were unreasonably burdensome and intended to disrupt its essential function, the record did not contain clear and convincing evidence supporting that belief; the submission of two (2) requests per month or the allocation of staff resources of less than 10 hours per month was not indicative of an unreasonable burden or an intent to disrupt. OAG 05-ORD-67.

An individual’s overly broad and blanket in character request for previously requested and provided records, coupled with his pattern of conduct in previous open records requests of requesting voluminous documents and, after being provided access to those records, he either did not inspect the records or inspected only a small portion of them, reflected an attempt to unduly burden the agency and disrupt its essential functions. Therefore, denial of his request on the basis of KRS 61.872(6) was affirmed. OAG 05-ORD-121.

Office of Charitable Gaming improperly relied on KRS 61.872(6) in denying a request for renewal applications submitted by charitable organizations and resulting appeals and temporary license issuance on the basis the request was submitted for the purpose of disrupting its essential functions or is otherwise unreasonably burdensome. The requester’s right to inquire was not forfeited by the fact that he had signed an agreement not to engage in charitable gaming activities. OAG 05-ORD-152.

The Kentucky State Police violated the Open Records Act in denying a request to inspect lab reports on the basis of KRS 61.872(6) because, although the inspection may take some time, it was not established by clear and convincing evidence that granting the request would be unreasonably burdensome. OAG 05-ORD-172.

A county Judge-Executive violated the Open Records Act in denying, on the basis of KRS 61.872(6), a request to inspect documents pertaining to all money received from state and federal programs by the county during a two (2) year period. OAG 05-ORD-240.

Having affirmatively indicated to the requester in writing that no videotape matching the description provided existed, albeit belatedly, and offered a credible explanation as to why no such record existed, a police department complied with the Open Records Act. OAG 06-ORD-012.

Applying the search standard articulated in 95-ORD-96 to the electronic email at issue, the Transportation Cabinet did not conduct a search using methods that could reasonably be expected to produce the requested record. The Cabinet’s search was confined to an individual’s personal folders; the Cabinet does not indicate that its search extended beyond these files to other folders. Because the individual might have saved the message in, for example, an archive file, a message file, a text file, or an html file, it was incumbent on the Cabinet to expand its search to any such file which could reasonably have been expected to produce the responsive record using broader criteria (words, topics) for that search. Moreover, because email is easily propagated, it was incumbent on the Cabinet to search the mail server to determine if the message was forwarded to Cabinet employees or officials, as well as the “inboxes” of employees or officials who might reasonably have been expected to receive it. OAG 2006-ORD-022.

Because a city failed to adduce clear and convincing evidence that honoring a request would place an unreasonable burden on the city, or that the requester’s repeated requests were intended to disrupt its essential functions, the city violated the Open Records Act in denying the request on the basis of KRS 61.872(6). OAG 06-ORD-028.

Police department complied with Open Records Act by providing requester with a copy of requested dispatch calls and affirmatively advising that it did not have records relating to the requested vehicle inventory and registration information and providing him with the name and location of the custodian of those records. OAG 06-ORD-029.

County Clerk fully discharged her duties under the Open Records Act by providing on-site access to the requester, or his representative, to inspect and copy requested records and she did not violate Act in denying request for copies of the records in an electronic format, when records were not maintained in such format. OAG 06-ORD-041.

Because the disputed email may properly be characterized as general correspondence, and the retention period for general correspondence is “no longer than two years,” the record does not support the inference that the disputed email was prematurely, or otherwise improperly, destroyed. In the absence of proof that the requested email was prematurely or improperly deleted, the Transportation Cabinet was not obligated to conduct a search utilizing specialized data recovery processes over and above those search methods regularly employed. OAG 2006-ORD-022.

The requests were specific as to the type of record sought, namely, policies and procedures, as well as subject, namely, the unitary tax reporting procedure. As long as the custodian can identify what documents the applicants wish to see, KRS 61.872(2) is satisfied. OAG 2006-ORD-032.

Furnishing a requester with a website address and/or directing him/her to the local public library where the requested records are also available is not a substitute for complying with the mandatory terms of KRS 61.872(1)-(3). OAG 2006-ORD-036.

Research References and Practice Aids

Kentucky Bench & Bar.

McClelland, A Never-ending struggle between competing policies: The Kentucky Open Records Act, Vol. 61, No. 4, Fall 1997, Ky. Bench & Bar 25.

Kentucky Law Journal.

Out of the Sunshine and into the Shadows: Six Years of Misinterpretation of the Personal Privacy Exemption of the Kentucky Open Records Act, 71 Ky. L.J. 853 (1982-83).

Northern Kentucky Law Review.

Ziegler, The Kentucky Open Records Act: A Preliminary Analysis, 7 N. Ky. L. Rev. 7 (1980).

2012 Kentucky Survey Issue: Article: Candid Kentucky: The Commonwealth’s Devotion to an Open Government, 39 N. Ky. L. Rev. 45 (2012).

61.874. Abstracts, memoranda, copies — Agency may prescribe fee — Use of nonexempt public records for commercial purposes — Online access.

  1. Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878 . When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
    1. Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats. (2) (a) Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
    2. The minimum standard format in paper form shall be defined as not less than 81/2 inches x 11 inches in at least one (1) color on white paper, or for electronic format, in a flat file electronic American Standard Code for Information Interchange (ASCII) format. If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requestor’s requirements, the public record may be provided in this alternate electronic format for standard fees as specified by the public agency. Any request for a public record in a form other than the forms described in this section shall be considered a nonstandardized request.
  2. The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
    1. Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee. (4) (a) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee.
    2. The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requestor stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee.
    3. The fee provided for in subsection (a) of this section may be based on one or both of the following:
      1. Cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record or records;
      2. Cost to the public agency of the creation, purchase, or other acquisition of the public records.
  3. It shall be unlawful for a person to obtain a copy of any part of a public record for a:
    1. Commercial purpose, without stating the commercial purpose, if a certified statement from the requestor was required by the public agency pursuant to subsection (4)(b) of this section; or
    2. Commercial purpose, if the person uses or knowingly allows the use of the public record for a different commercial purpose; or
    3. Noncommercial purpose, if the person uses or knowingly allows the use of the public record for a commercial purpose. A newspaper, periodical, radio or television station shall not be held to have used or knowingly allowed the use of the public record for a commercial purpose merely because of its publication or broadcast, unless it has also given its express permission for that commercial use.
  4. Online access to public records in electronic form, as provided under this section, may be provided and made available at the discretion of the public agency. If a party wishes to access public records by electronic means and the public agency agrees to provide online access, a public agency may require that the party enter into a contract, license, or other agreement with the agency, and may charge fees for these agreements. Fees shall not exceed:
    1. The cost of physical connection to the system and reasonable cost of computer time access charges; and
    2. If the records are requested for a commercial purpose, a reasonable fee based on the factors set forth in subsection (4) of this section.

History. Enact. Acts 1976, ch. 273, § 3; 1992, ch. 163, § 4, effective July 14, 1992; 1994, ch. 262, § 4, effective July 15, 1994.

NOTES TO DECISIONS

1.Constitutionality.

Because attorneys’ and chiropractors’ constitutional challenge to KRS 189.635 failed, thus generally keeping state police accident reports confidential from them, their simultaneous constitutional challenge to KRS 61.874 over the amount they were being charged for copies of those reports was moot since they were no longer entitled to receive them at all. Amelkin v. McClure, 330 F.3d 822, 2003 FED App. 0168P, 2003 U.S. App. LEXIS 10832 (6th Cir. Ky.), cert. denied, 540 U.S. 1050, 124 S. Ct. 827, 157 L. Ed. 2d 699, 2003 U.S. LEXIS 8627 (U.S. 2003).

2.Reasonable Fee.

A Kentucky State Reformatory inmate’s complaint against the warden and other reformatory officials for failure to furnish his financial records was properly dismissed, where the record showed that he was offered his records upon payment of the ten cents ($0.10) per page copying fee, and there was no genuine issue to be resolved. Friend v. Rees, 696 S.W.2d 325, 1985 Ky. App. LEXIS 656 (Ky. Ct. App. 1985).

A Kentucky State Reformatory inmate is entitled to copies of his records by complying with the reasonable charge of reproduction. Friend v. Rees, 696 S.W.2d 325, 1985 Ky. App. LEXIS 656 (Ky. Ct. App. 1985).

Newspaper reporter was not responsible for the expense under Ky. Rev. Stat. Ann. § 61.874(3) as redaction was not the equivalent of a change in format, and § 61.878(4) did not specify that costs were to be borne by the requestor. Commonwealth v. Courier Journal, 601 S.W.3d 501, 2020 Ky. App. LEXIS 42 (Ky. Ct. App. 2020).

3.In Camera Inspection.

Where a teacher’s open records request to view videotape recordings of her own classroom was denied on grounds this would violate the Family Educational Rights and Privacy Act (FERPA), 20 USCS § 1232g, and the Kentucky Family Educational Rights and Privacy Act (KFERPA), KRS 160.700 et seq., the Circuit Court properly denied her request to view the tapes in camera since this would have rendered the entire controversy void. Medley v. Bd. of Educ., 168 S.W.3d 398, 2004 Ky. App. LEXIS 305 (Ky. Ct. App. 2004).

Opinions of Attorney General.

A person does not have a right to require a list to be made from public records if the list described does not already exist; if the list exists and is not otherwise confidential by law, a person may inspect a list and obtain a copy of it; a person desiring that list be made or that he have copies of broad categories of information must expend his own time in digging out the information unless it has already been compiled. OAG 76-375 .

Blanket requests for information on a particular subject without specifying certain documents need not be honored for state employees may not be requested to make compilations of records, but the public has a right to inspect compilations which have been made in the course of business unless the subject matter is confidential by law. OAG 76-375 .

The Open Records Act does not charge state agencies with the duty to provide records upon a request made by mail. OAG 76-375 .

The right to have copies of records is an ancillary to the right of inspection it does not stand by itself ; if a person has not inspected the records he desires to copy and cannot describe them with specificity, there is no requirement that copies of any records must be delivered to him; a citizen may make a fishing expedition to public records on his own time and under the restriction and safeguards of the public agency, but a willingness to pay for copies of records is not sufficient to put the state agency under obligation to furnish broad categories of records. OAG 76-375 .

If the Real Estate Commission prepares a list of applicants for the real estate examination in special form for the purpose of selling to real estate schools and others, it may charge for the staff required to prepare the list, but if a record is already in existence the fee can only be for the copying expense not including staff costs. OAG 78-132 .

It is within the discretion of the custodian of public records to require a person inspecting and copying records of a county judge/executive to leave a copy of all such copies with the custodian of public records as a precondition of inspecting those records. OAG 78-399 .

A clerk is not responsible in any way to any person who may be misled if a certified copy of an order of appointment is given to an administrator named in the copy who uses it to show his appointment, when actually the estate has been settled: the clerk has no duty to inform the public of the active or inactive status of each estate. OAG 79-136 .

The clerk is not responsible for determining whether an estate has been settled before making certified copies of court orders showing appointment of administrators, executors, etc., in connection with the administration and settlement of estates. OAG 79-136 .

Since a filed library district petition requires fiscal court to check its validity on its face, it does not become a full-blown public record, for purposes of the Open Records Law, until after fiscal court has determined its validity. OAG 79-265 .

While a library district petition is needed by the clerk and his staff to check the validity of the signatures, etc., for fiscal court, the custodian may reasonably delay inspection of the record and the making of copies until after the verification process has been concluded. OAG 79-265 .

It is not incumbent upon a public agency to provide records to inmates who are unable to go to the office where the records are kept because of their legal confinement. OAG 79-546 .

All oral history records which have been taped and which have not been restricted by an agreement with the interviewee are open to both public inspection and copying regardless of whether the Kentucky Historical Society has obtained and has on file a signed release, and this rule applies whether the request for inspection is made by a researcher or any other person. OAG 79-648 .

There is no distinction in the Open Records Law which would allow researchers access to records only for the purpose of auditing without allowing the obtaining of a copy. OAG 79-648 .

Since the cost of staff time required in making copies of public records is excluded from the fee which may be charged for such copies, a charge of $1.00 a page for a copy of a public record is an unreasonable fee. OAG 80-421 .

Where a requester seeks photocopies of all official minutes of any special or regular school board meetings held in a certain county in 1981 and photocopies of all regular or special meetings held in the future, it is discretionary, as to the past meetings, whether the agency should first require the requester to inspect the records before ordering copies or to provide copies of the complete records for a reasonable fee without first inspecting them, and, as to the future meetings, there is no right of the requester to request copies of future meetings, since the right to copies is ancillary to the right to inspect under subsection (1) of this section. OAG 81-212 .

The registrar of vital statistics improperly denied a request from a newspaper reporter to inspect all death certificates and death verification certificates in the possession or control of a county health department where the registrar based such denial upon the requirement of KRS 213.190 (now repealed) that the applicant have a direct, tangible and legitimate interest in the record; the right to obtain a certified copy under KRS 213.190 (now repealed) is different from the right to inspect and obtain copies provided in this section and no special standing need be shown under the latter statute. OAG 81-400 .

Fifty cents ($0.50) per page was not a reasonable fee for copying a record. OAG 82-396 .

The Open Records Law provides that any person can inspect the original record and cannot be required only to purchase a copy of the original record. OAG 82-396 .

A comprehensive care center does not have to comply with a request for a copy of records by the person who is the subject of the records and who is a minor or who has been legally adjudged incompetent, but if the person is a competent adult he is entitled to have a copy of the records. The center may charge him a reasonable fee per page for a copy of the record which shall not exceed the actual cost thereof not including the cost of staff required. OAG 82-414 .

The Open Records Law does not contemplate that a public agency shall send requested records to a person who has not inspected them. OAG 82-629 .

A sheriff’s office is not required to send a copy of records which have not been inspected by the requester even though the requester is an inmate who is not able to personally inspect the records because of legal confinement. OAG 82-629 .

The Open Records Act does not require the county clerks of Kentucky to provide copies of public records upon a request made by mail. OAG 83-42 .

Where the requesters of copies of records had not inspected any of the records, and had not described any specific records, custodian of records was under no duty to furnish the copies requested; the right to have copies of records is ancillary to the right of inspection and does not stand by itself. OAG 83-42 .

Subsection (2) of this section is a residual and general statute and applies where there is no other applicable and specific fee statute; KRS 64.012 will apply where the language on that schedule is appropriate and applicable to the particular clerk’s record. OAG 83-42 .

The fee charged for a copy of a will, a land purchase contract, and assignment of a land purchase contract would be governed by subsection (2) of this section, the general law, while the fee for copies of a deed of trust, a deed and a real estate mortgage would be governed by KRS 64.012 . OAG 83-42 .

Under subsection (2) of this section, the cost computation cannot include the officer personnel cost; it can only relate to the cost in terms of the copier machine, paper and allied supplies. OAG 83-42 .

The provisions of KRS 61.872 , 61.874 and 61.876 , when taken together, require that public agencies have a policy of allowing inspection of public records, of protecting the records, of preventing excessive disruption of the agency’s functions, of providing copies upon request, of providing efficient and timely action in response to applications for inspection and of charging a reasonable fee based on the actual cost of making copies not including the cost of staff required; these three (3) sections allow public agencies a certain amount of leeway as to handling requests for records by mail and mailing copies to requesters who have not personally inspected the records and selected the items which they want copied. OAG 83-204 .

Public agencies should accommodate requesters whenever they can within the bounds of the efficient operation of their office. Whenever only one (1) item is requested, or a few precisely described items which are readily available within the office, and no special search is required, it will be more convenient both to the agency and to the requester to answer the request through the mail; to require the requester to appear in person at the office of the agency in such a case would not be more convenient to either party and would only inhibit the intended purpose of the Open Records Law. OAG 83-204 .

The stated policy of the Finance and Administration Cabinet not to furnish copies of bids requested by mail was in accordance with the Open Records Law. OAG 83-204 .

The “reasonable fee” provision of subsection (2) of this section applies only when there is no other applicable fee statute; KRS 64.012 , pertaining to fees of county clerks, therefore governs over subsection (2) of this section in case of a conflict. OAG 84-91 .

Requested records pertaining to annual copying costs and fees should be made available for public inspection, and any person inspecting the records and requesting a copy should be sold that copy; however, there is no requirement that the agency send copies of records until the requestor makes his inspection. OAG 84-91 .

As long as full access is provided and the records are protected from damage and disorganization, there is no statutory prohibition against the agency waiving a fee for certain requestors. OAG 84-300 .

The North Central Comprehensive Care Center, Inc. is a public agency subject to the Open Records Law since its revenue consists of substantially in excess of 25 percent funding from state grants and contracts for services and the five dollars ($5) fee for copies of the initial one (1) to five (5) pages of its records is unreasonable and inconsistent with the actual cost mandate of subsection (2) of this section. OAG 84-300 .

Fee of public agency of $5.00 per page for copies of the initial one (1) to five (5) pages is unreasonable. OAG 84-300 .

While the public agency should have responded in writing pursuant to subsection (1) of KRS 61.880 , to the requesting party’s letter pertaining to the request for copies of documents, the public agency was not mandatorily required to send copies of records to a requesting party by mail when the requesting party had not first inspected those records and then selected the items he wanted copied, particularly when numerous records and documents were involved. OAG 86-24 .

While a public agency should accommodate mail requests when possible, particularly when only a few precisely described documents are requested, a public agency is not legally required to honor mail requests for copies of documents when numerous records and documents are involved; thus, the urban county government acted within the provisions of the Open Records Act when it afforded the requesting party (or her representative) the opportunity to inspect the documents in question at an office of the urban county government and declined to send copies of the documents prior to inspection, particularly where numerous records and documents were involved. OAG 86-80 .

The response of the public agency to the request to inspect documents that some of the requested documents did not exist was sufficient and proper; however, the public agency’s attempt to restrict the requesting party’s inspection of those records which did exist to one-half hour a week was an unreasonable and illegal restriction on the right to inspect public records, and such records were to be made available for inspection immediately. OAG 87-54 .

If the county clerk’s office could not demonstrate that the fee list set forth in KRS 64.012 was applicable to the documents requested by the newspaper reporter, then subsection (2) of this section applied relative to the costs that a public agency could charge for copies of documents. OAG 87-80 .

The public agency was not bound by the provisions of subsection (2) of this section, pertaining to costs levied for copies of existing public records, as the material requested by the requesting party involved a list which did not exist when the request was made, and the public agency could therefore charge what it cost to prepare, program, and reproduce a list containing the material in question. OAG 88-19 .

It is not incumbent upon a public agency to provide documents to inmates who are unable to go to the office where the records are kept because of their confinement. OAG 88-44 .

While the school system may refuse to disclose the home addresses of students, it may not withhold the names of students attending the school. A list of names should be furnished, if currently available, or the school system should prepare such a list, or let the requesting party prepare his or her own list from school system records. OAG 88-50 .

The public agency is not mandatorily required to send copies of records by mail to a requesting party when that person has not first inspected those records and then selected the items he or she wants copied, particularly when numerous records and documents are apparently involved. OAG 88-60 .

The Department of Insurance is bound by the provisions of subsection (2) of this section in calculating the fees it charges for copies of documents where such costs are not specifically covered by other statutory enactments; fees charged in excess of the actual costs are in violation of the Open Records Act, and the public agency should recalculate the fees imposed to conform to the statutory requirements. OAG 88-74 .

If the county clerk cannot demonstrate that the records involved are included under the provisions of KRS 64.012 , then the amount to be charged for copies of the records is governed by subsection (2) of this section; unless the county clerk can demonstrate that it actually costs fifty cents ($0.50) per page to provide copies of documents, considering the applicable factors set forth in KRS 61.874(2), he should recalculate the fees imposed to conform to the statutory requirements. OAG 89-9 .

Upon inspection, copying of the minutes of special meetings of a County School Board must be permitted; a reasonable fee, not exceeding the cost thereof, can be imposed for the copies. OAG 89-27 .

One having inspected records is entitled to be furnished copies of them upon payment of a reasonable fee. Such fee shall not exceed the actual cost of copying, and may not include the cost of staff required. OAG 89-43 .

An agency is not required, under Open Records provisions, to provide copies upon request, except after records have been inspected. OAG 89-53 .

One who inspects public records shall have the right, upon inspection, to obtain copies of records inspected. OAG 89-66 .

Copies of records need not be provided except upon inspection, and copies of records that have not been inspected do not have to be furnished by mail or by fax transmission. OAG 89-96 .

The right to copies of public records is ancillary to inspection. OAG 90-8 .

A county property valuation administrator did not act other than consistently with Open Records provisions in declining to provide copies of records that had not been inspected. OAG 90-31 .

There is no requirement in the Open Records provisions that a public agency furnish copies of records that have not been inspected, and the opportunity to have copies of public records is ancillary to inspection. OAG 90-31 .

Requiring inspection prior to furnishing copies is an important part of Open Records provisions, as requiring inspection prior to making copies aids in preventing frivolous requests, and may prevent controversy regarding whether the proper records were copied. OAG 90-31 .

The opportunity to have copies of public records is ancillary to their inspection. OAG 90-35 .

City’s actions were not consistent with Open Records provisions where, in contravention of KRS 61.872(1), it denied a requester the use of a film read-printer and a cassette tape player, thereby failing to provide suitable facilities for inspection of its records. Additionally, the city failed to act consistent with Open Records provisions where, in contravention of subsection (2) of this section, it established a $.25 per page fee for copies of records, when such fee was not based upon the actual cost, exclusive of personnel expenses, for making copies. OAG 90-50 .

The provision of subsection (2) of this section means that the fee charged for copies should be based on the actual expense to the agency, excluding the cost of staff. The fee is thus limited to the cost of maintaining copying equipment by purchase or rental, and the supplies involved. OAG 91-98 .

If public agency from whom copies of records are requested cannot demonstrate that the cost of a copy is covered by another specific statutory enactment, the provisions of subsection (2) of this section govern. Any fee charged in excess of the actual cost violates the Open Records Act. OAG 91-98 .

Since the University of Kentucky Medical Center is clearly a public agency, it is therefore subject to the Open Records Act and the demand of $153 reproduction fee by the Medical Center was inconsistent with subsection (2) of this section. OAG 91-98 .

The right to obtain copies is ancillary to the right of inspection and does not stand by itself. OAG 91-159 .

The record requested, a trial transcript, is clearly a court record, and is therefore not subject to the reasonable fee provision found in subsection (2) of this section. OAG 91-193 .

Attorney General opined that Custodian of Records’ actions, in denying inmate’s request for a copy of his transfer authorization form pursuant to KRS 61.880 because inmate’s account had no money to cover the reproduction costs, were entirely consistent with the Open Records Act because a public agency is authorized to prescribe reasonable fees for making copies of public records pursuant to KRS 61.876(1)(c) and subsection (2) of this section. OAG 91-210 .

If the county clerk’s office cannot demonstrate that the records requested by a citizens group are among those identified in KRS 64.012 , and governed by that statute, the amount which may be charged for copies is governed by subsection (2) of this section; unless the county clerk’s office can then demonstrate that the cost to the county clerk’s office for providing copies is indeed 50¢ per page, based on the factors set forth in subsection (2) of this section, the county clerk’s office should recalculate the fees imposed to conform to the statutory requirements. OAG 92-79 .

A prison inmate has the same right to inspect public records as any other person. The identity of the requester is therefor irrelevant. Under existing law, an agency need not provide copies of records to inmates who are unable to go to the office where the records are kept because of their legal confinement, although it may elect to do so. After July 14, 1992, however, an agency will be required to supply copies of records if the applicant resides outside the county in which the records are located, the applicant precisely describes the records, and the records are readily available within the public agency, upon receipt of a reasonable fee for making copies. OAG 92-94 .

A $100 “production cost” fee assessed by the Lottery Corporation was excessive and violative of subsection (2) of this section where a request for information was not made under the Public Access to Governmental Databases Act, and where the Lottery Corporation was not authorized to unilaterally treat it as a request under that Act without discussion and a meeting of the minds. OAG 93-ORD-44.

In imposing copying charges upon the general public, county clerk may lawfully charge only the specific amount provided by statute, where applicable, and otherwise, only a reasonable fee not exceeding the actual cost of such copies, not including the cost of staff required to furnish copies. OAG 94-38 .

Since a police report does not appear to fall within the parameter of a separate fee statute, subsection (2) of this section governs, and any fee charged in excess of the Department’s actual cost is a violation of the Open Record’s Act. OAG 94-ORD-77.

A sign on the wall of police department stating that requestors will be charged $5.00 for copies, absent independent statutory authority, did not justify the department’s charges for copies; therefore, the police department must recalculate the fee it imposes for copies to conform to the requirements of subsection (2) of this section and should also remove the sign which appears on its walls, and replace it with a revised notice which conforms to subsection (2) of this section and KRS 61.876 . OAG 94-ORD-77.

The refusal of the State Police to waive the copying charge of case file requested by newspaper reporter was proper since the statutes contain no provision for waiver of such fees and the media has only such right of access to public records as the general public has. OAG 94-ORD-90.

The Department of Personnel may not read an additional requirement, such as entering into a contract, into the law by attempting to compel the Kentucky Association of State Employees (KASE), who had requested a copy of the Department’s database, to enter into a contract permitting use of the database for a stated noncommercial purpose, and thus frustrate access to the records on the grounds that KASE lacks the capacity to contract. OAG 95-ORD-9.

Subsection (5) of this section, which provides severe penalties for persons who misrepresent the purpose for which the records they request will be used, applies in the event that the information requested is used, secondarily, for a commercial purpose, if a noncommercial purpose was given by the requester. OAG 95-ORD-9.

A public agency can no longer flatly deny a request for electronically stored records on the grounds that the intended use of the records is a commercial one, or otherwise treat electronically stored records any differently than it treats records in a hard copy format; if the nonexempt records exist in both standard electronic and standard hard copy format, and the requester complies with the requirements of subsection (4) of this section, the agency must permit inspection of and copying of the records in the format designated by the requester. OAG 95-ORD-12.

Nothing in the Open Records Act statutes permits an agency to restrict a person to whom records have been released from reproducing those records or sharing them with others; accordingly a county board of education cannot restrain a recipient from reproducing the records with which she has been furnished. OAG 95-ORD-77.

Although a public agency is not required to create a document that does not already exist in order to satisfy a request, the agency may, of course, elect to do so, and recover its staff costs; however, the mere deletion of exempt information from an existing database does not result in the creation of an entirely new record for which a public agency could recover costs. OAG 95-ORD-82.

Considering that KRS 61.878(4) mandates redaction of excepted material when it is commingled with nonexcepted material and that the reasonable fee provision found in subsection (3) of this section specifically excludes the staff cost required, it is clear that the General Assembly intended that public agencies bear the cost of redaction. OAG 95-ORD-82.

The deletion of juvenile law enforcement records, per KRS 610.320(3) and KRS 61.878 , from an existing database of arrest records is not equivalent to the production of a record in a specially tailored or nonstandardized format within the meaning of subsection (3) of this section; thus, the Division of Police is required to discharge this duty under KRS 61.878 (4), provide the requested records, and bear the cost of redaction. OAG 95-ORD-82.

The Department may discharge its duty under the Open Records Act by simply opening its records to a person so requesting and allowing him to expend his own time and efforts extracting the information in which he has an interest. Although such person may wish to assert his ancillary right to obtain copies of those records once he has inspected them, providing copies of 5000 documents is, in and of itself, unreasonably burdensome. OAG 96-ORD-155.

This section authorizes public agencies to prescribe a reasonable fee for making copies of nonexempt public records requested for noncommercial purposes which shall not exceed the the actual cost of reproduction. These statutes contain no provision for the waiver of such fees for copies made for public officials under an open records request. In general, all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof. Accordingly, a board member may be charged a reasonable fee for copies made pursuant to an open records request. OAG 96-ORD-110.

The Department of Medical Services improperly relied on the OAG 1994 amendments to the Open Records Act in adopting a policy which distinguishes between commercial and noncommercial use of public records. Any open records policy which impedes access to nonexempt public records by more than three (3) working days violates provisions of the Act. OAG 96-ORD-168.

To the extent that the Department for Medicaid Services’ records policy incorporates the 1994 amendments to the Open Records Act, it is constitutionally infirm. The Department cannot require applicants to submit a certified statement of commercial or noncommercial use, nor can they assess higher copying charges for records requested for commercial use. OAG 96-ORD-168.

The burden on the public agency to respond in three (3) working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not otherwise available, the agency is required to notify the requester of its decision within three (3) working days, and to provide the requester with timely access to the requested records. OAG 96-ORD-168.

Where response from the Transportation Cabinet, Division of Driver Licensing to a request to inspect various records relating to a client’s licensing process initially required payment to a rehabilitation center for forty dollars ($40.00) for an “in-car driver evaluation” performed at the center, later modified to a cost of one dollar ($1.00) per page for the report, the Cabinet violated the reasonable fee provision of the Open Records Act, subsection (3) of this section. The courts and the Office of the Attorney General have determined that a charge of ten cents ($0.10) per page is reasonable for a standard 8-1/2 inches x 11 inches paper copy. It should also be noted that under KRS 422.317(1), if the Cabinet had not retained a copy or if the requesting party had not proceeded under the Open Records Act, KRS 422.317(1) may have required a release of the records without charge. OAG 96-ORD-267.

University could not and was not required to furnish former employee records that did not exist; however, the university was obligated to furnish former employee records that had been furnished to the EEOC and KCHR upon prepayment of reasonable copying charges as a public agency cannot withhold public records from an applicant simply because they may be obtained from another source. OAG 97-ORD-87.

The fee charged for copies is limited to the proportionate cost of maintaining copying equipment by purchase or rental and the supplies involved; providing copies of nonexempt public records is not a “sale” of records; it is a compliance with the legislative mandate to make public records open and available for inspection and at a reasonable cost; there is therefore no provision in the Open Records Act that authorizes an agency to charge a sales tax on copies of public records provided to an open records request. OAG 98-ORD-88.

KRS 61.872 and this section contain no provision for waiver of the prepayment requirement for inmates; thus, it is entirely proper for a correctional facility to require prepayment and to enforce its standard policy relative to assessment of charges to inmate accounts, despite the delays this may entail. OAG 99-ORD-30.

A county clerk did not violate the Open Records Act in imposing a one dollar and fifty cents ($1.50) charge for certified copies of official bonds executed by public officials which he furnished in response to an open records request as KRS 64.012 authorized a charge of two dollars ($2.00). OAG 99-ORD-56.

The Department of Workers Claims did not violate the Open Records Act in a request for certain data from the department’s coverage/compliance database as the department did not maintain the requested information in the format proposed by the requester and special programming would have been required to fulfill the request. OAG 99-ORD-68.

An agency cannot impose a standard $2.00 fee for copies of reports generated in response to open records requests unless the fee reflects its actual costs, excluding staff costs, or unless there is an independent statutory basis for the fee. OAG 99-ORD-74.

An agency subverted the intent of the Open Records Act, short of denial of inspection, by requiring a requester to pay sales tax for copies of public records in addition to the reasonable fee contemplated by subsection (3) as the provision of records under the act is not a sale of the records. OAG 99-ORD-102.

A university’s fifteen cents ($0.15) per page copying fee for open records requests was excessive where the university charged its faculty and students five to eight cents ($0.05 to ($0.10) per copy, while charging those not associated with the university ten cents ($0.10) to use the coin operated machines on campus, and fifteen cents ($0.15) for copies made pursuant to an open records request; the university explained that the graduated rate schedule served to cross-subsidize the discount rate given to its faculty and students, but the Open Records Act does not authorize such a fee arrangement for reproducing copies of public records and, instead, the fee charge must be based upon the agency’s actual cost for reproducing records per page, based on the cost of media and mechanical processing. OAG 99-ORD-186.

Although subsection (4)(b) does not, by its express terms, require a requester to disclose her purpose if it is a noncommercial one, such a requirement is implicit; thus, an inquiry by an agency as to whether a request was for a commercial or noncommercial purpose was proper, and a response that an agency would hold in abeyance further response until the requested information was provided was also proper. OAG 99-ORD-222.

As a county failed to establish that its actual cost of reproducing records for copies of public records was twenty-five cents ($0.25) per copy, such a charge was an excessive copying fee. OAG 99-ORD-222.

A Fifteen dollar ($15) fee charged for a copy of a 36" by 42" map was excessive to the extent that such fee was not based on the agency’s actual cost of making the copy of the map. OAG 00-ORD-74.

Twenty-five cents ($0.25) per copy is an excessive charge for copies of public records. OAG 99-ORD-154.

A correctional institution failed to establish that its actual cost for reproducing a copy of an audio tape was four dollars ($4) and, therefore, it was required to recalculate its copying fee to conform to the requirements of subsection (3) and to charge the inmate accordingly. OAG 99-ORD-159.

To the extent that fifty cents ($0.50) per page copying fee which a fiscal court imposed exceeded its actual costs, the fee was clearly excessive and subverted the intent of the Open Records Act. OAG 99-ORD-163.

The statute is residual and general and applies where there is no other applicable fee statute; if a county clerk furnishes copies of records specifically identified in the Uniform Fee List, which is found at KRS 64.012 , the fees charged for copies may be based on that list, but if the clerk furnishes copies of records not identified in the list, he may charge a reasonable fee that does not exceed the actual cost of reproduction, and excluding staff costs. OAG 00-ORD-110.

A charge of one hundred dollars ($100) to serve as a down payment against the anticipated cost of the programming that would be necessary to generate requested data was proper. OAG 00-ORD-165.

A charge by a city for copies of records of twenty-five cents ($0.25) per page was improper where the city failed to establish that its actual cost for reproducing records was twenty-five cents ($0.25) per page, based on the cost of media and mechanical processing. OAG 00-ORD-184.

Because the requester requested information in a specially tailored format, the agencies properly exercised their discretion under KRS 61.874(3) to require payment of its actual costs, as well as its costs for the programming, if the requester elected to proceed under the Open Records Act. The agencies did not violate the provisions of KRS 61.870 through KRS 61.884 by underestimating the actual cost of the programmning. OAG 01-ORD-19.

The city’s policy of charging fifty cents ($0.50) per page is not a reasonable copying charge within the meaning of KRS 61.874(3). If a public agency charges more than ten cents ($0.10) per page, it has the burden of establishing that this is not an excessive fee. An agency can only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required. OAG 01-ORD-42.

KRS 61.874(3) directs that the fee charged for copies should be based on the agency’s actual expense, not including staff costs. Accordingly, the school system cannot charge for staff time in reproducing a copy of the minutes. Such a charge is not authorized under KRS 61.874(3). The requester should make arrangements to inspect the requested minutes and should only be charged the school system’s actual costs of copying the records, which the Superintendent’s response indicates is ten cents ($0.10) per page. OAG 01-ORD-43.

Since KRS 61.872(3)(b) and KRS 61.874(1) contain no provision for waiver of the prepayment requirement for inmates, it was entirely proper for the correctional facility to require prepayment and to enforce its prepayment policy relative to assessment of charges to inmate accounts. OAG 01-ORD-44.

The copying charges of 25 cents per page imposed by the Community Program Center of the Telecommunications Board of Northern Kentucky violated the reasonable fee provision codified at KRS 61.874(3). OAG 01-ORD-50.

Since the General Assembly did not designate a standard format for videotapes, the concept of “standard format” has no place in a discussion of anything other than electronic or hard copy records maintained in the media described, and therefore the agency can only provide a copy of a videotape in the format that the agency maintains the record. OAG 01-ORD-50.

Unless an agency can establish that its actual cost for reproducing records is fifty cents ($0.50) per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), the charge is excessive and subverts the intent of the Open Records Act. If the county clerk charges fifty cents ($0.50) per page for records not covered by the Uniform Fee List, it must either substantiate the charge or recalculate its copying fee to conform to the requirements of KRS 61.874(3) and charge for copies of public records accordingly. OAG 01-ORD-91.

Unless the Division of Police can demonstrate that the actual cost it incurs in duplicating a recording of 911 calls and radio transmissions, based on media and mechanical processing costs, but excluding staff cost, is equal to $27.00, it must recalculate its copying charge for audiotapes to conform to the criteria set forth at KRS 61.874(3). The Division may not impose any additional fees for “research time” or time spent in examining the requested information for purposes of determining whether or not any matters contained therein were confidential. OAG 01-ORD-114.

The twenty cents ($0.20) per page copying fee imposed by the city is excessive, and KRS 61.874(3) requires it to adjust its copying fee to reflect its actual costs (four cents ($0.04) per page) or no more than ten cents ($0.10) per page. The city may not seek to defray the costs it incurs for providing free copies of records stored in other physical media (such as cassettes and disks) by assessing higher copying charges for records reproduced in hard copy format. OAG 01-ORD-136.

Although they are not required to do so, public agencies may agree to extract electronically stored information to conform to the parameters of an open records request and in so doing, incur “actual costs” in addition to media and mechanical processing costs. Such charges would constitute an actual cost to the agency that could properly be passed along to the requester. The fifty dollar ($50) per hour charge which the department seeks to impose is consistent with KRS 61.874(3) only if it reflects actual costs incurred, and can be substantiated. OAG 01-ORD-158.

A copying charge of $279.90, $208.00 of which is based on an hourly labor charge, is unreasonable and must be reduced to ten cents ($0.10) per page, excluding labor costs, unless the county can substantiate actual costs in excess of this amount. OAG 01-ORD-193.

The fact that the Treasury can, at additional programming costs, extract the unclaimed property information the requester seeks does not mean that it must. Public agencies are not required to extract electronically stored information to conform to the parameters of an open records request, but may do so at their discretion. The Treasury has properly exercised its discretion in the negative. OAG 02-ORD-48.

The information the requester was required to submit in the “Request for Reproduction of PVA Public Records,” relating to his specific purpose in requesting the records, and including the “Non-Commercial Applicant’s Certified Statement,” exceeded the permissible limits of KRS 61.872 and KRS 61.874(4)(b). Further, a request submitted by an individual acting on behalf of a political candidate, whether paid or unpaid, cannot be characterized as a request submitted for a commercial purpose. OAG 02-ORD-89.

Since no evidence has been submitted to substantiate that the Board’s actual costs for reproducing copies of its public records is 25 cents per page, the 25 cents per page charge is an excessive copying fee. Unless the Board can demonstrate that its actual cost for reproducing records, excluding staff costs, is greater than ten cents ($0.10) per page, it must recalculate its copying fee to conform to the requirements of KRS 61.874 . OAG 02-ORD-198.

Kentucky State Reformatory is required by KRS 61.874(1) to supply the inmate with copies of the record he had already been permitted to inspect. OAG 02-ORD-210.

Since no evidence has been submitted to substantiate that the Jail’s actual costs for reproducing copies of its public records, not including staff costs, is 15 cents per page, the 15 cents per page charge is an excessive copying fee. Unless the Jail can demonstrate that its actual cost for reproducing records, excluding staff costs, is greater than ten cents ($0.10) per page, it must recalculate its copying fee to conform to the requirements of KRS 61.874 . OAG 02-ORD-217.

Although the county clerk substantiated a copying fee of 15 cents per page and may impose a fee in this amount, the better practice is to impose a fee of 10 cents per page inasmuch as this fee strikes a reasonable balance between the agency’s right to recover its actual costs, excluding staff costs, and the public’s right of access to copies of records at a nonprohibitive charge. OAG 02-ORD-218.

While the Department’s entire database may contain more or less information than the requester seeks, it clearly contains information that is responsive to her request and the Department is obligated to afford her access to it after redacting individual Medicaid recipient information and other information made confidential by federal enactment. Redaction of the latter information from an existing database is not equivalent to nonobligatory creation of a new record. OAG 03-ORD-04.

The Property Valuation Office’s charge for records requested for a commercial purpose were reasonable. The Revenue Cabinet indicated that the amount charged was $32.00, an amount calculated by reference to the PVA Open Records Commercial Fee Guidelines issued by the Cabinet in accordance with the Open Records Act and KRS 133.047 . OAG 03-ORD-25.

It is not appropriate for the department to compel the requester to pay the additional cost of mailing the records by certified/return-receipt mail. The Open Records Act does not require the agency to use this method of mailing, and the agency does so at its own election. There is no support in the Act for the proposition that the cost of access to public records by mail can properly be driven up by the use of certified mail and the consequent imposition of additional postage costs, however valid the agency’s reasons may be for electing to use certified mail. OAG 03-ORD-50.

It is entirely proper for the City to require prepayment of a reasonable copying charge that does not exceed the actual cost of duplication, not including staff costs, and to enforce a standard policy relative to assessment of those charges. Moreover, KRS 61.872 and KRS 61.874 contain no provision for the waiver of such fees for any party. OAG 03-ORD-57.

Discharge of the duties imposed by KRS 61.870 et seq. is required by law and is as much a legal obligation of a public agency as the provision of services to the public. If the Clerk is to act as the City’s official custodian of records, she must accord her duties as such the same status as her other duties during regular business hours, including the duty to make copies at a cost not to exceed the actual cost of reproduction, but not including the cost of staff required. This is not a courtesy extended to the public by a public agency, but a legal duty imposed on the agency. OAG 03-ORD-83.

There is no error in the policies and procedure of the Luther Luckett Correctional Complex and the Department that require that copies of records requested pursuant to an open records request be paid for by check or money order and not by cash. OAG 03-ORD-174.

Under the Open Records Act, a correctional facility may properly require prepayment for copies of public records that are requested by inmates. OAG 03-ORD-189.

The agency may, as a matter of discretion, tailor its database to conform to the parameters of the request, and if it does so recover staff costs as well as actual cost incurred. If, however, it exercises its discretion not to tailor its database to satisfy the request, it must produce a copy of that database in standard format, as defined at KRS 61.874(2)(b), and assess a copying charge equivalent to its actual costs, including medium and mechanical processing costs, but not including staff costs or the costs associated with redaction of statutorily protected fields of information. OAG 03-ORD-214.

By enacting KRS 237.110(8), the General Assembly expressly restricted disclosure of the public records requested to “hard copy form only.” Since KRS 61.878(1)(l) exempts from disclosure public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly, the Kentucky State Police properly denied the request to produce the requested list of names of concealed permit holders in electronic format. OAG 03-ORD-222.

Although the city may properly require the requester to prepay reasonable copying and postage charges as a condition to mailing him copies of these audit reports, it cannot impose a flat charge of ten dollars ($10) unless it can substantiate that this charge reflects the actual cost of reproduction, including the costs of the media and any mechanical processing costs incurred, but not including the cost of staff required. OAG 03-ORD-224.

KRS 61.874(4)(a) expressly authorizes public agencies to recover the cost of staff required to produce a copy of a public record, and, in this respect, markedly differs from KRS 61.874(3), expressly excluding “the cost of staff required.” The statute fully supports imposition of an hourly rate for staff time expended in the assignment and research of an open records request, as well as the retrieval, redaction, and reproduction of responsive records, and ultimate review and disposition of that request. OAG 04-ORD-54.

Because the City failed to substantiate that its $.25 per square foot copying charge reflects the City’s actual costs, the $2.50 copying charge imposed for the blueprints was excessive, and the City must, pursuant to KRS 61.874(3), recalculate its copying fee to reflect its actual costs of approximately $.80 per square foot or approximately $.50 per sheet ($.80 per square foot by 6 square feet as opposed to $.25 per square foot by 6 square feet). To this, the City may add the $.97 per sheet commercial scanning charge for a total cost of no more than $1.50 per copy. OAG 04-ORD-217.

Although an agency may properly exercise its discretion either affirmatively or negatively in deciding whether to provide online access to electronic records, having exercised that option affirmatively relative to one (1) or more requesters, it must exercise the option affirmatively as to all requesters who are willing and able to abide by the terms and conditions of online access established by the agency. OAG 05-ORD-25.

Unless a city can substantiate that its actual costs exceed ten cents ($0.10) per page, it must recalculate its copying fee to conform to the requirements found at KRS 61.874(3); there is no support in existing legal authority for the fifty cents ($0.50) per page copying fee that the city currently imposes. OAG 05-ORD-70.

A letter prepared by a public agency employee, an attorney, to opposing counsel in a civil action is clearly a public record, notwithstanding the fact that it is maintained in an attorney case file originating from the representation of a public employee in their individual capacity. OAG 05-ORD-72.

The Personnel Cabinet subverted the intent of the Open Records Act, short of denial of inspection, by requiring a requester to pay programming costs of $210 for production of payroll records for the Office of Security Coordination. OAG 05-ORD-116.

Where requested records have been retrieved and produced for inspection and the requester has identified and separated into “stacks” the records she wishes to have copied, the “burden” thereafter associated with production of copies of the records is one that agencies are statutorily required to shoulder per KRS 61.874(1). It is not incumbent on the requester to identify specific records for copying. OAG 05-ORD-201.

County Clerk fully discharged her duties under the Open Records Act by providing on-site access to the requester, or his representative, to inspect and copy requested records and she did not violate Act in denying request for copies of the records in an electronic format, when records were not maintained in such format. OAG 06-ORD-041.

KRS 61.874(6) authorizes public agencies to make online access available at their discretion and to require a party wishing to access records by electronic means to enter into a contract. The agency must retain the corollary right to terminate the contract if the party is found to have violated its terms. Indeed, KRS 61.8745 establishes a damages section for persons who violate, inter alia, KRS 61.874(6). OAG 2006-ORD-041.

Research References and Practice Aids

Kentucky Bench & Bar.

McClelland, A Never-ending struggle between competing policies: The Kentucky Open Records Act, Vol. 61, No. 4, Fall 1997, Ky. Bench & Bar 25.

Northern Kentucky Law Review.

Ziegler, The Kentucky Open Records Act: A Preliminary Analysis, 7 N. Ky. L. Rev. 7 (1980).

61.8745. Damages recoverable by public agency for person’s misuse of public records.

A person who violates subsections (2) to (6) of KRS 61.874 shall be liable to the public agency from which the public records were obtained for damages in the amount of:

  1. Three (3) times the amount that would have been charged for the public record if the actual commercial purpose for which it was obtained or used had been stated;
  2. Costs and reasonable attorney’s fees; and
  3. Any other penalty established by law.

History. Enact. Acts 1994, ch. 262, § 7, effective July 15, 1994.

61.8746. Commercial use of booking photographs or official inmate photographs prohibited — Conditions — Right of action — Damages.

  1. A person shall not utilize a booking photograph or a photograph of an inmate taken pursuant to KRS 196.099 originally obtained from a public agency for a commercial purpose if:
    1. The photograph will be placed in a publication or posted on a Web site; and
    2. Removal of the photograph from the publication or Web site requires the payment of a fee or other consideration.
  2. Any person who has requested the removal of a booking photograph or photo taken pursuant to KRS 196.099 of himself or herself:
    1. Which was subsequently placed in a publication or posted on a Web site; and
    2. Whose removal requires the payment of a fee or other consideration; shall have a right of action in Circuit Court by injunction or other appropriate order and may also recover costs and reasonable attorney’s fees.
  3. At the court’s discretion, any person found to have violated this section in an action brought under subsection (2) of this section, may be liable for damages for each separate violation, in an amount not less than:
    1. One hundred ($100) dollars a day for the first thirty (30) days;
    2. Two hundred and fifty ($250) dollars a day for the subsequent thirty (30) days; and
    3. Five hundred ($500) dollars a day for each day thereafter.

If a violation is continued for more than one (1) day, each day upon which the violation occurs or is continued shall be considered and constitute a separate violation.

HISTORY: 2016 ch. 101, § 1, effective July 15, 2016.

61.876. Agency to adopt rules and regulations — Standardized form to request public records.

  1. Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to ensure efficient and timely action in response to application for inspection, and such rules and regulations shall include but shall not be limited to:
    1. The principal office of the public agency and its regular office hours;
    2. The title, mailing address, and e-mail address of the official custodian of the public agency’s records;
    3. The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
    4. The procedures to be followed in requesting public records.
  2. Each public agency shall display in a prominent location accessible to the public, including on its Web site:
    1. A copy of its rules and regulations pertaining to public records;
    2. The mailing address, e-mail address, and phone number of the official custodian of the records or his or her designee to which all requests for public records shall be made; and
    3. The form developed by the Attorney General under subsection (4) of this section that may be used to request public records.
  3. The Finance and Administration Cabinet may promulgate administrative regulations pursuant to KRS Chapter 13A, pertaining to public records, for all state administrative agencies, except for the Legislative Research Commission and the Administrative Office of the Courts, each of which may promulgate administrative regulations for their respective agencies, pertaining to public records.
  4. The Attorney General shall promulgate by administrative regulation under KRS Chapter 13A a standardized form that may be used to request public records from a public agency. The form shall not allow any request for information other than the following:
    1. The name of the requesting party;
    2. The mailing or e-mail address of the requesting party, if copies of records are requested;
    3. Whether the request is for a commercial purpose;
    4. A description of the documents requested;
    5. A statement that the person making the request:
      1. Is a resident of the Commonwealth under KRS 61.870(10); and
      2. The statement includes the manner in which the requester is a resident of the Commonwealth under KRS 61.870(10)(a) to (f); and
    6. The signature of the requesting party.
  5. The Attorney General shall make the form readily available to the public, including on the Attorney General’s Web site. The form shall be accepted by every public agency for any request for public records made on or after June 29, 2021.

History. Enact. Acts 1976, ch. 273, § 4; 2021 ch. 160, § 3, effective June 29, 2021.

NOTES TO DECISIONS

1.Application to Courts.

Some details of the Open Records Law present interferences inconsistent with the orderly conduct of court business, to wit, the requirement that courts adopt and post rules and regulations, that they conform to the procedure set forth in KRS 61.880 , and that as to the accessibility of their records they adhere to the list of exceptions stated in KRS 61.878 , and such requirements will not be accepted. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

Opinions of Attorney General.

This section was intended for agencies whose primary function was not the keeping of records and who therefor need to adopt rules and regulations and the Circuit Court Clerk is not required to adopt regulations pertaining to records under this section. OAG 76-431 .

This section is so detailed that an agency needs only to adopt rules as to its principal office, its regular office hours, its official custodian, fees to be charged, and the procedures to be followed in requesting public records. OAG 78-340 .

This section mandates that each public agency shall adopt rules pertaining to access to public records and failure to do so constitutes a technical violation of the statute, but there is no penalty provided for failure to adopt and post regulations. OAG 78-340 .

Where a public agency has not adopted its own rules and regulations with respect to the storage of agency records, the uniform regulations adopted by the Department of Finance (now Finance and Administration Cabinet) would apply to determine where such records can be kept; thus, in the absence of agency regulations, the records of the board of physical therapy may be kept in the home of the executive director of the board when the residence is designated as the official office of the agency and the responsibility for the keeping of the records is placed on the executive director as the official custodian, with no further precautions necessary; moreover, the listing of the home address in the state directory and city telephone directory serves as sufficient notice as to where the records may be found and inspected under the Open Records Law. OAG 81-269 .

The provisions of KRS 61.872 , 61.874 and 61.876 , when taken together, require that public agencies have a policy of allowing inspection of public records, of protecting the records, of preventing excessive disruption of the agency’s functions, of providing copies upon request, of providing efficient and timely action in response to applications for inspection and of charging a reasonable fee based on the actual cost of making copies not including the cost of staff required; these three (3) sections allow public agencies a certain amount of leeway as to handling requests for records by mail and mailing copies to requesters who have not personally inspected the records and selected the items which they want copied. OAG 83-204 .

Public agencies should accommodate requesters whenever they can within the bounds of the efficient operation of their office. Whenever only one (1) item is requested, or a few precisely described items which are readily available within the office, and no special search is required, it will be more convenient both to the agency and to the requester to answer the request through the mail; to require the requester to appear in person at the office of the agency in such a case would not be more convenient to either party and would only inhibit the intended purpose of the Open Records Law. OAG 83-204 .

If a public agency’s rules and regulations do not conform to KRS 61.870 to 61.884 as required by this section, the rules and regulations promulgated by the Finance and Administration Cabinet then apply to that public agency until the agency brings its existing rules and regulations into conformance with the Open Records Act. OAG 84-300 .

Attorney General opined that Custodian of Records’ actions, in denying inmate’s request for a copy of his transfer authorization form pursuant to KRS 61.880 because inmate’s account had no money to cover the reproduction costs, were entirely consistent with the Open Records Act because a public agency is authorized to prescribe reasonable fees for making copies of public records pursuant to subsection (1)(c) of this section and KRS 61.874(2). OAG 91-210 .

City manager’s abusive conduct created a hostile atmosphere which rendered the facilities provided by the city unsuitable for inspection. OAG 93-ORD-39.

While a requester cannot expect an agency to provide facilities offering the enforced silence of a library, he may certainly expect that those facilities will afford him adequate opportunity to inspect the records without interruption, and without harassment. OAG 93-ORD-39.

While there is certainly an essential relationship between KRS Chapter 61, the Open Records Act, and KRS Chapter 171, state archives and records, insofar as effective records management facilitates efficient governmental operation and public accountability, this section requires each public agency to adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 which are aimed at insuring that each agency will educate the public on its particular policies and practices relative to open records; the records retention and disposal schedule envisioned by KRS Chapter 171 does not correspond to the rules and regulations for public agencies mandated by this section, nor are agencies required to formulate these rules and regulations under the direction of the Department for Libraries and Archives. OAG 94-ORD-12.

Since a police report does not appear to fall within the parameter of a separate fee statute, subsection (2) of this section governs, and any fee charged in excess of the Department’s actual cost is a violation of the Open Record’s Act. OAG 94-ORD-77.

A sign on the wall of police department stating that requestors will be charged $5.00 for copies, absent independent statutory authority, did not justify the department’s charges for copies; therefore, the police department must recalculate the fee it imposes for copies to conform to the requirements of KRS 61.874(2) of this section and should also remove the sign which appears on its walls, and replace it with a revised notice which conforms to KRS 61.874(2) and this section. OAG 94-ORD-77.

Although the county clerk is required by KRS 61.878(4) to make all nonexempt portions of public records available for inspection or copying, the clerk is not required to designate an employee to assist the requesting party in inspecting nonexempt records stored in electronic or hardcopy format. OAG 95-ORD-43.

A county board of education did not violate the statute where the requester sought to inspect voluminous records, many of which were not immediately accessible, and the board arranged for the requester to inspect the documents over a two (2) day period beginning 20 days after the statutory deadline for inspection. OAG 99-ORD-26.

It is incumbent on all public agencies to designate an employee to fill the role of official custodian and to adopt and post rules and regulations identifying that employee as official custodian so that open records requests can be directed to him for processing and final agency action; if he does not have custody or control of the public record requested, he must notify the requester and furnish the name and location of the official custodian of those records. OAG 99-ORD-30.

A board of education could not restrict the requester’s right of on-site access to three (3) hours on a single day, notwithstanding that the board elected to assign an employee and a law enforcement officer to monitor the requester’s inspection of the records, where the board acknowledged that no restraining order was issued against the requester to prevent him from entering the board’s offices. OAG 99-ORD-44.

Where a request for records was submitted to the director of a corrections education center at a correctional complex, a position created by a memorandum of agreement between the Department of Corrections and the Kentucky Community Technical College System (KCTCS), the director’s response that the requester that he should submit his request to KCTCS’s official records custodian did not constitute an intentional subversion of the Open Records Act. OAG 00-ORD-12.

An agency may properly require all records requests to be routed through its official custodian to ensure the timely and orderly processing of open records requests. OAG 00-ORD-73.

The Board’s policy of destruction of open records requests, which apparently the Board considers to be general correspondence, would not be inconsistent with Records Retention Schedule, Series No. M0002, which states that general correspondence may be retained no longer than two (2) years. OAG 03-ORD-24.

Research References and Practice Aids

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Candid Kentucky: The Commonwealth’s Devotion to an Open Government, 39 N. Ky. L. Rev. 45 (2012).

61.878. Certain public records exempted from inspection except on order of court — Restriction of state employees to inspect personnel files prohibited.

  1. The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery:
    1. Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
    2. Records confidentially disclosed to an agency and compiled and maintained for scientific research. This exemption shall not, however, apply to records the disclosure or publication of which is directed by another statute;
      1. Records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records; (c) 1. Records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records;
      2. Records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained:
        1. In conjunction with an application for or the administration of a loan or grant;
        2. In conjunction with an application for or the administration of assessments, incentives, inducements, and tax credits as described in KRS Chapter 154;
        3. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person; or
        4. For the grant or review of a license to do business.
      3. The exemptions provided for in subparagraphs 1. and 2. of this paragraph shall not apply to records the disclosure or publication of which is directed by another statute;
    3. Public records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business’ or industry’s interest in locating in, relocating within or expanding within the Commonwealth. This exemption shall not include those records pertaining to application to agencies for permits or licenses necessary to do business or to expand business operations within the state, except as provided in paragraph (c) of this subsection;
    4. Public records which are developed by an agency in conjunction with the regulation or supervision of financial institutions, including but not limited to banks, savings and loan associations, and credit unions, which disclose the agency’s internal examining or audit criteria and related analytical methods;
    5. The contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to acquisition of property, until such time as all of the property has been acquired. The law of eminent domain shall not be affected by this provision;
    6. Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination before the exam is given or if it is to be given again;
    7. Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884 , public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth’s attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884;
    8. Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
    9. Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
    10. All public records or information the disclosure of which is prohibited by federal law or regulation or state law;
    11. Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly, including any information acquired by the Department of Revenue in tax administration that is prohibited from divulgence or disclosure under KRS 131.190 ;
      1. Public records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act and limited to: (m) 1. Public records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act and limited to:
        1. Criticality lists resulting from consequence assessments;
        2. Vulnerability assessments;
        3. Antiterrorism protective measures and plans;
        4. Counterterrorism measures and plans;
        5. Security and response needs assessments;
        6. Infrastructure records that expose a vulnerability referred to in this subparagraph through the disclosure of the location, configuration, or security of critical systems, including public utility critical systems. These critical systems shall include but not be limited to information technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage, and gas systems;
        7. The following records when their disclosure will expose a vulnerability referred to in this subparagraph: detailed drawings, schematics, maps, or specifications of structural elements, floor plans, and operating, utility, or security systems of any building or facility owned, occupied, leased, or maintained by a public agency; and
        8. Records when their disclosure will expose a vulnerability referred to in this subparagraph and that describe the exact physical location of hazardous chemical, radiological, or biological materials.
      2. As used in this paragraph, “terrorist act” means a criminal act intended to:
        1. Intimidate or coerce a public agency or all or part of the civilian population;
        2. Disrupt a system identified in subparagraph 1.f. of this paragraph; or
        3. Cause massive destruction to a building or facility owned, occupied, leased, or maintained by a public agency.
      3. On the same day that a public agency denies a request to inspect a public record for a reason identified in this paragraph, that public agency shall forward a copy of the written denial of the request, referred to in KRS 61.880(1), to the executive director of the Kentucky Office of Homeland Security and the Attorney General.
      4. Nothing in this paragraph shall affect the obligations of a public agency with respect to disclosure and availability of public records under state environmental, health, and safety programs.
      5. The exemption established in this paragraph shall not apply when a member of the Kentucky General Assembly seeks to inspect a public record identified in this paragraph under the Open Records Law;
    12. Public or private records, including books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, having historic, literary, artistic, or commemorative value accepted by the archivist of a public university, museum, or government depository from a donor or depositor other than a public agency. This exemption shall apply to the extent that nondisclosure is requested in writing by the donor or depositor of such records, but shall not apply to records the disclosure or publication of which is mandated by another statute or by federal law;
    13. Records of a procurement process under KRS Chapter 45A or 56. This exemption shall not apply after:
      1. A contract is awarded; or
      2. The procurement process is canceled without award of a contract and there is a determination that the contract will not be resolicited;
    14. Client and case files maintained by the Department of Public Advocacy or any person or entity contracting with the Department of Public Advocacy for the provision of legal representation under KRS Chapter 31;
    15. Except as provided in KRS 61.168 , photographs or videos that depict the death, killing, rape, or sexual assault of a person. However, such photographs or videos shall be made available by the public agency to the requesting party for viewing on the premises of the public agency, or a mutually agreed upon location, at the request of;
        1. Any victim depicted in the photographs or videos, his or her immediate family, or legal representative; 1. a. Any victim depicted in the photographs or videos, his or her immediate family, or legal representative;
        2. Any involved insurance company or its representative; or
        3. The legal representative of any involved party;
      1. Any state agency or political subdivision investigating official misconduct; or
      2. A legal representative for a person under investigation for, charged with, pled guilty to, or found guilty of a crime related to the underlying incident. The person under investigation for, charged with, pled guilty to, or found guilty of a crime related to the underlying incident or their immediate family shall not be permitted to have access to the photographs or videos; and
    16. Communications of a purely personal nature unrelated to any governmental function.
  2. No exemption in this section shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person.
  3. No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, lay-offs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
  4. If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
  5. The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
  6. When material is made available pursuant to a request under subsection (1)(q) of this section, the public agency shall not be required to make a copy of the recording except as provided in KRS 61.169 , and the requesting parties shall not be limited in the number of times they may view the material.

History. Enact. Acts 1976, ch. 273, § 5; 1986, ch. 494, § 24, effective July 15, 1986; 1992, ch. 163, § 5, effective July 14, 1992; 1994, ch. 262, § 5, effective July 15, 1994; 1994, ch. 450, § 34, effective July 15, 1994; 2005, ch. 45, § 6, effective March 16, 2005; 2005, ch. 93, § 3, effective March 16, 2005; 2013, ch. 32, § 3, effective June 25, 2013; 2018 ch. 176, § 5, effective July 14, 2018; 2019 ch. 151, § 1, effective June 27, 2019; 2021 ch. 78, § 1, effective March 23, 2021; 2021 ch. 160, § 4, effective June 29, 2021.

Compiler’s Notes.

Section 38 of Acts 1994, ch. 450 provides that: “It is the intent of the General Assembly that the amendment to Section 34 of this Act shall be retroactive to July 15, 1992.”

Legislative Research Commission Notes.

(6/29/2021). This statute was amended by 2021 Ky. Acts chs. 78 and 160, which do not appear to be in conflict and have been codified together.

(3/23/2021). 2021 Ky. Acts ch. 78, sec. 2 provides that the Act, which amended this statute, may be cited as the Bailey Holt-Preston Cope Victims Privacy Act.

(6/20/2005). The Office of the Kentucky Attorney General requested that amendments in 2005 Ky. Acts ch. 45, sec. 6, and ch. 93, sec. 3, to the arrangement of the paragraphs of subsection (1) of this section be changed. The change was requested “in the interest of preventing confusion to the public and public agencies” and was made by the Statute Reviser under the authority of KRS 7.136 .

NOTES TO DECISIONS

1.Construction.

Notwithstanding that KRS 61.884 allows any person to have access to any public record relating to him or in which he is mentioned by name, a citizen was not entitled to a copy of a tape recording of a 911 call reporting that the citizen had threatened to kill his own wife and other members of his family, as the disclosure of such recording would have constituted a clearly unwarranted invasion of personal privacy of the 911 caller in violation of this section. Bowling v. Brandenburg, 37 S.W.3d 785, 2000 Ky. App. LEXIS 22 (Ky. Ct. App. 2000).

Fact that a complaint against a police officer was considered at a closed hearing, as required by a legislative enactment, did not mean that the complaint which gave rise to the hearing was exempt from public disclosure under KRS 61.878(1)(l). Palmer v. Driggers, 60 S.W.3d 591, 2001 Ky. App. LEXIS 1165 (Ky. Ct. App. 2001).

While the interests reckoned on the privacy side of the balance generally do not dissipate, and in some instances even grow stronger, with the passage of time, it is no less true that the public’s interest in knowing what the government is up to includes a strong historical interest in knowing what the government was up to; the passage of time, therefore, while a factor relevant to the balancing of interests required by the privacy exemption, will seldom be dispositive in-and-of itself. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 ( Ky. 2013 ).

University violated the Open Records Act because the university did not (1) show a specific exemption applied to a particular record, (2) redact personally identifying information, or (3) show records were exempt through a proper index, and (4) refused to let the Attorney General review redacted records. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

2.Legislative Intent.

To infer that subdivision (1)(a) of this section may be invoked only where the subject information is already protected under a different paragraph would require a reading of the statute which is, to say the least, esoteric — and which, incidentally, would render subdivision (1)(a) a nullity. A plain reading of subdivision (1)(a) reveals an unequivocal legislative intention that certain records, albeit they are “public,” are not subject to inspection, because disclosure would constitute a clearly unwarranted invasion of personal privacy. Judging by order, if nothing more, one might say that subdivision (1)(a) is the foremost exception to the disclosure rule. Certainly it is an independently viable exception, not subordinate to any other, and not restricted to preliminary materials or non-final matters. Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 1992 Ky. LEXIS 35 ( Ky. 1992 ).

Since corporation sought investment tax credits through Kentucky Industry Revitalization Authority (KIRA) which was established by and administered through KRS Chapter 154 and the information submitted by corporation to KIRA was done in conjunction with said application for the tax credits and since by amending the Open Records Act, specifically KRS 61.878 (1)(c)(2)(b), to include documents submitted pursuant to KRS Chapter 154, it is evident that the Legislature sought to protect those companies which participate in the revitalization and development of industry in Kentucky, such documents were exempt from disclosure. Hoy v. Kentucky Indus. Revitalization Auth., 907 S.W.2d 766, 1995 Ky. LEXIS 125 ( Ky. 1995 ).

The Legislature in adopting the open records law clearly intended to grant any member of the public as much right to access to information as the next; the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. Zink v. Department of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 1994 Ky. App. LEXIS 141 (Ky. Ct. App. 1994).

In construing the term “party” in subsection (1) of this section, the appellate court attached significance to the Legislature’s word choice, which was “party” not “person” and interpreted this to mean that a newspaper seeking to inspect records of a prison inmate was not a “party” in the litigation involving the inmate; thus, this section was inapplicable, and the documents requested were open for inspection pursuant to KRS 61.872 . Department of Corrections v. Courier-Journal & Louisville Times, 914 S.W.2d 349, 1996 Ky. App. LEXIS 10 (Ky. Ct. App. 1996).

General Assembly did not intend to mandate an iron rule of non-disclosure whenever an exemption contained in the Kentucky Open Records Act applies because such a rule would run counter to the principle, fundamental in the law, that rights, even fundamental rights, may be waived, and the Act’s express policy, is the free and open examination of public records. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 ( Ky. 2013 ).

3.Attorney-Client Privilege.

The Governor’s administration was properly ordered to release service description statements on attorney billing records reflecting the general nature of legal services rendered by nongovernmental lawyers retained in connection with an investigation of hiring practices. Such statements were not protected by the attorney-client privilege of KRE 503, and the trial court’s solution of allowing the administration to submit descriptions it believed to be privileged for in camera review balanced the administration’s interest in the confidentiality of privileged materials and the public interest in disclosure. Commonwealth v. Scorsone, 2008 Ky. App. LEXIS 18 (Ky. Ct. App. Jan. 18, 2008), sub. op., 251 S.W.3d 328, 2008 Ky. App. LEXIS 40 (Ky. Ct. App. 2008).

Blanket redaction of descriptions of particular services rendered by nongovernment lawyers to various agencies in the Governor’s administration was improper under the Open Records Act, KRS 61.870 to 61.884 , as the attorney-client privilege under KRE 503 did not apply to every communication between an attorney and a client. Commonwealth v. Scorsone, 251 S.W.3d 328, 2008 Ky. App. LEXIS 40 (Ky. Ct. App. 2008).

4.Application to Courts.

If subsection (2) of this section means materials and data in the process of being accumulated, or which already have been accumulated, to the end that the court may select from it such portions as it deems pertinent for comparison with the facts of a case or cases to be reviewed by it, then a compliance with the statute would interfere with the court’s work. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

Some details of the Open Records Act present interferences inconsistent with the orderly conduct of court business, to wit, the requirement that courts adopt and post rules and regulations, that they conform to the procedure set forth in KRS 61.880 , and that as to the accessibility of their records they adhere to the list of exceptions stated in this section, and such requirements will not be accepted. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

5.Standard for Nondisclosure.

In light of the clear recognition of an individual’s right of privacy in Kentucky, the question of whether, absent a court order, information should be withheld from disclosure pursuant to subdivision (1)(a) of this section, is subject to a test of balancing the interests of the parties as well as those of the public, measured by the standard of a reasonable man. Board of Education v. Lexington-Fayette Urban County Human Rights Com., 625 S.W.2d 109, 1981 Ky. App. LEXIS 302 (Ky. Ct. App. 1981).

Where county attorney did not attempt to establish that disclosure of records relating to child support payments requested by attorney representing father of minor child would constitute a clearly unwarranted invasion of personal privacy, and where county attorney did not reference relevant state or federal law barring disclosure or explain its application to the disputed records, county attorney’s response failed to conform to KRS 61.880(2)(c) and KRS 61.882(3). Edmondson v. Alig, 926 S.W.2d 856, 1996 Ky. App. LEXIS 124 (Ky. Ct. App. 1996).

This section provides the proper standard for determining whether records may be excluded from disclosure in administrative hearings, such as those provided for under the Health Care Acts of 1994: “if a document is confidential or proprietary, and that disclosure to competitors would give them substantially more than a trivial unfair advantage, the document should be protected from disclosure to those who are not parties to the proceeding.” Southeastern United Medigroup v. Hughes, 952 S.W.2d 195, 1997 Ky. LEXIS 90 ( Ky. 1997 ), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ).

Records that a fired program coordinator requested from an urban county government were privileged as information obtained during an investigation conducted by a law firm that was acting as the urban government’s attorney; therefore, the information was not discoverable. Meriwether v. Lexington-Fayette Urban County Gov't, 2002 Ky. App. LEXIS 1 (Ky. Ct. App. Jan. 4, 2002).

Department of Correction’s argument regarding the unreasonable burden of complying with open records requests of inmates as a whole class of people missed the mark because the unreasonable burden language in KRS 61.872(6) focused on a singular “application,” not a group of applications from an entire class of applicants. Commonwealth v. Chestnut, 250 S.W.3d 655, 2008 Ky. LEXIS 116 ( Ky. 2008 ).

Because the Circuit Court never determined whether certain requested materials were subject to one of the fourteen exclusions listed in KRS 61.878(1), the matter had to be remanded to the Circuit Court to make a determination as to whether the materials an attorney requested were specifically excluded under one or more of the fourteen listed exclusions. Wyrick v. Dep't of Revenue, 2008 Ky. App. LEXIS 169 (Ky. Ct. App. May 30, 2008).

Since the privacy interests in not being identified by personal information was almost always substantial and the public interest in disclosure rarely so, the city’s categorical redaction of such information was a reasonable application of KRS 61.878(1)(a). Ky. New Era v. City of Hopkinsville, 415 S.W.3d 76, 2013 Ky. LEXIS 644 ( Ky. 2013 ).

Kentucky State Police violated the Open Records Act, Ky. Rev. Stat. Ann. § 61.870 et seq., by failing to produce its entire Uniform Citation File database when requested by a reporter where the time and manpower required to separate exempt material, standing alone, was not sufficiently clear and convincing evidence to show an unreasonable burden under Ky. Rev. Stat. Ann. § 61.872(6). Moreover, the undisputed evidence noted that the necessary categorical extractions could be performed for $15,000, and electronically separating exempt material was not equivalent to creating a new record given the mandate in Ky. Rev. Stat. Ann. § 61.878(4). Commonwealth v. Courier Journal, 601 S.W.3d 501, 2020 Ky. App. LEXIS 42 (Ky. Ct. App. 2020).

6.Personnel Files.

There is no unqualified right for one governmental entity to examine the total personnel files of another governmental entity; accordingly, where the Human Rights Commission sought all personnel records of complainant and three (3) other school security officers in an employment promotion sex discrimination case, the Board of Education need only disclose such information as remains after it “sanitizes” the records, pursuant to subsection (3) of this section, to remove material not germane to the action. Board of Education v. Lexington-Fayette Urban County Human Rights Com., 625 S.W.2d 109, 1981 Ky. App. LEXIS 302 (Ky. Ct. App. 1981).

In a case where a newspaper sought disclosure, pursuant to the Open Records Act, KRS 61.870 et seq., of performance evaluations of an employee who was convicted of theft arising from his employment with an agency, redaction of the records to remove truly personal information was the best solution. Cape Publ'ns v. City of Louisville, 191 S.W.3d 10, 2006 Ky. App. LEXIS 101 (Ky. Ct. App. 2006).

Appellant was not entitled to inspect the personnel file of the prosecuting attorney in appellant’s criminal case under the Kentucky Open Records Act because disclosure amounted to a clearly unwarranted invasion of personal privacy under KRS 61.878(1)(a) and served no public purpose. Valentine v. Pers. Cabinet, 322 S.W.3d 505, 2010 Ky. App. LEXIS 139 (Ky. Ct. App. 2010).

7.Investigative Reports.

Although KRS 17.150(5) provides for common remedies by establishing that “[t]he provisions of KRS Chapter 61 dealing with administrative and judicial remedies for inspection of public records and penalties for violations thereof shall be applicable to this section,” such provision does not automatically equate investigative reports relating to prosecutions (governed by KRS 17.150(2)) with those compiled for administrative adjudications (governed by subdivision (1)(f) of this section); these remain separate matters. Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658, 1982 Ky. App. LEXIS 232 (Ky. Ct. App. 1982).

The investigative files of the internal affairs unit of a city police department were exempt from public inspection as preliminary under subsections (1)(g) and (h) of this section; this exemption did not extend to the complaints against a police officer which initially spawned the investigations. The public upon request had a right to know what complaints had been made and the final action taken by the chief thereupon. Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658, 1982 Ky. App. LEXIS 232 (Ky. Ct. App. 1982).

County’s redaction of a suspect’s identity from a disclosed police investigation file was proper under circumstances in which the suspect was not charged with or arrested for the alleged rape investigated; although a newspaper maintained that the public had a legitimate interest in monitoring police conduct and in ensuring that the investigation was handled properly, the newspaper had been provided some 900 pages of documents concerning the investigation, and had never established or even maintained that these documents were insufficient to fully investigate the police conduct, and failed to show how disclosure of the suspect’s identity would have furthered such an interest under the facts of this case. The suspect’s intrinsic personal privacy interest outweighed the nebulously asserted public interest, and the KRS 61.878(1)(a) personal privacy exemption applied. Lexington H-L Servs. v. Lexington-Fayette Urban County Gov't, 297 S.W.3d 579, 2009 Ky. App. LEXIS 51 (Ky. Ct. App. 2009).

Proffer given to the Kentucky Office of the Attorney General relating to a company’s business practices was not exempt from disclosure under KRS 61.878(1)(h) because there was no showing that the disclosure would have harmed the agency. Lawson v. Office of the Atty., 2012 Ky. App. LEXIS 44 (Ky. Ct. App. Mar. 2, 2012), aff'd, 415 S.W.3d 59, 2013 Ky. LEXIS 640 ( Ky. 2013 ).

Circuit court properly affirmed an Attorney General’s opinion on an Open Records Act request that the audit documents at issue were subject to disclosure because the preliminary-records exception did not apply where a university took its final action based upon the information revealed during the audits, the audits were not prepared or conducted under the direction of counsel or intended to be disclosed only to counsel for the purposes of preparing legal advice, and the audit documents were not subject to the work-product doctrine since they were prepared in the course of the university’s normal business oversight of a clinic’s operation, and only remotely in anticipation of potential litigation. Univ. of Ky. v. Lexington H-L Servs., 579 S.W.3d 858, 2018 Ky. App. LEXIS 238 (Ky. Ct. App. 2018).

Circuit court made an erroneous factual conclusion that all the records in the investigation file were covered by the Family Educational Rights and Privacy Act (FERPA) because although the university was prohibited from releasing for the Attorney General’s in camera review education records with unredacted personally identifying information, not all the records requested were education records, and FERPA did not prohibit their release. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

Although the Family Educational Rights and Privacy Act precluded a university from releasing to a student newspaper unredacted education records contained in a Title IX of the United States Education Amendments of 1972 investigation file, the circuit court’s finding that all the requested records were exempt from disclosure was not supported by substantial evidence because some records were not directly related to any student, such as a camera manual, University policies, and scheduling notes. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

8.Preliminary Materials.

Once final disciplinary action is taken by the Board of Medical Licensure, any complaint, report, memorandum, or letter made part of the record in such action is not within the exceptions to the Open Records Act found in subdivisions (1)(g) and (1)(h) of this section and must therefore be made available to the public. Kentucky State Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 1983 Ky. App. LEXIS 327 (Ky. Ct. App. 1983).

Those documents defined in subdivisions (1)(g) and (1)(h) of this section which become a part of the records adopted by the Board of Medical Licensure as the basis of its final action, become releasable as public records under subdivision (1)(f), unless exempted by other provisions of KRS 61.870 through 61.884 . Kentucky State Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 1983 Ky. App. LEXIS 327 (Ky. Ct. App. 1983).

The attempt by the Board of Medical Licensure to categorize complaints against physicians as formal public complaints and private individual complaints has no bearing on whether such complaints must be released under the Open Records Act. Inasmuch as final actions stem from the complaints, they must be incorporated as part of the final determination and are therefore not exempt under subdivisions (1)(g) or (1)(h) of this section. Kentucky State Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 1983 Ky. App. LEXIS 327 (Ky. Ct. App. 1983).

Subsections (h) and (i) of this section exempt Governor’s daily appointment ledgers as within the exception for preliminary materials from media inspection and that, as such, summary judgment denying their availability to newspaper under the Open Records Act was appropriate. Courier-Journal v. Jones, 895 S.W.2d 6, 1995 Ky. App. LEXIS 58 (Ky. Ct. App. 1995).

Fact that a police officer resigned before the conclusion of his termination hearing did not render the complaint which gave rise to the termination hearing “preliminary materials,” which were not subject to public disclosure under the Kentucky Open Records Act, KRS 61.878 . Palmer v. Driggers, 60 S.W.3d 591, 2001 Ky. App. LEXIS 1165 (Ky. Ct. App. 2001).

Since emails between a city mayor and the city council members were preliminary discussions concerning what course of action to take with respect to a financial controversy regarding a local convention center, they were within the exemption from disclosure of the Open Records Act pursuant to KRS 61.878(1), and a city and the mayor were not liable for willfully withholding records under KRS 61.882(5). Baker v. Jones, 199 S.W.3d 749, 2006 Ky. App. LEXIS 12 (Ky. Ct. App. 2006).

Where a university appealed a circuit’s denial of its motion for summary judgment, the university had not violated the Open Records Act; the circuit court and the Officer of the Attorney General incorrectly determined that the four e-mails at issue lost the preliminary status afforded to them by KRS 61.878(1)(i) and (j) because the e-mails were incorporated into a final agency action, a meeting, and thus had to be disclosed. There had been no final agency action. Univ. of Louisville v. Sharp, 416 S.W.3d 313, 2013 Ky. App. LEXIS 161 (Ky. Ct. App. 2013).

Circuit court did not err finding that the analysis of internal affairs (IA) documents under the Kentucky Open Records Act did not end once the documents had been classified under the preliminary exception of Ky. Rev. Stat. Ann. § 61.878 (i) and (j) as the files did not maintain an indefinite preliminary status. However, that same statutory authority provided the state police with a limited authority to withhold portions of the IA file concerning any disciplinary recommendations or opinions not relied upon by the Commissioner in his final decision. Commonwealth v. Trageser, 600 S.W.3d 749, 2020 Ky. App. LEXIS 52 (Ky. Ct. App. 2020).

9.Presentence Investigation Report.

A criminal defendant is not entitled to a copy of his or her presentence investigation report both at the presentence and post-conviction stages. Commonwealth v. Bush, 740 S.W.2d 943, 1987 Ky. LEXIS 264 ( Ky. 1987 ).

To conform with the “fair opportunity” afforded a defendant by subsection (4) of KRS 532.050 , a defendant is entitled to being advised by the prison official who has custody of the presentence investigation report of the factual contents and conclusions therein and to a reasonable time to controvert factual information contained therein, but in order to protect the sources of confidential information, matters of opinion and comments of a personal and nonfactual nature shall not be revealed, and a defendant is not entitled to a copy of the report. Commonwealth v. Bush, 740 S.W.2d 943, 1987 Ky. LEXIS 264 ( Ky. 1987 ).

10.Invasion of Privacy.

File of complaints by psychologist’s clients alleging sexual misconduct was a public record containing information “of a very personal nature,” disclosure of which would have constituted a serious invasion of personal privacy. Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 1992 Ky. LEXIS 35 ( Ky. 1992 ).

Because the privacy interests of injured employees in personal details, such as home address, telephone number, and social security numbers, appearing on the S.F.1 forms required to be filed with Department of Worker’s Claims pursuant to Workers’ Compensation Act substantially outweigh the negligible Open Records Act related public interest in disclosure, such disclosure would constitute a “clearly unwarranted invasion of personal privacy” under subsection (1)(a) of this section. Zink v. Department of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 1994 Ky. App. LEXIS 141 (Ky. Ct. App. 1994).

In determining whether a request for certain public records constitute a clearly unwarranted invasion of person privacy under KRS 61.878(1)(a), the court must first determine whether the subject information is of a “personal nature” and if it finds it is a must then determine whether public disclosure “would constitute a clearly unwarranted invasion of personal privacy.” This latter determination entails a “comparative weighing of antagonistic interests” in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. Zink v. Department of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 1994 Ky. App. LEXIS 141 (Ky. Ct. App. 1994).

Unredacted copies of final settlement agreements which showed payments made by government in connection with lawsuits against the police department were not covered by the privacy exception contained in subdivision (1)(a) of this section even though two (2) or three (3) of the agreements contained confidentiality clauses whereby settlement recipients and their attorneys agreed not to disclose the terms of the agreements. Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469, 1997 Ky. LEXIS 38 ( Ky. 1997 ).

The trial court did not err by finding that individual property owners’ privacy interests outweighed the negligible public interest in releasing individualized valuation information regarding unclaimed property and that disclosure of such information as requested by the appellant would constitute a clearly unwarranted invasion of personal privacy. Hines v. Commonwealth, 41 S.W.3d 872, 2001 Ky. App. LEXIS 39 (Ky. Ct. App. 2001).

Complaint against police officer, charging specific acts of misconduct while on duty, presented a matter of unique public interest; while the allegations were of a personal nature, their disclosure would not constitute a clearly unwarranted invasion of the officer’s privacy and, therefore, be exempt from public disclosure under KRS 61.878(1)(a). Palmer v. Driggers, 60 S.W.3d 591, 2001 Ky. App. LEXIS 1165 (Ky. Ct. App. 2001).

As the status of a public university’s foundation as a public entity under KRS 61.870 had not been clearly established, it was reasonable for donors to the foundation who requested anonymity to expect their request to be honored. Therefore, a newspaper was properly denied access to donor identities and the amounts of their donations under Kentucky's Open Records Act. Cape Pub'ns, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818, 2008 Ky. LEXIS 176 ( Ky. 2008 ).

Future donors to the University of Lousiville Foundation are on notice that their gifts are being made to a public institution and, therefore, are subject to disclosure under KRS 61.871 regardless of any requests for anonymity. Cape Pub'ns, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818, 2008 Ky. LEXIS 176 ( Ky. 2008 ).

Names of donors to a public university’s foundation who had not requested anonymity were subject to the disclosure requirement of KRS 61.871 , as the foundation was a public entity under KRS 61.870 , and the donors had no reasonable expectation of privacy. Cape Pub'ns, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818, 2008 Ky. LEXIS 176 ( Ky. 2008 ).

Proffer given to the Kentucky Office of the Attorney General relating to a company’s business practices was not exempt from disclosure under KRS 61.878(1)(a) because disclosure did not amount to a clearly unwarranted invasion of privacy; the proffer was not inherently personal. Moreover, there was a diminished expectation of privacy in the information that was given since it was known that it could have been used in future civil or criminal litigation. Lawson v. Office of the Atty., 2012 Ky. App. LEXIS 44 (Ky. Ct. App. Mar. 2, 2012), aff'd, 415 S.W.3d 59, 2013 Ky. LEXIS 640 ( Ky. 2013 ).

Lower courts properly found that the witnesses, victims, and uncharged suspects referred to in the police department’s arrest and incident reports, adults and juveniles alike, had privacy interests in addresses, phone numbers, social security numbers, and driver’s license numbers that implicated KRS 61.878(1)(a) given that citizens had more than a de minimus interest in the confidentiality of such information. Ky. New Era v. City of Hopkinsville, 415 S.W.3d 76, 2013 Ky. LEXIS 644 ( Ky. 2013 ).

Newspaper’s unsupported speculation that the victims, witnesses, and uncharged suspects referred to in the police department’s arrest and incident reports may have shed light on police misconduct did not outweigh those citizens’ substantial privacy interests. Ky. New Era v. City of Hopkinsville, 415 S.W.3d 76, 2013 Ky. LEXIS 644 ( Ky. 2013 ).

Ky. Rev. Stat. Ann. § 61.878(1)(a) did not permit the withholding of the entire internal affairs files, but disclosure of information that was personal in nature, such as social security numbers, was prohibited and constituted an unwarranted invasion of privacy. Commonwealth v. Trageser, 600 S.W.3d 749, 2020 Ky. App. LEXIS 52 (Ky. Ct. App. 2020).

11.Standardized Tests.

Open Records Act did not authorize court to order standardized examination to be available for viewing by parents; the discretion given to courts under that act is not unbridled, and in the case of an examination, the individual’s interest must be balanced against the interest of the state in protecting the integrity of the examination. Triplett v. Livingston County Bd. of Educ., 967 S.W.2d 25, 1997 Ky. App. LEXIS 74 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 1104, 119 S. Ct. 870, 142 L. Ed. 2d 771, 1999 U.S. LEXIS 599 (U.S. 1999).

12.Nonexempt Information.

State university’s response to inquiry by collegiate athletic association into rules violation was not exempt from disclosure under Open Records Act exemption for public records. It is clear that the university is a “public agency” and the entire response submitted by the university to the National Collegiate Athletic Association (NCAA) constitutes a public record. Where the university spent over $400,000.00 for the response and the public has a legitimate interest in its contents, the response is not exempt. Furthermore, the contents of the response are a matter of public interest and release would not constitute a clearly unwarranted invasion of personal privacy. University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 1992 Ky. LEXIS 55 ( Ky. 1992 ).

Litigation exception found in Open Records Act did not apply to disclosure of the specifics of settlement agreements made between local police department and litigants suing department, since such settlements were merely negotiated by counsel and not in closed meetings. Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469, 1997 Ky. LEXIS 38 ( Ky. 1997 ).

13.Prosecutorial File.

The Open Records Act neither intends nor provides that a convicted criminal should have complete access to the prosecutorial file once his conviction has been affirmed on direct appeal. Skaggs v. Redford, 844 S.W.2d 389, 1992 Ky. LEXIS 164 ( Ky. 1992 ), overruled in part, City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 2013 Ky. LEXIS 375 ( Ky. 2013 ).

General Assembly mandated the non-disclosure of exempt records, a mandate the person or entity whose interest the exemption protects may seek to enforce in the circuit court; disclosure of an exempt record is not precluded if the intended beneficiaries waive their right to non-disclosure, and the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor an unlimited discretion to deny disclosure, but it does not preclude him or her from allowing it. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 ( Ky. 2013 ).

It was proper to refuse to enjoin the Attorney General from disclosing a statement an owner gave because the breach of Transportation Cabinet contracting regulations and the Attorney General’s response remained matters of sufficient public interest to warrant an invasion of the owner’s limited interest in keeping his account under wraps; the possibility of a limited amount of purely personal information does not justify the blanket non-disclosure of a record with substantial public import. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 ( Ky. 2013 ).

14.— Ongoing Enforcement Action.

The defense of a prospective habeas corpus proceedings was part of the “law enforcement action” in the defendant’s case; therefore, the records in the Commonwealth’s Attorney’s prosecution file fall within the provisions of subdivision (1)(g) of this section, as public records exempted until after enforcement action is completed. Skaggs v. Redford, 844 S.W.2d 389, 1992 Ky. LEXIS 164 ( Ky. 1992 ), overruled in part, City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 2013 Ky. LEXIS 375 ( Ky. 2013 ).

15.Standing to Contest Agency Decision.

A party affected by the decision of a public agency to release records pursuant to the Kentucky Open Records Act had standing to contest the agency decision in court where the disclosure of information in the public record would constitute a clearly unwarranted invasion of personal privacy. Beckham v. Board of Educ., 873 S.W.2d 575, 1994 Ky. LEXIS 22 ( Ky. 1994 ).

16.Private Corporation.
17.— Financial Information.

The confidential audited financial reports of privately owned, corporate marina operators were exempt from disclosure under KRS 61.878(1)(c)1. The Legislative Program Review and Investigation Committee could not obtain nor disclose such records under the Open Records Act, but could obtain access to them for its use in evaluation pursuant to KRS 6.910 without disclosure to the public. Marina Management Servs. v. Cabinet for Tourism, Dep't of Parks, 906 S.W.2d 318, 1995 Ky. LEXIS 62 ( Ky. 1995 ).

Because the Supreme Court is guided by the principle that under general rules of statutory construction it may not interpret a statute at variance with its stated language, the stated language of subdivision (1)(c)2.b. of this section seems quite clear: an entity seeking tax credits pursuant to KRS Chapter 154 need not disclose confidential information submitted in applying for such credits. Hoy v. Kentucky Indus. Revitalization Auth., 907 S.W.2d 766, 1995 Ky. LEXIS 125 ( Ky. 1995 ).

Since corporation sought investment tax credits through Kentucky Industry Revitalization Authority (KIRA) which was established by and administered through KRS Chapter 154 and the information submitted by corporation to KIRA was done in conjunction with said application for the tax credits and since by amending the Open Records Act, specifically KRS 61.878(1)(C)2.b., to include documents submitted pursuant to KRS Chapter 154, it is evident that the Legislature sought to protect those companies which participate in the revitalization and development of industry in Kentucky, such documents were exempt from disclosure. Hoy v. Kentucky Indus. Revitalization Auth., 907 S.W.2d 766, 1995 Ky. LEXIS 125 ( Ky. 1995 ).

The financial information required to be submitted by corporation in its application to Kentucky Industrial Revitalization Authority (KIRA) that detailed the company’s business and revitalization project and included such information as a financial history of the corporation, a projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company’s productivity, efficiency and financial stability concerning the inner workings of the corporation is “generally recognized as confidential or proprietary” and falls within the wording of KRS 61.878(1)(c)2.b. Hoy v. Kentucky Indus. Revitalization Auth., 907 S.W.2d 766, 1995 Ky. LEXIS 125 ( Ky. 1995 ).

18.Civil Litigation.

The statute does not exempt or exclude all records from the open records disclosure in favor of discovery in litigation or anticipated litigation cases, but limits the release of records specifically listed in subsection (1) to those records which parties can obtain through a court order; the gist of this wording is not to terminate a person’s right to use an open records request during litigation, but to limit a court on an open records request on excluded records to those records that could be authorized through a court order on a request for discovery under the Rules of Civil Procedure governing pretrial discovery. Ky. Lottery Corp. v. Stewart, 41 S.W.3d 860, 2001 Ky. App. LEXIS 18 (Ky. Ct. App. 2001).

Trial court properly granted summary judgment in favor of a doctor as to a patient’s medical negligence claim because she could not compel involuntary testimony from an expert working for the Board of Medical Licensure even if it amounted to his preliminary recommendations, and preliminary memoranda in which his opinions were expressed for use by the Board. Pringle v. South, 2020 Ky. App. LEXIS 56 (Ky. Ct. App. May 8, 2020).

19.Statistical Information.

A county school system was required to release statistical information relating to student disciplinary hearings without redacting the particular school and offense that appeared on those records, while redacting all information that would reveal any personal characteristics of the student, including name or age, or information that would reasonably lead to identification of the student. Hardin County Schs v. Foster, 40 S.W.3d 865, 2001 Ky. LEXIS 45 ( Ky. 2001 ).

20.Public Agency Employees.

KRS 61.878(1), specifically directing that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery, overrides the provisions of KRS 61.878(3), dealing with the rights of a public agency employee, including a university employee, to inspect and to copy any record that relates to him. Hahn v. Univ. of Louisville, 80 S.W.3d 771, 2001 Ky. App. LEXIS 84 (Ky. Ct. App. 2001).

Where a school district employee settled her lawsuit against one school district for sexual harassment by a district official and a second lawsuit against another district for allegedly wrongfully failing to hire her, the lower courts erred in denying a newspaper’s request for access to the settlement agreements under the Kentucky Open Records Act, KRS 61.870 to 61.884 , because the settlement of litigation between a government agency and one of its employees and a private citizen and a governmental entity were matters of legitimate public concern that the public is entitled to scrutinize. A confidentiality clause in such agreements was not entitled to protection. Cent. Ky. News-Journal v. George, 306 S.W.3d 41, 2010 Ky. LEXIS 72 ( Ky. 2010 ).

21.Illustrative Cases.

Substantial evidence did not support a Circuit Court’s finding that, under the Family Educational Rights and Privacy Act (FERPA), 20 USCS § 1232g, and the Kentucky Family Educational Rights and Privacy Act (FERPA), KRS 160.700 et seq., a teacher had no legitimate educational interest in viewing videotape recordings of her own classroom. The case was remanded for a hearing to determine whether her request under the Kentucky Open Records Act, KRS 61.870 et seq., was made pursuant to a legitimate educational interest as defined by FERPA and KFERPA. Medley v. Bd. of Educ., 168 S.W.3d 398, 2004 Ky. App. LEXIS 305 (Ky. Ct. App. 2004).

District Court vacated the denial of a transit authority’s motion for summary judgment on two employees’ defamation claims because the Kentucky Open Records Act required release of the documents at issue; because the employees were not required to grieve their terminations, the disciplinary actions taken by their manager could have been the final action and, therefore, KRS 61.878 did not exempt the records from the requirements of the Act. Because the Act applied, the transit authority was required by law to release the documents. Burgess v. Paducah Area Transit Auth., 2006 U.S. Dist. LEXIS 54136 (W.D. Ky. Aug. 2, 2006).

Disclosure of records arguably containing information of a private nature about a former state cabinet official and lobbyist was required by the Kentucky Open Records Act because the public’s interest in inspection greatly outweighed any privacy interest that may have existed; thus, the privacy interest exception in KRS 61.878(1)(a) was inapplicable. Doe v. Conway, 357 S.W.3d 505, 2010 Ky. App. LEXIS 221 (Ky. Ct. App. 2010).

Although the former employees alleged that the general manager’s production of the disciplinary action forms in response to a record request was actionable because, at least as to two employees, the forms contained untrue statements about the employees acting dishonestly when they examined confidential information on the employer’s computer system without permission following one of the employee’s discharge, the general manager’s decisions to discharge the employees were not conditional and did not need the board of directors’ approval; the general manager had the authority to terminate employees, and the terminations represented his final action. That the discharges could potentially have been set aside by the board during the grievance hearing did not transform the disciplinary action forms into preliminary drafts, notes, or correspondence. Burgess v. Paducah Area Transit Auth., 387 Fed. Appx. 538, 2010 FED App. 0421N, 2010 U.S. App. LEXIS 14384 (6th Cir. Ky. 2010 ).

Prosecution against a manslaughter victim’s wife was incomplete and any law enforcement records exempt under KRS 61.878(1)(h) were not yet subject to disclosure. The wife had three years, from the date of the final judgment, to file a motion to vacate, set aside, or correct her sentence under RCr P. 11.42. Cincinnati Enquirer v. City of Fort Thomas, 2011 Ky. App. LEXIS 202 (Ky. Ct. App. Oct. 21, 2011).

Because records that identified registered payers of utility license tax easily could be redacted to comply with privacy requirements and a state website did not provide an alternative remedy, the records were not exempt from open records disclosure after redaction; moreover, the evidence supported a finding that the documents requested were maintained. Dep't of Revenue v. Eifler, 436 S.W.3d 530, 2013 Ky. App. LEXIS 140 (Ky. Ct. App. 2013).

When a newspaper sought a police department’s entire file in a murder case, the file was not categorically exempt due to the potential that the defendant in the murder case would collaterally attack the defendant’s conviction, due to the file’s relation to a prospective law enforcement action, because, inter alia, the exemption in KRS 61.878(1)(h) was properly invoked only when a record’s release, due to the record’s content, posed more than a hypothetical risk of harm. City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 2013 Ky. LEXIS 375 ( Ky. 2013 ).

When a newspaper sought a police department’s entire file in a murder case, the file was not categorically exempt due to the potential that the defendant in the murder case would collaterally attack the defendant’s conviction, due to the file’s relation to a prospective law enforcement action, because, inter alia, a city made no attempt to identify potentially exempt material in the file. City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 2013 Ky. LEXIS 375 ( Ky. 2013 ).

When a newspaper sought a police department’s entire file in a murder case, the file was not categorically exempt due to the potential that the defendant in the murder case would collaterally attack the defendant’s conviction, due to the file’s relation to a prospective law enforcement action, because, inter alia, Skaggs v. Redford, exempting a prosecutor’s litigation file from disclosure, did not apply to the police department’s file. City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 2013 Ky. LEXIS 375 ( Ky. 2013 ).

Law enforcement exemption in KRS 61.878(1)(h) is appropriately invoked only when an agency can articulate a factual basis for applying the exemption when, because of a record’s content, the record’s release poses a concrete risk of harm to the agency in a prospective action, which must be something more than a hypothetical or speculative concern. City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 2013 Ky. LEXIS 375 ( Ky. 2013 ).

University had yet to fulfill its statutory responsibilities under the Kentucky Open Records Act because it had not separated the exempt from the nonexempt records, redacted any personally identifying information or provided sufficient proof that the records were exempt under the Open Records Act through a proper index. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

Family Educational Rights and Privacy Act (FERPA) did not bar a university from releasing to a newspaper all records sought under the Open Records Act because, while FERPA barred release of unredacted education records contained in a Title IX investigation file, not all the records sought were education records directly relating to a student. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

Company’s interest in relocating was extensively publicized, and this publicity amounted to a public disclosure of the company’s interest in relocating within the Commonwealth, such that the exception to disclosure under Ky. Rev. Stat. Ann. § 61.878(1)(d) did not apply. Louisville/Jefferson Cty. Metro Gov't v. Courier-Journal, Inc., 605 S.W.3d 72, 2019 Ky. App. LEXIS 147 (Ky. Ct. App. 2019).

Business’s proposal lost its status as preliminary and therefore the exemption in Ky. Rev. Stat. Ann. § 61.878(1)(i), (j) did not apply; the proposal was merely an offer submitted in response to the company’s request, and the proposal remained subject to additional negotiation and approval by other agencies. However, once the company excluded the business from its list of finalists, the proposal was no longer subject to change, and thus the final action occurred at that point. Louisville/Jefferson Cty. Metro Gov't v. Courier-Journal, Inc., 605 S.W.3d 72, 2019 Ky. App. LEXIS 147 (Ky. Ct. App. 2019).

22.Standing To Invoke Exemption.

Owner of a company did not have standing to invoke the exemption contained in subsection (1)(h), because he was not among the class of persons that exemption was intended to protect; the exemption is addressed to county and Commonwealth attorneys, not private citizens, and is intended to shield prosecutors from disclosures potentially harmful to their informants or their prosecutions and from the cost, inconvenience, and disruption that compliance would visit upon their offices. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 ( Ky. 2013 ).

Standing to assert the exemptions of the Kentucky Open Records Act is limited to those persons or entities the particular exemption was meant to protect; the privacy exemption was clearly intended to protect individuals from unwarranted disclosures of personal information lodged, for whatever reason, in the government’s files. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 ( Ky. 2013 ).

Cited:

Ky. Rest. Concepts, Inc. v. City of Louisville, 209 F. Supp. 2d 672, 2002 U.S. Dist. LEXIS 11011 (W.D. Ky. 2002 ).

NOTES TO UNPUBLISHED DECISIONS

1.Illustrative Cases.

Unpublished decision: Department of Revenue was required to produce for inspection redacted copies of its final rulings because the production of the material a tax attorney and tax analysts sought was required by the Open Records Act; the Department's final rulings contained information related to its reasoning and analysis with respect to its task in administration of the tax laws, and that information could be made available without jeopardizing taxpayers' privacy interests under the Taxpayers' Bill of Rights. Fin. & Admin. Cabinet v. Sommer, 2017 Ky. App. LEXIS 9 (Ky. Ct. App. Jan. 13, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 624 (Ky. Ct. App. Jan. 13, 2017).

Opinions of Attorney General.

Appraisals of real estate to be purchased with public funds are not required to be made available to the news media. OAG 76-223 .

In order to prevent misuse of the files of the Kentucky Heritage Commission which contain detailed information about historic buildings and sites by “pot hunters” who are trying to locate archeological sites which they can dig and loot which will destroy such sites for scientific study and by thieves and vandals who may utilize the files on privately owned historical buildings as a shopping list, the Commission is legally authorized to adopt regulations which will prevent public inspection of specific portions of its files under subsections (1)(a), (g) and (h) of this section. OAG 76-367 .

Since interviews given to the Oral History Commission are made under agreement between the commission and the interviewee that the tapes will be handled in a certain manner including refusing access to the public for a certain number of years, such tape record is preliminary in nature and will not be a final public record until such time as provided in the agreement and is therefore under the exception provided for in subsection (1)(g) of this section. OAG 76-419 .

Records of comprehensive care centers which directly or indirectly identity a patient or former patient are confidential and exempt from public inspection. OAG 76-420 .

Divorce suit records do not come within the exception provided for by subsection (1)(a) of this section or any other exception provided for in this section. OAG 76-431 .

All the records of the police department are subject to public inspection unless they are specifically exempted by a statute and there is no statute which exempts police accident reports from public inspection. OAG 76-478 .

The law exempts data on the accounts of individual members of the Kentucky Retirement System from the Open Records Act and, therefore, information about a member’s account is confidential and need not be subject to public inspection without a court order. OAG 76-479 .

An agency need report the denial of an inspection of a public record only when the requester demands more information from the public record than the agency is willing to reveal. OAG 76-488 .

There is no practical or legal reason why an agency should send a copy of its response to a request for personnel information to the Attorney General unless the correspondence states that the inspection of a public record is being denied because of a specific exemption in this section. OAG 76-488 .

The classes of records kept by a county judge/executive, county clerk or circuit county clerk which are made confidential by statute and exempt from public inspection under the Open Records Act, KRS 61.870 to 61.884 are records pertaining to adoption made confidential by KRS 199.570(1), records pertaining to a juvenile which have been ordered expunged by the juvenile court judge as provided by KRS 208.275 (now repealed) and records of the juvenile court disclosing disposition of a juvenile’s case; all other records kept in the courthouse are subject to public inspection under the Open Records Law. OAG 76-493 , modified by OAG 77-26 .

Since police arrest records do not contain information of a personal nature a city police department cannot withhold inspection of a client’s arrest record from an attorney. OAG 76-511 .

A listing of names and addresses of horse owners preparatory to a census of the state horse industry would be exempt from public disclosure, but any completed list would not be provided any exemption. OAG 76-512 .

The detailed line item proposed budget for the Jefferson County School System for the fiscal year 1976-1977, call the “budget book,” should be open to public inspection and the public should have access to the revisions made therein since the official nature of the budget book removes it from the classification of a preliminary draft or a preliminary recommendation and thus it does not come within the exemptions of subsections (1)(g) and (h) of this section. OAG 76-551 .

The names of persons transported by a county ambulance service may be kept confidential as an exception to the Open Records Law under subsection (1)(a) of this section. OAG 76-568 .

A document containing a list of restrictions which a city was considering as a precondition to the rezoning of certain property was exempt under the provisions of the Open Records Law, KRS 61.870 to 61.884 , under the exemptions provided by subsection (1)(g) and (h) of this section since such document is a preliminary draft or recommendation coming into existence in the course of business of a public agency. OAG 76-584 .

A prospective employer, except the Kentucky Department of Personnel, may not be given a copy of the records pertaining to a prospective employee from the files of the centralized criminal history system since subsection (4) of KRS 17.150 provides that such records are not subject to public inspection. OAG 76-604 , modified by OAG 77-28 .

A prospective employer may not be given a copy of the records pertaining to a prospective employee from the files of the centralized criminal history system since subsection (4) of KRS 17.150 provides that such records are not subject to public inspection; however, since the Open Records Law mandates the sharing of information among departments of state government when the exchange is serving a legitimate governmental need and since the Criminal History Act incorporates the provisions of the Open Records Law, a criminal history check on prospective state employees should be provided at the request of the Department of Personnel. OAG 76-604 , modified by OAG 77-28 .

Since the city audit request contained information which, if prematurely released, would have impeded effective law enforcement because it revealed the possibility that violations of statutory and/or regulatory provisions of the law may have been or were being committed in the operation of the agency the immediate release of such audit would be denied under subsection (1)(f) of this section. OAG 76-633 .

Inspection of the record pertaining to a complaint filed against a person involving an alleged zoning violation was improperly withheld from public inspection under the exception set forth in subsection (1)(f) of this section regarding identity of informants since no such informant was involved in the matter for the mere fact that a person who voluntarily informs of a violation of the law does not make him an informer and since zoning violations are prevailing conditions which can be proven by objective evidence. OAG 76-650 .

Where some of the land which must be acquired for a flood control project has not yet been acquired by negotiation or condemnation, the appraisals on all of the property to be acquired for the project are exempt from inspection until all of the property has been acquired. OAG 76-656 , affirmed by OAG 85-79 .

The report of an investigation of a metropolitan department of corrections by a field investigator for the county human relations commission would be exempt from public inspection where the document contained the investigator’s opinions which were derived from interviews with various individuals and which were directed toward the formulation of policy. OAG 76-692 .

Although the public is entitled to know the name, position, work station and salary of a state employee, the social security number and the home address of the employee are confidential and thus exempt from public disclosure. OAG 76-717 .

Disclosure of the disposition of a juvenile’s case may not be made to the public. OAG 77-26 .

Property record cards on which taxpayers list all their real and personal property and which are filed in the property valuation administrator’s office would constitute public records containing information of a personal nature, the public disclosure of which would be an unwarranted invasion of personal privacy. OAG 77-99 .

Under the exemption to open inspection provided by this section, a state university could properly refuse the request of an instructor to inspect her annual evaluations. OAG 77-394 .

There is no authority under this secton for a county health department to deny access to restaurant inspection records or to attempt to place restrictions on their use. OAG 77-585 .

Detailed reports by hotels and motels of their occupancy and gross revenues which are filed with the county department of finance are confidential and therefore would be exempt from open inspection. OAG 77-586 .

A statement made to the police concerning alleged incidents of sexual abuse at an institutional home would be exempt from public inspection as long as an investigation is in process and the decision on enforcement is pending. OAG 77-633 .

The salaries of city employees would not be exempt from public disclosure under the provision protecting information of a personal nature. OAG 77-723 .

Under this section a person would be entitled to inspect documents of a regional planning and development agency concerning the agency’s current budget, staff job descriptions and salaries of all employees. OAG 77-726 .

Preliminary memoranda in which opinions were expressed were exempted under subdivision (1)(h) of this section. OAG 78-133 .

The exception provided for “Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy” applies only to matters entirely unrelated to the performance of public employment. OAG 78-133 .

The matter of disciplining a state employee does not come within the exception of personal privacy nor does KRS 16.140 allow the commissioner the authority to keep a disciplinary charge confidential if the employee admits the truthfulness of the charge. OAG 78-133 .

Public records pertaining to the position and salary of public employees, such as city and county employees, are not exempted from inspection. OAG 78-231 .

Although Const., § 14 requires that the courts be open and although the courts are included within the definition of public agency of subsection (1) of KRS 61.870 any papers produced by judges or staff attorneys during the internal deliberative process of the appellate courts are of such a preliminary nature that they come with the exception of subsections (1)(g) and (h) of this section. OAG 78-262 .

Records and information gathered under subsection (6) of KRS 532.075 are the work product of a staff attorney of the court and are specifically designed and intended to aid the court in reviewing death penalty cases and because of their nature they are preliminary drafts, notes, preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended and as such are exempt under subsections (1)(g) and (h) of this section of the Open Records Law. OAG 78-262 .

A document titled “Requirements for Kindergarten” and a letter dated January 24, 1978, to Mr. Charles Akins, county superintendent of schools from James B. Graham, superintendent of public instruction, are not exempt from public inspection under subsection (1) of this section since the letter is official correspondence which does not affect in any way the privacy rights of any individual and both documents should be made available for inspection by any member of the public. OAG 78-370 .

A review of the authority of the state human rights commission indicates that the burden rests upon that agency to substantiate its request for information by showing that the information requested is relevant to the complaint under consideration. OAG 78-382 .

Test scores of individuals applying for jobs within the classified service are matters of a personal nature within the contemplation of subsection (a) of this section and are, therefore, exempt from the application of the State Public Records Act. OAG 78-382 .

This section requires an order of a court of competent jurisdiction, and only upon a showing by the commission that the information requested was, in fact, “relevant to the complaint.” OAG 78-382 .

The complaint and all other papers in a case before the Kentucky Occupational Health and Safety Review Commission are public records and subject to public inspection unless the Commission finds that the premature release of information in the papers would harm the agency in the performance of its administrative adjudication, which finding should be supported by sufficient reasons and denial of inspection of a case file should state its reasons in writing to the requester and send a copy of its answer to the Attorney General as directed by KRS 61.880 . OAG 78-400 .

Examination papers and test scores from colleges and universities are exempt from public inspection under subsection (1)(a) of this section. OAG 78-468 .

The Kentucky Board of Nursing must adopt its own policy as to the releasing or not releasing of home addresses of licensed nurses, but the names of licensed nurses and their work addresses cannot be withheld from the public. OAG 78-497 .

A psychological evaluation of an inmate of the state reformatory, made for use in consideration of parole, may readily be authorized from the inmate under subsection (1)(h) of this section. OAG 78-513 .

The appointment calendar of the mayor of city is exempt from public inspection under subsections (1)(a) and (1)(g) of this section. OAG 78-626 .

Reports of criminal investigations are properly exempted from public disclosure under the provisions of KRS 17.150(2) and subsections (1)(f) to (h) of this section. OAG 78-639 .

Records concerning delinquent rent would appear to us to be confidential. OAG 78-728 .

The names and salaries of public officials and employees are not exempted from public inspection. OAG 78-728 .

A report of the equal opportunity office at the University of Kentucky is exempt under subsection (1)(h) of this section: “preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended”; since the office has no power to make a binding ruling and only investigates complaints and makes a recommendation to the university administration, its reports are only preliminary recommendations. OAG 78-738 .

A report of a performance review made by an ad hoc committee reviewing faculty performance rating is exempt under subsection (1)(h) of this section. OAG 78-738 .

Although KRS 43.090 makes audits “public documents,” under subsection (1)(f) of this section, these would not be available for public inspection, if they were to be the basis for a criminal prosecution, until after the criminal action were resolved. OAG 78-816 .

Workpapers for “nonroutine investigations” under KRS 43.050(2)(f) and (3) are exempt from public inspection under subsections (1)(g) and (h) of this section. OAG 78-816 .

Payroll lists of employees of the board of education are open to public inspection, and the fact that social security numbers are included on such lists does not exempt the information since social security numbers are not automatically exempt under this section without a specific agency policy declaring them private and confidential. OAG 78-837 .

Records showing the results of examinations and the reasons for the results are also exempt under subsection (1)(h) of this section. OAG 79-58 .

The applications to take the examination for hairdressing instructor’s license are exempt from public inspection under subsection (1)(g) of this section which exempts correspondence with private individuals. OAG 79-58 .

The results of the hairdressing instructor’s examinations are exempt under subsection (1)(a) of this section because such information is of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. OAG 79-58 .

Any information required for the obtaining of a permit would be a public record which would be subject to inspection. OAG 79-69 .

Where the response to a survey was voluntary, the survey forms, which were filled out and returned to the Department (now Cabinet) for Natural Resources and Environmental Protection by handlers of hazardous waste, are exempt from the requirements of the Open Records Law. OAG 79-69 .

Documents made by an oral interview board, pertaining to the promotional process for assistant chief of police, would be exempt from inspection, even by the candidates for the position, under subdivision (1)(a) of this section, as an invasion of privacy of the members of the board which created the documents, and subdivision (1)(h) of this section, which exempts inspection of preliminary documents; and since they are, therefore, not public documents there is no prohibition against destroying such papers. OAG 79-128 .

Scores on a bar examination and information pertaining to multi-state scoring averages and minimum cut-off scores are not exempt from discovery under subsection (1)(e) of this section, but, under subsection (1)(j) and KRS 26A.200 and 26A.220, such records are restricted since the board of bar examiners is a court agency and, as such, not subject to statutory regulation. OAG 79-174 .

Pursuant to subsection (4) of this section, it is permissible for a city to supply the Department of Human Resources (now Cabinet for Human Resources) with the social security numbers of its employees for a cross-check with the social security numbers of people receiving financial assistance from the Department to discover possible violations of statutes or regulations. OAG 79-193 .

Administrative regulation 200 KAR 1:020 is merely a rewrite of this section. OAG 79-275 .

The custodian of the records of a public agency may allow inspection of all the records in his custody regardless of whether the records may be exempt by their nature under the provisions of this section unless the records come under the exemptions provided by subdivision (1)(i) or (1)(j) of this section. OAG 79-275 .

The licensing of occupations and professions is in the public interest and the public is entitled to inspect records pertaining to licensing, but a licensing board can exercise its discretion as to whether to release all of the information in its files or to withhold some of the information under one of the exemptions in this section. OAG 79-275 .

The purpose for the inspection of public records and how the information obtained from public records will be used is not material under the Open Records Law. OAG 79-275 .

When subsection (1) of this section says “the following public records are excluded … and shall be subject to inspection only upon order of a court …,” the legislative intent was permissive and not mandatory; the exemptions are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody. OAG 79-275 .

Records, complaints, investigative reports and actions of the Kentucky Registry of Election Finance in the matter of a complaint of campaign finance law violations, at least prior to trial or a decision not to prosecute, are exempt from disclosure under the provisions of subsections (1)(g) and (1)(h) of this section, whether or not the provisions of KRS 121.140 prevent disclosure because the Registry itself had not yet taken final action. OAG 79-316 .

Proposals and counterproposals submitted in the negotiating process by a school board and an organization representing teacher employees of the board are not required to be open to public inspection because of the exemptions provided by subsections (1)(g) and (1)(h) of this section. OAG 79-326 .

Written notes, shorthand notes or tape recordings made in a meeting of an administrative board for the purpose of preparing the minutes are only preliminary records and may, therefore, be withheld from public inspection. OAG 79-333 .

The city of Louisville correctly rejected inspection of collective bargaining proposals presented to it by two (2) employees’ unions under subdivisions (1)(g) and (1)(h) of this section as such proposals were preliminary drafts; these subdivisions are not aimed exclusively at intra-office memoranda. OAG 79-347 .

Under subdivision (1)(j) of this section, collective bargaining proposals between a city and its employee union were exempt from disclosure since they were made an exception to public disclosure under KRS 61.810(5) (now (1)(e)). OAG 79-347 .

To open the results of an anonymous evaluation of teachers by students to public inspection would be an unwarranted invasion of personal privacy exempted by subsection (1)(a) of this section. OAG 79-348 .

Applications for benefits under the community development block grant program are not exempt from public inspection under the Open Records Law because they infringe on personal privacy. OAG 79-388 .

Due to the preliminary recommendations and preliminary memoranda which are included in the auditor’s narrative report of the severance tax audit of a coal company, the Department of Revenue (now Revenue Cabinet) may properly withhold the narrative report from public inspection under subsection (1)(h) of this section. OAG 79-444 .

A person is not entitled to see all intra-office records pertaining to him since some records may be withheld because they are exempt under subsection (1)(h) of this section. OAG 79-469 .

Any final action of a personnel committee which is adopted by an agency, including the fixing of salaries, should be made available to the public. OAG 79-469 .

Intra-office memoranda containing preliminary recommendations and expressions of opinion or which have to do with the formulation of policies may be withheld from public inspection. OAG 79-469 .

The salary of the public employee is not a protected item of information under the privacy exemption. OAG 79-469 .

A request for “all information” in the possession of the auditor of public accounts, including sworn affidavits, relative to overpayments to bus drivers, was properly withheld from inspection under subsections (1)(g) and (1)(h) of this section. OAG 79-470 .

A county human rights commission comes within the scope of subsection (4) of this section. OAG 79-475 .

The Open Records Act does not exempt personnel files from inspection and analysis by agencies charged with investigation and resolution of charges of discrimination. OAG 79-475 .

A detention center, jail or prison is fully authorized to forbid disclosure of documents which set forth procedure involving the security of the facility. OAG 79-546 .

Policy and procedure manuals and other intra-office memoranda of a detention facility are exempt from the requirement of public inspection by subsection (1)(h) of this section. OAG 79-546 .

Centralized criminal records are not subject to public inspection but criminal records in local units of governments are subject to public inspection with the exception of records of cases which have not been completed or the disclosure of which might harm the agency by revealing the identity of informants not otherwise known. OAG 79-582 .

A request for inspection of police records by a local human rights commission conducting an investigation of alleged disparity in employment practices is a legitimate government function within the meaning of subsection (4) of this section. OAG 79-608 .

The exceptions of the Open Records Act as set out in subsection (1) of this section do not prohibit a local human rights commission from inspecting the public records of a division of police. OAG 79-608 .

Under the Open Records Law the purpose of the inspection of a public record is not material to any of the exemptions provided in this section. OAG 79-648 .

Memoranda reports of an internal affairs division investigator from the Louisville Department of Safety to the chief of police containing written complaints against a police officer, and statements by witnesses and the officer, together with the investigator’s recommendation, are preliminary in nature and exempt from public inspection under subsections (1)(g) and (1)(h) of this section; but if the chief takes affirmative action to discipline the officer, the action taken and the cause of the action become a public record open to inspection. OAG 80-43 .

A police department cannot adopt a policy of withholding the names of victims of crime, including the crime of rape. OAG 80-54 .

Evaluation documents resulting from official evaluation of an officer’s performance as a state trooper contain material of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy; furthermore the mere evaluation of a state policeman’s performance is a matter of opinion and, standing alone, does not constitute any action on the part of the Kentucky State Police. OAG 80-58 .

A title insurance company was not entitled to reproduce by microfilm, computer tape, or any other reproduction device copies of tax records to be sold to private business interests engaged in the searching and reporting of real estate titles and where the facts indicated that such company’s intended use of tax records and maps was for a business purpose, the request to copy such records was properly denied. OAG 80-88 .

The sheriff’s department must allow public inspection of any records pertaining to the reporting of a crime except records which might disclose information which would endanger the life of the police officer or an informant as exempted by KRS 17.150 . OAG 80-144 .

The release of the scores by name of persons who took the State Nursing Board test to the school they graduated from is not prohibited since Kentucky has no privacy act and the federal privacy act has no application to state agencies; this does not mean, however, that a state agency cannot adopt a policy of withholding examination results to protect the privacy of the applicants who took the examination. OAG 80-158 .

Any member of the public may inspect an accident report made by a police officer concerning a fatal one-car accident, including the results of a blood alcohol test conducted on the deceased, since there is no provision in the Open Records Law exempting such a report. OAG 80-210 .

Intra-office memoranda between school officials or between a teacher’s advisory group and the superintendent, in which preliminary opinions are expressed concerning a certain reading program, are exempt from mandatory disclosure under subsections (1)(g) and (h) of this section. OAG 80-289 .

The records identifying recipients of loans or grants under housing rehabilitation programs administered by the Jefferson County community development agency are not exempt from public inspection by any of the exemptions provided in this section. OAG 80-310 .

There is no statute making bids which have been opened on a public project exempt from the Open Records Law requirement; on the contrary, even without the Open Records Law, under KRS 45A.080(4) bidding documents are open to public inspection after the bids have been opened. OAG 80-327 .

A city council member has the same right to inspect the records of the city’s electric plant board as does a member of the plant board or any other member of the general public, except that a member of the city council and a member of the plant board are not subject to the exemptions listed in this section, and a member of either body can inspect the records of the electric plant board but neither can require that lists of records be made for him which are not already in existence. OAG 80-369 .

The public is not entitled mandatorily to access to the home addresses of voluntary members of an organization such as the Action League for Physically Handicapped Adults (ALPHA), even though ALPHA received more than twenty-five percent (25%) of its funding from a state or local authority and is, therefore, a public agency under the Open Records Law. OAG 80-432 .

If the identity of the chief executive officer of a proposed bank is material to the Department of Banking (now Department of Financial Institutions) in passing on an application to organize a bank, it is also material to any persons having standing to protest the application; therefore if the Commissioner of Banking elicits the identity of the executive officers from the applicants and has that information on file in a public record, it should be made available for public inspection. OAG 80-444 .

A petition for a local option election is a public record and may be inspected by any person and the petition may be published in a newspaper or in any other manner, including the names of the persons who signed the petition; unless a person purported to have signed a petition has had the court declare that his name was placed on the petition without the person’s authority and should therefore be removed, the person has no legal recourse if his name is made public as a signer of the petition and there is no liability for the disclosure of the petition and the names thereon. OAG 80-450 .

Bank statements, cancelled checks and check stubs are public records when they pertain to the funds of a public agency, and under the Open Records Law they should be made available to any person who requests to inspect them; however, the bank’s records are not public records and are therefore not subject to the Open Records Law. OAG 80-454 .

Under the Buckley Amendment to the federal Family Educational Rights and Privacy Act (Section 513 of Pub. Law 93-380 as amended by Section 2 of Pub. Law 93-568), the records of students pertaining to residency classification are exempt from public inspection under this section because disclosure of the records is prohibited by federal law unless the student who is the subject of the records gives his authorization that they be disclosed to a particular person or persons. OAG 80-471 (modifying OAG 80-352 ).

Since there is nothing in KRS Chapter 315, the law regulating pharmacists, or in the Kentucky Open Records Law, KRS 61.870 to 61.884 , prohibiting the Board of Pharmacy from making available for public inspection the file of a licensee, the Board should make the entire file of a licensee available for inspection. OAG 80-474 .

Intra-office memoranda in which various employees of the Division of Water Resources reported findings of their inspection and expressed opinions and made recommendations concerning a construction permit were exempt from the mandatory requirement of public inspection by subsection (1)(h) of this section. OAG 80-504 .

Records of the Kentucky Retirement System and the Teacher’s Retirement System which listed employees’ length of service, total employee contributions and total employer contributions were exempt from the mandatory requirement of public inspection by subsection (1)(j) of this section which exempts from mandatory public inspection public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly since the records in question were made confidential by KRS 61.661 which requires that members’ accounts be confidential. OAG 80-506 .

The Department (now Cabinet) for Human Resources must honor requests for information regarding payment to specific identifiable providers of health care through the Kentucky Medical Assistance Program since such records come under the mandatory inspection requirements of the Open Records Law. OAG 80-519 .

The exception provided by subsection (1)(a) of this section pertaining to personal privacy is discretionary and not mandatory. OAG 80-519 .

An urban county airport board is a public agency and all of its papers are public records under KRS 61.870 . OAG 80-586 .

KRS 61.810(6) (now (1)(f)), which provides an exception to the Open Meetings Law allowing hearings on personnel matters to be held in closed session, has no pertinency as to whether documents concerning the dismissal of five (5) employees should be made available for public inspection; in denying inspection of a public record a public agency must rely on one of the exceptions provided in the Open Records Law. OAG 80-586 .

Reports of building inspections are public records which are open to public inspection by any person under the Open Records Law. OAG 80-596 .

Where letter response to person requesting inspection of housing agency records stated that agency would respond once request had been cleared with United States Department of Housing and Urban Development Area Council, but cited no state or federal statute authorizing the denial or delay of inspection, and where request did not on its face suggest any exemption from inspection under this section, there was improper denial or delay of inspection under the Open Records Law. OAG 81-4 .

Where county attorney instituted “cold check” program whereby merchants submitted cold checks which payors have failed to pay within ten days of notice by merchants, county attorney advised payors by letter of possible criminal sanctions if payment was not made within ten days and prosecuted those who did not pay during the second ten-day period, county attorney may in his discretion compile and release to all merchants or keep confidential, a list of those payors who are prosecuted and a list of those payors who are warned by the county attorney but not prosecuted, since the exceptions to the mandatory disclosure requirement of the Open Records Law which might apply under subsections (1)(a) and (1)(g) of this section are permissive rather than mandatory and there is no state or federal statute which would require such records to be kept confidential. OAG 81-25 .

The public disclosure by the state ABC Board of the names of applicants for beer distributorships is not barred by the Open Records Law since the names of corporations are involved and such disclosure would not constitute a clearly unwarranted invasion of personal privacy under subsection (1)(a) of this section. OAG 81-51 .

Where public disclosure through the Open Records Act is sought for the names of applicants for beer distributorship licenses, there is no exemption for such names under subsection (1)(b) of this section since the state ABC Board is not authorized to have a policy which does not allow the inspection of applications prior to their approval or denial, in light of the statutory requirement of KRS 243.360 that every applicant publish notice of his intention, including the name of the corporation and the location of the proposed licensed premises. OAG 81-51 .

An inmate of a penal institution has the right to inspect the institution’s records of a state employee’s job assignment, work station and salary under the Open Records Law since these items are not considered confidential and there is no exemption from disclosure under this section. OAG 81-98 .

A request for inspection of a complaint concerning housing code violations was improperly denied, even where the city was willing to disclose the complaint after deleting the names of the complaining witnesses, since there is no exemption under this section which would apply to such a record. OAG 81-127 .

Nondisclosure of all examinations of a bank from 1969 to 1976 by the Department of Banking and Securities (now Department of Financial Institutions) was proper due to subsection (1)(j) of this section since that subsection prohibits disclosure of information made confidential by the General Assembly, which in this case would be bank examination reports pursuant to KRS 287.470 and 287.500 (now repealed). OAG 81-140 .

Where an attorney sought coroners’ reports and the complete investigatory files on certain named individuals who had died in a particular county within the prior four (4) years, under the Open Records Law, such records were not exempt from disclosure under subsection (1)(a) of this section, since a deceased person has no personal privacy rights such as those protected by this subsection, and the personal privacy rights of living individuals do not reach to matters concerning deceased relatives. OAG 81-149 .

The custodian of the registration and circulation records of a public library is not required to make such records available for public inspection under the Open Records Law since subsection (1)(a) of this section prohibits disclosure which would constitute a clearly unwarranted invasion of personal privacy, and an individual’s privacy rights as to what he borrows from a public library, such as books, motion pictures, periodicals or any other matter is overwhelming and there is no countervailing public interest to be considered; however, since Kentucky has no privacy statute, the exceptions to mandatory disclosure of public records is permissive and no law is violated if they are not observed by the custodian. OAG 81-159 .

Where a person who believes himself to be under surveillance makes a request under the Open Records Law as to whether he is under surveillance, whether his phone was tapped, and whether there was a court order on record, the police department could properly exclude any records of police surveillance from the requirement of mandatory disclosure under subsection (1)(f) of this section, which prevents disclosure of information which will be used in a prospective law enforcement action; under subsection (1)(g) of this section, which excludes preliminary drafts, notes and correspondence with private individuals; under subsection (1)(h), which excludes preliminary memoranda which express opinions or policies; and under subsection (1)(j), which excludes public information which the general assembly has made confidential, with subsection (1)(j) applying because subsection (2) of KRS 17.150 excludes certain information contained in intelligence and investigative reports maintained by criminal justice agencies; further, there is no need for the police to respond to make any indication of whether any such records in fact exist. OAG 81-161 .

The Department of Insurance must make “closed claim reports,” dealing with fully adjudicated and settled medical malpractice claims against health care providers, available to the board of medical licensure, since subsection (4) of this section allows the sharing of information between public agencies when the exchange serves a legitimate governmental need or is necessary to perform a legitimate government function. OAG 81-165 .

Where a requester sought all records pertaining to monitoring tests done in Louisville sewers since a particular date, the sewer district improperly denied the records based upon the exceptions from disclosure contained in subsections (1)(g) to (i) of this section, since such tests were statistical data rather than the preliminary notes or memoranda exempted by subsections (1)(g) and (h) and since the sewer district did not cite any federal law or regulation which would exempt statistical data under subsection (1)(i). OAG 81-208 .

The cost estimates which a community development department rehabilitation counselor figures for individual loans to prospective applicants before loan approval is made are exempt from the mandatory requirement of public inspection, since such papers are preliminary drafts, notes and memoranda in which opinions are expressed in the form of cost estimates and thus are exempt under subsections (1)(g) and (h) of this section. OAG 81-239 .

Where a requester seeks laboratory work sheets dealing with industrial waste in a sewer district, such information was statistical data as the result of scientific measurements and tests rather than preliminary data in the sense used in the exemptions provided in subsections (1)(g) and (h) of this section; thus, the information is not exempt from disclosure, even though the wastewater constituents of a particular private industry would be useful information for the industry’s competitors to have, since the information was gathered by sewer district employees rather than voluntarily supplied by the industry. OAG 81-246 .

Where information sought by a requester was compiled in connection with a lawsuit and thus would be privileged as lawyer-client work product, the information can properly be withheld from public inspection by subsection (1)(j) of this section since it would be subject to the discovery rules created by the courts. OAG 81-246 .

The incident response reports which are filed by metropolitan sewer district investigators after investigating incidents complained about by a member of the public or an employee of the sewer district, and which contain recommendations on whether to institute further enforcement actions, are intraoffice memoranda and are preliminary memoranda in which opinions are expressed or policies formulated or recommended and are exempt from the mandatory requirement of public inspection by subsection (1)(h) of this section. OAG 81-258 .

A Department of Justice report evaluating the bureau of corrections was not exempt from mandatory disclosure under subsection (1)(f) of this section, even though the report pointed out some deficiency in the management and operation of the Bureau of Corrections (now Corrections Cabinet), since it cited no individual as being responsible for any breach of law and made no recommendation of any criminal investigation or prosecution. OAG 81-267 .

Where a requester sought a document titled “Report to the President of the University of Kentucky Summarizing the Findings of the Site Visit to Evaluate the Research Activities of the Tobacco and Health Research Program and Research Institute” which reported on impressions gained after interviewing various persons connected with the institute, gave opinions as to features and persons who are worthy of blame and praise and made recommendations as to how the research program can be improved, the official records custodian of the University is entitled to withhold the document from public inspection under subsection (1)(h) of this section, as a preliminary memorandum in which opinions are expressed or policies are formulated or recommended. OAG 81-285 .

Records held by the city finance director which show the total amount of the city payroll tax received by the city from a medical center are not exempt from public disclosure since the total amount of payroll tax paid by an employer is not exempt under KRS 131.190 , as records of individual employee payroll tax would be, so that records of total payroll tax would not be exempt under subsection (1)(j) of this section, and similarly, the fact that such records are made confidential by a city ordinance would not prevent disclosure under subsection (1) of this section. OAG 81-286 .

A report made to a state university by an accounting firm concerning charges made against a university official is a public record, not exempt by this section and should therefore be made available for public inspection. OAG 81-291 .

Documents which consist of business records of a state university, including purchase requisitions, bills, purchase orders and a purchase contract, and which were used by the university attorney in preparing charges to be brought before the university board, were public records and not exempt from disclosure under this section. OAG 81-291 .

The records of a law firm hired to investigate charges brought against a state university official are not public records, but rather are the work product of the attorneys of that firm, and, since such work product is confidential under a rule promulgated pursuant to KRS 447.154 , they are exempt from disclosure by subsection (1)(j) of this section as records made confidential by enactment of the general assembly. OAG 81-291 .

A community development department cannot deny the inspection of public records which disclose the names, addresses, and phone numbers of individuals on the waiting list for various loans from the department since subsection (1)(a) of this section does not warrant concealing this information, because an individual who applies for a loan of public money cannot expect the fact of his application to be kept private. OAG 81-305 .

City records which will disclose the names of employers who are delinquent in paying occupational taxes are open to public inspection, since a city is a public agency and is subject to the provisions of the Open Records Law and, even though KRS 131.190 prohibits the disclosure of information from tax records “insofar as the information may have to do with the affairs of the person’s business”, it does not prohibit the disclosure of the fact that a person is delinquent in paying his taxes, for although tax records cannot be made totally available because of the restrictions of KRS 131.190 , non-exempt information can and must be made available under subsection (3) of this section. OAG 81-309 .

When a public record contains information of an excepted and non-excepted nature, the public agency can provide access to the non-excepted material either by (1) providing a copy of the record with the excepted material blotted out or deleted, or (2) by providing a list which it has created stating the non-excepted information as derived from the records in its files. OAG 81-309 .

The custodian of municipal records may not respond to a request made under the Open Records Law by placing an “x” by the typed statement: “The records requested are exempted by law from mandatory disclosure” on a form letter since a form letter does not meet the specific statement requirement of KRS 61.880 and because the custodian did not cite any specific exemption in this section which would apply to the material requested. OAG 81-345 .

The resignation letters of three (3) city policemen would not be exempted from disclosure by subsection (1)(a) of this section, since it only applies to matters which have absolutely no connection with public business or employment. OAG 81-345 .

Police departments, which are required to maintain daily logs of arrests pursuant to KRS 17.150 , must make all such records, except for intelligence and investigative reports during pre-prosecution periods, available for public inspection. OAG 81-379 .

Since police arrest records are not exempted by the Open Records Law, no official has the authority to withhold the records from public inspection and a mayor could not bar reporters from access to logs of arrest or from publishing information therein; since a Mayor is not the custodian of the police records he has no jurisdiction over such records in any event. OAG 81-379 .

Records which disclose the names of persons who are inmates of the county jail are not exempt from public disclosure under the personal privacy exemption of subsection (1)(a) of this section since it is contrary to the principles of personal liberty for persons to be secretly held in jail and the embarrassment caused to them or to members of their family is of secondary importance; moreover, the strict construction rule contained in subsection (4) of KRS 61.882 requires disclosure regardless of inconvenience or embarrassment caused to anyone. OAG 81-395 .

It was improper for the registrar of vital statistics to deny a request to inspect all death certificates and death verification certificates in the possession or control of a county health department based upon the privacy exemption under subsection (1)(a) of this section; the exemption pertains only to “personal privacy”, and that term applies only to the living. OAG 81-400 .

Information concerning battered children which is received by the Bureau (now Department) of Social Services is statutorily restricted and confidential under subsection (9) to KRS 199.335 (now repealed); accordingly, it would be exempt from disclosure to a newspaper by subdivision (1)(j) of this section. OAG 82-39 .

Nothing in subdivision (1)(f) of this section would justify making an entire police log secret from the public; if any item in the log on a particular date is withheld from public disclosure because revealing the item would be harmful to law enforcement, the custodian has the burden of showing that the item is being properly withheld for that reason. OAG 82-70 .

The log of a county dispatch service is not exempt from disclosure under this section, although the dispatch service may adopt a policy of not disclosing the names of ambulance transportees. OAG 82-70 .

A custodian of records is not exposed to any penalty if he allows inspections of records which could be withheld from inspection under one of the exceptions in subsection (1) of this section since the Open Records Law does not prohibit inspection of records which are exempt from the mandatory disclosure requirement and the exceptions are only permissive. OAG 82-70 .

The proceedings of the morbidity and mortality committee of the department of surgery at a university hospital are made confidential by KRS 311.377 ; accordingly, the university custodian of records properly denied inspection of records of those proceedings pursuant to subdivision (1)(j) of this section. OAG 82-99 .

All libraries may refuse to disclose for public inspection their circulation records. As far as the Open Records Law is concerned, they may also make the records open if they so choose; however, the privacy rights which are inherent in a democratic society should constrain all libraries to keep their circulation lists confidential. OAG 82-149 .

No person can demand as a matter of right to inspect the circulation records of any type of library — school, public, academic or special — under the Open Records Law. OAG 82-149 .

Generally, the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law. OAG 82-169 .

The contract or contracts between a county board of education, which was involved in litigation, and its attorneys should be made available for public inspection; although such a contract might not be discoverable under court rules, contracts of public agencies must be openly made and available for inspection by the public and knowledge of the terms of such contracts would not hinder the agency in the prosecution of its law suits. OAG 82-169 .

Where a county board of education was involved in litigation, the records of payments made to attorneys, bills and statements submitted to the board by its attorneys, and unprivileged communications between the board and its attorneys need not be made available for public inspection except by order of a court of competent jurisdiction and the Jefferson County board of education acted properly in denying inspection of said records. OAG 82-169 .

Whether the litigation is civil or criminal, as long as it involves a public agency seeking to enforce the law in the public interest, subdivision (1)(f) of this section exempts from mandatory public inspection any records which will reveal information which will hinder the agency in prosecuting the litigation; once the litigation is completed, or otherwise terminated, the record should be made available for public inspection unless otherwise exempted by law. OAG 82-169 .

A transcript of an informal hearing where testimony of witnesses was heard was not of a confidential meeting or conversation between employees and Department of Labor (now Labor Cabinet) compliance officers, but was rather an informal meeting between employees and management officials, was not considered to be confidential, and did not fall within any of the exceptions to the Open Records Law. OAG 82-192 .

It is not sufficient to cite an administrative regulation as a reason for denying the inspection of a record because a public agency does not have the authority to make records confidential by regulation; the exception relied on to preclude inspection must be one of the exceptions provided in subsection (1) of this section. OAG 82-192 .

The term “question privately” in KRS 338.101 , which authorizes the Commissioner (now Secretary) of Labor to inspect working places, makes any statement taken from an employee, or other person authorized to be questioned by the statute, confidential, and, as such, it is exempted from mandatory public disclosure by subdivision (1)(j) of this section; accordingly, the Department of Labor (now Labor Cabinet) properly denied inspection of the statements of witnesses, taken in private interviews, concerning a fatal injury of a worker. OAG 82-192 .

University officials properly withheld inspection of the personnel file of the requester, which included letters of evaluation by faculty members, because the university is entitled to protect the privacy of the faculty members who wrote the letters of evaluation and because the letters contained preliminary recommendations and preliminary memoranda in which opinions were expressed; such faculty letters were exempt from inspection under subdivisions (1)(a) and (1)(h) of this section. OAG 82-204 .

Where a state university committee filed a letter with a dean concerning the promotion and tenure of a certain professor and the letter contained the advice and recommendation of the committee, the letter was exempt from the mandatory requirement of public inspection and could be withheld from the professor’s inspection under either subdivision (1)(a) or (1)(h) of this section. OAG 82-211 .

Ideas and operating techniques that have been devised by firms or individuals, and which are not required to be disclosed by KRS 367.805, come under the exemptions provided by subdivision (1)(b) of this section. OAG 82-215 .

Since a public agency is required to make records available for inspection without regard to the purpose for which the requester wants to see the record, an agency should have a definite policy as to when it will invoke one or more of the exemptions in this section. In other words, the exemption should be invoked according to the nature of the record and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. OAG 82-233 .

The exemptions in the Open Records Law, set forth in this section, are inoperative as to records containing the information required under KRS 367.805(1). Any additional information gathered by the Division of Consumer Protection, however, in the course of the registration procedures of KRS 367.801 et seq. may be exempt from mandatory disclosure if it is covered by one (1) of the exemptions in this section. OAG 82-215 .

On a payroll voucher, the name of the person being paid and the gross pay to that person is not exempt from public disclosure. However, other information on the voucher, such as withholding for taxes, insurance, retirement, credit union, bonds, charitable contributions and annuities are items which come under the exemptions provided by subdivision (1)(a) of this section. OAG 82-233 .

The exemptions from mandatory disclosure provided by this section are permissive and no law is violated when exempted material is made accessible to the public. A public agency, however, has the right, as a matter of policy, to refuse access to exempted material and may separate exempted material from the nonexempted. OAG 82-233 .

A person’s name is personal but it is the least private thing about him; and therefore, the name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order (i.e., adoption records). OAG 82-234 .

On a birth certificate, the mother’s mailing address is private and may be blotted out, as may items dealing with complications of pregnancy and concurrent illness or conditions affecting the pregnancy. OAG 82-234 .

The blotting out of some information on a form such as a certificate of live birth is permissible under subsection (3) of this section; however, information on a public form which is not exempted by a specific statute or by one of the exemptions provided by this section cannot be blotted out before the record is made available for inspection. OAG 82-234 .

The full name of the mother, the father and the child cannot be deleted from a birth certificate before inspection. OAG 82-234 .

The purpose for which a person seeks access to a public record is not relevant to the Open Records Law, and a public agency has no right to inquire as to the purpose for the inspection and copying of the record. Any inspection request form which requires the statement of the purpose of inspection is contrary to the law. OAG 82-234 .

Complaints made to the Kentucky state Board of Medical Licensure by individual members of the public and by other doctors may be withheld from public inspection as correspondence with private individuals under subdivision (1)(g) of this section. OAG 82-263 .

Documents containing complaints made to the Kentucky state Board of Medical Licensure from other state agencies, such as the Department (now Cabinet) for Human Resources, come under the exception of subdivision (1)(h) of this section; although exception (1)(h) is usually interpreted as applying to intra-office memoranda, in a proper case it can also be applied to inter-office communications of a preliminary nature and which only suggest or request that an investigation be made by the receiving office. OAG 82-263 .

The Board of Medical Licensure may decline to allow access to documents connected with a complaint received by the Board, which documents were never used in a formal complaint against a licensee. OAG 82-263 .

A request for records of the proceedings of a hospital committee of the University of Kentucky’s Medical Center relating to “a nineteen-year-old girl who had her colon removed in an operation at the University of Kentucky Medical Center, and which after the removal of the colon it was revealed that the colon was normal in all respects” did not describe the records sufficiently for the custodian to be required to produce them. OAG 82-269 .

The right of privacy involved in hospital records belongs to the patient, not to the medical center; if the patient consents to disclosure of the records of the case, inspection must be allowed except as to records which are made confidential by KRS 311.377(2). OAG 82-269 .

Deferred compensation deductions from the pay checks of public employees are information of a personal nature where the public disclosure thereof would constitute clearly an unwarranted invasion of personal privacy and as such they come under the exemption in subdivision (1)(a) of this section. The Treasury Department can adopt a policy of withholding such information from all requesters. OAG 82-275 .

Exemptions to the mandatory open records requirement provided by subdivision (1) of this section are permissive and not mandatory. A public agency can adopt a policy of not allowing inspection of exempt records but no law is violated if the exemption is ignored and the records are released. OAG 82-275 .

If an agency withholds from inspection records which are exempt from mandatory disclosure, it should do so by a consistent policy and should treat all requests the same regardless of who the requester may be. OAG 82-275 .

No law is violated if the Treasury Department releases information concerning deferred compensation deductions and it is not the concern of the Treasurer whether the records are requested by someone wanting to compete with the Kentucky Employes Deferred Compensation System or for some other purpose. The Treasurer should have the same policy on making the information available regardless of who makes the request. OAG 82-275 .

The records of graduate council decisions pertaining to individual students are confidential by law; there is no exception for statistical information in KRS 164.283, and this specific statute takes precedence over the general statute, the Open Records Law. Therefore, the custodian of records of Eastern Kentucky University properly denied access to the minutes of the graduate council and the graduate appeals committee, even though the request was for statistical information which would not have been exempt under subsection (2) of this section provided that it existed in compiled form. OAG 82-279 .

Under the Open Records Law, KRS 61.870 to 61.884 , a public record is either open to public inspection by any person or it may be withheld from inspection by every member of the public under one of the exceptions listed in subsection (1) of this section. This often means that the Open Records Law cannot be used in lieu of discovery procedures provided by the court rules of civil procedure. OAG 82-280 .

A request for records compiled by security officers of the county board of education in connection with the investigation of criminal charges involving the requesting attorney’s client, which records might be used in a prospective law enforcement action or administrative adjudication before the board of education, was properly denied under subdivision (1)(f) of this section. The inspection of the described records could only be mandatorily required by a requester by order of a court until such time as the enforcement action was completed or a decision was made to take no action. OAG 82-280 .

An opinion of the legal staff of the Department of Revenue (now Revenue Cabinet) as to the validity of two (2) permits of the Department’s sales and use tax division was in-house memorandum from legal counsel to a client, namely, the department of revenue, and being an intra-office memorandum in which opinions were expressed and recommendations made it was exempt from the mandatory requirement of public disclosure by subdivision (1)(h) of this section. OAG 82-295 .

Records which are the work product of an attorney in the course of advising a client are not discoverable under CR 26.02(3) and are therefore exempt from public disclosure under KRS 447.154 and subdivision (1)(j) of this section. OAG 82-295 .

A report made by a state detective to his superior officer, regarding an investigation of an airplane landing, was in the nature of an intra-office memorandum, a preliminary memorandum in which opinions were expressed along with a report of actions taken during an investigation of an incident, and was not mandatorily required to be made available for public inspection. OAG 82-339 .

Records which are preliminary in nature when they are created do not lose their exempt status after final action is taken based upon the preliminary recommendations; they continue to be preliminary records. This is all the more true if the preliminary memorandum expresses opinions and recommendations of the writer. OAG 82-339 .

The report of the annual audit of a city is not exempt from mandatory public inspection by subdivision (1)(g) of this section or any other exception in the statute. An audit report made under the provisions of KRS 91A.040 is a public record and should be made available for public inspection. OAG 82-340 .

A person does not have any privacy interest in local police records pertaining to him. OAG 82-388 .

Inspection of requested records containing identifiable descriptions and notations of arrest, detentions, indictments, information or other formal criminal charges and any disposition arising therefrom, including sentencing, correctional supervision and release and/or all other information a local police department may have compiled on a named individual could not be denied on the grounds of “personal privacy.” OAG 82-388 .

Local law enforcement agencies are required to make available for public inspection arrest records of any person, subject to the exceptions stated in KRS 17.150(2). OAG 82-388 .

If a record is made available to one member of the public for one purpose, it must be made available to the public generally for any purpose. OAG 82-394 .

The Kentucky Board of Nursing should make available to the public, including RN Magazine, the names and addresses of all licensed nurses as contained in the records of the Board without regard for the purpose for which the records are requested. OAG 82-394 .

The Open Records Law requires that all public agencies, state and local, shall allow inspection and copying the public records in their custody, with the exception of certain types of documents named in this section, without regard to the person who is making the request or the purpose for which the person wants to inspect the records; an agency cannot adopt a policy allowing inspection and copying of records for certain purposes and denying it for other purposes. It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement. OAG 82-394 .

The purpose of licensing professions, such as nursing, is to protect the public, and the public is entitled to know who the licensees are. The public is also entitled to know the address of each licensee and if the only address which the board has for a licensee is a home address, the privacy exemption will not apply to that licensee. OAG 82-394 .

Information about the confiscation of inmate property would generally be exempt from mandatory public disclosure because the privacy rights of the inmates involved outweigh the need for the public to be informed. OAG 82-395 .

A deceased person has no right of privacy under subdivision (1)(a) of this section and police records pertaining to a decedent cannot be withheld from public inspection on that basis. Moreover, a requester is entitled to inspect the original records and is not required to submit specific questions regarding a deceased person. OAG 82-413 .

Records which are preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended are exempt under subdivision (1)(h) of this section and do not lose their exempt status with the passage of time. However, records showing police action such as warrants, arrest records and investigations of complaints which do not contain opinions of the officer are not exempt from public inspection. OAG 82-413 .

Some records pertaining to a deceased person may be withheld from public inspection under one of the exceptions provided in subsection (1) of this section other than subdivision (1)(a) of this section. However, it is the duty of the custodian to sort out the exempt material and allow the requester to inspect the remaining records. OAG 82-413 .

Departmental reports to the Commissioner of Personnel are exempt from the mandatory requirement of public inspection under subdivision (1)(g) of this section since the documents in the report are clearly intra-office memoranda in which opinions are expressed or policies formulated or recommended to the Secretary of the Cabinet for Human Resources by commissioners of departments under the Human Resources Cabinet and the fact that they are transmitted to the Department of Personnel as part of the departmental report does not remove their exempt status. OAG 82-431 .

Letters from individual employees to the Commissioner of Personnel are exempt from public inspection under subdivision (1)(g) of this section since they are correspondence with private individuals. OAG 82-431 .

A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided in this section. OAG 82-435 .

One of the purposes of the Open Records Law is to allow any member of the public to personally check on the operation of the government by inspecting the original records of public agencies or by purchasing copies thereof, and the question whether taxes are being paid by all persons who are legally obligated to pay them is a legitimate interest of the public which any person has a right to check; accordingly, the confidentiality provisions of an ordinance which imposed an annual license for the privilege of doing business in the city contravened the Open Records Law since every licensee in the city was required to pay a $25 minimum license fee and the public disclosure of who had paid the fee revealed no private detail concerning a taxpayer’s business. OAG 82-435 .

A development potential analysis of certain property was exempted from the requirement of mandatory public inspection by subdivision (1)(h) of this section. The document was almost entirely opinion and recommendations and, while it was probably a final report of the corporation employed by the county to analyze the potential of such property, it was preliminary in that the county, if it chose to do so, could have other analyses made for its considerations. OAG 82-450 .

Since subdivision (1)(d) of this section expressly mentions appraisals and feasibility estimates and evaluations relative to the acquisition of property, a development potential analysis of certain property could not be held exempt from public inspection under that subdivision. OAG 82-450 .

A coroner’s autopsy report is exempt from the requirement of mandatory public disclosure by subdivision (1)(f). OAG 82-458 .

While a coroner’s verdict filed with the circuit court clerk is open to public inspection, objects and reports, such as autopsy reports, are to be retained by the coroner and the prosecuting authority and are not required to be made open to public inspection until prosecution is completed or a decision not to prosecute has been made. OAG 82-458 .

If a request is made to inspect personnel action laying off, hiring or rehiring faculty and staff of a university during a reasonable period, the request should be granted either by allowing inspection of records after private matters have been deleted or by preparing a list of nonexempt information; the name, position, salary and period of employment of each person subject to personnel action during a reasonable specified period is nonexempt information. OAG 82-506 .

Where a newspaper reporter requested information as to the age and address of present and former university employees, she was asking for information of a personal nature which was made exempt from mandatory public disclosure by subdivision (1)(a) of this section and the university was correct in relying on that statutory provision in denying the request. The university’s offer to provide statistical data and nonexempt information on named individual employees, which presumedly would inform the requester of the name, position, work station and salary, satisfied the requirements of the law. OAG 82-506 .

Where a request was made to inspect “lists or records that would designate laid-off faculty members as tenured or nontenured” such contract status was a public matter and the university should comply with the request. OAG 82-506 .

Since the address of a person licensed to practice a profession is not a matter of personal privacy which may be withheld from public disclosure under subsection (1)(a) of this section or any other exemption provided in the Open Records Law (KRS 61.870 to 61.884 ), the Kentucky Board of Nursing must make available to the public the home address of each nurse licensed by the Board. If a licensee furnishes the Board a business address or a post office box number, it would be sufficient to give that address to the public instead of the home address; the crucial factors are identification and general location of the licensee and these factors override any privacy interest the licensee may have in his private life. OAG 82-524 .

Where requested records consisted of a summary of opinion expressed to Kentucky officers during interviews of law enforcement officials in Ohio, who were largely relying on opinions expressed to them by other persons, and constituted a three- or four-tier summary of unsubstantiated opinions as to persons involved in criminal activity, including deceased as well as other persons still living in Ohio and other states, and where such summary expressed suspicions of officers and referred to criminal investigations still being conducted, such communication was doubtless made with the understanding of confidentiality, the breach of which could have an adverse effect on the ongoing law enforcement investigations, and such records were exempt from the mandatory requirement of public disclosure under subsection (1)(f) of this section. OAG 82-532 .

In denying a request for records which contained the names, addresses, and social security numbers of those individuals who had an unsatisfied obligation to support minors residing within the commonwealth of Kentucky whose custodial parent or guardian presently, or who had at times in the past, received benefits under the state and federal program entitled Aid to Families with Dependent Children, the Cabinet for Human Resources acted consistently with the provisions of the Open Records Law, KRS 61.870 to 61.884 ; these records have been made confidential by the General Assembly by KRS 205.730 which is a part of the Child Support Recovery Act, KRS 205.710 to 205.800 . OAG 82-539 ; 82-641.

Although subsection (4) of this section does not use mandatory language, the clear legislative intent is that governmental agencies shall cooperate with one another and that one agency should assist another in carrying out its governmental functions. OAG 82-548 .

The State Board of Physical Therapy is entitled to inspect the employment record of one of its licensees who was formerly employed by the University of Kentucky Medical Center in order to consider the licensee’s fitness to maintain a license to practice physical therapy, since that is a governmental function of the licensing board. OAG 82-548 .

Where the cause of death is an accident or where no criminal prosecution is pending or being considered, blood and urine test results made as a result of coroner’s investigation are not exempt from public inspection. OAG 82-590 .

Coroner’s records showing the results of blood and urine tests made on six (6) named individuals killed in automobile accident could not be withheld from public inspection on ground of personal privacy since the records pertained to persons who were deceased and such right of privacy terminated at the time of their death. OAG 82-590 .

Where records concerning investigation of police department concerning allegations of drug abuse were requested, but request made no reference to any specific complaint, and report to the city officials made no specific recommendation of disciplinary action against any officer, none of the requested records were mandatorily required to be made public, but fell within the exemptions of subdivisions (1)(g) and (h) of this section. OAG 82-630 .

Request to inspect records pertaining to the identity of employers who had been granted “common paymaster status” was properly denied under subdivision (1)(j) of this section since there were currently no common paymaster accounts and since the identity of employers in the unemployment compensation program is made confidential by KRS 341.190(3). OAG 83-1 .

Inspection of witness statements made by employees to a compliance officer of the Department of Labor (now Labor Cabinet) concerning a fatality at a construction company was properly denied under the Open Records Law. OAG 83-5 .

Where there is a concurrent state and federal jurisdiction to prosecute for a crime, state and federal authorities have a mutual interest in the investigation made by either jurisdiction; the fact that state authorities have decided not to prosecute does not mean that their investigative records must be made available for public inspection if the joint investigation is still open and there is the possibility of federal prosecution. OAG 83-39 .

Where the premature release of the state’s investigative file concerning bid rigging on state highway construction contracts might interfere with prosecution by the federal authorities, the exceptions provided in subdivision (1)(f) of this section applied and inspection of the records was properly denied. OAG 83-39 .

Request to inspect files compiled in connection with an administrative investigation by the Internal Affairs Division of the Bureau (now Department) of State Police regarding the conduct of persons involved in and the propriety of closing a bid rigging investigation was properly denied under subdivisions (1)(g) and (h) of this section. OAG 83-39 .

The exemption provided by subdivision (1)(f) of this section cannot be telescoped out in every case as long as an appeal is pending and once an agency has taken final action the exemption ceases unless a special reason is shown why release of the records to inspection would harm the agency in a prospective law enforcement action or administrative adjudication; the burden is on an agency to show special reason for withholding records after final action has been taken. OAG 83-41 .

If the investigative files concerning an officer dismissed by final action of agency head contain reports from individuals expressing opinions or recommending policies that material continues to be exempt as preliminary unless the agency head incorporates the reports into his final order. OAG 83-41 .

Where individual had been dismissed as a police officer, the records showing the complaint against him and the final determination of the chief of police should be made available for public inspection; if the formal final determination of the chief of police incorporated by reference any investigative reports, such reports should also be made available for public inspection. OAG 83-41 .

Where employee of Office of Public Advocacy stated that request to inspect investigative report was made on behalf of mother of one of the alleged victims of child abuse at institution and did not state that the request for the records was made for a governmental purpose, the Bureau (now Department) for Social Services was not required, under subsection (4), to make the investigative report available to the Office for Public Advocacy which avowedly was making the request on the behalf of an interested individual. OAG 83-48 .

Request to inspect and copy cost reports filed with the Department of Revenue (now Revenue Cabinet) by group self-insureds was properly denied since KRS 131.190(1) makes confidential all tax records and reports to the Department of Revenue concerning taxes and that specific statute dealing with the subject prevails over any provisions of the Kentucky Open Records Law; moreover, the open records statute, in subdivision (1)(j) of this section, also expressly exempts public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. OAG 83-78 .

Letter from company attorney to a riverport authority was plainly correspondence between a private individual and the authority rather than correspondence between two public officials on official business; the writer of the letter could make it public if he desired to do so, but the riverport authority had the permissive right to withhold the letter from public inspection under subdivision (1)(g) of this section. OAG 83-79 .

It is implied in this section and its companion statute, KRS 17.150 , that the investigative files which are to be open to public inspection are those pertaining to a named suspect after that suspect has been prosecuted or a decision has been made not to prosecute him; in a case where no suspect has been determined and active investigation has ceased because the investigators can find no other trails to follow, the case has become inactive but is not closed. To hold otherwise would be to open up to public inspection all of the police investigative files where the investigation has become fruitless and indefinitely suspended. OAG 83-123 .

Statements of witnesses to a fatal construction accident, which were taken in private interviews by officials from the Department of Labor (now Labor Cabinet), were exempted from mandatory public disclosure by subdivision (1)(j); the mere fact that two (2) pages of a four-page statement by one (1) of the witnesses were mistakenly included in papers released to an attorney, did not estop the Department of Labor (now Labor Cabinet) from refusing to release the other two (2) pages of the statement. OAG 83-140 .

Intraoffice memoranda from employees of the Corrections Cabinet in which they expressed opinions and made recommendations as to possible alternate sites for a medium security prison were exempt from mandatory public inspection under subdivision (1)(h) of this section. OAG 83-143 .

Where a technical report done for the Natural Resources and Environmental Protection Cabinet consisted mainly of reports of test results and studies made by experts, the statistical and scientific data contained in the report were final records of a public agency and should have been made available for public inspection notwithstanding the fact that the document was an in-house draft of the Cabinet, that it was stamped as a “preliminary draft,” and that it would not be finalized until after the Environmental Protection Agency commented upon the report. OAG 83-163 .

Preliminary drafts of a county budget are not required to be available for public inspection; they are in the nature of intraoffice memoranda, preliminary, tentative and merely expressions of recommendations which may or may not be incorporated into the final document. OAG 83-166 .

A request for the names and addresses of all taxpayers who had protested assessment of sales tax, resulting from audit or otherwise, by the sales and use tax section of the Revenue Cabinet was a request for a list which did not exist, and the request was properly denied since an agency is not required to prepare a list which is not already in existence; the subject request could also be denied under subdivision (1)(g) of this section which exempts from mandatory public disclosure “correspondence with private individuals.” OAG 83-167 .

Transcripts of depositions taken in a civil action brought against the Cabinet for Human Resources are not subject to the Open Records Law and, since there is no court rule requiring one party to a lawsuit to furnish a copy of a deposition in the suit to another party, the plaintiff could only obtain a copy of the depositions from the stenographer who reported the depositions upon the payment of the required fee. OAG 83-194 .

The personal privacy exemption does not apply to police records. OAG 83-212 .

Since the record disclosing the name of a person arrested or incarcerated is open to public inspection and copying, his photograph is also open to public inspection and copying and the personal privacy exemption does not apply. OAG 83-212 .

If no photograph of arrestee is taken at the time of booking because the police already have a sufficiently up-to-date photograph of the arrestee, that photograph should be made available for public inspection and copying. OAG 83-212 .

When a coroner’s inquest finds that a death resulted from a crime being committed and a criminal prosecution arises, all evidentiary material should be turned over by the coroner to the prosecuting authority as provided by KRS 72.020(2) and such material may be withheld from public inspection pending the completion of the prosecution under subdivision (1)(f) of this section; but where the cause of death is an accident or where no criminal prosecution is pending or being considered, blood and urine test results are not exempt from public inspection. OAG 83-223 .

Generally, when an agency makes an official inspection of one of its licensees and objectively grades the performance or conditions existing on the premises of the licensee, the report and grade is open to public inspection; on the other hand, a report by an agency employee to his superior expressing opinions and making recommendations of policy may be exempt from mandatory public disclosure under subdivision (1)(h). OAG 83-235 .

The fact that a health department report was involved in a class-action lawsuit did not necessarily mean that it was exempt from mandatory public inspection unless the judge issued an order to that effect. OAG 83-235 .

Company’s technical proposal and oral presentation booklet, submitted in response to request of state agency for proposals for automated certification and issuance of food stamp program, contained material which could be classified as trade secrets, unpatented, secret commercially valuable plans, appliances, formulae, or processes and as such came under the trade secrets exception of subdivision (1)(b) of this section; since the request designated the proposal as a unit it could be rejected as a unit. The agency request for proposal, which was open to the public, supplied sufficient information about the food stamp program to satisfy the needs of the public in a general fashion. OAG 83-256 ; 83-302.

The Revenue Cabinet could not deny request for information regarding the motor vehicle tax account of deceased county clerk under either subdivision (1)(g) or (h) of this section or KRS 131.190(1) since the permissive exceptions provided by subdivision (1)(g) and (h) have no application to reports required to be filed by local officers with a state cabinet or department, and since KRS 131.190(1) provides a cloak of confidentiality for taxpayers, not for public officials, and applies only to living taxpayers who are still in business and not to deceased persons. OAG 83-257 .

The denial of public inspection of a reference, in state police investigation file, to three (3) persons unconnected with the police investigation was proper, pursuant to subdivision (1)(a) of this section, as protection against an unwarranted invasion of personal privacy and, pursuant to KRS 17.150(2)(b), because disclosure of such information would not promote a wholesome public interest. OAG 83-260 .

Denial of public inspection of the polygraph test of a named person which was a part of the investigative file of state police was proper under KRS 17.150(2)(b) and subdivision (1)(a) of this section. OAG 83-260 .

The Revenue Cabinet properly denied request to inspect all correspondence sent or received regarding the feasibility of an unmined minerals tax because they consisted entirely of intraoffice memoranda which were preliminary in nature and which contained expressions of opinion, recommendations and proposals from subordinate state employees to their superiors and thus they were exempt from mandatory public disclosure by subdivisions (1)(g) and (h) of this section; such records were not made confidential by KRS 131.190(1) because they made no mention of any individual taxpayer or information concerning any taxpayer’s business. Since the records could be withheld from public inspection by the permissive exemptions of subdivisions (1)(g), (h), the Revenue Cabinet had the option of either allowing inspection of the records or keeping them confidential, provided that it treated all requests to inspect the records according to the same policy. OAG 83-263 .

A letter written by a person in his capacity as city attorney, concerning a statement made by a county police officer questioning the eligibility of the present city chief of police to hold that position, was exempt from public inspection under subdivision (1)(h) of this section as a preliminary memorandum in which an opinion was expressed. OAG 83-272 .

The incident reports and daily log sheets maintained at certain social services facilities and evaluative memoranda derived from inspections of those facilities are exempt from public inspection as a protection against an unwarranted invasion of the privacy rights of the residents of those facilities; the evaluative memoranda are also exempt as preliminary memoranda in which opinions are expressed. OAG 83-286 .

The quarterly reports of the Kentucky Society of CPAs’ Ethics Committee, made to the State Board of Accountancy for their Quality Review Program, are exempt from public inspection under subdivisions (1)(a), (g) and (h) of this section; such reports would contain names of practitioners or firms found to be substandard, which information is personal in nature and protected by the privacy exemption, and also would contain preliminary information and recommendations protected from disclosure by this section. OAG 83-308 .

The Corrections Cabinet is a public agency as defined by KRS 61.870(1); therefore the records prepared, owned, used, or in possession of the Corrections Cabinet are public records pursuant to KRS 61.870(2) and open to public inspection unless exempted under this section. OAG 83-313 ; 83-337.

Deputy Warden of Operations for the Kentucky Corrections Cabinet at the Kentucky State Reformatory properly refused request to inspect purchase orders or recommendations to purchase motors for the exhaust system in the geriatrics unit as such records were exempt under subdivision (1)(h) of this section. OAG 83-313 .

As a public agency pursuant to KRS 61.870(1), the documentary materials prepared by the Kentucky Department of Labor (now Labor Cabinet) are public records under KRS 61.870(2) and open to public inspection unless exempted under this section. OAG 83-326 .

Audit reports are exempt from public inspection when there is a possibility of prospective law enforcement action or administrative adjudication; after the law enforcement action or administrative adjudication is complete or a decision is made to take no action, the final audit is open to public inspection. OAG 83-326 .

The audit reports and supporting documents concerning the demand for back pay prepared by the Department of Labor (now Labor Cabinet) in an audit of a city were exempt from public inspection until prospective law enforcement action or administrative adjudication occurred, or a decision was made to take no action. OAG 83-326 .

Insofar as the Department of Labor’s (now Labor Cabinet) audit report had been presented to the city being audited, subdivision (1)(h) of this section was not applicable since this document would constitute a final and complete report upon presentation and would no longer be considered preliminary; supporting documents that did not constitute part of the final report would, on the other hand, be exempt as preliminary drafts or notes, under subdivision (1)(g) of this section, and as preliminary recommendations and memoranda containing opinions under subdivision (1)(h) of this section. Therefore, although documents constituting the final audit report would be open to public inspection after prospective law enforcement action or administrative adjudication was complete or a decision was made to take no action, preliminary documents not constituting the final audit report but which were used in preparation of it would never be open to public inspection. OAG 83-326 .

Personnel records fall under the exception of subdivision (1)(a) of this section to mandatory disclosure. OAG 83-329 .

The exemptions in the Open Records Law provided in subsection (1) of this section are permissive, not mandatory and, since Kentucky has no privacy law, a records’ custodian has the authority to release exempted records unless there is some statute which makes the records confidential; there is no such statute pertaining to personnel records and, therefore, a school superintendent would have the authority to make teacher personnel records available to the public unless the school district had a policy of keeping the records confidential. In such case, every person requesting to inspect the records should be treated alike. OAG 83-329 .

Under the Kentucky Open Records Law and under Kentucky case law a school superintendent had the legal right to refuse to send the personnel files of other teachers to the EEOC on the grounds that to do so would violate their personal privacy. OAG 83-329 .

Documents pertaining to student’s suspension were open to inspection by him, except documents which contained preliminary drafts, notes, correspondence with private individuals or preliminary recommendations and memoranda in which opinions were expressed or policies formulated or recommended, which could be properly exempted from his inspection; any complaints against him were also open to his inspection as were any written decisions by the disciplinary board. OAG 83-332 .

The names, positions, and addresses of all the persons who were on the disciplinary board which found for student’s suspension were open to student’s inspection under KRS 61.835 ; however, the selection and appointment documents were exempt as “preliminary recommendations.” OAG 83-332 .

Since compliance officer’s worknotes, compiled during occupational safety and health investigation, may contain his hand-drawn diagrams of the worksite or work operations, plus his observations, opinions, and possibly preliminary drafts of citations which may or may not be finally issued, the worknotes are exempted from public inspection by subdivision (1)(h) of this section as preliminary memoranda in which opinions and recommendations are expressed. OAG 83-335 .

Since occupational health and safety compliance officer’s worknotes may contain notations of conversations with employees and employers, and since KRS 338.101 , which authorizes the compliance officer to inspect the workplace and talk privately with employers and employees, makes any statement taken from an employee or employer confidential and therefore exempt from public inspection by virtue of subdivision (1)(j) of this section, such worknotes are exempt from inspection. OAG 83-335 .

Compliance officer’s worknotes compiled in the ordinary course of an occupational safety and health investigation of an employer worksite, which may contain preliminary handwritten drafts of possible citations and correspondence with private individuals which are not intended to give notice of final action are preliminary and do not evidence a final action; therefore, the exemption under subdivision (1)(g) of this section applies. OAG 83-335 .

An order from the warden to the staff of the reformatory directing the staff to lock down the geriatrics unit from 4 p.m. to 6 p.m. was an “intra-agency” memorandum and was exempt from public inspection pursuant to subdivision (1)(h) of this section. OAG 83-337 .

The back side of the Uniform Offense Report used by a city police department, which usually contained supplementary notes taken by the investigating officer, was exempted from public inspection (except upon court order) under the Open Records Law pursuant to subdivisions (1)(f), (g) and (h) of this section, because such supplementary notes were compiled during an investigation, because their disclosure might inhibit the officer’s investigation, because they were inherently preliminary and because they contained the officer’s recommendations and opinions. OAG 83-338 .

The reports kept by a county ambulance service of ambulance runs, including the name, address and age of person transported, where the person was picked up and transported, and the nature of the run were exempted from public inspection as a protection against an unwarranted invasion of personal privacy under subdivision (1)(a) of this section. OAG 83-344 .

A decision rendered by referee for unemployment compensation division was a public record under KRS 61.870(2), and thus open to public inspection unless exempted by this section; since the referee’s decision was evidence of a final action by the agency, the exemptions of this section did not apply. OAG 83-352 .

Reports and documents involving a criminal prosecution and conviction are subject to discovery by the accused pursuant to Kentucky’s Criminal Rules of Procedure and will be available to the public, unless otherwise properly exempted, once the appealed criminal conviction has been affirmed by the court of last resort to which the conviction is taken. OAG 83-356 .

A letter written to the head of a university’s art department by the university’s president on behalf of the board of regents containing charges against the department head was exempt from inspection under subdivision (1)(a) of this section as a protection against an invasion of personal privacy of the department head, and under subdivision (1)(g) of this section as correspondence with a private individual which was not intended to give notice of a final agency action. OAG 83-358 .

Where police incident reports and police internal affairs reports concerning the shooting of an individual are still active files, they are not open to public inspection until prospective law-enforcement action or administrative adjudication is complete or a decision is made to take no action. OAG 83-366 .

Police internal affairs reports are exempt from public inspection as preliminary memoranda; only internal affairs reports which indicate the final action taken and the underlying complaint are open to public inspection. OAG 83-366 .

The class and grade statistical data of the Comprehensive Tests of Basic Skills, a standardized test administered to 3rd, 5th, 7th, and 10th grade students, as compiled by the Jefferson County Public Schools and released to each individual school, are open to public inspection under the Open Records Law, as long as the class and grade reports are not descriptive of any readily identifiable person. OAG 83-371 .

Letters written by a private individual to the Governor’s office pertaining to proposed legislation concerning outdoor (billboard) advertising were properly exempted from public inspection. OAG 83-385 .

The Department of Transportation’s (now Transportation Cabinet) denial of a request to inspect “all” records in the Kentucky Department of Transportation, Division of Right of Way, District 5, was proper under Open Records Law; the request did not have to be honored as it lacked specificity and it would have placed an unreasonable burden on the agency to separate exempted material from the nonexempted material before inspection. OAG 83-386 .

Final orders of the Unemployment Insurance Commission, which are cited by the Commission as precedent in subsequent decisions, should be open to public inspection as evidence of a final agency action; accordingly, the Commission acted improperly when, based on KRS 341.190 , it denied an inspection request, since KRS 341.190 mandates confidentiality only for communications from the employer or worker to the Commission, and does not address communications from the Commission to the employer or worker. OAG 83-405 .

Where one university student seeks the release of a tape or transcript of a student disciplinary hearing in which several other students were also involved, only those parts of the tape or transcript which relate to the student requesting access are available to him, since the other students have the right under subdivision (1)(a) of this section to nondisclosure of private information. OAG 83-427 .

A student involved in student disciplinary proceedings at a university can be exempted from inspecting the records of the hearing (1) if public disclosure constitutes a clearly unwarranted invasion of another’s privacy (such as another student); (2) if the records contain preliminary drafts, notes, correspondence with private individuals (other than a notice of final action); (3) if the records contain preliminary recommendations or memoranda which express opinions or policies; (4) and if disclosure is prohibited by federal law or regulation or by the Kentucky General Assembly. OAG 83-427 .

Where report was requested by the county judge/executive in order to investigate alleged misuse of county road equipment by an elected magistrate, subdivision (1)(h) of this section would apply to exempt the document from public inspection since the report was not indicative of any final action taken by the fiscal court and as such was preliminary; at most, the report could merely be preliminary memoranda gathered by the county attorney in his investigation. OAG 83-469 .

Since a report concerning investigation of alleged misuse of county equipment, which was made at the request of the county judge/executive, was documentary material in the possession of a public agency, it was a “public record” under KRS 61.870(2) and open to public inspection unless exempted pursuant to subsection (1) of this section. OAG 83-469 .

Resumes of the fire chief, assistant fire chiefs, and city manager are personnel records and, as such, contain personal information, disclosure of which would constitute a clearly unwarranted invasion of personal privacy; accordingly, the city manager properly denied public inspection of such resumes. OAG 84-19 .

The reports of two (2) fires prepared by a fire chief following his investigations were validly withheld from the public pursuant to KRS 227.370 and subdivision (1)(h) of this section. OAG 84-19 .

A licensing agency must make available the work addresses of licensees. OAG 84-51 .

Home addresses of licensees are excluded from inspection under the privacy exemption; however, the home address of the licensee is available under the Open Records Law if no work address is listed. OAG 84-51 .

Social security numbers and home addresses of Kentucky State Racing Commission licensees are excluded from public inspection under the privacy exemption of subdivision (1)(a) of this section; however, a licensee’s home address must be made available in the absence of a work address, since the purpose of the license is to protect the public. OAG 84-51 .

Social security numbers are exempted from public disclosure under the Open Records Law. OAG 84-51 .

The requested inspection of a deceased veteran’s military records was properly denied, where the federal Privacy Act of 1974 (5 USCS § 552) allowed such inspection only by the next of kin, and the requestor admitted that she was never married to the veteran even though she and the veteran had a son who purportedly took the veteran’s name. OAG 84-84 .

Records in the file on a proposed lease of property were not open for public inspection if they fell within the exemptions of subdivision (1)(d) of this section (evaluations made by or for a public agency relative to acquisition of property) or subdivisions (1)(g) and (h) (preliminary memoranda) but the bid advertisements and Department of Insurance request for more space were open to inspection; if the file contained exempted and nonexempted material, the nonexempted material must be separated out and made available for public inspection. OAG 84-90 .

A requestor should be allowed to inspect city occupational licenses to obtain business names and addresses and was also entitled to access to the dates of license application and issuance, as well as to the identity of businesses delinquent in paying occupational taxes. OAG 84-93 .

The public is not entitled to know information about a license which is made expressly confidential and, therefore, records disclosed to a city in order to obtain an occupational license or collect a license fee, such as social security numbers and federal identification numbers, would be confidential and exempt from public access; information which reveals the affairs of the business, such as profits, taxes, deductions, and salaries, would also be exempted. OAG 84-93 .

An occupational license is a temporary grant of special privilege by the local government and, consequently, public access to the information contained in the license, such as business name and address, is not an unwarranted invasion of personal privacy. OAG 84-93 .

A city could compile a list of occupational licensees in its discretion, or allow requestor to make his own list; the city could also separate exempted from nonexempted matter before allowing requestor access to the records. OAG 84-93 .

The application for an industrial revenue bond is not available for public inspection since subdivision (1)(c) of this section exempts public records pertaining to a prospective business or industry location where no previous public disclosure has been made of the business’ or industry’s interest in relocating or expanding in the commonwealth and since subdivision (1)(b) exempts from public inspection all records confidentially disclosed in conjunction with an application for a loan; although the county assumes no financial risks on the bonds, they are the issuing authority and review the bond applications as if they were loan applications. OAG 84-98 .

Notification of approval or denial of an industrial revenue bond by the county Office of Economic Development is evidence of a final agency action and is therefore open to public inspection. OAG 84-98 .

The amount of an industrial revenue bond issue being sought is exempt from public inspection under subdivisions (1)(b) and (c) of this section. OAG 84-98 .

The intended use of an industrial revenue bond issue is open to public inspection if contained in correspondence which gives final action of the county Office of Economic Development; otherwise it is exempt as preliminary memoranda. OAG 84-98 .

The decision by the fiscal court, Office of Economic Development and other county officials on whether to approve an industrial revenue bond issue is open to public inspection if it represents final agency action; otherwise, it is exempted as containing preliminary recommendations, opinions, and policies. OAG 84-98 .

The reason for the decision on whether to approve an industrial revenue bond issue is open to public inspection if contained in correspondence indicating final agency action; it is otherwise exempt under subdivisions (1)(g) and (h) of this section as preliminary memoranda. OAG 84-98 .

County recommendations concerning industrial revenue bonds are exempt from public inspection as preliminary recommendations or preliminary memoranda in which opinions are expressed or policies recommended, unless contained or incorporated into correspondence indicating final action. OAG 84-98 .

Correspondence between the county and an industrial revenue bond applicant regarding the application is exempt from public inspection as preliminary unless contained or incorporated into correspondence indicating final action. OAG 84-98 .

Correspondence between county agencies regarding an industrial revenue bond application is exempt from public inspection as preliminary unless contained or incorporated into correspondence indicating final action. OAG 84-98 .

Due to the permissive nature of the exemptions of subsection (1) of this section, as well as the custom of release of licensee social security numbers by the Kentucky State Racing Commission (KSRC) to the Horsemen’s Benevolent and Protective Association (HBPA), which has gone uncontested until recently, KSRC should continue to release the social security numbers of its licensees to HBPA; additionally, KSRC must release the social security numbers to Kentucky Racing Health and Welfare Fund (KRHWF) due to subsection (4) which provides for the exchange of public records between public agencies for a legitimate government function. OAG 84-115 .

The personal privacy protection of subdivision (1)(a) of this section does not logically extend to time spent in public service which is compensated by public funds, and for which the public employee is accountable; accordingly, the time sheets for two (2) public employees were improperly withheld from inspection. OAG 84-161 .

Although the exemptions of subsection (1) of this section are permissive and not mandatory, neither the statute, Attorney General opinions, or case law indicate that the exemptions may be waived by allowing inspection and then invoking an exemption. OAG 84-163 .

The denial of inspection of two (2) requested letters was proper under subdivision (1)(h) of this section where the letters constituted intra-agency preliminary memoranda in which opinions were expressed. OAG 84-163 .

Where police investigative file involving a charge of “terroristic threatening” was still open, such file was properly exempted from public inspection under subdivision (1)(f) of this section. OAG 84-178 .

A city budget is a public record under KRS 61.870 and is thus open to public inspection; current budgets are required to be published pursuant to KRS 424.240 . Previous budgets and current budgets are both open to public inspection, as previous budgets have lost any “preliminary” quality by being closed and current budgets are “working” budgets indicative of final action; for the same reasons, the budget ordinances of the city would also be open to inspection. OAG 84-217 .

An agreement pursuant to KRS 65.210 , the Interlocal Cooperation Act, is open to public inspection as it constitutes final action by the city; copies of such agreements must be filed with the county clerk of the county which is party to the agreement before the agreement becomes operative. OAG 84-217 .

Compliance officer’s worknotes compiled during an occupational safety and health investigation are exempt from public inspection under subdivisions (1)(g) and (h) of this section, since the worknotes are strictly preliminary in nature. OAG 84-218 .

An Occupational Safety and Health or Accident (OSHA) compliance officer’s worknotes are strictly preliminary in nature and are exempt from public inspection; consequently, compliance officer’s worknotes in regard to the Labor Cabinet’s occupational safety and health investigation file on an accident at a municipal wastewater treatment plant were exempt from public inspection under subdivisions (1)(g) and (h) of this section. OAG 84-224 .

Request to inspect audit report concerning unpaid overtime compensation of former city employee was premature and the Labor Cabinet properly withheld the records in reliance on subdivisions (1)(f) and (g) of this section where employee’s claim was still under administrative investigation and the audit report requested was preliminary. OAG 84-225 .

A proposal by private industry to sell private property to the Corrections Cabinet for the purpose of converting the property into a prison was exempt from inspection, under subdivision (1)(d) of this section, where although a recommendation had been made to the Governor, no decision had been made concerning the proposal. OAG 84-226 .

Witness statements that were referred to during grand jury testimony on official misconduct were preliminary documents in police investigative files that were exempt from inspection under subdivisions (1)(g) and (h) of this section, even after the charges were dropped; the preliminary status of the statements exempted them from inspection even by a person who was mentioned in the statements since KRS 61.884 is subject to the KRS 61.878 exemptions. OAG 84-249 .

The release of records maintained by the Bureau for Manpower Services is subject to the United States Employment Service policies; thus, since a federal regulation allows public disclosure only for general information concerning employment opportunities, levels, and trends, the records subject to disclosure cannot include information identifying individual applicants, employers, or employing establishments. OAG 84-273 .

The compliance officer’s worknotes and the two (2) employee statements made during an investigation of an accident are exempt from public inspection as “preliminary” under subdivisions (1)(g) and (1)(h) of this section. OAG 84-275 .

Where a city commission authorized private companies to bid for a contract to provide fire protection for the city and replace the present city fire department, as documentary material retained by a public agency, the bid invitation, correspondence pertaining to the bids, and the bids themselves were public records subject to the Open Records Law. Unless exempted by the provisions of this section, these records are open to public inspection once the bids are publicly opened. OAG 84-284 .

Inspection of the presentence investigation report (PSI) remains closed except to the court, Parole Board, or Corrections Cabinet pursuant to subdivision (1)(j) of this section and KRS 439.510 although these agencies may order otherwise. Interpretation of KRS 532.050(4) indicates that there is a question as to whether the PSI itself should be released for inspection even to the defendant or his counsel. Statutory language only requires the court to advise of factual contents and conclusions; it does not require inspection. OAG 84-285 .

The tape recordings of employee interviews taken during the investigation of internal criminal allegations against an assistant fire marshal are clearly preliminary to any final action taken by the Division of Fire or Department of Law; they are therefore exempt from public inspection (except upon court order) under subdivisions (1)(g) and (1)(h) of this section. OAG 84-298 .

A citizen’s complaint to a city’s housing department, which spawned an inspection of the property complained about and a final order of the department to board up the property, should be open to public inspection, even though the final action taken by the department was not based on the complaint but on an inspection of the property by the department; however, the identity of the complainant is exempt from public disclosure pursuant to subdivision (1)(a) of this section. OAG 84-315 .

Financial disclosure forms which are filled out and given to a mayor’s advisory committee on ethics constitute public records which are open to public inspection due to the inapplicability of the exemptions in this section. OAG 84-320 .

An occupational safety and health compliance officer’s worknotes are exempt from public inspection pursuant to subdivisions (1)(g) and (1)(h) of this section. The compliance officer’s worknotes are not intended to give notice of final action as they merely report possible violations and contain the officer’s observations and opinions; the worknotes are therefore preliminary in nature. OAG 84-321 .

The completed report to city on plans for the future economic development of the city constituted preliminary memoranda in which opinions were expressed and policies formulated and recommended and was therefore exempt from public inspection pursuant to subdivision (1)(h) of this section. OAG 84-337 .

A request to inspect any and all internal interoffice memoranda was properly denied under the Open Records Law. OAG 84-342 .

The appointment calendars of persons in public agencies are exempt from public inspection under the provisions of subdivisions (1)(a), (1)(g), and (1)(h) of this section. OAG 84-342 .

Disclosure of employee interview statements, included in records involving Labor Cabinet report relative to incident involving death of employee made under KRS 338.101(1)(a), were confidential and exempt from mandatory disclosure under subdivision (1)(j) of this section. OAG 84-345 .

Where worknotes are compiled in the ordinary course of an investigation of an employer worksite, and contain preliminary handwritten drafts of possible citations and correspondence with private persons which are not intended to give notice of final action, the material is preliminary and the exemption set forth in subdivision (1)(g) of this section applies; furthermore, work papers and intra-office memoranda are exempt from public inspection under subdivision (1)(h) of this section. Thus, worknotes containing the compliance officer’s hand-drawn diagrams of the worksite or work operations and his observations, opinions and preliminary drafts of possible citations were exempt from public inspection by subdivision (1)(h) of this section. OAG 84-361 , 84-365.

The term “question privately,” in KRS 338.101(1)(a) makes any statement taken from an employee confidential and therefore exempt from mandatory public disclosure by subdivision (1)(j) of this section. OAG 84-365 , 85-58.

Where a proceeding has been instituted under KRS 344.200 and has resulted in a dismissal of the complaint or the entering of a conciliation agreement, only the order of dismissal or the terms of the conciliation agreement are subject to public inspection. OAG 84-376 .

Where a proceeding has been instituted under KRS 344.210 and a hearing has been held, the hearing transcript, all evidence introduced at the hearing and the subsequent decision of the commission are subject to public inspection under the Open Records Law. OAG 84-376 .

KRS 131.190(1) makes tax records confidential only insofar as the information may have to do with the person’s business; information such as the names of businesses licensed, the dates of the applications and the dates of the effectiveness of licenses are not such information as will reveal the affairs of a person’s business, and access to such information is not an unwarranted invasion of personal privacy under subdivision (1)(a) of this section. OAG 85-1 .

Unless a proceeding has been instituted under KRS Ch. 344, all information obtained by the county human rights commission remains privileged and the commission must refuse to disclose such information without the person’s consent, unless ordered to do so by a court of competent jurisdiction. If a proceeding has been instituted, what is available for public inspection is dependent upon the level at which the proceeding has progressed. OAG 85-5 .

Court records are given a special status and placed under the exclusive jurisdiction of the Court of Justice pursuant to KRS 26A.200 and KRS 26A.220; these statutes apply to all records of agencies of the court, and the Board of Bar Examiners is an agency of the court, as it is created and supervised by the Supreme Court. If a court or an agency of the court denies access to a record, the requesting party should take his appeal to the Chief Justice. Thus, denial of a request to inspect documents pertaining to the Kentucky bar examination under this section was proper. OAG 85-9 .

Records which are the work product of an attorney in the course of advising a client are not discoverable under the Kentucky Rules of Civil Procedure and are therefore exempt from public disclosure under KRS 447.154 and subdivision (1)(j) of this section. OAG 85-20 .

Where occupational safety and health compliance officer’s worknotes are compiled in the ordinary course of an investigation of an employer worksite, and contain preliminary handwritten drafts of possible citations and correspondence with private persons which are not intended to give notice of final action, the material is preliminary and the exemption set forth in subsection (1)(g) of this section applies. OAG 85-58 .

Work papers and intra-office memoranda are exempt from public inspection under subdivision (1)(h) of this section. Thus, worknotes containing occupational safety and health compliance officer’s hand-drawn diagrams of the worksite or work operations and his observations, opinions and preliminary drafts of possible citations are exempt from public inspection. OAG 85-58 .

Even if a settlement has been reached relative to Occupational Safety and Health Administration charges, material which was excluded from public inspection pursuant to subdivisions (1)(g), (h) and (j) of this section and KRS 338.101(1)(a) may still be excluded in the absence of a court order to the contrary, as the status of this material as preliminary matters and confidential interviews will not change regardless of what happens relative to any charges which might have been filed. OAG 85-58 .

Written instructions relative to employee conduct are not intra-office memoranda and preliminary recommendations excluded from the application of the Open Records Law pursuant to subdivision (1)(h) of this section. OAG 85-59 .

Denial of a request to inspect a document prepared by police chief concerning his investigation into an application for a municipal adult entertainment license, the document having been prepared at the city council’s request in connection with its review of the application, was proper under the Open Records Act pursuant to subdivisions (1)(g) and (h) of this section so long as the requested document neither indicated final municipal action nor involved a preliminary report incorporated into a final municipal report. OAG 85-63 .

Denial of request to inspect records involved with an ongoing competitive negotiation process is correct under KRS 45A.085(6) and subdivision (1)(j) of this section. However, the public agency is required to make available for public inspection those records associated with the competitive negotiation process, which are not otherwise precluded from inspection, at the final conclusion of the process, i.e., the final rejection of all proposals or the acceptance of a proposal and the awarding of a contract. OAG 85-68 .

While KRS 61.884 provides that any person shall have access to any public record relating to him or in which he is mentioned by name, that section is subject to the provisions and exemptions set forth in this section. OAG 85-69 .

Under the Open Records Law, a patrolman against whom a complaint was filed was entitled to inspect the final report of the police chief concerning the disposition of the complaint, the complaint which led to the investigation and the report, and the investigatory report arising out of the complaint, if the report was incorporated into the final report. OAG 85-77 .

Denial of request to inspect records relating to the acquisition of property for a right-of-way project, including relocation assistance payments made relative thereto, is valid pursuant to subdivision (1)(d) of this section until such time as all of the property involved in the project has been acquired. OAG 85-79 .

Where only about one-half (1/2) of the necessary tracts had been acquired for a project for which right-of-way records pertaining to acquisition and relocation assistance payments and the summary basis therefore were requested, denial of the request to inspect such records was proper under subdivision (1)(d) of this section until such time as all of the property involved in the project had been acquired. OAG 85-79 , modifying OAG 83-298 to the extent of any conflict, and affirming OAG 76-656 .

The denial of a request to inspect a portion of a tape recording involving a firefighter’s disciplinary hearing before the Civil Service Board was proper, where the release of that particular testimony would constitute a clearly unwarranted invasion of the firefighter’s personal privacy. OAG 85-83 .

Contracts of employment involving a public agency are public records and should be made available for public inspection. OAG 85-85 .

The denial of a request to inspect the complete institutional file of an inmate was proper, as requests to inspect personnel files must specify the particular documents within such files to be inspected. OAG 85-88 .

A response denying the right to inspect public records was legally insufficient, when it did not state what exception to the right to inspect was relied upon and how the exception applied to the records withheld. OAG 85-89 .

The denial of a request to inspect the letter of a disciplinary recommendation from a school principal to the Board of Education was proper, because even excising the names of those involved would not be sufficient to protect their privacy, and furthermore, because the letter was a preliminary recommendation expressing an opinion or recommending a policy. OAG 85-90 .

Contracts, retainer agreements and other documents pertaining to a public agency and its attorneys are subject to public inspection; records of payments from a public agency to its attorneys, other than as contained in regular income and accounting records, are also subject to public inspection. OAG 85-91 .

Worknotes containing a compliance officer’s hand-drawn diagrams of the worksite or work operations and his observations, opinions and preliminary drafts of possible violations, are exempt from public inspection by subdivision (1)(h) of this section. OAG 85-92 .

A denial of a request to inspect an investigative case file of the state police relative to an explosion was proper under subdivision (1)(f) of this section, where the investigation was still pending, the file pertained to an active case, and a determination had not been made as to whether or not legal or administrative action would be taken. OAG 85-93 .

A listing of budgeted employment positions, the amount budgeted for each position, and the identity of the person employed in each position, is a public record subject to public inspection. OAG 85-94 .

A denial of a request to inspect the statement of a police officer made in connection with a complaint filed against the police officer by the requesting party was proper under the Open Records Law, where the officer’s statement was a preliminary record in the internal investigative files of the police department, and was excluded from those records subject to public inspection by subdivisions (1)(g) and (1)(h) of this section unless it was incorporated into any notice of final action by the police department. OAG 85-95 .

Denial of a request to inspect the reports of the Natural Resources and Environmental Protection Cabinet’s field inspector relative to her inspection of a landfill operation, containing the inspector’s observations and opinions, was proper under subdivisions (1)(g) and (1)(h) of this section, as such reports are intraoffice memoranda containing preliminary drafts, notes and personal observations. Such material is only subject to public inspection (in the absence of a court order) if it constitutes notice of a final action of the public agency or is incorporated into the public agency’s final report or final decision on the matter. OAG 85-104 .

Copies of the proceedings in certain indictments that have not been transcribed and made part of the official record on appeal, copies of all motions in certain cases that have not been transcribed and made part of the official record on appeal, copies of the “in chambers” proceedings in said cases that were recorded but not made part of the official record on appeal, and copies of any and all proceedings in said cases that were recorded but not transcribed and made part of the official record on appeal are court records, and therefore are not subject to the terms and provisions of the Open Records Act. OAG 85-105 .

Denial by police chief of request to inspect a police officer’s notes and reports was proper under subdivisions (1)(g) and (1)(h) of this section, as such documents are preliminary documents containing the person’s notes and observations. Such material is only subject to public inspection (in the absence of a court order) if it constitutes notice of final action of the public agency or is incorporated into the public agency’s final report or final decision on the matter. Furthermore, denial of requests to inspect all reports and materials and all relevant materials was proper, as blanket requests for information on a particular subject, without specification of what documents are desired, need not be honored. OAG 85-107 .

Since a school district is a public agency under the Open Records Law, and the certificates required by KRS 161.020 are public records as defined in KRS 61.870(2), denial of a request to inspect the certificates required by KRS 161.020 to be filed with the Board of Education was improper under the Open Records Law, except that information, if any, on the certificates of a personal nature, such as social security numbers, home addresses and telephone numbers, need not be released. OAG 85-109 .

Denial of a request to inspect the investigative case files of the State Police was proper under the Open Records Act where the files pertained to matters which were still considered active and pending cases by state and/or federal authorities. OAG 85-118 .

The inspection by the public of a bidding corporation’s financial statement, even if it was not submitted pursuant to KRS 45A.110 , would constitute an invasion of privacy under subdivision (1)(a) of this section to the extent that the statement relates to the bidding corporation’s personal financial data. OAG 85-119 .

Denial by the Finance and Administration Cabinet of a request to inspect the financial statement submitted by a private corporation relative to a request for bids by a state agency was proper under the Open Records Act whether or not the document was submitted pursuant to the requirements of a state statute. OAG 85-119 .

The Labor Cabinet acted in conformity with the Open Records Law in denying access to records in an occupational safety and health investigative file consisting of a compliance officer’s worknotes and six (6) employee interview statements relating to an inspection site. OAG 85-123 ; 85-127.

Denial of a request to inspect records in the file of the Labor Cabinet’s investigative officer consisting of that officer’s worknotes relating to the death of a crane operator was proper under the Open Records Act, as such material, in the absence of a court order to the contrary, is exempt from public inspection. OAG 85-125 .

Denial by the Department of Education of a request to inspect documents described as investigatory documents, memoranda, notes and preliminary recommendations regarding an investigation of a county school system and its superintendent was proper but only until such time as the Department completed its enforcement action or made a decision to take no such action, at which time the complaints minus the complainants’ names would have to be made available for public inspection. OAG 85-126 .

Where an occupational safety and health compliance officer’s worknotes are compiled in the ordinary course of an investigation of an employer worksite and contain preliminary handwritten drafts of possible citations and correspondence with private persons which are not intended to give notice of final action, the material is preliminary and the exemption set forth in subdivision (1)(g) of this section applies. OAG 85-128 ; 85-129.

Work papers and intraoffice memoranda are exempt from public inspection under subdivision (1)(h) of this section. OAG 85-128 ; 85-129.

Worknotes containing an occupational safety and health compliance officer’s handdrawn diagrams of the worksite or work operations and his observations, opinions and preliminary drafts of possible citations are exempt from public inspection by subdivision (1)(h) of this section. OAG 85-128 ; 85-129.

Denial of a request to inspect and copy records in a police investigative file, consisting of interviews with a person’s co-workers where those co-workers expressed their personal opinions on a variety of matters, was proper, as such material is properly excluded from public inspection pursuant to subdivisions (1)(a), (g) and (h) of this section. OAG 85-135 .

Public inspection of the charges and complaints which spawned an investigation relative to a fire district’s fire chief should have been permitted where the fire district’s board of trustees had concluded its investigation of the matter and made a determination concerning those charges and complaints. The identities of the complainants need not be released and those charges and complaints relating to persons against whom the board had not finalized its actions and determinations need not be made available for public inspection. OAG 85-136 .

A letter of resignation of a public employee, such as a fire district assistant fire chief, is not excluded from public inspection by subdivision (1)(a) of this section. OAG 85-136 .

The minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection if to do so would defeat the purpose of having conducted a closed session. OAG 85-136 .

Records in the occupational safety and health investigative file consisting of the compliance officer’s worknotes were exempt from public inspection under subdivisions (1)(g) and (h) of this section, as such material constituted preliminary drafts, notes, recommendations and memoranda. OAG 85-137 .

Denial of the request to inspect a report of the management evaluation of the Kentucky State Police’s auto theft section, prepared by the State Police inspection and evaluations section, for submission to the Commissioner of the State Police for such final action or decision as he deemed appropriate, was proper under subdivisions (1)(g) and (h) of this section, so long as the report in question neither indicated final action by the State Police nor involved a preliminary report incorporated into a final report by the State Police. OAG 85-138 .

Denial of the request to inspect records of a former student, now deceased, including that student’s application for admission and scholastic transcripts, where no parental consent had been obtained, was proper under the Open Records Act, subdivisions (1)(i) and (j) of this section and subsection (2) of KRS 164.283, pertaining to the confidentiality of such records. OAG 85-140 .

Subdivision (1)(a) of this section is not limited to the prevention of inspection by the employer of the interview statements of his own employees; it precludes the public inspection of any employee interview statement obtained under the provisions of KRS 338.101 . OAG 85-142 .

Worknotes containing the compliance officer’s handdrawn diagrams of the worksite or work operations and his observations, opinions and preliminary drafts of possible citations in the occupational safety and health investigative file were exempt from public inspection by subdivision (1)(h) of this section. OAG 85-142 ; 85-146.

This section states that the public records or information, the disclosure of which is prohibited or restricted or otherwise made confidential by an enactment of the General Assembly, are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction. OAG 85-142 ; 85-146.

The term “question privately” in subdivision (1)(a) of KRS 338.101 makes any statement taken from an employee confidential and, therefore, exempt from mandatory public disclosure by subdivision (1)(j) of this section. OAG 85-142 ; 85-146; 86-3.

Denial of the request to inspect the complaints and other documents pertaining to those complaints involving a former licensed psychologist under the jurisdiction of the Board of Examiners of Psychologists can be upheld, since the Board never took any final action relative to those complaints as the person submitted his resignation from practice and tendered his license to practice before any final action could be taken concerning the complaints. OAG 85-147 .

Where the document in question constituted correspondence with a private individual and was not correspondence intended to give notice of final action of a public agency, denial of the request to inspect the document in question was proper pursuant to subdivision (1)(g) of this section. OAG 85-148 .

The public agency’s denial of the request to inspect materials relative to the components and uses of a compound called TF-1, matters which have been designated as trade secrets under the public agency’s rules and regulations, was proper pursuant to subdivisions (1)(b), (c) and (j) of this section and KRS 224.035 (renumbered as KRS 224.10-210 ). OAG 86-1 .

The school system’s denial of the request to inspect the actual examination administered by the school to the requesting party’s child, which examination will be given again by the school system, was proper pursuant to subdivisions (1)(e) and (i) of this section. OAG 86-2 .

The Labor Cabinet’s denial of the request to furnish the names of the employees from whom the Labor Cabinet obtained statements pursuant to subdivision (1)(a) of KRS 338.101 was proper under subdivision (1)(j) of this section and subdivision (1)(a) of KRS 338.101 . OAG 86-3 .

Denial of the request to inspect the reports pertaining to the alleged child abuse of an individual’s children was proper under subdivision (1)(j) of this section and subsection (9) of KRS 199.335 (now repealed), as the individual did not meet the requirements as to the persons or agencies with whom such reports may be shared. OAG 86-4 .

Denial of the request to inspect memoranda from an inspector to his supervisor concerning the closing of a landfill operation was proper under subdivisions (1)(g) and (h) of this section, as the documents constituted intraoffice memoranda containing preliminary notes and personal observations and did not represent notice of a final action or decision of the public agency. OAG 86-5 .

The records requested of the Revenue Cabinet, the names and addresses of coal companies which paid severance taxes in 1985, were not information having to do with the affairs of the coal companies’ business and thus were not privileged information under KRS 131.190 and subdivision (1)(j) of this section. OAG 86-11 .

Denial of the request to inspect the compliance officer’s worknotes and the three (3) employee interview statements in the occupational safety and health investigative file was proper under the Open Records Law pursuant to subdivisions (1)(g), (h), and (j) of this section, and KRS 338.101(1)(a). OAG 86-14 .

The school system acted in conformity with the Open Records Law in not providing copies of teacher evaluations because if the former teacher’s personnel file contained no evaluations of her performance as a teacher, a request to inspect evaluations was moot, and if the personnel file did contain such evaluations, the denial of the request to inspect those evaluations was supported by the exception to public inspection set forth in subdivision (1)(a) of this section. OAG 86-15 .

The public agency’s denial of the request to inspect the memorandum of the officer conducting a background review or investigation of the applicant for the public agency, which contained the investigating officer’s opinions and recommendations as well as the opinions and evaluations of the people he interviewed, was proper as such material may be excluded from public inspection pursuant to subdivisions (1)(a), (g) and (h) of this section. OAG 86-19 .

It would be an improper use of the privacy exemption of the Open Records Act to allow a public agency to refuse to release telephone numbers called by personnel of a public agency on public telephones merely by invoking the privacy exemption without any supporting explanation or reasons as to how the release of such telephone numbers will adversely affect the persons, group or businesses to whom the numbers belong. OAG 86-21 .

The public agency’s denial of the request to inspect and copy records pertaining to a professional standards internal affairs investigation of a former state trooper, consisting of preliminary drafts and notes, preliminary memoranda and reports containing the opinions, recommendations and observations of the investigating officers, a polygraph test and a report of the person administering the polygraph examination, was proper under the Open Records Act as such reports and documents may be excluded from public inspection pursuant to subdivisions (1)(a), (g) and (h) of this section. OAG 86-22 .

A public agency could adopt a policy involving records and documents pertaining to fire and ambulance runs whereby it prohibits, under subdivision (1)(a) of this section, public inspection of material relative to the names and addresses of victims, names and addresses of reporting parties and descriptions of personal losses, injuries and illnesses of persons receiving the fire and ambulance services. Furthermore, it would be permissible under subdivision (1)(h) of this section to preclude the public inspection of memoranda and reports concerning fire and ambulance runs if they are preliminary intra-office documents containing opinions or recommendations. OAG 86-25 .

The public agency’s denial of the request to inspect and copy those documents consisting of 29 pages of notes, intra-office memoranda and investigative reports, setting forth the opinions, observations and recommendations of various agency personnel, which did not represent the agency’s final decision on the disciplinary matter involving the agency’s former employee, was proper under the Open Records Act as such documents were excluded from public inspection pursuant to subdivisions (1)(g) and (h) of this section. OAG 86-26 .

The denial of inspection of the records in the occupational safety and health investigative files consisting of the compliance officer’s worknotes and the five (5) employee interview statements was proper under the Open Records Law pursuant to subdivisions (1)(g), (h) and (j) of this section and subdivision (1)(a) of KRS 338.101 . OAG 86-27 .

The public agency’s denial of the request to provide the natural parents or their representative with the names and address of the foster parents with whom the natural parents’ child had been placed is not a violation of the Open Records Act and can be justified under the privacy exemption to public inspection set forth in subdivision (1)(a) of this section. OAG 86-28 .

The public agency improperly denied the request to inspect and obtain copies of photographs of an accident which revealed a corpse, as the public agency cannot invoke the privacy exemption to public inspection to impose a uniform ban on all requests for photographs revealing corpses, since, generally, privacy is a personal right which dies with the deceased person. OAG 86-31 .

Neither KRS 224.035 (renumbered as KRS 224.10-210 ) nor 33 USCS § 1318(b) remove the limitations to public inspection set forth in subsection (1) of this section. OAG 86-32 .

The Natural Resources and Environmental Protection Cabinet’s denial of the request to inspect those documents consisting of preliminary notes (whether handwritten or typed), preliminary drafts of letters, reports and other documents, preliminary memoranda, including intra-office memoranda, and other documents not representing final action of the Cabinet, was proper as such materials may be excluded from public inspection pursuant to subdivisions (1)(g) and (h) of this section. OAG 86-32 .

Denial of inspection of the compliance officer’s worknotes and the employee interview statement was proper under the Open Records Law pursuant to subdivisions (1)(g), (h), and (j) of KRS 61.878 and subdivision (1)(a) of KRS 338.101 . OAG 86-37 .

The city’s denial of the request to inspect and copy those records of the city relative to salary figures of police department personnel for the fiscal years in question was improper and in violation of the Open Records Law. OAG 86-38 .

The public agency’s denial of the request to inspect and copy the police department’s operations manual is supported by the provisions of subdivision (1)(h) of this section as it is an intra-agency document setting forth policies and recommendations affecting the security and safety of the police officers, the public and the city. OAG 86-38 .

The public agency’s denial of the request to inspect records consisting of actual polygraph test results and the operator’s report of his conclusions relative to those tests was proper under the Open Records Law as such documents and reports may be excluded from public inspection pursuant to subdivisions (1)(a) and (h) of this section. OAG 86-39 .

The enactment of regulations by the Natural Resources and Environmental Protection Cabinet is a required part of the procedure pursuant to KRS 224.035 (renumbered as KRS 224.10-210 ) involving the designation of material as a trade secret; therefore, the Cabinet’s withholding of records from public inspection as trade secrets was improper where the Cabinet did not enact administrative regulations. OAG 86-41 .

Orders of the Treasurer, which are not the actual bills received by the school system but documents prepared by the treasurer primarily for internal use relative to the school board’s bill approval process, retain a preliminary characterization which would permit the school system to refuse public inspection of them, until such time as the school board formally considers such orders and adopts and incorporates as its course of action and final decision the terms, conditions and recommendations contained in those orders. OAG 86-42 .

A document which constitutes the complaints which initially spawned the Personnel Board’s investigation regarding an employee’s complaints may not be excluded from public inspection. OAG 86-46 .

Where, in her case before Personnel Board, an employee alleged sexual discrimination, records consisting of the memorandum from the Executive Director to the Investigating Officer, letters to the Investigating Officer from the employee, notes and memoranda from persons in the employee’s office, and the investigating officer’s report were excluded from public inspection under subdivisions (1)(g) and (h) of this section. OAG 86-46 .

The State Police’s denial of the request to inspect its one investigative file relative to a double homicide for which two (2) persons were charged was proper as one of those charged was appealing his conviction and material pertaining to the other was not severable from material pertaining to the appeal. OAG 86-47 .

The confidentiality of records, correspondence and reports of investigation pertaining to actual or claimed violations of the Insurance Code or prosecution or disciplinary action is not absolute but limited to that period of time during which the matter involving such documents is being investigated, prosecuted or adjudicated administratively; once the matter has been concluded relative to the agent or company involved, such records are subject to public inspection unless exempted by some other specific provision of the Insurance Code or the Open Records Act. OAG 86-52 .

The State Police had the authority to withhold from public inspection pursuant to subdivision (1)(h) of this section a document in the nature of an intraoffice memorandum, from employees to a supervisor setting forth their opinions of a fellow employee, when that memorandum has neither “spawned” an investigation nor served as the basis for any kind of personnel action involving the employee mentioned in the memorandum. OAG 86-53 .

The school superintendent’s temporary withholding from public inspection of the “Administrative Memorandum” was proper pursuant to subdivision (1)(h) of this section, so long as he furnished upon request material relative to the monthly financial report, as such a memorandum was not an agenda but a preliminary intrasystem memorandum containing the superintendent’s proposals and recommendations relative to items to be considered at meetings of the Board of Education. OAG 86-54 .

The school superintendent’s denial of the request to inspect teacher attendance records for a particular time period was improper under the Open Records Act as such documents are not protected by the privacy exemption under subdivision (1)(a) of this section because the teachers, as public employees, are only entitled to compensation for services rendered and the attendance sheets verify that they were present and on the job during any particular time period. OAG 86-55 .

The Cabinet for Human Resources acted within the provisions of the Open Records Act when it denied the request to inspect and copy records pertaining to the unemployment insurance claims of two (2) individuals as such records are excluded from public inspection pursuant to subsection (3) of KRS 341.190 and subdivision (1)(j) of this section. OAG 86-56 .

The Labor Cabinet’s refusal to permit the requesting party to inspect and copy two (2) employee interview statements obtained in connection with an occupational safety and health investigation of a fatal accident at a work site was proper under subdivision (1)(a) of KRS 338.101 and subdivision (1)(j) of this section. OAG 86-57 .

The Department for Environmental Protection acted properly in partially denying the request to inspect and copy various public records because those records consisted of intra office memoranda and reports of a preliminary nature containing notes and correspondence not indicating final agency action and setting forth the opinions, recommendations and observations of various personnel of the division, department and cabinet, since those kinds of documents are excluded from public inspection pursuant to subdivisions (1)(g) and (h) of this section. OAG 86-58 .

Denial of the request to inspect and copy an investigative file of the State Police relative to a particular person was proper under subdivision (1)(f) of this section as the matter pertained to an active case (a matter under investigation or in litigation). OAG 86-59 .

The public agency’s denial of the request to inspect and copy public documents pertaining to a complaint and the subsequent investigation of that complaint which consisted of names, addresses and telephone numbers of persons contacted and other material of a preliminary nature was proper as such records were excluded from public inspection by a public agency under the authority of subdivisions (1)(a), (g) and (h) of this section. OAG 86-60 .

A public agency may adopt a records and documents policy pertaining to the names of persons involved in a summer youth employment program for low income persons whereby it prohibits the release of the names of program applicants and participants under the authority of subdivision (1)(a) of this section. OAG 86-62 .

The public agency’s denial of the requests to inspect and copy monthly and annual reports submitted to the central state government from one of its agencies in the field and the requests to inspect various management reviews of the field agency, was proper under subdivisions (1)(g) and (h) of this section on the basis that the requested documents were preliminary, so long as the documents in question neither indicated final agency action nor involved the incorporation of a preliminary report into a final report of the agency, bureau or cabinet. OAG 86-64 .

The University of Louisville’s refusal to release the names of the donors and potential donors on whose behalf the University expended money in connection with University fund raising efforts was within the privacy exception to public inspection set forth in subdivision (1)(a) of this section, particularly since the University had already released the actual amounts of money spent in such situations. OAG 86-76 .

Denial of the request to inspect records in the custody of the coroner pertaining to the results in blood alcohol tests performed on three (3) deceased persons was proper as the investigation of the accident in question had not been completed and a determination had not yet been made as to whether legal action would be taken; once the investigation was completed and legal action was completed or a decision was made to take no legal action, the documents in question would be subject to public inspection unless exempted by another statutorily recognized exception to public inspection. OAG 86-77 .

Denial of the request to inspect and copy the report pertaining to an internal affairs investigation conducted by the state police was proper under the Open Records Act as such a document could be excluded from public inspection pursuant to subdivisions (1)(g) and (h) of this section. OAG 86-78 .

A public employee’s medical records may be excluded from public inspection pursuant to subdivision (1)(a) of this section. OAG 86-80 .

It is within the discretion of the police to decide whether a case is active, inactive or finally closed, but when a demand for inspection of records is refused the burden is on the police to justify the refusal of the inspection with specificity; therefore, where the missing person’s file had been maintained as an open case (active or inactive as opposed to closed) for almost eight years, the public agency’s mere reference to subdivision (1)(f) of this section and KRS 17.150 , with no additional explanation, did not meet the burden of proof imposed by law relative to a denial of inspection. OAG 86-80 .

The right to inspect public records under KRS 61.884 would not apply if the records consist of the materials set forth in subdivision (1)(f) of this section. OAG 86-81 .

Denial of the request to inspect the state police investigative report concerning the loss by fire of a house was proper as the investigation of the fire had not yet been completed and a determination had not yet been made as to whether legal action would be taken. OAG 86-81 .

The public agency properly denied the request to inspect and copy the written confession of a juvenile pursuant to the provisions of subdivision (1)(j) of this section and KRS 208.340 (now repealed) as such a document was not available for public scrutiny. OAG 86-85 .

The public agency’s denial of the request to inspect and copy documents consisting of weekly status reports from one state police officer to other officials of the state police summarizing what this particular section had done during a particular week, was proper under the Open Records Act as such documents may be excluded from public inspection as preliminary intra office memoranda under subdivisions (1)(g) and (h) of this section. OAG 87-1 .

Denial of the request to inspect the state police investigative report was proper where legal action in the form of a trial was tentatively scheduled; however, once the matter was litigated, the documents would be subject to public inspection unless exempted by another statutorily recognized exception to public inspection. OAG 87-2 .

Where the documents submitted as a bid to the city were not timely filed and not considered on the merits by the city, the documents were properly considered as correspondence with private individuals and excluded from public inspection pursuant to subdivision (1)(g) of this section. OAG 87-4 .

Denial of the request to inspect and copy the compliance officer’s worknotes and the employee interview statements was proper under the Open Records Law pursuant to subdivisions (1)(g), (h) and (j) of this section and subdivision (1)(a) of KRS 338.101 . OAG 87-9 .

Where the documents in the custody of the state police consisted of several intra-office memoranda of a preliminary nature, and the matter was an ongoing investigation and not a closed or completed case, the public agency’s decision to deny the request was supported by the provisions of subdivisions (1)(f), (g) and (h) of this section. OAG 87-10 .

Denial of the request to inspect the state police investigative report was proper as the investigation of the fatal accident had not yet been completed and a determination had not yet been made as to whether legal action would be taken. OAG 87-15 .

The city could deny a request to inspect records involved with an ongoing competitive negotiation process pursuant to subdivisions (1)(g) and (h) of this section; however, the city was required to make available for public inspection those records associated with the competitive negotiation process, which were not otherwise precluded from inspection, at the conclusion of the competitive negotiation process. OAG 87-21 .

Denial of the request to inspect and copy documents pertaining to an investigation of a teacher, consisting of preliminary recommendations and preliminary memoranda in which opinions were expressed, was proper as such documents did not set forth the final decision of the Board of Education and the Superintendent relative to the teacher in question. OAG 87-23 .

A note or memorandum pertaining to a telephone call between agency personnel and a public official, containing personal opinions and observations and which was not indicative of the Parole Board’s final decision concerning a particular parole consideration case, was a preliminary intra-office memorandum which was excluded from public inspection pursuant to subdivision (1)(h) of this section. OAG 87-24 .

Access to records in the occupational safety and health investigative file consisting of the compliance of officer’s preliminary worknotes was properly denied pursuant to subdivision (1)(h) of this section. OAG 87-25 .

Denial of the request to inspect and copy documents in the agency’s investigative file was proper under subdivision (1)(f) of this section, as the agency was engaged in an active and ongoing investigation, and the agency had not yet issued its tentative findings of fact which would officially conclude the investigation. OAG 87-26 .

Documents which constitute work product of an attorney and come within the attorney-client relationship may be excluded from public inspection; thus, correspondence between the legal divisions of a state and federal agency pertaining to an ongoing investigation of the state agency need not be made available for public inspection by the state agency, and correspondence between two (2) agencies pertaining to an investigation of a state agency need not be released by the state agency when it consists of preliminary documents containing the observations, opinions, and comments of various personnel of the two (2) agencies. OAG 87-28 .

Partial denial of the request to inspect and copy documents in the agency’s investigative file was proper under subdivision (1)(f) of this section, as the matter under investigation was to be assigned for a hearing by the Review Commission, and thus the administrative proceedings had not been completed. OAG 87-29 .

The public agency improperly denied the request to inspect and obtain copies of photographs of a particular police officer; the public agency could not invoke the invasion of personal privacy exemption to public inspection to impose a uniform ban on all requests for photographs of police officers taken in connection with their official positions and functions. OAG 87-31 .

The city properly responded to a request for copies of all complaints filed against a particular police officer, when it made available for public inspection only copies of the documents setting forth the city’s final action relative to the disciplinary case pertaining to the policeman and a copy of the letter of complaint which initially spawned the investigation involving that officer. OAG 87-32 .

Denial of the request to inspect certain records in the custody of the state police was proper as the investigations pertaining to the death and the fire had not yet been completed, and a determination had not yet been made as to whether legal action would be taken; once the investigation was completed, and legal action had been completed or a decision had been made to take no legal action, the documents would be subject to public inspection unless exempted by another statutorily recognized exception to public inspection. OAG 87-35 .

The State Penitentiary acted properly in denying the inmate’s request to inspect conflict sheets or special notice forms in his institutional file, as such documents, which did not represent final agency action, which contained opinions of various persons from various sources, and which might have affected the security of the institution and the safety of the inmates and staff, were withheld from public inspection pursuant to subdivisions (1)(a), (g) and (h) of this section. OAG 87-36 .

A county government may adopt a policy whereby it refuses to disclose the home addresses of governmental employees; therefore, the county government acted within the provisions of the Open Records Act when it denied the request to furnish the home addresses of its employees to the requesting party. OAG 87-37 .

The State Labor Cabinet acted in conformity with the Open Records Act in denying access to those records contained in its Division of Employment Standards and Mediation investigative file consisting of the investigator’s worknotes. OAG 87-43 .

The county board of education acted within the provisions of the Open Records Act when it refused to furnish the requesting party a copy of that portion of a tape recording of its meeting involving an executive or closed session, as such a tape recording constitutes a preliminary draft and preliminary notes of such a proceeding. OAG 87-44 .

The Division of Unemployment Insurance acted within the provisions of the Open Records Act in denying the request to inspect records pertaining to claims filed under the provisions of KRS Chapter 341 and material collected and compiled pursuant to the agency’s statutorily imposed duties, as such information is excluded from public inspection pursuant to subsection (3) of KRS 341.190 and subdivision (1)(j) of this section. OAG 87-49 .

The Labor Cabinet improperly denied the request to inspect documents submitted by the commonwealth employee and her attorney to the extent that the request pertained to preliminary handwritten notes concerning the employee which were prepared by her supervisor or boss and to the extent that the intra-office memoranda contained in the employee’s file pertained or related to that particular employee. OAG 87-50 .

Where the party requested copies of various documents concerning a proceeding with which he was involved, the documents were court records and, therefore, not subject to the terms and provisions of the Open Records Act. OAG 87-53 .

Denial of the request to inspect the Commercial and Industrial Property Record Card was supported by the provisions of subdivisions (1)(g) and (h) of this section and KRS 133.045 , as such a document was a preliminary working paper pertaining to the tax rolls as finally prepared by the Property Valuation Administrator. OAG 87-55 .

The school system improperly denied the applicant-teacher’s request for a copy of that portion of a tape containing the applicant-teacher’s answers to questions propounded by the school system, the questions having been asked as part of the school system’s teacher selection process. OAG 87-56 .

The county improperly denied the request to inspect county records relative to occupational license fees or taxes to obtain the names of the contractors or construction companies that are paying the county occupational tax; the county may compile the list containing such information or allow the requesting party to prepare his or her own list, with the excepted material separated from the nonexcepted material before he or she examines the records. OAG 87-57 .

The public agency acted properly in denying the request to inspect and copy documents pertaining to the obtaining of a permit to install a sewage disposal system, as such documents were not indicative of the agency’s final decision as to whether a permit would issue and were merely preliminary documents which constituted part of the process to obtain a permit at some future time. OAG 87-58 .

The public agency acted within the provisions of the Open Records Act when it refused to furnish a computerized listing of data to the requesting party, as the list was in the process of being prepared, and the computerized data system had not yet been completely prepared and installed. OAG 87-59 .

The tapes of the hearing concerning a teacher contract termination proceeding conducted pursuant to KRS 161.790 were available for public inspection under the Open Records Law, even though the tapes were in the possession of the reporter-transcriber rather than the Board of Education, as the teacher requested a public hearing and the matter had not reached the courts. OAG 87-62 .

If disciplinary reports involve disciplinary proceedings against a police officer, then the public is entitled to know the final action or decision of the city relative to those proceedings and is entitled to see the complaint which led to the initiation of such proceedings; however, if the disciplinary reports merely involve evaluations of the officer pursuant to which no action has been taken or opinions of others relative to his or her performance, such reports may be withheld from public inspection. OAG 87-64 .

If the departmental memoranda concerning a police office constituted preliminary intraoffice communications setting forth opinions, observations, and recommendations of various departmental personnel, and they did not represent the department’s final decision or determination on any matter, then they could be withheld from public inspection pursuant to subdivisions (1)(g) and (h) of this section. OAG 87-64 .

Denial of the request to inspect records in the custody of the state police was proper whereas the investigations pertaining to the deaths had not yet been completed, and a determination had not yet been made as to whether legal action would be taken; however, once the investigations were completed and legal action was completed or a decision was made to take no legal action, the documents would be subject to public inspection unless excluded by another statutorily recognized exception to public inspection. OAG 87-66 .

If the state university is a recipient of federal funds, it must conform to the provisions of the Family Educational Rights and Privacy Act of 1974 (the Buckley Amendment) to retain its eligibility for those funds and, therefore, the denial by the university of requests for all material involving and pertaining to students’ “education records” was proper and was supported by subdivision (1)(i) of this section and 20 USCS § 1232. OAG 87-67 .

Denial of the request to inspect and copy the occupational safety and health compliance officer’s worknotes and the twelve (12) employee interview statements was proper under subdivisions (1)(g), (h), and (j) of this section and subdivision (1)(a) of KRS 338.101 ; furthermore, a public agency is not mandatorily required to furnish copies of records to a requesting party by mail when the requesting party has not first inspected those records and then selected the items he or she wants copied, particularly when numerous or lengthy records and documents are involved. OAG 87-68 .

The State Police’s refusal to furnish information and records pertaining to disbursements by the state Police Fund, which identify the officer on whose behalf the expenditure was made and the law firm or attorney who received a particular payment, was supported by the privacy exception to public inspection set forth in subdivision (1)(a) of this section since the Legal Fund consisted of voluntary contributions by police personnel of their personal funds. OAG 87-70 .

The Open Records Act and the confidentiality provisions relative to adoption proceedings supported the decision of the Department for Social Services not to release the names of any persons appearing in adoption records, but the Open Records Act also requires the disclosure of statistical information not descriptive of any readily identifiable person, and such data relative to adoption and adoption proceedings should be made available by the public agency. OAG 87-71 .

On the basis of subdivision (1)(j) of this section and KRS 210.235 , and in the absence of a court order authorizing inspection, the State Correctional Psychiatric Center properly denied the newspaper’s request under the Open Records Act for copies of documents of a state mental facility pertaining to the types of tests given to patients and personnel administering and supervising such tests. OAG 87-75 .

A proper request for information pertaining to only the salaries of officers and employees of a public agency should be honored as that information is available in same format and within the range of material in which the public has a legitimate interest. OAG 87-76 .

The school system’s refusal to release for public inspection the resume of one of its employees was supported by the exception to public inspection set forth in subdivision (1)(a) of this section relating to protection against an unwarranted invasion of personal privacy. OAG 87-77 .

Denial of inspection of the compliance officer’s work notes and the two (2) employee interview statements was proper under subdivisions (1)(g), (h), and (j) of this section and subdivision (1)(a) of KRS 338.101 . OAG 87-79 .

The Department for Social Services acted properly when it refused to make available for inspection to the alleged perpetrator of child abuse the names of informants and those portions of the statements of a judge and an informant wherein those parties set forth personal opinions, observations, and recommendations not related to the child abuse investigation and the findings resulting from that investigation. OAG 87-82 .

The State Police’s refusal to respond to a request for information, as opposed to a request to inspect and copy a specifically described document, was not a violation of the Open Records Act, while its refusal to furnish documents concerning preliminary data pertaining to a toxicology analysis report was supported by exceptions to public inspection dealing with preliminary drafts, notes, correspondence, recommendations and memoranda in which opinions are expressed, and refusal to furnish records pertaining to an employee’s training, education, and experience was supported by the exception to public inspection protecting against an unwarranted invasion of personal privacy. OAG 87-84 .

The Department for Administration’s decision not to release those documents consisting of consolidated financial statements, project narratives and summary experience charts, personnel resumes, the work plan, and pricing schedules was justified by the exceptions to public inspection set forth in subdivisions (1)(a) and (b) of this section. OAG 88-1 .

A public agency cannot invoke the privacy exemption to public inspection to impose a general ban on all public records and documents pertaining to a deceased person since privacy is generally a personal right which dies with the deceased person. OAG 88-2 .

The public agency’s refusal to furnish records and documents to the requesting party relative to an investigation of an alleged instance of child abuse and neglect was supported by the provisions of subdivision (1)(j) of this section and subsection (4) of KRS 620.050 . OAG 88-4 .

The Labor Cabinet’s denial of the request to inspect the compliance officer’s work notes and the three (3) employee interview statements was justified under the Open Records Law pursuant to subdivisions (1)(g), (h), and (j) of this section and subdivision (1)(a) of KRS 338.101 . OAG 88-9 .

The Property Valuation Administrator’s response to the Open Records request of the city, denying access to assessment records covering much of the property in the city, was proper and supported by the provisions of subdivision (1)(j) of this section and KRS 132.285 . OAG 88-11 .

Denial of the request to inspect the property tax rolls was proper under subdivision (1)(j) of this section and subsection (2) of KRS 133.047 if the information obtained from the inspection was to be used for commercial or business purposes; however, the request could not be denied solely because it was not made during the specific time period set forth in subsection (1) of KRS 133.045 . OAG 88-12 .

The public agency’s response to a request for materials pertaining to payroll and financial data concerning the officers and employees of a school district was sufficient and proper as the public agency furnished the requesting party with a list containing the annual salaries and hourly wage figures of those officers and employees. OAG 88-13 .

The Corrections Cabinet, Department of Community Services and Facilities, properly denied, pursuant to subdivision (1)(j) of this section and KRS 439.510 , the request to inspect documents prepared and submitted by a parole officer. OAG 88-14 .

The decision of the state board of elections to deny the request for copies of precinct lists and mailing labels in connection with mailing the letter in question was supported by the provisions of subsection (1)(j) of this section and subdivision (3)(h) of KRS 117.025 . OAG 88-16 .

The refusal of the State Police to make available copies of documents setting forth the names of persons not connected with a police investigation was supported by the exceptions to public inspection set forth in subdivision (1)(a) of this section and subdivision (2)(b) of KRS 17.150 . OAG 88-18 .

Although the city and sewer commission’s initial response to the requesting party should have followed the requirements of KRS 61.880(1) and a copy of the letter of denial should have been sent to the attorney general pursuant to KRS 61.880(2), denial of the request to inspect the draft audit prepared by the Environmental Protection Agency and sent to the city was supported by the exceptions to inspection set forth in KRS 61.878(1)(g), (h) and (i) as the item in question was a preliminary document containing opinions and observations. OAG 88-24 .

The privacy exception to public inspection does not apply to the final disciplinary action taken against a public employee, and the final action taken by a public agency against a public employee is a matter of public record. OAG 88-25 .

The State Police’s denial of the request to inspect the photographs of the automobile accident justified pursuant to KRS 61.878(1)(f) and (j) and KRS 17.150(2) as the investigation pertaining to the accident had not yet been completed and a determination had not yet been made as to whether legal action would be taken. OAG 88-27 .

Denial of the request to inspect the records contained in a case file involving matters which were currently being litigated was proper until the litigation had been completed; at which time the documents in question would be subject to public inspection unless excluded by other statutorily recognized exceptions to public inspection. OAG 88-31 .

A tape recording made during a meeting by the public agency to assist in the preparation of the official minutes could be excluded from public inspection as a preliminary document. OAG 88-32 .

Documents which constitute the work product of an attorney and those which come within the attorney-client relationship may be excluded from public inspection. OAG 88-32 .

The public agency properly excluded from public inspection those records and documents consisting of preliminary materials which set forth opinions, observations, and recommendations of various board members and which did not represent the public agency’s final decision. OAG 88-32 .

Where an administrative proceeding had not yet been concluded, and the tentative settlement had not yet been approved, the Labor Cabinet could withhold all documents and records pertaining to the investigation which was the subject of that administrative proceeding. OAG 88-36 .

Worknotes containing a compliance officer’s hand-drawn diagrams of the worksite or work operations and his observations, opinions, and preliminary drafts of possible citations can be exempt from public inspection; therefore, the public agency’s denial of a request to inspect the compliance officer’s worknotes in connection with an occupational safety and health investigation was supported by those exceptions to public inspection set forth in this section. OAG 88-36 .

Denial of the request to inspect documents consisting of information, written statements, recordings, reports, and summaries of information pertaining to an investigation by school authorities of an incident involving students on school property was supported by exceptions to public inspection set forth in subdivisions (1)(g), (h) and (i) of this section and the federal Family Education and Privacy Rights Act. OAG 88-38 .

Since the federal Family Educational and Privacy Rights Act sets forth provisions relative to the prohibition against the release of records pertaining to students in the absence of written consent of the parent or an appropriate court order, such records may be excluded from public inspection under subsection (1)(e) of this section. OAG 88-38 .

The city’s policy, relative to reports of ambulance runs by the public ambulance service, whereby it prohibited, pursuant to subdivision (1)(a) of this section, public inspection of records relating to particular persons transported and specific facts pertaining to those persons and their injuries, was justified. OAG 88-42 .

While there is no specific provision in the Open Records Act requiring that information pertaining to ambulance reports be kept confidential, there is a provision that a public agency need not permit the inspection of documents if to do so would involve the unwarranted invasion of a person’s privacy. OAG 88-42 .

A settlement agreement of an action against a public agency was subject to inspection, because a settlement had been reached, and there was no pending litigation; the privacy exception was not applicable because public funds were expended to settle the complaint, and the document itself was not within the attorney-client privilege. OAG 88-43 .

Generally, the business records of a private firm are not subject to public inspection. OAG 88-44 .

The public agency’s denial of a request to inspect documents which were not in its possession and which constituted records of a private organization was justified; furthermore, the public agency’s refusal to furnish documents which had not been inspected at the normal depository for such materials was justified even though the requesting party was an inmate who was not able to inspect the records because of his confinement. OAG 88-44 .

A university’s copy of a letter from the National Collegiate Athletic Association (NCAA) addressed to counsel representing the university’s assistant coach was a public record subject to public inspection, and the exceptions to inspection were not applicable because the document in question was not correspondence between the university and a private party, and it was not a document prepared by anyone connected with the university. OAG 88-47 .

While the school system may refuse to disclose the home addresses of students, it may not withhold the names of students attending the school. A list of names should be furnished, if currently available, or the school system should prepare such a list or let the requesting party prepare his or her own list from school system records. OAG 88-50 .

A personnel folder of a public employee, by its very nature, contains a mixture of documents which are subject to inspection and which may be excluded from public inspection; rather than a “shotgun” approach or engaging in a sort of fishing expedition, a request to inspect personnel documents should be specific as to the kinds of records and documents which are the subject of the request to inspect. OAG 88-53 .

A letter from the vice chancellor of a university to a member of the athletic department staff, which contained his preliminary impressions, observations, and opinions about various aspects of the operation of the basketball camp, did not represent the university’s final decision or determination relative to the matter and could properly be withheld from public inspection. OAG 88-57 .

A local police department may withhold from public inspection those copies of the uniform citations which require court disposition until such time as the legal proceedings involving those citations have been concluded or resolved. OAG 88-58 (supplemented by OAG 88-64 ).

Drafts generated in connection with the preparation by private persons and firms of the remedial investigation/feasibility study which was in progress, but incomplete, for the purpose of determining certain environmental problems and possible remedies, could be withheld from public inspection. OAG 88-60 .

The public agency properly requested the person seeking to inspect records to furnish additional information in order that specific records might be located. OAG 88-60 .

Where the private college did not receive any grants or loans from the Higher Education Assistance Authority, there was no evidence that the college was a “public agency” within the meaning of subdivision (1) of KRS 61.870 , and the college properly denied the request to inspect its records and documents as it was not subject to the terms and provisions of the Open Records Act. OAG 88-61 .

Where no explanation was given as to why disclosure would constitute an invasion of privacy, the exceptions to public inspection set forth in subdivisions (1)(a) and (c) of this section were not applicable, and the public agencies incorrectly withheld from public inspection the list of names of persons who stayed at various hotels at state expense, in connection with the 1988 Kentucky Derby activities, and the list of names of persons who attended pre and post Kentucky Derby parties at the Governor’s Mansion. OAG 88-62 .

The State Police properly withheld from public inspection the arrest records of a particular person which were part of the state police’s centralized criminal history records and which had been collected and compiled from materials supplied by local criminal justice agencies. OAG 88-63 .

“Blanket” requests to law enforcement agencies on a “standing” basis are with few exceptions an abuse of the Open Records Act. OAG 88-64 (supplementing OAG 88-58 ).

The use of subsection (2) of KRS 17.150 by a law enforcement agency in denying public access to a uniform citation is a practice to be avoided. OAG 88-64 (supplementing OAG 88-58 ).

Work notes containing the compliance officer’s hand-drawn diagrams of the worksite or work operations and his observations, opinions, and preliminary drafts of possible citations from an occupational safety and health investigation were exempt from public inspection. OAG 88-67 .

The Division of Unemployment Insurance improperly denied a request to inspect records pertaining to the names of specific persons who had filed claims for benefits under the provisions of the unemployment insurance program. OAG 88-68 .

Equal Employment Opportunity Commission regulations do not prohibit that agency from disclosing information to the parties involved; thus, subdivision (1)(c)(2) of this section would not apply to permit the Human Rights Commission to deny disclosure of its investigative file. OAG 88-69 .

Where a decision had been made by the Human Rights Commission to proceed to an administrative hearing, the exemption of subdivision (1)(f) (now (1)(h)) of this section, even if applicable to the Commission’s investigative file relating to an age discrimination allegation, would end. OAG 88-69 .

Inspection of a report of the board of ethics of the General Assembly, on the basis of which the board had voted to file a formal complaint against a representative, could be properly denied pursuant to subdivision (1)(j) (now (1)(l)) of this section and subdivision (9) of KRS 6.820 (now repealed), until such time as the report was disclosed at a public hearing, or divulged by the board upon a finding of good cause for releasing it. OAG 88-80 .

Since the actual complaint the board of ethics of the General Assembly voted to file against a representative had not yet been completed, its incomplete form would be termed a preliminary draft, and was thus excluded from inspection except as provided in subsection (1) of this section. OAG 88-80 .

Where the secretary of the Cabinet for Economic Development prepared lists of persons he recommended for appointment to the Depressed Counties Economic Development Authority which he subsequently forwarded to the Governor’s Office, the names on these lists were merely his recommendations and involved his personal opinions, and such documents were thus of a preliminary nature and, as an internal memorandum from a subordinate to a supervisor, expressed recommendations and opinions; therefore, the exceptions of subdivisions (1)(g) and (h) (now (1)(i) and (j)) of this section supported the denial of the request to inspect such documents. OAG 88-85 .

The Labor Cabinet’s denial of the request to inspect four (4) employee interview statements, in an occupational safety and health file regarding an investigation of two (2) deaths, was justified pursuant to subdivision (1)(j) of this section of the Open Records Act and subdivision (1)(a) of KRS 338.101 . OAG 89-10 .

“Records … compiled in the process of detecting and investigating statutory or regulatory violations” as used in subdivision (1)(f) (now (1)(h)) of this section means those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process; such phraseology does not encompass electronic recordings of general radio traffic or a police agency, not made uniquely in a specific detection or investigation process, which were “segregated” in connection with an investigation. OAG 89-11 .

Exemption from public inspection set forth in subdivision (1)(f) (now (1)(h)) of this section applies until the administrative or judicial action has been completed or until it has been decided to take no such action; however, documents are subject to public inspection upon completion of the administrative or judicial action or the making of the decision not to take such action unless the documents may be exempted from inspection pursuant to another statutorily recognized exception to inspection. OAG 89-13 .

If a “commendation” represents a final action by a university, then such a document should be made available for inspection; if a “commendation” is a preliminary action or part of an evaluative process or a recommendation made and passed along the chain of command, then it may be excluded from public inspection. OAG 89-17 .

It is reasonable to assume that applications, resumes and vitae contain information of a personal nature, similar to an employee’s personnel file; the custodian of such requested documents could sanitize them of all information of a personal nature. OAG 89-17 .

The language of subdivision (1)(f) of this section speaks to particular records, not to an entire class of records, such as police dispatch logs. OAG 89-20 .

Denial of a request to view police radio transmission logs based upon KRS 61.872(5), regarding an unreasonable burden in producing voluminous records, is not substantiated where the records sought are of an identified, limited class, typically maintained by month or year, so that they may be made readily available by providing appropriate binders or boxes. OAG 89-20 .

A preliminary internal memorandum setting forth the opinions, observations and recommendations of a specific employee of the Corrections Cabinet did not represent a final investigative report of the Penitentiary or of the Corrections Cabinet nor did it represent any final action or decision of either of them as to the handling of the matter which had not been presented to the Board of Claims for investigation and disposition; as a preliminary document, the report could be withheld from public inspection. OAG 89-24 .

Copies of documents, which were sent to the Department of Workers’ Claims by the Kentucky Associated General Contractors Self-Insurers’ Fund as required by KRS 342.350 and 803 KAR 25:025 which included a copy of a certified audit that was filed by the Associated General Contractors Self-Insurers’ Fund and other pertinent financial information filed by the self-insurers’ fund, were not exempt from inspection pursuant to subdivision (1)(b) of this section; this information should have been available for public inspection in order that the potential insureds could have satisfied themselves about the financial stability and reliability of the insurance company. OAG 89-26 .

Inspection of Visa charges must be permitted as they do not fall within any of the exceptions set forth in this section; a portion of the Visa Card account number could be masked to prevent improper use of the card number. OAG 89-27 .

Bids, quotations, or proposals, submitted by or in the name of business firms, not private individuals, in soliciting state business cannot be considered as “correspondence with private individuals,” within the meaning of subdivision (1)(g) (now (1)(i)) of this section; inspection of these records, when requested after selection of a vendor, must be permitted. OAG 89-31 .

A report by the Environmental Protection Agency specifically termed a “draft report” was clearly a preliminary draft and did not lose that character by having been submitted to a state agency for review and comments. OAG 89-34 .

Checks drawn upon a public account, and indicating disbursement of an amount of money therefrom, cannot be said to be public records “containing information of a personal nature,” such that their public disclosure would constitute an “unwarranted invasion of personal privacy,” so that denial of inspection could be properly based upon subdivision (1)(a) of this section; a check drawn upon a public account simply does not contain information of a personal nature. OAG 89-35 .

Homeowners not having given releases, the possibility of litigation, or the lack of completion of work, are not reasons within the statutory exceptions set forth in this section, for denying inspection of public records regarding improvement of private property with federal grant moneys. OAG 89-36 .

Write-up orders and inspectors’ reports regarding building improvements funded with federal funds, are either orders for work to be done or statements of objective observations concerning work that has been done. Such orders or reports are not “preliminary recommendations or preliminary memoranda” within the meaning of subdivision (1)(h) (now (1)(j)) of this section. Accordingly, inspection of such documents may not be denied on such ground. OAG 89-36 .

Subdivision (1)(a) of this section is a proper basis for denial of inspection of records pertaining to student disciplinary proceedings. OAG 89-38 .

Internal notes of government personnel who inspected certain real property in regard to pollution from substances at that location were recorded opinions, observations and recommendations of government personnel. Consequently, inspection of them was properly denied pursuant to subdivision (1)(h) of this section. OAG 89-39 .

The records exempted from public inspection by subdivision (1)(d) of this section are so exempted until “… all of the property has been acquired …” through completed condemnation proceedings or completed negotiations and purchase, with final consideration having been determined and deeds of conveyance having been delivered; such records are of course subject to inspection upon order of a court of competent jurisdiction. OAG 89-42 .

End prices submitted to a public agency for major elements of a procurement are not trade secrets. Accordingly, bids or proposals containing such information must be made available for inspection when all bids have been rejected or a contract has been awarded. OAG 89-43 .

For reasons expressed in OAG 89-43 , records concerning end prices bid for certain major facets of a public procurement cannot be considered trade secrets. Accordingly, inspection of records containing such information must be permitted once all bids have been rejected or a contract has been awarded. OAG 89-44 .

A request that addresses be provided to correspond with names and social security numbers presented by requester is not one properly founded upon Open Records provisions. In any event, the Revenue Cabinet had no compiled record corresponding to the request, and is banned by KRS 131.190 from divulging address information from tax returns, from which information conforming to request would have to have been extracted, thus its denial of address information was proper. OAG 89-45 .

Blanket denial of inspection of property assessment and property record cards may not be properly based upon subdivisions (1)(a) and (1)(b) of this section; they must be made available for inspection following masking of confidential information contained thereon. OAG 89-50 .

Property assessment and property record cards are not records confidentially disclosed to an agency; they are cards upon which property valuation administrators and their deputies record factual information concerning location, ownership, description, and valuation of property. OAG 89-50 .

Even if the two (2) conditions contained in subdivision (1)(a) of this section are present, if a record contains some information that meets those conditions, and other information that does not, subsection (4) of this section requires, regarding material not excepted from inspection under this section, that the public agency shall separate the excepted material and make the nonexcepted material available for examination. OAG 89-50 .

Information regarding the location of real property, its description, ownership history through time, and valuation history, as well as information concerning the description and valuation of tangible personal property such as vehicles, watercraft, and mobile homes, are the principal types of information recorded upon property assessment and property record cards, and such information, in being factual information about property, rather than a person, is not of a personal nature; however, information concerning stock holdings, and intangibles, and their valuation apart from the gross intangible assessment, may be deemed an unwarranted invasion of personal privacy, to be disclosed only upon order of the court. OAG 89-50 .

The tax rolls, pursuant to KRS 133.047(1), are an open public record for five (5) years, and if information is subject to routine public scrutiny under one statute, that same information, in general, cannot be properly termed confidential pursuant to subdivision (1)(a) of this section. OAG 89-50 .

“Affairs of any person” and “affairs of the person’s business,” as used in KRS 131.190(1), refer to matters associated with a person that are recognized as being private, and not subject to routine public perusal; stock holdings and other intangibles, and business inventories fall in the category of information regarding the “affairs of a person or their business,” and such information, in accordance with KRS 131.190(1) and subdivision (1)(j), may not be divulged by a property valuation administrator or employee thereof. OAG 89-50 .

Information properly excepted from inspection pursuant to this section, or KRS 131.190 , that is contained on property assessment and property record cards, must be separated from nonexcepted information, as by masking. OAG 89-50 .

Where a person makes, to the Kentucky Labor Cabinet, a complaint that resulted in an OSHA inspection, as opposed to an employee making a statement in response to questioning during an OSHA inspection, KRS 338.101(1)(a) and subdivision (1)(j) of this section do not properly apply in support of a denial of the target employer’s request for information concerning the source of the complaint. OAG 89-52 .

Where the Labor Cabinet has determined to take no further action with regard to a particular complaint, the public record concerning that matter may be opened for inspection, although, pursuant to subdivision (1)(a) of this section, unless there exists a court order to the contrary, the source of the complaint is exempt from public inspection. OAG 89-52 .

The presence of litigation should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly; no exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process. OAG 89-53 .

Open Records provisions are not a substitute for requests under discovery procedures associated with civil actions as, where records may subsequently be offered as evidence in court, problems in establishing their integrity may be more difficult for those obtained under Open Records provisions, as compared with records obtained under discovery procedures. OAG 89-53 .

A compliance officer’s preliminary worknotes are exempt from release by subdivisions (1)(g) and (h) of this section. OAG 89-64 .

An employee interview statement is exempt from release by KRS 338.101(1) and subdivision (1)(j) of this section. OAG 89-64 .

Open Records provisions should not be used as a substitute for discovery under Civil Rules where litigation is involved. OAG 89-65 .

Police dispatch logs are subject to inspection without a court order, however, in some instances, particular entries could be properly denied pursuant to subdivision (1)(f) of this section. OAG 89-68 .

If a letter from the Director of the Division of Air Quality for the Natural Resources and Environmental Protection Cabinet is truly preliminary, then even though it is contained within agency records, it is excluded under this section. OAG 89-69 .

Where the Natural Resources and Environmental Protection Cabinet did adopt what was originally a preliminary legal memorandum as part of its final action, the legal memorandum was not preliminary as meant by subdivisions (1)(g) and (1)(h) of this section, and was therefore open for inspection. OAG 89-69 .

If an informant chooses to accompany an inspector on an inspection made pursuant to informant’s information, the informant’s identity is no longer protected, but is not required to be disclosed. OAG 89-73 .

Although under subdivision (1)(f) of this section, the identity of informants not otherwise known are disclosable after an enforcement action is completed or a decision is made to take no action, this subdivision of this section does not apply to the question of disclosing the identity of an informant who has requested confidentiality for two (2) reasons; first, the concern of this subdivision is with disclosure of information that would harm the agency, its thrust being not to guard the informant, but the agency; second, this subdivision speaks only of informants not otherwise known and this is a less select group than those who take the affirmative step of requesting confidentiality. OAG 89-73 .

The Natural Resources and Environmental Protection Cabinet may refuse to disclose any citizens’ complaints only until it decides that no action will be taken, or until the action it takes is completed, and only if an earlier disclosure would harm the agency in either of the two (2) ways set forth in subdivision (1)(f) of this section. OAG 89-73 .

The terms and provisions of the Open Records Act were violated where a city refused to make available for public inspection those complaints which spawned investigations or resulted in hearings involving the named chief of the fire department. OAG 89-74 .

“Subject enterprise” as it is used in subdivision (1)(b) of this section refers to motor carriers seeking to be granted a license or certificate to do business in Kentucky; it does not refer to third parties such as insurance companies which may provide insurance coverage for motor carriers. OAG 89-75 .

Uniform police traffic accident reports prepared by law enforcement officers pursuant to KRS 189.635 are not confidential and are open records under the Open Records Law. OAG 89-76 .

Social security numbers are exempt from public inspection under the provisions of subdivision (1)(a) of this section. OAG 89-76 .

The names of parties and witnesses regarding an automobile accident are not excluded from public inspection and the fact that some information contained in police accident reports may be exempted from public inspection does not relieve the public agency of providing the other information which is not exempted from public inspection. OAG 89-76 .

The task of separating excepted material from nonexcepted material on voluminous numbers of police accident reports is admittedly burdensome, however, the decision to do so rests within the sound discretion of the public agency because the exemptions contained within subsection (1) of this section are permissive, not mandatory; therefore, a police department may make available all information contained on uniform police traffic accident reports or may expunge that information which is exempt from inspection, but may not deny inspection of the entire report. OAG 89-76 .

A policy whereby a police department only provides copies of individual police reports to attorneys who advise that they represent one of the parties involved or a witness to the accident and who can identify the report by name of party and date or approximate date, or to individuals who are involved in an accident or witnesses thereto reflects a practice of providing public records to certain persons and denying the same records to other persons; this policy is in violation of the Open Records Law as the exemptions of subsection (1) of this section may be invoked according to the nature of the record, but not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. OAG 89-76 .

While information derived from the property tax rolls may not be used for commercial or business purposes unrelated to property valuation or assessment, such ban does not apply to information obtained from other types of records of the Property Valuation Administrator’s Office. OAG 89-77 .

Requests for information, as distinguished from records, and requests that particular methods of inquiry into public records be provided, are outside the scope of Open Records provisions. OAG 89-77 .

Where a property valuation administrator denied inspection of the tax rolls because the request involved the perceived use of information obtained or to be obtained from such rolls for commercial purposes, in contravention of KRS 133.047(2), the proper course was to make such denial in writing, citing subdivision (1)(j) of this section, and KRS 133.047(2); a brief explanation of how subdivision (1)(j) of this section applied to denying inspection of the tax rolls should have been set forth in the written denial, and a copy of the denial should have been promptly forwarded to the Office of the Attorney General. OAG 89-77 .

A public agency cannot deny a request to inspect records because information from those documents may or will be used in some future legal action, although, if a legal action is in process when the request to inspect records is made, the public agency may be able to invoke the exception to inspection set forth in subdivision (1)(f) of this section; otherwise, a decision not to make records available for inspection because of the possibility or even the probability of a legal action at some future time is a violation of the Open Records Act. OAG 89-79 .

Where a public agency invoked the exception found in subdivision (1)(f) of this section until its administrative or adjudicative process was completed, such basis was a proper one while enforcement action was still under consideration and final action had not been taken. OAG 89-80 .

While city workers do not have to compile or explain records, they must make a good faith effort to make available for inspection, records related to fiscal assets, receipts, and expenditures, of the city, where there is a reasonable description of records sought. OAG 89-81 .

Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation and production of specific information; Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies. OAG 89-81 .

Open Records provisions do not provide for, and agency workers are not required to provide under them, instruction in understanding the meaning or import of information shown upon records produced. OAG 89-81 .

An attorney, under the facts of this case, was considered a “private individual” within the meaning of subdivision (1)(g) of this section. OAG 89-86 .

The fact that individuals regarding whom records were sought had been the subject of wide publicity, and the fact that there had been substantial public concern regarding the events giving rise to the records sought, did not overwhelm subdivision (1)(g) of this section. OAG 89-86 .

Agencies should have uniform policies regarding inspection of their records; if one person, in the absence of a court order, is allowed to inspect a record, all should be allowed to inspect. OAG 89-86 .

Subdivision (1)(f) of this section supersedes the more ambiguous language in subdivisions (1)(a), (g), and (h) with regard to law enforcement actions. OAG 89-87 .

Subdivisions (1)(g) and (h) of this section have not been generally interpreted as being explicitly concerned with law enforcement actions, because of the existence of a quite explicit section on this point, namely subdivision (1)(f). OAG 89-87 .

There may be no general denial of inspection of personnel records; in particular, inspection of employment applications and resumes, and records of educational qualifications — meaning educational levels obtained — insofar as reasonably related to qualification for public employment, must be permitted, where, under the facts of a given request to inspect, such review does not constitute an unwarranted invasion of personal privacy; information to be maintained as confidential may be masked or separated from information to be released, and employee evaluations, involving opinions, are not subject to inspection. OAG 89-90 .

Under Open Records provisions there may not be a general or blanket denial of inspection of records contained in the personnel file of a public employee, or of a resume of application for employment, and to the extent that OAG 84-19 and OAG 87-77 uphold a general denial of inspection of the resume of a public employee, and OAG 79-275 upholds general denial of information on an employment application, they are overruled. OAG 89-90 .

When the media attempts to carry out an evaluation regarding the quality of schools throughout the state, there is no unwarranted invasion of personal privacy in examining relevant prior work experience and educational qualifications of employees or former employees, and the same view applies to educational qualifications or levels attained by public employees. OAG 89-90 .

A schoolteacher’s college transcript is not subject to inspection, where a school board has denied inspection pursuant to subdivision (1)(a) of this section. OAG 89-90 .

Tape recordings of board of education meetings were public records within the meaning of KRS 61.870(2), although inspection thereof could be denied on the ground that the recordings were preliminary drafts regarding preparation of the official minutes, as inspection of preliminary drafts may be denied pursuant to subdivision (1)(g) of this section. OAG 89-93 .

The City of Louisville failed to act consistent with Open Records provisions in making a blanket denial of a request to inspect a “performance appraisal” and related documents regarding the Louisville Police Chief, by (1) failing to provide a brief explanation of how statutory exceptions (to the general rule that inspection of public records is permitted) applied to records withheld from inspection, (2) by denying inspection of a record on the ground it was a “preliminary draft” when it was not of such character, and (3) by denying inspection of records on the ground they constituted “preliminary recommendations,” when there was no indication they were other than final unto themselves, and no subsequent product was generated that the records could be considered preliminary to. OAG 90-1 .

A contractor to a governmental entity must accept certain necessary consequences of involvement in public affairs. Such a contractor loses any character of a “private individual” as such phrase is used in subdivision (1) (g) of this section, that the contractor might be said to have, in connection with correspondence regarding administration or issues associated with administration of a governmental or public contract. OAG 90-7 .

Letter which, although signed by an individual human being, was a letter of a corporate contractor under a public contract involving administration of that contract could not be properly characterized as “correspondence with a private individual” within the meaning of subdivision (1) (g) of this section. OAG 90-7 .

Blanket denial by the division of waste management of inspection of a computer printout which contained some information subject to public inspection, and some which could be properly withheld as “notes,” was not consistent with Open Records provisions. Pursuant to subsection (4) of this section, if a public record contains some material which is excepted from inspection pursuant to this section, and some material which is not, the public agency is to separate the excepted material, and make nonexcepted material available for inspection. OAG 90-10 .

The cabinet for human resources failed to act consistent with Open Records provisions, by not explaining, in its initial response supplying copies of records, the “blanking out” of names of complainants and certain interviewees, upon copies of forms regarding complaints about possibly unlicensed day care facilities. Such deletion (blanking out) was nonetheless supported by subdivision (1) (a) of this section, which permits an agency to withhold from inspection, records of a personal nature, where disclosure thereof would constitute an unwarranted invasion of personal privacy. OAG 90-12 .

Where the return of survey forms completed by businesses affected by the Standiford field expansion plan at the request of the City of Louisville economic development office was purely voluntary, the information contained therein fell with the exemptions provided by subdivisions (1) (a) and (1) (g) of this section. OAG 90-13 .

The word “person” within the meaning of subdivision (1) (a) of this section includes all of the definitions provided by KRS 446.010(26), which includes “bodies politic and corporate, societies, communities, the public generally, individuals, partnerships and joint stock companies.” OAG 90-13 .

Exemptions involving information of a personal nature, contents of real estate appraisals or preliminary drafts, and notes or correspondence with private individuals, were not applicable to request that city permit access to documents containing the names of all property owners who had received offers for their property from the City of Louisville and Jefferson County in connection with the airport expansion project. OAG 90-15 .

In denying inspection of a particular record the agency shall advise the requesting party of the particular exception to public inspection it is relying upon and how it applies to the specific document and information being withheld. OAG 90-15 .

Inspection of an investigating officer’s memorandum, expressing as it does the investigating officer’s opinion regarding the matter involved, and in view of its preliminary character, may be properly denied pursuant to subdivision (1)(h) of this section. A denial on such basis should be accompanied by a brief explanation of how the specific exception cited applies to the particular record withheld from inspection. OAG 90-16 .

Requester should be allowed to inspect, should he wish to do so, materials he apparently furnished to the State Police in connection with an inquiry into allegations made by the requester and published in a letter to the editor, even though he may already have copies of such material, unless inspection of particular records is denied pursuant to a specific exception from among those set forth in this section, and the application of such exception is properly explained in keeping with subsection (1) of this section. Moreover, inspection of photographs contained in the file should be permitted, unless inspection is denied pursuant to a specific exception and the application of such exception is properly explained. OAG 90-16 .

Where a request was for information, rather than to inspect records, and thus did not technically conform to Open Records provisions, the proper response was for the recipient of such request to promptly respond in writing, explaining that while Open Records provisions did not require a public agency to compile information, records that might yield the information sought would be made available for inspection during normal office hours; furthermore, parts of records withheld, such as the home address of an employee, or a social security number, should have been explained in a manner consistent with KRS 61.880 . OAG 90-19 .

Records disclosing salaries of public employees are subject to inspection by the public, however, since such records may contain personal information within the meaning of subdivision (1)(a) of this section (e.g., home address, social security number, etc.); such information may be masked or covered. OAG 90-19 .

Salary and travel expense information is subject to public scrutiny; while the county clerk is not required to compile information, records that might reveal information sought, where reasonably identified, must be made available for inspection, subject to exceptions set forth in this section. OAG 90-19 .

A state university acted consistent with Open Records provisions in denying inspection of records where the majority of the several hundred records sought contained “education records,” as defined, and effectively made confidential by, the federal Buckley Amendment, such that virtually all of the records requested would require redaction or masking to remove information personally identifiable to a student; an unreasonable burden in view of the scope of the request(s), if the records were to be made available for inspection without jeopardizing federal aid. OAG 90-24 .

A state university failed to act consistently with Open Records provisions in denying a request to inspect five (5) particular public safety dispatcher log cards, where the request for those specified items was particular, and narrow in scope, thus making redaction or masking of confidential information feasible without placing an unreasonable burden upon the agency. OAG 90-24 .

Police dispatch cards are subject to public inspection where such dispatch logs are of a general jurisdiction police agency or sheriff’s office; this does not apply, however, to logs generated by a university law enforcement unit subject to Buckley Amendment provisions. OAG 90-24 .

In denying part of a request to inspect public records, a public agency failed to act consistently with Open Records provisions by not citing a proper statutory basis for its denial, and in failing to briefly explain how a statutory provision it did cite, applied to a record that appeared to be withheld from inspection. OAG 90-26 .

The Department of Education was not required to compile a listing to conform to a given request to inspect public records. OAG 90-26 .

A response to a request to inspect public records should accurately cite a particular exception from among those in this section, if it denies, or partially denies such a request; additionally, a brief explanation should be given, as called for by KRS 61.880(1), regarding how a given exception cited as a basis for denial of inspection applies to a record withheld from inspection. OAG 90-26 .

If a record of which inspection is sought does not exist, the agency should specifically so indicate. OAG 90-26 .

A county board of education failed to act consistently with Open Records provisions by failing to make a written response stating the specific basis for its denial of inspection of records reflecting exact beginning and ending salary payments to a teacher, and in refusing to allow inspection of such records. OAG 90-30 .

Amounts paid from public coffers are perhaps uniquely of public concern and the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items, or for salaries, etc.; specific sums paid in salary from public monies to a teacher in the public schools fall within such purview, and are subject to inspection by the public and by the media, as disclosure of such payments does not constitute an unwarranted invasion of personal privacy within the meaning of subdivision (1)(a) of this section. OAG 90-30 .

The Kentucky Parole Board acted consistently with Open Records provisions in denying, as privileged pursuant to statute, a parole officer’s “Special Report.” OAG 90-32 .

A governmental record regarding employee time and attendance, in relation to which public moneys are expended, cannot be considered as being entirely of a personal nature, the disclosure of which would constitute an unwarranted invasion of personal privacy; a time and attendance record (e.g., work schedule, time card, sick leave claim, etc.) operates as a bill or claim for public moneys, therefore such records cannot be properly treated, as a whole, as being information of a personal nature, disclosure of which would constitute an unwarranted invasion of personal privacy within the meaning of subsection (1)(a) of this section. OAG 90-34 .

An employee’s work schedule, time card, or sick leave record, associated with normal recordation of times worked or to be worked, cannot be said to be “compiled in the course of detecting or investigating statutory violations,” within the meaning of subsection (1)(f) of this section; at the most, such records, in the case of a police officer, would be termed as being compiled collaterally to investigatory assignments and in any event, any information contained upon such records that would harm the agency by revelation of informants, or by premature release in relation to a prospective law enforcement action or administrative adjudication, may be masked, and a copy of the records showing the officer’s scheduled or actual time and attendance, and any sick leave claimed, may be provided. OAG 90-34 .

Evaluation recommendations which involve observations about state employees’ performance of governmental work, given their specific character, are not information of a personal nature within the meaning of subsection (1)(a) of this section and where the evaluation recommendations of the successful applicant for a position have been released, there is no basis for withholding such recommendations regarding the unsuccessful applicants; the evaluation recommendations were no more personal in nature in relation to the unsuccessful applicants, than they were in relation to the successful applicant. OAG 90-35 .

Since inspection of evaluation recommendations regarding a successful applicant for a position were not denied as preliminary recommendations, there was no appropriate basis for denying inspection of such recommendations regarding the unsuccessful applicants on the ground that such recommendations were of a personal nature, especially where the counsel of an unsuccessful candidate was requesting such information. OAG 90-35 .

Where letters of the Transportation Cabinet denying access to certain public records did not state a basis of denial pursuant to one or more of the exceptions set forth in this section, and did not provide an accompanying brief explanation of how such exceptions applied to the records withheld from inspection, the Transportation Cabinet failed to act consistently with KRS 61.870 to 61.884 . OAG 90-35 .

In response to request to inspect all documents relating to settlement of legal action against city, if the city has a record or records setting forth moneys paid on behalf of the city in settling the suit in question, such record should be promptly made available for inspection; this view applies to any record of such nature in the possession of the attorney for the city, that would be considered a record of the city, though held by counsel; if the city has records regarding settlement of the suit in question, other than one setting forth the amount of moneys paid on behalf of the city in settling the suit in question, the city should, in a written response, itemize which records it has and if it denies inspection of any of such “other” records, it should state a specific basis for denial based upon the exceptions set forth in this section; if it has no record setting forth the amount of the settlement paid or payable, it should specifically so state, vis-a-vis the city government as a whole, and not just in relation to a record in the possession of the city manager. OAG 90-36 .

Records in the possession of city’s insurance company concerning settlement of legal action against city are not reachable under Open Records provisions. OAG 90-36 .

Where a request was made for portions of taped conversations between a police department hostage negotiation team and an individual who allegedly held his family hostage for several hours until he apparently killed his estranged wife and himself, and where these were all conversations in which the alleged perpetrator was a participant, since excepted information could properly be omitted from those portions of the tape, the remaining nonexcepted information had to be produced since the information requested was not so voluminous so as to constitute an unreasonable burden. OAG 90-56 .

A document setting forth preliminary information concerning certain air samples, which did not represent a final investigative report or study, and which did not represent a final action, decision or determination on the matter, was a preliminary document which may be withheld from public inspection pursuant to subdivisions (1)(g) and (h) of this section. OAG 90-57 .

State agency properly handled request to inspect public documents even though the agency did not furnish requested copies of certain test results because no such documents existed when the request was received and the agency’s response was made; and the agency properly utilized its discretion to withhold from public inspection a copy of a preliminary draft or study. OAG 90-57 .

A decision to take disciplinary action or not to take disciplinary action against a public employee for actions related to that employee’s job performance is a matter about which the public has a right to know and a request for records regarding same does not constitute a clearly unwarranted invasion of personal privacy of that public employee. OAG 90-58 .

An intra-office memorandum from an employee of a municipal division to another employee of the division in which oral allegations by a citizen against a division employee were reported and which included an expression of an opinion as to the implication of the citizen’s oral allegations was exempt from public inspection pursuant to subdivisions (1)(g) and (h) of this section. OAG 90-58 .

The members of the University of Kentucky Alumni Association are neither state employees nor state licensees; they much more closely resemble members of a voluntary organization receiving at least twenty-five percent (25%) of its funding from state or local funds, and although the home addresses of those members are not required to be divulged by subdivision (1)(a) of this section, their work addresses do not fall under the exemptive language of this section. OAG 90-60 .

Where a University of Kentucky Alumni Association member’s work address and home address are one and the same, the address should be deemed the member’s home address for the purposes of this section. OAG 90-60 .

A juvenile court’s orders appointing specific attorneys as juveniles’ guardians ad litem and orders authorizing their payment in specific cases are confidential juvenile court records and as such are excluded from public view, although, a public agency’s records that a specific attorney was paid a sum certain out of public funds for his or her service in a specific court as a guardian ad litem are not; if the agency’s records include the names of the juveniles involved, making release of such information an invasion of the juveniles’ privacy, those names may be removed from the records before allowing access thereto. OAG 90-62 .

Cabinet records of a disbursement to an individual for discharging the duty of guardian ad litem in juvenile court are not juvenile court records as envisioned by KRS 610.340(1); rather, they are public records of a public expenditure made by a public agency to a person in consideration of a public service which was performed under the auspices of the juvenile court. OAG 90-62 .

Investigative files, reports and other documents maintained by criminal justice agencies are not subject to public inspection until after the prosecution is completed or the investigation has been concluded and a determination has been made not to prosecute. OAG 90-64 .

If various documents, including memoranda of meetings and telephone conversations, constitute preliminary intraoffice communication setting forth opinions, observations and recommendations of various agency personnel, and they do not represent the agency’s final decision or determination on any matter, then they may be withheld from public inspection pursuant to subdivisions (1)(g) and (h) of this section. OAG 90-66 .

Responses that certain requested items do not exist or cannot be located are proper responses when they represent the true state of events. OAG 90-66 .

Where the State Police had been asked by the FBI to withhold certain documents pending completion of the FBI’s investigation into the same matter, the State Police acted in accordance with the open records law in denying inspection of these documents. OAG 90-67 .

Salaries of public employees are not exempt from disclosure under the Open Records Act. OAG 90-71 .

There is no specific exception in the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. OAG 90-71 .

Where a governmental board does have custody or control over public records that contain certain requested information, according to the requirements of the Open Records Act, the board should have given the person making the request either: (1) access to the records; or (2) a statement of the specific exceptions authorizing the withholding of the records. OAG 90-71 .

Where an agency’s denial of a permit was not a final decision, but rather was a draft tentatively denying the application, such denial was a preliminary step in the decision-making process and release of the requested information would have been premature; thus, the open records request with regard to testimony relied upon by the agency was properly denied pursuant to subdivision (1)(f) of this section. OAG 90-72 .

A request for “notes, copies of all correspondence and taped conversations … in negotiating the plea bargain” was properly denied because those items are preliminary drafts, notes and memoranda. OAG 90-77 .

In the interest of protecting the employee’s right of privacy it is proper for the public agency to require written permission from the employee before anyone else, including her attorney, examines her entire personnel file. OAG 90-83 .

The public agency is not required to search for material which the requesting party cannot describe with some degree of clarity. OAG 90-83 .

Because subdivision (1)(f) of this section withdraws any exemption from such records “after enforcement is completed or a decision is made to take no action,” not all records compiled in the process of law enforcement are exempt, and even those that are exempt may subsequently lose that protected status. OAG 90-89 .

Since these interview transcripts are the property of the FBI and as this federal government agency requests that the documents not be disseminated, the state police was correct in denying release of these documents. OAG 90-90 .

A letter or document written by an elected public official such as a sentencing judge or prosecuting attorney which contains an opinion as to whether the Parole Board should or should not grant a parole hearing is exempt from inspection unless incorporated into, or made a part of, the Parole Board’s final decision on the matter. OAG 90-97 .

Documents are exempt from inspection pursuant to subdivision (1)(f) even though the agency in possession of the documents is not the agency involved in a prospective law enforcement action or administrative adjudication. OAG 90-97 .

The word “preliminary” as used in subdivision (1)(h) obviously refers to recommendations made by a person prior to a final decision or action being made by a state agency; it does not matter whether the recommendation is the first, second or last recommendation if the state agency has not yet taken final action. OAG 90-97 .

Subdivision (1)(j) of this section and KRS 17.150 (2) exempt from open records disclosure the files of law enforcement agencies which have not been closed. OAG 90-104 .

Drafts of agreed orders are not notices of final action of a public agency; only the final agreed order actually signed and agreed to by the parties is correspondence giving notice of final action of a public agency. OAG 90-107 .

There is no allowance in the Open Records Act for nondisclosure of documents pertaining to subjects of “litigation pending”; thus, denial of a request for this reason is facially defective. OAG 90-110 .

Where information requested was compiled by agency during its investigation of claimants’ claims for unemployment insurance benefits, as a product of that investigation it clearly constituted records preliminary to agency’s final decision on the claims, and was excepted from the disclosure requirements of the Open Records Act pursuant to the exceptions found at subdivisions (1)(g) and (h) of this section. OAG 90-111 .

An agency may not justify its refusal to permit inspection solely on the grounds that the agency has elected to adopt a policy of separating exempt and non-exempt material from public records. OAG 90-112 .

Responses denying inspection of public records should include reference to a specific statutory exception authorizing the withholding of the record. OAG 90-112 .

Applications and resumes from unsuccessful applicants for state jobs are exempt from inspection or copying under the Open Records Law pursuant to subdivisions (1)(a) and (1)(g) of this section. OAG 90-113 .

To the extent that public records request sought access to copies of all applications for the position of Director—Facility Construction received by Jefferson County Public Schools on or after April 17, 1989, such documents are private rather than public records, as defined by subdivisions (1)(a) and (1)(g) of this section; these documents are exempted from release since they contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. OAG 90-113 .

Although allowing inspection of a subpoena delivered to the office of the State Veterinarian by the Federal Bureau of Investigation would not be as intrusive and harmful as allowing inspection of the documents requested in the subpoena, such inspection still could harm the investigation by prematurely indicating the documents, materials, or issues that are being reviewed and scrutinized by the federal government; once, however, the investigation is concluded, inspection of the subpoena should be permitted. OAG 90-116 .

The Department of Agriculture, Division of Animal Health, is a law enforcement agency and the request for any subpoena delivered to the office of the state veterinarian by the Federal Bureau of Investigation is a record of the Department that was compiled by the Department in the process of detecting and investigating statutory or regulatory violations. The fact that the subpoena was served on the Department by the federal government does not change the fact that the subpoena was one of the documents compiled by the Department in this process. Moreover, the fact that the compilation of documents may not have begun until the subpoena was received by the Department does not change the fact that the Department did compile such documents, including the subpoena. OAG 90-116 .

It is simply not feasible to protect the complainant’s identity if a copy of an audio recording of her voice on a 911 telephone call is released; disclosure of the complainant’s identity by providing a copy of the tape for use on a television show would be an unwarranted invasion of personal privacy, even if the caller’s name and address are deleted, and it is not outweighed by the public’s right to governmental information. Release of the complainant’s identity would effectively chill many 911 telephone calls. OAG 90-117 .

Public records which have been inadvertently released for inspection by non-custodial persons with access to public records does not prohibit an agency from subsequently denying inspection or copying of the same record by the official custodian. OAG 90-117 .

County Board of Education did not act consistent with the provisions of this act in denying attorney’s request to inspect a letter from police chief in which the chief expressed his concern to school superintendent as to misgivings regarding a promoter engaged to arrange a fund raising event to be staged at a school facility; even though there was a police investigation concerning the promoter, the letter was not a record of the police, and thus, the board’s reliance on subdivision (1)(f) of this section to withhold the letter was not justified, nor would the board be justified in withholding the letter based on subdivision (1)(g). OAG 90-140 .

A letter verifying an electrician’s qualifications to sit for a licensure examination was not viewed as having been made with an expectation of privacy, nor as correspondence with a private individual. OAG 90-142 .

All information obtained by a licensing agency about a potential licensee should not necessarily be available for inspection. Some data, such as test scores or confidential letters of recommendation, may remain private. However, the public’s interest in verifying that licensees meet educational or work experience requirements outweighs the minimal privacy interests of a licensee in the name and address of his former employer. OAG 90-142 .

As to request to inspect all documentation that was given on electrical code enforcement officer’s job application for obtaining his job as such, masking the information other than the names and addresses of former employers was justified; a government employer may block out such personal information as the employee’s home address, social security number, phone number and the like. OAG 90-142 .

The need for disclosure is particularly strong where the records are from a licensing body, established to protect the public, the public also has a substantial interest in seeing that a government agency enforces its statutes and ordinances in an evenhanded manner. OAG 90-142 .

Urban County Government’s reliance on subdivision (1)(a) of this section to deny a request to inspect documents containing the name and address of an electrical licensee’s former employer, under whom the licensee served his apprenticeship, was not justified under the circumstances of the facts presented, where the licensee was required to work under a licensed contractor a certain number of years in order to be eligible to take a qualifying licensure examination, as the public’s right to this information outweighs the licensee’s and licensee’s former employer’s right to privacy; neither may the government agency exclude the document, in reliance on subdivision (1)(g), as information contained in correspondence from private individuals, where the agency relied on the information in permitting an applicant to take the licensure exam. OAG 90-142 .

Where a local government establishes minimum qualifications that a person must achieve before he is eligible to take a licensure examination, the public should be provided access to enough information to verify that these qualifications have been met; the public should not be required to simply take the government’s word that minimum qualifications were satisfied in a given case. OAG 90-142 .

Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as take a disciplinary action against a licensee, or enter into a government contract based on bids; in each instance disclosure is mandatory upon request, after the final governmental action, and verification of an applicant’s qualifications to take a licensure examination as following this same rule. OAG 90-142 .

The Kentucky State Police acted consistent with the Open Records Act and KRS 17.150(2), when it denied a request to inspect death investigative reports in its custody which were part of an active, ongoing investigation, notwithstanding that the investigation was almost one and one-half (11/2) years old at the time of the request. OAG 90-143 .

It is within the sound discretion of the law enforcement agency to decide when a case is active, merely inactive, or finally closed. OAG 90-143 .

Although water district has not complied with various procedural requirements set forth in KRS 61.880(1) and KRS 61.872(4) relative to the handling and disposition of requests to inspect documents, the water district’s refusal to permit the inspection of polygraph test results is justified under the Open Records Act as such documents may be excluded from public inspection pursuant to subdivision (1)(a) of this section. OAG 90-144 .

Open and active investigative files of the Kentucky State Police are exempt from inspection, and this includes medical or autopsy reports. OAG 91-6 .

A Kentucky State Police case file is not open for inspection while the investigation is ongoing and, therefore, where prosecution has not been completed the records sought from the State Police file for inspection may be and were properly excluded. OAG 91-8 .

A Letter of Intent issued by a city to an industrial entity considering locating in the city, was not final agency action because the “incentive package” was subject to negotiation and change until such time as final agreement was reached among the parties and, therefore, the Letter of Intent was a preliminary document that may be withheld from inspection pursuant to subsections (1)(g) and (h) of this section. OAG 91-21 .

A presentation prepared as part of preliminary negotiations does not reflect final agency action and therefore is exempt from disclosure as a preliminary record, pursuant to subsection (1)(h) of this section. OAG 91-21 .

School district improperly denied the request of the Department of Public Advocacy for access to material pertaining to the internal investigation conducted by school authorities relative to a disciplinary proceeding involving a student, for the provisions of subsection (5) of this section require such a disclosure to a public agency in the performance of its legitimate governmental functions. OAG 91-22 .

A report from the Commissioner to the Governor concerning the Commissioner’s opinion on the Union Underwear-Jamestown Pipeline issue is a preliminary memoranda and records of this nature are not required to be made available for public inspection under the Open Records Act. OAG 91-23 .

Where an attorney requested a case record of a child for whom her clients had been foster parents, the Cabinet for Human Resources acted consistently with the open records law by denying inspection of a case record pursuant to subdivision (1)(j) of this section. OAG 91-30 .

Guidelines of the Metropolitan Sewer District (MSD) for acquiring sewer treatment plants are exempt from open records treatment pursuant to subsection (1)(d) of this section as it contains real estate appraisals, engineering or feasibility estimates and evaluations made for MSD relative to the acquisition of small sewer systems, but once the acquisition of all of the sewer systems is complete, then this information would cease to become exempt under the Open Records Law. OAG 91-31 .

The Metropolitan Sewer District Guidelines for the purchase of small sewer systems is a preliminary memoranda reflecting opinions and policies and is exempt from open records pursuant to subsection (1)(h) of this section. OAG 91-31 .

Cabinet for Human Resources acted consistently with the Open Records Laws to the extent that it withheld from inspection the names of informants which spawned its investigation pursuant to subdivisions (1)(a) and (j) of this section and KRS 620.050(5)(a), and to the extent that it denied inspection of the verbal complaint or oral allegations made by an individual to an employee of the cabinet. However, the cabinet acted inconsistently with the Open Records Law to the extent that it denied inspection of the written complaint which initially spawned the investigation, although, the names of informants contained within the written complaint may properly be withheld. OAG 91-33 .

The substantial privacy interests of suspects investigated but not charged with criminal activity by the Medicaid Fraud Division of the Attorney General’s office outweighs the public’s right of access to the closed files. OAG 91-35 .

Although OAG 89-87 held that subdivision (1)(f) of this section supersedes the more ambiguous language in subdivisions (1)(a), (g), and (h) of this section, OAG 89-87 does not accurately state the law and should be overruled. OAG 91-35 .

An agency relying on the exemptions under KRS 17.150(2)(b) and subdivision (1)(a) of this section has a duty to provide for inspection of that part of its records that are nonexempt and justify that part which it has excluded with specificity, briefly explaining how the exception applies to those parts of the record withheld. OAG 91-35 .

A public employee reprimanded after an investigation of alleged misconduct may have a cognizable personal privacy interest in records pertaining to a privately issued reprimand, because such a reprimand is intended for a particular class of persons. However, the employee’s privacy interest is outweighed by the public’s interest in being informed about the conduct of public employees when that conduct is job related; the public has a right to know about the employee’s misconduct and any resulting disciplinary action taken against the employee. OAG 91-41 .

The privacy interest of disciplined public employees is outweighed by the public’s right to be informed about the job related conduct of the employees. OAG 91-41 .

Subdivision (1)(b) of this section does not authorize nondisclosure of “Form Es” filed by motor carriers with the Transportation Cabinet. OAG 91-44 .

The Open Records Act does not apply generally to records generated by the Judicial Retirement and Removal Commission inasmuch as the commission is an agency of the Court of Justice, created under authority of the Kentucky Constitution and Supreme Court Rule; records of the court and agencies of the court enjoy a special status and are placed under the exclusive jurisdiction of the Court of Justice pursuant to KRS 26A.200 and KRS 26A.220. OAG 91-45 .

The Kentucky Bar Association is an agency of the court created and supervised by it and court records are given a special status under KRS 26A.200 and 26A.220, and are exclusively governed by the Court of Justice. OAG 91-47 .

A water district is a public agency, created under authority of KRS Chapter 74, and is therefore subject to the Open Records Act. Accordingly, its records are open for inspection by any person, unless those records are exempt under one of the statutorily authorized exceptions. OAG 91-48 .

Inspection of letters of reference written on behalf of an applicant who became commissioner of a water district may be denied under the exception that has been carved out of the Open Records Act for correspondence with private individuals. Such letters are not correspondence between two (2) public officials on official business within the contemplation of the act, and are therefore exempt. OAG 91-48 .

The public is entitled to know the name, position, work station and salary of a public employee however, a public employee is entitled to privacy in his personal life and off-duty activities, and this right to privacy extends to the public employee’s home address, social security number and marital status. OAG 91-48 .

The public’s interest in inspecting the resume of a water district chairman to assess his qualifications to serve, outweighs his right of privacy about such matters since one does not typically work or attend school in secret. However, information of a personal nature contained in the resume, such as home address, phone number, social security number and marital status should be separated and withheld. OAG 91-48 .

Written notes, shorthand notes or tape recordings made during a meeting solely to assist the agency’s clerk in preparing the official minutes are preliminary records and may be withheld from public inspection. OAG 91-49 .

A copy of an accident report, masking any exempted information such as social security numbers, should be made available to the requester. OAG 91-50 .

Case files in the possession of the State Police are not open to inspection while the case is active. OAG 91-50 .

Upon completion of the prosecution or after a decision not to prosecute is made, a State Police file will be subject to public inspection unless the documents contained in it are exempt under another exception to the Open Records Act. OAG 91-50 .

Records which are the work product of an attorney in the course of advising a client are not discoverable under CR 26.02(3); such records are therefore exempt from public inspection under KRS 447.154 , which provides in part that no act of the General Assembly shall be construed to limit the right of the Court of Justice to promulgate rules, and subdivision (1)(j) of this section. OAG 91-53 .

Records which are privileged under the rules of discovery are exempt from mandatory disclosure under subdivision (1)(j) of this section. OAG 91-53 .

Although it receives federal funding and supervision for many of its myriad activities, the Cabinet for Human Resources is a state, and not a federal, agency. Its records are subject to the Kentucky Open Records Act. The Federal Freedom of Information Act has no force as to state records, only the records of federal agencies. OAG 91-56 .

It is not permissible to cite an exemption under the Federal Freedom of Information Act (FOIA), 5 USCS § 552, or a regulation citing a FOIA exemption, as the federal law or regulation prohibiting disclosure of public records under subdivision (1)(i) of this section. OAG 91-56 .

Where individual requesting records concerning his arrest and subsequent investigation, had indicated that he intends to seek post-conviction relief, his conviction was not final, and the documents pertaining to his arrest, and the investigation of his case, were available through the discovery provisions of the Rules of Criminal Procedure, prior to trial. They will again be available to him, and the public generally, unless otherwise properly exempt, once his conviction has been affirmed by the court of last resort to which it is taken. OAG 91-57 .

If a document is exempt under subdivision (1)(a) of this section, it does not lose this status after the agency takes final action. OAG 91-62 .

Inspection of employee evaluations may be denied under subdivision (1)(a) of this section; the privacy interests protected are as much those of the evaluator as those of the person being evaluated inasmuch as the evaluator generally makes his evaluation with the understanding that it will be kept confidential. OAG 91-62 .

Riverport Authority violated the Open Records Act in denying request for access to invoices of company as they were not trade secrets referred to in subsection (1)(b) of this section; however, authority was correct in withholding the worksheets used by the company in calculating the figures contained in the invoices inasmuch as these were preliminary documents exempt from inspection under subsections (1)(g) and (h) of this section. OAG 91-70 .

Annual audits of state dock and state park are not a secret commercially valuable plan or formula but are public documents and are therefore subject to the public inspection unless there is a possibility of prospective law enforcement action or administrative adjudication; audits that fall into the latter category are exempt under subdivision (1)(f) of this section. OAG 91-72 .

Although marina management services is a private corporation, and not a “public agency” within the meaning of KRS 61.870(1), its records are “public records” within the meaning of KRS 61.870(2) to the extent that they are transmitted to, and retained by, the Department of Parks, and since under KRS 61.870(2) the term “public record” includes records that are prepared, owned, used, in the possession of or retained by a public agency if records of private entities or agents are in the possession of or retained by a state agency, they are, in general, subject to inspection. If the records are not retained by a public agency, on the other hand, they are private records and are therefore beyond the reach of the Open Records Act. OAG 91-72 .

Since the Department of Parks receives a percentage of the licensee’s monthly gross income and requires that it submit an annual audit a portion of the licensee’s receipts become public money, and because its required year-end audit remains in the possession of the department, that audit is a public record and therefore is subject to inspection under the Open Records Act. OAG 91-72 .

Where with respect to request for financial data although department improperly relied on subdivision (1)(b) of this section in refusing to release the information, the request was not sufficiently definite to permit it to formulate a response for while the purpose and intent of the Open Records Act is to permit the free and open examination of public records, the right of access is not absolute; as a precondition to inspection, a requesting party must identify with “reasonable particularity” those documents which he wishes to review. OAG 91-72 .

The Hardin County Schools may refuse to release its recommendations on salary increases under subdivision (1)(h) of this section. The requested documents fit squarely within this exception, and if upon final action of the school board, these recommendations are adopted, they will become public records and must be made available for inspection. OAG 91-78 .

Although the public is entitled to know the name, position, work station, and salary of a public employee, that employee is entitled to privacy in his personal life and off-duty activities. OAG 91-81 .

An agency cannot be penalized for releasing exempted documents, such as social security numbers, but it may invoke an exception if it wishes to maintain a uniform policy with regard to records that are exempt under the Open Records Law, such as home addresses. OAG 91-81 .

Pursuant to subdivision (1)(d) of this section, when the necessary acquisitions for a project are within a relatively compact area and the limits of the project are reasonably drawn, it is the legislative intent that the appraisals on the property should not be made available for inspection until such time as all of the parcels of land owned by various owners have been acquired. OAG 91-83 .

Preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agencies’ final action may be withheld from public inspection pursuant to subdivisions (1)(g) and (h) of this section. Any such documents that are incorporated into final agency action, however, are public records and must be released. OAG 91-90 .

Where university president adopted the recommendations of the Grievance Committee in concluding that no violations of personnel policy had occurred, and thereafter attempted to conciliate faculty member by requiring the Director to explain those policies to her but did not order that any remedial action be taken, nor did he offer any other explanation for her decision, or reject the findings and recommendations of the Committee, although the president failed to employ any legal “terms of art” in incorporating these findings, it is clear that she adopted the Committee’s report, and that the report thereafter lost its preliminary status and was not exempt under subdivision (1)(h) of this section. OAG 91-90 .

Where defendant in criminal case indicated that he intended to seek post-conviction relief, his conviction was not final; therefore tape recordings of his statements to the police were available through the discovery provisions of the Rules of Criminal Procedure, prior to trial and will again be available to him, and the public generally, unless otherwise properly exempt, once his conviction has been affirmed by the court of last resort to which it is taken, thus denial of defendant’s request for access to tape recordings was proper under subdivision (1)(f) of this section. OAG 91-91 .

If a criminal case is on appeal, records pertaining to the case are exempt from disclosure under subdivision (1)(f) of this section and a criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken. OAG 91-91 .

State police properly denied request to inspect state police file of murder investigation where victim’s husband had entered a plea of guilty, for until a plea of guilty has been formally accepted and incorporated in a final judgment or order, a defendant is free to seek to withdraw his plea, and the court is free to accept or reject it and the State Police may therefore properly treat this case as active since the defendant has not been sentenced and the “enforcement action” is not “complete.” OAG 91-92 .

Where person requesting documents regarding detention of student at a school and the report and findings of an investigation conducted by the Department for Social Services did not demonstrate that he fell under any of the statutorily recognized classifications of KRS 620.050 or this section or that his particular situation warrants the release of the requested material his request was properly denied. OAG 91-93 .

Whenever the personal privacy exemption is raised by an agency to justify withholding public records the preliminary question which must be addressed is whether the interest in nondisclosure is a type of privacy the exemption was intended to protect; if the preliminary question is answered in the affirmative, then the privacy interest of the individual must be balanced against the right of the public to be informed about the conduct and affairs of state government and its officers and employees. OAG 91-94 .

The Kentucky Personnel Board was not justified in redacting from the records the names of the employees who testified in open hearings before releasing the records to the newspaper requesting the records under subdivision (1)(a) of this section for when individuals voluntarily testify in an open hearing, whether in court, or before an administrative tribunal, they do not have a reasonable expectation of privacy concerning their testimony or their identities. OAG 91-94 .

The exemptions of subdivisions (1)(g) and (h) of this section are intended to protect the integrity of an agency’s internal decision-making process by encouraging the free exchange of opinions and ideas. If the requested records reflect final agency action, on the other hand, they are not exempt. OAG 91-97 .

Once an offered leasing rate, service and concession package has been accepted or rejected by a lessee of the Kentucky Fair and Exposition Center or the Commonwealth Convention Center, the matter is final and inspection of documents relating thereto is proper. OAG 91-97 .

Regarding material pertaining to public bids only those records generated in the competitive negotiation process, while it is ongoing, are exempt. Once those negotiations are concluded, either by the award of a contract to one bidder or the rejection of all bids, the public agency must make the records available for public inspection. OAG 91-99 .

Correspondence between corporation that has been awarded a public contract as a result of public bids and a public agency cannot be considered correspondence with a private individual insofar as it was exchanged by a public agency and a corporation under public contract, and involved issues pertaining to that contract. All correspondence exchanged prior to the award of the contract which relates to bids, quotations or proposals is a public record. All correspondence exchanged after the award of the contract, is also public record. OAG 91-99 .

Reports on the investigation of fires are exempt from mandatory disclosure under subdivision (1)(j) of this section since reports of investigations of fire losses conducted by a fire department may, in the discretion of the chief of the fire department, be withheld from the public. OAG 91-100 .

Denial of request for access to lists of fire and building code violations prepared by the chief, or his designee, and the city inspector, was improper as KRS 227.370 does not vest the chief with discretion to withhold information pertaining to violations noted in his inspection and thus subdivision (1)(j) of this section is inapplicable; moreover inspection reports are not “preliminary” within the meaning of subdivision (1)(h) of this section. OAG 91-100 .

Where the letter of reprimand issued by public school to an individual who was the subject of investigation which enumerated the charges against him and advised him of the action taken against him and did not refer to, or incorporate any portion of, a report compiled in the course of the investigation, the documents which comprise the report were preliminary to the final decision and were properly withheld from public inspection pursuant to subdivisions (1)(g) and (h) of this section. OAG 91-102 .

To successfully raise the exception of subdivision (1)(b) of this section, an agency must establish that the requested records: (1) were confidentially disclosed to it; (2) in conjunction with an application for a loan; and (3) that release of the records would permit an unfair advantage to competitors of the subject enterprise. OAG 91-105 .

Since financial information relating to capital investments and employment figures for businesses located in an enterprise zone has been disseminated to the public in the past, since by the rule of strict constructions the requirement that the records be disclosed in conjunction with an application for a loan was not satisfied and since it was not established that businesses seeking certification will be placed at a competitive disadvantage by disclosure of the information, denial of request to inspect the documents under subdivision (1)(b) of this section was improper. OAG 91-105 .

Public’s interest in monitoring the activities of Enterprise Zone Authority to determine if the businesses certified for the zones qualify for the benefits received by virtue of their investments and the number of jobs they claim to create, outweighs those businesses’ interest in maintaining the confidentiality of information relating to capital investments and employment figures for businesses located in enterprise zones, therefore, to the extent that the requested information does not relate to the businesses’ personal financial data, but merely reflects their compliance with the requirements for certification of KRS 154.655(5) (renumbered as KRS 154.45-010 ) such information should properly be disclosed under subdivision (1)(a) of this section. OAG 91-105 .

While it is undoubtedly true that communications between joint clients are fully protected in litigation between the clients and a third party, documents which pursuant to KRS 61.880(2) demonstrated that they pertained to more general zoning and land use questions and, although they contained communications between attorney and client, they were not made in confidence, within the meaning of former KRS 421.210(4), since they were circulated to other public agencies and thus did not fall under the exemption of subdivision (1)(j) of this section; however, such documents being preliminary interoffice or intraoffice memoranda or notes setting forth opinions, observations and recommendations, were properly withheld pursuant to subdivisions (1)(g) and (h) of this section, and were properly shared with other public agencies pursuant to subsection (5) of this section. OAG 91-108 .

An agency cannot withhold every document which relates to a particular matter under subdivision (1)(j) of this section and the attorney-client privilege simply because it is represented by an attorney in that matter; however, it is the attorney who is best able to make a ready determination of what papers come under the attorney-client privilege. OAG 91-108 .

Those specific documents which are actually generated in the course of the attorney-client relationship, and therefore fall squarely within the privilege, or are the work product of an attorney, may be withheld from public inspection pursuant to Kentucky Rules of Civil Procedure, CR 26.02(1) and (3), KRS 447.154 and subdivision (1)(j) of this section. OAG 91-108 .

Tapes of investigative proceedings involving university and client of attorney requesting tapes were, for purposes of the Open Records Act, public records since the hearing at which the tapes were made was conducted by a public agency and involved an employee of a public agency, the tapes were not made solely to assist the university in preparing minutes of the hearing and thus subdivisions (1)(g) and (h) of this section were inapplicable; the tapes were used as the basis for report of university’s counsel to the president, upon which final disciplinary action was taken, thus to the extent that they were adopted into this final action, they lost whatever preliminary status they may have enjoyed as internal investigative materials; therefore the university improperly denied attorney’s request for access to the tapes of the investigative proceeding of which his client was the subject as it was clear that the tapes were not exempt from disclosure pursuant to subdivision (1)(j) of this section, and the attorney-client work product doctrine. OAG 91-109 .

While an agency must release public records stored on a database, subject to the exceptions codified as subdivisions (1)(a) to (l) of this section, if requested for a noncommercial purpose, it may, in its discretion, withhold the same records if requested for a commercial purpose. Purpose is relevant, however, only for requests to copy databases and geographic information systems; however, the purpose for which a person seeks access to public records, as defined by KRS 61.870(2), is irrelevant. OAG 91-116 .

Release of any final documents pertaining to the Transportation Cabinet’s original decision to build a proposed road will not permit an unfair negotiating advantage to landowners implicated by that decision. OAG 91-117 .

Clearly, the Open Records Act in no way supersedes a protective order entered by a court of competent jurisdiction when a public agency is properly before that court as a party to the litigation. Indeed, the entry of a protective order removes a document within its terms from the application of the Act; that order is not less valid because it was entered into by agreement of the parties. OAG 91-121 .

Reports and documents involving a criminal prosecution are subject to discovery by the accused pursuant to the Kentucky Criminal Rules of Procedure, and will be available under the Open Records Act, if at all, only after the prosecution is concluded. OAG 91-124 .

Much of this language of subsection (3) of this section has relevance only to KRS Chapter 18A personnel policies and procedures. It is entirely foreign to university personnel policy. This suggests that the General Assembly intended to limit the scope of subsection (3) of this section to state personnel governed by KRS Chapter 18A. OAG 91-128 .

Clearly, the Personnel Department of state government has no authority to regulate university personnel matters, and any changes wrought in the laws pertaining to state employees governed by KRS Chapter 18A have no bearing on university employees. Accordingly, KRS 18A.020 and, to the extent that it merely cross references the latter provision, subsection (3) of this section are inapplicable to university personnel policies and procedures. OAG 91-128 .

The 1986 amendments, of KRS 18A.020 and subsection (3) of this section, do not preclude the university from properly withholding records under subdivisions (1)(a) to (l) of this section when a request is made by a university employee for records pertaining to him. OAG 91-128 .

An agency cannot require a requesting party to state his purpose in making a request, nor can it, as a matter of policy, allow inspection and copying of records for certain purposes and deny it for other purposes. It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement. OAG 91-129 .

The privacy exemption may not be used to deny inspection of a public agency’s denial letter to an open records request. OAG 91-130 .

Unless the law enforcement action, out of which arrest records are generated, has not been concluded, or another of the exceptions codified in KRS 17.150(2) or subdivision (1)(f) of this section applies to the records, the local police department must make them available for public inspection. OAG 91-131 .

Records disclosing the names of persons arrested or incarcerated, and photographs taken at the time of the booking, are open to public inspection. OAG 91-131 .

The general rule of nondisclosure for investigative reports prior to the conclusion of criminal prosecution or a decision not to prosecute does not contain an exception for individuals who are themselves the victims of the crime which spawned the investigation. OAG 91-132 .

Salary recommendations are exempt from inspection under subdivision (1)(h) of this section until such time as they are acted upon and adopted by a governing board, OAG 79-469 , OAG 91-78 , and although the party requesting the documents is an employee of the University of Kentucky, and is therefore an employee of the state, he is not entitled to inspect and copy any record that relates to him pursuant to subsection (3) of this section. OAG 91-133 .

As a matter of policy “conflict sheets” are not released to inmates unless the requester’s name appears at the top of the page, indicating that it was he who reported the “conflict.” OAG 91-136 .

A public agency cannot furnish access to documents which it does not have, and it is not the Attorney General’s duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. OAG 91-138 .

A coroner’s autopsy report is exempt from the requirement of mandatory public disclosure by operation of subsection (1)(f) of this section. OAG 91-147 .

The coroner may keep intelligence and investigative reports confidential until such time as the prosecution is completed or a determination not to prosecute has been made, but once the coroner’s verdict is filed with the circuit court clerk at the close of the coroner’s inquest, the verdict is a public record and may be examined by the public. OAG 91-147 .

The coroner’s autopsy report is not an open record under subsection (1)(f) of this section but voluntarily releasing portions of the report to attorney was consistent with the Open Records Act. OAG 91-147 .

Although preliminary records are generally exempt under the Open Records Act, their preliminary status is lost to the extent that they are used in an agency’s response and are thus adopted as part of its final action. OAG 91-154 .

As a member of the supervisory staff of the Department for Adult and Technical Education, employee was subject to the personnel policies of that Department, and not governed by KRS Chapter 18A; accordingly, subsection (3) of this section was not applicable to his open records request. OAG 91-154 .

Inter- and intra-office memoranda, setting forth the opinions, observations and recommendations of agency personnel, which do not represent the agency’s final decision on the matter, may be excluded from public inspection pursuant to subsections (1)(g) and (h) of this section. OAG 91-154 .

A public employee is entitled to privacy in his personal life and off-duty activities which extends to the public employee’s home address, social security number, and marital status. OAG 91-155 .

Interest in inspecting the resumes of individuals who have been raised to a new pay grade outweighs those individuals’ right of privacy in such matters since one does not typically work [or attend school] in secret, but information of a personal nature contained in the resume or employment application, such as home address, phone number, social security number, and marital status should, however, be separated and withheld in accordance with subsection (4) of this section. OAG 91-155 .

Resumes and employment applications are subject to inspection. OAG 91-155 .

The public is entitled to know the name, position, work station and salary of a public employee. OAG 91-155 .

There must be a case by case analysis of the privacy interest in nondisclosure, rather than a per se approach. OAG 91-155 .

Cabinet properly denied inspection of the appraisal of one parcel of land acquired for bypass where proceedings involving several other properties had not been finalized. OAG 91-159 .

Complaints which initially spawn an investigation may not be excluded from inspection because the public has a right to know what complaints have been made and the final action taken, but the complainant’s identity is exempt from public inspection, except upon court order, pursuant to subsection (1)(a) of this section. OAG 91-160 .

County Health Department must release the complaint which spawned the investigation; however, the Department may adopt a policy of withholding the names of the complainants and this information should be masked so as not to disclose his or her identity pursuant to subsections (1)(a) and (4) of this section. OAG 91-160 .

There are occasions when a complainant has a reduced expectation of privacy, as, for example, where the individual has testified in an open hearing, and therefore these individuals do not have a cognizable personal privacy interest in keeping their identities confidential. OAG 91-160 .

A university may properly withhold performance evaluations under authority of subsection (1)(h) of this section, which authorizes nondisclosure of preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. OAG 91-161 .

Although a writing was generated in the course of the annual review of the university president, that writing did not represent a “final report” as it was not prepared on official letterhead, nor did it bear the signature of the chairman or any member of the board. OAG 91-161 .

If the disputed document, pertaining to university president’s evaluation, describing his overall performance, was considered “final,” it nevertheless would fall squarely within the parameters of subsection (1)(h) of this section. OAG 91-161 .

Case files involving still open investigations were exempt from inspection and copying pursuant to subsection (1)(j) of this section and KRS 17.150 . OAG 91-173 .

Attendance sheets verify that employees were present and on the job during any particular time period, and are not protected by the privacy exemption. OAG 91-176 .

The employment applications of school system employees, and other records of educational qualifications requested were subject to inspection; information of a personal nature contained in these documents, such as home address, phone number, social security number and marital status, should be separated and redacted in accordance with subsection (4) of this section. OAG 91-176 .

School was required to release to a parent a copy of the internal investigative report prepared by employees of the public school following an incident involving her son at a middle school. OAG 91-177 .

A public employee’s medical records may be excluded from inspection pursuant to subsection (1)(a) of this section. OAG 91-185 .

Any preliminary documents, such as predecisional memoranda and investigative reports, are exempt pursuant to subsections (1)(g) and (h) of this section. OAG 91-185 .

Government acted consistently with the Open Records Act in releasing the nonexempt portions of the workers’ compensation claim file, including copies of bills submitted by chiropractor’s office and the final decision of the Workers’ Compensation Board. OAG 91-185 .

Records which are privileged under the rules of discovery, such as attorney work product, are exempt from mandatory disclosure under subsection (1)(j) of this section. OAG 91-185 .

Court records are exempt from the mandatory disclosure provisions of the Open Records Act and the reasonable fee provision of KRS 61.874(2). OAG 91-193 .

Criminal defendants were not entitled to release of their presentence investigation report, but KRS 532.050(4) was amended in 1990, and precludes waiver of the presentence investigation report as well as requiring a court to provide defendant’s counsel with a copy of the report, excluding the sources of confidential information. OAG 91-194 .

A memorandum to the County Board of Education concerning the preferment of charges against a teacher, and a letter to the Office of Legal Services of the Kentucky Department of Education advising that agency of the commencement of disciplinary action were properly withheld under subsection (1)(h) of this section. OAG 91-198 .

A report written under KRS 161.120(2)(a) and (b) does not represent final agency action, but is more closely analogous to an internal affairs report and is exempt under this section. OAG 91-198 .

Disciplinary action taken against teacher, and the charges from which that action stemmed, were related to the performance of his public duties, and therefore the records were not shielded from disclosure by subsection (1)(a) of this section. OAG 91-198 .

Teacher’s letter of resignation and the board minutes adopting same were properly released. OAG 91-198 .

Records disclosing place of employment and educational qualifications can not properly be withheld from public inspection. OAG 91-202 .

The Board of Nursing may adopt a policy of withholding information pertaining to the age, gender, and race of its licensees. OAG 91-202 .

The name and address of a person licensed to practice a profession is not a matter of personal privacy. OAG 91-202 .

The names of licensed nurses and their work addresses cannot be withheld from the public and, in the event that the only address furnished is the home address of the licensee, should be made available to the public. OAG 91-202 .

As long as an agency acts consistently in responding to requests for like documents, it need not state that its actions are based on an express policy. OAG 91-203 .

The requesting party must reasonably identify the records contained in a personnel file which he wishes to inspect to enable the custodian of the file to determine if the records are exempt under subsection (1)(a) of this section, the privacy exemption to the Open Records Law. OAG 91-203 .

A document generated in the course of a criminal investigation and prosecution may continue to be characterized as exempt after enforcement action is contemplated; therefore, county attorney properly relied on subsection (1)(g) of this section to authorize the continued nondisclosure of preliminary documents and attorney work product. OAG 91-214 .

An individual has a substantial privacy interest in his home address and telephone number and this interest becomes particularly compelling when the individual whose address and phone number are sought has been the subject of repeated incidents of harassing contact and calls; therefore, there was no substantial “public interest” in the disclosure of the telephone bills under the facts presented, pursuant to subsection (1)(a) of this section. OAG 91-214 .

Records which are generated by an attorney for the Commonwealth, or his staff, in prosecuting a criminal action are clearly work product and as such, the records fall squarely within the parameters of the subsection (1)(j) exemption, and may be withheld from inspection. OAG 92-214 .

While it is certainly true that a number of the exceptions to the Open Records Act lose their exempt status upon the occurrence of a specific event, this has never been the rule with respect to attorney work product. OAG 91-214 .

Written communications from an attorney setting forth legal analysis, investigative reports, and witness interviews retain their exempt status unless they are somehow adopted into final agency action; such documents must be made available for inspection if, and only if, they are, or have been, so adopted. OAG 91-214 .

Correspondence between the Kentucky Heritage Council and the owner of the property, in which the terms and conditions of the easement were informally discussed, fell squarely within the parameters of the exception of subsection (1)(g) for correspondence with private individuals and accordingly, the council properly withheld these records. OAG 91-229 .

The Kentucky Heritage Council properly refused to release preliminary documents consisting of drafts of the instrument creating a conservation easement because they were excludable under subsection (1)(g) of this section. OAG 91-229 .

Kentucky Revised Statutes 209.140 and subsection (1)(j) of this section operate in tandem in authorizing the Department of Social Services to withhold information compiled in the course of an investigation of adult abuse except to persons who are suspected of committing abuse, neglect, or exploitation. OAG 91-230 .

A public agency cannot furnish access to documents which it does not have and it is not the office of the Attorney General’s duty to investigate in order to locate documents which the requesting party believes exist, but which the public agency states do not exist. OAG 92-5 .

The city erred in failing to release the memorandum written by doctor, authorizing paramedic’s reinstatement, and the memorandum prepared by a second doctor, also dated the same day, adopting the first doctor’s recommendation, as the latter document represented final action of a public agency relative to a personnel decision, and the former document represented the recommendation upon which that decision was based; while all post demotion memoranda are not subject to disclosure, the documents in this case cannot properly be characterized as preliminary in nature, and must be released. OAG 92-5 .

The city erred in failing to release the memorandum written by a doctor which reflected his decision to withdraw employee’s privilege to practice as a paramedic, because the city adopted the doctor’s memorandum as the basis of its final action, and the document lost its preliminary characterization to that extent. OAG 92-5 .

The Office of Attorney General is not empowered to rule on the propriety of nonrelease of a paramedic’s testing results, absent a formal request and denial. OAG 92-5 .

City must release the monthly statements prepared by the city’s attorneys which reflect the general nature of the legal services rendered to city; but should those invoices disclose substantive matters protected by the attorney client privilege, which are exempt under subsection (1)(j) of this section, the exempt material should be separated from the nonexempt materials, and the nonexempt materials released for public inspection. OAG 92-14 .

Request for access to annual compliance reports prepared since January 1, 1980 by the Justice Cabinet under the Juvenile Justice and Protective Delinquency Act could be satisfied by production of 11 or 12 documents, and redaction of exempt materials should not constitute an undue burden; therefore, the cabinet should make these documents available for inspection. OAG 92-16 .

Request for “All grant applications, proposals, responses and budgets by, for or from the Commonwealth of Kentucky under the Juvenile Justice and Delinquency Prevention Act” was properly denied pursuant to KRS 61.872(5) and subsection (5) of this section. OAG 92-16 .

Where requests were not limited to a particular subject, but instead all records of a particular character were requested, e.g., correspondence and memoranda of communication, relating to the Juvenile Justice and Delinquency Prevention Act for the period since January 1, 1984, given the vast number of documents which fell within the parameters of the request and the difficulties which would have attended any attempt to separate exempt from nonexempt materials, reliance on KRS 61.872(5) in denial of the request was proper. OAG 92-16 .

Editor of paper properly requested inspection of documents in possession of sheriff’s department which were the records reflecting actual monetary settlement between sheriff’s department and insurance company; records reflecting settlements of civil suits by public agencies are subject to full public disclosure. OAG 92-17 .

City erroneously withheld the disciplinary charges leveled against former police officer and the documents evidencing the outcome or resolution of charges; a confidentiality clause in a settlement agreement between the city and the officer did not bar release of such documents. OAG 92-34 .

A letter relating to the building level portion of an audit of the school district fiscal activity written to the superintendent by the public accountant is a public record subject to inspection. It is not exempt as “correspondence with private individuals.” A contractor to a governmental entity loses any character of “private individual” in connection with correspondence regarding administration or issues associated with administration of a governmental or public contract. OAG 92-44 .

Once an investigation has been completed and the prosecution concluded, or a decision not to prosecute has been made the records will be subject to inspection unless exempt under another recognized exception. OAG 92-46 .

A police incident report is not part of the investigative file, as such incident reports are public records because there is no provision in the Open Records Act exempting them. OAG 92-46 .

Case files in the possession of a law enforcement agency are not open to inspection while the case is active. OAG 92-46 .

The Kentucky Revised Statutes proved for such nondisclosure of intelligence and investigative reports maintained by criminal justice agencies prior to the completion of the prosecution or the decision not to prosecute at KRS 17.150(2). That same provision, at subsection (2)(d), exempts such records if inspection would disclose information to be used in a prospective law enforcement action. OAG 92-46 .

Investigative files of law enforcement agencies are not open to inspection while the case is pending. OAG 92-46 .

KRS 620.050 (4) clearly requires that the Cabinet for Human Resources and the Department for Social Services withhold from all persons information acquired as a result of an investigation conducted pursuant to KRS 620.050 , unless the requesting party can demonstrate that he or she satisfies one of the requirements set forth in KRS 620.050(4)(a) to (f). OAG 92-53 .

The requesting party did not demonstrate that he fell under any of the statutorily recognized classifications of KRS 620.050(4) or that his particular situation warranted the release of the requested material; although the requesting party was the noncustodial parent, the allegations of dependency, neglect, or abuse were not substantiated. OAG 92-54 .

The Cabinet for Workforce Development was directed to release the employment application and resumes of the named employees of a state vocational-technical school, after separating or otherwise masking any information of a personal nature which appeared on those documents, including the employees’ home addresses, social security numbers, and medical information; if the employees’ teaching certificates were contained in the file, they too should have been released. OAG 92-59 .

Although one section of the contract, lease, and option agreement between the City and the Public Hospital corporation required that a copy of the annual audit and supporting documents be filed in the office of the city clerk, those documents were, by the express terms of the agreement, released by the Hospital for the limited purpose of allowing inspection by, or on behalf of, holders of outstanding bonds or coupons; the agency established that the requested records: (1) were confidentially disclosed to it; (2) for one of the four (4) purposes delineated in subdivision (1)(b) of this section, e.g., regulation of a commercial enterprise; and (3) that release of the records would permit an unfair advantage to competitors of the subject enterprise; therefore, the release of the requested records was properly denied. OAG 92-66 .

A public agency may adopt a policy of confidentiality relative to ambulance run reports to the extent that they contain personal information the disclosure of which would constitute a clearly unwarranted invasion of privacy; this includes, but is not limited to, the name, address, and age of the person being transported, as well as the nature of his or her illness or injury. However, information of a general nature, such as the number of runs made, the destination of the runs, whether an individual or individuals were transported to a hospital or treatment facility, and if so, where they were taken does not fall within the parameters of the privacy exemption. OAG 92-75 .

A city may elect to release all of the information contained in an ambulance run report, since the exceptions to the Open Records Act are discretionary; in the alternative, the City may release a sanitized version of its ambulance run reports or prepare a summary of those reports containing only general information and continue to withhold information of a personal nature which appears in the reports. OAG 92-75 .

The training and examination rating scale, used in reviewing candidates for certain positions can be characterized as an inactive examination, and therefore falls squarely within the parameters of the exception to Open Records codified in subdivision (1)(e) of this section. OAG 92-80 .

Where private investigator originally asked for copies of all documents in the possession of the Kentucky State Police which related to suspended state trooper, request was properly denied because blanket requests for information on a subject without specifying certain documents need not be honored. OAG 92-85 .

It is the policy of the Kentucky State Police (KSP) to withhold reports of background investigations on job applicants conducted by KSP; the Attorney General’s office opined that these reports contain information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, and are exempt from public inspection pursuant to subdivision (1)(a) of this section; moreover, background investigation reports may be withheld under authority of subdivisions (1)(g) and (1)(h) of this section. OAG 92-85 .

State police custodian of records’ response to private investigator’s open records request was substantively correct; custodian advised private investigator that custodian had provided private investigator with all of the pages of a suspended state trooper’s employment application, but had deleted specific personal information pursuant to subdivision (1)(a) of this section “which provides for exclusion because of the unwarranted invasion of personal privacy.” OAG 92-85 .

State police custodian of records’ response to private investigator’s request for all documentation regarding the reasons for suspension of former state trooper contained in Personnel Orders was consistent with the Open Records Act; police internal affairs reports are exempt from public inspection as preliminary memoranda; only internal affairs reports which indicate the final action taken and the underlying complaint are open to public inspection. OAG 92-85 .

Occupational safety and health compliance officer’s work note which are compiled in the ordinary course of an investigation of an employer work site, and which contain preliminary handwritten drafts of possible citations and correspondence with private persons which are not intended to give notice of final action, are exempt from public disclosure pursuant to subdivision (1)(g) of this section. OAG 92-90 .

Work papers and intraoffice memoranda are exempt from public inspection under subdivision (1)(h) of this section. OAG 92-90 .

Work notes containing a compliance officer’s observations, opinions and preliminary drafts of possible citations may be withheld pursuant to subdivisions (1)(g) of this section. OAG 92-90 .

Information about attorney fees is privileged only if its disclosure would reveal confidential communications between the attorney and client. OAG 92-92 .

Billing sheets or time tickets “which indicate the nature of documents prepared, issues researched or matters discussed could reveal the substance of confidential discussions between attorney and client.” OAG 92-92 .

If the requester desires access to a governmental database for a noncommercial purpose, an agency must make it available, subject to the exceptions codified in this section. On those occasions when the request requires the creation of a “nonstandardized unique, custom-made record[],” an agency may assess a fee which “shall not exceed the reasonable cost of computer and personnel time and printing cost needed to produce such products.” OAG 92-99 .

Court records are outside the scope of the Open Records Act. OAG 92-100 .

Subdivision (1)(a) of this section, the privacy exemption, is not applicable to public employee time sheets inasmuch as the protection against an unwarranted invasion of personal privacy does not extend to time spent in public service for which the public employee is compensated by public funds. OAG 92-102 .

Witness statements are exempt from public inspection pursuant to subdivisions (1)(g) and (1)(h) of this section. OAG 92-103 .

Correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, is exempt from public inspection pursuant to subdivision (1)(g) of this section. OAG 92-106 .

Where an incident was being investigated by the Kentucky State Penitentiary, the records generated in the course of the investigation were considered property withheld until enforcement action was completed or a decision was made to take no action. OAG 92-109 .

The time sheets of a specific individual for a stated period constitute a discrete category of documents. These time sheets are not information or research services simply because employees must expend time and effort in locating and retrieving these documents. OAG 92-102 .

Where credit cards that bear the state university logo are privately owned, are the financial responsibility of the individual whose name appears on them, and no university funds are expended to discharge the debts incurred by the card holders or in payment of the annual fee, they are exempt under subsection (1)(a) of this section, even though printouts of charges of such credit cards must be considered a public record within the meaning of subsection (2) of KRS 61.870 , since such printouts contain information of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. OAG 92-110 .

Inspection of credit card charges must be permitted when the charges are incurred by a public agency and involve the expenditure of public funds. OAG 92-110 .

If an agency elects to make a tape recording of its public meetings, and that tape is owned, used, or in its possession, it may not properly be treated as a preliminary document, but should be made available to the public upon request. OAG 92-111 .

Access to office procedure manual should be made available, where employee was subject to those procedures during the course of employment, and was presumably aware of it. OAG 92-112 .

Preliminary inter-office and intra-office memoranda or notes setting forth opinions, observations and recommendations, as well as correspondence with private individuals, may be withheld from public inspection pursuant to subdivisions (1)(g) and (h) of this section, unless such documents are incorporated into, or give notice of, final agency action. OAG 92-112 .

Prior to entry of a protective order, the Open Records Act operates independently of the rules of discovery, and may compel release of nonexempt documents and an agency may assert other grounds for nondisclosure in its response, or, upon issuance of an Attorney General’s opinion requiring disclosure, initiate action in the appropriate circuit court to enjoin release of those documents where a protective order was entered before the Attorney General undertook his review of this matter the requested records are not subject to disclosure. OAG 92-119 .

The Open Records Act in no way supersedes a protective order entered by a court of competent jurisdiction when a public agency is properly before the court as a party to the litigation. Indeed, the entry of a protective order removes a document within its terms from the application of the Open Records Act. OAG 92-119 .

There is no unwarranted invasion of personal privacy in examining relevant prior work experience and educational qualifications of employees or former employees. Education qualifications, meaning education levels obtained, reported upon applications for employment and resumes submitted by those who are hired are subject to inspection but city may, of course, separate or otherwise mask any information of a personal nature which appears on those documents, including, but not limited to, the employee’s home address, social security number, and medical information, pursuant to subsection (4) of this section. OAG 92-121 .

The pre-parole progress report is prepared by the inmate’s caseworker, and represents a summary of his progress. It contains the caseworker’s opinions in such areas as staff interaction, psychological and psychiatric condition, medical condition, and work performance and may also include an inmate’s formal psychological evaluation. The pre-parole progress report is a preliminary document containing opinions, observations, and recommendations and is purely advisory and is one of several documents submitted to the Parole Board for its consideration. Unless it is incorporated into the Parole Board’s final decision, it is exempt from public inspection pursuant to subdivision (1)(h) of this section. OAG 92-125 .

Subsection (1)(h) of this section has been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within a public agency. Those reports and memoranda that are strictly advisory, and that are submitted for review and consideration by the agency relative to a final decision, but which are not incorporated into the final decision, are exempt from public inspection. OAG 92-125 .

Public records which have been placed under a court ordered seal of confidentiality may not be disseminated to the public. The reasoning is that if any agency is a party to the litigation, and the requested documents come within the purview of the protective order, the agency and its employees may be in contempt of court and subject to other civil liability if they release the documents in question. OAG 92-126 .

Disclosure of communications for purpose of receiving third-party payment for professional services does not waive any privilege with respect to such communications. This provision is applicable to insurance companies and governmental entities. OAG 92-ORD-1024.

Disclosure of privileged communications for the purpose of receiving third-party payment for professional services does not constitute a waiver of the privilege. OAG 92-ORD-1024.

A report or other communication made by an insured to his liability insurance company, concerning an event which may give rise to a claim against him and which is covered by the policy, is a privileged communication, as if it were between an attorney and client. Therefore, a party to any subsequent litigation may not discover the content of those communications. OAG 92-ORD-1024.

Documents generated in the course of meetings at which city employees, and attorneys were present, including notes, statements, transcripts of meetings, work product, recordings of meetings, photographs of meetings, and evidence of meetings, are exempt from inspection pursuant to subdivisions (1)(h) and (1)(g) of this section. 92-ORD-1024.

KRS 61.878(1)(g) and (h) have been interpreted to authorize nondisclosure of preliminary reports, worknotes, and memoranda containing the opinions, observations, advice, and recommendations of personnel within an agency, as well as outside of an agency. These subsections are intended to insure the integrity of the decision making process by protecting all pre-decisional documents. 92-ORD-1024.

Balance sheets, financial statements, profit and loss statements, audits and other records held by the commission concerning the financial condition of a county steeplechase association and its owners, wherein there is a 100% beneficial owner of the track, is subject to the Act and must release the records. Although it was revealed that the records were confidentially disclosed in conjunction with regulation of the steeplechase association and its license to do business, it was not shown that the association would be competitively disadvantaged by disclosure of the information. 92-ORD-1020.

To successfully raise the exception codified in subdivision (1)(b) of this section, an agency must establish that the requested records: (1) were confidentially disclosed to it; (2) in conjunction with an application for a loan, the regulation of commercial enterprise, or the grant or review of a license to do business; and (3) that release of the records would permit an unfair advantage to competitors. 92-ORD-1020.

Members of board of education may only inspect the nonexempt records contained in the personnel files of certified and classified employees. Since the board of education no longer plays any role in personnel actions, it does not enjoy any greater right of access to the files by virtue of subsection (5) of this section. The board’s right to inspect the personnel files of certified and classified employees of the school system is therefore the same as the right of inspection enjoyed by any citizen under this section. OAG 92-141 .

The superintendent of a county’s public school improperly invoked this section to authorize nondisclosure of his performance evaluation. The public’s interest in reviewing those portions of the evaluation which have a direct bearing on his management of the school system, and the progress of the school system generally is superior to the reduced expectation of privacy in that document which the superintendent of public schools might have. Only those portions which contain personal information, the release of which would serve no legitimate public interest, are exempt from public inspection. OAG 92-ORD-1145.

The Real Estate Commission violated this section in denying access to application for a real estate broker’s license. Although the Real Estate Commission would be justified in masking information of a personal nature, such as the licensee’s home address, social security number, phone number, and the like, it could not withhold information relating to the applicant’s educational qualifications and prior work experience. Moreover while an individual does not have a privacy interest in arrest records, and the public is entitled to inspect this portion of the application, information bearing on an individual’s personal finances implicates privacy concerns which are superior to the public’s right of access to this information, and can, accordingly be withheld. OAG 92-ORD-1238.

University’s board of regents did not forfeit its right to invoke the legitimate exceptions to the Open Records Act just because it violated the Open Meetings Law. The records reviewed by the board relative to the proposed budget which occurred during an improperly closed meeting, and all other records of a preliminary character, still enjoyed the protection of subsection (1) (i) of this section, independent of the Open Meetings issue, until final action was taken by the Board. OAG 92-ORD-1346.

University’s board of regents denial of a request for access to certain records which were generated in the course of a closed session conducted by the board of regents in its regular meeting was improper. The board of regents violated this section to the extent that its closed discussions focused on classes of, as opposed to specific, individuals. However, only those records which reflected discussions of classes of individuals were subject to inspection. OAG 92-ORD-1346.

University violated the Open Records Act in denying a third party’s request under this section where the documents which gave rise to this appeal consisted of a one paragraph letter from a newspaper reporter to university counsel in which the newspaper requested copies of the evaluation report and supporting documents regarding the university board of trustees’ evaluation of the university president, and a two (2) paragraph response on university letterhead in which the official custodian of records, denied the request. Nothing in this correspondence could be deemed to touch on the intimate or personal features of the newspaper reporter’s life and the university asserted no other privacy interest which might be implicated by release of the documents. OAG 92-ORD-1440.

School which received federal funds was prohibited by operation of subsection (1)(j) of this section from releasing education record to person who was interested in the record in order to ascertain if he was listed on the record as the father of the child since a federal law, the Buckley Amendment, bars the release of an education record, such as an enrollment application to a third person, without the prior written consent of a parent, for while such person believed he was the father of the named child, paternity had apparently never been established and such person must be treated as a third person, for purposes of the Buckley Amendment, until such time as paternity has been established, and the child’s education records should not be released to him without the child’s mother’s written consent. OAG 92-ORD-1640.

OAG 90-24 is overruled; records of a campus law enforcement unit maintained by the unit for the purpose of law enforcement are no longer subject to the federal law, but are instead governed by the Kentucky Open Records Act. OAG 93-3 .

Legislators may release to the public information supplied to them by the Kentucky Lottery Corporation pertaining to the corporation’s accounts receivable. OAG 93-19 .

Western Kentucky University properly denied a request for portions of student evaluations of instructors in the Physics and Astronomy Department for the past five (5) years which “were used in determining whether a professor received any particular benefit or detriment,” or “which have a direct bearing on the management and functions of the department.” OAG 93-ORD-17.

Subdivisions (1)(j) and (1)(k) of this section authorize nondisclosure of records made confidential by federal or state law and are not overridden by subsection (3) of this section. OAG 93-ORD-19.

Subsection (3) of this section overrides any of the exemptions to public inspection set forth in subdivisions (1)(a)-(i) of this section, with the exception of examinations and documents relating to ongoing criminal or administrative investigations even when they are requested by the public agency employee and relate to him, when an open records request is submitted by a public agency employee or university employee. OAG 93-ORD-19.

Where disputed records were prepared in the course of an interview with a university employee, and related to his complaint filed with the Affirmative Action Office, those records fell squarely within the parameters of subsection (3) of this section and should have been released by the university. OAG 93-ORD-19.

The question of the propriety of an agency’s invocation of subdivision (1)(a) of this section to authorize nondisclosure of a police incident report, or a portion thereof, must be reviewed on a case by case basis; the decision in each such case must be made by a comparative weighing of the antagonistic interests that exist in the specific situation. OAG 93-ORD-21.

University violated the Open Records Act in redacting portions of a police incident report pursuant to subdivision (1)(a) of this section on records requested by a newspaper where release of the redacted portions of the report did not constitute a clearly unwarranted invasion of an individual’s privacy since the public’s interest in disclosure was superior to his privacy interest. OAG 93-ORD-21.

The Governor’s schedule is a preliminary document which does not represent final agency action. OAG 93-ORD-25.

Where the Governor’s daily schedule was a mixture of family, social and public events, as it was impossible to schedule his public events without keeping track of his private schedule, subdivision (1)(h) of this section authorized nondisclosure of the entire record. OAG 93-ORD-25.

Although as a rule of general application subdivision (3) of this section mandates release of otherwise exempt records to a public agency employee, where the employee is under investigation and the documents relate to that investigation the request can properly be denied. OAG 93-ORD-37.

Subdivision (1)(k) of this section and KRS 610.320(3) and 620.050(4) are aimed at protecting juveniles, and not adults who are criminally prosecuted for victimizing juveniles. OAG 93-ORD-42.

The Kentucky State Police improperly relied on subdivisions (1)(a) and (1)(k) of this section, and KRS 610.320(3) and 620.050(4), in denying a request to inspect the files generated in the course of its investigation into a candidate for county sheriff who was charged with sodomy, sexual abuse and unlawful transaction with a minor. Although the privacy interests of the juveniles whose names appeared in those records were superior to the public’s interest in disclosure of their identities, that interest could be protected by redaction of the juveniles’ names and personally identifiable information. The candidate’s privacy interests, however, were outweighed by the public’s interest in assessing his fitness to serve as county sheriff, and the public’s interest in evaluating the performance of the Kentucky State Police in investigating the case. OAG 93-ORD-42.

Mere invocation of a statutory exception to the release of records and reference to prior opinions, without an adequate explanation of how the exception applies or the opinions are relevant, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882(3). OAG 93-ORD-43.

The Department of Insurance failed to meet its burden of proof in sustaining its denial of a request for correspondence with the National Association of Insurance Commissioners, other states’ departments of insurance, and Kentucky Central Life Insurance Company, and memos, reports, or analyses of Kentucky Central’s financial condition where the Department failed to describe the nature of the documents withheld, and to state how the statutory exception relied upon applied to the documents withheld from inspection. OAG 93-ORD-67.

The Department of Insurance properly advised a requester that no minutes or reports were generated during its meetings with Kentucky Central Life Insurance Company officials, and that therefore that portion of his request could not be satisfied; the department met its burden of proof relative to its invocation of subdivision (1)(h) of this section to support nondisclosure of any notes taken at these meetings. OAG 93-ORD-67.

Although a document was not “predecisional” in chronological terms, where it was submitted by the site protection manager, who was apparently unaware that a final decision had been reached, to the Executive Director of the Kentucky Heritage Council in anticipation of a final decision as a “preliminary memorand[um] in which opinions are expressed or policies formulated or recommended,” it fell squarely within the parameters of subdivision (1)(i) of this section, and could properly be withheld from public inspection. OAG 93-ORD-82.

The Kentucky Industrial Revitalization Authority must release those portions of General Electric’s (GE) application and report which have a direct bearing on GE’s eligibility for the authority’s tax incentive program, specifically, its need for the economic revitalization program, the projected amount and timing of capital investment of GE in the economic revitalization project, and the projected number of employees to be retained and to be hired in the future; KIRA may, however, withhold those portions of the application and report that contain information which reveals GE’s private financial affairs may be withheld. OAG 93-ORD-85.

Where the requested records were created in the normal course of business for purposes not related to the prospect of a grand jury proceeding and even though the records had been subpoenaed for use in a grand jury investigation, this fact, standing alone, did not insulate the documents from the mandatory disclosure provisions of the Open Records Act. OAG 93-ORD-91.

Since the policy of disclosure is purposed to subserve the public interest, not to satisfy the public’s curiosity, there is no blanket or per se applicability of subdivision (1)(a) of this section to a given category of records; in each case a decision must be made by a comparative weighing of the antagonistic interests that exist in the specific situation. OAG 93-ORD-102.

When the privacy interest of the individual does not clearly outweigh the public’s interest, the balance must be tipped in favor of disclosure; therefore, since neither the public’s interest in disclosure of the visitors log of a county detention center nor the individual’s interest in nondisclosure is manifestly superior, in view of the statutes general basis favoring disclosure and in absence of any direct evidence that release of the log would constitute a clearly unwarranted invasion of personal privacy, such log should be released under authority of subdivision (1)(a) of this section. OAG 93-ORD-102.

The Commissioner of Insurance acting as a rehabilitator of an insurance company is a public agency within the meaning of subsection (1) of KRS 61.870 and documents which disclose the names of corporations or individuals who submitted bids for insurance company under KRS 304.33-010 et seq. are public records of a public agency and are not excluded from public inspection under subdivision (1)(h) of KRS 61.878 and thus are subject to disclosure. OAG 93-ORD-113.

Department of Personnel improperly denied request for computer printout of the salaries of all paralegals and legal secretaries employed by state agencies, their places of employment, and their classifications, if it maintains a database containing such information; it must release such information in electronic or hard copy format, but may redact any nonpublic information also contained in the database such as social security numbers or home addresses. OAG 93-ORD-118.

Where requester of graphs which were generated during polygraph examination was the subject of the examination the privacy exception of subdivision (1)(a) of this section was not implicated and neither was subdivision (1)(i) of this section since the graphs, absent any analysis or commentary, cannot be characterized as “preliminary memoranda in which opinions are expressed or policies formulated or recommended.” OAG 93-ORD-124.

Videotape made as requester underwent polygraph examination cannot be characterized a preliminary memorandum in which opinions are expressed or policies formulated or recommended and therefore release of such videotape could not be denied on exemption of subdivision (1)(i) of this section. OAG 93-ORD-124.

Department of Personnel improperly denied request for computer printout of the salaries of all paralegals and legal secretaries employed by state agencies, their places of employment, and their classifications, if it maintains a database containing such information; it must release such information in electronic or hard copy format, but may redact any nonpublic information also contained in the database such as social security numbers or home addresses. OAG 93-ORD-118.

The Department for Social Services improperly denied the Kentucky Board of Nursing’s Credentials Consultant’s request for a report prepared by the Department in the course of its investigation into suspected adult abuse pursuant to KRS 209.140 , which is incorporated into the Open Records Act by operation of subdivision (1)(k) of this section. OAG 93-ORD-131.

The Department of Social Services improperly denied the Kentucky Board of Nursing’s request for medical records referenced in a report prepared by the Department in the course of an investigation into suspected child abuse pursuant to KRS 620.050(4), which is incorporated into the Open Records Act by operation of subdivision (1)(k) of this section. OAG 93-ORD-132.

The Kentucky State Police properly denied defendant’s request for a videotape made at the time of her arrest for alcohol intoxication where the videotape contained footage of defendant’s companion, who was charged with DUI, and where the State Police did not have the option of segregating that portion of the tape showing defendant at the time of her arrest. OAG 93-ORD-133.

Since the general counsel of Department of Insurance represents the Commissioner of Insurance as rehabilitator and outside attorneys appointed by the court also represent the Commissioner as the rehabilitator, each represents the same client, and confidential communications between them made for the purpose of facilitating the rendition of professional legal services are protected from disclosure by attorney client privilege; therefore, the Department properly denied request of newspaper reporter for correspondence between general counsel of Department and outside counsel since the documents requested are protected from disclosure by the attorney client privilege of KRE Rule 503 and are therefore exempt from public inspection under subdivision (1) (k) of this section. OAG 93-ORD-139.

Subdivision (1) (k) of this section and KRS 7.510 operate in tandem to preclude the release of the Kentucky Administrative Regulations to anyone other than agencies of the Commonwealth and its political subdivisions; therefore, request for copy of an Administrative Regulation promulgated by the Kentucky State Board for Elementary and Secondary Education stored on diskette by publishing company was properly denied. OAG 93-ORD-142.

School district properly denied request of attorney representing the board of education of one (1) county for records of second school district in second county under authority of Family Educational Rights and Privacy Act of 1974 (FERPA) which is incorporated into the Open Records Act by operation of subdivision (1)(j) of this section although educational officials in the second county may release education records to state and local educational officials in connection with the audit and evaluation of a federally or state supported program pursuant to 20 USCS § 1232g (b) (5), they are not required to do so. OAG 94-ORD-17.

The 1992 amendment to subsection (1) of this section applies only to parties to litigation, and Department of Corrections improperly relied on such exception in denying request for public records to persons who were not parties in civil litigation; further stay of discovery which did not suggest that the materials pertaining to the litigation had been sealed or placed under protective order did not prevent release of such records. OAG 94-ORD-19.

The Department of Corrections improperly denied a request for correspondence between itself and U.S. Corrections Corporation, a private provider, concerning institutional parole officers. OAG 94-ORD-27.

The Department of Corrections properly denied a request for records relating to canteen operations at the Lee and Marion Adjustment Centers pursuant to subsection (1)(k) of this section, which incorporates the prohibition on release of financial records maintained by the private provider found at KRS 197.510(7). OAG 94-ORD-27.

City Commission violated the Open Records Act in withholding the names, addresses, and telephone numbers of callers whose comments directed at requester of information were generated during the course of City Commission’s televised meetings. OAG 94-ORD-45.

Since the shroud of secrecy mandated by KRS 620.050(4) is “not intended to protect the identities of adults and employees of a public agency charged with violations of the criminal laws,” but is instead intended to protect the affected families, and in particular, the affected children, the Cabinet for Human Resources could not persuasively argue that it was bound by the confidentiality provision found at KRS 620.050(4) in witholding unsubstantiated complaints of abuse against its employees, and, at the same time, that it was free to release most, if not all, of the remaining records it compiled in its investigation of alleged employee misconduct. OAG 94-ORD-76 (overruling OAG 88-4 where inconsistent).

Assertion that KRS 11A.080(2) precluded the release of the second page of a subpeona issued by the Auditor’s office because the Auditor’s services, enlisted by the Executive Branch Ethics Commission, failed where the Auditor was acting independently at the time the subpeona was issued. OAG 94-ORD-81.

Attempt by auditor’s office to justify its refusal to release second page of subpeona, which contained the names of state employees, who were the recipients of gifts as well as entertainment expenses from firms who had been awarded state contracts, on the grounds that Auditor’s records could possibly be used in a future investigation by the Attorney General was too speculative to warrant invocation of the exception contained in subsection (1)(g) of this section. OAG 94-ORD-81.

Request for inspection of the contents of real estate appraisal relative to the sale of city property, although improperly denied under subdivision (1)(f) of this section, could properly be denied under subdivision (1)(j) of this section where such document was almost entirely opinion and recommendations and while it was a final report of the company employed by the city to appraise the subject property, it was preliminary until the property is finally purchased. OAG 94-ORD-85.

Where state board in refusing a request for copies of employee responses to job salary and classification plan not only failed to adequately explain how the exception of subdivision (1)(a) of this section applied, but it failed to cite the exception, the board did not meet its burden of proof and must immediately release the requested records. OAG 94-ORD-89.

Where state board took final action on its job classification and pay compensation plan on May 10, and where it solicited employee response on May 27, such employee responses were not “preliminary” documents within the meaning of subdivision (1)(j) of this section. OAG 94-ORD-89.

Portions of Synthetic Gypsum Sales and Purchase Agreement between municipal utility and gypsum company which were deemed confidential and proprietary by gypsum company, and thereafter redacted from the agreement by municipal utility before it was released, were properly withheld pursuant to subdivision (1)(l) of this section and KRS 365.880 et seq., where the information was derived from independent research and a thorough evaluation of utility’s scrubber system which yielded a commercially valuable, and hitherto unknown, formula for using synthetic gypsum by-product. OAG 94-ORD-97.

Documents reflecting the identities of corporations and/or individuals who submitted bids for insurance company being rehabilitated or its subsidiaries are public records subject to disclosure under the Open Records Act. OAG 94-ORD-102.

Records containing contents of bids submitted for purchase of insurance company being rehabilitated are public records, within the meaning of KRS 61.870(2), for the same reasons that documents revealing the identities of bidders are public records; specifically, the bids are used in the possession of or retained by a public agency, the Commissioner of the Department of Insurance, in his role as Rehabilitator, and in the discharge of his duties, relative to the bidding process. OAG 94-ORD-102.

Documents which were submitted to University Administrator by the Office of Legal Counsel relative to the University’s meeting policy and which were the basis for Administrator’s memorandum to requester of documents, were not shielded by the attorney-client privilege. OAG 94-ORD-108.

Handwritten notes taken by a public employee in the discharge of his public duties may properly be treated as public records. While in most instances, such notes would be excluded from public inspection by operation of subdivision (1)(h) of this section, subsection (3) of this section mandates the release of “any record including preliminary and other supporting documentation” to a public employee, including a university employee, upon request, as long as those records “relate to him.” OAG 94-ORD-108.

Request for each document used as a reference for University’s faculty handbook section on conducting meetings, and each document used as a reference for the section on access to and destruction of records was improperly denied as a “request for a list of reference sources”; in light of the preface appearing in the handbook, the University could not legitimately claim that the request was too nonspecific. OAG 94-ORD-108.

Request for formal merit evaluation forms containing the final merit evaluation ratings for two (2) faculty members for each year they were employed by the University was properly denied based on subdivisions (1)(a), (1)(h), and (1)(i) of this section. OAG 94-ORD-108.

University improperly denied release of unredacted copies of letter of resignation submitted by a number of University employees, but University was permitted to redact those portions of one resignation letter which pertain to employee’s merit evaluation and student evaluations. OAG 94-ORD-108.

University improperly redacted portions of the Chancellor’s letter to the Dean of the College of Agriculture notifying the Dean that the recommendation to promote a faculty member to the rank of full professor was not approved. OAG 94-ORD-108.

University must release the departmental recommendation that a faculty member be placed on a terminal contract but the University may redact those portions of the recommendation which contain personal opinions not adopted by the Dean. OAG 94-ORD-108.

Transportation Cabinet violated the Open Records Act in denying a request for certain information in the rail highway grade crossing database based on 23 USCS, § 409. OAG 94-ORD-124.

Where faculty committee appointed by the dean to evaluate faculty member had no independent authority to determine what final action would be taken relative to faculty member’s continuing service as chairman of department, and where the dean did not memorialize his decision to retain faculty member as department chair nor did he incorporate the committee’s evaluation or adopt it as his final action, request for release of performance evaluation was properly denied by the university as a predecisional document. OAG 94-0 RD-132.

A policy of blanket exclusion relative to the names and identifying information of persons requesting fire service is inconsistent with the Open Records Act. To be exempt from inspection, particulars regarding given notations on the log must be articulated in terms of the requirement of the statute. OAG 94-ORD-133.

County dispatch center may not adopt a policy of blanket exclusion relative to entries on the daily dispatch logs, but must articulate its reasons for withholding a particular entry. OAG 94-ORD-133.

The protection provided by KRS 610.320(3), which is incorporated into the Open Records Act by operation of subsection (1) of this section, is not expressly, or by implication, limited to living juveniles nor does it exclude from its coverage situations where the juvenile has died; thus, the Urban County Government properly denied a reporter’s request to inspect documents and records regarding the suicides of two (2) juveniles. OAG 95-ORD-7.

Pursuant to subsection (4) of this section, if a public record contains both excepted and nonexcepted material, a public agency s obligated to separate the material and make the nonexcepted material available for examination. OAG 95-ORD-12.

The work product doctrine protects from discovery, and access under the Open Records Act, materials prepared or collected by an attorney in the course of preparation for litigation; however, travel expense records are not in the nature of attorney work product since they cannot be characterized as mental impressions, conclusions, opinions, or legal theories of an attorney concerning that litigation. OAG 95-ORD-18.

Travel expense records do not, in general, disclose communications by the client or attorney in relation to the specific matter for which the attorney was retained, and where there has been little or no effort to insure confidentiality in the handling of the records, or to protect the information contained therein from general disclosure, the assertion of attorney/client privilege fails to protect such records from public inspection. OAG 95-ORD-18.

Where the Lottery Corporation denied an open records request to inspect portions of a survey apparently commissioned by the Lottery Corporation without any explanation of the nature of the record withheld, how it could be characterized as “preliminary” and how the exceptions of KRS 61.880(1) applied to the withheld information, the Lottery Corporation failed to meet its statutory burden of proof to sustain the denial. OAG 95-ORD-27.

A bare allegation that the records withheld are proprietary is not sufficient under the law. OAG 95-ORD-27.

Generally, records of the county clerk are public records, and while portions of these records may properly be excluded from inspection by operation of one or more of the exceptions to public disclosure codified at KRS 61.878(1)(a), the county clerk must make all nonexempt portions of these records available for inspection and copying, regardless of whether they are maintained in electronic or hardcopy format. OAG 95-ORD-43.

Although the county clerk is required by subsection (4) of this section to make all nonexempt portions of public records available for inspection or copying, the clerk is not required to designate an employee to assist the requesting party in inspecting nonexempt records stored in electronic or hardcopy format. OAG 95-ORD-43.

Even if the requested information contained in the public records was exempt from disclosure under this section, the recipient of the records could release it to others without violating the Open Records Act. OAG 95-ORD-77.

The type of storage system in which an agency has chosen to maintain its records, whether by hard copy or electronic database, does not diminish its duties under the Open Records Act, nor does it relieve the agency of the costs attendant to this duty. OAG 95-ORD-82.

Considering that subsection (4) of this section mandates redaction of excepted material when it is commingled with nonexcepted material and that the reasonable fee provision found at KRS 61.874(3) specifically excludes the staff cost required, it is clear that the General Assembly intended that public agencies bear the cost of redaction. OAG 95-ORD-82.

The deletion of juvenile law enforcement records, per KRS 610.320(3) and KRS 61.878(1), from an existing database of arrest records is not equivalent to the production of a record in a specially tailored or nonstandardized format within the meaning of KRS 61.874(3); thus, the Division of Police is required to discharge this duty under subsection (4) of this section, provide the requested records, and bear the cost of redaction. OAG 95-ORD-82.

The absence of statutory language making background investigation reports confidential, coupled with the express language in KRS 61.884 and in subsection (3) of this section mandating that any person shall have access to any public record relating to him, supports the conclusion that the Kentucky State Police acted improperly in denying a request from an applicant of the State Police cadet trooper class to review the background investigation reports. OAG 95-ORD-84.

Where a private investigator, who was retained by a driver involved in an accident to locate the other driver involved in the collision, requested copies of motor vehicle registration records and records reflecting insurance coverage, the Transportation Cabinet did not violate the Open Records Act by partially denying the private investigator’s commercial request since the strong privacy interest outweighed the nominal public interest which would be served by disclosing the owner’s address, birthdate and social security number. OAG 95-ORD-151.

If the nature of the request for records is unrelated to the furtherance of the citizens’ right to monitor public agency action, which is the fundamental purpose of the Open Records Act, then the countervailing interests, such as the cognizable privacy interest of a vehicle owner in the nondisclosure of her home address and social security number, must prevail. OAG 95-ORD-151.

The Jefferson County Department of Animal Control did not violate the provisions of the Open Records Act by denying attorney’s request for animal licensure records, where the records were to be used for mail solicitation, a commercial purpose, and not for the purpose of exposing public agency to public scrutiny, which is fundamental to the Act, and where disclosure of the information contained in these records would constitute a clearly unwarranted invasion of personal privacy. OAG 95-ORD-153.

A member of a school board is entitled to documents of the school system which relate to a legitimate governmental purpose and the board member’s public function. If the request is for records which fall outside this area, then the board member’s right of inspection would be the same as that of any other citizen under the Open Records Act. OAG 96-ORD-110.

If a board member makes a request for copies of records under the Open Records Act, then he or she may be charged a reasonable fee for copies of the public records. OAG 96-ORD-110.

The Lexington Fayette Urban County Division of Policy properly relied on subsection (1)(a) of this section in denying the Lexington Herald-Leader’s request for an unedited copy of an incident report relating to the shooting of a juvenile. A policy of blanket nondisclosure relative to the names of juvenile victims of crimes, along with personally identifiable information, is not endorsed, although depending on the nature and circumstances of the crime, the juvenile’s privacy interest may be superior to the public’s interest in disclosure. OAG 96-ORD-115.

Kentucky Regional Planning and Development Agency improperly withheld unit price calculation worksheets, provider staffing matrix, and other documents included in the sealed bid packages for the social services projects identified in ElderServe’s request. OAG 96-ORD-135.

The language of KRS 61.880(2)(a) clearly indicates that the Attorney General’s role in adjudicating open records disputes is narrowly circumscribed. He is only authorized to review a public agency’s denial of a request to inspect a public record per KRS 61.880(2)(a), or a complaint that the intent of the Act is being subverted by an agency short of denial of inspection per KRS 61.880(4). The Attorney General does not have authority to entertain a third party claim that disclosure of public records would constitute a clearly unwarranted invasion of personal privacy, or is inconsistent with any of the other exemptions codified at subsections (1)(a) to (l) of this section. OAG 96-ORD-148.

Rate filings are not excluded from the mandatory disclosure provisions of the Open Records Act by operation of subsection (1)(i) of this section, relating to preliminary drafts, notes, and correspondence with private individuals. Although these filings are predecisional, until approved or disapproved by the Department of Insurance, and thus might otherwise be treated as exempt per subsection (1)(i) of this section, KRS 304.2-150 (3)(a)(1) categorically states that rate and form filings and information filed in support thereof shall be open. Whatever the merits of its arguments under KRS 61.872 to 61.884 , the Department is bound by the mandatory disclosure provisions of its own statutes. OAG 96-ORD-155.

A municipal utility was within its rights in refusing to disclose sewer bills for certain customers. Specific customer billing information is private information which does not fall under the domain of the open records law. Such information can be used to infer a particular life style of a residential customer and may suggest the competitive position of commercial and industrial customers. OAG 96-ORD-176.

A city is foreclosed from adopting a policy of blanket nondisclosure of police officer’s identities pursuant to subsection (1)(a) of this section. Consistent with past open records decisions dealing with public employee discipline, and the significant interest in public oversight of employee discipline, the city should exercise even greater restraint in withholding the identities of the officers against whom complaints are made, and only upon the strongest possible showing that disclosure would constitute a clearly unwarranted invasion of personal privacy. OAG 96-ORD-177.

City of Louisville violated provisions of the Open Records Act in denying the Commission on Human Rights access to records containing notations of telephone complaints against police officers which were neither signed nor verified. As to the class of open records requesters generally, the city’s reliance on subsections (1)(i) and (j) of this section was misplaced, and its reliance on subsection (1)(a) of this section to authorize blanket nondisclosure of the identities of complainants and officers did not find support in recent caselaw. With respect to the Commission specifically, although subsection (5) of this section is intended to promote agency sharing of records, it is not a mandatory stricture, and the city was not obligated to release otherwise exempt information which appeared on the telephone complaints to it. OAG 96-ORD-177.

In the absence of a particularized showing that an individual complainant’s identity was properly withheld, as for example where the complainant requests anonymity or could reasonably expect confidentiality, the city cannot withhold this information. Stated alternatively, if particular entries are properly excludable pursuant to subsection (1)(a) of this section, the city may withhold those entries by providing particularized justification for denial. OAG 96-ORD-177.

Subsection (5) of this section notwithstanding, the City of Louisville could properly withhold particular entries appearing on the records provided it demonstrated that the public’s interest in disclosure was outweighed by the individual’s privacy interest. The city was not permitted, with respect to the Commission, or the public generally, to adopt a policy of blanket nondisclosure relative to such entries. OAG 96-ORD-177.

There is no unqualified right for one entity to examine the records of another in their entirety and without restrictions. To the extent that prior decisions hint at such an “unqualified right” of access, those decisions are hereby modified. Although public agency sharing of records and information is a laudable goal, each agency must retain a reasonable measure of discretion to decline the invitation to share its records. OAG 96-ORD-177.

Although an “in-car evaluation” performed by a rehabilitation center pursuant to licensing process of attorney’s client may be excluded from the public generally, pursuant to subsection (1)(a) of this section, as a record the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, the report was not exempt as to the requester here, an attorney representing the individual who is its subject. OAG 96-ORD-267.

County public schools system properly relied upon subsection (1)(a) of this section in denying newspaper reporter’s request for information as to each individual employee’s race and gender. Providing the requester with alternative information, through a computer printout, as to the specific number of employees at each location which included personnel totals by race and sex broken down by schools, salaried employees and hourly employees met the principal purpose of the Open Records Act. This alternative information allowed the citizen to monitor the functioning and operations of the public agency and to be informed as to what their government was doing. OAG 96-ORD-232.

Denial of request of newspaper writer for copies of or access to County Urban Government’s Division of Revenue records containing information on delinquent sewer user taxes, landfill user fees, or other Urban County Government fees and taxes for twenty individuals who were Urban County Government council members or candidates for that office was inconsistent with the Open Records Act. The disclosure of the requested records does not constitute a clearly unwarranted invasion of personal privacy exempted from disclosure under subsection (1)(a) of this section and the records should be made available for the reporter’s inspection. The public interest to monitor who has failed to meet their legal obligations or has been given preferential treatment outweighed any privacy interests involved. OAG 97-ORD-9.

Subsection (1)(k) of this section operated in tandem with federal drug testing statutes and regulations to prohibit the disclosure of the results of drug tests administered to school bus drivers in the county school system. Although only the results of the tests were requested and not the identities of the individuals tested, such disclosure still would have violated federal law by identifying individuals tested since one could infer that persons discharged contemporaneously with the drug testing process tested positive. OAG 97-ORD-2.

Subsection (5) of this section notwithstanding, the City of Louisville could properly withhold particular entries appearing on the records provided it demonstrated that the public’s interest in disclosure was outweighed by the individual’s privacy interest. The city was not permitted, with respect to the Commission, or the public generally, to adopt a policy of blanket nondisclosure relative to such entries. OAG 96-ORD-177.

The Legislative Research Commission (LRC) violated the Open Records Act in denying newspaper access to a search warrant issued by a federal court and executed by a federal agency relating to an LRC employee and travels of state legislators. The search warrant was a “public record” for purposes of Kentucky’s Open Records Act and it has never been held that a public agency can rely on an exemption under the federal Freedom of Information Act, the federal Privacy Act, or a federal regulation applicable to the United States Department of Justice as an exception under subsection (1)(k) of this section. OAG 96-ORD-244.

The language at the foot of a facsimile cover sheet warning against “unauthorized dissemination or copying,” which is standard prescriptive language appearing on facsimile cover sheets, does not relieve a public agency of its duties under the Open Records Act, or otherwise abrogate, abridge, or nullify the Act. The language is aimed at notifying unintended recipients of the facsimile transmission that the records contained therein may be confidential, and should be returned to the sender. It does not constitute an independent basis for denying access to public records. OAG 96-ORD-267.

Kentucky Employers’ Mutual Insurance Authority is a public agency, as that term is defined at KRS 61.870(1)(b),(f), and (i), and its records must be made available to the public unless excluded from inspection by one or more of the exceptions codified at KRS 61.878(1)(a) to (l). OAG 97-ORD-66.

Kentucky Employers’ Mutual Insurance Authority is a public agency, as defined in KRS 61.870(1)(b), (f), and (i), and its records are public records, as defined in subsection (2) of this section and its operational records, including its personnel handbook, documents reflecting hotel and car rental reservations, leases, contracts for public relations or advertising services, financial audits, travel agency invoices, and contracts and billing records for its attorneys do not qualify for exemption under subdivision (1)(a) of this section and these records must be released; however, with respect to employee personnel files, records unrelated to public employment which are found in those files are excluded from public inspection by subdivision (1)(a) of this section and because both exempt and nonexempt records are commingled in those files, it is incumbent on requester to specifically identify the personnel records he wishes to inspect. OAG 97-ORD-66.

Although the attorney client privilege, codified at KRE 503, is deemed incorporated into the Act by operation of subdivision (1)(l) of this section, the privilege does not extend to contracts and billing records of attorneys working for a public agency. OAG 97-ORD-66.

Records involving former employees of a public agency cannot be withheld under the terms of confidentiality agreements unless the public agency can demonstrate that the promises of confidentiality are consistent with one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) to (l). OAG 97-ORD-66.

Records created by a public agency in the ordinary course of business are not excluded from public inspection by operation of subdivision (1)(c)1 of this section. OAG 97-ORD-66.

Attorney contract and billing records of public agency are not exempt from public inspection pursuant to subdivision (1)(l) of this section and the attorney client privilege. OAG 97-ORD-66.

University properly relied on subsection (1)(a) of this section to authorize nondisclosure of the amounts of outside income of members of the athletic department, but subsection (1)(a) of this section does not authorize nondisclosure of the sources of that income. OAG 97-ORD-85.

The obvious purpose of the 1992 amendment to subsection (3) of this section was to broaden the scope of the provision to insure that all public employees, not just state employees governed by KRS Chapter 18A, enjoyed an equal right of access to records relating to them. An interpretation of this provision which does not include former public employees is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Open Records Act. OAG 97-ORD-87.

Former employee of university was improperly denied access to all otherwise exempt records relating to university’s decision not to renew his contract and all records relating to complaints about him, except those that implicated the federal Buckley Amendment, 20 USCS § 1232g, and any records properly classified as education records within the meaning of the statute may be withheld pursuant to subsection (k) of this section. OAG 97-ORD-87.

Although subsection (3) of this section does not contain a specific reference to former employees, its expansive wording, coupled with the state of legislative intent underlying the Open Records Act, codified at KRS 61.871 , that free and open examination of public records is in the public interest, and the rule of statutory construction, codified at KRS 446.080(1), that all statutes are to be interpreted with a view to promote their objects and carry out the intent of the legislature, compels the result that such subsection applies to former employees. OAG 97-ORD-87.

Cabinet for Health Service properly relied on KRS 61.872(6) and subsections (1)(a), (k) and (l) of this section and various confidentiality provisions found in both state (KRS 209.140 , 210.235 , 214.420 , 214.625 and 620.050 ) and federal law, in denying request for inspection of all nursing facility licensure inspection reports for a two (2) year period where the Cabinet sustained the burden of showing that such request was an unreasonable burden on the Cabinet in describing with specificity the actual volumes of records implicated by the request and where the exemptions to disclosure provided by the state and federal law were mandatory and the difficulty of separation of confidential from releasable information constituted an unreasonable burden. OAG 97-ORD-88.

Upon request for various records relating to recruitment and hiring in the Division of Police the Civil Service Board improperly relied on subsection (1) of this section to extend its response time to thirty (30) days, under FRCP 34(b), and it was instead bound to conform to the procedural requirements of the Open Records Act, and in particular the requirement that it respond to the request within three (3) days, and the Board’s failure to do so constituted a violation of the Open Records Act. OAG 97-ORD-98.

Information appearing in a grant application which does nothing more than reveal the identity of the applicant, where the applicant’s identity is already known, cannot be characterized as confidential. OAG 97-ORD-132.

Subsection (4) of this section applies to all public records in which exempt and nonexempt information is commingled, including those qualifying for partial exemption under subsection (1)(c)2.a. of this section; thus since an application for a grant can, and very likely will, contain both excepted and nonexcepted material, the public agency asserting the right to withhold the excepted material is obligated to separate it and make the nonexcepted material available for examination or justify withholding with specificity. OAG 97-ORD-132.

The language of subsection (1)(c)2.a. of this section is sufficiently broad to extend to information in a grant application that discloses names of investigators, geographic target areas, types of targarted substances, and strategic plans of attack. OAG 97-ORD-132.

Subsection (1)(c)2.a. of this section does not extend to purely statistical information which is not descriptive of any readily identifiable person. OAG 97-ORD-132.

In request for copies of grant application submitted by county drug task force only those portions of the applications which contain excepted material under subsection (1)(c)2.a. of this section may be withheld and to the extent that those portions of the applications contain information which is also recognized as confidential, they may be properly withheld and pursuant to subsection (4) of this section, the Justice Cabinet Division of Grants Management must separate the excepted material and make the nonexcepted material available for examination. OAG 97-ORD-132.

502 KAR 45:065 Section (5) which mandates absolute confidentiality as to investigations conducted by the State Police to determine an applicant’s suitability for employment, modifies and vitiates the terms of KRS 16.040 which directs disclosure of the contents of the investigation, with the narrow exception of the identities of witnesses and informants, specifically referencing the Open Records Act, and since 502 KAR 45:065 Section (5) and KRS 16.040 cannot be reconciled, the statute controls. OAG 97-ORD-136.

While portions of the investigation of State Police, as to applicant’s suitability for employment as a police officer may be withheld by the State Police on grounds of personal nature, the State Police must state in what way the information is personal for without a brief explanation of how the exemption applies the propriety of the invocation of subsection (1)(a) of this section cannot be determined. OAG 97-ORD-136.

Investigation by State Police, in its entirety, as to applicant’s suitability for employment as a police officer was not exempt per subsection (1)(i) of this section as a predecisional document not incorporated into final agency actions, since while portions of the investigation may be characterized as preliminary, the entire record consitituting the background check is not preliminary as it is used to determine applicant’s suitability for employment and is adopted by the State Police as the basis of its final decision to make an offer of employment. OAG 97-ORD-136.

The purpose for which subsections (1)(i) and (j) were enacted, namely to protect the integrity of the agency’s internal decision-making process by encouraging the free exchange of opinions and ideas, is not served by the nondisclosure of an Internal Affairs report which is the basis for the final action taken; this rule extends to use of force inquiries. OAG 97-ORD-168.

A correctional complex’s denial of an inmate’s request for his FBI rap sheet was procedurally deficient under KRS 61.880(1) when it merely stated that the facility was “not the official custodian of that record” without citing the specific exception authorizing nondisclosure; however, the inmate’s response was properly denied under subsection (1)(k) of this section, and 28 USCS § 534. OAG 97-ORD-178.

A list of lost and unclaimed property that is continuously updated and maintained by the Department of the Treasury pursuant to KRS 393.110 and that was displayed at the Kentucky State Fair cannot then be considered a ‘preliminary’ draft; furthermore the fact that the list is disclosed does not constitute a guarantee of the accuracy of the information. OAG 97-ORD-183.

The most effective vehicle to locate owners of unclaimed property is to place the record in the public domain, thus enabling ordinary claimants as well as commercial finders the opportunity to freely and openly examine it; a list of lost and abandoned property maintained by the Department of the Treasury in compliance with KRS 393.311 should therefore be disclosed. OAG 97-ORD-183.

A list of lost and abandoned property reported to the Treasury Department and posted at Kentucky State Fair cannot be characterized as a preliminary draft, note, or correspondence to qualify as an exemption to inspection under subsection (1)(i); nor is it a preliminary recommendation or memorandum in which opinions are expressed as noted in subsection (1)(j); therefore disclosure of the list was proper. OAG 97-ORD-183.

Although the Transportation Cabinet’s denial of a reporter’s request for the contents of the “entire statewide database of driver licenses” was procedurally deficient in that it did not cite to KRS 61.878(1)(k), the federal Drivers’ Privacy Protection Act, 18 U.S.C § 2721, bars the release of this information, and the request was properly denied. OAG 98-ORD-1.

A settlement agreement involving the payment of city funds is a matter with which the public has a substantial concern, and the desire of the plaintiff in that suit to keep secret the amount of money he received can be afforded little weight; the clear presumption is that such agreements must be made available for public inspection. OAG 98-ORD-24.

A confidentiality clause in a settlement agreement reached by the parties to litigation cannot in and of itself create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act; however, a confidentiality clause may require the government to notify an affected party so that the party may act immediately to assert the privacy claims in court. OAG 98-ORD-24.

Although allegations of sexual misbehavior are largely personal, there is no impenetrable barrier to disclosure of records relating to such allegations; this is not to say that individual notations appearing on those records may not be withheld, but in general, where the allegations arise in the context of a public employee’s performance of his or her employment, the public interest in regulation outweighs the employee’s privacy interest, and the government cannot adopt of policy of blanket nondisclosure with regard to a complaint of sexual harassment. OAG 98-ORD-45.

The privacy interest of public employees who have been disciplined for or exonerated of charges of misconduct in the course of their employment is outweighed by the public interest in monitoring agency action; disclosure of such records is not, in general, prohibited by this section as a clearly unwarranted invasion of personal privacy. OAG 98-ORD-45.

Executive Order 92-1059, excluding complaints of sexual harassment from the Open Records Act, has not been enacted into law; whatever binding effect this Order may have on state agencies generally, it does not operate as a statutory enactment restricting confidential records relating to complaints of sexual harassment in state government, which are therefore not excluded from public inspection. OAG 98-ORD-45.

Although there are undoubtedly occasions where there is a legitimate need by a public agency to keep telephone numbers it has called confidential, the Legislative Research Commission cannot adopt a policy of blanket nondisclosure of records reflecting telephone calls from designated state telephone numbers. OAG 98-ORD-92.

Subsection (1)(l) prohibits the disclosure of information which has been made confidential by the General Assembly; thus a teacher’s request for full access to records relating to a complaint filed against her was properly denied, as release of this information is prohibited by KRS 7.410(3). OAG 98-ORD-149.

Although subsections (1)(i) and (1)(j) have generally been construed to authorize the nondisclosure of preliminary notes used in formulating a formal recommendation, but not incorporated into final agency action, such notes must be disclosed pursuant to subsection (3) if they are requested by a public agency employee and relate to him. OAG 99-ORD-3.

Subsection (1)(h) justified the denial of a request for all 911 tape recorded conversations related to a specific fatal automobile accident as it contained information the premature disclosure of which could harm a prospective law enforcement action. OAG 99-ORD-11.

A county sheriff erred in withholding a uniform traffic accident report of a fatal accident in its entirety, since only those portions of the report which were investigative in nature and were to be used in a prospective law enforcement action against one of the drivers could properly be withheld, and the remainder of the report had to be disclosed; thus, the sheriff could redact, or mask, the text under the “accident description” portion of the report, the estimated travel speed of the vehicle, the results of blood alcohol test performed on the driver, and the diagram of the accident scene, but he was required to release an otherwise unredacted copy of the accident report. OAG 99-ORD-11.

A city properly denied a request to inspect records showing the age of all persons that worked for the city during a certain period as the privacy interest of a public employee in the nondisclosure of his or her age is superior to the public’s interest in disclosure where the requester sought such information only because he thought that knowing the age of particular employees might inform the public as to what the city was doing under a particular circumstance. OAG 99-ORD-12.

The Transportation Cabinet properly relied on subsection (1)(j) in partially denying a request for documents pertaining to defective concrete used for the reconstruction of an interstate highway where the disputed documents consisted of a proposal submitted by the cabinet to a contractor relating to the problems with the highway and the contractor’s counterproposal since a review of the documents did not confirm the existence of a “plan” submitted by the company as the proposal and counterproposal were still on the negotiating table and no final resolution of the dispute had been reached. OAG 99-ORD-13.

Subsection (3) vests public agency employees with a right of access to otherwise exempt public records which relate to them; however, it does not relieve public agency employees of the duty to describe those records with sufficient specificity to permit the agency from which the records are sought to identify, locate, and retrieve the records and does not impose an additional duty on the agency to conduct an exhaustive exhumation of records or embark on an unproductive fishing expedition in order to satisfy a nonspecific request. OAG 99-ORD-14.

The Kentucky Revenue Cabinet properly denied a request by an employee for disclosure of documents pertaining to the requester’s EEO complaint against the cabinet. OAG 99-ORD-14.

The Kentucky Revenue Cabinet properly denied a request by an employee for disclosure of applications for employment, employee evaluations, and unsuccessful nominees for distinguished service awards; however, the employee was entitled to disclosure of distinguished service award letters of justification and other supporting documents relating to employees upon whom such awards were conferred. OAG 99-ORD-14.

The Kentucky Revenue Cabinet acted within its authority in releasing employee P-1s after redacting personal information such as home address, home telephone number, and social security numbers. OAG 99-ORD-14.

The Kentucky Revenue Cabinet properly withheld attorney assignment lists, but improperly redacted entries on attorney time sheets inasmuch as those entries contained only general descriptions of services performed rather than substantive legal matters. OAG 99-ORD-14.

The Labor Cabinet properly denied a request by an attorney, on behalf of a city, for a copy of a complaint filed with the cabinet initiating a prevailing wage inspection of the city, as, pursuant to KRS 337.345 , the cabinet was prohibited from releasing the complaint and any information identifying employees contacted by the cabinet in its investigation concerning the workplace violation. OAG 99-ORD-15.

The Kentucky Commission on Human Rights did not violate the Open Records Act in denying a request to inspect all records submitted by an American Legion Post to substantiate the fact that it employed less than eight (8) people and was, therefore, not subject to the commission’s jurisdiction as the records which were requested contained information obtained by the commission pursuant to its authority to conduct investigations of complaints and inspect documents which are relevant to those complaints and, therefore, the commission was prohibited from making the information public without the consent of the American Legion Post except as reasonably necessary to the conduct of proceedings under KRS Chapter 344. OAG 99-ORD-20.

Subsection (3) does not apply to allow an inmate in a correctional institution to obtain all records pertaining to him or her. OAG 99-ORD-23.

The Kentucky State Penitentiary properly relied on subsection (1)(j) in denying a request by an inmate for a copy of all pre-parole progress reports submitted to the parole board by his caseworker as such a report is purely advisory and is not subject to disclosure unless it is incorporated into the parole board’s final decision. OAG 99-ORD-23.

A requestor was entitled to know the names of students enrolled in a future farmers program during a specified period if the county school system had designated this information as directory information; if the school system had not done so, such information, along with all other records generally characterized as education records, was properly withheld. OAG 99-ORD-26.

A policy of blanket nondisclosure of police department records pertaining to a specified individual based on the policy that the privacy rights of victims of crime outweigh the public’s interest in disclosure violates the Open Records Act; in the absence of proof that disclosure of such records will have an adverse impact on the victim, disclosure is required. OAG 99-ORD-27.

Subsections (1)(i) and (1)(j) do not authorize a city to withhold records of criminal victimization as such reports cannot be characterized as preliminary recommendations or preliminary memoranda in which opinions are expressed. OAG 99-ORD-27.

Subsection (1)(i) does not authorize nondisclosure of records of criminal victimization as “correspondence with a private individual.” OAG 99-ORD-27.

A police department did not establish that the public’s interest in release of police records pertaining to domestic disturbances involving a specified individual was outweighed by the individual’s privacy interest. OAG 99-ORD-28.

Subsection (1)(h) did not justify the denial by a police department of a request for records pertaining to domestic disturbances involving a specified individual where the police department indicated that no arrests had been made and made no contention that there was an ongoing investigation or that information in the police report was to be used in a prospective enforcement action. OAG 99-ORD-28.

Subsections (1)(i) and (1)(j) do not authorize a police department to withhold police report records of complaints received from citizens or records they maintained or were compiled incident to or occurring in the agency’s daily operation. OAG 99-ORD-28.

A police department properly denied a request for access to two (2) incident reports involving juvenile victims of crimes where the incidents at issue involved, in one case, sexual contact by forcible compulsion of a 10 year old child by her 13 year-old cousin and, in the other case, sexual contact of a 13 year-old male and a 10 year-old female by a 15 year-old male playmate. OAG 99-ORD-29.

KRS 610.320(3) prohibits disclosure of juvenile law enforcement records, but does not apply when the law enforcement records relate to a juvenile victim of crime; nevertheless, portions of those law enforcement records revealing the identity of the victim may be withheld under authority of subsection (1)(a) when, because of the nature and circumstances of the crime perpetrated against the juvenile, his privacy interests outweigh the public’s interest in disclosure. OAG 99-ORD-29.

Where the requester sought information from a board of education which was contained in numerous records, the board properly afforded the requester an opportunity to examine the records and to compile the information herself. OAG 99-ORD-33.

The State Treasurer properly denied a request for copies of all unclaimed property reports filed by banks with the Treasury Department for a specified year as the reports contained information of a personal or confidential nature the disclosure of which would have constituted an unwarranted invasion of the owner’s personal privacy and would have required unduly burdensome redaction in order to comply with the request. OAG 99-ORD-34.

The Department of the Treasury properly denied a request for access to either its computer database or a hard copy of property reported abandoned in a specified year as disclosure would not advance an open records related public interest. OAG 99-ORD-37.

While a city acknowledged that unofficial, unexecuted drafts of current and past ordinances, resolutions, municipal orders, and executive orders were stored in the computers of third party attorneys, state agencies, and other local agencies by whom they were authored and that such unexecuted drafts might, in some cases, mirror the ordinance, resolution, or order that was adopted, they did not represent final action of the legislative body because they were not adopted and executed and, therefore, they retained their preliminary characterization and qualified for exclusion from public inspection under subsection (1)(i), regardless of where they were reposited, as preliminary drafts. OAG 99-ORD-38.

Where the office of academic affairs of Western Kentucky University issued a reprimand to the director of its Glasgow Extended Campus after an investigation and review of a complaint of sexual harassment by the Equal Opportunity Office, the university improperly withheld the letter of reprimand and the complaint of sexual harassment from which it stemmed, notwithstanding the fact that the university characterized the reprimand as an internal disciplinary procedure; the university could take reasonable steps to protect the identity of the complainant by masking her name and any personally identifiable information which appeared in the complaint, investigative report, and reprimand along with the names of other complainants and witnesses, but the privacy interests of the director were not entitled to the same consideration as he violated the public trust by engaging in improper conduct in the performance of his official duties. OAG 99-ORD-39.

The Western Kentucky University was required to disclose the letter of resignation submitted by the director of its Glasgow Extended Campus after an investigation and review of a complaint of sexual harassment by the Equal Opportunity Office. OAG 99-ORD-39.

The Western Kentucky University was required to disclose the minutes of the open portion of a meeting of a sexual harassment grievance appeal committee pertaining to a complaint against the director of its Glasgow Extended Campus. OAG 99-ORD-39.

The Western Kentucky University was required to disclose records documenting the disbursement of public funds to the director of its Glasgow Extended Campus after an investigation and review of a complaint of sexual harassment by the Equal Opportunity Office, notwithstanding a confidentiality agreement relative to the amount and character of the consideration paid. OAG 99-ORD-39.

With respect to correspondence between the Western Kentucky University and the director of its Glasgow Extended Campus in which the director was asked to resign or threatened with termination or a change in status or duties, because the director resigned before such threats could be carried out, such correspondence could be withheld pursuant to subsection (1)(j). OAG 99-ORD-39.

Evaluations of city employees for a specified period were not subject to disclosure as they were excluded from public inspection by operation of subsections (1)(a), (1)(i), and (1)(j). OAG 99-ORD-42.

Although memoranda containing recommendations that were never adopted and forms that were never approved may properly be characterized as preliminary documents within the meaning of subsections (1)(i) and (1)(j), it is incumbent on the agency to determine if responsive records exist and, if they do not, to specifically so indicate; it is not enough to advise the requester that “if any documents exist,” they are exempt. OAG 99-ORD-42.

A correctional institution properly denied an inmate’s request for his own psychological and psychiatric records pursuant to KRS 197.025(1). OAG 99-ORD-47.

Subsection (1)(e) did not allow the Revenue Cabinet to deny a request for a copy of the Kentucky Revenue Cabinet Protest and Appeals Guidelines, which could be characterized as a general summary of revenue statutes, regulations, and policies and the uniform operating standards and procedures to be followed by cabinet employees to ensure fair and consistent handling of taxpayer protests and appeals. OAG 99-ORD-51.

A Commonwealth’s Attorney did not violate the Open Records Act in denying a request for all records in his custody relating to a specific indictment. OAG 99-ORD-53.

A request for materials generated during the investigation of a complaint against a supervisor of the Department of Corrections was properly denied as preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations, and recommendations, as well as investigative reports that do not represent the agency’s final action may be withheld from public inspection and as no final agency action occurred because the investigation was preempted by the supervisor’s retirement before the investigation was completed. OAG 99-ORD-55.

A request for access to a special report to the parole board by a parole officer was properly denied as the report was prepared by a probation and parole officer in the discharge of his official duties and, therefore, the record was exempt from disclosure under KRS 439.510 . OAG 99-ORD-55.

A sheriff’s department properly denied a request for copies of all documents related to the department’s internal investigation of a complaint filed by the requesters against one of the department’s deputies as the records were preliminary in nature, contained investigative notes, witness statements, and observations, and were neither incorporated into nor made a part of the final agency action. OAG 99-ORD-56.

The Kentucky State Penitentiary properly denied an employee’s open records request for a copy of his polygraph results on the ground that the polygraph test pertained to an ongoing internal administrative investigation, and the fact that the requester was an employee of the State Penitentiary did not require a contrary result. OAG 99-ORD-60.

The Cabinet for Families and Children, Department for Community Based Services, properly denied a request for copies of records generated in the course of an investigation conducted by the department of the former wife of the requester as she was a client of the cabinet and, therefore, was entitled to confidentiality. OAG 99-ORD-61.

The Kentucky State Penitentiary properly denied an open records request for a copy of an employee’s polygraph results as the record was part of an ongoing investigation of both Internal Affairs and the Kentucky State Police and, thus, was exempt from disclosure. OAG 99-ORD-62.

Subsection (1) does not prohibit access by a party litigant to nonprivileged, nonexempt public records in the custody of a public agency against which the litigant had brought suit or by which he had been sued; only if the records to which the party litigant requests access are both exempt and nondiscoverable does the subsection (1) authorize nondisclosure. OAG 99-ORD-64.

A Workforce Development Accident Report was not exempt from disclosure under subsection (1)(a) and was subject to disclosure, with personal information redacted, as disclosure would provide information as to how a public agency handles its workplace injuries and safety of its employees. OAG 99-ORD-65.

Medical records submitted to a public agency indicating that the health of a public employee, injured in the workplace, was such that she was authorized by attending physicians to return to work were not exempt from disclosure under subsection (1)(a). OAG 99-ORD-65.

Subsections (1)(a) and (1)(j) did not justify the refusal of a correctional facility to disclose copies of previous grievances filed with the facility against sick abuse and copies of previous grievances filed for denial of off days or shift change due to time and attendance; such grievances were synonymous with complaints and were subject to disclosure after the redaction of certain information pursuant to those subsections. OAG 99-ORD-72.

Subsection (1)(a) did not justify a correctional facility’s provision of a call-in log with the “reason” column deleted; although the facility asserted that the basis for the blanket redaction was that the column contained medical information and information of a personal nature, routine call-in log reasons, such as sick, cold, doctor’s appointment, late arrival, etc., would not be information in which an employee would normally have an expectation of privacy. OAG 99-ORD-72.

The time and attendance records of the security staff of a correctional facility, in relation to which public monies are expended, could not be considered as being entirely of a personal nature, the disclosure of which would constitute an unwarranted invasion of personal privacy, under subsection (1)(a); such records were subject to disclosure after the redaction of confidential information, such as social security numbers and home addresses. OAG 99-ORD-72.

With the exception of the redaction of a grievant’s security number and the reference to employee evaluation ratings he received for employee conduct, a correctional facility improperly redacted information contained in a grievance file since the commissioner, in reviewing the grievance, referenced the responses to his grievance at the various supervisory levels and incorporated them as a basis for his final determination. OAG 99-ORD-72.

A correctional facility was required to release information regarding sick leave and use under an open records request, notwithstanding its contention that such disclosure would nullify the aegis provided by the Americans with Disabilities Act for the same information. OAG 99-ORD-72.

Response cards submitted by parents of children enrolled at a middle school to the county public schools, reflecting the decision to transfer their children from the school, qualified for protection as education records under both federal and state acts and, therefore, were exempt from disclosure under subsections (1)(k) and (1)(l). OAG 99-ORD-73.

Response cards submitted by parents of children enrolled at a middle school to the county public schools, reflecting the decision to transfer their children from the school, were exempt from disclosure under subsection (1)(a). OAG 99-ORD-73.

The Kentucky State Police did not violate the Open Records Act in denying requests for copies of the investigative files relating to the deaths of two (2) individuals, which requests were submitted on behalf of a life insurance company, where investigations into those deaths were still active. OAG 99-ORD-74.

The burden of proving that the records withheld qualify for exclusion under subsections (1)(c)1. or (1)(c)2. rests with the public agency; thus, where the agency did little more than recite the language of the exception, without explaining how it applied to the disputed records, the agency failed to establish that the exception applied. OAG 99-ORD-81.

Subsection (1)(h) did not support a police department’s refusal to release CrimeCom reports, which were compilations of city-wide crime statistics and reviews of those statistics in analyzing prospective and past enforcement actions; however, the department could withhold those portions of the reports which related to formulated strategies aimed at crime reduction in targeted areas of the city, if the information contained therein could be used to circumvent or violate the law thus necessitating an immediate revision of policy. OAG 99-ORD-83.

A city violated the Open Records Act in denying a request for copies of all applications for building permits and the building permits issued for specified years, notwithstanding the assertion that the building permits contained information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, since any privacy interest at issue was outweighed by the public’s interest in disclosure as inspection of the records would clearly advance the public’s interest in insuring that the city is properly executing its statutory function with regard to building permits; however, the home addresses and telephone numbers of applicants could be redacted to protect their privacy. OAG 99-ORD-87.

Subsection (1)(c)1. is only applicable where disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed the records, namely the applicant for the building permit, and not the architect whose building plans accompany the application; the exemption’s protection simply does not extend to the records of an architect employed by the applicant or acting for the applicant in an agency capacity. OAG 99-ORD-88.

Neither subsection (1)(c)1. nor (1)(c)2. permit a city to deny a request for copies of building plans filed with the city for a particular piece of property. OAG 99-ORD-88.

If building plans have been copyrighted, the protection of the federal law, incorporated into the Open Records Act by operation of subsection (1)(k), extends to those plans and they may properly be withheld. OAG 99-ORD-88.

Based on the fact that the requested records were the subject matter of a discovery dispute currently pending before the Kentucky Unemployment Insurance Commission, and the conclusion that the factual circumstances surrounding the appeal supported the Kentucky Lottery Corporation’s position that the open records request was submitted on behalf of a party to that litigation, the Attorney General declined to render a decision on the issue. OAG 99-ORD-92.

The Kentucky State Police properly denied a request for a copy of a taped interview of a witness conducted by the State Police as the cases in which the interview was used were still active pending exhaustion of the appeals process. OAG 99-ORD-93.

The Office of Education Accountability properly denied a request for access to an intra-office memorandum and the identity of an informant, which related to the requester’s attempt to hack into or invade the agency’s computer system. OAG 99-ORD-96.

A city did not violate the Open Records Act in denying a request for records relating to a municipal utilities company and the break-up of the company as the relevant documents consisted of preliminary drafts, notes, and correspondence with private individuals. OAG 99-ORD-98.

Subsections (1)(c)1. and (1)(c)2. did not permit the blanket denial of a request for a copy of community block grant application, although the portion of the application which contained sensitive financial information, generally recognized as confidential or proprietary, could be redacted. OAG 99-ORD-99.

The Kentucky State Penitentiary properly denied a request for records containing the names and home addresses of all penitentiary employees and the penitentiary’s master menu as such records did not pertain to the inmate himself. OAG 99-ORD-102.

A requester was entitled to inspect a copy of an intra-office memorandum which described a verbal complaint made against an employee of the Department of Corrections and a copy of his letter of resignation since, otherwise, there would be no way for the public to evaluate a complaint made against a public employee in a matter related to his job performance and a matter about which the public has a right to know, and more importantly, no way for the public to effectively monitor public agency action and ensure that the agency is appropriately investigating and acting upon allegations of employee misconduct. OAG 99-ORD-105.

In responding to a request for various records and information pertaining to a police officer, a county government properly redacted the officer’s social security number and the grade he received on his certification exam, both of which appeared on his radar certification training records, as disclosure of this information would have constituted a clearly unwarranted invasion of the officer’s personal privacy. OAG 99-ORD-113.

The Department of Corrections did not violate the Open Records Act in denying an inmate’s requests for copies of his pre-parole progress reports since the reports, which were not incorporated into the final decision of the parole board, were preliminary documents exempt from disclosure under subsection (1)(j). OAG 99-ORD-114.

The Department of Corrections did not violate the Open Records Act in denying an inmate’s requests for copies of his pre-parole progress reports as the reports were prepared by institutional parole officers and, therefore, qualified for exclusion under KRS 439.150 , incorporated into the Open Records Act by operation of KRS 61.878(1)(l). OAG 99-ORD-114.

A school district improperly refused to release a copy of a letter of suspension of a former principal of an elementary school and the principal’s letter of resignation, notwithstanding that no final action was ever taken against the principal because of her resignation, since, otherwise, there would be no way for the public to evaluate a complaint made against a public employee in a matter related to her job performance and a matter about which the public has a right to know, and more importantly, no way for the public to effectively monitor public agency action, and insure that the agency is appropriately investigating and acting upon allegations of employee misconduct. OAG 99-ORD-116.

Audio recordings and hand-written notes of investigators hired by the Kentucky Board of Psychology in connection with the investigation of certain psychologists were exempt from disclosure under subsections (1)(i) and (j). OAG 99-ORD-156.

A county board of education properly denied a request for records of corporal punishment conducted in the school system as the release of the information would have constituted an invasion of personal privacy of the students involved. OAG 99-ORD-160.

A county police department improperly relied on subsection (1)(h) in denying a request for various records relating to the radar unit used by a police officer when he issued a speeding citation. OAG 99-ORD-162.

Subsection (1)(h) does not permit the blanket nondisclosure of criminal investigative files of law enforcement agencies until a defendant has served out his sentence or been executed; law enforcement agencies are authorized to withhold investigative records upon a clear showing that further judicial proceedings remain a significant prospect. OAG 99-ORD-170.

A criminal investigative file in the custody of a police department does not become part of the prosecution file and thus enjoy permanent protection from public inspection. OAG 99-ORD-170.

A correctional facility properly denied an inmate’s request for copies of walk logs showing inmates on restricted privileges and for receipts for how much the penitentiary spent on cassette tapes for court call records since the inmate’s name did not appear on the requested records and he was not entitled to records of other inmates or records that did not pertain to him. OAG 99-ORD-188.

Unless a county department of solid waste could make a particularized showing that individual complainants’ identities were properly withheld, as for example where the complainant requested anonymity or expressed specific fear of retaliation by the individual against whom the complaint was lodged, its reliance on subsection (1)(a) to support its partial denial of a request to inspect all complaints and documents about the requester’s property was misplaced. OAG 99-ORD-193.

The Labor Cabinet properly relied on subsection (1)(h) in denying a request for copies of records from the cabinet’s occupational safety and health investigative file regarding a specified construction company because the investigation was ongoing. OAG 99-ORD-195.

The Cabinet for Families and Children properly relied on KRS 61.878(1)(a), in addition to KRS 194B.060 and KRS 620.050(4), which are incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying a request for a copy of the Children’s Protective Services Report relating to two (2) children identified in the request and their mother. OAG 99-ORD-197.

The Workers’ Compensation Funding Commission’s withholding of portions of requests for proposals to provide investment performance analysis and consulting services to the commission under subsection (1)(c)1., was proper as the commission established that the withheld portions were confidential and proprietary matters; the information included the precise formulae or processes which the companies would employ to provide the services the commission sought, including: proprietary ranking systems, policies and software; individual personnel data and bios; company customers and references; fee mechanisms; company research profiles; and proprietary scorecard ratings on two (2) of the commission’s current money managers. OAG 99-ORD-201.

Records generated by a polygraph examiner in the course of administering a polygraph examination may properly be withheld pursuant to subsection (1)(j). OAG 99-ORD-204.

The actual polygraph test of a person, as well as the examiner’s notes and report, may be withheld from public inspection pursuant to subsection (1)(a), the privacy exception to the Open Records Act. OAG 99-ORD-204.

A correctional facility properly denied the open records request of an inmate at the institution for copies of records which pertained to his request for a transfer to another correctional facility and to his protective custody hearing since the documents at issue remained preliminary documents and were, therefore, exempt under subsection (1)(j). OAG 99-ORD-205.

With one exception, the Department of Insurance properly partially denied a request for records relating to an inquiry that was conducted concerning a forgery complaint against an employee of the department; the withheld documents, with one exception, were preliminary drafts or notes and, therefore, were exempt from disclosure under subsections (1)(i) and (1)(l). OAG 99-ORD-206.

A city clerk improperly denied a request for an application for entertainment permit, notwithstanding the assertion that the application was preliminary in nature and had not been the subject of official action by the city. OAG 99-ORD-207.

The Kentucky Judicial Form Retirement System violated the Open Records Act when it denied a request for records indicating the actual retirement pay of a specific retired judge, with the exception of those records reflecting transfer or service from the Kentucky Employment Retirement System, total service, the statutory monthly pension, and the “bottom line” retirement pension. OAG 99-ORD-209.

An agency may not withhold attorney billing records with regard to litigation involving the agency while the litigation is pending. OAG 99-ORD-212.

The Transportation Cabinet did not properly rely on subsection (1)(f) in denying a request for a copy of a map of a proposed highway that was publicly displayed at a public meeting regarding the highway since a map is not the functional equivalent of the contents of a real estate appraisal or an engineering or feasibility estimate or evaluation. OAG 99-ORD-215.

The Transportation Cabinet did not properly rely on subsection (1)(j) in denying a request for copies of public comments regarding a proposed highway. OAG 99-ORD-215.

A correctional facility did not violate the Open Records Act in denying an inmate’s request for his presentence investigation report since such report was confidential under KRS 439.510 . OAG 99-ORD-216.

A county school system did not violate the Open Records Act in denying a request to inspect a videotape recording of an incident involving the requester’s son that occurred on a county school bus; the videotape qualified for exclusion from public inspection under KRS 61.878(1)(k) and (1)(l) which incorporate the Family Educational Rights and Privacy Act and its state counterpart into the Open Records Act as it contained information on more than one student and such information was inextricably intermingled and therefore nonsegregable, and, therefore, the school system could not disclose the videotape in such a way as to meaningfully honor the rights of the requester to inspect the tape without violating the corresponding rights of the other students and their parents in nondisclosure of the tape to third parties. OAG 99-ORD-217.

A planning commission could not deny a request by a newspaper editor for a copy of a report regarding a commissioner prepared for the planning commission by a county ethics board on the basis of subsection (1)(a) since the public interest in disclosure of the ethics board’s opinion outweighed any privacy interests that the commissioner may have had in his personal finances. OAG 99-ORD-219.

A planning commission could not deny a request by a newspaper editor for a copy of a report regarding a commissioner prepared for the planning commission by a county ethics board on the basis of subsection (1)(k) since that subsection applies only to records the disclosure of which is prohibited by federal law or federal regulation. OAG 99-ORD-219.

A planning commission could not deny a request by a newspaper editor for a copy of a report regarding a commissioner prepared for the planning commission by a county ethics board on the basis of subsection (1)(l) as there is not state statute authorizing confidential advisory code of ethics opinions. OAG 99-ORD-219.

With regard to a request for copies of applications for 2000 racing licenses and 2000 racing dates for all Kentucky racetracks, the applications did not qualify for exclusion under subsection (1)(i), but portions of the applications could be withheld under subsection (1)(c)2.d. upon a showing that those portions were confidentially disclosed to the Kentucky Racing Commission, were generally recognized as confidential or proprietary, and were compiled and maintained for the grant or review of a license to do business. OAG 99-ORD-220.

A county human relations commission did not violate the Open Records Act by denying a request for access to the contents of the file relating to the requester’s housing discrimination case since the requested records contained information obtained by the county human relations commission pursuant to its authority under KRS 344.250 to conduct investigations of complaints and, therefore, the commission was prohibited from making the information public except as reasonably necessary to the conduct of proceedings under KRS Chapter 344. OAG 99-ORD-224.

A correctional facility’s partial denial and redaction of an inmate’s polygraph results was consistent with the statute since, although the polygraph exam was part of a disciplinary action against the inmate, the examiner’s test and opinion as to the truth and veracity of the inmate’s answers were not relied on, incorporated into, or made a part of the warden’s decision in the disciplinary action and, therefore, the record retained its preliminary character. OAG 00-ORD-3.

Subsection (1)(a) did not justify a school district’s denial of access to a settlement agreement with a former employee since a review of the settlement agreement revealed little if anything which would cause the former employee such serious personal embarrassment or humiliation that it would overcome the presumption of openness; although brief references to the incident giving rise to her termination appeared in the agreement, these details no doubt came to light in the jury trial which resulted in her acquittal, appeared in the court record, and received media coverage, and the former employee’s desire to keep secret the amount of money she received, or the terms of the settlement, could be accorded little weight. OAG 00-ORD-5.

A school district’s denial of access to a settlement agreement with a former employee could not be justified by subsection (1)(l), operating in tandem with KRS 161.790(5), since the latter statute does not shield from disclosure a settlement agreement entered into by a teacher and a school district. OAG 00-ORD-5.

There is no impediment to the use of the Open Records Act to secure nonexempt records despite the presence of litigation between the requester and the agency. OAG 00-ORD-6.

A county public defender corporation improperly denied access to its fiscal budget on the ground that the record contained information which involved and related to the employees of the corporation, who were not public employees, and that disclosure of this information would constitute a clearly unwarranted invasion of their personal privacy; to the extent those employees’ salaries were publicly funded, the public had a legitimate interest in records pertaining to their employment, such as their position descriptions, salaries, resumes (reflecting prior work experience, educational qualifications, and information regarding ability to discharge the responsibilities of employment), and disciplinary actions stemming from job-related misconduct, although matters of a purely personal nature, such as home addresses, social security numbers, medical records, marital status, etc., could be withheld, as disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. OAG 00-ORD-6.

Where the requester was biologically related to, and professionally associated with, the plaintiff in a federal lawsuit to which his records request directly related, subsection (1) applied to him as a person attempting to obtain information for a litigant outside the rules of discovery as it defied logic to suggest that his interest in the records was that of a disinterested third party or purely academic. OAG 00-ORD-10.

A city did not meet its statutory burden of proof in sustaining its denial of a request on the basis of subsection (1)(i), (j), or (l) as the city did not adequately explain how the cited exceptions applied to the records withheld. OAG 00-ORD-10.

The Kentucky High School Athletic Association properly relied upon subsection (1)(j) in denying a request for “Top 25” and “Scratch” lists since the lists were preliminary recommendations in which opinions were expressed; the very act of a coach in electing to rank or scratch a game official constituted the expression of an opinion by the coach, and the ultimate decision-making authority rested with the assigning secretary who relied on the lists as an aid in assigning game officials. OAG 00-ORD-29.

The Kentucky High School Athletic Association properly relied upon subsection (1)(a) in denying a request for “Top 25” and “Scratch” lists since disclosure of such records would constitute a clearly unwarranted invasion of personal privacy in the absence of a superior public interest in inspection of the records; in the evaluative records at issue, officials’ performances were rated as high, moderate, or low, and in some instances the officials were entirely disallowed, or scratched, as unacceptable, and given the passions that competitive sports ignite, and the largely subjective nature of the duties the officials performed, the records warranted even greater protection than a typical evaluation. OAG 00-ORD-29.

An agency which provided substance abuse treatment services at a halfway house properly denied a request for a letter and other records prepared by the probation and parole officer pertaining to the requester’s husband pursuant to KRS 439.510 and subsection (1)(l) since these statutes operated in tandem to exclude from inspection all information obtained in the discharge of official duty by any probation or parole officer. OAG 00-ORD-45.

A request for inter-office notes was properly denied as the notes constituted preliminary notes and memoranda and were not incorporated into a final action of the agency. OAG 00-ORD-62.

A request for employee records was properly denied pursuant to subsection (1)(a) as the files requested no doubt contained a mixture of exempt and nonexempt records and the requester failed to specify the particular documents within such files to be inspected. OAG 00-ORD-62.

A request for the Kentucky State Police’s investigative file in a specified matter was properly denied on the basis that the investigation was still open and ongoing. OAG 00-ORD-70.

A school system properly denied a request for documentation collected and/or generated by the school system that was forwarded to a Commonwealth’s Attorney regarding a former transportation department supervisor since the Commonwealth’s Attorney and/or the Kentucky State Police were still in the process of investigating the matter. OAG 00-ORD-78.

The Office of the Attorney General’s Medicaid Fraud & Abuse Control Division properly denied access to records relating to the Division’s investigation into alleged improprieties in the Cabinet for Health Services’ Office of the Inspector General and Division of Licensing and Regulation pursuant to subsection (1)(h) since (1) the Medicaid Fraud & Abuse Control Division of the Attorney General’s Office is a law enforcement agency, (2) the disputed documents were compiled in the process of detecting and investigating statutory or regulatory violations, and (3) disclosure of the records would have revealed the identity of witnesses/informants and would have been a premature release of information to be used in a potential prospective law enforcement action(s). OAG 00-ORD-81.

A correctional facility properly denied an inmate’s request for, inter alia, records pertaining to disciplinary actions against employees of the facility as such records did not pertain to the inmate. OAG 00-ORD-83.

A written statement requested by an attorney on behalf of his client, who was a public agency employee, related to an ongoing investigation relating to the employee conducted by the agency and, therefore, his request was properly denied. OAG 00-ORD-84.

An agency properly denied an attorney’s request for a copy of a client behavioral plan of a client of the agency, who was involved in an incident with the attorney’s client, on the basis of subsection (1)(l) and KRS 210.235 since the attorney did not satisfy the requirement of the latter statute that he fall within an excepted category of the statute authorizing disclosure of the records and did not obtain a court order. OAG 00-ORD-84.

Subsections (1)(k) and (1)(l), when read in tandem with 28 USCS § 534 and KRS 439.510 , respectively, prohibited the disclosure of the requester’s rap sheet, the record which contains the requester’s entire criminal record, and a presentence investigation report, which contained the rap sheet and which was prepared by the probation and parole officer as part of his official duties. OAG 00-ORD-85.

An agency could properly redact the names and social security numbers of students that appeared in documents to be released to the requester under authority of 20 USCS § 1232g and subsection (1)(a). OAG 00-ORD-88.

A city properly withheld disclosure of an internal memorandum summarizing an internal review by the division of police of the division of fire and rescue under authority of subsections (1)(i) and (1)(j) since the document was preliminary in nature, in that it was a summarization of the former police chief’s opinion as to what had transpired during two (2) events involving a patient and was neither incorporated into nor made a part of final agency action. OAG 00-ORD-89.

A county government properly relied on subsection (1)(a) in partially denying a request to inspect all employment applications of all employees of a division and all employment applications for the three (3) top-ranked persons for a recent open mail-clerk position; the county government released the records but redacted employee home addresses, home telephone numbers, dates of birth, work references, salaries at previous places of employment, drivers’ license numbers, social security numbers, test scores, and oral interview ratings. OAG 00-ORD-90.

An industrial authority properly denied a request for all correspondence between persons representing the industrial authority and either the state or any agency of the United States government concerning loans, grants, or public monies for the development of an industrial park as the authority was in the process of applying for grants and monies and, therefore, the records constituted preliminary records. OAG 00-ORD-95.

A state university improperly relied on subsection (1) as a basis for a blanket denial of a request by an attorney for various records pertaining to a university employee who was involved in litigation with a client of the attorney. OAG 00-ORD-97.

Subsection (1)(a) did not permit a state university to withhold disclosure of various records pertaining to a university employee, including her telephone records, time sheets, job descriptions, records reflecting disciplinary actions against her, and any personal files in her office computer; however, the subsection did permit withholding of portions of the employee’s personnel file that contained such purely personal information as social security number, home address, and home telephone number, as well as her performance evaluation. OAG 00-ORD-97.

Correspondence from or to a contractor under a public contract on issues relating to the administration of that contract cannot be properly characterized as correspondence with a private individual, and such correspondence becomes an open record upon issuance; disclosure is not contingent upon the occurrence of final agency action. OAG 00-ORD-98.

Records which are the work product of an attorney in the course of litigation or advising a client are not discoverable under CR 26.02 and are therefore exempt under KRS 447.154 and subsection (1)(l). OAG 00-ORD-99.

A city properly denied a request for records reflecting the amount of funds that the city area government self insurance trust reserved or recorded as a liability with respect to certain litigation since disclosure of the records would have revealed the mental impressions, thoughts, and conclusions of the attorneys in evaluating and estimating the value of the legal claim and thus was be nondiscoverable and exempt from disclosure. OAG 00-ORD-99.

A city improperly relied on the privacy exception in issuing a blanket denial of a request for specific personnel records, consisting of written complaints, records documenting final resolution of those complaints (including a decision to take no action), and any investigative documents incorporated into the final action on those complaints. OAG 00-ORD-104.

A city police department properly denied a request for records where the requested records were related to and were part of an ongoing enforcement action. OAG 00-ORD-105.

A drug strike force did not violate the Open Records Act in its responses to requests of a reporter to inspect agency records relating to its investigation of complaints filed against the executive director of the drug strike force, alleging sexual harassment and hostile work environment, since there was no written complaint, there were no written evaluations of the executive director, and no final action was taken because the executive director resigned his position. OAG 00-ORD-107.

A city properly relied on the attorney-client privilege and work product doctrine to support nondisclosure of documents responsive to an attorney’s request for records that directly related to anticipated litigation involving his clent’s injuries and the termination of his workers’ compensation benefits, and which satisfied each of the requirements of KRE 503 or could be characterized as “the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative” of the city concerning the anticipated litigation. OAG 00-ORD-111.

A correctional complex and the Department of Corrections properly relied upon subsection (1)(c)(1) in denying an open records request for a copy of a contract between a corporation and correctional complex related to prison industry coupons as the contract included language regarding formulas or processes and codes that the corporation required the correctional complex to utilize to fulfill the processing of the coupons and special offers and the release of such information would have permitted competitors to access practices and information that could then have been pirated for their own use to the detriment of the corporation. OAG 00-ORD-112.

A Commonwealth’s Attorney properly denied a request for a copy of the transcript of testimony of the grand jury hearings regarding two (2) specified indictments and a copy of each indictment as such records were exempt from public release by statute. OAG 00-ORD-116.

A city violated the Open Records Act in regard to a request for access to portions of its business license database when it withheld five (5) entries pertaining to each business licensed and appearing in the database on the basis of a promise of confidentiality, but without reference to one (1) or more of the exceptions codified in the statute. OAG 00-ORD-117.

A city police department did not violate the Open Records Act in denying a request to inspect all documentation and records related to the requester’s application for the position of police recruit since KRS 15.400(3) prohibits disclosure of specifically described information obtained in the application/certification process to peace officers, unsuccessful applicants who wished to become peace officers, and third parties, and the prohibition is, by its own terms, mandatory, and extends not only to background investigations, but also to psychological examinations and polygraph examinations administered pursuant to KRS 15.400(2) and KRS 15.382 . OAG 00-ORD-118.

A county public school system violated the Open Records Act in partially denying a request for records relating to traditional school enrollment policies and residency requirements; the school system’s reliance on KRS 160.705 et seq. and 20 USCS § 1232g, incorporated into the Open Records Act by operation of subsections (1)(k) and (1)(l), was misplaced. OAG 00-ORD-119.

The Transportation Cabinet properly denied a request by an attorney for records pertaining to requests by the attorney’s client for additional compensation under a contract for painting a bridge as such records pertained to preliminary decisions on those requests. OAG 00-ORD-125.

A county board of education properly partially denied a request for information and records pertaining to a high school principal when it furnished redacted copies of his job application and teacher certification, but refused to furnish a copy of his college transcript. OAG 00-ORD-126.

The Department of Local Government properly denied a request for a note pertaining to a particular telephone conversation by a department employee pursuant to subsection (1)(i). OAG 00-ORD-132.

An adjustment center properly denied an inmate’s request for his visitors list with all of his children’s social security numbers, as social security numbers constitute confidential information. OAG 00-ORD-135.

The Department of Insurance properly denied a request for records concerning the department’s 1999 on-site review of 14 managed care plans as part of its patient protection review process as the disclosure of such records was prohibited by KRS 304.2-270 . OAG 00-ORD-136.

Subsection (1)(a) does not authorize the nondisclosure of records reflecting the educational background of an employee of a county attorney’s office, in view of the public’s interest in insuring that public agencies discharge their duty to hire individuals who qualify by virtue of education and experience for the positions they hold. OAG 00-ORD-137.

The county attorney was required to disclose records pertaining to complaints against an employee of the county attorney and upon which final action had been taken, including the decision to take no action. OAG 00-ORD-137.

A sanitation district properly denied a request for a report prepared by a consultant and submitted to the district on possible rate increases as such report was a document containing preliminary recommendations. OAG 00-ORD-139.

A county fiscal court properly denied a request for an advance copy of the draft county fiscal year budget as such draft budget was exempt from disclosure under subsections (1)(i) and (j). OAG 00-ORD-140.

The state police properly denied a request for information about the alleged theft of city water by a car wash owner as KRS 17.150(2) provides for the nondisclosure of intelligence and investigative reports maintained by criminal justice agencies prior to the completion of the prosecution or a decision not to prosecute. OAG 00-ORD-145.

A county school system was not required to disclose bus run reports, including the names of the students assigned to each stop and the times at which the students are picked up and dropped off, the list of students that purchased parking permits at the high school, or attendance reports for each homeroom as such records were exempt from disclosure under subsections (1)(k) and (l) and the federal Family Educational Rights and Privacy Act and its state counterpart. OAG 00-ORD-148.

Once a person is permitted to inspect a document without redactions, he is entitled to receive unredacted copies and the public agency can no longer invoke the privacy exception. OAG 00-ORD-150.

A county division of community corrections did not violate the Open Records Act when it denied a request by an inmate for various records, including names of various persons on floors of a detention center, on the ground that such records did not specifically relate to the inmate. OAG 00-ORD-153.

A county school system was not required to disclose attendance reports at a high school as such records were exempt from disclosure under KRS 61.878 and the federal Family Educational Rights and Privacy Act and its state counterpart. OAG 00-ORD-155.

A school district properly denied a request for various student records, as it had not taken steps to designate any information contained in its student records as directory information; however, disclosure of a “fourth day count” reflecting total enrollment in the district was required as such count contained only raw data and was devoid of any personally identifiable information. OAG 00-ORD-158.

The Education Professional Standards Board improperly relied on subsection (1)(i) in denying a request for a copy of a report prepared by a board investigator into allegations against the requester of misconduct as he was entitled under subsection (3) to inspect and to copy any record including preliminary and other supporting documentation that related to him. OAG 00-ORD-159.

Numerous records in an investigative file pertaining to a murder-suicide were not protected from disclosure under subsection (1)(a), including various written statements, diagrams, and reports, but other records were protected from disclosure under that subsection, including photographs of the crime scene, a recorded statements, and 911 transmissions. OAG 00-ORD-162.

A county school system properly denied a records request by a reporter for copies of termination letters and all documents related to disciplinary action on charges filed by the school superintendent against two (2) teachers as such documents were preliminary correspondence other than correspondence which was intended to give notice of final action of a public agency and preliminary recommendations. OAG 00-ORD-164.

The Kentucky Labor Cabinet properly partially denied a request for a copy of the entire investigative file pertaining to a complaint against a particular company as the file contained preliminary recommendations and preliminary memoranda in which opinions were expressed or policies formulated or recommended. OAG 00-ORD-168.

A development district improperly relied on subsections (1)(i) and (j) in denying a request for documents pertaining to an individual’s resignation from the Department of Energy and employment by a consulting company. OAG 00-ORD-168.

While performance evaluations of public employees are excluded from disclosure by subsection (1)(a), in those exceptional cases where the employee who is evaluated is ultimately responsible for the management of the agency he serves, and his evaluation is not protected from disclosure by that subsection, the evaluation must be disclosed if it forms the basis of final agency action in relation to the employee. OAG 00-ORD-177.

A city properly relied on subsection (1)(j) in initially denying a request for a copy of the summary evaluation of the city manager for the past year as conducted by the city commission; however, the protections afforded by that exemption were forfeited when the city adopted the summary evaluation as the basis for awarding him a pay increase. OAG 00-ORD-177.

The Department of Corrections improperly relied on subsection (1)(j) in redacting information pertaining to good time credit from an inmate’s resident record card before disclosing that card to him, notwithstanding the assertion that such credit was a preliminary determination because the inmate was required to complete a sex offender treatment program before any good time credit could be applied to reduce his sentence. OAG 00-ORD-178.

A city was required to disclose charges brought against a police officer in a specified personnel hearing, notwithstanding the assertion that the city council determined that the officer was not guilty of the charges and that disclosure of the charges would constitute a clearly unwarranted invasion of personal privacy. OAG 00-ORD-181.

A county jailer properly denied a request for various records pertaining to the jail, including names and other information about jail employees and inmates housed in a certain dormitory, as such information did not specifically pertain to the inmate requesting the records and disclosure would have constituted a threat to their security as well as to the security of their families. OAG 00-ORD-182.

With regard to a request for records pertaining to a city wastewater treatment facility, the city failed to establish that disclosure of the individual hauler who dumped a particular site would afford the requester an unfair commercial advantage. OAG 00-ORD-188.

With regard to a request for records pertaining to a city wastewater treatment facility, the city was not required to disclose the names and home addresses of individual customers whose septic tanks were pumped as the disclosure of such information would have constituted a clearly unwarranted invasion of personal privacy. OAG 00-ORD-188.

A training center did not violate KRS 61.884 by not releasing a copy of an inmate’s entire prison file either to the inmate or his attorney of record as some portions of the file were exempt from disclosure under various exemptions of KRS 61.878 . OAG 00-ORD-190.

A university properly denied a request for a copy of a study done by a consultant concerning classified employees as the final study had not yet been submitted and the university had only received preliminary data reports, notwithstanding that the study had been discussed in open forums. OAG 00-ORD-195.

A county corrections department was required to disclose a videotape of an incident involving the requester’s son that occurred in the basement of the Hall of Justice one night, notwithstanding that the Federal Bureau of Investigation had initiated an official investigation to determine whether there had been a civil rights violation, as there was no evidence that the FBI had asked the corrections department to withhold the videotape pending resolution of its investigation. OAG 00-ORD-196.

A public library properly denied a request for a copy of a report produced by a consultant as the report had not yet been adopted and constituted a draft report, containing errors and inaccuracies noted by one or more reviewers, and subject to revision, on a broad range of library related subjects. OAG 00-ORD-197.

A county sheriff’s department erred in issuing a blanket denial of a request for bills for cellular telephones carried by sheriff’s department staff; however, if the billing records contained the phone numbers of informants, victims of crime, and alleged criminal defendants, those entries could be redacted on such basis. OAG 00-ORD-198.

A county sheriff’s department erred in issuing a blanket denial of a request for bills for cellular telephones carried by sheriff’s department staff; however, if the billing records contained the phone numbers of informants, victims of crime, and alleged criminal defendants, those entries could be redacted on such basis. OAG 00-ORD-199.

A public water works was required to disclose records of the salaries earned by its employees, although it could redact personal information, such as home addresses, social security numbers, and materials setting forth information as to amounts withheld from pay checks such as taxes, insurance, retirement, and savings. OAG 00-ORD-203.

An inmate was not entitled to disclosure of raw data from psychological tests that were contained in his sexual offense treatment program file; access to those records was properly denied to prevent the dissemination of the test and data to other inmates prior to their taking the examination and because the inmate was not qualified to utilize or interpret the information. OAG 00-ORD-204.

Computerized criminal record data maintained by the Department of Corrections could not be withheld on the basis of subsection (1)(a), notwithstanding the assertion that personal, identifying entries, such as date of birth, were protected from disclosure because inspection of those entries did not advance an open records related public purpose, as an inmate has a reduced expectation of privacy in information relating to him and there was a superior public interest in monitoring the conduct of the Department of Corrections in discharging its statutory duties. OAG 00-ORD-206.

A state reformatory properly denied a request by an inmate for a copy of the questions used in his polygraph test and the results, as the investigation involving the inmate was still ongoing at the time of the request. OAG 00-ORD-208.

The Commission on Human Rights properly partially denied a request for copies of the complaint, response, conciliation agreement, and any other materials related to a particular case where the withheld materials contained highly personal and confidential information concerning individuals, including but not limited to names, social security numbers, phone numbers, and addresses and also contained notes, correspondence with private individuals, and preliminary recommendations, and memoranda containing opinions formulated and recommendations made concerning the complaint and investigation. OAG 00-ORD-209.

A county public school system properly denied a request for all complaints concerning the admission policies or procedures or administration of those policies applicable to a particular school as such records were exempt from disclosure under subsection (1)(k) and (l), incorporating the federal Family Educational Rights and Privacy Act and the Kentucky Family Education Rights and Privacy Act (KRS 160.705 et seq.). OAG 00-ORD-213.

Although neither KRS 197.025 nor KRS 197.400 et seq. invests a participant in the sexual offender treatment program with an unfettered right of access to all records in his treatment file, neither statute establishes an absolute bar to his access. As in all matters pertaining to records access, it is incumbent on the agencies to identify all records in the file that were withheld, and to articulate a basis for denying him access to them in terms of the requirements of the Open Records Act. If no legally defensible basis exists for denying the offender access to the other records in his file, these agencies are obligated to disclose them to him. OAG 00-ORD-221.

The records at issue in this decision, school district P.A.-2’ s disclosing student transportation codes, fall within the expansive definition of an education record under state and federal law, and may not be disclosed absent parental consent. OAG 01-ORD-3.

The Henderson Circuit Court Clerk is not bound by the provisions of the Kentucky Open Records Act, and therefore did not violate the Act in the disposition of a requester’s request for a copy of grand jury records relating to the Commonwealth of Kentucky’s criminal action against the requester. OAG 01-ORD-6.

If the defendant did not waive his PSI, and was advised of its contents at sentencing pursuant to KRS 532.050(6), is he foreclosed from being advised of its contents under a open records request because KRS 439.510 makes the report confidential. While the agencies are not required to furnish him with a copy of the report in either case, if he waived his PSI at sentencing, he is entitled to be advised by the prison official who has custody of it of the factual contents and conclusions therein. OAG 01-ORD-13.

The description of the Daily Inspection Reports indicates that they contain both objective report of physical facts and subjective expressions of opinion. The information constituting a report of objective facts that are neither preliminary in nature or reflect a subjective expression of opinion would not be exempt from disclosure under KRS 61.878(1)(i) and (j). However, information in the Daily Inspection Reports, such as opinions as to the quality of the work inspected, recommendations as to the appropriateness of pay requests, or opinions regarding work progress or problems, that reflects a subjective opinion or recommendation of the inspector which does not constitute final agency action, may be withheld from disclosure under KRS 61.878(1)(i) and (j). OAG 01-ORD-17.

Review of the real estate purchase agreement reveals that none of these requested preliminary documents were incorporated into or made a part of that document. Accordingly, the Board properly withheld disclosure of the documents under authority of KRS 61.878(1)(i) and (j). Unless the records withheld by the Board were incorporated into final action of that agency, the agreement, they do not forfeit their preliminary characterization and need not be released. OAG 01-ORD-22.

Cabinet for Health Services did not violate the Open Records Act in denying access to a statement of deficiencies concerning a health care facility since KRS 61.878 , in tandem with 42 CFR 488.325(d), directs that a statement of deficiency must be disclosed within 14 calendar days after it is made available to the facility. Under these authorities, CHS could deny access to the statement of deficiencies for a period of up to 14 days after receipt of the document by the health care facility. OAG 01-ORD-32.

Although at this point the work of Professional Standards Board is final as to its own role in investigating the shooting by the police officer, the work of others in determining final disciplinary action is yet to be done. Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character. The fact that these exempt public records have been transmitted to the Commonwealth’s Attorney and coroner in the furtherance of their respective duties does not alter the conclusion. OAG 01-ORD-47.

Since the two-page Memorandum sought by the requester was prepared by a probation and parole officer in the discharge of his official duties, the record, pursuant KRS 439.510 , would be exempt from disclosure and could properly be denied under KRS 61.878(1)(l). Accordingly, the adjustment center’s denial of the request was correct and in accord with provisions of the Open Records Act. OAG 01-ORD-52.

KRS 61.878(1)(l), operating in tandem with KRE 503, may authorize partial nondisclosure of the attorney billing records, but it is incumbent on the agency to describe, in at least general terms, the nature of the information redacted and the statutory basis therefore. There is no authority for its eleventh hour defense of the partial denial (redactions) of the billing records on the basis of KRS 61.878(1)(a), the personal privacy exception, unless the redacted information consisted of social security numbers or federal identification numbers. The agency’s response to the request was procedurally and substantively deficient. OAG 01-ORD-56.

The public’s interest in what businesses are taxed, where they are located, and whether they are delinquent in paying their taxes (but not the amount of taxes owed or any other information that reveals the affairs of their businesses), is superior to any privacy interest asserted. The City and the Tourist & Convention Commission improperly withheld records containing “the names and locations of businesses that are delinquent on the payment of their food/restaurant taxes” notwithstanding the city ordinance that deemed those records confidential. OAG 01-ORD-63.

The Cabinet for Health Services’ reliance on KRS 61.878(1)(h) fails under each part of the three-part test: (1) the Cabinet has not asserted that it is acting as a law enforcement agency or an agency involved in administrative adjudication in the matter of the Medicaid payments; (2) the Cabinet has not identified for the record an agency with concurrent jurisdiction in this matter that has requested that the disputed documents be withheld until after enforcement action is taken or a decision is made to take no action; and (3) the Cabinet has not established that the disputed documents were compiled in the process of detecting and investigating statutory or regulatory violations. OAG 01-ORD-67.

Although the Cabinet for Health Services “has been put on notice” and “advised through appropriate channels” that a federal grand jury has been empanelled to examine Medicare payments to a doctor and related issues, its records of Medicaid payments for work performed by the doctor have not been subpoenaed. They are records created in the normal course of business for purposes not related to the prospect of a grand jury proceeding, which the Cabinet has an affirmative obligation to release. Physical evidence, such as a document, does not become secret merely because it has been presented to a grand jury, if it was created for purposes other than the grand jury investigation and its disclosure does not reveal matters occurring before the grand jury. OAG 01-ORD-67.

Ambulance reports and emergency and EMS records must be withheld from an open records request unless a written release is first obtained, pursuant to the confidentiality provision of former KRS 216B.410 (now see KRS 311A.190 ). OAG 01-ORD-75.

KRS 61.878(1) does not prohibit access by a party litigant to nonprivileged, nonexempt public records in the custody of a public agency against which the litigant had brought suit or by which he had been sued. Only if the records to which the party litigant requests access are both exempt and nondiscoverable does KRS 61.878(1) authorize nondisclosure. OAG 01-ORD-75.

The fiscal court erred in not releasing the real estate appraisal. A purchase contract has been executed for the acquisition of a single parcel of property. Negotiations between these parties have been concluded, and the purposes for which the exception codified at KRS 61.878(1)(f) was enacted have been satisfied. It is the Fiscal Court’s interest in avoiding unfair negotiations in the acquisition of real property that underlies the exception, and this interest cannot be compromised where only one parcel of property is being acquired, and the terms and conditions of the purchase have been contractually settled. OAG 01-ORD-81.

Because the chief of police did not adopt the investigative report as the basis for the final disciplinary action of the police officer in the internal investigation, the investigative file retained its preliminary characterization under KRS 61.878(1)(i) and (j) and was properly not disclosed. OAG 01-ORD-83.

When an agency relies upon the protections afforded by KRS 61.878(1)(i) and (j) as its basis for denying access to internal investigative reports/files, the ultimate decision maker should affirm that he or she did not adopt the report as the basis of the final action, and to explain on what basis he or she, in fact, determined what final action was appropriate. It is not enough to simply invoke the exceptions to shield the investigative report from disclosure without offering an explanation of what was done and why. OAG 01-ORD-83.

Although a public agency cannot indefinitely postpone access to investigative records by labeling an investigation open, three years is not an unreasonable time to investigate and prosecute a case. Having established that the disputed records consist of investigative reports maintained by a criminal justice agency, and that prosecution has not been completed, the Kentucky State Police did not abuse its discretion in invoking KRS 17.150(2) to shield those records from disclosure. OAG 01-ORD-85.

The exclusion under KRS 61.878(1)(c)1. is aimed at protecting records of private entities which, by virtue of involvement in public affairs, must disclose confidential or proprietary records to a public agency, if disclosure of those records would place the private entities at a competitive disadvantage. It is, in general, inapplicable to records generated by or for a public agency itself. The exemptions protection simply does not extend to the agency’s own records, such as minutes of the agency’s public meetings. OAG 01-ORD-87.

The financial projections report prepared by a sister agency on behalf of the Franklin Electric Plant Board falls squarely within the parameters of KRS 61.878(1)(j). The report contains broad opinion and conjecture based on an analysis of projected data, formulates policy, and makes recommendations relative to the expansion of services. The report enjoys the protection of KRS 61.878(1)(j) until such time as a final decision is made on this issue, including a decision not to expand services. When the Board finally acts, or decides not to act, the report will forfeit its preliminary characterization to the extent that it is adopted as part of that final action. OAG 01-ORD-87.

Since the in-house memoranda was prepared by the agency’s attorney in order to provide her client, the agency, with advice on the legal matters related to the complaint and relevant statutes, and the agency has attempted to insure the legal analysis contained in the legal opinion was shielded from disclosure, the agency properly denied access to these in-house documents pursuant to KRS 61.878(1)(l), operating in tandem with KRE 503. Although a number of the exceptions to the Open Records Act are forfeited upon the occurrence of a specific event, this has never been the rule with respect to attorney work product and documents shielded by the attorney-client privilege. OAG 01-ORD-92.

The documents that the agency required Humana to produce represent basic business dealings of Humana with private third parties and business decisions made by Humana regarding contracting, internal policies and procedures, how it is organized, and payment to third parties. They are records of a private corporation generally recognized as confidential or proprietary and constitute the inner workings of the company, the release of which would unfairly advantage competitors. Thus, the agency properly withheld disclosure of the documents under authority of KRS 61.878(1)(c)1. OAG 01-ORD-92.

Since the records in question come within the purview of the Circuit Court’s protective orders, the agencies, as required to do so by the Protective Orders entered by the Jefferson Circuit Court, properly denied the open records request for agency records that were the subject matter of the orders staying discovery in the two pending cases. To permit otherwise would allow a party to litigation to use the Open Records Act to do an end run around the Circuit Court’s protective orders. OAG 01-ORD-95.

The parole officer’s “contemporaneous handwritten notes” and any other records the agency may have “relating to this matter” fall squarely within the parameters of the privilege established at KRS 439.510 , incorporated into the Open Records Act by operation of KRS 61.878(1)(l). This privilege does not terminate upon revocation of an individual’s parole, and cannot be waived by the parolee. OAG 01-ORD-97.

The Treasury properly withheld disclosure of information that would allow the requester to determine the amount of an unclaimed property owner’s individual account, disclosure of which would constitute a “clearly unwarranted invasion of personal privacy” under KRS 61.878(1)(a). OAG 01-ORD-102.

Since the record in question is a letter from the Commissioner of the Cabinet putting a public employee on notice that he is being placed on special leave with pay, pending further investigation of allegation(s) of misconduct, it was a preliminary record compiled in the process of investigating alleged employee misconduct and was exempt from disclosure under authority of KRS 61.878(1)(i) and (j). Accordingly, the Cabinet properly denied access to the document. OAG 01-ORD-103.

Since the record in question is a letter from the Commissioner of the Cabinet putting a public employee on notice that he is being placed on special leave with pay, pending further investigation of allegation(s) of misconduct, the letter is not correspondence with a private individual, and the Cabinet improperly relied upon the “correspondence with a private individual” clause of KRS 61.878(1)(i) as authority for denying access to the letter. OAG 01-ORD-103.

The disputed record does not qualify for exclusion under KRS 61.878(1)(i). The record is not a draft, it does not represent a tentative version, sketch, or outline of a formal and final written product, nor is it a note. Although the Cabinet argues that it was created by the State Highway Engineer as a mere aid to memory, it cannot be persuasively argued that it consists of nothing more than random notations, or written or shorthand notes created as a basis for a fuller statement. OAG 01-ORD-104.

Since the “custodian” of the disputed records is CTS, a company under contract with the Kentucky Transportation Cabinet, and CTS cannot be characterized as a public agency for purposes of the Open Records Act, the disputed records themselves are not public records, because, at the time of the request, they were not “prepared, owned, used, in the possession of or retained by a public agency.” The Cabinet properly denied access to these documents under authority of KRS 61.878(1)(i) and (j). OAG 01-ORD-105.

Since the agency’s records custodian affirmatively acted to permit the requesters unfettered access to the records identified in the request, and only after inspection was permitted did the agency undertake to examine the records disclosed to determine if any of them qualified for exclusion, the agency is estopped from denying the requesters copies of these records, notwithstanding their arguably exempt status. OAG 01-ORD-113.

KRS 61.878(5) is not a mandatory provision, requiring public agencies to exchange otherwise exempt information, but is instead a matter of agency discretion. Northern Kentucky University may properly share exempt information with its Department of Public Safety, under the provision of KRS 61.878(5), without waiving its right to invoke the exception as to all other requesters, and without violating the principal of uniformity in disclosure policies. OAG 01-ORD-119.

Because the records of the accident involving the police officer were not “actively, specifically, intentionally, and directly compiled as an integral part of a specific detection or investigation process” but rather were made in the usual course of police business, and because the professed harm that would flow from premature disclosure consists of little more than a bare claim, KRS 61.878(1)(h) does not authorize nondisclosure of these records. Nor do KRS 61.878(1)(i) and (j). OAG 01-ORD-122.

While preliminary findings and recommendations cannot be said to reflect, in themselves, the agency’s final decision, when the final decision mirrors those findings and recommendations, albeit in an abbreviated form, it must logically be inferred that they were adopted as the basis of that decision, particularly when there is no persuasive proof in the record to overcome this inference. Therefore, those records should be disclosed. OAG 01-ORD-123.

Kentucky State Police improperly relied on KRS 61.878(1)(a) in partially denying the request. As a former public agency employee, the requester is entitled “to inspect and to copy any record including preliminary and other supporting documentation that relates to him” under KRS 61.878(3). If, in fact, social security numbers appear in the background investigation report, KSP may properly redact them insofar as they represent “the keys to the information kingdom” and are of a uniquely sensitive nature, but KRS 61.878(3) mandates disclosure of the remainder of the report. OAG 01-ORD-126.

The police department may rely on KRS 189.635(5) as the basis for denying any request for accident reports not submitted by the parties to the accident, the parents or guardians of a minor who is party to the accident, the insurers of any party who is the subject of the report, the attorneys of the parties, and news gathering organizations “solely for the purpose of publishing or broadcasting the news.” This specific confidentiality provision overrides the general rule of openness mandated by the Open Records Act. OAG 01-ORD-127.

The Fiscal Court judge discharged his duty to disclose nonexempt information relating to emergency medical services runs in Henry County for a three (3) month period by compiling that information from the ambulance run reports in a “recap sheet” that did not violate either KRS 61.878(1)(a) or former KRS 216B.410 (now see KRS 311.190 ). OAG 01-ORD-137.

The Kentucky Board of Examination and Registration of Architects did not violate the Open Records Act in denying the request for a copy of the private reprimand; if a licensee receives a private reprimand, it is private and confidential and may be properly withheld from disclosure under authority of KRS 323.120(1) and KRS 61.878(1)(l). OAG 01-ORD-139.

Only the identifying information furnished by the horse farm owners on the Livestock Disease Diagnostic Center intake form, and mirrored in the necropsy report, qualifies as a record “confidentially disclosed to an agency.” The non-identifying portion of the necropsy report that is generated by the Center, and the non-identifying “History ” portion of the intake form, that provides the basis for the “Pathologist’s Case Summary” cannot be so characterized insofar as they are created by, rather than confidentially disclosed to, the Center. OAG 01-ORD-143.

Because the campus safety incident report was created by the law enforcement unit of community college for a law enforcement purpose and was not created exclusively for a non-law enforcement purpose, such as a disciplinary action, the campus safety incident report and accompanying statements do not constitute education records within the meaning of 20 U.S.C. § 1232g(a)(4)(A), and partial redaction of those records was therefore not authorized by 34 C.F.R. 99.12. OAG 01-ORD-174.

Since the community college established a cognizable privacy interest on the part of one of the “victims” and the witness whose name appears on the campus safety incident report, that interest must prevail unless the public’s interest in disclosure outweighs it pursuant to KRS 61.878(1)(a). OAG 01-ORD-174.

Since the Circuit Court has enter an order prohibiting the father’s access to his children’s educational records, the school properly denied him access to those records under authority of KRS 61.878(1)(k), 20 U.S.C. § 1232g, and 34 C.F.R. 99.4. OAG 01-ORD-178.

Where the requester sought a copy of a subpoena issued by the FBI to the agency, since the agency had concurrent enforcement jurisdiction, the description of the harm by the agency in releasing the subpoena establishes, as a minimum, that premature disclosure of the subpoena could possibly compromise the investigation by tipping off a possible witness or target. Thus, the agency properly denied access to the subpoena under KRS 61.878(1)(h). However, if this potential of harm no longer exists, particularly in view of the time since it was served on the agency in early August, 2001, the document should be made available for inspection. OAG 01-ORD-217.

The e-mails in dispute could properly be characterized as correspondence with private individuals “under conditions in which the candor of the correspondents depends on assurances of confidentiality.” In addition, these e-mail transmissions would arguably constitute “preliminary recommendations in which opinions are expressed or policies formulated” within the meaning of KRS 61.878(1)(j). If, of course, the opinions expressed or policies formulated in the exchange are ultimately adopted as part of the city’s final action relative to relocation of the cellular tower, they will forfeit their preliminary characterization. OAG 01-ORD-222.

The record supports the City’s position that the maps generated by Cingular were confidentially disclosed to the Mayor, are generally recognized as confidential or proprietary, and that their disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed them. OAG 01-ORD-222.

Because 23 U.S.C. § 409 does not bar the disclosure of the information relating to highway skid numbers for purposes unrelated to litigation, the Transportation Cabinet improperly denied the open records request under authority of 23 U.S.C. § 409 and KRS 61.878(1)(k). OAG 01-ORD-244.

Because the agency’s reliance upon KRS 61.878(1)(a) was not legally sufficient where the person was deceased, and because KRS 61.880(2) places the burden of proof in sustaining a denial of a request to inspect public records on the public agency, the school district had the burden of establishing that the former teachers involved in the request are still alive. Although the Open Records Act does not set out a time limit as to when restrictions on public records are no longer confidential, an actuarially reasonableness standard should be followed in making a determination as to whether a former employee is still living. OAG 01-ORD-245.

The school district improperly denied access to the names of individuals submitting letters of reference in the personnel files of the former teachers. The district must disclose the names of the persons who submitted letters of reference, but may withhold the contents of the letters under KRS 61.878(1)(i). It is, of course, within the agency’s discretion to release copies of the entire letters of reference, KRS 61.878(1)(i) notwithstanding. OAG 01-ORD-245.

A former employee’s personnel action against the agency cannot be characterized as administrative investigations undertaken by the agency, and the language of KRS 61.878(3) therefore does not operate as a prohibition on disclosure of the records to the employee. OAG 01-ORD-246.

The attorney client privilege applies only where, among other things, the attorney involved is functioning as an attorney, and not as a supervisor; documents leading up to disciplinary action cannot be lumped into a generic work-product privilege, for they are documents of ordinary business even if prepared in the shadow of litigation. OAG 01-ORD-246.

Since the 911 Center indicated that the 911 recording and its contents could not be reasonably segregated, the voice could be identifiable, the caller’s residence could be ascertained from information discussed in the tape, and the caller(s) did not give a name in an apparent effort to remain anonymous, the agency provided specific justification to support a determination that protection of the caller(s) privacy interests clearly outweighed the public’s right to know how the public agencies were performing their duties. OAG 02-ORD-05.

The airport agency has established that the regulation relied upon, 14 C.F.R. 191.3(b), mandates nondisclosure of airport police officers’ names, annual salaries, resumes, and applications, along with records reflecting disciplinary actions against the officers. Further, the agency has established that the cited federal statutes and regulations, specifically, 14 C.F.R. 191.7(h), 14 C.F.R. 191.3, and 14 C.F.R. 107.101, preclude public access to incident reports generated by airport police officers. OAG 02-ORD-12.

Although the witness statements are varied and contradictory, it is apparent that the police chief credited the statements of some witnesses over the statements of others leading him to adopt findings of fact consistent with those statements. Accordingly, the Division of Police improperly withheld the entire investigative summary and all transcripts of witness statements on the basis of KRS 61.878(1)(i) and (j). OAG 02-ORD-18.

The Division of Police improperly relied on KRS 61.878(1)(a) in partially denying news-gathering requesters access to those portions of accident reports containing information of a personal nature. Because KRS 189.635(6) places no restriction on the information in the accident reports that must be disclosed to news-gathering organizations, limiting only the use to which the information may be put, these organizations are entitled to the same right of access as the parties identified in KRS 189.635(5). OAG 02-ORD-19.

The City of Louisville Division of Police may properly rely on KRS 61.878(1)(a) in withholding information identifying the victims of sexual offenses from incident reports requested by open records applicants. The Division of Police may redact the names and addresses of the victims of sexual offenses, the location of the offenses if the offenses occurred in the victim’s homes, and the complainants’ signatures if the complainant and victim are one and the same. OAG 02-ORD-36.

A finding of no probable cause is not a “final determination” such as one reached at the conclusion of a full-blown adjudicatory hearing conducted under KRS 11A.100(3). It is, instead, an option available to the Commission if, in the course of a preliminary investigation, it determines that the complaint does not allege facts sufficient to constitute a violation of KRS Chapter 11A. Records pertaining to such preliminary investigative findings, including minutes of executive sessions of the Commission, are expressly excluded from public inspection by operation of KRS 11A.080(2). OAG 02-ORD-44.

As a public agency employee, the requester would normally be entitled to inspect and copy any record including preliminary and other supporting documentation that relates to him at the conclusion of any criminal or administrative investigations by an agency. However, the specific confidentiality provision codified at KRS 11A.080(2) overrides KRS 61.878(3), and the requester has no greater right of access to the Commission’s confidential records than the public generally. OAG 02-ORD-44.

Since the case notes of the parolee’s visits with his parole officer were prepared as a result of the officer’s official duties, these records, pursuant to KRS 439.510 , would be exempt from disclosure and may be properly denied under an Open Records Request pursuant to KRS 61.878(1)(l). OAG 02-ORD-51.

The memorandum in question is an internal communication in which the police chief expresses various opinions and makes recommendations concerning the department. There is no evidence that it has been adopted as the basis of any action on the part of the City, and the City steadfastly maintains that it is preliminary in nature. Thus, the memorandum is shielded from disclosure by KRS 61.878(1)(j) unless or until it is adopted into final agency action. OAG 02-ORD-52.

KRS 61.878(1)(i), relative to correspondence with a private individual, is reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. Since the police chief is not a private citizen, KRS 61.878(1)(i) does not extend to the memorandum he submitted to the city’s mayor and commissioner. OAG 02-ORD-52.

Disclosure of a copy of the list that shows the eligible voters and the record of those eligible voters who cast votes within each of the units whose votes have been counted would allow the employees and the public to validate the election process and to determine that the chosen representative was properly elected by a majority of the eligible employees voting. This public interest outweighs the employee’s privacy interest in whether or not he or she voted in the election. OAG 02-ORD-55.

Any records from a school counselor which identify or lead to the identification of a student or a student’s parent are privileged and confidential. Hence, these records are exempt from disclosure under the Open Records law. OAG 02-ORD-61.

All records of a school counselor which have been requested and which are not privileged or confidential, for example, statistical information, a photograph of a public building, or documents concerning funding, which do not identify students, should be disclosed. Likewise, photographs of people attending public events or meetings should be disclosed. OAG 02-ORD-61.

Photographs of students performing school work are considered confidential as education records and may be excluded from public inspection if the school system has not taken appropriate steps to designate them as directory information. Photographs of students working with a school counselor or in counseling would be privileged and confidential. OAG 02-ORD-61.

Disclosure of records relating to complaints of misconduct leveled against public employees or officials by other public employees or officials does not constitute a clearly unwarranted invasion of personal privacy, even if the allegations of misconduct are of a personal nature. Instead, they are records in which the public “has a legitimate interest.” OAG 02-ORD-75.

Given the expansive language of KRS 344.250(6), the fact that the person seeking access to a record or records obtained by the Commission in discharging its duties under KRS Chapter 344 is the person who originally filed the complaint does not alter the analysis or compel a different result: the records are confidential and may not be disclosed. The fact that federal courts have interpreted similar provisions of the federal EEOC act differently likewise doesn’t matter since the state law is not preempted. OAG 02-ORD-76.

Although KRS 61.884 provides that a person is entitled to inspect records concerning himself, the exemptions contained in KRS 61.878 take priority over KRS 61.884 . By its own language, KRS 61.884 is subject to the provisions of KRS 61.878 , and KRS 61.878(1)(h) exempts records of law enforcement agencies or agencies involved in administrative adjudication from public disclosure where the records identify informants or would harm an agency by their premature release. OAG 02-ORD-77.

Inspection of the lead poisoning reports in the custody of the county board of health serves the public interest by revealing whether the board is discharging its duties relative to the prevention, screening, diagnosis, and treatment of lead poisoning. Whatever the privacy interests of the individuals suspected or found to have lead poisoning, those interests are clearly outweighed by the public’s interest in disclosure which is statutorily recognized at KRS 211.902(2). OAG 02-ORD-80.

Applications for the purchase of conservation easements through the Purchase of Development Rights Program do not qualify for exclusion from public inspection as correspondence with private individuals pursuant to KRS 61.878(1)(i), but instead become open records upon submission to the Board. OAG 02-ORD-86.

An arbitration proceeding is generally private and materials presented and opinions expressed before the arbitrator are confidential. These proceedings and materials presented are exempt from disclosure under KRS 61.878(1)(i) and (j), until the arbitrator has made a final determination. OAG 02-ORD-95.

Final audit reports are public documents and are therefore subject to public inspection unless there is a possibility of prospective law enforcement action or administrative adjudication. Audits that fall into the latter category are only exempted from public inspection under KRS 61.878(1)(h) until the enforcement action or administrative adjudication is concluded or a decision is made to take no action. OAG 02-ORD-97.

Random notations made by individuals present at a meeting setting forth opinions, observations, and recommendations which are not adopted as part of final agency action may properly be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). OAG 02-ORD-99.

Although a police incident report in the hands of the generating law enforcement agency is a record customarily made available to the public upon request, the same record in the hands of the county or Commonwealth’s Attorney charged with prosecuting the criminal conduct alleged is permanently shielded from disclosure by KRS 61.878(1)(h). OAG 02-ORD-112.

RFP proposals or portions thereof, that contain confidential or proprietary information, the disclosure of which would permit an unfair advantage to competitors, may properly qualify for exclusion under KRS 61.878(1)(c)1. The bidding companies are in the best position to assess the confidential and proprietary nature of the information submitted in response to the RFP process and whether its release would permit an unfair commercial advantage to their competitors; their arguments clearly demonstrate that the withheld information and records fall within those types of records which qualify for exemption. OAG 02-ORD-125.

Because videotapes of students in a school classroom are educational records, and because all educational records are exempt from disclosure under the Open Records Act, and since the exemptions for the Open Records Act apply based on the records rather than the status of the requester, the school district properly denied the request of a teacher for access to videotapes made of her own classroom pursuant to KRS 61.878(1)(k) and (l). OAG 02-ORD-132.

Under the authority of KRS 61.878(1)(i) and (j), the department properly denied an inmate’s requests for a copy of any letters submitted to the Parole Board relative to the inmate’s prospects of parole, as the department’s supplemental response indicated that none of the requested records were adopted as part of the Parole Board’s decisions concerning him. OAG 02-ORD-138.

The County Judge/Executive improperly withheld from disclosure a former county employee’s job application, complaints filed against her, records documenting final action on these complaints, including the decision to take no action, and records reflecting her termination or final employment status. OAG 02-ORD-140.

With regard to the minutes of the committee meetings for which the University issued a blanket denial on the basis that “the meetings of these bodies are conducted in closed session,” this is not a legally sufficient basis for withholding the minutes of meetings which might also reflect the call to order, the presence of a quorum, the names of the members present, and to which nonexempt records might be appended, such as complaints directed to the Grievance Committee. Such entries in the minutes, and records appended to the minutes, do not automatically qualify for exclusion from public inspection. OAG 02-ORD-142.

KRS 189.635(5), in tandem with KRS 61.878(1)(l), requires that a public agency deny a request for copies of accident reports not submitted by parties to the accident, the parents or guardians of a minor who is party to the accident, the insurers of any party who is the subject of the report, the attorneys of the parties, and news gathering organizations “solely for the purpose of publishing or broadcasting the news.” This specific confidentiality provision overrides the general rule of openness mandated by the Open Records Act. OAG 02-ORD-155.

An occupational safety and health compliance officer’s worknotes generated in the course of an investigation of a work site, and containing preliminary drafts of possible citations, along with the compliance officer’s observations and opinions, may properly be withheld under authority of KRS 61.878(1)(i) and (j). OAG 02-ORD-157.

Employee interview statements that were obtained by a compliance officer under authority of KRS 338.101(1)(a), and that are located in the investigative file, are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). OAG 02-ORD-157.

Pursuant to KRS 337.345 , in tandem with KRS 61.878(1)(l), the Cabinet is prohibited from releasing the complaint, the name of the complainant, and any information identifying employees contacted by the Cabinet in its investigation, and information secured from inspection of the records, or from the transcriptions thereof, or from inspection of the employer’s concerning the violation. OAG 02-ORD-157.

Only those records that were generated by counsel for the Fair Board in the course of defending the complaint the requester filed against the Board with the Kentucky Labor Cabinet, including records generated by counsel relative to her open records requests, and for which adequate measures were taken to insure confidentiality, qualify for exclusion under the privileges. The protection afforded by these privileges extends to records prepared by the Labor Cabinet but attached to privileged attorney-client communications, or records prepared by counsel but directed to the Labor Cabinet, rather than the Fair Board. OAG 02-ORD-161.

The police officer’s broad right of access to records relating to him under KRS 61.878(3) must yield to the exclusionary language found in the last sentence of that provision because the record he seeks is an examination related to employment, even though it is an examination for promotion. OAG 02-ORD-168.

The Kentucky Teachers Retirement System members’ privacy interest in the nondisclosure of their names and addresses is superior to the nonexistent public interest in disclosure; therefore, the KTRS properly withheld this information pursuant to KRS 61.878(1)(a). Moreover, in addition to KRS 61.878(1)(a), KRS 161.585, in tandem with KRS 61.878(1)(l), require the KTRS to maintain the confidentiality of the KTRS members’ names and addresses. OAG 02-ORD-183.

The audio recordings of the witness interviews were made as a method of keeping a more accurate record of the investigation and represented an aid to the memories of both the school investigators and the superintendent. Thus, the audio tapes are in the nature of a tool used in hammering out official action rather than the official action itself, and the School District properly denied the request for the audio tape recordings under authority of KRS 61.878(1)(i). OAG 02-ORD-193.

No matter what the stage or status of the proceedings, the County and Commonwealth’s Attorney may invoke the exception set forth in KRS 61.878(1)(h) relative to such activities and endeavors and withhold those materials from public inspection. Even though no full-blown criminal investigation or prosecution was commenced, the disputed record qualifies for exclusion under the cited exception. OAG 02-ORD-194.

Although the County Attorney may have exercised his discretion to release similar documents on earlier occasions, because the exceptions “are a shield and not a shackle,” the County Attorney was by no means estopped from exercising his discretion to withhold the disputed record in the instant appeal. OAG 02-ORD-194.

Applying KRS 61.878(5), even if records are exempt from inspection by the general public generally, they should be made available by one agency to another for legitimate governmental purposes. However, KRS 61.878(5) is not a mandatory provision, requiring public agencies to exchange otherwise exempt information, but is instead a matter of agency discretion. OAG 02-ORD-195.

Although the director of Metro Parks could not be characterized as a rank and file public employee, she was not “the individual who was ultimately responsible for the management of the agency she serves,” since ultimate authority for the management of the city resides in the mayor, and of the county in the county judge/executive. Thus, the city properly denied the request for copies of her performance evaluations. OAG 02-ORD-197.

As the only individual terminated in the wake of the scandal, the Metro Parks employee did not expressly or impliedly waive his privacy interest in his personnel evaluations by the course of conduct the employee elected to pursue, or the statements he made in interviews with the media. OAG 02-ORD-197.

Records in investigative files remain preliminary unless they are adopted as part of final agency action. Since there was no document reflecting final agency action, the investigative files remain preliminary in nature and are exempt from disclosure, under KRS 61.878(1)(i) and (j). OAG 02-ORD-199.

The Kentucky State Police digital radio run tapes are the functional equivalent of “electronic recordings of general radio traffic of a police agency,” which were deemed nonexempt in OAG 89-11 in the absence of a specific showing that they were compiled as an integral part of a specific detection or investigative process, or that the law enforcement agency would be harmed by premature disclosure. OAG 02-ORD-204.

Financial records, such as personal income taxes, audit records, lists of equipment and existing values, and business related tax returns, are records of a private corporation generally recognized as confidential or proprietary and constitute the “inner workings” of the company, the release of which could unfairly advantage competitors. Accordingly the Cabinet properly withheld disclosure of the financial records under authority of KRS 61.878(1)(c). OAG 02-ORD-209.

Although the Kentucky State Police is a law enforcement agency, the disputed records, identifying officers currently assigned to the Executive Security detail, are not records “compiled in the process of detecting and investigating statutory or regulatory violations” and are therefore not exempt from disclosure. OAG 02-ORD-211.

Since the FBI requested that the Grand Jury subpoenas not be disclosed, the agencies properly denied the requests under authority of KRS 61.878(1)(h), even though the document in question was not prepared by the agencies in their normal course of business, but were Federal Grand Jury subpoenas compiled by the FBI in pursuing its ongoing investigation. To allow the requester access to a record indirectly which would not be available directly from the FBI negates the statutory exemption set forth in KRS 61.878(1)(h). OAG 02-ORD-215.

Since Federal Rule of Criminal Procedure 6(e), in tandem with KRS 61.878(1)(k), mandate nondisclosure of the federal grand jury subpoenas, the agency properly denied the request for inspection. OAG 02-ORD-220.

A private donor’s desire for anonymity often outweighs the public’s interest in disclosure; although the amount of pledges, contributions, or donations to the parks board must be disclosed, the names and addresses of the private donors could properly be withheld under authority of KRS 61.878(1)(a). OAG 02-ORD-221.

Although the complainants’ privacy interest in their names, addresses, course of medical treatment, prescriptions, and other such sensitive information that is personally identifiable or otherwise relates to their diagnosis and treatment, warrants protection under KRS 61.878(1)(a), this protection does not extend to the treating doctor, the nature of the complaints made against him, and the agency’s response thereto. Pursuant to KRS 61.878(4), sensitive information relating to the complainants may be redacted, but the remainder of these complaints, as well as records reflecting the agency’s final disposition of these complaints, must be disclosed. OAG 02-ORD-222.

Since the Department is currently conducting an inquiry into the matter and exploring the remedies that might be available to it, may of the records in the Department’s file consisting in large part of written and email communications between the Department, local school districts and officials, and various law enforcement agencies, and records forwarded to the Department from the local districts that relate thereto, fall squarely within the parameters of KRS 61.878(1)(i) and (j). OAG 02-ORD-224.

Although allegations of sexual harassment may be of a very personal nature, the privacy interests implicated do not necessarily trump the public’s right to know if their public servants have filed, or are the targets of, sexual harassment complaints, and if the agency properly responded to those complaints. OAG 02-ORD-231.

Where the agency has decided the final payment methodology, all other projected financial data, opinions related thereto, and analyses thereof are rejected. Those preliminary emails, memoranda, charts and other documents that represent the rejected numerical calculations, financial projections, opinions, formulations, and recommendations did not forfeit their preliminary characterization and were properly withheld pursuant to KRS 61.878(1)(i) and (j). OAG 02-ORD-245.

A request for access to a personnel file requires no greater degree of specificity than any other open records requests, and that the agency must therefore “determine what is and is not subject to Open Records.” Pursuant to KRS 61.878(4), the agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, cite the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld. OAG 03-ORD-12.

Because the surveillance tape was not actively, specifically, intentionally, and directly compiled as an integral part of a specific detection or investigation process, and because the professed harm that would flow from premature disclosure consists of little more than a bare claim, KRS 61.878(1)(h) does not authorize nondisclosure of these records. Accordingly, the City improperly withheld disclosure of the requested surveillance tape. OAG 03-ORD-17.

Because the requester is a public agency employee, and because the investigative report of her complaint against the doctor relates, in part, to her, she is entitled to inspect and receive a copy of those portions of the report relating to her complaint and interview by virtue of KRS 61.878(3), even though the report did not lose its preliminary nature. OAG 03-ORD-30.

The County Clerk’s reliance on KRS 61.878(1)(a) as the basis for denying access to the voter assistance forms identified in the request was, with the exception of the protection it extends to social security numbers appearing on those forms, misplaced. The County Clerk should copy the voter assistance forms to which the requester requested access and permit him to inspect those copies after redacting the social security numbers appearing thereon. OAG 03-ORD-34.

The communications at issue were made in the application of or in the course of diagnosis and treatment in the Sexual Offender Treatment Program consisting of factual admissions relating to the offense for which the defendant was convicted in October 1989 that he made to employees of the Department assigned to the SOTP. These communications therefore fall squarely within the parameters of the privilege contained in KRS 197.440 and access under the Open Records Act was properly denied. OAG 03-ORD-39.

The Justice Cabinet did not meet its statutory burden of proof in sustaining the blanket denial of the request. The Cabinet did not identify the documents, or groups of documents, withheld or adequately explain how KRS 61.878(1)(h) or (j) apply to those records. Although the Cabinet may withhold those records which qualify for exclusion under the exemptions, it is obligated to disclose any other nonexempt records and to identify in general terms the records withheld and articulate the reasons for withholding those remaining responsive records in terms of the requirements of the exemptions. OAG 03-ORD-42.

Because the confidentiality provision codified at KRS 15.400(3) does not extend by its express terms to pre-December 1, 1998, psychological examination records, and because the requester was employed in 1992, KRS 15.400(3) does not apply to psychological records in the City’s custody that relate to the requester. The requester is entitled to inspect and receive copies of her psychological records under authority of KRS 61.878(3). OAG 03-ORD-43.

The agency improperly relied on KRS 61.878(1)(a), in denying the request to inspect records relating to his son. Where the requester is a student’s parent and the records requested relate to that student, generally no privacy interests can reasonably be asserted. OAG 03-ORD-45.

The video recording of the basketball game falls within the definition of an education record for purposes of both FERPA and KFERPA: it contains information directly related to particular students and is maintained by the educational agency or institution; the video was part of the communications course work or extra-curricular activity of the school; and the student commentator in the recording was readily identifiable by his voice and the tape served as the basis by the school in disciplining the student for his communications activity. Thus, the School District properly denied the request on the basis that release of an education record containing personally identifiable information of a student is prohibited by FERPA and KFERPA, incorporated into the Open Records Act by operation KRS 61.878(1)(k) and (l). OAG 03-ORD-49.

KRS 61.878(4) applies to all public records in which exempt and nonexempt information is commingled, including those qualifying for partial exemption under KRS 61.878(1)(c)1. Because records submitted by private entities to the Riverport may contain both excepted and nonexcepted material, the public agency asserting the right to withhold the excepted material is obligated to separate it and make the nonexcepted material available for examination at the time the request is tendered. OAG 03-ORD-64.

The redaction of exempt information from an existing record or database does not create a new record. OAG 03-ORD-64.

The Open Records Act does not allow public records to be exempt from disclosure by contract. Accordingly, the Riverport’s argument that it could withhold certain information in the contracts under a confidentiality agreement alone is misplaced. If they are exempt from disclosure, it must be under the authority of a statutorily recognized exemption, such as KRS 61.878(1)(c)1., or other applicable exception set forth in KRS 61.878(1). OAG 03-ORD-65.

Because the investigation into the teacher’s conduct is not ongoing, because she is a public agency employee within the meaning of KRS 61.878(3), and because the disputed record, in its entirety, relates to her, she is entitled to inspect and copy that record in its entirety. However, the County Public Schools may redact student and parent names from the disputed document on the basis of the Family Educational Rights and Privacy Act, 20 USCS § 1232g, and its state counterpart, KRS 160.700, et seq., which restrict access to student education records absent parental consent. OAG 03-ORD-68.

Although the requester has established that she has “relative placement” of at least one of her grandchildren, she has not established that she is the children’s custodial parent or legal guardian within the meaning of KRS 620.050(5)(b) or that she otherwise falls within one of the remaining statutorily recognized classifications. A letter prepared by a social worker does not invest her with the status of custodial parent or legal guardian. Nor has she produced a court order directing disclosure of the disputed records to her. Insofar as none of the criteria found in KRS 620.050(5) are satisfied, the requester is not entitled to receive a copy of those records pursuant to KRS 61.878(1)(l). OAG 03-ORD-70.

Employee interview statements that were obtained by a compliance officer under authority of KRS 338.101(1)(a), and that are located in the investigative file, are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). OAG 03-ORD-72.

Both records at issue constitute an “education record,” maintained by the school as part of a student’s educational activity and disciplinary record. One was an e-mail from the principal of the school to the superintendent of the County Schools and the other was a Student Behavior Referral form, containing both the teacher’s and the principal’s reports on the incident and identifying the student. They both describe the details of the incident involving the student. OAG 03-ORD-78.

Because KRS 229.121 expressly prohibits the issuance of a license to participate in any professional boxing or wrestling match or exhibition to persons under eighteen years of age, the Athletic Commission improperly redacted the date of birth in the record. Access to this item of information enables the public to verify that the Commission is uniformly enforcing the minimum requirements for licensure, thereby advancing the public’s right to know. Acknowledging that an individual’s date of birth is personal information, disclosure of the information does not constitute a clearly unwarranted invasion of personal privacy because the public’s interest in regulation is, in this case, superior to the privacy rights of the applicant for licensure. OAG 03-ORD-80.

The Athletic Commission has “effectively promoted the public interest in regulation” by disclosing the portions of the participant’s application, and the Commission properly redacted her height and weight. The public’s interest in insuring that the Commission properly monitors the height and weight of licensed wrestlers, which is de minimum at best, is inferior to the wrestler’s privacy interest in his or her height and weight. OAG 03-ORD-80.

Eastern Kentucky University’s reliance on KRS 61.878(1)(a) in denying a request for copies of the letter of application for the position of president and all supplementary materials submitted with the application, including a resume or curriculum vitae, and letters of recommendation, was misplaced since the specific candidate publicly confirmed that he was an applicant for the position of president at EKU; EKU was foreclosed from invoking the exception in support of its denial of the request. OAG 03-ORD-84.

The language of KRS 205.796 and KRS 403.211(11) is clear on its face: they proscribe disclosure of any information received or transmitted in cases administered by the Cabinet, notwithstanding the fact that some of that information is accessible through court records, unless the requester can demonstrate that he or she otherwise qualifies for access to the records under KRS 205.175 or another provision of KRS Chapter 205. The Cabinet is strictly prohibited by the language of these provisions from disclosing the information in an Open Records request. OAG 03-ORD-90.

Since the requester is an employee of the Board of Education and that the document at issue relates to her allegations made to the Superintendent, the record, although preliminary to and not adopted as part of the Superintendent’s final determination, relates to the requester and the application of KRS 61.878(3). This mandatory stricture overrides any otherwise applicable exemption, including KRS 61.878(1)(i) and (j), to compel disclosure. Accordingly, the agency should therefore make immediate arrangements for the requester to review the record. OAG 03-ORD-118.

Release of the records containing the information requested relating to the pull-tab games would affect the security and integrity of the games by enabling the requester to “decode” and obtain unfair advantage in playing those games. Accordingly, the KLC properly relied upon KRS 154A.040(1)(c), in tandem with KRS 61.878(1)(l), in denying the requests. OAG 03-ORD-119.

The list of County students awaiting enrollment in the school is a record that consists of harmless directory information which does not implicate student and family privacy interests, and which is similar, if not identical, to information the Board previously disclosed in response to another open records request. Under these circumstances, the board’s invocation of 20 USCS § 1232g and KRS 160.700, et seq., is legally unsupportable. OAG 03-ORD-120.

Despite the status as the attorney representing a defendant in the appeal of his criminal conviction, the requester stands in the same shoes as any other open records requester under KRS Chapter 61, and KRS 17.175(4) bars her access to “records produced from the samples” collected for DNA testing, including her client’s DNA profile record and report, the technician’s handwritten notes relating thereto, control sample report, and record and report in the Casework and Convicted Offender Indexes. OAG 03-ORD-126.

Since the disputed records are not records confidentially disclosed to the Authority or required by the Authority to be disclosed to it, within the meaning of KRS 61.878(1)(c)1., but are instead records generated by the Authority and thus the Authority’s own records to which the protection afforded by KRS 61.878(1)(c)1. does not extend, the Authority improperly relied on KRS 61.878(1)(c)1. in denying the open records request to review the contracts, notwithstanding that the contracts contain confidentiality provisions. OAG 03-ORD-129.

The Board must disclose the national and state criminal history background checks, required by KRS 160.380 as a condition of employment, that are located in the personnel file. Given the compelling public interest in confirming that school employees charged with the supervision and education of our students are of good character, the absence of any statutory restriction on access, and the failure of the Board to articulate a specifically protected privacy interest relative to these records, their disclosure does not constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a). OAG 03-ORD-141.

Because the School District has not implemented the statutory mechanism for designating any information directly relating to its students as directory information, the School District properly denied the request. OAG 03-ORD-146.

The public’s interest in monitoring how the Crime Victims Compensation Board discharges its duty to hear and determine all matters relating to claims for compensation does not outweigh the victim’s privacy interest in avoiding the disclosure of the details of a traumatic rape incident; because CVCB has promoted the public’s right to know how it resolved this particular claim by disclosure of its entire file with the exception of specific graphic and detailed reports, disclosure of those documents would do little to further the citizens’ right to know what CVCB is doing and would not in any real way subject agency action to public scrutiny. OAG 03-ORD-153.

Under the express terms of KRS 209.140 , the Cabinet must withhold all information acquired as a result of an investigation conducted pursuant to that chapter unless the requester can demonstrate that he or she falls within one of the excepted categories codified at KRS 209.140 . Neither an executrix or a representative of the alleged abused or neglected or exploited person fall within an excepted category set forth in KRS 209.140. Thus, the Cabinet properly denied the request. OAG 03-ORD-194.

Cabinet for Health and Family Services violated the Open Records Act in denying administratrix’s request for a copy of investigative report prepared by the Cabinet following the death of the administratrix’s mother in a nursing home; OAG 03-ORD-194 overruled. OAG 06-ORD-048.

The records in dispute are not maintained by KSU’s law enforcement unit, and therefore do not qualify as records of a law enforcement unit within the meaning of the exceptions in 20 USC § 1232g(a)(4)(B)(ii) and 34 CFR § 99.8(b)(1)(i), (ii), and (iii). This is true notwithstanding the fact that some of those records were originally created by KSU’s law enforcement unit for, arguably, a law enforcement purpose. When KSU’s law enforcement unit provided copies to the University for disciplinary proceedings, those copies became “education records” subject to the nondisclosure provisions of FERPA. OAG 03-ORD-201.

Because the agency sharing provision codified at KRS 61.878(5) is a matter of agency discretion, the Fiscal Court and dispatch center properly elected to treat the request from the County investigator as it would treat any other requester under the Open Records Act in according him the same treatment as the public generally. Though his request may have been submitted in the furtherance of a legitimate governmental need, the agencies did not violate the Open Records Act in according him the same treatment as the public generally. OAG 03-ORD-211.

Since statutory bases may exist for denying access to individual 911 calls made to a dispatch center, including KRS 61.878(1)(a) and KRS 61.878(1)(h), and in the light of the demonstrated difficulties associated with reviewing over 17,000 hours of audio tapes to insure adequate protection of the privacy and law enforcement interests implicated as well as the technological impediments the agencies describe, the agencies properly denied the request on the basis of KRS 61.872(6). OAG 03-ORD-211.

By enacting KRS 237.110(8), the General Assembly expressly restricted disclosure of the public records requested to “hard copy form only.” Since KRS 61.878(1)(l) exempts from disclosure public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly, the Kentucky State Police properly denied the request to produce the requested list of names of concealed permit holders in electronic format. OAG 03-ORD-222.

The Detention Center failed to meet its burden in establishing that the requested records were exempt under KRS 61.878(1)(h), and thus, improperly denied access to the records. The agency failed to establish that (1) the requested dispatcher’s log relating to the identified radio transmissions was compiled as an integral part of a specific investigation, and (2) failed to establish that premature disclosure of the radio transmissions would “harm” the ongoing law enforcement action. OAG 03-ORD-226.

In denying the requester’s access to a KASPER report, the Cabinet for Health Services acted pursuant to KRS 218A.202(6), outlining who and what may have access to KASPER reports and under what circumstances access is to be given, and in accordance with KRS 218A.202(8), which states, “The data and any report obtained therefrom shall not be a public record.” The requester, as an individual, does not fit within the limited numbers of people who can receive KASPER reports, and the General Assembly has specifically exempted records of the KASPER program from access under the Kentucky Open Records Act. OAG 03-ORD-227.

The Department for the Blind, working in tandem with the two companies, have established that the information in the RFP Proposal was of such a character that disclosure would permit an unfair commercial advantage to competitors of the Department for the Blind and the two companies, and could be properly be withheld from disclosure under KRS 61.878(1)(c)1. OAG 03-ORD-235.

Where the description of legal services in the billing statements contained privileged attorney-client communications and the mental impressions of legal counsel, the agency properly exercised its prerogative to redact information from its attorney billing records that would disclose substantive matters protected by the attorney-client privilege (SCR 3.130(1.6)) and the attorney work product doctrine (CR 26.02(3) and KRE 503), in tandem with KRS 61.878(1)(l). OAG 03-ORD-237.

An agency may not withhold release of attorney billing statements until the pending litigation is ended; attorney billing records are privileged only if their disclosure would reveal confidential communications between the attorney and client and should be available for inspection, subject to possible redactions, even during the existence of pending litigation. OAG 03-ORD-237.

Because the email communication was generated by the Mayor’s special counsel for the purpose of providing legal services to “representatives of the client,” consisting of the executive director and director of project development for the agency, and members of the Mayor’s staff, and since it contained advice on the legal ramification of the inquiry which prompted it, the communication satisfied the first and second parts of the three part test found in KRE 503. The Metro Government properly denied this portion of the open records request. OAG 03-ORD-243.

Based on the decision of the Court of Appeals in Hines v. Commonwealth, Department of Treasury, 41 S.W.3d 872, 2001 Ky. App. LEXIS 39 (Ky. Ct. App. 2001), and the fact that an open records related public purpose supports disclosure of the names of licensees appearing in the report required by former KRS 258.185 (1), the portion of the former KRS 258.185 report that identifies the person to whom the animal license was issued must be disclosed. OAG 03-ORD-247.

Although a master list containing the tax payment information requested does not exist, since “logs” containing the amount of payments that have been received exist, no credible argument can be made that such logs do not constitute public records subject to inspection absent an applicable exemption. OAG 04-ORD-10.

Murray State University properly relied on KRS 61.878(1)(i) and (j) in denying the request for records relating to the settlement of Minger v. Murray State University that have been, and are being, created in the inchoate period leading up to the execution of the final settlement agreement. OAG 04-ORD-30.

Although the question of whether an invasion of privacy is “clearly unwarranted” is intrinsically situational, and can only be determined within a specific context, the privacy interests of public employees against whom complaints have been leveled or allegations made, and the final agency action relative to those complaints or allegations, are outweighed by the public interest in monitoring agency action. OAG 04-ORD-31.

Conference records containing the information required to be kept by KRS 133.120(1) and other information of a confidential nature that is information about property that constitutes the “affairs of any person” and “affairs of a person’s business,” as set forth in KRS 131.190(1) and is not of general recordation or routine observation may properly be withheld from disclosure under KRS 131.190(1) and KRS 61.878(1)( l ). However, information contained in the records that is either publicly recorded in records recognized as being subject to routine public scrutiny, or that may be relatively readily observed from a public street, should be made available for inspection. OAG 04-ORD-38.

The University of Louisville properly relied on KRS 61.878(1)(l), incorporating 20 U.S.C. § 1232g, the Family Educational Rights and Privacy Act, and KRS 61.878(1)(a) in denying the request for access to the raw data of doctorate student handwritten survey responses. A determination of what constitutes personally identifiable information in an education record, making a student’s identity easily traceable, is a matter of University discretion. OAG 04-ORD-52.

While the University may invoke the exemption in KRS 61.878(1)(a) on behalf of the Coach as a basis for denying the public access to records in its custody relating to the Coach, such as his medical records or records containing personal information such as his home address or social security number, records reflecting the discharge of his official duties, namely coaching the University’s football team as reflected in the video tapes of practice, do not qualify for exclusion under KRS 61.878(1)(a). OAG 04-ORD-58.

A recording of student athletes engaged in football practice does not qualify as an education record under FERPA. Because the content of practice tapes is the functional equivalent of the content of game tapes that are regularly broadcast to the public, the University’s position with respect to the former is a somewhat perilous, and legally unsupportable, one. OAG 04-ORD-58.

Because any identifying information relating to concealed deadly weapon license holders other than a list naming all CCDW license holders (in hard copy format only) is exempt from disclosure pursuant to KRS 237.110(8), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), the State Police properly relied upon KRS 237.110(8) in denying the request. OAG 04-ORD-60.

The Jefferson County Public Schools cannot properly relied on KRS 61.878(1)(a) in denying requests for billing records from July 2002 to June 2003 for a cell phone issued by JCPS to the Moore Traditional Middle School Principal on the grounds that the billing records would indicate personal telephone calls that have privacy implications. OAG 04-ORD-65.

The city properly relied on KRS 61.878(1)(a) in denying the requester access to “records, lists and financial reports having to do with who asked whom for donations and an accounting of the contributors to the cemetery fund,” but only to the extent that those records identify the contributors/donors by name or other personally identifiable information. OAG 04-ORD-66.

The records of the Cabinet for Economic Development relating to the proposals, financial incentives, and negotiations with the relocating corporation are preliminary in nature and were properly withheld under KRS 61.878(1)(i) and (j), as no final agency action was taken. The proposals and incentives offered remain preliminary and inchoate as they were never accepted and no final agreement reached. OAG 04-ORD-81.

The Transportation Cabinet’s reliance on KRS 61.878(1)(i) and (j) was misplaced insofar as the requested records formed the basis of the report prepared by Cultural Resource Analysis, Inc., which concluded that the eastern bypass corridor was unsuitable due to the existence of an unavoidable historic site, and that report prompted the FHWA and Transportation Cabinet to remove from consideration early in the design process the eastern bypass corridor alternative in the published Administrative Action Environmental Assessment. OAG 04-ORD-83.

The Transportation Cabinet improperly relied on KRS 61.878(1)(k), authorizing the withholding of “[a]ll public records or information the disclosure of which is prohibited by federal law or regulation,” because it failed to cite any applicable federal law or regulation prohibiting disclosure, relying instead on a FHWA Administrative Memorandum, dated September 25, 1985, and directed to Regional Federal Highway Administrators. OAG 04-ORD-83.

Police incident reports, as opposed to investigative files, are not, generally, exempt from public inspection. The Department of Parks’ policy relative to nondisclosure of incident reports involving “ongoing and open law enforcement or agency administrative adjudications” conflicts with this well-established line of authority. OAG 04-ORD-104.

Since much of the information the incident report contains has already been made known to the public through news accounts, the Cabinet cannot make an adequate showing that it, or the Kentucky State Police, would be harmed by premature release of the report. However, because page 2 of the report and the second written statement identify witnesses, and contain information that might be used in a prospective law enforcement action, we affirm the Cabinet’s denial of access to this portion of the report. OAG 04-ORD-104.

Privacy interest of public employees who have been disciplined for charges of misconduct or exonerated of such charges in the course of their employment is outweighed by the public interest in monitoring agency action. If inherently sensitive records such as sexual harassment complaints must be disclosed, it stands to reason that “actions” against named public employees as well as “leaves and suspensions” are also subject to disclosure. OAG 04-ORD-105.

The Kentucky Commerce Cabinet violated the Kentucky Open Records Act in denying the request for “hard copies of the final presentations” made by advertising agencies in response to a Request for Proposal issued by the Cabinet for an advertising/research agency to consolidate services across cabinet lines and develop a “brand” for the Commonwealth; the requested records do not constitute preliminary drafts, notes, or correspondence with private individuals pursuant to KRS 61.878(1)(i). OAG 04-ORD-125.

The term “intelligence and investigative reports” in KRS 17.150 is broad enough to extend to forensic test result reports. The forensic test result reports may properly be withheld in an Open Records Act request so long as the possibility of further judicial proceedings in this case remains a significant prospect. OAG 04-ORD-129.

Since there is still a pending appellate proceeding with respect to the criminal matter, the open records request for forensic test results is within the scope of KRS 61.878(1)(l) and KRS 17.150(2), as well as KRS 61.878(1)(h), and records and reports generated in the course of the investigation, including the forensic test result reports, remain exempt from disclosure until the appellate proceeding is completed and so long as the possibility of further judicial proceedings in this case remains a significant prospect. OAG 04-ORD-129.

Because the Covington Police Department is not a “covered entity” for purposes of Health Insurance Portability and Accountability Act analysis, records generated by police officers do not contain “protected health information,” and such records are therefore not governed by HIPAA’s Privacy Rule. OAG 04-ORD-143.

Disclosure of personal information beyond the identities of the crime victim or “involved persons”, in this instance addresses and dates of birth, only minimally serves the purposes of the Open Records Act since disclosure of the identity of the victim and “involved persons” is sufficient to allow public scrutiny of the actions of the police department. Consequently, these personal details which are “generally accepted by society” as carrying an expectation of privacy outweigh the minimal public interest in disclosure. OAG 04-ORD-143.

Where Kentucky Retirement System’s proof demonstrates that the law firm has been retained by the Board of Trustees to provide legal and business advice, and that the disputed report was generated within the course and scope of that employment, relating directly to the subject matter upon which professional advice was sought, and since the confidentiality of the report has been maintained from its creation to the present, and that its contents have only been shared with the Board during a closed session of that body, KRS properly withheld the report under authority of KRS 61.878(1)(l) and KRE 503. OAG 04-ORD-149.

Whatever the rationale underlying KRS 61.878(1)(h) may be, the protection it affords to records compiled and maintained by county attorneys and Commonwealth’s Attorneys pertaining to criminal investigations or criminal litigation is absolute regardless of whether enforcement action is completed or a decision is made to take no action. OAG 04-ORD-153.

The Division of Public Safety, operating as a Public Safety Answering Point for the purpose of receiving 911 calls and dispatching public safety services as appropriate, is not foreclosed from releasing recordings of 911 calls under the narrow prohibition on disclosure of Automatic Location Identification information codified at KRS 65.752(4). Further, KRS 61.878(1)(a) may only be properly invoked where the facts of a specific case warrant invocation, and not as a matter of policy; the facts in this case do not support the denial of the request. OAG 04-ORD-161.

The Kentucky State Police adopted the investigative file at issue as the basis of its final action following the inquiry into the actions of the trooper on the night in question as evidenced by the notations located at the conclusion of the memorandum containing the findings and conclusions of the investigating officer and the express language of the captain’s memorandum. Accordingly, the file’s preliminary characterization was lost, as was its exempt status. OAG 04-ORD-162.

The Correctional Complex properly relied upon KRS 197.025(1) in its denial of the request for copies of the entry/exit logs, the daily rosters for the security staff, the duty rosters, and the time and attendance records for the security staff. Disclosure of the documents would pose a threat to the security of the institution because disclosure of these records could enable a requester to determine (1) when posts filled by these individuals were either unmanned or in a state of change; and (2) when these individuals may be found in close proximity to the institution for purposes of harassment. OAG 04-ORD-180.

The Cabinet erred in adopting a policy of blanket exclusion relative to the responsive e-mails and any unidentified responsive records on the basis of the attorney-client privilege. The Cabinet has provided only a bare assertion in support of its claim that unidentified responsive records, including e-mails, constitute privileged attorney-client communications, and has not identified the records or groups of records withheld or adequately explained how the privilege applies to those records as required by KRS 61.880(1) and KRE 503. OAG 04-ORD-187.

The notes of the individual committee members which formed the basis of the Cabinet’s final action are subject to inspection. The Cabinet must provide the requester with copies of any existing notes which are responsive to the request, even though the content of those notes has been revealed indirectly with the disclosure of the group RFP score sheets. However, the Cabinet properly withheld any existing notes which were not adopted as a basis for the Cabinet’s final action. OAG 04-ORD-187.

The incident reports are matters of public interest and are public records and the university police has a statutory duty to release them for public inspection in full and without redactions absent a particularized showing of a heightened privacy interest in the individual report predicated not on the expressed wishes of the complainant, but on specific factors. Absent that particularized showing, the public has a legitimate interest in the incident reports and disclosure of the information they contain transgresses only minimally upon the privacy of the individuals who are the subjects of those reports. OAG 04-ORD-188.

A petition signed by individuals who support the sale of the city owned property, does not qualifies as correspondence with a private individual. It is a public declaration of support to which these individuals affixed their signatures. It therefore cannot be characterized as “letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurance of confidentiality,” but is in the nature of a communication upon which the commission is expected to rely in taking action relative to the sale of the property. OAG 04-ORD-192.

The University presents no evidence that donations made to it by BellSouth have been conditioned upon nondisclosure of records identifying the donor or the amount donated, or any other evidence that would support a claim that the corporation’s privacy interests outweigh the public’s interest in monitoring the University’s receipt of corporate donations and in gauging the extent to which these donations are tied to the exercise of corporate influence. The University has adduced no proof, beyond a bare allegation, that the protections afforded by KRS 61.878(1)(a) should be extended to BellSouth as a corporate donor. OAG 04-ORD-197.

KRS 197.025(2) necessarily applies to Corrections Corporation of America. Although the statute does not specifically provide that private providers such as CCA and facilities under its jurisdiction are not required to comply with such requests, to hold otherwise would yield the absurd result that inmates housed at private correctional facilities under the jurisdiction of CCA or other private providers would be able to access records which inmates housed at state facilities under the jurisdiction of the Department of Corrections are unable to access. OAG 04-ORD-205.

Because the City has not yet acquired all of the properties to be acquired in each project and is in the process of negotiations or is in litigation involving the City’s various downtown redevelopment projects, the records and information pertaining to the acquisitions and relocation assistance payments of each uncompleted City project are exempt from disclosure and may properly be withheld under authority of KRS 61.878(1)(f) until a particular project is completed. OAG 04-ORD-207.

The University has not met its burden of establishing that the e-mail inquiry from a reporter of the Kentucky Kernel constituted “correspondence with private individuals”; this e-mail does not qualify for exclusion from disclosure under KRS 61.878(1)(i). Accordingly, unless the University can establish that all or any part of the e-mail qualifies for exclusion under another applicable exception in KRS 61.878(1), it must be made available for inspection. OAG 04-ORD-226.

Where the underlying criminal case remains open at the request of the Commonwealth’s Attorney because the defendants have indicated that they are actively considering an RCr 11.42 motion based on ineffective assistance of counsel, the case is within the scope of KRS 61.878(1)(l) and KRS 17.150(2), as well as KRS 61.878(1)(h) as construed in Skaggs v. Redford, and audio and video taped interviews with the participants in the criminal act remain exempt from an open records request until prosecution is completed. OAG 04-ORD-234.

Although personal notes taken at a meeting might qualify for exclusion from inspection by the public generally, pursuant to KRS 61.878(1)(i) and possibly (1)(a), such notes do not qualify for exclusion from inspection by the individual public employee who is the subject of those notes. Because they relate to the employee the notes must be released to her if they exist in the assistant superintendent’s files or elsewhere within the school system. The school system must extend its search beyond the personnel file and produce for her inspection any responsive records that search yields regardless of their “preliminary” or “private” character. OAG 04-ORD-242.

Since the Athletic Directors of the public schools are public employees, not private citizens, correspondence between them and the Kentucky High School Athletic Association relating to their positions as athletic directors would not be exempt from disclosure under KRS 61.878(1)(i). OAG 04-ORD-244.

The implied confidentiality of polygraph examinations and materials related thereto, found in 502 KAR 20:020 Section 4(2), coupled with the unreliability of the examinations and the previously recognized privacy interest in the examinations, support the Department’s denial of the request, notwithstanding the fact that the requester is apparently the mother of the juvenile who was the subject of the sexual abuse investigation of which this polygraph examination was a part. OAG 04-ORD-245.

Where an inmate receives a disciplinary report for unauthorized use of drugs, and receives a copy of the internal chain of custody form for collection of the urine sample and the laboratory chain of custody forms, to the extent the back pages of original urinalysis chain of custody documentation contains information that is not addressed to or does not specifically refer to an inmate, the Department of Corrections is authorized to except those pages from disclosure to inmates under KRS 61.878(1)( l ) and KRS 197.025(2). OAG 04-ORD-248.

The agency erred in characterizing employee timesheets, resumes, applications for employment, complaints, reprimands, disciplinary records, salary histories, letters of resignation, and termination letters as non-public records. Any and all portions of such records relating to an individual’s public employment are open records, and must be made available for inspection by the public upon request. OAG 04-ORD-251.

Under the express terms of KRS 342.229(1), the Department must withhold all records that personally identify an individual alleging a work related injury or occupational disease unless the requester can satisfy the commissioner of his interest in the records and the right to inspect them. Since the evidence does not indicate that the requester has presented to and satisfied the Commissioner of his interest in the records and his right to inspect them, the Department properly withheld access to the records under authority of KRS 61.878(1)(l) and KRS 342.229(1). OAG 04-ORD-252.

Documents tendered as part of competitive sealed bidding become open public records at the time the bids are opened, even if the bids are rejected. Public disclosure of bid documents associated with a competitive sealed bid can not be delayed until the contracting public agency determined whether to move to competitive negotiation, and if a determination is made to proceed into competitive negotiation, the original bid documents can not be considered part of the negotiation process and remain closed until a contract is awarded or negotiations are cancelled. OAG 05-ORD-001.

Portions of the Uniform Offense Report may be withheld where specific harm is shown, but blanket nondisclosure of page two of the report is impermissible. The police department may redact those portions of page two of the report that are categorized under the headings “Synopsis,” “Modus Operandi,” “Accused,” “Suspects,” “Witnesses,” “Evidence and How Marked,” “Evidence Disposition,” and “Attachments,” but only if disclosure of those entries would reveal the identities of informants not otherwise known, or compromise the investigation or prosecution of a case, and only after it advises the requester, in writing, that the request is partially denied on the basis of KRS 61.878(1)(h) and/or KRS 17.150 . OAG 05-ORD-003.

Court Appointed Special Advocate (CASA) is not a “public agency” within the meaning of KRS 61.870(1), and is therefore not bound by the provisions of the Open Records Act. In addition, CASA officials and volunteers must keep confidential all information contained in records of the type requested except in conferring with or reports to the court pursuant to KRS 620.505(8), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l). OAG 05-ORD-004.

Because an itinerary is functionally equivalent to the ledgers, calendars, and/or schedules adjudged exempt in Courier-Journal v. Jones, Ky. App., 895 S.W.2d 6, 1995 Ky. App. LEXIS 58 (1995), the Office of the Governor did not violate the Open Records Act in denying the request for the travel itineraries for the Governor’s trade mission to Europe. OAG 05-ORD-018.

County jailer’s statement that requested grievances “would contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy” failed to adequately substantiate the privacy interests of inmates filing grievances, and did not meet the requirements of KRS 61.878(1)(a). OAG 05-ORD-24.

An internal memorandum from a subordinate to a superior containing a frank discussion regarding the fleet services and the utilization of both new and old operational processes in the operation and maintenance of the mobile fleet of a city police department included opinions expressed, and recommendations and criticisms made about agency practices and it could be properly withheld from disclosure under KRS 61.878(1)(j). OAG 05-ORD-27.

In regard to a request for records relating to the removal of selected political signs from the dedicated right-of-way by a county public works department, the negligible privacy interest implicated by disclosure of the complainant’s name was clearly inferior to the public’s interest in ascertaining whether possible political pressures affected the agency’s performance of its public duties; the offense to personal privacy which would result from disclosure of the name was outweighed by the benefit to the public, and the “clearly unwarranted” language in KRS 61.878(1)(a) tipped the scales in favor of disclosure. OAG 05-ORD-30.

The Department of Corrections may properly withhold the requested personnel record of a deputy warden on the basis of KRS 197.025(1) assuming it satisfies its burden of proof by establishing that disclosure would constitute a threat to the security of any inmate, the staff of the institution, or any other person, and promptly notifies the requester in writing of its decision. OAG 05-ORD-34.

To the extent an offer to purchase made to a property owner whose property has been the subject of condemnation actions contains information that would reflect the amount or contents of a real estate appraisal, that information could clearly be withheld from disclosure under authority of KRS 61.878(1)(f). However, other information in the offer, that would inform the public of what is being done in regards to a project and that does not disclose to the public the appraised values or the contents of the appraisal or the terms and conditions of a particular offer, would be subject to disclosure. OAG 05-ORD-43.

Request for copies of documents, correspondence and responses related to the Kentucky High School Athletic Association’s survey of non-public high schools was properly denied because the requested records were preliminary in nature, and were properly characterized as drafts which had not been adopted as a basis for final action. OAG 05-ORD-48.

The Office of the Inspector General and Adult Protective Services Branch of the Cabinet for Health and Family Services did not violate the Kentucky Open Records Act in denying identical requests submitted by an attorney on behalf of a hospital for copies of complaints made related to the treatment of a deceased patient while admitted at the hospital. The Cabinet, a hybrid entity under the Health Insurance Portability and Accountability Act of 1996, fully complied with state and federal law in responding to the requests. The OIG properly denied the attorney’s request on the basis of 45 CFR § 164.512(c) in conjunction with KRS 61.878(1)(a), (k) and ( l ), and KRS 194A.060(1). In addition, the APS properly conditioned release of the requested APS records upon completion of the Cabinet’s HIPAA compliant form or receipt of a court order in accordance with 45 CFR § 164.512(c) and § 164.508(6)(c)(1). OAG 05-ORD-54.

One year is not an unreasonable time to investigate and/or prosecute a case and, having established that the disputed records consisted of investigative records maintained by a criminal justice agency, the Kentucky State Police did not abuse its discretion in invoking KRS 17.150(2) and KRS 61.878(1)(h) to shield those records from disclosure. OAG 05-ORD-58.

Detention center violated the Open Records Act in failing to treat an inmate’s requests for a copy of his MRI results and a copy of what a neurosurgeon prescribed for treatment as open records requests and in refusing to produce the requested records until after the inmate is released based on its security policies and procedures restricting inmate possession of paper products for fire safety reasons. OAG 05-ORD-60.

Lexington Fayette Urban County Government violated the Kentucky Open Records Act in denying the requester access to cancelled checks which are currently maintained by a private agency at the instance of and as custodian on behalf of the LFUCG. OAG 05-ORD-65.

A letter prepared by a public agency employee, an attorney, to opposing counsel in a civil action does not qualify for exclusion as correspondence with a private individual. OAG 05-ORD-72.

The Justice and Public Safety Cabinet properly relied on KRS 61.878(1)(a) in denying that portion of a request for information on an autopsy relating to autopsy photographs. OAG 05-ORD-75.

An inmate request for his “entire” or “complete” inmate file is sufficiently specific and the inmate cannot be required to provide a more specific description. OAG 05-ORD-76.

Because a police department could not establish that requested copies of radio or telephonic transmissions received, sent, or otherwise made on a particular date were “actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process,” the department failed to satisfy its burden of proof relative to KRS 61.878(1)(h). OAG 05-ORD-78.

Hazard Independent Schools violated the Open Records Act in denying Perry County School District’s request for a list of students and their addresses on the basis of KRS 61.878(1)(a) and 20 USCS § 1232g, but properly denied Perry County’s request for “information regarding tuition paid by students” on these bases. OAG 05-ORD-81.

A mug shot of a federal prisoner incarcerated in the county jail is a public record within the meaning of KRS 61.870(2) and because the record is not shielded from public inspection by any of the exceptions to the Open Records Act, including KRS 61.878(1)(a) and (k), it must be disclosed. OAG 05-ORD-94.

Police records, are not included among those to which the General Assembly expressly afforded protection by virtue of KRS 61.878(1)(h), OAG 05-ORD-95.

A company that does not receive at least twenty-five percent (25%) of its funding from state or local authority funds, is not a public agency within the meaning of KRS 61.870(1) and therefore it did not violate the Open Records Act in denying an inmate’s request for records relating to his urinalysis. OAG 05-ORD-97.

The Personnel Cabinet did not violate the Open Records Act in denying an open records request for the town of residence of a former manager of a state park. OAG 05-ORD-100.

A correctional facility did not violate the Open Records Act in its denial of an inmate’s request to inspect his psychological file—mainly the psychological evaluation. OAG 05-ORD-101.

The Kentucky State Police properly invoked KRS 61.878(1)(h), and KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), albeit implicitly, in denying access to the requested investigatory records. OAG 05-ORD-103.

The University of Louisville properly relied on KRS 61.878(1)(a) in withholding the names of private donors to the athletic department but not the amounts donated, and it did not meet its burden of proving personal privacy interests in corporate donations of sufficient weight to overcome the public’s interest in disclosure of the identities of two corporate donors that requested anonymity. OAG 05-ORD-104.

The University of Louisville did not violate the Open Records Act in denying access by the Pick-A-Prof company to a “mailing list for the incoming freshman and transfer students” on the basis of KRS 61.878(1)(a). OAG 05-ORD-111.

The Commission on Human Rights violated the Open Records Act in partially denying a request for copies of “notes, incident reports or related documents from any witnesses or other parties” concerning a particular incident; because the requester is a “public agency employee,” the records relate to him, and the subject investigation is apparently not ongoing, he is entitled to copies of the records still at issue by virtue of KRS 61.878(3), regardless of whether those records are preliminary and would otherwise be exempt. OAG 05-ORD-118.

The State Police properly relied on KRS 61.878(1)(m)1.c., d., and e. in denying a reporter’s request for records documenting the number of sworn State Police personnel assigned for security and related duties for the landing and departure of Vice President Dick Cheney at Louisville International Airport. OAG 05-ORD-119.

Disclosure of requested public records relating to the airport expansion program andy relocation program operated by the Louisville International Airport was properly denied because 49 C.F.R. Part 24.9(b) constitutes a federal law prohibiting disclosure of the records, and the information contained therein, within the meaning of KRS 61.878(1)(k). OAG 05-ORD-128.

The Motor Vehicle Enforcement Division of the Justice and Public Safety Cabinet violated the Open Records Act in denying a request for “names, addresses and violation information of all CDL class A drivers that have had out of service violations”; the requester is entitled to a copy of the entire database containing the requested information in standard format, and, in the event the Cabinet elects to redact protected information of a personal nature per KRS 61.878(1)(a), it, rather than the requester, must bear the cost of redaction pursuant to KRS 61.878(4). OAG 05-ORD-129.

The Kentucky Transportation Cabinet did not violate the Open Records Act in denying a request, on behalf of an attorney’s client, for copies of records reflecting any action taken by the Medical Review Board during a meeting at which it recommended that the client be allowed to take the “one (1) Final Road Test”; the Cabinet merely complied with The Driver’s Privacy Protection Act, incorporated into the Open Records Act by operation of KRS 61.878(1)(k), in requiring the attorney to verify his status; any less would constitute a violation of 18 USCS § 2721(b)(13). OAG 05-ORD-131.

Lee Adjustment Center properly denied a request to inspect the records regarding the firing of an officer on the basis of KRS 197.025(1) or, in the alternative, KRS 197.025(2), both of which are incorporated into the Open Records Act by operation of KRS 61.878(1)( l ). OAG 05-ORD-143.

The Environmental and Public Protection Cabinet, Department of Labor, did not violate the Open Records Act in denying requests for inspection reports, documents, photographs, and/or videos pertaining to inspections at a manufacturing facility and properly redacted information identifying employees pursuant to KRS 338.101(1)(a), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Further, because the file relating to another inspection contains records that were compiled in the process of detecting statutory or regulatory violations which contain information, the premature disclosure of which could jeopardize a prospective administrative adjudication, the Department properly denied a request as to those records on the basis of KRS 61.878(1)(h). OAG 05-ORD-168.

The Kentucky Personnel Cabinet did not meet its burden of establishing that disclosure of the level of access of each person in state government with CICS privileges would result in a “reasonable likelihood of threatening the public safety by exposing a vulnerability” in protecting against a terrorist act, and thus, violated the Open Records Act in denying access to those records under KRS 61.878(1)(m)1.f. OAG 05-ORD-175.

County board of education properly relied upon KRS 61.878(1)(a) in redacting identifying information of the complainants, potential witnesses, and uninvolved individuals from records provided to the requester relating to investigations into the alleged misconduct of the school superintendent. OAG 05-ORD-177.

Louisville Metro Planning and Design Services improperly relied on KRS 61.878(1)(d), (i), and (j) in denying a request for public records “which pertain to any preapplication for a zoning change or a conditional use permit or to any preapplication or concept plan for a major subdivision and which are related to any property in Louisville and Jefferson County, Kentucky. OAG 05-ORD-179.

To the extent that the contents of a letter sent to elected congressional officials from a county judge/executive regarding the county sheriff’s office domestic violence unit related to the sheriff, his office, and his employees, he and his employees were entitled to inspect and obtain a copy of it. The mandatory stricture found at KRS 61.878(3) overrides any otherwise applicable exception, including KRS 61.878(1)(j), to compel disclosure of the letter and supporting documentation. OAG 05-ORD-181.

The Office of the Governor improperly relied on executive privilege and KRS 61.878(1)(a), (i), and (j) in partially denying a journalist’s request for copies of emails sent to and from a particular state government email address because the Office of the Governor failed to meet its burden of proof. OAG 05-ORD-185.

The Education Cabinet properly relied on KRS 341.190 and KRS 151B.280(3), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying a request to inspect and copy decisions of the Unemployment Insurance Commission that relate to the issue of who is considered to be a employer for purposes of having to pay state unemployment insurance tax. OAG 83-405 is overruled on the basis of subsequent amendments to the law. OAG 05-ORD-186.

An industrial development corporation erred in redacting portions of the minutes from regular public meetings provided to requester regardless of whether the material would otherwise be removed from application of the Open Records Act pursuant to one or more of the exemptions in KRS 61.878(1) or could have properly been discussed during a closed session. OAG 05-ORD-209.

An email retained in the Office of the Governor that was a communication from one official to another seeking confirmation that an existing policy was being properly implemented did not qualify for exemption from disclosure under KRS 61.878(1)(j) since it was devoid of any subjective expressions of opinion, recommendation or policy formulations. OAG 05-ORD-210.

The Environmental Public Protection Cabinet, Division of Employment Standards, did not properly rely on KRS 61.878(1)(h) in denying a request for a copy of the documentation provided bycompanies against which the requester filed his prevailing wage complaint. OAG 05-ORD-215.

Under the authority of KRS 61.878(1)(l), in tandem with KRS 311.377 , Child Watch Children’s Advocacy Center, Inc., as a specialized children’s service clinic, properly denied a request for peer review records and records developed by it in providing its services. OAG 05-ORD-220.

The Kentucky State Police violated the Kentucky Open Records Act in denying the request of an applicant for employment for copies of all paperwork prepared in his prospective hiring because KRS 61.878(3) expressly applies to applicants for public employment such as the requester, and overrides the other exemptions codified at KRS 61.878(1). OAG 05-ORD-226.

The Kentucky State Police did not violate the Open Records Act in denying a request for all reports, tests, and documentation relating to a criminal case sought by the requester for his appeal motion. OAG 05-ORD-246.

The Finance and Administration Cabinet must disclose the type of information it maintains on state employees, but not infrastructure records that are reasonably likely to expose a vulnerability through the disclosure of the location, configuration, or security of a critical infrastructure technology system. OAG 05-ORD-250.

The Kentucky State Police erred in relying on KRS 61.878(1)(h), KRS 61.878(1)(m)1.c., and KRS 61.878(1)(l), incorporating KRS 16.060 into the Open Records Act, to support nondisclosure of the names of the members of the Governor’s Executive Security Detail appearing on fuel receipts. OAG 05-ORD-255.

Housing authority was obliged to honor a request for access to “the official file contents of a hearing held within the last 30 days involving a HUD resident.” OAG 05-ORD-258.

The Division of Probation and Parole did not violate the Open Records Act in denying an inmate’s request for copies of certain casebook narratives on the basis of KRS 439.510 and KRS 61.878(1)(l). OAG 05-ORD-265.

A police department violated the Kentucky Open Records Act in partially denying the request of an individual for copies of his arrest report and documents relating to him or another person with whom he was arrested. OAG 05-ORD-273.

An attorney’s requests for all records relating to the University of Kentucky’s investigation of his client, a former football coach, for NCAA violations conducted over a particular period of time were specific and narrow enough for the university to identify and locate responsive records. OAG 05-ORD-274.

County schools did not violate the Open Records Act in denying newspaper reporter’s request to inspect the “job performance evaluation, including any written recommendations for improvement” of a middle school principal. OAG 06-ORD-001.

Because no final action has yet been taken, a city properly denied access to a draft report by a task force addressing potential staffing changes within the fire department of the city. OAG 06-ORD-003.

By requesting to inspect “any and all” written or electronic communications between named individuals “and all others” regarding the requester or her employment status on or after a certain date, the requester failed to describe the records sought with “sufficient clarity” so as to enable her former employer to identify and locate all responsive records. OAG 06-ORD-004.

Transit authority violated the Open Records Act in denying a request for the names of bus drivers involved in “preventable” accidents. OAG 06-ORD-006.

University employee was is entitled to inspect any record including preliminary and other supporting documentation that related to her, even if not contained in her personnel file. OAG 06-ORD-014.

A university employee is entitled to copies of records that relate to her by virtue of KRS 61.878(3), regardless of whether those records are preliminary and would otherwise be exempt under KRS 61.878(1)(i). To the extent the university denied the requester access to any records which relate to her that were not in her personnel file, on the basis of KRS 61.878(1)(i), it violated the Open Records Act. OAG 2006-ORD-014.

State police did not violate the Open Records Act in denying a request for documentation of “all money transactions for drug buys” in the requester’s case and “all audio recording’s, statement’s, and reports of any kind when it comes to [him]” because these investigative records were part of an ongoing criminal case in which the requester’s underlying federal criminal conviction was not final. OAG 06-ORD-017.

City properly relied KRS 61.978(1)(i) and (j) in partial denial of a request for interagency email communications concerning certain property as well as calendars reflecting dates of meetings at which the property was discussed. OAG 06-ORD-021.

Request for an accident report involving a city truck was proper under the Open Records Act; however, the requested record was excluded from public inspection by operation of KRS 189.635(5). OAG 06-ORD-024.

In responding to the request of an inmate for copies of “all statements/occurrence reports made by any medical department employees” regarding his confinement in segregation, a correctional institution properly relied upon KRS 197.025(1) in redacting the name of a medical staff member who provided a statement that was incorporated into a report concerning the incident. OAG 06-ORD-026.

Kentucky Historical Society improperly denied access to records that disclose the names of its members. However, the agency properly withheld access to the members’ home address, email address, and telephone number. OAG 06-ORD-031.

Where the open records request requested contracts, memorandums of agreement or understanding, or similar documents reflecting the Department’s participation in the Joint Audit Program of the Multistate Tax Commission, it is highly unlikely that a contract or memorandum of agreement would contain sufficient detail to divulge information pertaining to the tax schedules, returns, reports or the affairs of a person’s business, in violation of the confidentiality provisions of KRS Chapter 131. OAG 2006-ORD-032.

Police department did not meet its burden in establishing that requested radio transmissions and incident report were exempt under KRS 61.878(1)(h), and thus, improperly denied access to the records. OAG 06-ORD-035.

The Police Department did not meet its burden in establishing that the requested radio transmissions and incident report were exempt under KRS 61.878(1)(h), and thus, improperly denied access to the records. The agency failed to establish that (1) the requested records were compiled as an integral part of a specific investigation and (2) failed to establish that premature disclosure of these records would harm the ongoing law enforcement action. OAG 2006-ORD-035.

Although a county board of education violated KRS 61.880(1) in failing to cite the applicable statutory exception and briefly explain how the exception applied to the records of policies relating to the reemployment of substitute teachers and the employment of retired teachers, the board properly redacted the contact information of substitute teachers. OAG 06-ORD-036.

Kentucky State Law Library is not bound by the provisions of the Open Records Act. OAG 06-ORD-038.

Police department properly denied the request of a newspaper reporter for a copy of a complaint against an officer filed with the department as the investigation was still ongoing and no final action on the complaint had been taken. OAG 06-ORD-043.

Police department did not violate Open Records Act in the disposition of request for offense/incident reports, in light of its modified reporting procedure; however, the department must respond to any resubmitted or subsequent requests for offense/incident reports and related investigative records. A policy of blanket nondisclosure of investigative records is impermissible. OAG 06-ORD-044.

Resolution of this issue turns on the proper interpretation of the phrase “applicable law” appearing in 45 CFR 164.502(g)(4). KRS 209.140 does not vest an executor, administrator, or any other person with authority to act on behalf of a deceased individual or the individual’s estate, but is instead a confidentiality provision the terms of which are engrafted upon the Open Records law by operation of KRS 61.878(1)( l ). It is KRS Chapter 395 that grants authority to act on behalf of a deceased individual or of the individual’s estate, and that law, operating in tandem with 45 CFR 164.502(g)(4), requires the Cabinet to accord the requester, as her mother’s personal representative, the same treatment it would have accorded her mother. As the mother would have been entitled to a copy of the report per KRS 209.140 (5), so the requester is entitled to a copy. To the extent that OAG 2003-ORD-194 is inconsistent with this view, it is hereby overruled. OAG 2006-ORD-048.

State police properly relied upon KRS 61.878(1)(h) and KRS 17.150(2) in denying a request for copies of all records relating to a particular case since the subject investigation was properly characterized as “open” so long as there was a possibility of further judicial proceedings in the case. OAG 06-ORD-051.

Division of police’s reliance on KRS 61.878(1)(a) to support nondisclosure of identity of suspect in a criminal case that was cleared by exception was misplaced; to the extent that the OAG 91-35 was construed to authorize nondisclosure of the suspect’s identity in all criminal cases that are cleared by exception, that decision is modified. OAG 06-ORD-052.

Research References and Practice Aids

2012-2014 Budget Reference.

See State/Executive Branch Budget, 2012 Ky. Acts ch. 144, Pt. I, M, 9, (2) at 1142.

Kentucky Bench & Bar.

Crawford, A Clearly Unwarranted Invasion Preserving the Balance Between Informational Privacy and Public Access to Agency Records, Vol. 57, No. 4, Fall 1993, Ky. Bench & Bar 33.

Fleischaker, Klimkina & McCauley, The Kentucky Open Records Law: A Retrospective Analysis, Vol. 76, No. 4, July 2012, Ky. Bench & Bar 13.

McClelland, A Never-ending struggle between competing policies: The Kentucky Open Records Act, Vol. 61, No. 4, Fall 1997, Ky. Bench & Bar 25.

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Candid Kentucky: The Commonwealth’s Devotion to an Open Government, 39 N. Ky. L. Rev. 45 (2012).

Ziegler, The Kentucky Open Records Act: A Preliminary Analysis, 7 N. Ky. L. Rev. 7 (1980).

Kentucky Law Journal.

Out of the Sunshine and into the Shadows: Six Years of Misinterpretation of the Personal Privacy Exemption of the Kentucky Open Records Act, 71 Ky. L.J. 853 (1982-83).

Notes, Open Debate Over Closed Doors: The Effect of the New Developmental Disabilities Regulations on Protection and Advocacy Programs, 85 Ky. L.J. 955 (1996-97).

61.880. Denial of inspection — Role of Attorney General.

  1. If a person enforces KRS 61.870 to 61.884 pursuant to this section, he or she shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. Each public agency, upon any request for records made under KRS 61.870 to 61.884 , shall determine within five (5) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the five (5) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his or her authority, and it shall constitute final agency action.
    1. If a complaining party wishes the Attorney General to review a public agency’s denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884 . (2) (a) If a complaining party wishes the Attorney General to review a public agency’s denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884 .
    2. In unusual circumstances, the Attorney General may extend the twenty (20) day time limit by sending written notice to the complaining party and a copy to the denying agency, setting forth the reasons for the extension, and the day on which a decision is expected to be issued, which shall not exceed an additional thirty (30) work days, excepting Saturdays, Sundays, and legal holidays. As used in this section, “unusual circumstances” means, but only to the extent reasonably necessary to the proper resolution of an appeal:
      1. The need to obtain additional documentation from the agency or a copy of the records involved;
      2. The need to conduct extensive research on issues of first impression; or
      3. An unmanageable increase in the number of appeals received by the Attorney General.
    3. On the day that the Attorney General renders his or her decision, he or she shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved, but they shall not be disclosed.
  2. Each agency shall notify the Attorney General of any actions filed against that agency in Circuit Court regarding the enforcement of KRS 61.870 to 61.884 . The Attorney General shall not, however, be named as a party in any Circuit Court actions regarding the enforcement of KRS 61.870 to 61.884 , nor shall he or she have any duty to defend his or her decision in Circuit Court or any subsequent proceedings.
  3. If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees, delay past the five (5) day period described in subsection (1) of this section, excessive extensions of time, or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
    1. A party shall have thirty (30) days from the day that the Attorney General renders his or her decision to appeal the decision. An appeal within the thirty (30) day time limit shall be treated as if it were an action brought under KRS 61.882 . (5) (a) A party shall have thirty (30) days from the day that the Attorney General renders his or her decision to appeal the decision. An appeal within the thirty (30) day time limit shall be treated as if it were an action brought under KRS 61.882 .
    2. If an appeal is not filed within the thirty (30) day time limit, the Attorney General’s decision shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained.

History. Enact. Acts 1976, ch. 273, § 6; 1992, ch. 163, § 6, effective July 14, 1992; 1994, ch. 262, § 6, effective July 15, 1994; 2021 ch. 160, § 5, effective June 29, 2021.

NOTES TO DECISIONS

1.Application to Courts.

Some details of the Open Records Law present interferences inconsistent with the orderly conduct of court business, to wit, the requirement that courts adopt and post rules and regulations, that they conform to the procedure set forth in KRS 61.880 , and that as to the accessibility of their records they adhere to the list of exceptions stated in KRS 61.878 , and such requirements will not be accepted. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

2.Disclosure.
3.—Exceptions.

Where county attorney did not attempt to establish that disclosure of records relating to child support payments requested by attorney representing father of minor child would constitute a clearly unwarranted invasion of personal privacy, and where county attorney did not reference relevant state or federal law barring disclosure or explain its application to the disputed records, county attorney’s response failed to conform to subsection (2)(c) of this section and KRS 61.882(3). Edmondson v. Alig, 926 S.W.2d 856, 1996 Ky. App. LEXIS 124 (Ky. Ct. App. 1996).

4.—Records That No Longer Exist.

Once it has been determined that records requested under the Kentucky Open Records Act no longer exist, the responsible agency is required to provide the requester with a written explanation for the records’ nonexistence. Therefore, an inmate was entitled to relief under the Act based upon a request for certain jail records, even though the records allegedly no longer existed. Eplion v. Burchett, 354 S.W.3d 598, 2011 Ky. App. LEXIS 215 (Ky. Ct. App. 2011).

3.—Exceptions.

Circuit court made an erroneous factual conclusion that all the records in the investigation file were covered by the Family Educational Rights and Privacy Act (FERPA) because although the university was prohibited from releasing for the Attorney General’s in camera review education records with unredacted personally identifying information, not all the records requested were education records, and FERPA did not prohibit their release. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

5.Time Limitations.

Because the Open Records Act, did not contain a timeframe for challenging an agency’s denial to the Attorney General, an attorney’s appeal to the Attorney General would have been timely whenever she chose to file it. Wyrick v. Dep't of Revenue, 2008 Ky. App. LEXIS 169 (Ky. Ct. App. May 30, 2008).

Lawsuit should not have been filed against an attorney for the Kentucky Education and Workforce Development Cabinet based on an allegation that there was a failure to respond in 3 days because the Kentucky General Assembly intended suits based on violations of the Kentucky Open Records Act, including the time provisions at issue here, to be brought against the state agencies themselves and not against the individuals employed by those agencies. Taylor v. Maxson, 483 S.W.3d 852, 2016 Ky. App. LEXIS 15 (Ky. Ct. App. 2016).

6.Judicial Review.

Although the Department of Revenue (DOR) probably should have raised its defense before the Attorney General, the DOR sufficiently preserved this issue when it included the defense as an aggregate reason for denying an attorney’s request for certain documents. Wyrick v. Dep't of Revenue, 2008 Ky. App. LEXIS 169 (Ky. Ct. App. May 30, 2008).

Summary judgment finding an Open Records Act (ORA) violation was proper against the Cabinet for Health and Family Services (Cabinet) because the Cabinet's failure to give the Attorney General enough information to answer a request to review the Cabinet's denial caused the Attorney General to find the Cabinet violated the ORA, which the Cabinet did not timely appeal, under Ky. Rev. Stat. Ann. § 61.880(5)(a), giving the finding the force and effect of law, under Ky. Rev. Stat. Ann. § 61.880(5)(b). Cabinet v. Todd Cnty. Std., 488 S.W.3d 1, 2015 Ky. App. LEXIS 171 (Ky. Ct. App. 2015).

Trial court had jurisdiction to review the decision of the Kentucky Legislative Research Commission (LRC) regarding a newspaper’s request for legislative records because (1) the court’s statutory jurisdiction was not limited to records requests or cases where the LRC issued no decision in 30 days, and (2) the Open Records Act’s statutory judicial review right was incorporated into the governing statute. Harilson v. Shepherd, 585 S.W.3d 748, 2019 Ky. LEXIS 380 ( Ky. 2019 ).

7.Attorney General.

In a case under the Kentucky Open Records Act, because the alleged misstatements that an attorney for the Kentucky Education and Workforce Development Cabinet made that allegedly caused emotional distress were part of an adjudicatory process before the Kentucky Attorney General, the statements were entitled to absolute judicial immunity. Taylor v. Maxson, 483 S.W.3d 852, 2016 Ky. App. LEXIS 15 (Ky. Ct. App. 2016).

General Assembly certainly intended for the Attorney General (AG) to save the court and the requesters time and costs by designating the AG as the “watchdog” in open records cases; it conferred upon the AG the duty to adjudicate open records dispute and, to do so, gave the AG the ability to substantiate an agency’s claims that records are exempt through an in camera review of the records requested. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

8.Noncompliance.

University violated the Kentucky Open Records Act because it refused to allow the Attorney General (AG) to review redacted records requested by the student newspaper; the refusal made the AG’s review of the matter impossible, leaving the AG with no alternative but to decide that the university had release the records to the newspaper. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

University violated the Open Records Act because the university did not (1) show a specific exemption applied to a particular record, (2) redact personally identifying information, or (3) show records were exempt through a proper index, and (4) refused to let the Attorney General review redacted records. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

18.Civil Litigation.

Public agency’s response to a subpoena should be independent and separate from its response to an open records request. The reason for objecting to a subpoena should be based on the rules of discovery and not based on the Kentucky Open Records Act, Ky. Rev. Stat. Ann. § 61.870 et seq., and, consequently, records exempt from disclosure through the Act may still be discoverable in a civil case and the discovery limited by the Kentucky Rules of Civil Procedure governing pretrial discovery. Parish v. Petter, 608 S.W.3d 638, 2020 Ky. App. LEXIS 100 (Ky. Ct. App. 2020).

Cited in:

Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658, 1982 Ky. App. LEXIS 232 (Ky. Ct. App. 1982); Frankfort Pub. Co. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 1992 Ky. LEXIS 103 ( Ky. 1992 ); Zink v. Department of Workers’ Claims, Labor Cabinet, 902 S.W.2d 825, 1994 Ky. App. LEXIS 141 (Ky. Ct. App. 1994); Blair v. Hendricks, 30 S.W.3d 802, 2000 Ky. App. LEXIS 69 (Ky. Ct. App. 2000); Commonwealth v. Chestnut, 250 S.W.3d 655, 2008 Ky. LEXIS 116 ( Ky. 2008 ); Lexington H-l Servs. v. Lexington-Fayette Urban County Gov’t, 297 S.W.3d 579, 2009 Ky. App. LEXIS 51 (Ky. Ct. App. 2009); Parish v. Petter, 608 S.W.3d 638, 2020 Ky. App. LEXIS 100 (Ky. Ct. App. 2020).

Opinions of Attorney General.

Guest registration records at a state resort lodge are of a personal nature and should not be open to public inspection regardless of the intention of the person making the inspection. OAG 76-469 .

An agency need report the denial of an inspection of a public record when the requester demands more information from the public record than the agency is willing to reveal. OAG 76-488 .

There is no practical or legal reason why an agency should send a copy of its response to the attorney general to a request for personnel information unless the correspondence states that the inspection of a public record is being denied because of a specific exemption in KRS 61.878 . OAG 76-488 .

The Public Health and Safety Department of the City of Louisville properly withheld documents requested by journalists where they related to a closed session on a disciplinary matter and, as such, were exempted from the requirements of the Open Records Statute under KRS 61.878 (1)(j) and KRS 61.810(6) (now (1)(f)). OAG 78-11 .

Where the response to a survey was voluntary, the survey forms, which were filled out and returned to the Department (now Cabinet) for Natural Resources and Environmental Protection by handlers of hazardous waste, are exempt from the requirements of the Open Records Law. OAG 79-69 .

Records of court agencies, such as the board of bar examiners, are placed under the exclusive control of the Court of Justice, and if such an agency denies access to a record, appeal lies to the chief justice and not the Attorney General. OAG 79-174 .

It is not for the Attorney General to tell the custodians of records what documents they may not release, but to tell them what documents they must not release. OAG 79-275 .

Where a former school district employee sought examination of all records of all teachers and administrators on extended employment in the years 1973-1980, the number of days or weeks worked beyond the 185-day school year, the amounts paid each for extended employment and records of length of administrators contracts, a mere showing of the minute books was insufficient. OAG 79-380 .

The school board of an independent school district is entitled to physically inspect the invoices, vouchers and other records which have been created by operation of the school district business and the written contract concerning the employment of the superintendent. OAG 79-390 .

Tax records which are made confidential by KRS 131.190(1) are not within the purview of the Attorney General’s appeal authority. OAG 79-444 .

The appeal authority of the Attorney General under this section pertains only to public records which the public at large is entitled to inspect, not to records which are properly excluded from inspection by any member of the public. OAG 79-444 .

Evaluation documents resulting from official evaluation of an officer’s performance as a state trooper contain material of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy; furthermore, the mere evaluation of a state policeman’s performance is a matter of opinion and, standing alone, does not constitute any action on the part of the Kentucky State Police. OAG 80-58 .

The Attorney General is prevented by the administrative regulations pertaining to the Department of Law, 40 KAR 1:020 § 4, from rendering an opinion regarding the denial of inspection of a public record in response to questions involving matters being litigated or questions submitted in contemplation of litigation. OAG 80-278 .

When a person requests to see bills received, bills paid, warrants requesting checks be issued for payment of bills, and cancelled checks for office equipment and supplies used by a county, it is not a sufficient answer under the Open Records Law for the county clerk to merely refer the requester to the minutes of the county fiscal court. OAG 80-367 .

An urban county airport board is a public agency and all of its papers are public records under KRS 61.870 . OAG 80-586 .

KRS 61.810(6) (now (1)(f)), which provides an exception to the Open Meetings Law allowing hearings on personnel matters to be held in closed session, has no pertinency as to whether documents concerning the dismissal of five employees should be made available for public inspection; in denying inspection of a public record a public agency must rely on one of the exceptions provided in the Open Records Law, KRS 61.878(1). OAG 80-586 .

Reports of building inspections are public records which are open to public inspection by any person under the Open Records Law. OAG 80-596 .

A county housing agency is a public agency under the Open Records Law and it should make its records available for inspection by any person who makes a request to inspect records. OAG 80-597 .

The custodian of municipal records may not respond to a request made under the Open Records Law by placing an “x” by the typed statement: “The records requested are exempted by law from mandatory disclosure” on a form letter since a form letter does not meet the specific statement requirement of this section and because the custodian did not cite any specific exemption in KRS 61.878 which would apply to the material requested. OAG 81-345 .

A city mayor violated the Open Records Law in failing to respond to a request for copies of certain documents concerning the city sewage treatment plant by either making the records available for inspection or giving the requester a written response stating when the records would be available for inspection or stating that inspection was being denied. OAG 81-374 .

It is not sufficient to cite an administrative regulation as a reason for denying the inspection of a record because a public agency does not have the authority to make records confidential by regulation; the exception relied on to preclude inspection must be one of the exceptions provided in KRS 61.878(1). OAG 82-192 .

The term “question privately” in KRS 338.101 , which authorizes the Commissioner of Labor to inspect working places, makes any statement taken from an employee, or other person authorized to be questioned by the statute, confidential, and, as such, it is exempted from mandatory public disclosure by KRS 61.878(1)(j); accordingly, the department of labor properly denied inspection of the statements of witnesses, taken in private interviews, concerning a fatal injury of a worker. OAG 82-192 .

A mayor failed to comply with the Open Records Law by making no response to individual’s request to inspect and copy public records in his custody. OAG 82-342 .

Inspection of requested records containing identifiable descriptions and notations of arrest, detentions, indictments, information or other formal criminal charges and any disposition arising therefrom, including sentencing, correctional supervision and release and/or all other information a local police department may have compiled on a named individual could not be denied on the grounds of “personal privacy.” OAG 82-388 .

Local law enforcement agencies are required to make available for public inspection arrest records of any person, subject to the exceptions stated in KRS 17.150(2). OAG 82-388 .

Attorney for Cabinet for Human Resources did not sufficiently comply with the spirit and the letter of the Open Records Law in responding to request for records by suggesting that requester direct his request to the Director of the Division of Unemployment Insurance; as an employee, agent and attorney for the Division, he should have directed the request to the proper person, i.e., the Director of the Division as official custodian, or to whomever the Director had designated to be the custodian of records. OAG 83-23 .

Where proper request for records was made to attorney in Office of Counsel of Cabinet for Human Resources and attorney stated that he did not have records and instructed requester to make another request to Director of Division of Unemployment Insurance, such Division did not act in accordance with KRS 61.870 to 61.884 in its failure to allow inspection or make a proper response to such request to inspect records after three (3) months from the date of the initial request. OAG 83-23 .

County sheriff did not act in accordance with the Open Records Law by failing to make a written response to a written request for a copy of an accident report; he should have either mailed requester a copy of the report in the self-addressed stamped envelope she furnished or written her that the report would be made available for her inspection in his office. OAG 83-53 .

Where a county school superintendent verbally denied a written request to inspect certain educational records pertaining to teacher assignments, the superintendent did not act in accordance with the Open Records Law, in that he failed to make a written reply to the request and he failed to give a statement of reasons explaining his denial. OAG 83-144 .

School principal did not act in accordance with the Open Records Law when he did not either make the requested records available for public inspection or give the requester a reason why the records, or a part of them, would be kept confidential. OAG 83-248 .

A response denying inspection of a referee decision on the basis that the requester did not represent either party and that KRS 61.870 did not authorize release of such information, did not follow the mandate of this section and was therefore inadequate to deny the request. OAG 83-352 .

The denial of inspection by the Secretary of the Cabinet for Human Resources of final reports stemming from investigations of complaints made about incidents or care at any of the state mental institutions, the complaints spawning final reports, and the investigatory material incorporated into the final reports was improper. OAG 83-425 .

The requestor was entitled to a copy of the docket sheet showing the exact date of entry of the judgment of conviction in a certain criminal action, upon payment of the cost of the copy. OAG 84-144 .

Since subsection (2) of KRS 61.872 and this section provide that an agency must respond to a request for inspection of records within three (3) days, timely access to records would thus be any time less than three (3) days from agency receipt of the request. OAG 84-300 .

Since this section does not provide office of Attorney General with enforcement power it cannot require agency to refund unreasonable fees; any action for recovery of fees must be made to the Circuit Court. OAG 84-300 .

A city-county human rights commission cannot rely upon local ordinances and resolutions to deny a request to inspect public records, if such records are open to public inspection under the Open Records Law. OAG 84-376 .

Under subsection (1) of this section, the public agency is mandatorily required to notify the requesting party of its decision in writing within three (3) days. The notice should advise the requesting party that the records in question will be made available for inspection or should set forth specific reasons why the records cannot be inspected. OAG 85-71 .

It is a failure to comply with the Open Records Law, specifically subsection (1) of this section, when no written response is made within the specified period to a request to inspect public records in the custody of a public agency. OAG 85-71 .

The denial of a request to inspect a portion of a tape recording involving a firefighter’s disciplinary hearing before the Civil Service Board was proper, where the release of that particular testimony would constitute a clearly unwarranted invasion of the firefighter’s personal privacy. OAG 85-83 .

Contracts of employment involving a public agency are public records and should be made available for public inspection. OAG 85-85 .

When a public records dispute is taken to court, the burden of proof is on the public agency to sustain its action. Thus, a public agency should make every attempt to comply with the letter and spirit of the Open Records Act. Every legitimate request, not covered by a statutory exemption, should be complied with as quickly and courteously as possible; the availability of the records should be subject to no more restrictions than are necessary to protect the records and to avoid unduly disrupting the agency’s operations. OAG 85-85 .

The denial of a request to inspect the complete institutional file of an inmate was proper, as requests to inspect personnel files must specify the particular documents within such files to be inspected. OAG 85-88 .

The signature log of employees and visitors eating meals in the Kentucky State Penitentiary facilities, which the corrections Cabinet’s policies and procedures document requires each institution to maintain, is a public record, and furthermore, the list of meal tickets sold is a public record, as the Cabinet’s policies and procedures document requires employees and visitors to purchase a meal ticket for each meal eaten in the Cabinet facilities. Thus, denial of a request to inspect the list of meal tickets was improper and in violation of the Open Records Act. OAG 85-89 .

The denial of a request to inspect the letter of a disciplinary recommendation from a school principal to the Board of Education was proper, because even excising the names of those involved would not be sufficient to protect their privacy, and furthermore, because the letter was a preliminary recommendation expressing an opinion or recommending a policy. OAG 85-90 .

Failure of county school superintendent to state in writing reasons for refusing to permit requesting party to inspect documents and to send a copy of the letter of denial to the Attorney General’s office were violations of the Open Records Law. OAG 85-109 .

A state penitentiary records clerk violated the provisions of the Open Records Act because she failed to respond to a request to inspect within three (3) working days, she failed to state the specific exception to the Open Records Act relied upon in refusing to permit inspection, she failed to send a copy of her written response denying inspection to the Attorney General, and she required the requesting party to state or verify why he needed to inspect and copy public records. OAG 85-120 .

When itemized lists of receipts and expenses of a city are requested, the custodian of the municipal records should immediately advise in writing whether such lists are available; if such itemized records exist, the custodian should either make them available for public inspection or explain what specific exception to public inspection he is relying upon in denying the request to inspect. OAG 86-20 .

Where the letter by the representative of the public agency was sent within the three-day time period but that letter did not state that a portion of the material would be deleted, and the material that was ultimately provided was not furnished within the time frame set forth in the letter and no adequate written response was subsequently provided relative to the delay in providing the documents requested, the public agency did not follow the requirements of subsection (1) of this section. OAG 86-21 .

The Office of the Attorney General does not have the duty or the authority to perform investigations of public agencies to attempt to locate documents which the requesting party maintains exist but which the public agency states do not exist. OAG 86-35 .

Subsection (4) of this section pertains to a situation where a person feels that the intent of the Open Records Act is being subverted short of denial of inspection by such acts as the imposition of excessive fees and the misdirection of the request. OAG 86-35 .

The public agency should make the information requested available by either communicating it to the requesting party or permitting him to inspect those records which will reveal that information or the public agency should advise in writing the requesting party of the particular exception to public inspection it is relying upon and how it applies to the specific information and document being withheld in this situation. OAG 86-36 .

The public agency’s blanket denial of the requested documents was insufficient under the Open Records Act as the public agency should have advised if the documents existed and where inspection was denied each document not made available should be listed and the public agency should state how the exception to public inspection relied upon applied to the particular document withheld from inspection. OAG 86-38 .

The county clerk and the property valuation administrator did not act in accordance with the requirements of the Open Records Law, specifically subsection (1) of this section, where they did not make the requested records available for inspection nor advise the requesting party in writing within the statutorily mandated time period of a specific reason why the records could not be inspected. OAG 86-75 .

The sheriff’s denial of the request to make available documents setting forth his salary and the salaries of his staff members (deputy sheriffs) for the fiscal year in question was improper and in violation of the Open Records Law. OAG 86-75 .

It is within the discretion of the police to decide whether a case is active, inactive or finally closed, but when a demand for inspection of records is refused the burden is on the police to justify the refusal of the inspection with specificity; therefore, where the missing person’s file had been maintained as an open case (active or inactive as opposed to closed) for almost eight years, the public agency’s mere reference to subdivision (1)(f) of KRS 61.878 and 17.150 , with no additional explanation, did not meet the burden of proof imposed by law relative to a denial of inspection. OAG 86-80 .

The superintendent of the county schools did not comply with subsection (1) of this section since he did not respond in writing and he neither advised the requesting party that the records requested were available for inspection nor did he advise the requesting party the specific exception to public inspection he was relying upon in support of his decision to deny public inspection. OAG 86-86 .

The mayor and the city violated the Open Records Act, specifically subsection (1) of this section, by their refusal to respond in writing to the request to inspect public records. OAG 87-60 .

The city and the city attorney violated subsection (1) of this section by their insufficient response to the requesting party’s original letter and by their failure to respond at all to his three (3) subsequent letters; they should have immediately advised the requesting party in writing whether he might inspect the records in question, and if they denied the request, they had to set forth the statutorily authorized exceptions to public inspection upon which they were relying. OAG 87-83 .

The response of the public agency to the request to inspect public documents that the requested documents were not in the public agency’s possession was sufficient and proper; a public agency obviously cannot furnish records for viewing and copying which it does not have at the time of the request. OAG 88-5 .

The public agency’s response to an individual’s request to inspect and copy various documents was inadequate, where the body of the undated letter in its entirety stated: “All other documents requested are closed under KRS 61.876(3)”; therefore, the public agency had to prepare a proper written response to the original request, specifically stating those records, if any, which were withheld from inspection and the particular statutory exception to public inspection relied upon and how it applied to the record which was withheld. OAG 88-6 .

The public agency’s written response to the requesting party’s request to inspect public documents was legally sufficient pursuant to KRS 61.872 and this section and afforded the requesting party a reasonable opportunity to inspect the records and materials requested to obtain the desired information. OAG 88-8 .

The public agency violated subsection (1) of this section by its refusal to respond in writing to the request to inspect public records. OAG 88-22 .

Although the city and sewer commission’s initial response to the requesting party should have followed the requirements of KRS 61.880(1) and a copy of the letter of denial should have been sent to the attorney general pursuant to KRS 61.880(2), denial of the request to inspect the draft audit prepared by the Environmental Protection Agency and sent to the city was supported by the exceptions to inspection set forth in KRS 61.878(1)(g), (h) and (i) as the item in question was a preliminary document containing opinions and observations. OAG 88-24 .

A public agency cannot furnish access to documents which it does not have, and a request for documents which a public agency does not have is moot. OAG 88-44 .

An agency cannot avoid the requirements of the Open Records Act by placing or maintaining public records with third parties. OAG 88-48 .

The decision of the public agency to refuse to make available for public inspection copies of depositions taken by a private attorney under the authority of the Federal Rules of Civil Procedure was not a violation of the Open Records Act as the matter was governed by the terms and provisions of those federal rules and the interpretation of those rules by the federal courts. OAG 88-48 .

Although the public agency’s denial of the request to inspect a document consisting of an opinion of the General Counsel to the Parole Board should have conformed to the requirements of subsection (1) of this section, the denial of the request could be justified under the concepts of the attorney-client privilege. OAG 88-49 .

A partial denial of a request to inspect documents did not conform with the requirements of this section, where there was no identification as to what specific documents were being withheld and why. OAG 88-53 .

Public agency from whom records were requested for inspection should respond in writing to the requesting party within three (3) days of the receipt of the request received through the mail, and if the records cannot be obtained promptly, the requesting party should be notified at once of that development. OAG 88-54 .

Since subsection (1) of this section uses the phrase “upon any request” there generally is no distinction made between a written or oral request, a request made in person, or a request mailed in to the public agency; the three-day period in which the public agency must respond in writing begins when the agency receives the request regardless of the method used to communicate that request. OAG 88-54 .

The General Assembly has vested the circuit courts with authority overriding that of the Attorney General in determining open records questions; it would be improper for the Attorney General to attempt to substantively determine an open records question when the same question is before a Circuit Court. OAG 88-78 .

Mere citation to certain basic statutory sections of the Open Records Act does not comply with the requirements of subsection (1) of this section. OAG 89-12 .

A county property valuation administrator failed to act consistently with the provisions of KRS 61.870 to 61.884 in failing to respond in writing to a verbal request for access to records, and in responding to a written request by forwarding it to another agency. OAG 89-40 .

An agency failed to act consistent with provisions of KRS 61.870 to 61.884 if it failed to respond in accordance with this section to a request to inspect public records. OAG 89-59 .

Where the Department for Employment Services in responding to a request to inspect records indicated that information sought was not subject to Open Records Law, and was contained in a document accessible to all staff, such a response is not a determination in keeping with the terms of this section. OAG 89-60 .

City acted consistently with Open Records provisions where it promptly responded in writing to request for broad categories of documents concerning generally described subjects, by indicating it would make records available for inspection that appeared to conform to the request, by indicating it did not have certain lists requested, and by directing the requestor to other agencies where records concerning subjects listed by requestor might be located. OAG 89-61 .

Pendency of litigation does not suspend application of independent statutory requirement that response be made to one who requests to inspect records held by a public agency. OAG 89-65 .

If a county agency allowed inspection of the entire tax roll of the county, the fact that certain information called for by statute or other provision, was not contained upon such roll, did not constitute denial of inspection of the roll. OAG 89-66 .

While an agency is not required to provide copies of records that have not been inspected, where an agency indicated it would provide them, but did not do so, the effect was to deny inspection and, accordingly, the agency did not act consistent with the provisions of KRS 61.870 to 61.874 . OAG 89-70 .

While information derived from the property tax rolls may not be used for commercial or business purposes unrelated to property valuation or assessment, such ban does not apply to information obtained from other types of records of the Property Valuation Administrator’s Office. OAG 89-77 .

Requests for information, as distinguished from records, and requests that particular methods of inquiry into public records be provided, are outside the scope of Open Records provisions. OAG 89-77 .

Open Records provisions do not require either the property valuation administrator, or the county clerk, to provide access to records by specific indexing methods. OAG 89-77 .

There is no statutory authority to postpone or delay the agency’s written response to a request to inspect certain documents, and there is no duty or obligation on the Attorney General’s office to advise an agency as to how to handle a request to inspect documents which it has actually received; once the agency receives a request to inspect documents it is required to respond pursuant to the provisions of subsection (1) of this section. OAG 89-79 .

Referring to requestor to a response to a prior request does not meet the response requirements of this section. OAG 89-81 .

Public agencies, pursuant to this section, must respond separately and specifically to each request to inspect public records. OAG 89-81 .

Although the Cabinet for Human Resources properly declined to provide information which is not consistent with its method of filing and maintaining records, the Cabinet must give the person making the request a reasonable opportunity to inspect nonexempt records pertaining to designated facilities to enable him to attempt to obtain the information he has requested. OAG 89-84 .

The City of Louisville failed to act consistent with Open Records provisions in making a blanket denial of a request to inspect a “performance appraisal” and related documents regarding the Louisville Police Chief, by (1) failing to provide a brief explanation of how statutory exceptions (to the general rule that inspection of public records is permitted) applied to records withheld from inspection, (2) by denying inspection of a record on the ground it was a “preliminary draft” when it was not of such character, and (3) by denying inspection of records on the ground they constituted “preliminary recommendations,” when there was no indication they were other than final unto themselves, and no subsequent product was generated that the records could be considered preliminary to. OAG 90-1 .

Kentucky’s Open Records provisions establish a requirement of a written response where there is a denial of a request to inspect public records. There is no statutory requirement under Open Records provisions that a written or other response be made to a request for copies of records that have not been inspected. OAG 90-8 .

The cabinet for human resources failed to act consistently with Open Records provisions, by not explaining, in its initial response supplying copies of records, the “blanking out” of names of complainants and certain interviewees, upon copies of forms regarding complaints about possibly unlicensed day care facilities. Such deletion (blanking out) was nonetheless supported by KRS 61.878(1)(a), which permits an agency to withhold from inspection, records of a personal nature, where disclosure thereof would constitute an unwarranted invasion of personal privacy. OAG 90-12 .

The masking of names constitutes a partial denial of inspection. As such, the masking of names should be explained in terms of a specific exception to the general rule allowing inspection. OAG 90-12 .

Although request was for “information” rather than to inspect “records” with regard to salary figures and travel expense information concerning deputy county clerks, the county clerk failed to act consistently with Open Records provisions by failing to respond in writing, as required by KRS 61.880 , to a request styled as under Open Records Law. OAG 90-19 .

Where a request was for information, rather than to inspect records, and thus did not technically conform to Open Records provisions, the proper response was for the recipient of such request to promptly respond in writing, explaining that while Open Records provisions did not require a public agency to compile information, records that might yield the information sought would be made available for inspection during normal office hours; furthermore, parts of records withheld, such as the home address of an employee, or a social security number, should have been explained in a manner consistent with KRS 61.880 . OAG 90-19 .

A public agency, in denying part of a request to inspect public records, failed to act consistently with Open Records provisions by not citing a proper statutory basis for its denial, and in failing to briefly explain how a statutory provision it did cite, applied to a record that appeared to be withheld from inspection. OAG 90-26 .

A response to a request to inspect public records should accurately cite a particular exception from among those in KRS 61.878 , if it denies or partially denies such a request; additionally, a brief explanation should be given, as called for by KRS 61.880(1), regarding how a given exception cited as a basis for denial of inspection applies to a record withheld from inspection. OAG 90-26 .

If a record of which inspection is sought does not exist, the agency should specifically so indicate. OAG 90-26 .

A county board of education failed to act consistently with Open Records provisions by failing to make a written response stating the specific basis for its denial of inspection of records reflecting exact beginning and ending salary payments to a teacher, and in refusing to allow inspection of such records. OAG 90-30 .

City failed to act consistently with KRS 61.870 to 61.884 by failing to provide a brief explanation of how exceptions cited as a basis for denying inspection of public records, applied to such records, and by making a blanket denial of inspection of employee time and attendance records, upon grounds, do not apply, at least comprehensively, to records withheld from inspection. OAG 90-34 .

In response to request to inspect all documents relating to settlement of legal action against city, if the city has a record or records setting forth moneys paid on behalf of the city in settling the suit in question, such record should be promptly made available for inspection; this view applies to any record of such nature in the possession of the attorney for the city, that would be considered a record of the city, though held by counsel; if the city has records regarding settlement of the suit in question, other than one setting forth the amount of moneys paid on behalf of the city in settling the suit in question, the city should, in a written response, itemize which records it has and if it denies inspection of any of such “other” records, it should state a specific basis for denial based upon the exceptions set forth in KRS 61.878 ; if it has no record setting forth the amount of the settlement paid or payable, it should specifically so state, vis-a-vis the city government as a whole, and not just in relation to a record in the possession of the city manager. OAG 90-36 .

Where city manager’s response on behalf of city to request to inspect all documents relating to settlement of legal action against city addressed only records in the possession of the city manager, and not the city as an agency, the response was not consistent with KRS 61.870 to 61.884 , and in particular, KRS 61.880(1). OAG 90-36 .

The Open Records Act makes no provision for a public agency to refuse to give an applicant access to public records just because the applicant already has obtained the requested information elsewhere. OAG 90-71 .

There is no specific exception in the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. OAG 90-71 .

Where a governmental board does have custody or control over public records that contain certain requested information, according to the requirements of the Open Records Act, the board should have given the person making the request either: (1) access to the records; or (2) a statement of the specific exceptions authorizing the withholding of the records. OAG 90-71 .

No matter how the public agency views the merits of the request it must respond in writing and in a timely and proper manner. OAG 90-79 .

While the requesting party’s letters never referred to the Open Records Act or made requests to inspect records under that law, the public agency should have assumed that the Act has been invoked and respond accordingly. OAG 90-79 .

A denial of a request relying on rules of the Administrative Office of the courts is not responsive under this section because it did not set forth a specific statutory exception listed in KRS 61.878(1). OAG 90-99 .

Responses denying inspection of public records should include reference to a specific statutory exception authorizing the withholding of the record. OAG 90-112 .

Where agency’s response did not cite a specific statutory provision as a basis for denying inspection of records, in this respect, response was not consistent, or in compliance, with subsection (1) of this section. OAG 90-112 .

A public agency cannot furnish access to documents which it does not have, and a request for documents which a public agency does not have is moot and the agency should specifically inform one seeking such documents that these documents did not exist. OAG 90-131 .

Although water district has not complied with various procedural requirements set forth in subsection (1) of this section and KRS 61.872(4) relative to the handling and disposition of requests to inspect documents, the water district’s refusal to permit the inspection of polygraph test results is justified under the Open Records Act as such documents may be excluded from public inspection pursuant to KRS 61.878(1)(a). OAG 90-144 .

The burden of proof in sustaining the denial of access to a governmental database or geographic information system, on appeal, rests with the agency. OAG 91-4 .

Open and active investigative files of the Kentucky State Police are exempt from inspection as well as medical or autopsy reports. OAG 91-6 .

If a public agency intends to rely upon KRS 61.872(5), that producing records places an unreasonable burden upon the agency or that the requester intends to disrupt other essential agency functions, the refusal of the agency to produce documents for these reasons must be sustained by clear and convincing evidence, and where the requesting party has described the various categories of documents to which she seeks access with sufficient specificity to require the public agency to respond in a good faith manner to those requests by categories pursuant to subsection (1) of this section, documents withheld from inspection or unavailable should be identified and the specific reasons for withholding any documents should be stated in writing. OAG 91-7 .

A public agency’s response to an individual requesting to inspect certain documents is insufficient under the Open Records Act if it fails to advise the requesting party whether the documents exist. OAG 91-101 .

Where university treated four separate requests for inspection of certain documents as one request, its response was improper for while it may well have wished to expedite this matter by issuing a single response, it nevertheless erred in failing to address the four requests in four separate responses. OAG 91-111 .

In a request for inspection of certain documents where only some of the documents were readily available while others were in storage and would have to be located, those documents which were immediately accessible should have been made available for inspection, or a proper denial pursuant to subsection (1) of this section should have been issued; all documents could not be withheld until such time as those less accessible documents had been retrieved from storage. OAG 91-111 .

Although response to request was improper, under the Open Records Act, to the extent that cabinet did not reply within three (3) working days, the cabinet properly advised requester that her request could not be satisfied inasmuch as no such record existed and thus appeal from denial was treated as moot. OAG 91-112 .

In a request for records where the public agency initially denied inspection of certain public records, but subsequently reversed its position and made the public records open for inspection and copying by the requester, the issue of whether the initial agency response properly relied upon particular exemptions in denying inspection, is mooted by the subsequent release of the public records. OAG 91-140 .

Denial of the request to inspect a number of documents in the possession of the public schools was deficient in that it did not cite a specific statutory exemption authorizing nondisclosure, as required by subsection (1) of this section, nor was a copy of the letter of denial forwarded to Attorney General’s office, as required by subsection (2) of this section. OAG 91-176 .

Cabinet for Human Resources’ response to request was deficient, under the Open Records Act, to the extent that it did not reply in writing within three (3) working days. OAG 91-178 .

Attorney General opined that Custodian of Records’ actions, in denying inmate’s request for a copy of his transfer authorization form pursuant to this section, because inmate’s account had no money to cover the reproduction costs, were entirely consistent with the Open Records Act, because a public agency is authorized to prescribe reasonable fees for making copies of public records pursuant to KRS 61.876(1)(c) and 61.874(2). OAG 91-210 .

The Open Records Act regulates access to public records, and not records management; therefore, the response that the requested records are no longer in the possession of the public agency was sufficient and proper under the Open Records Act. OAG 91-220 .

When confronted with a request to inspect public records, an agency must address two (2) questions: Whether it has the documents requested, and if it does, whether the documents are subject to public inspection; under the facts presented, the requested records were not available because they had been returned to the holder of a permit issued by the Natural Resources and Environmental Protection Cabinet, when a revised permit, which did not require the same information, was issued. OAG 91-220 .

A public agency cannot furnish access to documents which it does not have and it is not the office of the Attorney General’s duty to investigate in order to locate documents which the requesting party believes exist, but which the public agency states do not exist. OAG 92-5 .

The Board of Medical Licensure properly denied the open records request of a criminal defendant seeking access to psychiatric evaluations performed on a doctor, pursuant to criminal charges pending against that doctor, because that doctor had earlier evaluated criminal defendant and the criminal charges against doctor raised questions concerning doctor’s earlier objectivity; in balancing the privacy interest of the doctor against the public’s interest in proper adjudication of criminal proceedings, the benefit which would inure to the public by virtue of the released records did not outweigh the doctor’s privacy interest. OAG 92-10 .

This statute directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial; it does not provide for the appointment of an “independent authority” under circumstances which might appear to compromise the Attorney General’s impartiality, or indeed, under any circumstances. OAG 92-10 .

City must release the monthly statements prepared by the city’s attorneys which reflect the general nature of the legal services rendered to city, but should those invoices disclose substantive matters protected by the attorney client privilege, and exempt under KRS 61.878(1)(j), the exempt material should be separated from the nonexempt materials, and the nonexempt materials released for public inspection. OAG 92-14 .

Subsection (2) of this section requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General. OAG 92-34 .

Where the Western Kentucky Corrections Complex Grievance Coordinator’s response to an open records request by an inmate did not constitute final agency action, inasmuch as it was not issued by the official custodian or under her authority, the inmate’s appeal was not ripe for review by the Attorney General. OAG 92-51 .

KRS 620.050(5)(a) clearly requires that the Cabinet for Human Resources and the Department for Social Services withhold from all persons information acquired as a result of an investigation conducted pursuant to KRS 620.050(5)(a) to (f). OAG 92-53 .

The requesting party did not demonstrate that he fell under any of the statutorily recognized classifications of KRS 620.050(5)(a) or that his particular situation warranted the release of the requested material; although the requesting party was the noncustodial parent, the allegations of dependency, neglect, or abuse were not substantiated. OAG 92-54 .

Inmate mistakenly asserted that he must be afforded access to nonconfidential documents before he identified those documents; accordingly, the Attorney General opined that inmate must identify the specific documents that he wishes to inspect. OAG 92-56 .

The Cabinet for Workforce Development was directed to release the employment applications and resumes of the named employees of a state vocational-technical school, after separating or otherwise masking any information of a personal nature which appeared on those documents, including the employees’ home addresses, social security numbers, and medical information; if the employees’ teaching certificates were contained in the file, they too should have been released. OAG 92-59 .

The Interfraternity and Panhellenic Councils at Eastern Kentucky University may be deemed “public agencies” for purposes of the Open Records Act, only if they derive at least 25% of their funds from state or local authority; the term “funds” refers to a sum or sums of money, and while it is true that the Interfraternity and Panhellenic Councils derive an appreciable benefit from the University this benefit cannot be quantified, or otherwise translated into a monetary figure; therefore the Interfraternity and Panhellenic Councils are not public agencies within the meaning of KRS 61.870 , et seq. and are not public agencies within the meaning of, or subject to, the Open Meetings Law. OAG 92-62 .

Nothing in this section permits an agency to postpone or delay its written response pending review by agency counsel, such as the Correction Cabinet’s General Counsel; upon receipt of a request to inspect documents, an agency is required to respond within three (3) working days, although there are limited exceptions to this general rule. OAG 92-64 .

Inmate’s request for a list of prison canteen items and their cost was properly denied where no such list existed. OAG 92-64 .

The Kentucky State Penitentiary (KSP) should comply with this section by issuing responses within three (3) working days; if an open records request is misdirected, places an unreasonable burden on the KSP office, or the requested records are not immediately available, KSP’s response should conform to KRS 61.872(3), (4), or (5). OAG 92-64 .

Although one section of the contract, lease, and option agreement between the City and the Public Hospital corporation required that a copy of the annual audit and supporting documents be filed in the office of the city clerk, those documents were, by the express terms of the agreement, released by the Hospital for the limited purpose of allowing inspection by, or on behalf of, holders of outstanding bonds or coupons; the agency established that the requested records: (1) were confidentially disclosed to it; (2) for one of the four purposes delineated in KRS 61.878(1)(b), e.g., regulation of a commercial enterprise; and (3) that release of the records would permit an unfair advantage to competitors of the subject enterprise; therefore, the release of the requested records was properly denied. OAG 92-66 .

The training and examination rating scale, used in reviewing candidates for certain positions can be characterized as an inactive examination, and therefore falls squarely within the parameters of the exception to Open Records codified at KRS 61.878(1)(e). OAG 92-80 .

Where private investigator originally asked for copies of all documents in the possession of the Kentucky State Police which related to suspended state trooper, request was properly denied because blanket requests for information on a subject without specifying certain documents need not be honored. OAG 92-85 .

It is the policy of the Kentucky State Police (KSP) to withhold reports of background investigations on job applicants conducted by KSP; the Attorney General’s office opined that these reports contain information of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, and are exempt from public inspection pursuant to KRS 61.878(1)(a); moreover, background investigation reports may be withheld under authority of KRS 61.878(1)(g) and (h). OAG 92-85 .

State police custodian of records’ response to private investigator’s open records request was substantively correct; custodian advised private investigator that custodian had provided private investigator with all of the pages of a suspended state trooper’s employment application, but had deleted specific personal information pursuant to KRS 61.878(1)(a) “which provides for exclusion because of the unwarranted invasion of personal privacy.” OAG 92-85 .

State police custodian of records’ response to private investigator’s request for all documentation regarding the reasons for suspension of former state trooper contained in Personnel Orders was consistent with the Open Records Act; police internal affairs reports are exempt from public inspection as preliminary memoranda; only internal affairs reports which indicate the final action taken and the underlying complaint are open to public inspection. OAG 92-85 .

Response to request for records was procedurally deficient insofar as it was not issued within three (3) working days. Some 28 working days elapsed between the date of the request and the date of the response. Allowing for delays in the mail, the response was nevertheless untimely; however, since the college acknowledged its obligation under the Open Records Law to release all documents pertaining to the contractual relationship between college and company although the response was procedurally deficient, it was substantially correct. OAG 92-120 .

Since it is imprudent to entrust the weighty responsibility of responding to open records requests to individuals who may have little or no knowledge of the Act, if a request is made for a record which is not housed in the custodian’s office, it should be transmitted to, and reviewed by, the custodian for a determination of the propriety of release. At a minimum, the custodian should review any denial of an open records request to insure that it conforms to the referenced provisions. OAG 92-120 .

“Timely access” to public records has been defined as “any time less than three (3) days from agency receipt of the request,” therefore, response to request was procedurally deficient insofar as it was not issued within three (3) working days, in fact well over a year has elapsed since the initial request, and some four months has elapsed since the latest request; a delay in excess of one year is clearly unreasonable under the Open Records Act. OAG 92-121 .

Subsection (1) of this section requires an agency which elects to withhold documents to cite a specific exception authorizing nondisclosure and provide a brief explanation of how that exception applies and thus a statement by the person to whom the request was made that the requested documents were exempt from disclosure because they were absolutely irrelevant to the case was not legally sufficient grounds for exclusion and failure to cite an exception while withholding records was improper under the Open Records Law, and denial of that portion of the request was inconsistent with the law. OAG 92-121 .

Mere invocation of an exception and reference to prior opinions, without an adequate explanation of how the exception applies or the opinions are relevant, does not satisfy the burden of proof imposed on the agency under subsection (2) of this section and KRS 61.882(3). OAG 92-ORD-1020.

Any notification of a delay in affording access to records in excess of three (3) days must be accompanied by a detailed explanation of the cause and a statement of the earliest date, time, and place on which they will be available for inspection; therefore, the Department for Social Services erred in postponing notification until it could decide “how to best handle a request for records.” OAG 93-ORD-43.

Mere invocation of a statutory exception to the release of records and reference to prior opinions, without an adequate explanation of how the exception applies or the opinions are relevant, does not satisfy the burden of proof imposed on the agency under subsection (2) of this section and KRS 61.882(3). OAG 93-ORD-43.

Although the Attorney General may be called on to intervene in the recovery of records when it comes to the attention of the Department for Library and Archives that those records are threatened with unlawful removal, defacing, alteration, or destruction pursuant to KRS 171.530 , he is not empowered to issue a legally enforceable decision relative to those acts; his decisions under the Open Records Act are limited to the question of whether the agency violated the provisions of KRS 61.870 to 61.884 . OAG 94-ORD-12.

After a request for certain public records under the Open Records Act, the custodian of such records need only advise the requester that his or her request will be honored and either append the records or notify the requester that they are available for immediate inspection per subdivision (3)(a) or (b) of KRS 61.872 ; failure of the custodian to state that the requested records exist or that the records provided are those requested does not constitute a violation of the Act. OAG 94-ORD-15.

Even though there was some question as to whether request to secure copies of documents was signed, city was under a legal obligation to respond to the request within the stautorily mandated time frame even if the response was merely to advise the requestor that the request did not meet statutory requirements. Every request for documents submitted to a public agency should be responded to within the required time frame no matter what decision is made or what reason is advanced in response to the request. OAG 94-ORD-101.

A bare allegation that the records withheld are proprietary is not sufficient under the law. OAG 95-ORD-27.

Where the Lottery Corporation denied an open records request to inspect portions of a survey apparently commissioned by the Lottery Corporation without any explanation of the nature of the record withheld, how it could be characterized as “preliminary” and how the exceptions of this section applied to the withheld information, the Lottery Corporation failed to meet its statutory burden of proof to sustain the denial. OAG 95-ORD-27.

Where the county clerk failed to issue a written response to an open records request and failed to cite the specific exception authorizing his decision to deny the requesting party’s access to electronically stored records, the clerk failed to follow the required procedural guidelines set forth in subsection (1) of this section. OAG 95-ORD-43.

With regards to the extent that an agency failed to cite a specific exception authorizing nondisclosure in its original response, and failed to briefly explain how the exception cited applied to the records withheld in its second response, it violated the procedural requirements of the Open Records Act. OAG 96-ORD-135.

The language of subsection (2)(a) of this section clearly indicates that the Attorney General’s role in adjudicating open records disputes is narrowly circumscribed. He is only authorized to review a public agency’s denial of a request to inspect a public record or a complaint that the intent of the Act is being subverted by an agency short of denial of inspection per subsection (4) of this section. The Attorney General does not have authority to entertain a third party claim that disclosure of public records would constitute a clearly unwarranted invasion of personal privacy, or is inconsistent with any of the other exemptions codified at KRS 61.878(1)(a) to (l). OAG 96-ORD-148.

Had the complaint as to the legality of the Workers’ Compensation Advisory Council adjourning into private caucuses meeting separately as business and labor interests been an appeal under the Open Records Act (KRS 61.870 to 61.884 ), which imposes the burden of proof in sustaining a denial of a request upon the public agency, subsection (2)(c) of this section, the matter could have been conclusively resolved in favor of the complaining party, however, because the Open Meetings Act contains no such provision relative to the public agency’s burden of proof, it could not be decided that the public agency failed to meet its burden of proof and no definitive finding could be made. OAG 96-OMD-261.

Response of county board of education to request to inspect records containing the results of drug tests administered to school bus drivers that although records were available, counsel was reviewing the matter and a decision would be rendered in ten days was procedurally deficient as a public agency cannot postpone or delay the statutory deadline of subsection (1) of this section. Although the burden on the agency to respond in three (3) working days is an onerous one, the only exceptions to this general rule are found at 61.872(4) and did not apply here. OAG 97-ORD-2.

A correctional complex’s denial of an inmate’s request for his FBI rap sheet was procedurally deficient when it merely stated that the facility was “not the official custodian of that record” without citing the specific exception authorizing nondisclosure; however, the inmate’s response was properly denied under KRS 61.878(1)(k) and 28 USCS § 534. OAG 97-ORD-178.

A confidentiality clause inserted in a settlement agreement may require the government to notify a party if there is a request for a copy of the agreement; however, the government is required to proceed under subsection (1) and provide a a written response to the request for information within three (3) business days; while this gives the agency scant time to notify the affected party and affords the affected party only a narrow window of opportunity to commence litigation, the existing law permits no deviation from this rule. OAG 98-ORD-24.

Because the General Assembly is a body created by the Constitution of this state in the legislative branch of government as defined in KRS 61.870(1)(g), and as there is no reasonable basis for excluding it from the definition of a public agency, its records are subject to public inspection and there is no impediment to the Office of the Attorney General discharging its statutorily mandated duty under this section. OAG 98-ORD-92.

A county fiscal court’s response to a combined meetings complaint and records request was procedurally deficient insofar as it was not issued within three (3) business days, it failed to cite a statutory basis for the fiscal court’s position, and it failed to contain a brief supporting explanation. OAG 99-OMD-221.

The failure of a sheriff’s department to timely respond, in writing, to a request was a procedural violation of the requirements of subsection (1); further, the procedural requirements are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request. OAG 99-ORD-8.

The policy of a county 911 center to defer requests for audiotapes of telephone calls to the responding agency was improper as the 911 center was itself a public agency and, therefore, it was required itself to respond to such requests; however, the 911 center could consult with the responding agency before replying to such a request. OAG 99-ORD-10.

A response to an open records request that the agency is researching its files to determine if responsive records exist, and will respond “as soon as it has completed its review” is procedurally deficient. OAG 99-ORD-13.

The Kentucky Revenue Cabinet violated subsection (1) by failing to afford timely access to nonexempt records identified in a request. OAG 99-ORD-14.

A city violated subsection (1) by failing to respond in writing, and within three (3) business days, to a request; the city initially failed to respond at all and only responded after the requester initiated an appeal. OAG 99-ORD-22.

Although a county board of education issued a timely written response to a request, the board violated the procedural requirements of the statute as it failed to cite the specific open records exceptions authorizing its partial denial of the request. OAG 99-ORD-26.

To the extent that a police department failed to respond to a request, it violated the statute, and the fact that the requester did not use the standard open records application when he made his request did not alter this conclusion. OAG 99-ORD-29.

A training center violated subsection (1) by failing to respond in writing to a request for records. OAG 99-ORD-31.

The burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the Circuit Court, is on the agency. OAG 99-ORD-36.

A city’s response to a request under the act was deficient where it articulated a basis for denying access to the requested records, but did not cite the relevant exception supporting nondisclosure. OAG 99-ORD-38.

A fee of ten cents ($ .10) per copy was not excessive and was consistent with the standard of reasonableness, notwithstanding that the two commercial photocopy companies charged a lower fee for copies. OAG 99-ORD-40.

Although memoranda containing recommendations that were never adopted and forms that were never approved may properly be characterized as preliminary documents within the meaning of subsections (1)(i) and (1)(j), it is incumbent on the agency to determine if responsive records exist and, if they do not, to specifically so indicate; it is not enough to advise the requester that “if any documents exist,” they are exempt. OAG 99-ORD-42.

A public agency’s response is deficient under the Open Records Act if it fails to advise the requesting party whether specific records identified in his or her request exist. OAG 99-ORD-43.

A board of education unreasonably postponed the requester’s right of access to public records where the board extended the deadline for inspection of an abbreviated list of records for an additional 27 days, noting that eight (8) of these days were weekends and that its offices would be officially closed on three (3) other days during the 27 day period. OAG 99-ORD-44.

There was no violation of the statute where an inmate in a correctional institution submitted to the Governor a request for copies of records relating to conditions at the institution, the Governor’s office conducted a search of its files and determined that there were no responsive records in its custody, and the request was forwarded to the Department of Corrections to conduct an additional search and to respond on behalf of the Governor. OAG 99-ORD-45.

The failure of two (2) agencies to provide a written response to a request for records under the Open Records Act within three (3) business days was a violation of the statute. OAG 99-ORD-46.

A school district properly discharged its duties under the Open Records Act by agreeing to permit the requester to inspect the nonexempt portions of records containing the information she sought during its regular business hours where the requested information was not inclusively contained in any one comprehensive document. OAG 99-ORD-48.

A sheriff’s department’s responses were procedurally flawed in failing to cite a statute as the basis for the denial of a request and in failing to contain a brief explanation of how the relevant exception applied to the records withheld. OAG 99-ORD-56.

Responses to requests for records were deficient where they failed to cite the provision of the Open Records Act upon which the requests were denied and failed to briefly explain how such provison applied to the records withheld. OAG 99-ORD-63.

To the extent that a response to a request for records consisted of little more than a bare reference to the exception upon which it relied, without a supporting explanation of how the exception applied to the records withheld, it was deficient. OAG 99-ORD-73.

To the extent that a county central dispatch failed to respond to a request in a proper and timely fashion and conditioned his right of inspection on obtaining a subpoena, it violated the Open Records Act. OAG 99-ORD-95.

A volunteer fire protection district was obligated to discharge its duties under the statute by releasing all nonexempt records which were responsive to a request or by denying access to them on the basis of one or more of the statutory exceptions, notwithstanding that the requested records were available elsewhere. OAG 99-ORD-101.

To the extent that a fire protection district’s response to an April 23 request, although apparently authored within the statutory three (3) day period of limitation, was not served on the requester until May 4, that response violated subsection (1); the fact that the mayor of the city wished to discuss the request at the next meeting of the city commission did not toll the statutory deadline or relieve the district of its duty under the law. OAG 99-ORD-101.

KRS 197.025(7) controls over subsection (1) and allows a penitentiary five (5) days to respond to an open records request. OAG 99-ORD-102.

Although an agency cannot, of course, provide access to a record that does not exist, an agency is nevertheless required to notify the requester in writing, and within three (3) business days, that no record exists that is responsive to the request. OAG 99-ORD-108.

A response to a request for records which stated that the agency was not required to accept blanket or voluminous requests was procedurally deficient in that it failed to cite a specific statutory exception which authorized the withholding of the requested records and a brief explanation as to how the exception applies to the records withheld. OAG 99-ORD-180.

The response by a correctional facility to an inmate’s request for records was procedurally deficient in failing to cite the statutory exception authorizing the nondisclosure of the requested records. OAG 99-ORD-188.

A state university violated the statute where it failed to respond to a request for records until after receiving notice that an appeal would be filed. OAG 99-ORD-190.

Public agencies failed to provide the requester with timely access to the record he requested in violation of the statute where (1) the request was submitted on August 5, (2) a response was issued on August 18 informing the requester that the record was maintained by another agency and that the request was being forwarded to that agency, (3) as of the date of his letter of appeal, September 21, the requester indicated that he had not been provided with a copy of the record, and (4) the record was released on October 6. OAG 99-ORD-194.

A city violated the statute where it did not respond to a request for records until after the notice of appeal was filed. OAG 99-ORD-198.

An agency violated the statute where it received a request for records on October 8, but failed to respond until October 18. OAG 99-ORD-200.

A city violated the statute where it failed to respond to a request for records in writing. OAG 99-ORD-210.

A county fiscal court erred in postponing action on a request for 10 days without explanation and without reference to KRS 61.872(5) and in characterizing the request as so nonspecific as to preclude the fiscal court from determining what records were requested. OAG 99-ORD-225.

A county fiscal court violated the statute when it failed to respond to a request for records and, therefore, was required to make immediate arrangements for the requester to inspect the records identified in her requests or, alternatively, to appeal the decision to the appropriate Circuit Court. OAG 00-ORD-1.

A county fiscal court violated the statute in failing to respond to a request for copies of records reflecting the county’s total expenditures for its animal control program in a specific fiscal year. OAG 00-ORD-44.

An agency violated the statute where its original response to a request for records was issued four (4) business days after the submission of the request and, more importantly, neither that response nor the supplemental response issued shortly thereafter included a statement of the specific exception authorizing the withholding of the records and a brief explanation of how the exception applied to the records withheld. OAG 00-ORD-62.

An agency may properly require all records requests to be routed through its official custodian to ensure the timely and orderly processing of open records requests. OAG 00-ORD-73.

Nothing in the statute permits an agency to postpone or delay the three (3) day statutory deadline for responding to a request for records while the agency attempts to locate the records or to formulate its response, notwithstanding that the burden on the public agency to respond in three (3) working days is, not infrequently, an onerous one. OAG 00-ORD-74.

To the extent that an agency failed to respond to a request in writing, and within three (3) business days, it violated the statute. OAG 00-ORD-76.

An agency was not relieved of its duties under the Open Records Act with regard to a request for records which arose out of a year-end evaluation dispute by virtue of its decision to upgrade the requester’s evaluation or by virtue of any informal, oral communications concerning the request. OAG 00-ORD-77.

The Kentucky State University violated the statute by failing to comply with the procedural guidelines for agency response set forth at subsection (1) and by failing to advise the requester in writing, and in clear and direct terms, that no records existed that were responsive to his request. OAG 00-ORD-82.

Although the presence of litigation and simultaneously filed open records and discovery requests may engender staff confusion, neither relieves a correctional facility of its duties under subsection (1) when read in conjunction with KRS 197.025(7). OAG 00-ORD-83.

A volunteer fire department violated the Open Records Act by refusing to accept service of an open records request and to respond, in writing, to that request within three (3) business days. OAG 00-ORD-93.

An agency violated the statute where it timely responded within three (3) days, but advised that because the requester had requested a substantial amount of information, it would take some time to compile the requested records and that it would respond within 30 days. OAG 00-ORD-95.

Where an agency failed to cite the exception upon which it relied in withholding access to requested records, the agency’s response was procedurally deficient. OAG 00-ORD-101.

A city violated the statute in failing to respond to a request for records in writing, and within three (3) business days, in failing to cite the specific exception authorizing the withholding of each of the records that she requested, and in failing to briefly explain how the exception applies to each of the records withheld. OAG 00-ORD-104.

A city failed to afford timely access to requested records where (1) the records were not disclosed until 22 days after the request was made, and (2) the requested records were of an identified, limited class that could be readily accessed through an existing database. OAG 00-ORD-117.

A school council violated the statute by failing to respond in writing, and within three (3) business days, to a request. OAG 00-ORD-123.

A city violated the statute where it responded to a request within three (3) days, but the response only intimated that the request would be honored in time and did not contain a detailed explanation of the cause of the delay or state the earliest date on which the records would be available. OAG 00-ORD-188.

A tri-county animal control center violated the statute where it failed to respond to a request for records and also failed to respond to a notice of appeal with regard to the request. OAG 00-ORD-212.

“Excessive” requests and “invalid reasons” do not constitute legally supportable bases for denying access to public records. The written response must include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. OAG 01-ORD-8.

The public’s interest in what businesses are taxed, where they are located, and whether they are delinquent in paying their taxes (but not the amount of taxes owed or any other information that reveals the affairs of their businesses), is superior to any privacy interest asserted. The City and the Tourist & Convention Commission improperly withheld records containing “the names and locations of businesses that are delinquent on the payment of their food/restaurant taxes” notwithstanding the city ordinance that deemed those records confidential. OAG 01-ORD-63.

As a city police chief did not adopt an internal affairs report as the basis of final disciplinary action taken against an officer, the city properly denied a request for an investigative file of a complaint against the officer, including records in the file that were created as an integral part of the investigative process, as opposed to records in the file that were created collaterally to the investigation and later placed in the file. OAG 01-ORD-83.

Since public agencies are statutorily assigned the burden of proof in substantiating their actions pursuant to KRS 61.880(2)(c), a record that is devoid of citation to the relevant legal authority and a particular and detailed explanation of how that authority applies is inadequate to meet this burden. When an issue cannot be resolved on the record, the Attorney General will require the agency to substantiate its denial. OAG 01-ORD-83.

When an agency relies upon the protections afforded by KRS 61.878(1)(i) and (j) as its basis for denying access to internal investigative reports/files, the ultimate decision maker should affirm that he or she did not adopt the report as the basis of the final action, and to explain on what basis he or she, in fact, determined what final action was appropriate. It is not enough to simply invoke the exceptions to shield the investigative report from disclosure without offering an explanation of what was done and why. OAG 01-ORD-83.

Days that a school is closed for spring vacation cannot be characterized as legal holidays, and therefore do not toll an agency’s response time in responding to an open records request. Days on which students, faculty, and staff are not present for any reason other than Saturdays, Sundays, and legal holidays must therefore be calculated into the three-day response time. OAG 01-ORD-94.

If the audiotape of the agency’s board meeting was purchased with agency funds and made at the agency’s direction, then it was a public record subject to disclosure. Furthermore, It was not incumbent on the requester to produce legal authority as a condition to inspection of the tape. The burden of proof in an open records appeal rests with the public agency, and the agency failed to meet this burden relative to the record withheld. OAG 01-ORD-96.

The delay of some ten (10) to thirteen (13) business days in providing the requester with copies of the records because the record custodian was on vacation constituted a subversion of the intent of the Act within the meaning of KRS 61.880(4). OAG 01-ORD-140.

An ongoing, or standing, open records request is not proper under the Open Records Act and the City therefore did not violate the Act by placing redacted copies of incident reports “at a front desk for anyone to pick up” without providing a written explanation for those redactions. OAG 02-ORD-36.

Although the Open Records Law, and in particular KRS 61.880 , contains no statute of limitations for initiating open records appeals, KRS 197.025(3) requires inmates confined in penal facilities to initiate an appeal of “any denial of an open record” with the Attorney General within twenty (20) days. OAG 02-ORD-54.

It was incumbent on the school district to respond, in writing, to the requester’s July 11, 2002 request on or before July 16 and to provide her with the evidence and attachments relating to her September 21, 2001 formal complaint which the District sent to the Kentucky Department of Education. The District appears to have treated as responsive to this particular request, inter alia, correspondence generated in the period from February through July 2002, minutes, agendas, and data from ARC meetings conducted in January, February, and May, 2002, a complaint the requester filed in February 2002, and emails generated after February 14, 2002. OAG 02-ORD-150.

Campaigning for reelection, or discharging duties associated with private employment, do not provide a sufficient legal basis for temporarily suspending the legal obligations imposed on a public agency by KRS 61.880(1). Invocation of, and reliance upon, KRS 61.872(5) should occur on rare occasions and only when the circumstances are such as to clearly warrant extension of the standard three day deadline for agency response and release of records. OAG 03-ORD-05.

Electronic mail generated by public agency officials or employees is a public record as defined in KRS 61.870(2), and is therefore subject to the Open Records Act. it is for the records custodian, and not the email account holder, to locate and retrieve these records and to make the determination as to which are exempt and which must be disclosed. OAG 03-ORD-05.

The Cabinet erred in adopting a policy of blanket exclusion relative to the responsive e-mails and any unidentified responsive records on the basis of the attorney-client privilege. The Cabinet has provided only a bare assertion in support of its claim that unidentified responsive records, including e-mails, constitute privileged attorney-client communications, and has not identified the records or groups of records withheld or adequately explained how the privilege applies to those records as required by KRS 61.880(1) and KRE 503. OAG 04-ORD-187.

Where the open records request was received by the University on Wednesday, October 6, this would be the date or day of the act after which the three-day period of time begins to run. Thus, Thursday, October 7 would be day one. Friday, October 8 would be day two. The intermediate Saturday and Sunday are excluded from the computation. Monday, October 11, the day the University advised it mailed the response, would be day three. Accordingly, the University timely mailed its response within three (3) business days after receipt of the request, as required by KRS 61.880(1). OAG 04-ORD-213.

Although the Medical Licensure Board apparently provided the requester with copies of some or all of the requested records during the course of related litigation, this does not relieve the Board of its duty under the Open Records Act to provide copies of any records in its possession which are responsive to the separate but related request at issue. In relying solely upon the alleged possession of the requested records as the basis for its denial, the Board therefore failed to satisfy its burden of proof. OAG 04-ORD-220.

The school district violated KRS 61.880(1) in failing to respond to the request because the requester did not comply with a Board of Education policy requiring the submission of an open records request on a preprinted form developed by the Board. The October 25 request conformed, in all particulars, with the requirements found at KRS 61.872(2). It was therefore incumbent on the school district to respond in writing, and within three business days, to that request. OAG 04-ORD-242.

In regard to a request for a copy of a tape recording of a 911 phone call, the division of police discharged its statutory duty by advising the requester that the requested record was properly destroyed pursuant to the applicable records retention schedule. OAG 05-ORD-33.

County board of education violated the Open Records Act when it denied a request for records relating to the removal of school superintendent on the basis that the only documents from the removal hearing that could be disclosed were the minutes and findings as previously disclosed to the press, and that all other documents were requested to remain confidential by the superintendent. OAG 05-ORD-46.

A city should provide a requester with access to those records in a city employee’s personnel file which are not exempt from disclosure under KRS 61.878(1) or other applicable statutes. For records in the file for which statutory protection from disclosure exists, the agency should identify those documents and provide a brief written explanation including citation to the statute authorizing nondisclosure. OAG 05-ORD-73.

A volunteer fire department improperly denied a request for a copy of a petition; it did not matter that it was in the possession of the chairman of the board of the department and had not been presented to the rest of the board or the membership. OAG 05-ORD-106.

County judge-executive violated the Open Records Act in failing to provide a requester with copies of a franchis contract and all contractual agreements between the county and a sanitation company because the judge-executive was required to either affirmatively indicate that no written contracts existed, or provide the requester with copies of the actual contracts. OAG 06-ORD-020.

Transportation cabinet did not conduct an adequate search for email responsive to open records request; however, in the absence of proof of improper destruction of the requested email, the cabinet was not obligated to conduct a search using specialized processes for email recovery. OAG 06-ORD-022.

Although a county board of education violated KRS 61.880(1) in failing to cite the applicable statutory exception and briefly explain how the exception applied to the records of policies relating to the reemployment of substitute teachers and the employment of retired teachers, the board properly redacted the contact information of substitute teachers. OAG 06-ORD-036.

Regional jail violated the Open Records Act in failing to respond to an open records request for copies of records concerning visits made to the requester by his attorney at the jail. OAG 06-ORD-037.

Open records appeal is not the appropriate forum for adjudication of requester’s claim of willful concealment of public records. OAG 06-ORD-042.

Research References and Practice Aids

Kentucky Bench & Bar.

Fleischaker, Klimkina & McCauley, The Kentucky Open Records Law: A Retrospective Analysis, Vol. 76, No. 4, July 2012, Ky. Bench & Bar 13.

Kentucky Law Journal.

Out of the Sunshine and into the Shadows: Six Years of Misinterpretation of the Personal Privacy Exemption of the Kentucky Open Records Act, 71 Ky. L.J. 853 (1982-83).

Northern Kentucky Law Review.

Ziegler, the Kentucky Open Records Act: A Preliminary Analysis, 7 N. Ky. L. Rev. 7 (1980).

61.882. Jurisdiction of Circuit Court in action seeking right of inspection — Burden of proof — Costs — Attorney fees.

  1. The Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained shall have jurisdiction to enforce the provisions of KRS 61.870 to 61.884 , by injunction or other appropriate order on application of any person.
  2. A person alleging a violation of the provisions of KRS 61.870 to 61.884 shall not have to exhaust his remedies under KRS 61.880 before filing suit in a Circuit Court.
  3. In an appeal of an Attorney General’s decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the court shall determine the matter de novo. In an original action or an appeal of an Attorney General’s decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the burden of proof shall be on the public agency. The court on its own motion, or on motion of either of the parties, may view the records in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.
  4. Except as otherwise provided by law or rule of court, proceedings arising under this section take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date.
  5. Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were willfully withheld in violation of KRS 61.870 to 61.884 , be awarded costs, including reasonable attorney’s fees, incurred in connection with the legal action. If such person prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($25) for each day that he was denied the right to inspect or copy said public record. Attorney’s fees, costs, and awards under this subsection shall be paid by the agency that the court determines is responsible for the violation.

History. Enact. Acts 1976, ch. 273, § 7; 1992, ch. 163, § 7, effective July 14, 1992.

NOTES TO DECISIONS

1.Assessment of Costs.

Where city acted under authority of law in withholding requested police department files rather than having done so in willful violation of the law, assessment of costs and reasonable attorneys’ fees in favor of appellees under subsection (5) of the section necessarily failed. Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658, 1982 Ky. App. LEXIS 232 (Ky. Ct. App. 1982).

An inmate was entitled to an award of costs where the Department of Corrections improperly denied the inmate access to records pertaining to a disciplinary proceeding against him. Blair v. Hendricks, 30 S.W.3d 802, 2000 Ky. App. LEXIS 69 (Ky. Ct. App. 2000), overruled in part, Lang v. Sapp, 71 S.W.3d 133, 2002 Ky. App. LEXIS 452 (Ky. Ct. App. 2002).

2.Standing to Contest Agency Decision.

A party affected by the decision of a public agency to release records pursuant to the Kentucky Open Records Act had standing to contest the agency decision in court where the disclosure of information in the public record would constitute a clearly unwarranted invasion of personal privacy. Beckham v. Board of Educ., 873 S.W.2d 575, 1994 Ky. LEXIS 22 ( Ky. 1994 ).

3.Response.

Where county attorney did not attempt to establish that disclosure of records relating to child support payments requested by attorney representing father of minor child would constitute a clearly unwarranted invasion of personal privacy, and where county attorney did not reference relevant state or federal law barring disclosure or explain its application to the disputed records, county attorney’s response failed to conform to KRS 61.880(2)(c) and subsection (3) of this section. Edmondson v. Alig, 926 S.W.2d 856, 1996 Ky. App. LEXIS 124 (Ky. Ct. App. 1996).

Since emails between a city mayor and the city council members were preliminary discussions concerning what course of action to take with respect to a financial controversy regarding a local convention center, they were within the exemption from disclosure of the Open Records Act pursuant to KRS 61.878(1), and a city and the mayor were not liable for willfully withholding records under KRS 61.882(5). Baker v. Jones, 199 S.W.3d 749, 2006 Ky. App. LEXIS 12 (Ky. Ct. App. 2006).

4.Fines.

An inmate was properly denied the discretionary fine provided for in the statute in connection with the Department of Correction’s denial of access to records of a disciplinary proceeding against him where there was no proof that the department’s actions were wilful or that the failure damaged the inmate in any way, and it appeared that the department merely made a good faith denial of records. Blair v. Hendricks, 30 S.W.3d 802, 2000 Ky. App. LEXIS 69 (Ky. Ct. App. 2000), overruled in part, Lang v. Sapp, 71 S.W.3d 133, 2002 Ky. App. LEXIS 452 (Ky. Ct. App. 2002).

Circuit court's award of attorney's fees and costs to the newspapers was affirmed where substantial evidence supported the finding of willfulness under Ky. Rev. Stat. Ann. § 61.882(5), and the circuit court properly interpreted the statute to permit an award of up to $25 per day for each particular record that an agency improperly and willfully withheld. Cabinet for Health & Family Servs. v. Courier-Journal, Inc., 493 S.W.3d 375, 2016 Ky. App. LEXIS 18 (Ky. Ct. App. 2016).

Court of Appeals of Kentucky cannot agree that the General Assembly's mere use of the word “person” in Ky. Rev. Stat. Ann. § 61.882(5) demonstrated so clear an intent that penalties be imposed on a per person basis as to show the trial court's reading unreasonable or erroneous. Cabinet for Health & Family Servs. v. Courier-Journal, Inc., 493 S.W.3d 375, 2016 Ky. App. LEXIS 18 (Ky. Ct. App. 2016).

5.In Camera Inspection.

Where a teacher’s open records request to view videotape recordings of her own classroom was denied on grounds this would violate the Family Educational Rights and Privacy Act (FERPA), 20 USCS § 1232g, and the Kentucky Family Educational Rights and Privacy Act (KFERPA), KRS 160.700 et seq., the Circuit Court properly denied her request to view the tapes in camera since this would have rendered the entire controversy void. Medley v. Bd. of Educ., 168 S.W.3d 398, 2004 Ky. App. LEXIS 305 (Ky. Ct. App. 2004).

University violated the Kentucky Open Records Act because it refused to allow the Attorney General (AG) to review redacted records requested by the student newspaper; the refusal made the AG’s review of the matter impossible, leaving the AG with no alternative but to decide that the university had release the records to the the newspaper. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019).

6.Attorney Fees.

Where a senator sought attorney billing statements prepared by nongovernmental lawyers retained by a Governor’s administration in connection with an investigation of its hiring practices, it was error to award attorney fees to the senator. Because the attorney-client privilege was favored to be a valid exception to at least a portion of the records, and because the trial court’s solution of allowing documents the administration believed to be privileged to be reviewed in camera appeared to be novel, it could not be said that the administration willfully withheld records. Commonwealth v. Scorsone, 2008 Ky. App. LEXIS 18 (Ky. Ct. App. Jan. 18, 2008), sub. op., 251 S.W.3d 328, 2008 Ky. App. LEXIS 40 (Ky. Ct. App. 2008).

Former medical resident student did not establish that a university’s initial decision to withhold records from her was done willfully, particularly when there was evidence that university officials were not aware that the other documents existed, and once they learned of the other records, they produced them to the student; also the student could not recover the requested attorney’s fees and costs. Shyamashree Sinha v. Univ. of Ky., 284 S.W.3d 159, 2008 Ky. App. LEXIS 375 (Ky. Ct. App. 2008).

Newspaper was entitled to fees, costs, and sanctions due to a city’s total refusal to furnish even previously released materials. The trial court’s failure to make such an award was an abuse of discretion. Cincinnati Enquirer v. City of Fort Thomas, 2011 Ky. App. LEXIS 202 (Ky. Ct. App. Oct. 21, 2011).

Matter was remanded to the circuit court for a supplemental award of attorney’s fees and costs incurred on appeal; under KRS 61.882(5), upon a showing of a willful withholding, the reporters were entitled to any fees and costs incurred with the legal action, which would include fees and costs incurred in defending the judgment on appeal. Commonwealth v. Lexington H-L Servs., 382 S.W.3d 875, 2012 Ky. App. LEXIS 216 (Ky. Ct. App. 2012).

When it was determined that a city erroneously denied a newspaper’s request for a police department’s entire file in a murder case, it was not an abuse of discretion to deny the newspaper’s request for fees and costs because, inter alia, the city had a plausible, if erroneous, justification for denying the newspaper’s request. City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 2013 Ky. LEXIS 375 ( Ky. 2013 ).

When it was determined that a city erroneously denied a newspaper’s request for a police department’s entire file in a murder case, it was not an abuse of discretion to deny the newspaper’s request for fees and costs, even when a prosecutor had previously disclosed part of the file to a television station, because (1) the city was not required to research whether another agency had previously disclosed part of the file, (2) the part disclosed was a very small part of the records requested, (3) the newspaper did not specify this part of the file, and (4) this part of the file was disclosed before the Attorney General opined that disclosure was required. City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 2013 Ky. LEXIS 375 ( Ky. 2013 ).

Circuit court properly dismissed a city’s complaint against a petitioner and awarded him attorney’s fees and statutory penalties because the city and its ethics commission wrongfully withheld public records from the petitioner without a good faith basis or plausible justification, they continued in a pattern of improperly denying and delaying the petitioner’s exercise of rights under the Open Records Act, and, while the commission was the entity that withheld the documents, it was merely a division of the city. City of Taylorsville Ethics Comm'n v. Trageser, 604 S.W.3d 305, 2020 Ky. App. LEXIS 73 (Ky. Ct. App. 2020).

7.Access Improperly Denied.

Where a school district employee settled her lawsuit against one school district for sexual harassment by a district official and a second lawsuit against another district for allegedly wrongfully failing to hire her, the lower courts erred in denying a newspaper’s request for access to the settlement agreements under the Kentucky Open Records Act, KRS 61.870 to 61.884 , because the settlement of litigation between a government agency and one of its employees and a private citizen and a governmental entity were matters of legitimate public concern that the public is entitled to scrutinize. A confidentiality clause in such agreements was not entitled to protection. Cent. Ky. News-Journal v. George, 306 S.W.3d 41, 2010 Ky. LEXIS 72 ( Ky. 2010 ).

8.Willfulness.

Whether the assessment of penalties will have any coercive effect is not a proper consideration under KRS 61.882(5); rather, the only basis upon which penalties may be awarded is a finding that the officials’ noncompliance with the Kentucky Open Records Act was willful. Even though the trial court erred by making this improper consideration, a reversal was not warranted because an inmate requesting certain records waived the right to contest the error where he did not raise the issue of willfulness. Eplion v. Burchett, 354 S.W.3d 598, 2011 Ky. App. LEXIS 215 (Ky. Ct. App. 2011).

It was not clearly erroneous to award a newspaper attorney's fees, costs, and penalties for a violation of the Open Records Act by the Cabinet for Health and Family Services (Cabinet) because, by first denying the requested records existed, the Cabinet acted willfully. Cabinet v. Todd Cnty. Std., 488 S.W.3d 1, 2015 Ky. App. LEXIS 171 (Ky. Ct. App. 2015).

Circuit court properly award a newspaper penalties and attorney’s fees because the Cabinet for Economic Development had no legal basis for denying the names of a private company’s shareholders after the company disclosed them. Commonwealth v. Courier-Journal, Inc., 2019 Ky. App. LEXIS 90 (Ky. Ct. App. May 17, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 633 (Ky. Ct. App. May 17, 2019).

9.Harm.

Nothing in the Kentucky Open Records Act conditions an individual’s right to obtain public records on his purpose in seeking those records; further, the propriety of assessing a penalty against non-compliant officials does not depend on whether harm befell the person who is denied records under KRS 61.882(5). Therefore, the fact that an inmate might not have been harmed by the failure to disclose jail records was irrelevant. Eplion v. Burchett, 354 S.W.3d 598, 2011 Ky. App. LEXIS 215 (Ky. Ct. App. 2011).

10.Construction.

General Assembly mandated the non-disclosure of exempt records, a mandate the person or entity whose interest the exemption protects may seek to enforce in the circuit court; disclosure of an exempt record is not precluded if the intended beneficiaries waive their right to non-disclosure, and the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor an unlimited discretion to deny disclosure, but it does not preclude him or her from allowing it. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 ( Ky. 2013 ).

11.Against Agency.

Lawsuit should not have been filed against an attorney for the Kentucky Education and Workforce Development Cabinet based on an allegation that there was a failure to respond in 3 days because the Kentucky General Assembly intended suits based on violations of the Kentucky Open Records Act, including the time provisions at issue here, to be brought against the state agencies themselves and not against the individuals employed by those agencies. Taylor v. Maxson, 483 S.W.3d 852, 2016 Ky. App. LEXIS 15 (Ky. Ct. App. 2016).

12.Immunity.

In a case under the Kentucky Open Records Act, a claim against an attorney for the Kentucky Education and Workforce Development Cabinet in his official capacity was properly dismissed because the Commonwealth had not waived its immunity. The suit against the attorney in his official capacity was essentially a suit against the Cabinet. Taylor v. Maxson, 483 S.W.3d 852, 2016 Ky. App. LEXIS 15 (Ky. Ct. App. 2016).

13.Judicial review.

Trial court had jurisdiction to review the decision of the Kentucky Legislative Research Commission (LRC) regarding a newspaper’s request for legislative records because (1) the court’s statutory jurisdiction was not limited to records requests or cases where the LRC issued no decision in 30 days, and (2) the Open Records Act’s statutory judicial review right was incorporated into the governing statute. Harilson v. Shepherd, 585 S.W.3d 748, 2019 Ky. LEXIS 380 ( Ky. 2019 ).

Cited:

Board of Education v. Lexington-Fayette Urban County Human Rights Com., 625 S.W.2d 109, 1981 Ky. App. LEXIS 302 (Ky. Ct. App. 1981); Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 1992 Ky. LEXIS 35 ( Ky. 1992 ); Frankfort Pub. Co. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 1992 Ky. LEXIS 103 ( Ky. 1992 ); Commonwealth v. Chestnut, 250 S.W.3d 655, 2008 Ky. LEXIS 116 ( Ky. 2008 ); Commonwealth v. Scorsone, 251 S.W.3d 328, 2008 Ky. App. LEXIS 40 (Ky. Ct. App. 2008); Parish v. Petter, 608 S.W.3d 638, 2020 Ky. App. LEXIS 100 (Ky. Ct. App. 2020).

Opinions of Attorney General.

Under this section if an agency does not comply with an Attorney General Opinion upholding a request for inspection and does not take affirmative action to have the opinion declared erroneous, the circuit court may enhance the penalties and damages if the court finds that the agency was wrong. OAG 77-511 .

The statements made and data furnished by persons applying to be recognized as in-state residents for the purpose of tuition at a state university are not exempt from inspection under KRS 61.878(1)(a), since subsection (4) of this section indicates that the basic policy is to allow free and open examination of public records and to strictly construe exceptions to that policy, and also because the public interest in the administration of the policy on classification of students for fee assessment purposes outweighs the privacy rights of the individuals who have applied for classification as in-state residents. OAG 80-352 .

Records which disclose the names of persons who are inmates of the county jail are not exempt from public disclosure under the personal privacy exemption of subsection (1)(a) of KRS 61.878 since it is contrary to the principles of personal liberty for persons to be secretly held in jail and the embarrassment caused to them or to members of their family is of secondary importance; moreover, the strict construction rule contained in subsection (4) of this section requires disclosure regardless of inconvenience or embarrassment caused to anyone. OAG 81-395 .

When a public records dispute is taken to court, the burden of proof is on the public agency to sustain its action. Thus, a public agency should make every attempt to comply with the letter and spirit of the Open Records Act. Every legitimate request, not covered by a statutory exemption, should be complied with as quickly and courteously as possible; the availability of the records should be subject to no more restrictions than are necessary to protect the records and to avoid unduly disrupting the agency’s operations. OAG 85-85 .

The General Assembly has vested the circuit courts with authority overriding that of the Attorney General in determining open records questions; it would be improper for the Attorney General to attempt to substantively determine an open records question when the same question is before a circuit court. OAG 88-78 .

Balancing the privacy interests of the parties to a settlement against the public’s right of access to a written out-of-court settlement where a public agency is a party to that settlement, and measured by the standards of a reasonable man, the public’s right of disclosure outweighs the privacy interests which might be identified. OAG 91-20 .

Certainly if city funds are expended that would weigh heavily toward public disclosure in balancing the privacy interests of those involved in a suit against the city, and the public’s right to know. OAG 91-20 .

Litigants frequently document in writing the terms of settlements, and they are seldom “generated for” or “received by” the trial court, and settlement records of this nature are not court records and are therefore within the scope of the Act. OAG 91-20 .

This Act must be strictly construed in favor of disclosure, and the parties’ understanding of confidentiality will not be binding on the courts. OAG 91-20 .

When settlement records are prepared, they will be subject to public inspection and must be made available to the requesting party unless the trial court orders that the parties keep the terms confidential, and in such an event, the requesting party remedy is to intervene in the suit, and move to reverse that order. OAG 91-20 .

Where with respect to request for financial data although department improperly relied on KRS 61.878(1)(b) in refusing to release the information, the request was not sufficiently definite to permit it to formulate a response for while the purpose and intent of the Open Records Act is to permit the free and open examination of public records, the right of access is not absolute; as a precondition to inspection, a requesting party must identify with “reasonable particularity” those documents which he wishes to review. OAG 91-72 .

A “standing request” for all documents compiled by the Hardin County Schools for use by the board may properly be denied on the grounds that it fails to reasonably identify the records sought. While the purpose and intent of the Open Records Act is to permit the “free and open examination of public records,” the right of access is not absolute. As a pre-condition to inspection, a requesting party must identify with “reasonable particularity” those documents which he wishes to review. OAG 91-78 .

This section does not specify the mode or method by which a written request must be made and it is intended to circumvent disputes relative to the identity of the records requested, and not to create additional obstacles to the release of those records; therefore, a fax transmission satisfies this purpose. OAG 92-13 .

Inmate mistakenly asserted that he must be afforded access to nonconfidential documents before he identified those documents; accordingly, the Attorney General opined that inmate must identify the specific documents that he wishes to inspect. OAG 92-56 .

Mere invocation of an exception and reference to prior opinions, without an adequate explanation of how the exception applies or the opinions are relevant, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and subsection (3) of this section. OAG 92-ORD-1020.

Mere invocation of a statutory exception to the release of records and reference to prior opinions, without an adequate explanation of how the exception applies or the opinions are relevant, does not satisfy the burden of proof imposed on the agency under subsection (3) of this section and KRS 61.880(2). OAG 93-ORD-43.

The purpose and intent of the Open Records Act is to permit “the free and open examination of public records.” 95-ORD-2.

Travel expense records do not, in general, disclose communications by the client or attorney in relation to the specific matter for which the attorney was retained, and where there has been little or no effort to insure confidentiality in the handling of the records, or to protect the information contained therein from general disclosure, the assertion of attorney/client privilege fails to protect such records from public inspection. OAG 95-ORD-18.

This section is not a remedy for denial of access only; it also provides standing for a party who may possess a right to have documents excluded to assert that right; however, the government must continue to comply with the procedural requirements of KRS 61.880(1) so that the aggrieved party may act in a timely manner. OAG 98-ORD-24.

The burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the Circuit Court, is on the agency. OAG 99-ORD-36.

Open records appeal is not the appropriate forum for adjudication of requester’s claim of willful concealment of public records. OAG 06-ORD-042.

Research References and Practice Aids

Kentucky Bench & Bar.

Fleischaker, Klimkina & McCauley, The Kentucky Open Records Law: A Retrospective Analysis, Vol. 76, No. 4, July 2012, Ky. Bench & Bar 13.

Kentucky Law Journal.

Out of the Sunshine and into the Shadows: Six Years of Misinterpretation of the Personal Privacy Exemption of the Kentucky Open Records Act, 71 Ky. L.J. 853 (1982-83).

Northern Kentucky Law Review.

Ziegler, The Kentucky Open Records Act: A Preliminary Analysis, 7 N. Ky. L. Rev. 7 (1980).

61.884. Person’s access to record relating to him.

Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878 .

History. Enact. Acts 1976, ch. 273, § 8.

NOTES TO DECISIONS

1.Applicability.

Other than the exception found at KRS 197.025 , the open records laws identify no class or type of persons, even prisoners, who are held to a more stringent standard when submitting open records requests. This presumption in favor of broad availability of public records is even stronger when a person, like an inmate, seeks access to public records pertaining to himself, under KRS 61.884 ; the Department of Corrections bears the burden to rebut the strong presumption in favor of disclosure. Commonwealth v. Chestnut, 250 S.W.3d 655, 2008 Ky. LEXIS 116 ( Ky. 2008 ).

2.Construction.

Notwithstanding that this section allows any person to have access to any public record relating to him or in which he is mentioned by name, a citizen was not entitled to a copy of a tape recording of a 911 call reporting that the citizen had threatened to kill his own wife and other members of his family, as the disclosure of such recording would have constituted a clearly unwarranted invasion of personal privacy of the 911 caller in violation of KRS 61.878 . Bowling v. Brandenburg, 37 S.W.3d 785, 2000 Ky. App. LEXIS 22 (Ky. Ct. App. 2000).

Cited:

Frankfort Pub. Co. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 1992 Ky. LEXIS 103 ( Ky. 1992 ).

Opinions of Attorney General.

Under this section a person is entitled to inspect a document in which he is mentioned unless it is exempt under the provisions of the Open Records Law. OAG 79-128 .

University officials properly withheld inspection of the personnel file of the requester, which included letters of evaluation by faculty members, because the university was entitled to protect the privacy of the faculty members who wrote the letters of evaluation and because the letters contained preliminary recommendations and preliminary memoranda in which opinions were expressed; such faculty letters were exempt from inspection under KRS 61.878(1)(a) and (h). OAG 82-204 .

The qualifying clause at the end of this section means that a public agency is entitled to withhold from a person a record in which he is mentioned if the record comes under one of the exemptions from mandatory public disclosure in KRS 61.878 . OAG 82-211 .

A comprehensive care center does not have to comply with a request for a copy of records by the person who is the subject of the records and who is a minor or who has been legally adjudged incompetent, but if the person is a competent adult he is entitled to have a copy of the records. The center may charge him a reasonable fee per page for a copy of the record which shall not exceed the actual cost thereof not including the cost of staff required. OAG 82-414 .

Requester was entitled to inspect records of State Board of Medical Licensure in which he was mentioned by name and which were not made exempt under KRS 61.878(1). OAG 83-60 .

A person who previously attended a police academy is entitled to inspect and obtain a copy of his transcript of grades received at the academy even though he did not graduate from the academy. OAG 83-108 .

Suspended student had the right, under this section and KRS 164.283, to inspect his transcript as it related to the classes he had taken while at the University and the grades received therefor. OAG 83-332 .

Suspended student had the right to have a tape or transcript of any part of the disciplinary hearing which pertained to him and to documents relating to other disciplinary proceedings involving him. OAG 83-332 .

Suspended student had the right of access to copies of all documents regarding financial aid agreements between him and the University since they pertained to his financial status at the University. OAG 83-332 .

Documents pertaining to student’s suspension were open to inspection by him, except documents which contained preliminary drafts, notes, correspondence with private individuals or preliminary recommendations and memoranda in which opinions were expressed or policies formulated or recommended, which could be properly exempted from his inspection; any complaints against him were also open to his inspection as were any written decisions by the disciplinary board. OAG 83-332 .

Witness statements that were referred to during grand jury testimony on official misconduct were preliminary documents in police investigative files that were exempt from inspection under KRS 61.878 (g) and (h), even after the charges were dropped; the preliminary status of the statements exempted them from inspection even by a person who was mentioned in the statements since this section is subject to the KRS 61.878 exemptions. OAG 84-249 .

While this section provides that any person shall have access to any public record relating to him or in which he is mentioned by name, it is subject to the provisions and exemptions set forth in KRS 61.878 . OAG 85-69 .

The denial of a request to inspect the complete institutional file of an inmate was proper, as requests to inspect personnel files must specify the particular documents within such files to be inspected. OAG 85-88 .

The State Police had the authority to withhold from public inspection pursuant to subdivision (1)(h) of KRS 61.878 a document in the nature of an intraoffice memorandum, from employees to a supervisor setting forth their opinions of a fellow employee, when that memorandum has neither “spawned” an investigation nor served as the basis for any kind of personnel action involving the employee mentioned in the memorandum. OAG 86-53 .

The right to inspect public records under this section would not apply if the records consist of the materials set forth in subdivision (1)(f) of KRS 61.878 . OAG 86-81 .

The Department for Social Services acted properly when it refused to make available for inspection to the alleged perpetrator of child abuse the names of informants and those portions of the statements of a judge and an informant wherein those parties set forth personal opinions, observations, and recommendations not related to the child abuse investigation and the findings resulting from that investigation. OAG 87-82 .

A county property valuation administrator failed to act consistently with the provisions of KRS 61.870 to 61.882 and this section in failing to respond in writing to a verbal request for access to records, and in responding to a written request by forwarding it to another agency. OAG 89-40 .

Any records which refer to defendant by name or nickname, and were properly characterized as attorney work product, may be withheld, the conclusion of criminal proceedings notwithstanding. OAG 91-214 .

The absence of statutory language making background investigation reports confidential, coupled with the express language in this section and in KRS 61.878(3) mandating that any person shall have access to any public record relating to him, supports the conclusion that the Kentucky State Police acted improperly in denying request from an applicant of the State Police cadet trooper class to review the background investigation reports. OAG 95-ORD-84.

The release of records under this section is subject to the provisions of KRS 61.878 . OAG 99-ORD-60.

A training center did not violate KRS 61.884 by not releasing a copy of an inmate’s entire prison file either to the inmate or his attorney of record as some portions of the file were exempt from disclosure under various exemptions of KRS 61.878 . OAG 00-ORD-190.

Since the case notes of the parolee’s visits with his parole officer were prepared as a result of the officer’s official duties, these records, pursuant to KRS 439.510 , would be exempt from disclosure and may be properly denied under an Open Records Request pursuant to KRS 61.878(1)(l). OAG 02-ORD-51.

Although KRS 61.884 provides that a person is entitled to inspect records concerning himself, the exemptions contained in KRS 61.878 take priority over KRS 61.884 . By its own language, KRS 61.884 is subject to the provisions of KRS 61.878 , and KRS 61.878(1)(h) exempts records of law enforcement agencies or agencies involved in administrative adjudication from public disclosure where the records identify informants or would harm an agency by their premature release. OAG 02-ORD-77.

Research References and Practice Aids

Northern Kentucky Law Review.

Ziegler, The Kentucky Open Records Act: A Preliminary Analysis, 7 N. Ky. L. Rev. 7 (1980).

Breaks Interstate Park Commission and Tennessee Valley Authority Peace Officers

61.886. Appointment and commissioning of peace officers for the Breaks Interstate Park Commission and the Tennessee Valley Authority.

  1. As used in KRS 61.886 to 61.892 :
    1. “Commission” means the Breaks Interstate Park Commission created in KRS 148.220 ; and
    2. “TVA” means the Tennessee Valley Authority.
  2. The Tennessee Valley Authority or the Breaks Interstate Park Commission may apply to the Governor for the appointment and commissioning of peace officers. Such persons shall be selected from a list submitted by TVA or the commission to the Governor. The Governor, upon such application being made and upon the payment to the Kentucky State Treasurer of a one (1) time fee of five dollars ($5) for each officer to be appointed, shall appoint, for annually renewable terms of one (1) year, such persons or as many thereof as the Governor deems proper to be such peace officers and shall give commissions to those appointed. Appointments and annual renewals of appointments under this subsection shall be subject to approval by the sheriff of each county in which the peace officer will normally operate, not including counties into which he or she may pursue and arrest persons under KRS 61.887 . Such commissions shall be recorded in the office of Secretary of State.
  3. Upon the request of the commission, the commissioner of the Department of Parks may request the Governor to appoint and commission individuals designated by the commissioner that meet the requirements of KRS 61.8865 as peace officers. The Governor, upon such application being made and upon the payment to the Kentucky State Treasurer of a one (1) time fee of five dollars ($5) for each officer to be appointed, shall appoint for annually renewable terms of one (1) year such persons or as many thereof as the Governor deems proper to be such peace officers and shall give commissions to those appointed. Appointments and annual renewals of appointments under this subsection shall be subject to approval by the sheriff of each county in which the peace officer will normally operate, not including counties into which he or she may pursue and arrest persons under KRS 61.887 . Such commissions shall be recorded in the office of Secretary of State.
  4. No person shall be eligible for appointment and commission as a TVA or commission peace officer unless he or she has established to the satisfaction of the Governor that, except for county residency requirements, he or she:
    1. Possesses the qualifications prescribed for nonelective peace officers by KRS 61.300 ; and
    2. Is a resident of Kentucky, or an adjoining state in which TVA or the commission operates, and has been for at least two (2) years at the time of his or her appointment.
  5. A TVA or commission peace officer shall not be considered a hazardous duty position within the meaning of KRS 61.592 and shall not be eligible to participate in the Kentucky Law Enforcement Foundation Program fund unless the officer meets the requirements of KRS 15.382 , 15.404 , and 15.440 .

History. Enact. Acts 1978, ch. 79, § 1, effective June 17, 1978; 2011, ch. 90, § 1, effective June 8, 2011; 2016 ch. 141, § 1, effective July 15, 2016.

61.8865. State parks’ commissioner to ensure recommended commission peace officers meet certain requirements — Training and equipment expenses.

  1. The commissioner of the Department of Parks shall ensure that an employee of the commission that is being recommended by the commission to be appointed and commissioned in accordance with KRS 61.886(3) shall:
    1. Meet the minimum qualifications of KRS 61.886(3);
    2. Abide by the Department of Parks’ law enforcement in-service training requirements, if any; and
    3. Abide by the law enforcement directive of the Department of Parks, unless exceptions by the department are granted in writing.
  2. Expenses associated with training and equipping an employee of the commission as a commission peace officer to the Department of Parks’ standards shall be paid by the commission unless otherwise agreed upon by the department.

HISTORY: 2016 ch. 141, § 3, effective July 15, 2016.

61.887. Powers of TVA and commission peace officers.

    1. Each TVA or commission peace officer appointed and commissioned pursuant to KRS 61.886 to 61.892 throughout every county in the Commonwealth in which TVA or the commission operates or owns or controls property, including leasehold interests: (1) (a) Each TVA or commission peace officer appointed and commissioned pursuant to KRS 61.886 to 61.892 throughout every county in the Commonwealth in which TVA or the commission operates or owns or controls property, including leasehold interests:
      1. Shall have and exercise the powers of sheriffs in making arrests for public offenses committed upon, about, or against such property or on public roads and the rights-of-way passing through or over such property;
      2. Shall have and exercise the powers of sheriffs in making arrests in any situation in which a person is placed in imminent danger of death or serious injury;
      3. Shall have authority to carry weapons for the reasonable purposes of his or her office and in performance of his or her assigned duties;
      4. While in pursuit of a person fleeing after committing an act described in subparagraph 1. or 2. of this paragraph, may pursue the person and make arrest anywhere in the Commonwealth; and
      5. Shall be subject to all the liabilities of sheriffs.
    2. In addition to the powers enumerated in paragraph (a) of this subsection, commission peace officers shall have the power to enforce the rules and regulations of the commission.
  1. TVA officers or commission peace officers appointed and commissioned pursuant to KRS 61.886 to 61.892 may, throughout any county in the Commonwealth in which TVA or the commission operates or owns or controls property, including leasehold interests, have and exercise the powers of sheriff in that county if the sheriff of that county provides prior written authorization to the TVA or commission defining the extent of supplemental authority being granted. Any supplemental authority granted pursuant to this subsection shall expire with the officer’s commission granted under KRS 61.886 and may be renewed, as provided in this subsection, upon renewal of the commission authorized under KRS 61.886.
  2. When countywide authority has not been granted under subsection (2) of this section, a sheriff of a county in which the TVA or commission has property, the chief of police of a city within the county, or the commissioner of the Department of Kentucky State Police may extend peace officer authority within the city or county, as appropriate, during a disaster or other emergency.

History. Enact. Acts 1978, ch. 79, § 2, effective June 17, 1978; 2011, ch. 90, § 2, effective June 8, 2011; 2016 ch. 141, § 2, effective July 15, 2016.

61.888. Cessation of powers.

When TVA or the commission no longer needs the services of a person appointed and commissioned as a TVA or commission peace officer pursuant to this section, notice to that effect, signed by the general manager of TVA, the chairperson of the commission, or the person having responsibility for general supervision of the work of such officer, shall be filed in the office of the Secretary of State. The Secretary of State shall note the fact upon the margin of the record, and thereupon the power of the person to act as a TVA or commission peace officer shall cease.

History. Enact. Acts 1978, ch. 79, § 3, effective June 17, 1978; 2011, ch. 90, § 3, effective June 8, 2011.

61.889. Bond — Oath — Copies of bonds to be recorded.

Each TVA or commission peace officer appointed pursuant to KRS 61.886 to 61.892 shall, before he or she enters upon the discharge of the duties of his or her office, execute bond in the sum of fifty thousand dollars ($50,000), with good security, conditioned upon the faithful performance of his or her duty as such officer, and take and subscribe an oath of office and the oath required by Section 228 of the Constitution of Kentucky. The bond and oath shall be entered of record by the Secretary of State, and the execution of the bond and the taking of the oath shall be endorsed upon the commission of the person so qualifying. In lieu of such individual bonds, a duly executed bond covering all TVA or commission peace officers appointed and commissioned pursuant to this section, as principals, with TVA as surety, in the amount of fifty thousand dollars ($50,000) for each such officer and conditioned for the faithful performance of his or her duties may be filed by TVA or the commission with the Secretary of State of the Commonwealth in which event individual bonds shall not be required.

History. Enact. Acts 1978, ch. 79, § 4, effective June 17, 1978; 2011, ch. 90, § 4, effective June 8, 2011.

61.890. Compensation.

The compensation of the TVA peace officers appointed and commissioned pursuant to KRS 61.886 to 61.892 shall be fixed and paid by TVA.

History. Enact. Acts 1978, ch. 79, § 6, effective June 17, 1978.

61.891. Identification.

Each TVA peace officer appointed and commissioned pursuant to KRS 61.886 to 61.892 shall, while on duty, wear a badge or shield identifying him as an employee either of the TVA public safety service or of the TVA Land Between the Lakes Protection Section. When acting as a detective in the service of TVA as an employee in the performance of his assigned duties, he may wear his badge, shield, or weapon concealed. Each TVA peace officer may, while on duty, wear such other insignia and identification, including uniform, as will plainly indicate to the public that he is a TVA peace officer.

History. Enact. Acts 1978, ch. 79, § 7, effective June 17, 1978.

61.892. Disposition of persons arrested by TVA peace officer.

The keepers of jails in any county or municipality wherein the violation occurs for which any such arrest is made by a TVA peace officer shall receive all persons arrested by such officers to be dealt with according to law, and persons so arrested shall be received by keepers of jails on the same basis and shall have the same status as prisoners arrested by any other police officer.

History. Enact. Acts 1978, ch. 79, § 5, effective June 17, 1978.

Special Law Enforcement Officers

61.900. Definitions for KRS 61.902 to 61.930.

As used in KRS 61.902 to 61.930 :

  1. “Commission” means a commission issued to an individual by the secretary of justice and public safety, entitling the individual to perform special law enforcement duties on public property;
  2. “Council” means the Kentucky Law Enforcement Council;
  3. “Cabinet” means the Justice and Public Safety Cabinet;
  4. “Public property” means property currently owned or used by any organizational unit or agency of state, county, city, metropolitan government, or a combination of these. The term shall include property currently owned or used by public airport authorities;
  5. “Secretary” means the secretary of the Justice and Public Safety Cabinet;
  6. “Special law enforcement officer”:
    1. Means one whose duties include the protection of specific public property from intrusion, entry, larceny, vandalism, abuse, intermeddling, or trespass;
    2. Means one whose duties include the prevention, observation, or detection of, or apprehension for, any unlawful activity on specific public property;
    3. Means one whose special duties include the control of the operation, speed, and parking of motor vehicles, bicycles, and other vehicles, and the movement of pedestrian traffic on specific public property;
    4. Means one whose duties include the answering of any intrusion alarm on specific public property;
    5. Shall include the Capitol police, the Capital Plaza police, school resource officers as defined in KRS 158.441 who are employed directly by a local board of education, public airport authority security officers, and the officers of the other public security forces established for the purpose of protecting specific public property; and
    6. Shall not include members of a lawfully organized police unit or police force of state, county, city, or metropolitan government, or a combination of these, who are responsible for the detection of crime and the enforcement of the general criminal law enforcement of the state; it shall not include any of the following officials or officers:
      1. Sheriffs, sworn deputy sheriffs, constables, sworn deputy constables, and coroners;
      2. Auxiliary and reserve police appointed under KRS 95.160 or 95.445 , or citation and safety officers authorized by KRS 83A.087 and 83A.088 ;
      3. State park rangers and officers of the Division of Law Enforcement within the Department of Fish and Wildlife Resources;
      4. Officers of the Transportation Cabinet responsible for law enforcement;
      5. Officers of the Department of Corrections responsible for law enforcement;
      6. Fire marshals and deputy fire marshals;
      7. Other officers not mentioned above who are employed directly by state government and are responsible for law enforcement;
      8. Federal peace officers;
      9. Those campus security officers who are commissioned under KRS 164.950;
      10. Private security guards, private security patrolmen, and investigators licensed pursuant to state statute; and
      11. Railroad policemen covered by KRS 277.270 and 277.280 ; and
  7. “Sworn public peace officer” means one who derives plenary or special law enforcement powers from, and is a full-time employee of, the federal government, the Commonwealth, or any political subdivision, agency, department, branch, or service of either, or of any municipality.

History. Enact. Acts 1976, ch. 178, § 2, effective January 1, 1977; 1980, ch. 188, § 20, effective July 15, 1980; 1986, ch. 331, § 15, effective July 15, 1986; 1992, ch. 48, § 4, effective July 14, 1992; 1992, ch. 211, § 13, effective July 14, 1992; 1992, ch. 435, § 2, effective July 14, 1992; 1998, ch. 23, § 13, effective July 15, 1998; 2007, ch. 85, § 132, effective June 26, 2007; 2019 ch. 5, § 12, effective March 11, 2019; 2019 ch. 44, § 3, effective June 27, 2019.

Legislative Research Commission Notes.

(6/27/2019). This statute was amended by 2019 Ky. Acts chs. 5 and 44, which do not appear to be in conflict and have been codified together.

Opinions of Attorney General.

Airport safety and security officers have all of the powers and authority enumerated for special law enforcement officers in KRS 61.900 to KRS 61.926 , in addition to those powers enumerated in KRS 183.881 , since subsection (6)(e) of this section includes public airport authority security officers in its definition of “special law enforcement officer.” OAG 81-396 .

Since a water district is a unit of government (a special district), it may apply to the Secretary of the Justice Cabinet for the commissioning of a special law-enforcement officer to protect and enforce the law on the public property of the water district. OAG 84-242 .

Research References and Practice Aids

Cross-References.

Special local peace officers, KRS 61.360 .

61.902. Appointment of special law enforcement officers by secretary.

  1. The secretary of the Justice and Public Safety Cabinet may commission special law enforcement officers, for such time as he or she deems necessary, to protect and to enforce the law on public property.
  2. Notwithstanding subsection (1) of this section, in the case of a special law enforcement officer employed as a school resource officer, the commission shall be for four (4) years, provided the officer continues to meet all statutory and regulatory requirements.
  3. Upon application of a unit or agency of state, county, city or metropolitan government, the secretary may appoint those persons recommended by the unit or agency who satisfy the requirements of KRS 61.900 to 61.930 .

History. Enact. Acts 1976, ch. 178, § 3, effective January 1, 1977; 2007, ch. 85, § 133, effective June 26, 2007; 2020 ch. 5, § 7, effective February 21, 2020.

Opinions of Attorney General.

A county board of education, as a unit of the state government, would not be required to file an application to have any of its employees commissioned as special law enforcement officers, but any security guards who are not commissioned would possess no more powers than a citizen. OAG 76-676 .

“Special law enforcement officers” may not be appointed pursuant to this section to guard patients being transported by ambulance from a forensic psychiatry unit to a public hospital for emergency medical treatment, since this section covers the appointment of guards for public real property, but not for public personalty, nor can guards be appointed pursuant to KRS 61.924 , since that section only allows special officers to use emergency vehicles within the premises of public property or in pursuit of a person fleeing such property after committing a felony or misdemeanor. OAG 81-125 .

61.904. Administration — Administrative regulations — Employees.

KRS 61.900 to 61.930 shall be administered by the secretary, or by any agency within the cabinet designated by the secretary and acting under his authority. The secretary shall promulgate and enforce such administrative regulations as may be reasonable and necessary to carry out the provisions of KRS 61.900 to 61.930 . The secretary may appoint such employees, and delegate such duties to the same, as he or she, in his or her sound discretion, deems appropriate.

History. Enact. Acts 1976, ch. 178, § 4, effective January 1, 1977; 2007, ch. 85, § 134, effective June 26, 2007.

61.906. Requirements for appointment.

In order to qualify for a commission as a special law enforcement officer under KRS 61.900 to 61.930 , an individual must present satisfactory evidence of compliance with the following conditions and requirements:

  1. No person shall be eligible for a commission who:
    1. Has been dishonorably discharged from the Armed Forces of the United States;
    2. Has been convicted in any jurisdiction of any felony or of any crime involving moral turpitude for which he or she has not received a full pardon;
    3. Has been convicted of any other offense or offenses more than five (5) times within the previous three (3) years;
    4. Has by any court of competent jurisdiction been declared mentally disabled by reason of an intellectual disability or disease and has not been restored; or
    5. Suffers from habitual drunkenness or from narcotics addiction or dependence, or from any physical defect or deficiency which the secretary determines to materially impair the applicant’s ability to perform the duties of a special law enforcement officer.
  2. Every person to be eligible for a commission shall:
    1. Have reached his or her twenty-first birthday;
    2. Provide, on forms supplied by the secretary, such information pertaining to himself as may reasonably be requested thereon, including, but not limited to his: name; age; date of birth; current address and employment; prior addresses and employment for the past ten (10) years; aliases, if any; arrest and conviction record, if any; Social Security number; fingerprints; photographs; and general physical description. The accuracy of such information shall be attested by the applicant and his or her attestation shall be notarized by one authorized to administer oaths;
    3. Be of good moral character;
    4. Provide references from two (2) reputable individuals who are not related to him or her and who have known him or her well for a period of not less than three (3) years, attesting to his or her good character;
    5. Pay the fees provided in KRS 61.908 ; and
    6. Provide evidence satisfactory to the secretary that he or she meets the following requirements:
      1. Is a graduate of an accredited high school or of an equivalent technical or vocational training or education program satisfactory to the secretary; or holds a High School Equivalency Diploma; provided, however, that all special local peace officers formally commissioned under KRS 61.360 and with unexpired commissions on December 31, 1976, shall be deemed to have met the requirements of this subsection;
      2. Has successfully completed not fewer than eighty (80) hours of training in a program approved by the council and dealing comprehensively with the subjects of criminal law and the law of arrest, search and seizure; or has been employed as a full-time sworn public peace officer for a period of not less than one (1) year within the past five (5) years, and has never been discharged for cause from employment as a sworn public peace officer; or has been employed in a full-time capacity as a military policeman engaged in law enforcement for the United States Armed Forces for a period of not less than one (1) year within the past five (5) years; or has successfully completed a written, oral and practical examination approved by the council and dealing comprehensively with the subject matter of criminal law and the law of arrest, search and seizure; and
      3. Demonstrates, in written and practical examinations approved by the council, knowledge of and proficiency in firearms safety, range firing, the moral and legal aspects of firearms use, and first aid. Provided, however, that all special local peace officers formally commissioned under KRS 61.360 and with unexpired commissions on December 31, 1976, shall be deemed to have met the requirements of these subsections.

History. Enact. Acts 1976, ch. 178, § 5, effective January 1, 1977; 1982, ch. 141, § 45, effective July 15, 1982; 1988, ch. 283, § 3, effective July 15, 1988; 2012, ch. 146, § 9, effective July 12, 2012; 2017 ch. 63, § 8, effective June 29, 2017; 2019 ch. 194, § 4, effective April 9, 2019.

Compiler’s Notes.

This section was amended by § 48 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

Opinions of Attorney General.

All special local peace officers formally commissioned under KRS 61.360 and with unexpired commissions on December 31, 1976 were not required to meet the requirements of subdivision (2)(f)(ii) (now (2)(f)(2)). OAG 76-723 .

“Special law enforcement officers” may not be appointed pursuant to KRS 61.902 to guard patients being transported by ambulance from a forensic psychiatry unit to a public hospital for emergency medical treatment, since KRS 61.902 covers the appointment of guards for public real property, but not for public personalty, nor can guards be appointed pursuant to this section, since it only allows special officers to use emergency vehicles within the premises of public property or in pursuit of a person fleeing such property after committing a felony or misdemeanor. OAG 81-125 .

61.908. Fees.

The following fees shall be required with respect to applications, examinations, and training for commissions:

  1. With the initial application, a fee of twenty-five dollars ($25);
  2. With application for renewal, a fee of twenty-five dollars ($25);
  3. Prior to any written examination approved by the Kentucky Law Enforcement Council, a fee of fifteen dollars ($15);
  4. Prior to any practical examinations on firearms proficiency approved by the council, a fee of twenty dollars ($20); and
  5. Prior to any training program approved by the council for special law enforcement officers, a reasonable fee as determined by the secretary to cover the cost of training;
  6. All funds received by the cabinet as fees pursuant to this section shall be available for use by the secretary in administering the provisions of KRS 61.900 to 61.930 , and any excess funds not expended at the end of the fiscal year shall revert to the general fund.

History. Enact. Acts 1976, ch. 178, § 6, effective January 1, 1977.

61.910. Revocation or suspension of commission.

The secretary shall revoke or suspend the commission of any special law enforcement officer whenever he shall determine:

  1. That the commission-holder does not meet, or no longer meets, the requirements and conditions for the commission; or
  2. That the commission-holder has knowingly falsified an application or portion thereof, or has made any knowingly false or misleading statement of a material fact to the secretary or any of his delegates, agents or officers; or
  3. That the commission-holder has violated: any provision of KRS 61.900 to 61.930 ; or any rule, regulations or order of the secretary; or any law of the Commonwealth or of the United States, the violation of which the secretary determines to bear a reasonable relationship to eligibility for the commission.

History. Enact. Acts 1976, ch. 178, § 7, effective January 1, 1977.

61.912. Power of arrest.

Any duly commissioned special law enforcement officer shall, while performing law enforcement duties upon the public property he is hired to protect, be empowered to arrest:

  1. Persons committing, in his presence and upon the public property he is hired to protect, any misdemeanor, any traffic violation, or any other violation as defined by KRS 500.080(17);
  2. Provided there exists probable cause to believe a felony has been committed upon the premises he is hired to protect, any person whom the officer reasonably and actually believes to have committed such felony upon the public property.

History. Enact. Acts 1976, ch. 178, § 8, effective January 1, 1977.

Opinions of Attorney General.

Jefferson County special law enforcement officers employed as security for the County’s Hall of Justice do not have arrest powers to execute all types of warrants in the Hall of Justice; moreover, even though KRS 61.926 designates special law enforcement officers as peace officers, this does not invest them with the broad authority of what might be termed “general law enforcement officers” for that designation expressly relates only to KRS 527.020 , regarding authority to carry concealed a deadly weapon on or about one’s person and such designation for purposes of KRS 527.020 , does not overcome or broaden the specific terms of authority set out in this section, KRS 61.914 , and 61.920 giving such officers power to execute all types of warrants in the Hall of Justice. OAG 91-65 .

61.914. Other powers.

Duly commissioned special law enforcement officers shall have the power to issue tickets for parking violations committed upon the public property in their presence and the power of peace officers under KRS 431.015 to issue citations for misdemeanors, and other violations as defined by KRS 500.080(17), committed in their presence upon the public property.

History. Enact. Acts 1976, ch. 178, § 9, effective January 1, 1977.

Opinions of Attorney General.

Jefferson County special law enforcement officers employed as security for the County’s Hall of Justice do not have arrest powers to execute all types of warrants in the Hall of Justice; moreover, even though KRS 61.926 designates special law enforcement officers as peace officers, this does not invest them with the broad authority of what might be termed “general law enforcement officers” for that designation expressly relates only to KRS 527.020 , regarding authority to carry concealed a deadly weapon on or about one’s person and such designation for purposes of KRS 527.020 , does not overcome or broaden the specific terms of authority set out in this section, KRS 61.912 and 61.920 giving such officers power to execute all types of warrants in the Hall of Justice. OAG 91-65 .

61.916. Use of deadly force to make an arrest.

A special law enforcement officer may, in the course of accomplishing any lawful arrest for a felony committed upon the public property as herein provided, use and apply that force which he believes is necessary to make the arrest, except that he may only use deadly force to make such an arrest if:

  1. The officer, in making the arrest, is authorized to act as a special law enforcement officer; and
  2. The arrest is for a felony involving the use or threatened use of physical force likely to cause death or serious physical injury; and
  3. The officer believes that the person to be arrested is likely to endanger human life unless arrested without delay.

History. Enact. Acts 1976, ch. 178, § 10, effective January 1, 1977.

61.918. Use of force less than deadly force.

A special law enforcement officer may, in the course of accomplishing any lawful arrest for a criminal offense other than a felony committed upon the public property as herein provided, use and apply that force, less than deadly force, which he believes is necessary to make the arrest.

History. Enact. Acts 1976, ch. 178, § 11, effective January 1, 1977.

61.920. Area of jurisdiction of special officer.

The powers and duties of special law enforcement officers shall be confined to the premises of the public property to be protected, except while in pursuit of a person fleeing from the property after committing any felony or misdemeanor, other than traffic violations, on the property. In such case the officer may pursue the person and make arrest anywhere within this state. In the course of making a lawful arrest for a felony after such pursuit, he may use and apply that force which he believes is necessary to make the arrest, except that he may only use deadly force in making such an arrest if the conditions specified in KRS 61.916 are satisfied. In the course of making a lawful arrest for a criminal offense other than a felony after such pursuit, he may use and apply that force, less than deadly force, which he believes is necessary to make the arrest.

History. Enact. Acts 1976, ch. 178, § 12, effective January 1, 1977.

Opinions of Attorney General.

Jefferson County special law enforcement officers employed as security for the County’s Hall of Justice do not have arrest powers to execute all types of warrants in the Hall of Justice; moreover, even though KRS 61.926 designates special law enforcement officers as peace officers, this does not invest them with the broad authority of what might be termed “general law enforcement officers” for that designation expressly relates only to KRS 527.020 , regarding authority to carry concealed a deadly weapon on or about one’s person and such designation for purposes of KRS 527.020 , does not overcome or broaden the specific terms of authority set out in KRS 61.912 , 61.914 , and this section giving such officers power to execute all types of warrants in the Hall of Justice. OAG 91-65 .

61.922. Construction.

Nothing in KRS 61.900 to 61.930 shall be construed as being in derogation of the common law, or of any statute of the Commonwealth, pertaining to:

  1. Arrest by a private citizen; or
  2. In any civil or criminal case, the defenses of protection of self, protection of another, protection of property, prevention of a suicide or crime and any other applicable justification defense set forth in KRS Chapter 503.

History. Enact. Acts 1976, ch. 178, § 13, effective January 1, 1977.

61.924. Use of public emergency vehicles.

Duly commissioned special law enforcement officers shall have the right to use and operate public emergency vehicles in accordance with KRS 189.910 through 189.993 .

History. Enact. Acts 1976, ch. 178, § 14, effective January 1, 1977.

61.926. Special officers designated peace officers — Authorization to carry a concealed deadly weapon.

Special law enforcement officers duly commissioned under KRS 61.900 to 61.930 shall be deemed “peace officers” within the meaning of KRS 527.020 and shall be authorized to carry a concealed deadly weapon on or about their persons when necessary for their protection in the discharge of their official duties.

History. Enact. Acts 1976, ch. 178, § 15, effective January 1, 1977.

Opinions of Attorney General.

Jefferson County special law enforcement officers employed as security for the County’s Hall of Justice do not have arrest powers to execute all types of warrants in the Hall of Justice; moreover, even though this section designates special law enforcement officers as peace officers, this does not invest them with the broad authority of what might be termed “general law enforcement officers” for that designation expressly relates only to KRS 527.020 , regarding authority to carry concealed a deadly weapon on or about one’s person and such designation for purposes of KRS 527.020 , does not overcome or broaden the specific terms of authority set out in KRS 61.912 , 61.914 , and 61.920 giving such officers power to execute all types of warrants in the Hall of Justice. OAG 91-65 .

61.928. Revocation of existing commissions — Issuance of new commissions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 178, § 16) was repealed by Acts 1978, ch. 383, § 3, effective June 17, 1978.

61.930. Citation of act.

KRS 61.900 to 61.926 may be cited as “The Special Law Enforcement Officer Act.”

History. Enact. Acts 1976, ch. 178, § 1, effective January 1, 1977; 1980, ch. 188, § 21, effective July 15, 1980.

Personal Information Security and Breach Investigations

61.931. Definitions for KRS 61.931 to 61.934.

As used in KRS 61.931 to 61.934 :

  1. “Agency” means:
    1. The executive branch of state government of the Commonwealth of Kentucky;
    2. Every county, city, municipal corporation, urban-county government, charter county government, consolidated local government, and unified local government;
    3. Every organizational unit, department, division, branch, section, unit, office, administrative body, program cabinet, bureau, board, commission, committee, subcommittee, ad hoc committee, council, authority, public agency, instrumentality, interagency body, special purpose governmental entity, or public corporation of an entity specified in paragraph (a) or (b) of this subsection or created, established, or controlled by an entity specified in paragraph (a) or (b) of this subsection;
    4. Every public school district in the Commonwealth of Kentucky; and
    5. Every public institution of postsecondary education, including every public university in the Commonwealth of Kentucky and public college of the entire Kentucky Community and Technical College System;
  2. “Commonwealth Office of Technology” means the office established by KRS 42.724 ;
  3. “Encryption” means the conversion of data using technology that:
    1. Meets or exceeds the level adopted by the National Institute of Standards Technology as part of the Federal Information Processing Standards: and
    2. Renders the data indecipherable without the associated cryptographic key to decipher the data;
  4. “Law enforcement agency” means any lawfully organized investigative agency, sheriff’s office, police unit, or police force of federal, state, county, urban-county government, charter county, city, consolidated local government, unified local government, or any combination of these entities, responsible for the detection of crime and the enforcement of the general criminal federal and state laws;
  5. “Nonaffiliated third party” means any person that:
    1. Has a contract or agreement with an agency; and
    2. Receives personal information from the agency pursuant to the contract or agreement;
  6. “Personal information” means an individual’s first name or first initial and last name; personal mark; or unique biometric or genetic print or image, in combination with one (1) or more of the following data elements:
    1. An account number, credit card number, or debit card number that, in combination with any required security code, access code, or password, would permit access to an account;
    2. A Social Security number;
    3. A taxpayer identification number that incorporates a Social Security number;
    4. A driver’s license number, state identification card number, or other individual identification number issued by any agency;
    5. A passport number or other identification number issued by the United States government; or
    6. Individually identifiable health information as defined in 45 C.F.R. sec. 160.103, except for education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. sec. 1232 g;
    1. “Public record or record,” as established by KRS 171.410 , means all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings, and other documentary materials, regardless of physical form or characteristics, which are prepared, owned, used, in the possession of, or retained by a public agency. (7) (a) “Public record or record,” as established by KRS 171.410 , means all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings, and other documentary materials, regardless of physical form or characteristics, which are prepared, owned, used, in the possession of, or retained by a public agency.
    2. “Public record” does not include any records owned by a private person or corporation that are not related to functions, activities, programs, or operations funded by state or local authority;
  7. “Reasonable security and breach investigation procedures and practices” means data security procedures and practices developed in good faith and set forth in a written security information policy; and
    1. “Security breach” means: (9) (a) “Security breach” means:
      1. The unauthorized acquisition, distribution, disclosure, destruction, manipulation, or release of unencrypted or unredacted records or data that compromises or the agency or nonaffiliated third party reasonably believes may compromise the security, confidentiality, or integrity of personal information and result in the likelihood of harm to one (1) or more individuals; or
      2. The unauthorized acquisition, distribution, disclosure, destruction, manipulation, or release of encrypted records or data containing personal information along with the confidential process or key to unencrypt the records or data that compromises or the agency or nonaffiliated third party reasonably believes may compromise the security, confidentiality, or integrity of personal information and result in the likelihood of harm to one (1) or more individuals.
    2. “Security breach” does not include the good-faith acquisition of personal information by an employee, agent, or nonaffiliated third party of the agency for the purposes of the agency if the personal information is used for a purpose related to the agency and is not subject to unauthorized disclosure.

History. Enact. Acts 2014, ch. 74, § 1, effective January 1, 2015.

Legislative Research Commission Note.

(1/1/2015). 2014 Ky. Acts ch. 74, sec. 10 provided that “the provisions of this Act shall not impact the provisions of KRS 61.870 to 61.884 .” That proviso applies to this statute as created in Section 1 of that Act.

61.932. Personal information security and breach investigation procedures and practices for certain public agencies and nonaffiliated third parties.

    1. An agency or nonaffiliated third party that maintains or otherwise possesses personal information, regardless of the form in which the personal information is maintained, shall implement, maintain, and update security procedures and practices, including taking any appropriate corrective action, to protect and safeguard against security breaches. (1) (a) An agency or nonaffiliated third party that maintains or otherwise possesses personal information, regardless of the form in which the personal information is maintained, shall implement, maintain, and update security procedures and practices, including taking any appropriate corrective action, to protect and safeguard against security breaches.
    2. Reasonable security and breach investigation procedures and practices established and implemented by organizational units of the executive branch of state government shall be in accordance with relevant enterprise policies established by the Commonwealth Office of Technology. Reasonable security and breach investigation procedures and practices established and implemented by units of government listed under KRS 61.931 (1)(b) and (c) that are not organizational units of the executive branch of state government shall be in accordance with policies established by the Department for Local Government. The Department for Local Government shall consult with public entities as defined in KRS 65.310 in the development of policies establishing reasonable security and breach investigation procedures and practices for units of local government pursuant to this subsection. Reasonable security and breach investigation procedures and practices established and implemented by public school districts listed under KRS 61.931 (1)(d) shall be in accordance with administrative regulations promulgated by the Kentucky Board of Education. Reasonable security and breach investigation procedures and practices established and implemented by educational entities listed under KRS 61.931(1)(e) shall be in accordance with policies established by the Council on Postsecondary Education. The Commonwealth Office of Technology shall, upon request of an agency, make available technical assistance for the establishment and implementation of reasonable security and breach investigation procedures and practices.
      1. If an agency is subject to any additional requirements under the Kentucky Revised Statutes or under federal law, protocols or agreements relating to the protection and privacy of personal information, the agency shall comply with these additional requirements, in addition to the requirements of KRS 61.931 to 61.934 . (c) 1. If an agency is subject to any additional requirements under the Kentucky Revised Statutes or under federal law, protocols or agreements relating to the protection and privacy of personal information, the agency shall comply with these additional requirements, in addition to the requirements of KRS 61.931 to 61.934 .
      2. If a nonaffiliated third party is required by federal law or regulation to conduct security breach investigations or to make notifications of security breaches, or both, as a result of the nonaffiliated third party’s unauthorized disclosure of one (1) or more data elements of personal information that is the same as one (1) or more of the data elements of personal information listed in KRS 61.931(6)(a) to (f), the nonaffiliated third party shall meet the requirements of KRS 61.931 to 61.934 by providing to the agency a copy of any and all reports and investigations relating to such security breach investigations or notifications that are required to be made by federal law or regulations. This subparagraph shall not apply if the security breach includes the unauthorized disclosure of data elements that are not covered by federal law or regulation but are listed in KRS 61.931(6)(a) to (f).
    1. For agreements executed or amended on or after January 1, 2015, any agency that contracts with a nonaffiliated third party and that discloses personal information to the nonaffiliated third party shall require as part of that agreement that the nonaffiliated third party implement, maintain, and update security and breach investigation procedures that are appropriate to the nature of the information disclosed, that are at least as stringent as the security and breach investigation procedures and practices referenced in subsection (1)(b) of this section, and that are reasonably designed to protect the personal information from unauthorized access, use, modification, disclosure, manipulation, or destruction. (2) (a) For agreements executed or amended on or after January 1, 2015, any agency that contracts with a nonaffiliated third party and that discloses personal information to the nonaffiliated third party shall require as part of that agreement that the nonaffiliated third party implement, maintain, and update security and breach investigation procedures that are appropriate to the nature of the information disclosed, that are at least as stringent as the security and breach investigation procedures and practices referenced in subsection (1)(b) of this section, and that are reasonably designed to protect the personal information from unauthorized access, use, modification, disclosure, manipulation, or destruction.
      1. A nonaffiliated third party that is provided access to personal information by an agency, or that collects and maintains personal information on behalf of an agency shall notify the agency in the most expedient time possible and without unreasonable delay but within seventy-two (72) hours of determination of a security breach relating to the personal information in the possession of the nonaffiliated third party. The notice to the agency shall include all information the nonaffiliated third party has with regard to the security breach at the time of notification. Agreements referenced in paragraph (a) of this subsection shall specify how the cost of the notification and investigation requirements under KRS 61.933 are to be apportioned when a security breach is suffered by the agency or nonaffiliated third party. (b) 1. A nonaffiliated third party that is provided access to personal information by an agency, or that collects and maintains personal information on behalf of an agency shall notify the agency in the most expedient time possible and without unreasonable delay but within seventy-two (72) hours of determination of a security breach relating to the personal information in the possession of the nonaffiliated third party. The notice to the agency shall include all information the nonaffiliated third party has with regard to the security breach at the time of notification. Agreements referenced in paragraph (a) of this subsection shall specify how the cost of the notification and investigation requirements under KRS 61.933 are to be apportioned when a security breach is suffered by the agency or nonaffiliated third party.
      2. The notice required by subparagraph 1. of this paragraph may be delayed if a law enforcement agency notifies the nonaffiliated third party that notification will impede a criminal investigation or jeopardize homeland or national security. If notice is delayed pursuant to this subparagraph, notification shall be given as soon as reasonably feasible by the nonaffiliated third party to the agency with which the nonaffiliated third party is contracting. The agency shall then record the notification in writing on a form developed by the Commonwealth Office of Technology that the notification will not impede a criminal investigation and will not jeopardize homeland or national security. The Commonwealth Office of Technology shall promulgate administrative regulations under KRS 61.931 to 61.934 regarding the content of the form.

History. Enact. Acts 2014, ch. 74, § 2, effective January 1, 2015.

Legislative Research Commission Note.

(1/1/2015). 2014 Ky. Acts ch. 74, sec. 10 provided that “the provisions of this Act shall not impact the provisions of KRS 61.870 to 61.884 .” That proviso applies to this statute as created in Section 1 of that Act.

61.933. Notification of personal information security breach — Investigation — Notice to affected individuals of result of investigation — Personal information not subject to requirements — Injunctive relief by Attorney General.

    1. Any agency that collects, maintains, or stores personal information that determines or is notified of a security breach relating to personal information collected, maintained, or stored by the agency or by a nonaffiliated third party on behalf of the agency shall as soon as possible, but within seventy-two (72) hours of determination or notification of the security breach: (1) (a) Any agency that collects, maintains, or stores personal information that determines or is notified of a security breach relating to personal information collected, maintained, or stored by the agency or by a nonaffiliated third party on behalf of the agency shall as soon as possible, but within seventy-two (72) hours of determination or notification of the security breach:
      1. Notify the commissioner of the Kentucky State Police, the Auditor of Public Accounts, and the Attorney General. In addition, an agency shall notify the secretary of the Finance and Administration Cabinet or his or her designee if an agency is an organizational unit of the executive branch of state government; notify the commissioner of the Department for Local Government if the agency is a unit of government listed in KRS 61.931 (1)(b) or (c) that is not an organizational unit of the executive branch of state government; notify the commissioner of the Kentucky Department of Education if the agency is a public school district listed in KRS 61.931 (1)(d); and notify the president of the Council on Postsecondary Education if the agency is an educational entity listed under KRS 61.931(1)(e). Notification shall be in writing on a form developed by the Commonwealth Office of Technology. The Commonwealth Office of Technology shall promulgate administrative regulations KRS 61.931 to 61.934 regarding the contents of the form; and
      2. Begin conducting a reasonable and prompt investigation in accordance with the security and breach investigation procedures and practices referenced in KRS 61.932(1)(b) to determine whether the security breach has resulted in or is likely to result in the misuse of the personal information.
    2. Upon conclusion of the agency’s investigation:
      1. If the agency determined that a security breach has occurred and that the misuse of personal information has occurred or is reasonably likely to occur, the agency shall:
        1. Within forty-eight (48) hours of completion of the investigation, notify in writing all officers listed in paragraph (a)1. of this subsection, and the commissioner of the Department for Libraries and Archives, unless the provisions of subsection (3) of this section apply;
        2. Within thirty-five (35) days of providing the notifications required by subdivision a. of this subparagraph, notify all individuals impacted by the security breach as provided in subsection (2) of this section, unless the provisions of subsection (3) of this section apply; and
        3. If the number of individuals to be notified exceeds one thousand (1,000), the agency shall notify, at least seven (7) days prior to providing notice to individuals under subdivision b. of this subparagraph, the Commonwealth Office of Technology if the agency is an organizational unit of the executive branch of state government, the Department for Local Government if the agency is a unit of government listed under KRS 61.931(1)(b) or (c) that is not an organizational unit of the executive branch of state government, the Kentucky Department of Education if the agency is a public school district listed under KRS 61.931(1)(d), or the Council on Postsecondary Education if the agency is an educational entity listed under KRS 61.931(1)(e); and notify all consumer credit reporting agencies included on the list maintained by the Office of the Attorney General that compile and maintain files on consumers on a nationwide basis, as defined in 15 U.S.C. sec. 1681 a(p), of the timing, distribution, and content of the notice; or
      2. If the agency determines that the misuse of personal information has not occurred and is not likely to occur, the agency is not required to give notice, but shall maintain records that reflect the basis for its decision for a retention period set by the State Archives and Records Commission as established by KRS 171.420 . The agency shall notify the appropriate entities listed in paragraph (a)1. of this subsection that the misuse of personal information has not occurred.
    1. The provisions of this subsection establish the requirements for providing notice to individuals under subsection (1)(b)1.b. of this section. Notice shall be provided as follows: (2) (a) The provisions of this subsection establish the requirements for providing notice to individuals under subsection (1)(b)1.b. of this section. Notice shall be provided as follows:
      1. Conspicuous posting of the notice on the Web site of the agency;
      2. Notification to regional or local media if the security breach is localized, and also to major statewide media if the security breach is widespread, including broadcast media, such as radio and television; and
      3. Personal communication to individuals whose data has been breached using the method listed in subdivision a., b., or c. of this subparagraph that the agency believes is most likely to result in actual notification to those individuals, if the agency has the information available:
        1. In writing, sent to the most recent address for the individual as reflected in the records of the agency;
        2. By electronic mail, sent to the most recent electronic mail address for the individual as reflected in the records of the agency, unless the individual has communicated to the agency in writing that they do not want email notification; or
        3. By telephone, to the most recent telephone number for the individual as reflected in the records of the agency.
    2. The notice shall be clear and conspicuous, and shall include:
      1. To the extent possible, a description of the categories of information that were subject to the security breach, including the elements of personal information that were or were believed to be acquired;
      2. Contact information for the notifying agency, including the address, telephone number, and toll-free number if a toll-free number is maintained;
      3. A description of the general acts of the agency, excluding disclosure of defenses used for the protection of information, to protect the personal information from further security breach; and
      4. The toll-free numbers, addresses, and Web site addresses, along with a statement that the individual can obtain information from the following sources about steps the individual may take to avoid identity theft, for:
        1. The major consumer credit reporting agencies;
        2. The Federal Trade Commission; and
        3. The Office of the Kentucky Attorney General.
    3. The agency providing notice pursuant to this subsection shall cooperate with any investigation conducted by the agencies notified under subsection (1)(a) of this section and with reasonable requests from the Office of Consumer Protection of the Office of the Attorney General, consumer credit reporting agencies, and recipients of the notice, to verify the authenticity of the notice.
    1. The notices required by subsection (1) of this section shall not be made if, after consultation with a law enforcement agency, the agency receives a written request from a law enforcement agency for a delay in notification because the notice may impede a criminal investigation. The written request may apply to some or all of the required notifications, as specified in the written request from the law enforcement agency. Upon written notification from the law enforcement agency that the criminal investigation has been completed, or that the sending of the required notifications will no longer impede a criminal investigation, the agency shall send the notices required by subsection (1)(b)1. of this section. (3) (a) The notices required by subsection (1) of this section shall not be made if, after consultation with a law enforcement agency, the agency receives a written request from a law enforcement agency for a delay in notification because the notice may impede a criminal investigation. The written request may apply to some or all of the required notifications, as specified in the written request from the law enforcement agency. Upon written notification from the law enforcement agency that the criminal investigation has been completed, or that the sending of the required notifications will no longer impede a criminal investigation, the agency shall send the notices required by subsection (1)(b)1. of this section.
    2. The notice required by subsection (1)(b)1.b. of this section may be delayed if the agency determines that measures necessary to restore the reasonable integrity of the data system cannot be implemented within the timeframe established by subsection (1)(b)1.b. of this section, and the delay is approved in writing by the Office of the Attorney General. If notice is delayed pursuant to this subsection, notice shall be made immediately after actions necessary to restore the integrity of the data system have been completed.
  1. Any waiver of the provisions of this section is contrary to public policy and shall be void and unenforceable.
  2. This section shall not apply to:
    1. Personal information that has been redacted;
    2. Personal information disclosed to a federal, state, or local government entity, including a law enforcement agency or court, or their agents, assigns, employees, or subcontractors, to investigate or conduct criminal investigations and arrests or delinquent tax assessments, or to perform any other statutory duties and responsibilities;
    3. Personal information that is publicly and lawfully made available to the general public from federal, state, or local government records;
    4. Personal information that an individual has consented to have publicly disseminated or listed; or
    5. Any document recorded in the records of either a county clerk or circuit clerk of a county, or in the records of a United States District Court.
  3. The Office of the Attorney General may bring an action in the Franklin Circuit Court against an agency or a nonaffiliated third party that is not an agency, or both, for injunctive relief, and for other legal remedies against a nonaffiliated third party that is not an agency to enforce the provisions of KRS 61.931 to 61.934 . Nothing in KRS 61.931 to 61.934 shall create a private right of action.

History. Enact. Acts 2014, ch. 74, § 3, effective January 1, 2015.

Legislative Research Commission Note.

(1/1/2015). 2014 Ky. Acts ch. 74, sec. 10 provided that “the provisions of this Act shall not impact the provisions of KRS 61.870 to 61.884 .” That proviso applies to this statute as created in Section 1 of that Act.

(1/1/2015). In codification, the Reviser of Statutes has corrected a manifest clerical or typographical error in subsection (1)(a)1. of this statute by changing a reference to the educational entity agencies that must notify the president of the Council on Postsecondary Education of a security breach that are listed in “subsection (1)(c) of Section 1 of this Act” (KRS 61.931 ) to “subsection (1)(e) of Section 1 of this Act,” making the reference once codified read “KRS 61.931 (1)(e).”

61.934. Personal information security and breach investigation procedures and practices for legislative and judicial branches — Personal information disposal or destruction procedures.

  1. The legislative and judicial branches of state government shall implement, maintain, and update reasonable security and breach investigation procedures and practices, including taking any appropriate corrective action, to protect and safeguard against security breaches consistent with KRS 61.931 to 61.934 .
  2. The Department for Libraries and Archives shall establish procedures for the appropriate disposal or destruction of records that include personal information pursuant to the authority granted the Department for Libraries and Archives under KRS 171.450 .

History. Enact. Acts 2014, ch. 74, § 4, effective January 1, 2015.

Legislative Research Commission Note.

(1/1/2015). 2014 Ky. Acts ch. 74, sec. 10 provided that “the provisions of this Act shall not impact the provisions of KRS 61.870 to 61.884 .” That proviso applies to this statute as created in Section 4 of that Act.

Chief Information Officer

61.935. Legislative findings. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 353, § 1, effective July 15, 1998) was repealed, reenacted and amended as KRS 11.501 by Acts 2000, chs. 506, § 1, and 536, § 1, effective July 14, 2000.

61.936. Chief information officer. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 353, § 2, effective July 15, 1998) was repealed, reenacted and amended as KRS 11.511 by Acts 2000, chs. 506, § 6, and 536, § 6, effective July 14, 2000.

61.937. Authority to enter into memoranda of agreement and contracts. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 353, § 3, effective July 15, 1998) was repealed by Acts 2000, ch. 506, § 25 and ch. 536, § 37, effective July 14, 2000. For present law, see KRS 11.501 et seq.

61.938. Office of the Chief Information Officer — Duties — Authority for administrative regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 353, § 4, effective July 15, 1998) was repealed by Acts 2000, ch. 506, § 25 and ch. 536, § 37, effective July 14, 2000. For present law, see KRS 11.501 et seq.

Information Resources

61.940. Legislative declarations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 375, § 1, effective July 13, 1984; 1994, ch. 401, § 1, effective July 15, 1994) was repealed by Acts 2000, ch. 506, § 25 and ch. 536, § 37, effective July 14, 2000. For present law, see KRS 11.501 et seq.

61.942. Definitions for KRS 61.940 to 61.953. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 401, § 2, effective July 15, 1994) was repealed by Acts 2000, ch. 506, § 25 and ch. 536, § 37, effective July 14, 2000. For present law, see KRS 11.501 et seq.

61.945. Kentucky Information Resources Management Commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 375, § 2, effective July 13, 1984; 1986, ch. 318, § 1, effective July 15, 1986; 1988, ch. 37, § 1, effective July 15, 1988; 1990, ch. 36, § 1, effective July 13, 1990; 1994, ch. 401, § 3, effective July 15, 1994; 1997 (1st Ex. Sess.), ch. 1, § 38, effective May 30, 1997; 1998, ch. 353, § 9, effective July 15, 1998; 1998, ch. 426, § 86, effective July 15, 1998) was repealed by Acts 2000, ch. 506, § 25 and ch. 536, § 37, effective July 14, 2000. For present law, see KRS 11.501 et seq.

61.948. Powers of commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 401, § 5, effective July 15, 1994) was repealed by Acts 2000, ch. 506, § 25 and ch. 536, § 37, effective July 14, 2000. For present law, see KRS 11.501 et seq.

61.950. Meetings — Roles and duties — Administrative Regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 375, § 3, effective July 13, 1984; 1986, ch. 318, § 2, effective July 15, 1986; 1990, ch. 36, § 2, effective July 13, 1990; 1994, ch. 401, § 4, effective July 15, 1994; 1998, ch. 154, § 69, effective July 15, 1998; 1998, ch. 363, § 4, effective July 15, 1998) was repealed by Acts 2000, ch. 506, § 25 and ch. 536, § 37, effective July 14, 2000. For present law, see KRS 11.501 et seq.

61.951. Office for the Kentucky Information Resources Management Commission — Executive director. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 401, § 6, effective July 15, 1994) was repealed by Acts 2000, ch. 506, § 25 and ch. 536, § 37, effective July 14, 2000. For present law, see KRS 11.501 et seq.

61.953. Contents of five-year statewide information resources management plan. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 401, § 7, effective July 15, 1994) was repealed by Acts 2000, ch. 506, § 25 and ch. 536, § 37, effective July 14, 2000. For present law, see KRS 11.501 et seq.

61.954. Construction of KRS 61.940 to 61.953 with respect to judicial and legislative branches. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 401, § 8, effective July 15, 1994) was repealed by Acts 2000, ch. 506, § 25 and ch. 536, § 37, effective July 14, 2000. For present law, see KRS 11.501 et seq.

61.955. Communications Advisory Council. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 420, § 1, effective July 13, 1990; 1992, ch. 27, § 4, effective March 2, 1992; 1992, ch. 97, § 1, effective July 14, 1992; 1997 (1st Ex. Sess.), ch. 1, § 39, effective May 30, 1997) was repealed by Acts 2000, ch. 506, § 25 and ch. 536, § 37, effective July 14, 2000. For present law, see KRS 11.501 et seq.

61.957. Chairman — Duties of council. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 420, § 2, effective July 13, 1990) was repealed by Acts 2001, ch. 59, § 3, effective June 21, 2001.

61.958. Geographic Information Advisory Council — Purpose — Members — Conflicts of interest. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 327, § 4, effective July 15, 1994; 1997 (1st Ex. Sess.), ch. 1, § 40, effective May 30, 1997; 1998, ch. 48, § 4, effective July 15, 1998; 1998, ch. 69, § 23, effective July 15, 1998; 1998, ch. 426, § 87, effective July 15, 1998) was repealed, reenacted and amended as KRS 11.515 by Acts 2000, ch. 506, § 8, and ch. 536, § 8, effective July 14, 2000.

61.959. Duties of Geographic Information Advisory Council. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 327, § 5, effective July 15, 1994) was repealed, reenacted and amended as KRS 11.517 by Acts 2000, ch. 506, § 9, and ch. 536, § 9, effective July 14, 2000.

Public Access to Governmental Databases

61.960. Definitions for KRS 61.965 to 61.975 and 61.992. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 492, § 1, effective July 13, 1990) was repealed by Acts 1994, ch. 262, § 9, effective July 15, 1994. For present law see KRS 61.870 to 61.880 .

61.965. Application of KRS 61.965 to 61.975. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 492, § 2, effective July 13, 1990) was repealed by Acts 1994, ch. 262, § 9, effective July 15, 1994. For present law see KRS 61.870 to 61.880 .

61.970. Use of database or geographic information system. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 492, § 3, effective July 13, 1990) was repealed by Acts 1994, ch. 262, § 9, effective July 15, 1994. For present law see KRS 61.870 to 61.880 .

61.975. Public records available for inspection — Fees for copying or contracts for electronic use. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 492, § 4, effective July 13, 1990) was repealed by Acts 1994, ch. 262, § 9, effective July 15, 1994. For present law see 61.870 to 61.880 .

Information Access Assistive Technology

61.980. Definitions for KRS 61.980 to 61.988.

As used in KRS 61.980 to 61.988 :

  1. “Access” means the ability to receive, use, and manipulate data and operate controls included in information technology to be in compliance with nationally accepted accessibility and usability standards such as those established by Section 255 of the Federal Telecommunications Act of 1996 and Section 508 of the Federal Workforce Investment Act of 1998;
  2. “Individual with a disability” means an individual who is considered to have a disability for the purpose of any federal or state law, and who is or would be able by information-access-assistive technology to maintain a level of functioning or to achieve a greater level of functioning in any major life activity;
  3. “Blind or visually impaired individual” means an individual who:
    1. Has a visual acuity of 20/200 or less in the better eye with correcting lenses or has a limited field of vision so that the widest diameter of the visual field subtends an angle no greater than twenty (20) degrees;
    2. Has a medically indicated expectation of visual deterioration; or
    3. Has a medically diagnosed limitation in visual functioning that restricts the individual’s ability to read and write standard print at levels expected of individuals of comparable ability;
  4. “Covered entity” means the state or any state-assisted organization;
  5. “Deaf” or “hard of hearing” means persons who have hearing disorders and includes people who cannot hear and understand speech clearly through the ear alone, with or without hearing aids;
  6. “Information technology” means all electronic information processing hardware and software, including but not limited to telecommunications and any electronic information equipment or interconnected system that is used in the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of audio, video, graphics, and text;
  7. “Assistive technology” means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, customized, fabricated, or is otherwise an alternative means that is used to increase, maintain, or improve functional capabilities of individuals with disabilities;
  8. “Nonvisual” means output methods not requiring sight, including but not limited to synthesized speech and Braille;
  9. “State” means the Commonwealth of Kentucky or any of its departments, agencies, public bodies, or other instrumentalities;
  10. “State-assisted organization” means a college, university, nonprofit organization, person, political subdivision, school system, or other entity supported in whole or in part by state funds;
  11. “Telecommunications” means the transmission of information, images, pictures, voice, or data by radio, video, or other electronic or impulse means; and
  12. “Undue burden” means significant difficulty or expense, including but not limited to a difficulty or expense associated with technical feasibility.

History. Enact. Acts 2000, ch. 536, § 32, effective July 14, 2000.

61.982. Access requirements for state information technology equipment and software.

The head of each covered entity shall ensure that information technology equipment and software used by the entity’s employees, program participants, and the general public:

  1. Provide individuals with disabilities, including blind or visually impaired, or deaf or hard of hearing, with access, including but not limited to interactive use of equipment and services, that is equivalent to the access provided individuals who are not disabled, blind or visually impaired, or deaf or hard of hearing;
  2. Are designed to present information, including but not limited to prompts used for interactive communication, in formats intended for both visual and nonvisual use; and
  3. Have been purchased under a contract that includes the technology access clause required by KRS 61.984 .

History. Enact. Acts 2000, ch. 536, § 33, effective July 14, 2000.

61.984. Procurement of information technology — Technology access contract clause — Alternative and nonvisual access standards.

The Finance and Administration Cabinet shall develop a technology access clause which shall be in compliance with Section 255 of the Federal Telecommunication Act of 1996 and with Section 508 of the Federal Workforce Investment Act of 1998 and shall establish alternative, including nonvisual, access standards for use in the procurement of information technology by covered entities in accordance with the following requirements:

  1. The technology access clause shall require compliance with the standards established under this section. Except as otherwise provided in KRS 61.986 , the technology access clause shall be included in all contracts entered into after July 14, 2000, for the procurement of information technology by, or for the use of, covered entities.
  2. The alternative and nonvisual access standards shall include the specifications necessary to meet the requirements of KRS 61.982 . The standards shall include the following minimum specifications:
    1. Effective, interactive control and use of technology, including the operating system, applications programs, and format of the data presented shall be readily achievable by alternative and nonvisual means;
    2. The technology equipped for alternative and nonvisual access shall be compatible with information technology used by other individuals with whom the person with a disability, including the blind or visually impaired individual, must interact;
    3. Alternative and nonvisual access technology shall be integrated into networks used to share communications among employees, program participants, and the public; and
    4. The technology for alternative or nonvisual access shall have the capability of providing equivalent access by nonvisual or other alternative means to telecommunications or other interconnected network services used by persons who are not disabled.

History. Enact. Acts 2000, ch. 536, § 34, effective July 14, 2000.

61.986. Exclusion of technology access clause — Conditions — Exempting from access requirements — Compliance of existing equipment or software.

  1. For the purpose of procurement, the head of any covered entity may, with respect to access software or peripheral devices and other assistive technology pertinent to individuals with disabilities access to information technology obtained following July 14, 2000, approve the exclusion of the technology access clause if the cost of the software or peripheral devices or other assistive technology for the covered entity presents an undue burden.
  2. The head of any covered entity shall not approve the exclusion of the technology access clause from any contract with respect to:
    1. The compatibility of standard operating systems and software with nonvisual access or other assistive software, peripheral devices, or any assistive technology; or
    2. The initial design, development, and installation of information systems, including the design and procurement of interactive equipment and software.
  3. Nothing in this section shall require the installation of software or peripheral devices for nonvisual or alternative access if the information technology is being used by individuals who are not blind, visually impaired, or otherwise disabled. However, the applications programs and underlying operating system, including the format of the data, used for the manipulation and presentation of information shall permit the installation and effective use of nonvisual access software and peripheral devices.
  4. Information technology purchased prior to July 14, 2000, shall be brought into compliance with KRS 61.980 to 61.988 when the covered entity upgrades or replaces the existing equipment or software. Nothing in KRS 61.980 to 61.988 shall be construed or interpreted to require the replacement or upgrade of existing equipment or software.

History. Enact. Acts 2000, ch. 536, § 35, effective July 14, 2000.

61.988. Action for injunctive relief for injury due to violation of KRS 61.980 to 61.988.

Any person injured by a violation of KRS 61.980 to 61.988 may bring an action for injunctive relief in the Circuit Court of the county in which the person resides or in which the covered entity is located. An action for injunctive relief shall be commenced within four (4) years after the cause of action accrues. A cause of action for a continuing violation of KRS 61.980 to 61.988 shall accrue at the time of the latest occurrence of the violation.

History. Enact. Acts 2000, ch. 536, § 36, effective July 14, 2000.

Penalties

61.990. Penalties.

  1. Any person who exercises any of the functions of a nonelective peace officer or deputy peace officer in violation of the provisions of KRS 61.300 shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500), or imprisoned in the county jail for not more than six (6) months, or both.
  2. Any person who violates any of the provisions of KRS 61.360 shall be fined not less than twenty-five dollars ($25) nor more than five hundred dollars ($500) or be imprisoned not less than ten (10) days nor more than sixty (60) days, or both.
  3. Any person who willfully violates the provisions of KRS 61.102(1) shall be guilty of a Class A misdemeanor.
  4. A court, in rendering a judgment in an action filed under KRS 61.102 and 61.103 , shall order, as it considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, exemplary or punitive damages, or any combination thereof. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees.

History. Enact. Acts 1960, ch. 181, § 10; 1978, ch. 383, § 2, effective June 17, 1978; 1980, ch. 24, § 1(1), effective July 15, 1980; 1980, ch. 188, § 22, effective July 15, 1980; 1984, ch. 111, § 43, effective July 13, 1984; 1986, ch. 301, § 4, effective July 15, 1986.

Legislative Research Commission Note.

KRS 61.990(2) was formerly a part of KRS 61.300 as amended by Acts 1980, ch. 24, § 1, and was renumbered by the Reviser of Statutes in 1980.

NOTES TO DECISIONS

1.Attorneys’ Fees.

In a suit against a school board under the Whistleblower Act, an award of over $500,000 in fees and costs under KRS 61.990(4) was unreasonable. All but one claim against the board had been disposed of through summary judgment in its favor, and the trial court had not explained its reasons for the award. Behanan v. Cobb, 2007 Ky. App. LEXIS 37 (Ky. Ct. App. Feb. 2, 2007, review denied, ordered not published, 2007 Ky. LEXIS 254 (Ky. Oct. 24, 2007), sub. op., 2007 Ky. App. Unpub. LEXIS 351 (Ky. Ct. App. Feb. 2, 2007).

2.Compensatory Damages.

Employee’s whistle-blower claim was not barred by the statute of limitations under KRS 61.103(2) because the limitation applied only to claims for punitive damages and injunctive relief, not to claims for compensatory damages. Claims for compensatory damages and other relief, as made available through KRS 61.990(4), were not subject to this limitation. Consol. Infrastructure Mgmt. Auth., Inc. v. Allen, 269 S.W.3d 852, 2008 Ky. LEXIS 295 ( Ky. 2008 ).

Circuit court erred in awarding an employee damages for mental anguish and interest because the university failed to preserve the issue of whether the trial court erred by not performing damage calculations in the judgment, the employee did not direct the appellate court to authority indicating that the university could be liable for post-judgment interest, damages for mental anguish and interest on the judgment were not among the remedies identified as recoverable in an action brought pursuant to the Whistleblower Act. Univ. of Louisville v. Harper, 576 S.W.3d 595, 2019 Ky. App. LEXIS 62 (Ky. Ct. App. 2019).

Trial court properly denied the employee’s claim for front damages because the judgment clearly reflected the trial court’s consideration that the employee’s attorneys were not totally successful in the litigation and the employee could not search for remedies where the Whistleblower statute did not mention front pay as an available remedy. Univ. of Louisville v. Harper, 576 S.W.3d 595, 2019 Ky. App. LEXIS 62 (Ky. Ct. App. 2019).

3.Timeliness.

Trial court did not retain jurisdiction to award costs or attorney’s fees under KRS 61.990(4) when the motion was filed more than 30 days after entry of the final judgment. Furthermore, the judgment for the employee, which the employee prepared and tendered to the trial court upon the jury’s favorable verdict, made no mention of attorney’s fees or costs and contained the finality language contemplated by CR 54.02, and the employee neither filed a CR 59.05 motion to alter, amend or vacate, nor appealed the judgment within 30 days as required by CR 73.02. Harris v. Camp Taylor Fire Prot. Dist., 303 S.W.3d 479, 2009 Ky. App. LEXIS 80 (Ky. Ct. App. 2009).

Opinions of Attorney General.

There are two ways in which to enforce the Open Meetings Law: (1) by a petition of a citizen to the Circuit Court and (2) by the penal prosecution in the district court. OAG 78-175 .

Research References and Practice Aids

Kentucky Bench & Bar.

Simon, Blowing the Whistle in the Commonwealth, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 28.

61.991. Penalties.

  1. Any person who knowingly attends a meeting of any public agency covered by KRS 61.805 to 61.850 of which he is a member, not held in accordance with the provisions of KRS 61.805 to 61.850 shall be punished by a fine of not more than one hundred dollars ($100).
    1. Any official of a public agency who willfully conceals or destroys any record with the intent to violate KRS 61.870 to 61.884 shall be guilty of a Class A misdemeanor for each separate violation. (2) (a) Any official of a public agency who willfully conceals or destroys any record with the intent to violate KRS 61.870 to 61.884 shall be guilty of a Class A misdemeanor for each separate violation.
    2. Any official of a public agency who fails to produce any record after entry of final judgment directing that such records shall be produced shall be guilty of contempt.
  2. Any person who violates any of the provisions of KRS 61.900 to 61.930 shall be fined not more than two hundred fifty dollars ($250) or imprisoned not more than ninety (90) days, or both.

History. Enact. Acts 1974, ch. 377, § 10; 1976, ch. 273, § 9; 1976, ch. 178, § 17, effective January 1, 1977.

Opinions of Attorney General.

The penalty provided in this section for violations of the Open Meetings Law is prosecuted in the same manner as other misdemeanors. OAG 76-4 .

Before a misdemeanor is committed there must be an intent to subvert and violate the Open Records Law. OAG 79-128 .

Responses that certain requested items do not exist or cannot be located are proper responses when they represent the true state of events. OAG 90-66 .

Subsection (2)(a) of this section establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act, but there was no proof, in the instant appeal, that the disputed documents were concealed or destroyed for this reason. OAG 91-220 .

The Attorney General is not authorized to render a decision on questions arising under KRS 61.991(2)(a) or KRS 519.060 , or to conduct an investigation into allegations of these offenses in an open records appeal. OAG 00-ORD-150.

61.992. Penalties for KRS 61.960 to 61.975. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 492, § 5, effective July 13, 1990) was repealed by Acts 1994, ch. 262, § 9, effective July 15, 1994.

CHAPTER 62 Oaths and Bonds

Oaths

62.010. Oath of office — When to be taken.

  1. No officer shall enter upon the duties of his office until he takes the oath required of him by law.
  2. Each person elected to an office shall take the oath of office on or before the day the term of office to which he has been elected begins, except in years where the first Monday in January falls upon January 1. In years where the first Monday falls upon January 1, no penalty shall be applied to any officer that fails to take the oath of office, so long as the oath of office is taken within thirty (30) days of the first Monday of January.
  3. Each person appointed to an office shall take the oath of office within thirty (30) days after he receives notice of his appointment.

History. 3753, 3755; 2007, ch. 56, § 1, effective March 21, 2007.

Legislative Research Commission Note.

(3/21/2007). 2007 Ky. Acts ch. 56, sec. 4, provides that the amendments to KRS 62.010 in 2007 Ky. Acts ch. 56, sec. 1 “shall apply retroactively to any elected officer required to take the oath of office and execute bond by the first Monday of year 2007.”

NOTES TO DECISIONS

1.Application.

This section applies only to offices which are to be filled for the full constitutional or statutory terms. Jones v. Sizemore, 117 Ky. 810 , 79 S.W. 229, 25 Ky. L. Rptr. 1957 , 1904 Ky. LEXIS 248 ( Ky. 1904 ).

This section applies only to officers required to qualify both by giving bond and taking oath. Lewin v. Ft. Mitchell, 148 Ky. 816 , 147 S.W. 922, 1912 Ky. LEXIS 550 ( Ky. 1912 ).

This section is to be read into and as a part of every act creating an office and an officer, unless the act provides otherwise. Sewell v. Bennett, 187 Ky. 626 , 220 S.W. 517, 1920 Ky. LEXIS 179 ( Ky. 1920 ).

2.Elected Officers.

One elected to fill a vacancy may qualify and begin his duties at once. Jones v. Sizemore, 117 Ky. 810 , 79 S.W. 229, 25 Ky. L. Rptr. 1957 , 1904 Ky. LEXIS 248 ( Ky. 1904 ).

One elected to fill a vacancy must qualify within a reasonable time after he has received the certificate of election. Brown v. Rose, 233 Ky. 549 , 26 S.W.2d 503, 1930 Ky. LEXIS 611 ( Ky. 1930 ).

Thirty-three days following receipt of certificate of election to fill a vacancy is an unreasonable delay in qualification, and a vacancy may be declared without notice. Brown v. Rose, 233 Ky. 549 , 26 S.W.2d 503, 1930 Ky. LEXIS 611 ( Ky. 1930 ).

The oath of office is the only oath required of commissioners of second-class cities, and they are not required to take another oath before commencing hearing for removal of manager. Rawlings v. Newport, 275 Ky. 183 , 121 S.W.2d 10, 1938 Ky. LEXIS 397 ( Ky. 1938 ).

The innocent and inadvertent omission of school board members, who had taken the constitutional oath (Const., § 228) referred to in this section, to take a further oath prescribed by KRS 160.170 until five (5) months later when they discovered the omission at which time they executed the oath in writing and caused it to be filed in the records of the school board did not forfeit their office or authorize their removal particularly where the statute creating KRS 160.170 did not specifically provide any penalty for failure to take the oath. Commonwealth ex rel. Breckinridge v. Marshall, 361 S.W.2d 103, 1962 Ky. LEXIS 228 ( Ky. 1962 ).

3.Appointed Officers.

Lapse of more than a year between date of commission of railroad policeman and time of qualification raises presumption that qualification was not within thirty days after receipt of notice of appointment. Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

4.Officer Not Required to Execute Bond.

An officer not required to execute bond may take the oath of office within a reasonable time after the day fixed for taking the oath, provided reasonable excuse exists for the delay. Lewin v. Ft. Mitchell, 148 Ky. 816 , 147 S.W. 922, 1912 Ky. LEXIS 550 ( Ky. 1912 ).

5.Sufficiency of Qualification.

Under a similar statute, it was held that when the date for qualification fell on a holiday, the qualification might take place on the following day. Jewett v. Matteson, 148 Ky. 820 , 147 S.W. 924, 1912 Ky. LEXIS 551 ( Ky. 1912 ).

Compliance with the Constitution and statutes is sufficient qualification. Oakes v. Remines, 273 Ky. 750 , 117 S.W.2d 948, 1938 Ky. LEXIS 713 ( Ky. 1938 ).

6.Expiration of Statutory Period.

A county judge (now county judge/executive) has no authority to approve bond or administer oath tendered after the statutory date. Barnett v. Hart, 112 Ky. 728 , 66 S.W. 726, 23 Ky. L. Rptr. 2116 , 1902 Ky. LEXIS 217 ( Ky. 1902 ).

7.Assumption of Duties.

There is nothing in either the Constitution or statutes fixing the time when one elected or appointed to fill a vacancy must assume the duties of his office. Jones v. Sizemore, 117 Ky. 810 , 79 S.W. 229, 25 Ky. L. Rptr. 1957 , 1904 Ky. LEXIS 248 ( Ky. 1904 ).

8.Removal.

Charges presenting grounds for removal are unnecessary in an action against one who makes no attempt to qualify. Chatham v. Davenport, 187 Ky. 801 , 220 S.W. 1062, 1920 Ky. LEXIS 209 ( Ky. 1920 ).

9.Forfeiture.

Issue of forfeiture of office may not be raised collaterally in suit to compel fiscal court to fix salary. Peak v. Akins, 237 Ky. 711 , 36 S.W.2d 351, 1931 Ky. LEXIS 678 ( Ky. 1931 ).

10.Status of Officers Not Qualifying Within Prescribed Time.

A person elected as marshal who fails to take the oath or give bond is neither a de jure nor a de facto officer, but is a trespasser and usurper. Creighton v. Commonwealth, 83 Ky. 142 , 7 Ky. L. Rptr. 70 , 1885 Ky. LEXIS 48 (Ky. Ct. App. 1885).

Officers not required to give bond who take the oath after the statutory date are de jure officers. Lewin v. Ft. Mitchell, 148 Ky. 816 , 147 S.W. 922, 1912 Ky. LEXIS 550 ( Ky. 1912 ).

An officer not qualifying within the time prescribed is not a de facto officer. Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

A person appointed as county road engineer who fails to qualify is not a de facto officer. Chatham v. Davenport, 187 Ky. 801 , 220 S.W. 1062, 1920 Ky. LEXIS 209 ( Ky. 1920 ).

11.Precinct Officers.

Assuming that an oath were required under this section, the failure of precinct officers to take such oath would not invalidate a primary election in that precinct. Sims v. Atwell, 556 S.W.2d 929, 1977 Ky. App. LEXIS 826 (Ky. Ct. App. 1977).

Opinions of Attorney General.

Where five (5) months after taking office school board members had not yet taken the statutory oath, the State Board of Education was required to fill the resulting vacancies pursuant to KRS 160.190. OAG 61-485 .

When the 31st of December falls on Sunday and the following day on which county officers are to take office for the ensuing term is a legal holiday, the county officers may be sworn in and execute bond when required on or before the first Monday in January, a legal holiday. OAG 61-886 .

It is permissible for a successful candidate for the school board to take the statutory oath of office at a school board meeting to be held the second Monday in January. OAG 65-4 .

Where a person who was elected a member of the county board of education and who had received a certificate of election refused to take the oath of office, such office became vacant thirty days after the beginning of the term or thirty days after receipt by the person elected of the certificate of election, whichever event was later and the other members of the board should thereafter immediately make an appointment to fill the vacancy under the duty imposed on them by KRS 160.190. OAG 69-60 .

A person who is elected county coroner while voluntarily employed overseas by the department of the army as a civilian embalmer and who cannot return at the proper time to take the oath and assume the office, cannot be granted four (4) or five (5) months temporary leave and then return and assume the office because failure to take oath and make bond within the prescribed time would result in the automatic vacation of the office. OAG 69-239 .

Where a duly elected city councilman did not appear at the first regularly called council meeting to take the oath of office but took such oath in the afternoon prior to the council meeting called for that evening, he took oath prior to the inception of his term and was qualified for office. OAG 70-61 .

As the members of the fiscal court must take their oath of office on or before January 7, 1974, the present members’ terms expire upon the new members’ taking office so that the present fiscal court could hold a meeting in 1974 prior to January 7. OAG 73-850 .

No person shall be eligible to be police judge of a city of the fifth or sixth class under KRS 26.200 (repealed) unless he is a resident and qualified voter of the city and has resided therein for a year next preceding his election or appointment and, before entering the duties of his office, must execute a bond to the commonwealth with good and sufficient sureties approved by the county judge (now county judge/executive) and must also take the oath of office as prescribed by the Constitution and required in this section. OAG 74-441 .

A person may execute the oath of office within a reasonable time after the day the term of office to which he has been elected begins and still be qualified to serve. OAG 78-50 .

Failure to execute an oath of office due to illness is a sufficient excuse for a delay and if the oath is executed within a reasonable time after the date his term of office begins, the individual would be qualified to serve despite the delay. OAG 78-75 .

Assuming a councilman has either not executed the oath at all or did not do so within 30 days following appointment, nevertheless his acts would be valid as that of a de facto officer until he is either removed or his prosecution under the penalty section sustained by court judgment, thereby creating a forfeiture of office. OAG 78-707 .

If an appointed councilman failed to execute the oath within 30 days, and if the oath has been executed within a reasonable time thereafter, it would be in compliance with the requirements of subsection (3) of this section and what is a reasonable time is a question for the court to decide, but if he never executed the oath of office, then he obviously would not be a legally qualified member of the city council and subject to prosecution under the penalty section which includes the forfeiture of office. OAG 78-707 .

The oath of office may be administered anywhere, as long as the oath is administered by one who is legally authorized to do so under the terms of KRS 62.020 . OAG 78-707 .

Though subsection (2) of this section provides that each person elected to an office shall take the oath of office on or before the day the term of office begins, the courts have nevertheless held that a person may execute the oath within a reasonable time after said date and still be qualified to serve. OAG 78-707 .

Where councilman elected in November, 1983 failed to qualify in January, 1984 and in May, 1984 council declared the office vacant, the vacancy actually occurred on January 10 or within 30 days thereafter, the time frame mentioned in Brown v. Rose, 233 Ky. 549 , 26 S.W.2d 503, 1930 Ky. LEXIS 611 (1930), as being a reasonable time to qualify. The council’s declaration as to the vacancy was not controlling and the Governor had the sole authority to fill the vacancy by appointment, subject to an election in November, 1984 to fill the unexpired term of one year. OAG 84-245 .

While a Notary Public should make every effort to take the required oath of office within thirty days after receiving notice of appointment, apparently the oath of office may be taken within a reasonable time thereafter provided there is a reasonable excuse for the delay; failure to take the required oath within a reasonable time after the time period set forth in the statute would subject the Notary Public to the penalty provisions of KRS 62.990 . OAG 90-139 .

A council member who had a valid excuse, illness, for not taking the oath of office on January 1 and who took the oath two day s later on January 3, was not disqualified from holding office. A city councilmember who takes the oath of office within a reasonable time after January 1 is not disqualified from office. OAG-13-003.

Research References and Practice Aids

Cross-References.

Conscience of deponent, oath to be administered to accord with, Const., § 232.

Constitutional oath required of all public officers, Const., § 228.

Oaths required to be in writing or subscribed:

Active militia, members of, KRS 37.210 .

Board of Registration for Professional Engineers, members of, KRS 322.230 .

Commissioner of department of mines and minerals, KRS 351.051 .

Mine inspectors, KRS 351.090 .

Police in second-class cities, KRS 95.490 .

Public service commissioners, KRS 278.060 .

Railroad policemen, KRS 277.280 .

Veterinary examiners, members of state board of, KRS 321.230 .

Special oaths required of various officers:

Active militia, members of, KRS 37.210 .

Board of education, county, members of, KRS 160.170.

Board of waterworks in first-class cities, members of, KRS 96.240 .

Circuit clerks, KRS 30A.020.

County board of supervisors, KRS 133.020 .

Department of Fish and Wildlife Resources, commissioner of, KRS 150.061 .

Director of district board of health, KRS 220.150 .

District cooperative extension boards, members of, KRS 164.650.

Elisor, KRS 70.200 .

Jurors, KRS 29A.240, 29A.300.

National guard, officers of, KRS 38.070 .

Police:

Fourth-class cities, in, KRS 95.760 .

Fifth-class cities, in, KRS 95.760 .

Sheriff, KRS 70.010 .

Northern Kentucky Law Review.

Schlam, Third-Party Standing in Child Custody Disputes: Will Kentucky’s New “De Facto Guardian” Provision Help?, 27 N. Ky. L. Rev. 368 (2000).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Appointment of Receiver Without Written Agreement to Appoint Receiver, Form 157.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Notary Public, § 21.00.

ALR

Member of petit jury as officer within constitutional or statutory provision in relation to oath or affirmation. 118 A.L.R. 1098.

62.020. Persons authorized to administer official oaths — Certification and filing.

  1. The official oath of any officer may be administered by:
    1. Any active, retired, or senior status justice or judge of the Court of Justice or active, retired, or senior status federal judge, with Kentucky jurisdiction;
    2. Any member of the General Assembly may administer an oath statewide; or
    3. Any county judge/executive, notary public, clerk of a court, or justice of the peace, within his district or county.
  2. For those officers listed in paragraphs (a), (b), (c), (d), and (e) of this subsection, the person administering the oath shall certify in writing that the oath of office was administered and the date of its administration. The person administering the oath shall file a written certification:
    1. In the Secretary of State’s office for:
      1. A member of the General Assembly;
      2. An officer elected from the state at large;
      3. An officer elected from a district greater than one (1) county; or
      4. An officer elected from a city whose boundaries extend beyond those of a single county;
    2. In the Secretary of State’s office for:
      1. An officer appointed cabinet secretary; or
      2. An officer appointed a deputy or assistant to an elected constitutional officer and who is required by separate statute to take the oath of office;
    3. In the Governor’s office for the Secretary of State and the assistant Secretary of State;
    4. In the office of the county clerk for the county from which an officer is elected to countywide office or office for a district within the county. However, the requirements of this paragraph shall not apply when the requirements of paragraph (a) of this subsection apply; and
    5. In the office of a circuit clerk for a county clerk within the jurisdiction of that circuit clerk.

History. 3754: amend. Acts 1980, ch. 184, § 1, effective July 15, 1980; 1994, ch. 454, § 1, effective July 15, 1994; 1996, ch. 164, § 1, effective July 15, 1996; 2007, ch. 56, § 3, effective March 21, 2007; 2007, ch. 132, § 3, effective June 26, 2007; 2010, ch. 128, § 1, effective July 15, 2010.

Legislative Research Commission Note.

(6/26/2007). This section was amended by 2007 Ky. Acts chs. 56 and 132. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 132, which was last enacted by the General Assembly, prevails under KRS 446.250 .

(3/21/2007). 2007 Ky. Acts ch. 56, sec. 4, provides that the amendments to KRS 62.020 in 2007 Ky. Acts ch. 56, sec. 3, “shall apply retroactively to any elected officer required to take the oath of office and execute bond by the first Monday of year 2007.”

NOTES TO DECISIONS

1.In General.

Persons authorized to administer oaths may by direction of a trial judge swear witnesses in open court. Bush v. Commonwealth, 198 Ky. 226 , 248 S.W. 522, 1923 Ky. LEXIS 411 ( Ky. 1923 ).

2.Notaries.

Notaries public had no common law authority to administer oaths, and their authority to take oaths must be statutory. Anderson v. Commonwealth, 117 S.W. 364, 1909 Ky. LEXIS 497 ( Ky. 1909 ).

Cited:

Owsley v. Commonwealth, 428 S.W.2d 199, 1968 Ky. LEXIS 707 ( Ky. 1968 ).

Opinions of Attorney General.

Under the provisions of KRS 87.130 (now repealed), the mayor of a fifth-class city can administer the oath of office to duly elected councilmen of that city. OAG 61-799 .

It is the duty of the county election commission in reviewing the certifications on absentee ballots to make every effort to determine the validity of the notarizations and reject only those papers that they clearly feel are not properly notarized giving the voter the benefit where there is reasonable doubt and approving the notarization. OAG 64-814 .

An attorney, as an officer of the court, would not be competent to acknowledge legal instruments without the necessity of acquiring a notary’s commission or other authority. OAG 71-22 .

The oath of office for members of the State Board of Registration for Professional Engineers and Land Surveyors need not be given at a duly convened meeting of the Board but may be taken anywhere in the commonwealth and administered by any officer listed in this section as empowered to administer the official oath of office, including a notary public, and said oath is not required to be attested to by the chairman or any other officer of the Board. OAG 73-189 .

Justices of the peace cannot administer oaths of office, since they are no longer judges in the judicial and constitutional sense. OAG 78-57 .

KRS 423.010 prevails over this section only to the extent that the former authorizes the county judge/executive to administer the oaths of notaries before they assume office. OAG 79-289 .

The language “within his district or county” refers to the entire geographical territory for which the officers were elected or appointed. OAG 82-199 .

Under the language of Const., § 99, a justice of the peace may administer the official oath of any officer within his magisterial district. OAG 82-199 , (modifying OAG 78-57 ).

All notary publics, residents of Kentucky, including those appointed under KRS 423.110 , must take the oath mentioned in KRS 423.110 before the county judge/executive of the county in which the notary resides, and must take the oath prescribed in Const., § 228 before one of the applicable officers mentioned in this section. OAG 85-36 .

In light of Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312, 81 L. Ed. 2d 175, 1984 U.S. LEXIS 93 (1984), the citizenship requirement of Const., § 228 is not enforceable as to the Office of notary public under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Const., § 3; thus, an alien residing in a particular county in Kentucky may qualify as a notary public, provided that he satisfies the requirements of KRS 423.010 and takes the oath before the county judge executive of his county that “he will honestly and diligently discharge the duties of his office,” as required by KRS 423.010 . In addition, he must take the oath of officers prescribed in Const., § 228 before any applicable officer listed in this section, even though he is not a citizen of the United States or Kentucky; in view of the holding in Bernal v. Fainter, the requirement of citizenship, as it applies to the oath of Const., § 228, would be, as a practical matter and in harmony with the cy pres doctrine of equity, considered waived. OAG 85-37 , modifying OAG 77-297 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Justices of the Peace, § 17.00.

ALR

Formalities of administering or making oath. 51 A.L.R. 840.

62.030. Oath of fiduciaries.

Every person, before entering on the duty of executor, administrator, guardian, curator or conservator of a person who is mentally disabled, or any other like trust or employment, in lieu of all other oaths not expressly required by law, shall take in substance the following oath or affirmation “I do solemnly swear (or affirm) that I will faithfully perform the duties of … according to law.”

History. 3756: amend. Acts 1978, ch. 92, § 4, effective June 17, 1978; 1982, ch. 141, § 46, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 49 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

Research References and Practice Aids

Cross-References.

Administration of oath by commissioned officer of armed forces, to person serving in or present with armed forces, KRS 384.080 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., General Form of Oath to Fiduciaries, Form 11.02.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Stenographers and Interpreters, § 20.00.

Caldwell’s Kentucky Form Book, 5th Ed., Settlement Ledger (AOC 846), Form 15.04.

62.040. Peace officers’ oath to suppress gaming.

  1. Every peace officer shall take an oath that he will endeavor, to the best of his ability, to detect and prosecute all gamblers and others violating the laws against gaming.
  2. The oath specified in subsection (1) of this section may be administered by any person who may administer an oath pursuant to KRS 62.020 . A person shall not administer the oath specified in subsection (1) of this section to himself or herself.

History. 3757; 2007, ch. 132, § 1, effective June 26, 2007.

NOTES TO DECISIONS

1.Dismissal for Failure to Suppress Gaming.

Common council properly dismissed chief of police where he made no attempt to stop open violation of gambling laws, used insulting and profane language and assaulted and struck a person on the public street and excused his failure to stop open violation of gambling laws by stating that during the same period all other public officials in the county, including the circuit judge, Commonwealth’s Attorney, sheriff and deputies and various grand jurors who also were charged with enforcement of gambling laws likewise failed to perform their duty in that connection. Harrell v. Middlesboro, 287 S.W.2d 614, 1956 Ky. LEXIS 475 ( Ky. 1956 ).

Opinions of Attorney General.

A city’s marshal and policemen have the authority to enforce the gaming laws referred to herein as well as traffic laws. OAG 74-166 .

Research References and Practice Aids

Cross-References.

Official misconduct, KRS 522.010 to 522.040 .

Bonds

62.050. Bonds — When to be given.

  1. Except as otherwise provided by statute, no officer required by law to give bond shall enter upon the duties of his office until he gives the bond, except in years where the first Monday in January falls upon January 1. In years where the first Monday falls upon January 1, no penalty shall be applied to any officer that fails to give bond, so long as bond is given within thirty (30) days of the first Monday of January.
  2. Except as otherwise provided by statute, each person elected to an office who is required to give bond shall give the bond on or before the day the term of office to which he has been elected begins.
  3. Each person appointed to an office who is required to give bond shall give the bond within thirty (30) days after he receives notice of his appointment.

History. 3753, 3755; 1996, ch. 86, § 9, effective July 15, 1996; 2007, ch. 56, § 2, effective March 21, 2007.

Legislative Research Commission Note.

(3/21/2007). 2007 Ky. Acts ch. 56, sec. 4, provides that the amendments to KRS 62.050 in 2007 Ky. Acts ch. 56, sec. 2 “shall apply retroactively to any elected officer required to take the oath of office and execute bond by the first Monday of year 2007.”

NOTES TO DECISIONS

1.Application.

This section did not apply to a contractor’s bond. Moss v. Rowlett, 112 Ky. 121 , 65 S.W. 153, 23 Ky. L. Rptr. 1411 , 1901 Ky. LEXIS 287 ( Ky. 1901 ), overruled, Taylor v. Westerfield, 233 Ky. 619 , 26 S.W.2d 557, 1930 Ky. LEXIS 640 ( Ky. 1930 ).

This section applies to officers elected or appointed to fill a vacancy. Wheeler v. Collins, 222 Ky. 801 , 2 S.W.2d 646, 1928 Ky. LEXIS 251 ( Ky. 1928 ).

Failure of officer, who is not required to give a statutory bond, to give or renew a common-law bond is not affected by this section. National Surety Co. v. Hester's Adm'r, 241 Ky. 623 , 44 S.W.2d 563, 1931 Ky. LEXIS 127 ( Ky. 1931 ).

Kentucky Constitution, § 103, this section and KRS 62.055 , which state that a county clerk before taking office shall post bond, are mandatory in nature. Elective clerks must post required bond before assuming the duties of office. Substantial compliance with these provisions is not sufficient. Bowen v. Commonwealth ex rel. Stidham, 887 S.W.2d 350, 1994 Ky. LEXIS 110 ( Ky. 1994 ).

Kentucky Constitution, § 103, this section, and KRS 67.720 which state that a county judge-executive, before taking office shall post bond, are mandatory in nature. Elective county judge-executives must post required bond before assuming the duties of office and substantial compliance with these provisions is not sufficient. Commonwealth ex rel. Stidham v. Henson, 887 S.W.2d 353, 1994 Ky. LEXIS 111 ( Ky. 1994 ).

2.Failure to Qualify.

On failure of a person elected to qualify, or death before qualification, his predecessor does not hold over as against one elected or appointed to fill the vacancy. Campbell v. Dotson, 111 Ky. 125 , 63 S.W. 480, 23 Ky. L. Rptr. 510 , 1901 Ky. LEXIS 193 ( Ky. 1901 ); Olmstead v. Augustus, 112 Ky. 365 , 65 S.W. 817, 23 Ky. L. Rptr. 1772 , 1901 Ky. LEXIS 318 (Ky. Ct. App. 1901).

An appointee failing to give bond within 30 days after notice of appointment is not in legal possession of the office, and is a de facto officer only as against innocent third parties. Wheeler v. Collins, 222 Ky. 801 , 2 S.W.2d 646, 1928 Ky. LEXIS 251 ( Ky. 1928 ).

3.Tender of Bond.
4.— Sufficiency.

Tender of bond is sufficient when officials authorized to approve same refuse arbitrarily to do so. Dorian v. Paducah, 136 Ky. 373 , 124 S.W. 369, 1910 Ky. LEXIS 495 ( Ky. 1910 ).

Tender of bond is sufficient when official required to approve same causes the statutory period to expire before approval is made. Commonwealth v. Flatt, 219 Ky. 185 , 292 S.W. 785, 1927 Ky. LEXIS 309 ( Ky. 1927 ).

5.— Proof.

Proof of tender of county treasurer’s bond to fiscal court must be by the records of the court. Reynolds v. Floyd County Fiscal Court, 262 Ky. 445 , 90 S.W.2d 694, 1935 Ky. LEXIS 792 ( Ky. 1935 ).

6.Renewal or Additional Bond.

The renewal or additional bond of a sheriff tendered after the statutory data may be approved by the county court. Schuff v. Pflanz, 99 Ky. 97 , 35 S.W. 132, 18 Ky. L. Rptr. 25 , 1896 Ky. LEXIS 59 ( Ky. 1896 ); Renshaw v. Cook, 129 Ky. 347 , 111 S.W. 377, 33 Ky. L. Rptr. 860 , 33 Ky. L. Rptr. 895 , 1908 Ky. LEXIS 165 (Ky. Ct. App. 1908).

7.Approval.

A county court has no authority to approve bond tendered after the statutory date. Commonwealth Yarbrough, 84 Ky. 496 , 2 S.W. 68, 8 Ky. L. Rptr. 483 , 1886 Ky. LEXIS 92 ( Ky. 1886 ). See Barnett v. Hart, 112 Ky. 728 , 66 S.W. 726, 23 Ky. L. Rptr. 2116 , 1902 Ky. LEXIS 217 ( Ky. 1902 ).

County judge (now county judge/executive) has authority to postpone hearing on approval of bond until after the statutory period has expired. Commonwealth v. Flatt, 219 Ky. 185 , 292 S.W. 785, 1927 Ky. LEXIS 309 ( Ky. 1927 ). See Commonwealth Yarbrough, 84 Ky. 496 , 2 S.W. 68, 8 Ky. L. Rptr. 483 , 1886 Ky. LEXIS 92 ( Ky. 1886 ).

Officer required to approve bond may by his conduct waive strict compliance as to time, when such conduct misleads the qualifying officer to his prejudice. Commonwealth v. Flatt, 219 Ky. 185 , 292 S.W. 785, 1927 Ky. LEXIS 309 ( Ky. 1927 ).

When the qualifying officer is required by law to work under the direction of the approving judge, the latter’s directions will not be allowed to prejudice the qualifying officer. Commonwealth v. Flatt, 219 Ky. 185 , 292 S.W. 785, 1927 Ky. LEXIS 309 ( Ky. 1927 ).

Cited:

Revenue Cabinet v. Picklesimer, 879 S.W.2d 482, 1994 Ky. LEXIS 77 ( Ky. 1994 ).

Opinions of Attorney General.

When the 31st of December falls on Sunday and the following day on which county officers are to take office for the ensuing term is a legal holiday, the county officers may be sworn in and execute bond when required on or before the first Monday in January, a legal holiday. OAG 61-886 .

The term of an official bond is limited to the term for which the official is elected, regardless of the fact that the term of the bond fails to so state, but the term of such bond can be extended to cover succeeding terms where there exists a verbal agreement to this effect. OAG 63-49 .

Where bond was not executed prior to assuming office, the officer cannot execute a new bond during the term of his office. OAG 63-49 .

A person who is elected county coroner while voluntarily employed overseas by the department of the army as a civilian embalmer and who cannot return at the proper time to take the oath and assume the office, cannot be granted four or five months temporary leave and then return and assume the office because failure to take oath and make bond within the prescribed time would result in the automatic vacation of the office. OAG 69-239 .

Failure of a duly elected constable to qualify and execute bond creates a vacancy for the office which may be filled by an appointment but an election will be required to fill the office at the next regular election. OAG 71-159 .

When an elected constable fails to take the oath of office and execute the required bond, he may be removed from office under KRS 62.990 by action initiated by the commonwealth attorney pursuant to KRS 415.050 , or the county judge/executive may declare the office vacant and fill the vacancy pursuant to KRS 63.220 . OAG 80-2 .

Once the county jailer passed the statutory deadline of subsection (2) of this section without making bond, the office became vacant; there is simply no provision of statutory law permitting the making of effective bond after the deadline. OAG 83-483 .

The failure of the county jailer to execute bond before entering upon the duties of his office created a vacancy in that office. See Campbell v. Dotson, 111 Ky. 125 , 63 S.W. 480, 1901 Ky. LEXIS 193 (1901). Subsection (2) of this section requires the elected official who must make bond to give bond on or before the day the term of office to which he has been elected begins; the statutory deadline for executing bond is mandatory and failure to give bond by the deadline vacates the office. OAG 83-483 .

Research References and Practice Aids

Cross-References.

General Assembly to provide which officers to execute bond, Const., § 224.

Officers to give bond before entering upon duties, Const., § 103.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Principal and Surety, § 201.00.

ALR

Liability on general bond for acts covered by special bond. 140 A.L.R. 1459.

Public officer’s bond as subject to forfeiture for malfeasance in office. 4 A.L.R.2d 1348.

62.0501. Certain officers without bond given extension of time to comply — Suspension of penalties.

Any officer currently in office who did not obtain a bond in conformity to the requirements of KRS 62.050 or other statute applicable to bonding of his office shall be deemed to have complied with the applicable provisions of law if he shall have in place within thirty (30) days of January 27, 1995, such a bond, and no penalty or other forfeiture authorized by KRS 62.990 or other statute for not having previously conformed with applicable provisions of law shall apply to the officer.

History. Enact. Acts 1995 (2nd Ex. Sess.), ch. 4, § 1, effective January 27, 1995, retroactive to November 1, 1991.

Compiler’s Notes.

Section 5 of Acts 1995 (2nd Ex. Sess.), ch. 5 read: “Whereas, it appears that some officers mentioned in Section 103 of the Constitution of Kentucky have not secured bond as required by the statutes and are in jeopardy of removal from office if the situation is not corrected, an emergency is declared to exist, and this Act shall become effective upon its passage and approval by the Governor and its provisions, except for the fine increase in KRS 62.050 , shall be deemed retroactive to November 1, 1991.”

62.0503. Validation of acts of certain officers without bonds — Sunset provision.

  1. Any act done, prior to his removal from office, by an officer removed from office pursuant to provisions of KRS 62.990 or other applicable statute for a violation of KRS 62.050 or other bonding statute is legalized, as against the Commonwealth, to the extent that the act may have been invalid solely because of failure to file the required bond in a timely manner.
  2. Any act done by an officer subject to removal from office pursuant to the provisions of KRS 62.990 or other applicable statute for a violation of KRS 62.050 or other bonding statute is legalized, as against the Commonwealth, to the extent that the act may have been invalid solely because of failure to file the required bond, or to file the required bond in a timely manner.
  3. The provisions of this section shall apply to any covered act done by any officer currently in office.
  4. The provisions of this section shall expire on December 31, 1999.

History. Enact. Acts 1995 (2nd Ex. Sess.), ch. 4, § 2, effective January 27, 1995, retroactive to November 1, 1991.

Compiler’s Notes.

Section 5 of Acts 1995 (2nd Ex. Sess.), ch. 5 read: “Whereas, it appears that some officers mentioned in Section 103 of the Constitution of Kentucky have not secured bond as required by the statutes and are in jeopardy of removal from office if the situation is not corrected, an emergency is declared to exist, and this Act shall become effective upon its passage and approval by the Governor and its provisions, except for the fine increase in KRS 62.050 , shall be deemed retroactive to November 1, 1991.”

62.055 Bonds of county clerks — Minimum — Record.

  1. Every county clerk, before entering on the duties of his office, shall execute bond to the Commonwealth, with corporate surety authorized and qualified to become surety on bonds in this state. Any county clerk holding office as of January 1, 1978, who has not executed bond as provided herein shall do so within thirty (30) days from February 9, 1978.
  2. In counties containing a consolidated local government or a city of the first class, the amount of the county clerk’s bond shall be at least five hundred thousand dollars ($500,000). In counties containing an urban-county form of government, the amount of county clerk’s bond shall be at least four hundred thousand dollars ($400,000). In counties containing a city of the home rule class but not a city of the first class, a consolidated local government, or an urban-county form of government, the amount of the county clerk’s bond shall be at least one hundred thousand dollars ($100,000).
  3. The bond of the county clerk shall be examined and approved by the fiscal court, which shall record the approval in its minutes. The fiscal court shall record the bond in the county clerk’s records and a copy of the bond shall be transmitted within one (1) month to the Department of Revenue, where it shall be recorded and preserved. Except in those counties where the fees of the county clerk are paid into the State Treasury, the premium on the county clerk’s bond shall be paid by the county.
  4. Where circumstances in a particular county indicate that the amount of the bond may not be sufficient, the Department of Revenue may request the fiscal court to increase the bond as provided in KRS 62.060 . The fiscal court shall then require a bond of sufficient amount to safeguard the Commonwealth.

History. Enact. Acts 1978, ch. 4, § 1, effective February 9, 1978; 1982, ch. 387, § 1, effective July 15, 1982; 1996, ch. 86, § 2, effective July 15, 1996; 2002, ch. 346, § 16, effective July 15, 2002; 2005, ch. 85, § 88, effective June 20, 2005; 2014, ch. 92, § 27, effective January 1, 2015.

NOTES TO DECISIONS

1.Application.

Constitution, § 103, KRS 62.050 and this section, which state that a county clerk before taking office shall post bond, are mandatory in nature. Elective clerks must post required bond before assuming the duties of office. Substantial compliance with these provisions is not sufficient. Bowen v. Commonwealth ex rel. Stidham, 887 S.W.2d 350, 1994 Ky. LEXIS 110 ( Ky. 1994 ).

2.Sovereign Immunity.

Fire protection district’s suit against tax collection officials, including a county court clerk, a sheriff, and a county assessor or property valuation administrator, based on the officials’ failure to collect personal property tax pursuant to KRS 75.015 , was properly dismissed because sovereign immunity shielded the officials from liability; contrary to the district’s claim, the fact that the officials posted performance bonds did not amount to a waiver of sovereign immunity. Such waiver was found only where it was established by express language or by overwhelming implications. St. Matthews Fire Prot. Dist. v. Aubrey, 304 S.W.3d 56, 2009 Ky. App. LEXIS 47 (Ky. Ct. App. 2009).

Opinions of Attorney General.

Because the Court Clerk is not bound by the provisions of the Open Records Act insofar as “records in the hands of the clerk are records of the court,” regardless of whether the requested records directly relate to a specific court action, the Clerk did not violate the Act in his disposition of the request for the specified records relating to the Clerk’s bond. OAG 04-ORD-219.

62.060. Bonds of officers, depositories and fiduciaries — Form — Conditions — Amount — Renewal.

  1. Except as provided by KRS 395.130 , the bond required by law to be executed and given by any public official, depository of public funds, or any fiduciary, and other bond required by law for the discharge or performance of any public or fiducial office, trust or employment, shall be a covenant to the Commonwealth of Kentucky from the principal and surety or sureties that the principal will faithfully discharge his duties, and there shall be no other obligation in the bond. The bond shall be limited in a definite penal sum, which shall be determined and fixed by the officer or officers whose duty it is to approve the bond. The bond of each fiduciary shall be fixed in a penal sum of not less than the estimated value of the estate which the fiduciary is in charge of. The officer or officers taking any bond mentioned in this section may, at any time when it appears to be to the interest of the obligee, increase the penal sum of the bond or require a renewal thereof with other or additional sureties.
  2. A bond or obligation taken in any form other than that required by subsection (1) shall be binding on the parties thereto according to its terms.
  3. This section shall not apply to bonds given pursuant to KRS 62.160 to 62.200 .

History. 186d-1, 3751: amend. Acts 1946, ch. 27, § 6; 1972, ch. 203, § 3.

Compiler’s Notes.

Section 56 of Acts 1972, ch. 203, provided: “Nothing in the Act shall be construed to effect any substantive change in the statute law of Kentucky and if any substantive change appears to be effected it shall be disregarded and the law as it existed prior to the effective date of this Act shall be given full force and effect.”

NOTES TO DECISIONS

1.Constitutionality.

This section does not violate Const., § 54. Fidelity & Deposit Co. v. Commonwealth, 231 Ky. 346 , 21 S.W.2d 452, 1929 Ky. LEXIS 271 ( Ky. 1929 ).

2.Construction.

This section must be read in connection with bonds executed under it. Connelly v. American Bonding & Trust Co., 113 Ky. 903 , 69 S.W. 959, 24 Ky. L. Rptr. 714 , 1902 Ky. LEXIS 119 ( Ky. 1902 ); Bankers' Surety Co. v. Newport, 162 Ky. 473 , 172 S.W. 940, 1915 Ky. LEXIS 101 ( Ky. 1915 ).

In executing an official bond, only substantial compliance with the statute is required. Growbarger v. United States Fidelity & Guaranty Co., 126 Ky. 118 , 102 S.W. 873, 31 Ky. L. Rptr. 555 , 1907 Ky. LEXIS 24 ( Ky. 1907 ).

This section is merely directory as to the penal sum, and does not invalidate a bond otherwise properly executed. Hegarty v. Arkle's Guardian, 213 Ky. 15 , 280 S.W. 139, 1926 Ky. LEXIS 440 ( Ky. 1926 ); Miller v. Rockcastle County, 248 Ky. 290 , 58 S.W.2d 598, 1933 Ky. LEXIS 230 ( Ky. 1933 ); Cornett v. Duff, 282 Ky. 332 , 138 S.W.2d 478, 1940 Ky. LEXIS 165 ( Ky. 1940 ).

This section is mandatory. Rider's Ex'x v. Sherrard's Guardian, 231 Ky. 112 , 21 S.W.2d 147, 1929 Ky. LEXIS 229 (Ky. Ct. App. 1929).

3.Application.

This section and KRS 67.070 do not cover contractors’ bonds. Moss v. Rowlett, 112 Ky. 121 , 65 S.W. 153, 23 Ky. L. Rptr. 1411 , 1901 Ky. LEXIS 287 ( Ky. 1901 ), overruled, Taylor v. Westerfield, 233 Ky. 619 , 26 S.W.2d 557, 1930 Ky. LEXIS 640 ( Ky. 1930 ).

This section and KRS 62.070 do not apply to a bond given by a deputy sheriff to the sheriff. Casey v. Fidelity & Casualty Co., 278 Ky. 426 , 128 S.W.2d 939, 1939 Ky. LEXIS 449 ( Ky. 1939 ).

4.Sufficiency.

A guardian’s settlement showing a balance in excess of the amount of the bond is notice to the county judge (now county judge/executive) that the bond is insufficient. Rider's Ex'x v. Sherrard's Guardian, 231 Ky. 112 , 21 S.W.2d 147, 1929 Ky. LEXIS 229 (Ky. Ct. App. 1929).

It is the duty of the county judge (now county judge/executive) to require guardians’ bonds to conform to this section, and if the bond is insufficient to give notice at once to the guardian that a new bond or additional surety on the old one is required. Rider's Ex'x v. Sherrard's Guardian, 231 Ky. 112 , 21 S.W.2d 147, 1929 Ky. LEXIS 229 (Ky. Ct. App. 1929).

If a bond is sufficient except as to naming of penalty, it is the duty of the approving officer to insert a proper penal sum, with the consent of the sureties, and then approve it. Cornett v. Duff, 282 Ky. 332 , 138 S.W.2d 478, 1940 Ky. LEXIS 165 ( Ky. 1940 ).

5.Conditions.

A bond is not void because it contains conditions not prescribed by statute, although the statute prescribes its conditions, unless the statute expressly provides that it shall be void on that account. Sauer v. Fidelity & Deposit Co., 192 Ky. 758 , 234 S.W. 434, 1921 Ky. LEXIS 148 ( Ky. 1921 ).

Unless the statute so provides, only those parts of the bond which are contrary to statute are void, and the rest of the conditions are enforceable. Sauer v. Fidelity & Deposit Co., 192 Ky. 758 , 234 S.W. 434, 1921 Ky. LEXIS 148 ( Ky. 1921 ).

6.— Depository.

The bond of a depository is a guarantee of the security of the funds and the assurance that they will be delivered on demand, and such bond imposes a greater responsibility than a bond conditioned upon the faithful performance of the duties of an officer. Phillips v. Board of Education, 283 Ky. 173 , 140 S.W.2d 819, 1940 Ky. LEXIS 292 ( Ky. 1940 ).

7.— Guardian.

A guardian’s bond must necessarily include interest that will accrue, and any other funds that reasonably may be expected to come into the guardian’s hands during the succeeding biennial period. Rider's Ex'x v. Sherrard's Guardian, 231 Ky. 112 , 21 S.W.2d 147, 1929 Ky. LEXIS 229 (Ky. Ct. App. 1929).

8.Obligee, Naming.

Naming of city as obligee instead of commonwealth does not prevent recovery by individuals. Connelly v. American Bonding & Trust Co., 113 Ky. 903 , 69 S.W. 959, 24 Ky. L. Rptr. 714 , 1902 Ky. LEXIS 119 ( Ky. 1902 ); Growbarger v. United States Fidelity & Guaranty Co., 126 Ky. 118 , 102 S.W. 873, 31 Ky. L. Rptr. 555 , 1907 Ky. LEXIS 24 ( Ky. 1907 ).

A bond is not vitiated by being made to the commonwealth, as provided by this section, instead of to the obligee stipulated in the act providing for the bond. United States Fidelity & Guaranty Co. v. Commonwealth, 104 S.W. 1029, 31 Ky. L. Rptr. 1179 (1907).

9.Obligor, Naming.

That the obligor was styled “trustee” instead of “treasurer” did not vitiate the bond, the duties of the offices being the same. United States Fidelity & Guaranty Co. v. Commonwealth, 104 S.W. 1029, 31 Ky. L. Rptr. 1179 (1907).

10.Limitation in Bond.

Any limitation in a bond in derogation of statutory requirements is not binding. Bankers' Surety Co. v. Newport, 162 Ky. 473 , 172 S.W. 940, 1915 Ky. LEXIS 101 ( Ky. 1915 ).

Neither the principal nor the surety may complain that the obligations of the bond are less than prescribed by statute. Sauer v. Fidelity & Deposit Co., 192 Ky. 758 , 234 S.W. 434, 1921 Ky. LEXIS 148 ( Ky. 1921 ).

11.Approval.

The approval required by statute need not be evidenced by an indorsement on the bond, it being sufficient if the record shows acts raising a presumption of approval. Hall's Ex'rs v. Robinson, 291 Ky. 631 , 165 S.W.2d 163, 1942 Ky. LEXIS 285 ( Ky. 1942 ).

If a bond is required to be executed before a particular officer or to be approved by him, it must be so executed or approved else it will be considered no bond at all. Hall's Ex'rs v. Robinson, 291 Ky. 631 , 165 S.W.2d 163, 1942 Ky. LEXIS 285 ( Ky. 1942 ).

12.New Bond, Requirement.

When full or partial recovery on a bond has been had, the officer taking the bond may require a new bond. Waddle v. Wilson, 164 Ky. 228 , 175 S.W. 382, 1915 Ky. LEXIS 367 ( Ky. 1915 ).

13.New Bond, Increase in.

Where a county judge/executive rejected a proffered performance bond of $50,000 from the county sheriff, citing the fact that the revenue bonds posted were inadequate to secure the aggregate tax receipts of the county, that a recent federal case had held that the county sheriff’s department was not protected by sovereign immunity in a civil rights suit against the police department, and he instead set the performance bond at $300,000, while issuing an order limiting the power of the sheriff to act within her capacity until the bond was posted, the county judge/executive acted within his statutory authority under this section which makes it mandatory for the officer whose duty it is to fix the amount of the bond to approve it also, and to increase it when it appears to be in the interest of the obligee to do so. Muncy v. Keen, 619 S.W.2d 712, 1981 Ky. App. LEXIS 270 (Ky. Ct. App. 1981).

14.Notice of Default.

Requirement of notice of default within six months, not being required by statute, is void. Bankers' Surety Co. v. Newport, 162 Ky. 473 , 172 S.W. 940, 1915 Ky. LEXIS 101 ( Ky. 1915 ).

Heirs are under no duty to give notice to sureties on administrator’s bond of defaults or mismanagement by administrator known to heirs. Kaufman v. Kaufman's Adm'r, 292 Ky. 351 , 166 S.W.2d 860, 1942 Ky. LEXIS 102 ( Ky. 1942 ).

15.Sureties, Liability.

Bond specifying no amount upheld as common-law obligation on which liability of sureties was unlimited. Hite v. Hite's Ex'r, 133 Ky. 554 , 118 S.W. 357, 1909 Ky. LEXIS 203 ( Ky. 1909 ); Miller v. Rockcastle County, 248 Ky. 290 , 58 S.W.2d 598, 1933 Ky. LEXIS 230 ( Ky. 1933 ).

It is the sufficiency of the sureties, not the solvency of the principal, that is looked to. Allen v. Jenkins, 157 Ky. 406 , 163 S.W. 234, 1914 Ky. LEXIS 298 ( Ky. 1914 ).

Statutory provisions bind the surety, though not incorporated in the bond. Rice v. Lavin, 199 Ky. 790 , 251 S.W. 990, 1923 Ky. LEXIS 927 ( Ky. 1923 ).

Sureties on jailer’s bond were not liable for money received by him in excess of the amount appropriated for him by the fiscal court, where bond provided that he would faithfully discharge the duties of his office and pay over to all parties entitled thereto any funds that may come into his hands by virtue of his office, as sums paid the jailer illegally were not within the contemplation of the bond. Wolfe County v. Tolson, 283 Ky. 11 , 140 S.W.2d 671, 1940 Ky. LEXIS 287 ( Ky. 1940 ).

Whether the annual renewals of an official bond constitute merely a continuation of the original bond contract, so as to limit the total liability of the surety to the original penal sum, or whether each renewal constitutes a separate contract, so as to make the surety liable each year for a sum equal to the penal sum of the original bond, depends upon the terms and conditions stated in the bond and renewal clauses. Middlesboro v. American Surety Co., 307 Ky. 769 , 211 S.W.2d 670, 1947 Ky. LEXIS 1035 ( Ky. 1947 ).

In action by Commonwealth against sureties on bonds of clerk of county court, sureties on second bond could not be held liable for defalcations in accounts that occurred prior to execution and approval of the second bond where the second bond did not have retroactive operation. Commonwealth v. Slack, 291 S.W.2d 553, 1956 Ky. LEXIS 387 ( Ky. 1956 ).

Surety on bond is liable for interest from date of judgment and he cannot avoid liability by asserting claim against him was not liquidated. Commonwealth v. Slack, 291 S.W.2d 553, 1956 Ky. LEXIS 387 ( Ky. 1956 ).

Where the bond executed by the surety guaranteed the faithful performance of the administrator in carrying out his duties and further guaranteed proper distribution of any surplus money, effects and returns which might come to his hands or to anyone for him by color of his office, the surety was liable on a certificate of deposit wrongfully cashed by the administrator under color of office. Maryland Casualty Co. v. McCormack, 488 S.W.2d 347, 1972 Ky. LEXIS 42 ( Ky. 1972 ).

Trial court erred by finding that a surety bond written by the insurance company for the city clerk created $300,000 in liability for each of the seven years the bond was in force because the city clerk was appointed to one open-ended term that lasted seven years, and under the terms of the bond it was for the penal sum of $300,000 “during the term aforesaid.” The was no need for the trial court to resort to extrinsic evidence, and there was no credible evidence that the city thought it was buying $300,000 of coverage for each successive year. Ohio Cas. Ins. Co. v. City of Providence, 2014 Ky. App. LEXIS 9 (Ky. Ct. App. Jan. 10, 2014).

16.Principal, Liability.

The principal being already liable, his failure to sign the bond does not render it a common-law bond. Allen v. Jenkins, 157 Ky. 406 , 163 S.W. 234, 1914 Ky. LEXIS 298 ( Ky. 1914 ).

Public officials may not restrict their liability on official bonds by inserting conditions not authorized by statute. Bankers' Surety Co. v. Newport, 162 Ky. 473 , 172 S.W. 940, 1915 Ky. LEXIS 101 ( Ky. 1915 ).

17.Liability of Official Approving Bond.

An approving official not requiring sufficient bond is liable for interest only for a period of two years from his last delinquency. Rider's Ex'x v. Sherrard's Guardian, 231 Ky. 112 , 21 S.W.2d 147, 1929 Ky. LEXIS 229 (Ky. Ct. App. 1929).

An approving official is not liable for approving an insufficient bond when that fact is not the cause of loss. United States Fidelity & Guaranty Co. v. Drinkard, 250 Ky. 695 , 63 S.W.2d 916, 1933 Ky. LEXIS 761 ( Ky. 1933 ).

An approving official is not an insurer against depreciation. United States Fidelity & Guaranty Co. v. Drinkard, 250 Ky. 695 , 63 S.W.2d 916, 1933 Ky. LEXIS 761 ( Ky. 1933 ).

Neither KRS 395.640 or this section contain provisions which make the district judge personally liable if he fails to require a new bond or additional surety on the old one or if he fails to fix the bond in a penal sum which is less than the estimated value of the estate, or if he fails to, when it appears to be in the interest of the obligee, increase the penal sum of the bond or require a renewal thereof with other or additional sureties. Vaughn v. Webb, 911 S.W.2d 273, 1995 Ky. App. LEXIS 197 (Ky. Ct. App. 1995).

18.Public Official Sued in Personal Capacity.

Since the plaintiff recovered a judgment against a police officer solely in his personal capacity and not in his official capacity, and since there was no recovery against the city by which he was employed, plaintiff could not recover against fidelity bond naming officer as principal, and binding the officer and surety to the city, as obligee, since it only insured actual losses sustained by the city. Thornsberry v. Western Surety Co., 738 F. Supp. 209, 1990 U.S. Dist. LEXIS 6717 (E.D. Ky. 1990 ).

Cited:

Polk v. American Casualty Co., 816 S.W.2d 178, 1991 Ky. LEXIS 141 ( Ky. 1991 ).

Opinions of Attorney General.

The county judge (now county judge/executive) is the appropriate official authorized to determine and fix the penal amount of the official bonds of the county clerk, as required by KRS 28.020 (now repealed); the constables, as required by KRS 70.310 ; and the coroner, as required by KRS 72.010 , while the circuit court clerk determines and fixes the penal sum of the official bond of the county judge (now county judge/executive). OAG 61-1095 .

A public administrator must execute a bond for each separate estate for which is appointed. OAG 66-242 .

When it appears to be to the interest of the Commonwealth the county judge (now county judge/executive) may, at any time, increase the penal sum of the bond of a deputy sheriff or require a renewal thereof with other or additional sureties. The county judge (now county judge/executive) has no authority to cancel a deputy sheriff’s bond. OAG 67-324 .

The bond executed by a railroad policeman with the railroad company as surety would have to follow the requirements of this section. OAG 71-11 .

Unless the surety contract states otherwise, death does not discharge the liability of a surety and the deceased sureties’ executors and administrators remain liable on the contract. OAG 74-553 .

In fixing the official bonds for each county officer the county judge (now county judge/executive) should set the bond for not less than an amount reflecting the estimated aggregate amount of money coming into the officer’s hands each year during the effective period of the bond. OAG 76-224 .

Inasmuch as the justice’s bond was intended to cover the justice’s entire range of statutory duties, a raise in the bond amount from $5,000 to $10,000 by the county judge (now county judge/executive) during the term of a justice of the peace would be legal if the county judge (now county judge/executive) reasonably concluded that the aggregate amount of money subject to the justice’s control warranted the raise in bonding. OAG 76-283 .

Research References and Practice Aids

Cross-References.

Alcoholic beverage administrator, amount of bond:

City, KRS 241.180 .

County, KRS 241.130 .

Guardian, persons who may not be surety for, KRS 387.070 .

Guardian, removal for failure to give additional security, KRS 387.090 .

Sheriff, coroner and jailer, persons who may not be sureties on bond of, KRS 70.020 , 71.010 , 72.010 .

Treasurer of pension fund for police and firemen of fourth-class city, conditions of bond, KRS 95.778 .

Utility commissioners in third-class cities, not to be surety on bond of city official, KRS 96.530 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Charges for Removal of Officer, Form 10.10.

Caldwell’s Kentucky Form Book, 5th Ed., Fiduciary Bond (AOC 825), Form 12.08.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Bonds, § 12.00

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Circuit Clerks, § 13.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Sheriffs and Deputy Sheriffs, § 18.00.

ALR

Approval of bond, right of sureties to take advantage of noncompliance with statutory requirement as to. 77 A.L.R. 1479.

Statutory conditions prescribed for public officer’s bond as part of bond which does not in terms include them or which excludes them. 109 A.L.R. 501.

62.065. Individual not to be surety on more than one bond — Nonapplicability of limitation to corporate sureties.

Individual sureties on bonds required by law to be executed and given by an officer of any city or county as provided in subsection (1) of KRS 62.060 , shall not become surety on more than one (1) bond of any such officer at the same time. The limitations on individuals making bonds shall not apply to corporate sureties.

History. Enact. Acts 1954, ch. 155, effective June 17, 1954; 1995 (2nd Ex. Sess.), ch. 4, § 4, effective January 27, 1995, retroactive to November 1, 1991.

Compiler’s Notes.

Section 5 of Acts 1995 (2nd Ex. Sess.), ch. 5 read: “Whereas, it appears that some officers mentioned in Section 103 of the Constitution of Kentucky have not secured bond as required by the statutes and are in jeopardy of removal from office if the situation is not corrected, an emergency is declared to exist, and this Act shall become effective upon its passage and approval by the Governor and its provisions, except for the fine increase in KRS 62.050 , shall be deemed retroactive to November 1, 1991.”

Research References and Practice Aids

Cross-References.

Surety companies may become surety on bonds of officers and fiduciaries, KRS 304.21-050 , 304.21-060 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Principal and Surety, § 201.00.

62.070. Action and recovery on bond.

Actions may be brought from time to time on any bond required by law for the discharge or performance of any public or fiducial office, trust or employment, in the name of the Commonwealth, for its benefit or for that of any person injured by a breach of the covenant or condition, at the proper costs of the party suing, against the parties jointly or severally, together with the personal representatives, heirs and devisees or distributees of such of them as may be dead. Recovery against the surety shall be limited to the amount of the penalty fixed in the bond, but recovery against the principal shall not be limited by the amount of the penalty fixed in the bond. Recovery on the bond shall not be restricted to duties or responsibilities belonging to the office, trust or employment at the date the bond is executed, but may include any duties or responsibilities thereafter imposed by law or lawfully assumed.

History. 186d-1, 3752.

NOTES TO DECISIONS

1.Construction.

The covenant or bond mentioned in this section is the one required by KRS 62.060 . Moss v. Rowlett, 112 Ky. 121 , 65 S.W. 153, 23 Ky. L. Rptr. 1411 , 1901 Ky. LEXIS 287 ( Ky. 1901 ), overruled, Taylor v. Westerfield, 233 Ky. 619 , 26 S.W.2d 557, 1930 Ky. LEXIS 640 ( Ky. 1930 ).

This section must be read in connection with bonds executed under it. Connelly v. American Bonding & Trust Co., 113 Ky. 903 , 69 S.W. 959, 24 Ky. L. Rptr. 714 , 1902 Ky. LEXIS 119 ( Ky. 1902 ); Growbarger v. United States Fidelity & Guaranty Co., 126 Ky. 118 , 102 S.W. 873, 31 Ky. L. Rptr. 555 , 1907 Ky. LEXIS 24 ( Ky. 1907 ); United States Fidelity & G. Co. v. Milstead, 109 S.W. 875, 33 Ky. L. Rptr. 186 (1908); Bankers' Surety Co. v. Newport, 162 Ky. 473 , 172 S.W. 940, 1915 Ky. LEXIS 101 ( Ky. 1915 ).

This section and KRS 62.020 and 62.080 did not repeal KRS 95.750 (now repealed) as to liability on bonds of policemen in fourth-class cities for unlawful arrest. Fidelity & Deposit Co. v. Noger, 245 Ky. 416 , 53 S.W.2d 746, 1932 Ky. LEXIS 616 ( Ky. 1932 ).

The purpose of KRS 134.200 is to authorize the sheriff to require bond of his deputies in the collection of revenues, and that bond does not come within the purview of KRS 62.060 and this section. The latter sections relate to bond obligations which are required by law for the discharge of a public office or trust. Casey v. Fidelity & Casualty Co., 278 Ky. 426 , 128 S.W.2d 939, 1939 Ky. LEXIS 449 ( Ky. 1939 ).

2.Bond Coverage.

Official bonds do not cover money which the principal had no right to receive. Dawson v. Lee, 83 Ky. 49 , 6 Ky. L. Rptr. 413 , 1884 Ky. LEXIS 108 ( Ky. 1884 ); Hatcher v. Pike County, 13 Ky. L. Rptr. (Abstract) (1891); Duncan v. Smith, 15 Ky. L. Rptr. 58 ; Osenton's Adm'x v. Burnett, 41 S.W. 270, 19 Ky. L. Rptr. 610 (1897); Whaley v. Commonwealth, 110 Ky. 154 , 61 S.W. 35, 23 Ky. L. Rptr. 1292 , 1901 Ky. LEXIS 73 ( Ky. 1901 ); American Bonding & Trust Co. v. Blount, 65 S.W. 806, 23 Ky. L. Rptr. 1632 , 1901 Ky. LEXIS 536 (Ky. Ct. App. 1901); Commonwealth ex rel. Attorney Gen. v. Bacon, 111 S.W. 387, 33 Ky. L. Rptr. 935 , 1908 Ky. LEXIS 337 (Ky. Ct. App. 1908); Clark v. Logan County, 138 Ky. 676 , 128 S.W. 1079, 1910 Ky. LEXIS 119 ( Ky. 1910 ); Elliott v. Commonwealth, 144 Ky. 335 , 138 S.W. 300, 1911 Ky. LEXIS 626 ( Ky. 1911 ); Equitable Sur. Co. v. Newport, 194 Ky. 363 , 238 S.W. 1046, 1992 Ky. App. LEXIS 256 (Ky. Ct. App. 1992).

Bond of county road supervisor does not cover injuries resulting from road defects. Coleman v. Eaker, 111 Ky. 131 , 63 S.W. 484, 23 Ky. L. Rptr. 513 , 1901 Ky. LEXIS 194 ( Ky. 1901 ).

A bond covering “duties to the City of Newport” is broad enough to cover unlawful arrest or unnecessary and illegal punishment by the officer. Connelly v. American Bonding & Trust Co., 113 Ky. 903 , 69 S.W. 959, 24 Ky. L. Rptr. 714 , 1902 Ky. LEXIS 119 ( Ky. 1902 ).

Official bonds cover improper performance of duty, and abuse of the confidence reposed in the official by law. Growbarger v. United States Fidelity & Guaranty Co., 126 Ky. 118 , 102 S.W. 873, 31 Ky. L. Rptr. 555 , 1907 Ky. LEXIS 24 ( Ky. 1907 ).

Official bonds cover the present duties of the office, and also subsequently imposed duties, when not foreign to the office. Equitable Sur. Co. v. Newport, 194 Ky. 363 , 238 S.W. 1046, 1992 Ky. App. LEXIS 256 (Ky. Ct. App. 1992).

Bond of policeman covers duties as motorcycle policeman. Fidelity & Casualty Co. v. Boehnlein, 202 Ky. 601 , 260 S.W. 353, 1924 Ky. LEXIS 754 ( Ky. 1924 ).

3.Recovery for Negligence.

On a bond containing the provision “and commit no trespasses against any person under the guise of said position for which he or the city may be held liable,” recovery may be had for negligence. Manwaring v. Geisler, 191 Ky. 532 , 230 S.W. 918, 1921 Ky. LEXIS 336 ( Ky. 1921 ).

Bond for faithful performance of duties renders obligor liable for negligence. Fidelity & Casualty Co. v. Boehnlein, 202 Ky. 601 , 260 S.W. 353, 1924 Ky. LEXIS 754 ( Ky. 1924 ). See Manwaring v. Geisler, 191 Ky. 532 , 230 S.W. 918, 1921 Ky. LEXIS 336 ( Ky. 1921 ).

4.Determination of Liability.

Liability on an official bond is determined by its terms, even when not complying with the statute. Allen v. Jenkins, 157 Ky. 406 , 163 S.W. 234, 1914 Ky. LEXIS 298 ( Ky. 1914 ); Manwaring v. Geisler, 191 Ky. 532 , 230 S.W. 918, 1921 Ky. LEXIS 336 ( Ky. 1921 ).

5.Accrual of Action.

Action accrues against principal and surety at the same time. McGovern v. Rectanus, 139 Ky. 365 , 105 S.W. 965, 32 Ky. L. Rptr. 364 , 1907 Ky. LEXIS 10 ( Ky. 1907 ).

6.Default, Notice of.

Heirs are under no duty to give notice to sureties on administrator’s bond of defaults or mismanagement by administrator known to heirs. Kaufman v. Kaufman's Adm'r, 292 Ky. 351 , 166 S.W.2d 860, 1942 Ky. LEXIS 102 ( Ky. 1942 ).

7.Pleadings.

An action is properly brought in the name of the commonwealth and the party in interest. United States Fidelity & Guaranty Co. v. Commonwealth, 104 S.W. 1029, 31 Ky. L. Rptr. 1179 (1907).

The principal and surety may be sued jointly or severally. McGovern v. Rectanus, 139 Ky. 365 , 105 S.W. 965, 32 Ky. L. Rptr. 364 , 1907 Ky. LEXIS 10 ( Ky. 1907 ).

Petition need not allege approval or acceptance of bond. Commonwealth use of Rosenthal v. Teel, 111 S.W. 340, 33 Ky. L. Rptr. 741 (1908).

An action in the name of the party in interest, and of the commonwealth for the use of the party in interest, is not subject to special demurrer. Commonwealth use of Rosenthal v. Teel, 111 S.W. 340, 33 Ky. L. Rptr. 741 (1908).

Petition should negate presumption of the officer’s innocence of wrongdoing. Commonwealth use of Rosenthal v. Teel, 111 S.W. 340, 33 Ky. L. Rptr. 741 (1908).

Omission is pleading to fill in blank as to amount of bond is not ground for demurrer, but should be reached by motion in the trial court. The question may not be raised for the first time on appeal. Johnson v. Dodd's Adm'r, 238 Ky. 194 , 37 S.W.2d 26, 1931 Ky. LEXIS 208 ( Ky. 1931 ).

8.Recovery of Interest.

Interest is recoverable against a surety on a bond for the payment of money or damages for its nonpayment; but not in an action on the bond for damages for a tort except the interest on the judgment. Waddle v. Wilson, 164 Ky. 228 , 175 S.W. 382, 1915 Ky. LEXIS 367 ( Ky. 1915 ).

In action for an unliquidated claim on committee’s bond, it was not error to allow interest only from date of judgment. Fidelity & Casualty Co. v. Downey, 284 Ky. 2 , 284 Ky. 72 , 143 S.W.2d 869, 1940 Ky. LEXIS 444 ( Ky. 1940 ).

9.Punitive Damages.

Sheriff and his sureties are not liable for punitive damages for acts done by his deputies. Johnson v. Williams' Adm'r, 111 Ky. 289 , 63 S.W. 759, 23 Ky. L. Rptr. 658 , 1901 Ky. LEXIS 206 ( Ky. 1901 ).

10.Actions Against Sheriff, Deputy Sheriff or Marshal.

Sheriff is liable on his bond for misconduct in office of his deputies. Johnson v. Williams' Adm'r, 111 Ky. 289 , 63 S.W. 759, 23 Ky. L. Rptr. 658 , 1901 Ky. LEXIS 206 ( Ky. 1901 ).

A bond to “the town of McHenry” authorizes recovery on bond of marshal for unlawfully killing a prisoner. Growbarger v. United States Fidelity & Guaranty Co., 126 Ky. 118 , 102 S.W. 873, 31 Ky. L. Rptr. 555 , 1907 Ky. LEXIS 24 ( Ky. 1907 ).

The bond of a deputy sheriff given pursuant to KRS 134.200 runs to the sheriff alone, and a person injured by the malicious acts of the deputy cannot maintain an action against the sureties on the bond. Casey v. Fidelity & Casualty Co., 278 Ky. 426 , 128 S.W.2d 939, 1939 Ky. LEXIS 449 ( Ky. 1939 ).

11.Sureties.
12.— Liability.

Surety is liable on official bond which was voluntarily renewed or continued in effect by the surety’s acceptance of premium covering the period during which the officer was openly and publicly performing the duties of his office as a “de facto” officer with knowledge of the surety or under such circumstances as would have disclosed such fact to the surety by the exercise of ordinary care. Fidelity & Deposit Co. v. Combs, 176 F. Supp. 756, 1959 U.S. Dist. LEXIS 2857 (D. Ky. 1959 ).

Surety is not liable for punitive damages, but only for compensatory damages. Scott v. Commonwealth, 93 S.W. 668, 29 Ky. L. Rptr. 571 (1906); Growbarger v. United States Fidelity & Guaranty Co., 126 Ky. 118 , 102 S.W. 873, 31 Ky. L. Rptr. 555 , 1907 Ky. LEXIS 24 ( Ky. 1907 ); United States Fidelity & G. Co. v. Milstead, 109 S.W. 875, 33 Ky. L. Rptr. 186 (1908).

Insufficiency of guardian’s bond not being the cause of loss, the surety was not liable. United States Fidelity & Guaranty Co. v. Drinkard, 250 Ky. 695 , 63 S.W.2d 916, 1933 Ky. LEXIS 761 ( Ky. 1933 ).

The surety on the official bond of a public officer is not liable for the misconduct of the officer when acting in his private and not his official capacity. The bond is designed to protect the public against official, not private misconduct. Massey v. Standard Acc. Ins. Co., 280 Ky. 23 , 132 S.W.2d 530, 1939 Ky. LEXIS 63 (Ky. Ct. App. 1939).

13.— — Limitation.

Sureties are liable only to the extent of the penalty named in the bond, whether in recovery by one or several actions by different plaintiffs. Waddle v. Wilson, 164 Ky. 228 , 175 S.W. 382, 1915 Ky. LEXIS 367 ( Ky. 1915 ).

The limitation of surety’s liability applies to the recovery and not to the prayer of the pleading. Morton v. Sanders, 178 Ky. 836 , 200 S.W. 24, 1918 Ky. LEXIS 467 ( Ky. 1918 ).

The surety is not an insurer against depreciation. United States Fidelity & Guaranty Co. v. Drinkard, 250 Ky. 695 , 63 S.W.2d 916, 1933 Ky. LEXIS 761 ( Ky. 1933 ).

The surety is not liable beyond the sum provided in the bond. National Surety Co. v. Commonwealth, 253 Ky. 607 , 69 S.W.2d 1007, 1934 Ky. LEXIS 694 ( Ky. 1934 ).

Whether the annual renewals of an official bond constitute merely a continuation of the original bond contract, so as to limit the total liability of the surety to the original penal sum, or whether each renewal constitutes a separate contract, so as to make the surety liable each year for a sum equal to the penal sum of the original bond, depends upon the terms and conditions stated in the bond and renewal clauses. Middlesboro v. American Surety Co., 307 Ky. 769 , 211 S.W.2d 670, 1947 Ky. LEXIS 1035 ( Ky. 1947 ).

The surety on a guardian’s bond cannot be charged with interest from the date of the loss of the ward’s estate when that interest will result in a recovery larger than the face amount of the bond. Polk v. American Casualty Co., 816 S.W.2d 178, 1991 Ky. LEXIS 141 ( Ky. 1991 ).

14.— Apportionment of Judgments Against.

If there be two or more judgments of equal dignity in favor of different plaintiffs against the sureties on a bond, and their total exceeds the penalty, it will be apportioned. Waddle v. Wilson, 164 Ky. 228 , 175 S.W. 382, 1915 Ky. LEXIS 367 ( Ky. 1915 ).

15.— Indemnification.

Sureties are entitled to indemnity, though the principal does not sign the bond. Allen v. Jenkins, 157 Ky. 406 , 163 S.W. 234, 1914 Ky. LEXIS 298 ( Ky. 1914 ).

16.— Release.

Sureties on an official bond are not released by the negligence of other officers. Commonwealth v. Tate, 89 Ky. 587 , 13 S.W. 113, 12 Ky. L. Rptr. 1 , 1890 Ky. LEXIS 29 ( Ky. 1890 ); Wade v. Mt. Sterling, 33 S.W. 1113, 18 Ky. L. Rptr. 377 (1896).

17.Sovereign Immunity.

Fire protection district’s suit against tax collection officials, including a county court clerk, a sheriff, and a county assessor or property valuation administrator, based on the officials’ failure to collect personal property tax pursuant to KRS 75.015 , was properly dismissed because sovereign immunity shielded the officials from liability; contrary to the district’s claim, the fact that the officials posted performance bonds did not amount to a waiver of sovereign immunity. Such waiver was found only where it was established by express language or by overwhelming implications. St. Matthews Fire Prot. Dist. v. Aubrey, 304 S.W.3d 56, 2009 Ky. App. LEXIS 47 (Ky. Ct. App. 2009).

Opinions of Attorney General.

Although no penalty is provided for the clerks lodging a chattel mortagage without the registration receipt being produced so the lien can be noted on it, if injury results to a third party as a result of such failure, the clerk may be held liable in a civil action. OAG 62-515 .

Research References and Practice Aids

Cross-References.

Auditor liable for acts of assistants, KRS 43.030 .

Constable, motion against and recovery on bond of, KRS 70.410 , 70.420 .

Escape of prisoner, officers liable for, KRS 440.040 .

Expenditure of tax for purpose other than for which levied, local officials liable for, KRS 68.100 .

Judgments in favor of commonwealth, unpaid, liability of circuit clerk for, KRS 135.030 .

Limitation of action against surety on bond given in judicial proceeding, KRS 413.220 .

Limitation of action on official bond, KRS 413.090 .

Master commissioner, special bond, actions that must be brought on, KRS 31A.020.

Peace officer, continuation of bond of, after removal and until reinstatement, KRS 63.160 .

Official misconduct, KRS 522.010 to 522.040 .

Sale bond, liability for officer taking insufficient, KRS 426.610 .

Sheriff:

Liability for failure to return execution in time, KRS 426.350 , 426.360 .

Liability for nonpayment of money on writ of execution, KRS 426.360 .

Revenue collector, bond as, KRS 134.230 .

Suits on bond of sheriff may be brought in Franklin Circuit Court, KRS 135.080 .

Sureties’ liabilities for excess advancements to sheriffs, KRS 64.140 .

Sureties’ rights and liabilities when sheriff dies or vacates office, KRS 70.110 .

Treasurer, county, liability for signing warrants in excess of budget funds, KRS 68.300 , 68.990 .

ALR

Clerk, assistant or deputy, liability on officer’s bond for theft of public money by. 102 A.L.R. 179; 116 A.L.R. 1064; 71 A.L.R.2d 1140.

Clerk of court, liability on bond of, for money paid into his hands by virtue of his office. 59 A.L.R. 60.

Embezzlement statute, what constitutes public finds or public money within. 123 A.L.R. 478.

Liability of constable or his bond for defaults and misfeasances of his assistants and deputies. 1 A.L.R. 236; 102 A.L.R. 174; 116 A.L.R. 1064; 71 A.L.R.2d 1140.

Liability of public officer or his bond to public body in respect of fees or charges which he illegally or improperly collected from members of public. 99 A.L.R. 647.

Liability on bond of police or other peace officer for defamation. 13 A.L.R.2d 902.

Malfeasance in office, public officer’s bond as subject to forfeiture for. 4 A.L.R.2d 1348.

Outgoing officer’s failure to see that person to whom public moneys are turned over is a duly qualified successor as affecting liability on his bond. 106 A.L.R. 195.

Personal liability on bond of policemen, sheriff, or other peace officer, for negligently causing personal injury or death. 60 A.L.R.2d 873.

What period of limitation governs in an action against a public officer and the surety on his official bond. 18 A.L.R.2d 1176.

62.080. Liability for public funds placed in depository.

All persons required by law to give bonds for the discharge or performance of any public or fiducial office, trust or employment are relieved from all liability as insurers of funds that come into their hands or subject to their control after the funds are deposited in good faith in a depository or depositories in the county approved by the fiscal court, and the obligors in the bonds shall not be responsible for loss of, or delay in payment of such funds by reason of the failure or suspension of such depository.

History. 186d-1.

NOTES TO DECISIONS

1.Designation of Depository.

The council of a fourth-class city may designate its depository, the legislature not having given that right to the treasurer, nor withdrawn it from the council. Stephens v. Ludlow, 159 Ky. 729 , 169 S.W. 473, 1914 Ky. LEXIS 871 ( Ky. 1914 ).

A fiscal court has no authority to designate a depository for funds of a drainage district. Taylor v. Fidelity & Casualty Co., 246 Ky. 598 , 55 S.W.2d 410, 1932 Ky. LEXIS 811 ( Ky. 1932 ).

An officer or board of a governmental division of the state has no authority by virtue of their position and independently of a statute, to designate a depository of funds of the particular agency. Taylor v. Fidelity & Casualty Co., 246 Ky. 598 , 55 S.W.2d 410, 1932 Ky. LEXIS 811 ( Ky. 1932 ).

2.Liability of Public Official.

Liability of public official for money collected and received is that of a bailee. Commonwealth v. Bodley, 31 S.W. 463, 17 Ky. L. Rptr. 561 (1895); Johnson v. Fleming, 116 Ky. 680 , 50 S.W. 855, 21 Ky. L. Rptr. 4 , 1899 Ky. LEXIS 5 ( Ky. 1899 ); Commonwealth v. Fisher, 113 Ky. 49 1, 68 S.W. 855, 24 Ky. L. Rptr. 300 , 1902 Ky. LEXIS 91 ( Ky. 1902 ); Sweeney v. Commonwealth, 118 Ky. 912 , 82 S.W. 639, 26 Ky. L. Rptr. 877 , 1904 Ky. LEXIS 125 ( Ky. 1904 ); Hill v. Flemming, 128 Ky. 201 , 107 S.W. 764 ( Ky. 1908 ); Denny v. Thompson, 236 Ky. 714 , 33 S.W.2d 670, 1930 Ky. LEXIS 819 ( Ky. 1930 ); Breckinridge County v. Gannaway, 243 Ky. 49 , 47 S.W.2d 934, 1932 Ky. LEXIS 32 ( Ky. 1932 ); Edwards v. Logan County, 244 Ky. 296 , 50 S.W.2d 83, 1932 Ky. LEXIS 393 ( Ky. 1932 ); Jordon v. Baker, 252 Ky. 40 , 66 S.W.2d 84, 1933 Ky. LEXIS 1007 ( Ky. 1933 ); Board of Education v. Hatton, 253 Ky. 828 , 70 S.W.2d 923, 1934 Ky. LEXIS 746 ( Ky. 1934 ); Commonwealth v. Polk, 256 Ky. 100 , 75 S.W.2d 761, 1934 Ky. LEXIS 361 ( Ky. 1934 ); Phillips v. Board of Education, 283 Ky. 173 , 140 S.W.2d 819, 1940 Ky. LEXIS 292 ( Ky. 1940 ).

3.Liability of Principal.

When the principal of the officer selects the depository, the principal and not the officer assumes responsibility for the solvency of the depository. Commonwealth v. Godshaw, 92 Ky. 435 , 17 S.W. 737, 13 Ky. L. Rptr. 572 , 1891 Ky. LEXIS 161 ( Ky. 1891 ); Stephens v. Ludlow, 159 Ky. 729 , 169 S.W. 473, 1914 Ky. LEXIS 871 ( Ky. 1914 ); Edwards v. Logan County, 244 Ky. 296 , 50 S.W.2d 83, 1932 Ky. LEXIS 393 ( Ky. 1932 ). See Taylor v. Fidelity & Casualty Co., 246 Ky. 598 , 55 S.W.2d 410, 1932 Ky. LEXIS 811 ( Ky. 1932 ).

Opinions of Attorney General.

The sheriff may designate a depository subject to approval of the fiscal court and the fiscal court could not arbitrarily disapprove a depository so designated by the sheriff. OAG 70-68 .

Under this section money coming into the hands of the circuit clerk’s office must seemingly be deposited in a bank in the county in which the fiscal court is located. OAG 72-264 .

Research References and Practice Aids

Cross-References.

Officer of county having population of 75,000 not liable for default of approved depository, KRS 64.365 .

62.090. Proceeding for release and indemnity of sureties — Where brought.

If a surety in any official bond, or bond of a personal representative, guardian, conservator, curator, assignee or trustee, master commissioner, receiver, or in any bond or covenant which by law may be required to be executed in court, or before an officer at the commencement or during the progress of any civil judicial proceeding, wishes to be relieved from future liability and to obtain indemnity for liability already incurred, or either, he may file a motion in the court in which the original bond was given or in whose clerk’s office the bond is required to be kept. If the bond was not given in any court or is not required to be kept in any office, the motion shall be filed in the Circuit Court of the county in which the principal resides, or if the principal has no residence in this state, then in the Circuit Court of the county of the residence of the surety. The motion may be filed in the court or the motion and notice, with return showing service, may be filed in the office of the clerk of the court.

History. 4659, 4664: amend. Acts 1978, ch. 92, § 5, effective June 17, 1978; 1982, ch. 141, § 47, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 50 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Construction.

If there is any conflict between this section, KRS 134.230 and 134.260 , this section controls over the other two. Fidelity & Deposit Co. v. Logan, 230 Ky. 776 , 20 S.W.2d 753, 1929 Ky. LEXIS 174 ( Ky. 1929 ).

2.Application.

This section applies to all classes of sureties. Fidelity & Deposit Co. v. Logan, 230 Ky. 776 , 20 S.W.2d 753, 1929 Ky. LEXIS 174 ( Ky. 1929 ).

This section has no application to bonds to perform a judgment of court. Detroit Fidelity & Surety Co. v. Gilliam, 237 Ky. 425 , 34 S.W.2d 971, 1931 Ky. LEXIS 557 ( Ky. 1931 ).

3.Liabilities Prior to Execution of New Bond.

As between motioners for release and new sureties, motioners are liable only for defalcations occurring before execution of the new bond. Jones v. Gallatine County, 78 Ky. 491 , 1879 Ky. LEXIS 98 ( Ky. 1879 ); Abshire v. Rowe, 112 Ky. 545 , 66 S.W. 394, 23 Ky. L. Rptr. 1854 , 1902 Ky. LEXIS 196 ( Ky. 1902 ); Johnson v. Jones, 68 S.W. 14, 24 Ky. L. Rptr. 16 (1902).

When defalcation occurred before execution of new bond, then in absence of motion for indemnity the liability of all sureties on all bonds is coextensive. Abshire v. Rowe, 112 Ky. 545 , 66 S.W. 394, 23 Ky. L. Rptr. 1854 , 1902 Ky. LEXIS 196 ( Ky. 1902 ).

4.Indemnification.

Indemnity does not release motioner from past liability. Pepper v. Donnelly, 87 Ky. 259 , 8 S.W. 441, 10 Ky. L. Rptr. 140 , 1888 Ky. LEXIS 73 ( Ky. 1888 ); Fidelity & Deposit Co. v. Husbands, 174 Ky. 200 , 192 S.W. 51, 1917 Ky. LEXIS 184 ( Ky. 1917 ).

Motioner may look to indemnity for reimbursement. Pepper v. Donnelly, 87 Ky. 259 , 8 S.W. 441, 10 Ky. L. Rptr. 140 , 1888 Ky. LEXIS 73 ( Ky. 1888 ).

When new bond indemnifies motioners, then, as between motioners and new sureties, the new sureties are liable for the whole defalcation, whenever committed. Abshire v. Rowe, 112 Ky. 545 , 66 S.W. 394, 23 Ky. L. Rptr. 1854 , 1902 Ky. LEXIS 196 ( Ky. 1902 ); Fidelity & Deposit Co. v. Husbands, 174 Ky. 200 , 192 S.W. 51, 1917 Ky. LEXIS 184 ( Ky. 1917 ).

Where trustee had mortgaged realty to sureties on his bond to indemnify them against loss to secure eventual accounting of trustee to cestui que trust which originated and was administered in a different county, the circuit court of the county in which the real estate was located had jurisdiction to enforce the lien even though it might not render a judgment which in and of itself would be a final and indisputable settlement of the accounts of the trustee of proper record. Slack v. Winburn, 281 Ky. 464 , 136 S.W.2d 579, 1940 Ky. LEXIS 59 ( Ky. 1940 ).

5.Duty of Court, Enforcement.

When county judge (now county judge/executive) refuses to perform a mandatory duty under this section, the proper remedy is by mandamus in circuit court. Fidelity & Deposit Co. v. Gardner, 223 Ky. 196 , 3 S.W.2d 219, 1928 Ky. LEXIS 308 ( Ky. 1928 ); Fidelity & Deposit Co. v. Logan, 230 Ky. 776 , 20 S.W.2d 753, 1929 Ky. LEXIS 174 ( Ky. 1929 ).

6.Sureties.

Ward may sue all sureties liable, though on different bonds, in one action. Sievers v. Havens, 5 Ky. L. Rptr. 856 (1884); Abshire v. Rowe, 112 Ky. 545 , 66 S.W. 394, 23 Ky. L. Rptr. 1854 , 1902 Ky. LEXIS 196 ( Ky. 1902 ).

In action by Commonwealth against sureties on bonds of clerk of county court, sureties on second bond could not be held liable for defalcations in accounts that occurred prior to execution and approval of the second bond where the second bond did not have retroactive operation. Commonwealth v. Slack, 291 S.W.2d 553, 1956 Ky. LEXIS 387 ( Ky. 1956 ).

Surety on bond is liable for interest from date of judgment and he cannot avoid liability by asserting claim against him was not liquidated. Commonwealth v. Slack, 291 S.W.2d 553, 1956 Ky. LEXIS 387 ( Ky. 1956 ).

Where the bond executed by the surety guaranteed the faithful performance of the administrator in carrying out his duties and further guaranteed proper distribution of any surplus money, effects and returns which might come to his hands or to anyone for him by color of his office, the surety was liable on a certificate of deposit wrongfully cashed by the administrator under color of office. Maryland Casualty Co. v. McCormack, 488 S.W.2d 347, 1972 Ky. LEXIS 42 ( Ky. 1972 ).

7.— Release.

Execution of new bond does not release motioner as to past liability. Pepper v. Donnelly, 87 Ky. 259 , 8 S.W. 441, 10 Ky. L. Rptr. 140 , 1888 Ky. LEXIS 73 ( Ky. 1888 ); Fidelity & Deposit Co. v. Husbands, 174 Ky. 200 , 192 S.W. 51, 1917 Ky. LEXIS 184 ( Ky. 1917 ).

As between sureties who did not move for release and new sureties, all stand alike. Abshire v. Rowe, 112 Ky. 545 , 66 S.W. 394, 23 Ky. L. Rptr. 1854 , 1902 Ky. LEXIS 196 ( Ky. 1902 ).

Sureties on old bond who did not move for release are continued upon their liability. Abshire v. Rowe, 112 Ky. 545 , 66 S.W. 394, 23 Ky. L. Rptr. 1854 , 1902 Ky. LEXIS 196 ( Ky. 1902 ).

Court may not release surety other than as herein provided. Barker v. Boyd, 71 S.W. 528, 24 Ky. L. Rptr. 1389 (1903).

Execution of subsequent bond does not have effect of releasing sureties on first bond unless made pursuant to this section. Detroit Fidelity & Surety Co. v. Gilliam, 237 Ky. 425 , 34 S.W.2d 971, 1931 Ky. LEXIS 557 ( Ky. 1931 ).

Sureties on former bonds of trustees were not released when trustees made a settlement and filed a report showing the nature of securities in which the trust funds were invested and executed a new bond pursuant to order of the court made upon motion of one of the heirs of the grantor in the trust deed where there was no motion or action of any kind upon the part of the trustee or the sureties on the first two bonds to have the sureties released or in any way indemnified nor any order of the court to release them but the later bonds were additional and cumulative and the sureties on the various bonds were cosureties. Winston v. Slaton, 267 Ky. 831 , 103 S.W.2d 675, 1937 Ky. LEXIS 403 ( Ky. 1937 ).

The principal can only be relieved from liability for premiums on a surety bond when the surety is relieved from further liability in the manner provided by law. Fidelity & Deposit Co. v. McComas' Adm'r, 295 Ky. 850 , 175 S.W.2d 1017, 1943 Ky. LEXIS 358 ( Ky. 1943 ).

8.— Contributions.

Although a purported release of an old surety might be void, yet where guardian thereafter by surrendering partial control of the estate of his ward to his new surety became guarantor of said estate, the new surety was not then entitled to contribution from the old surety. Foley's Adm'r v. Robertson's Guardian, 215 Ky. 647 , 286 S.W. 851, 1926 Ky. LEXIS 770 ( Ky. 1926 ).

When principal and new surety by their acts became guarantors of the estate, thus increasing the liability of the bond, the new surety may not have contribution from the old surety. Foley's Adm'r v. Robertson's Guardian, 215 Ky. 647 , 286 S.W. 851, 1926 Ky. LEXIS 770 ( Ky. 1926 ).

Where prior sureties failed to avail themselves of the remedy provided by this section, to obtain their release, because of representations made by subsequent surety’s agent, subsequent surety was estopped to maintain action for contribution against prior sureties. National Union Indem. Co. v. Giles, 275 Ky. 171 , 120 S.W.2d 1043, 1938 Ky. LEXIS 388 ( Ky. 1938 ).

9.Defalcation.

Burden of proving time of defalcation is upon guardian and his surety and not upon his ward. Boyd v. Withers, 103 Ky. 698 , 46 S.W. 13, 20 Ky. L. Rptr. 511 , 1898 Ky. LEXIS 115 ( Ky. 1898 ); Fidelity & Deposit Co. v. Husbands, 174 Ky. 200 , 192 S.W. 51, 1917 Ky. LEXIS 184 ( Ky. 1917 ).

10.Estate, Bond Liable.

That bond is liable which was in effect when the estate lost its identity and could no longer be traced and claimed. Cassilly v. Cochran's Guardian, 13 S.W. 844, 12 Ky. L. Rptr. 119 (1890).

Research References and Practice Aids

Cross-References.

General Assembly to provide for release of sureties on official bonds, Const., § 238.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion of Surety for Release and Indemnity, Form 201.04.

Caldwell’s Kentucky Form Book, 5th Ed., Notice by Surety to Principal for Release and Indemnity, Form 201.03.

ALR

Extent of liability on fidelity bond renewed from year to year. 7 A.L.R.2d 946.

62.100. Notice of proceeding.

  1. The surety shall give written notice to the principal requiring him, by a day named in the notice, to appear before the court in which the motion is filed.
  2. If the principal is within the state, the notice shall be not less than ten (10) days, otherwise there shall be thirty (30) days’ notice to his attorney if he has one in the county where the bond is executed, and if none, there shall be thirty (30) days’ notice published pursuant to KRS Chapter 424.
  3. The notice shall apprise the party of the object of the motion, whether for a new bond with other surety to effect a discharge from future liability, or as indemnity for the past acts of the principal, or for both. If indemnity for liability incurred is one of the objects, notice in like manner shall be given to each of the other sureties in the bond who have not joined in the motion.

History. 4659 to 4661: amend. Acts 1968, ch. 152, § 27.

NOTES TO DECISIONS

1.Release of Surety.

The release of a surety from future liability is effective as of the time the order is entered. Fidelity & Deposit Co. v. Logan, 237 Ky. 565 , 36 S.W.2d 10, 1931 Ky. LEXIS 651 ( Ky. 1931 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion of Surety for Release and Indemnity, Form 201.04.

Caldwell’s Kentucky Form Book, 5th Ed., Notice by Surety to Principal for Release and Indemnity, Form 201.03.

62.110. New bond discharges sureties — Stipulation for indemnity.

If a new bond is given all the sureties making the motion shall be discharged from all liability for the acts of the principal thereafter done. If the object is so specified, the bond shall contain a covenant to indemnify the said sureties against any loss, cost or damage legally incurred by reason of the suretyship.

History. 4663.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion of Surety for Release and Indemnity, Form 201.04.

62.120. Failure to give new bond.

  1. If a new bond is not given on the day named in the notice or fixed by the court, the party moved against shall, if he is an officer, be at once removed from office. If he is not an officer his powers shall be revoked and he shall be deprived of all right further to act in discharge of the duties or functions of the trust, post or employment. The court shall make all needful orders for the protection of the surety and for the benefit of the estate or trust which had been confided to the principal.
  2. If a new bond is not given within thirty (30) days after the day named in the notice the surety shall be automatically released from all further liability and shall not be responsible for any acts of default of the principal thereafter done, notwithstanding a failure to remove the principal from office or to revoke his powers.
  3. If the notice and motion is made by a surety on a bond for costs and a new bond is not executed within the time fixed by the court, the action shall be dismissed. If a new bond is executed, the liability of the former surety shall cease upon its execution.

History. 4664.

62.130. Adoption of proceeding by other sureties or personal representative.

The remedy given to the surety by KRS 62.090 to 62.120 may be adopted by his personal representative. Any surety in the bond may, at any time before the final action upon the motion, unite with the movant and ask for the same relief.

History. 4662.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion of Surety for Release and Indemnity, Form 201.04.

62.140. Premiums on bonds paid by state, when.

  1. Each county clerk, jailer and sheriff whose fees are paid into the State Treasury, and who has the bond required of him by law executed by an incorporated surety company authorized to do a surety business in Kentucky, shall have a claim against the state for the amount of the premium paid by him, payable as other claims are paid, but only if the fees theretofore paid into the State Treasury by such officer are sufficient to pay the premium in addition to his other official expenses theretofore incurred that are entitled to be paid out of such fees. The amount of premium to be paid by the state shall be approved by the judge or court who approved the bond.
  2. Every claim made under this section for the payment of a premium on a bond shall be verified by affidavit of the officer executing the bond as principal.

History. 373a, 3751a-1: amend. Acts 1946, ch. 27, § 7; 1976 (Ex. Sess.), ch. 14, § 20, effective January 2, 1978.

NOTES TO DECISIONS

1.Construction.

This section does not authorize payment by state of premiums on bonds executed by deputy state officers for the benefit of their principal. Dishman v. Coleman, 244 Ky. 239 , 50 S.W.2d 504, 1932 Ky. LEXIS 397 ( Ky. 1932 ).

Research References and Practice Aids

Cross-References.

Bonds paid for by the state, county, city or other district:

Board for municipal electric plant, KRS 96.740 .

City artificial gas commission members, KRS 96.545 .

Utility commissioners in third-class cities, KRS 96.530 .

See notes to KRS 62.155 , Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 (1947).

62.145. Premiums on bonds of county clerks in counties of less than 200,000. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 117; 1966, ch. 255, § 64) was repealed by Acts 1978, ch. 4, § 3, effective February 9, 1978.

62.150. Premiums on bonds of county officers in counties of two hundred thousand population.

All elective or appointive county officers of any county containing a population of two hundred thousand (200,000) or more who, upon assuming their respective offices, are required under the law to execute a bond for the faithful discharge and performance of their duties, and who shall have such bond executed by any incorporated surety company authorized to do a surety business in the State of Kentucky, shall pay the premium on such bond, and the amount paid for such premium shall be and become a valid claim against the county, except where the law provides that it be paid by the state, and shall be paid in the same manner as other claims are paid. In each case in which a claim is made for the payment of premium on the bond executed as above set out, the officer executing the bond as principal shall verify the claim by his affidavit.

History. Enact. Acts 1942, ch. 52.

Opinions of Attorney General.

In any county that does not have a population of 200,000 or more, where this section does not apply, the fiscal court is not required to pay for the official bond of constables under KRS 70.310 , as the county does for other officials. OAG 95-11 .

Research References and Practice Aids

Cross-References.

See notes to KRS 62.155 , Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 (1947).

62.155. Sheriff’s general obligation bonds and state revenue bond, state to pay premiums on.

With the exception of the sheriff’s county levy bond, and with the exception of those bonds upon which the premium is now paid by the state or county, each sheriff shall have a valid claim against the state for the amounts paid by him for premiums on the bonds required of him by law, when the bonds have been executed by an incorporated surety company authorized to do a surety business in Kentucky, and when the claims are verified by the sheriff’s affidavit. This section is intended to supersede subsection (1) of KRS 62.140 with respect to sheriffs whose fees are paid into the State Treasury.

History. Enact. Acts 1946, ch. 171; 1948, ch. 111; 1958, ch. 126, § 1, effective June 19, 1958.

NOTES TO DECISIONS

1.Constitutionality.

Since sheriffs were not required to furnish corporate surety on bonds when this section became effective, giving sheriffs a claim against Commonwealth for premiums paid surety companies on bonds, payment of premiums by Commonwealth would not amount to an unconstitutional increase in sheriffs’ compensation in violation of Const., §§ 161 and 235. Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 ( Ky. 1947 ).

2.Construction.

The Commonwealth is not required to reimburse sheriff for any part of premiums paid corporate surety prior to effective date of this section, since this section is not retroactive. Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 ( Ky. 1947 ).

3.County Revenue Bond.

The Commonwealth could not be required to pay premiums on sheriff’s county revenue bond under KRS 62.155 , since payment would violate Const., § 176, prohibiting commonwealth from assuming debts of a county, and Const., § 177, prohibiting Commonwealth from pledging credit to any political subdivision. Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 ( Ky. 1947 ).

Opinions of Attorney General.

In counties of 75,000 population or more, the payment of the premiums for the state revenue bond covered in KRS 134.230 and the sheriff’s general performance bond out of the “75% account” is not based on this section but is based upon the specific nature of “necessary office expenses” as mentioned in Const. § 106 and KRS 64.345 and as construed by the courts over the years. OAG 74-561 , modifying OAG 74-413 .

Any sheriff has a valid claim against the state for the payment of his premium on his general obligation and state revenue bonds, but the county must pay the county revenue bond. OAG 76-715 .

Pursuant to this section, the premium on the sheriff’s general revenue bond and his faithful performance bond must be paid by the state; thus, in counties of 75,000 population or more, the chief circuit judge and circuit court, or fiscal court, as the case may be, under KRS 64.345(2), may permit the sheriff to take the subject premium out of the sheriff’s “75% account” where the state has not otherwise paid the premium; however, KRS 44.020 does not apply. OAG 81-336 .

62.156. Sheriff’s county levy bond, county to pay premiums on.

Each sheriff who is required by law to furnish at his own expense a bond for the collection of county revenue shall have a claim against the county for the amount paid for the premium on his county revenue bond when the bond has been executed by an incorporated surety company authorized to do a surety business in Kentucky, and when the claim is verified by his affidavit.

History. Enact. Acts 1948, ch. 211.

Opinions of Attorney General.

Concerning the general revenue bond of the sheriff as tax collector, pursuant to KRS 134.230 , there appears to be no statutory authority for the county’s paying the premium; this section, however, requires the county to pay the premium on the county levy bond treated in KRS 134.250 . OAG 83-293 .

62.160. Bonds of state officers — Minimum sum — Increase or renewal.

  1. The state officers elected by the voters of the state at large, except the Governor and the Lieutenant Governor, the heads of departments, offices, and cabinets of the state government, the adjutant general, the members of the Public Service Commission, the members of the State Fair Board and Fish and Wildlife Resources Commission, and the members of the Board of Tax Appeals, Board of Claims, Crime Victims and the Alcoholic Beverage Control Board, shall each give bond. The amounts of the bonds shall be fixed by the Governor, which amounts as to those offices set forth in subsection (2) of this section shall be not less than the amounts set forth for the respective offices. At any time when it appears to be to the interest of the Commonwealth, the Governor may increase the penal sum of any bond or require a renewal of the bond with other or additional surety.
  2. The minimum sum of the bond for the following offices shall be as follows:

Secretary of State $10,000 Attorney General 10,000 State Treasurer 300,000 Secretary for economic development 10,000 Commissioner of Agriculture 10,000 Secretary for education 10,000 Auditor of Public Accounts 25,000 Adjutant general 10,000 Secretary of finance and administration 100,000 Commissioner of revenue 50,000 Secretary of transportation 50,000 Commissioner of highways 50,000 Secretary of justice and public safety 50,000 Secretary of corrections 25,000 Commissioner for public health services 10,000 Secretary of labor 5,000 Commissioner for natural resources 50,000 State librarian 5,000 Commissioner of alcoholic beverage control 10,000 Commissioner of financial institutions 25,000 Secretary for energy and environment 50,000 Commissioner of insurance 50,000 Commissioner of vehicle regulation 10,000 Commissioner of fish and wildlife resources 5,000 Secretary for health and family services 20,000 Commissioner of environmental protection 10,000 Secretary of public protection 10,000 Secretary of tourism, arts and heritage 25,000 Commissioner for community based services 20,000 Member of the Public Service Commission 10,000 Member of State Fair Board 10,000 Member of Fish and Wildlife Resources Commission 1,000 Member of Board of Tax Appeals 10,000 Member of Board of Claims 10,000 Member of Crime Victims Compensation Board 10,000 Associate member of Alcoholic Beverage Control Board 5,000 Commissioner of local government 100,000

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History. Enact. Acts 1946, ch. 27, § 1; 1966, ch. 255, § 65; 1974, ch. 74, Art. VIII, A., § 1; 1978, ch. 155, § 56, effective June 17, 1978; 1978, ch. 379, § 56, effective April 1, 1979; 1980, ch. 188, § 23, effective July 15, 1980; 1992, ch. 13, § 12, effective July 14, 1992; 1992, ch. 27, § 13, effective March 2,1992; 1998, ch. 426, § 88, effective July 15, 1998; 2000, ch. 14, § 7, effective July 14, 2000; 2005, ch. 99, § 17, effective June 20, 2005; 2005, ch. 123, § 12, effective June 20, 2005; 2006, ch. 211, § 14, effective July 12, 2006; 2007, ch. 85, § 135, effective June 26, 2007; 2009, ch. 16, § 8, effective June 25, 2009; 2010, ch. 24, § 56, effective July 15, 2010; 2017 ch. 74, § 62, effective June 29, 2017; 2021 ch. 185, § 57, effective June 29, 2021.

Research References and Practice Aids

Cross-References.

Bond of commissioner of state police, KRS 16.080 .

62.170. Bonds of state employees — Blanket bonds — Amount — Insurance companies that may participate.

  1. The secretary of the Finance and Administration Cabinet shall secure, except for state officers required by KRS 62.160 to file bond, blanket bonds, with or without cosureties, written on a blanket position form, to cover all other officers, employees, or deputies of the Commonwealth of Kentucky, including all judges, clerks, and employees of the Court of Justice, including all other members of boards or commissions or employees of those boards or commissions, and including all superintendents, receivers, or employees of penal or eleemosynary institutions managed or directed by the Justice and Public Safety Cabinet, the Cabinet for Health and Family Services, or any other department or agency of the Commonwealth of Kentucky. Nothing in this subsection shall be deemed to prohibit the securing of any such blanket position bond on a departmental, board, commission, agency, or institutional basis.
  2. The secretary of the Finance and Administration Cabinet may secure one (1) or more excess blanket bonds, with or without cosureties, to cover selected groups of persons covered by the bond or bonds required in the preceding paragraph to provide additional coverage which he or she may deem necessary by the exposures indicated in accordance with the duties and responsibilities indicated by the personnel classification schedules of the Personnel Cabinet and, for Court of Justice officers and personnel, by the Administrative Office of the Courts and in accordance with the amounts of money and property handled by the respective officers and employees.
  3. Such bond or bonds shall be written by and participated in only by insurance companies licensed by the Department of Insurance to do business in this state and shall be countersigned by a duly authorized licensed resident agent of the company. The bonds may be written with or without cosureties. Further, the bonds are to be a percentage of the total risks, the Department of Insurance to approve the amount of the risk written by any one (1) company.
  4. The penal amount of the bond secured pursuant to this section shall be fixed by the secretary of the Finance and Administration Cabinet in accordance with the duties and responsibilities indicated by the personnel classification schedules of the Personnel Cabinet and, for Court of Justice officers and personnel, by the Administrative Office of the Courts, and in accordance with the amounts of money and property handled by the respective officers and employees.

History. Enact. Acts 1946, ch. 27, § 2; 1956, ch. 153, § 1; 1960, ch. 101; 1974, ch. 74, Art. II, § 9(2); Art. VI, § 36; 1976 (Ex. Sess.), ch. 22, § 76; 1998, ch. 154, § 70, effective July 15, 1998; 1998, ch. 426, § 89, effective July 15, 1998; 2005, ch. 99, § 18, effective June 20, 2005; 2007, ch. 85, § 136, effective June 26, 2007; 2010, ch. 24, § 57, effective July 15, 2010.

Opinions of Attorney General.

The blanket bond covering circuit clerks should contain a covenant for the faithful accounting for and paying over all money and property that may come into their possession by virtue of their office and a covenant for faithful performance of duties. OAG 77-457 .

The county clerk will not be a part of the Court of Justice as of January 2, 1978, and thereafter, thus the county clerk will not be subject to the blanket bond provision of this section. OAG 77-466 .

Research References and Practice Aids

Cross-References.

Blanket and group insurance, KRS 304.18-010 to 304.18-100 .

Bonds of district mine inspectors and inspectors of mine weights, KRS 351.090 .

Bonds of members, officers and employees of Soil and Water Resources Commission, KRS 146.090 .

Bonds of officers and civilian employees of state police, KRS 16.080 .

Bonds of park custodians commissioned as peace officers, KRS 148.056 .

62.180. Condition of bonds of state officers — Ex officio liability.

Each bond provided for in KRS 62.160 shall be a covenant to the Commonwealth of Kentucky that the principal will faithfully discharge his duties and will faithfully account for and pay over all money and property that may come into his possession by virtue of his office or position. Liability on the bond of any officer shall extend to any position held by him ex officio.

History. Enact. Acts 1946, ch. 27, § 3; 1956, ch. 153, § 2, effective May 18, 1956.

62.190. Conditions of blanket bonds.

The bonds provided for by section 62.170 of the Kentucky Revised Statutes shall be covenants to the Commonwealth of Kentucky that the officers, employees or holders of positions covered by the bond will faithfully account for and pay over all money and property that may come into their possession by virtue of their office, employment or position.

History. Enact. Acts 1946, ch. 27, § 4; 1950, ch. 23, § 1; 1956, ch. 153, § 3, effective May 18, 1956.

62.200. Corporate surety on bonds of state officers and employees — Approval as to form and legality — Filing.

  1. Each bond mentioned in KRS 62.160 to 62.190 shall be executed by a corporate surety authorized to do a surety business in Kentucky. No bond shall be accepted until it has been approved by the Attorney General as to form and legality, except the bond of the Attorney General which shall be accepted when approved in such respects by the Governor.
  2. All bonds given pursuant to KRS 62.160 to 62.190 , except the bond of the Secretary of State, shall be filed in the office of the Secretary of State. The bond of the Secretary of State shall be filed in the office of the Governor.

History. Enact. Acts 1946, ch. 27, § 5; 1950, ch. 23, § 2.

Opinions of Attorney General.

Since membership on a county school board constitutes a state elective office, a person could not hold such position and at the same time continue to serve on the board of supervisors of a soil conservation district. OAG 76-227 .

62.210. Office of county clerk liable for acts of deputy clerk — Liability of deputy clerk to county clerk.

The office of county clerk, rather than the individual holder of the office, shall be liable for the acts or omissions of deputy clerks. When a deputy clerk omits to act or acts in such a way as to render the clerk responsible, and the clerk discharges such responsibility, the deputy clerk shall be liable to the clerk for all damages and costs which are caused by the deputy’s act or omission.

History. Enact. Acts 1978, ch. 364, § 1, effective June 17, 1978.

Opinions of Attorney General.

Since the two sentences of this section are flatly contradictory, it is unworkable and invalid. OAG 79-25 .

Penalties

62.990. Penalties.

  1. Any person who violates KRS 62.010(1) or 62.050(1) on or after the date thirty (30) days after January 27, 1995, shall be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).
    1. If any person violates KRS 62.010(2) or (3) before January 1, 2010, his or her office shall be considered vacant. (2) (a) If any person violates KRS 62.010(2) or (3) before January 1, 2010, his or her office shall be considered vacant.
    2. If any person violates KRS 62.010(2) or (3) on or after January 1, 2010, his office shall be considered vacant, and he shall not be eligible for the same office for two (2) years.
  2. Any person convicted or removed from office under subsection (2) of this section prior to January 10, 1995, may apply to the Circuit Court for relief from the disability of being unable to serve in office. The Circuit Court, upon receipt of the application, shall modify the sentence to remove the disability of holding the office. This subsection shall not be construed to require the removal from office of a person who has been appointed to fill the remainder of the term of a person removed from office under KRS 62.050 and 62.990 .

History. 3753, 3755: amend. Acts 1966, ch. 255, § 66; 1995 (2nd Ex. Sess.), ch. 4, § 3, effective January 27, 1995, retroactive to November 1, 1991; 2009, ch. 7, § 1, effective March 13, 2009.

Compiler’s Notes.

Section 5 of Acts 1995 (2nd Ex. Sess.), ch. 5 read: “Whereas, it appears that some officers mentioned in Section 103 of the Constitution of Kentucky have not secured bond as required by the statutes and are in jeopardy of removal from office if the situation is not corrected, an emergency is declared to exist, and this Act shall become effective upon its passage and approval by the Governor and its provisions, except for the fine increase in KRS 62.050 , shall be deemed retroactive to November 1, 1991.”

Legislative Research Commission Note.

(3/13/2009). The Reviser of Statutes has corrected a manifest clerical or typographical error in this statute under the authority of KRS 7.136(1)(h).

(1/27/95; modified 8/26/97). The change in the fine for KRS 62.050 set out in subsection (1) of this statute is effective January 27, 1995, and the other changes to this statute made by 1995 (2d Extra. Sess.) Ky. Acts ch. 4, sec. 3 are retroactively effective to November 1, 1991, pursuant to 1995 (2d Extra. Sess.) ch. 4, sec. 5. (This note was modified for clarification and to correct the reference to subsection (1) of this statute.)

NOTES TO DECISIONS

1.Additional Oaths.

Where members of the school board had taken the constitutional oath (Const., § 228) referred to in KRS 62.010 , but inadvertently and innocently omitted to take a further oath prescribed by KRS 160.170 until five months later when they discovered the omission at which time they executed the oath in writing and caused it to be filed in the records of the school board, they did not forfeit their office or authorize their removal particularly since the statute creating KRS 160.170 did not specifically provide any penalty for failure to take the oath. Commonwealth ex rel. Breckinridge v. Marshall, 361 S.W.2d 103, 1962 Ky. LEXIS 228 ( Ky. 1962 ).

Cited:

Bowen v. Commonwealth ex rel. Stidham, 887 S.W.2d 350, 1994 Ky. LEXIS 110 ( Ky. 1994 ).

Opinions of Attorney General.

The penalty provision of subsection (2) of this section is not automatic, but requires some action of a judicial nature to be taken in order to remove the officer if he fails or refuses to resign and continues to attempt to execute the duties thereof. OAG 80-2 .

While a Notary Public should make every effort to take the required oath of office within 30 days after receiving notice of appointment, apparently the oath of office may be taken within a reasonable time thereafter provided there is a reasonable excuse for the delay; failure to take the required oath within a reasonable time after the time period set forth in the statute would subject the Notary Public to the penalty provisions of KRS 62.990 . OAG 90-139 .

A council member who had a valid excuse, illness, for not taking the oath of office on January 1 and who took the oath two day s later on January 3, was not disqualified from holding office. A city councilmember who takes the oath of office within a reasonable time after January 1 is not disqualified from office. OAG-13-003.

CHAPTER 63 Resignations, Removals, and Vacancies

Resignations

63.010. Resignations — How made — To whom tendered — Record of.

All resignations of office shall be tendered in writing to the court or officer required to fill the vacancy, and received and recorded by the court or officer in its or his records. Resignations to the Governor shall be recorded in the Executive Journal.

History. 1530.

NOTES TO DECISIONS

1.Tender of Resignation.
2.— Method.

A resignation tendered to the wrong person or body is a nullity. Shacklett v. Island, 146 Ky. 798 , 143 S.W. 369, 1912 Ky. LEXIS 143 ( Ky. 1912 ).

Oral attempts to resign are ineffective. Taylor v. Johnson, 148 Ky. 649 , 147 S.W. 375, 1912 Ky. LEXIS 506 ( Ky. 1912 ).

Under this section, a resignation must be tendered in writing to the person having the power to appoint a successor, and a resignation tendered to any other person or body is a nullity. Sparks v. Adkins, 304 Ky. 212 , 200 S.W.2d 307, 1947 Ky. LEXIS 615 ( Ky. 1947 ).

A telegraphed message was a sufficient writing to constitute a tender of resignation under this section. Blackburn v. Paducah, 441 S.W.2d 395, 1969 Ky. LEXIS 310 ( Ky. 1969 ).

Typewriting, printing and a telegram are kinds of “writing” and how a telegraphic message is communicated to the transcriber is not significant since it is the end product which this section requires to be in writing. Blackburn v. Paducah, 441 S.W.2d 395, 1969 Ky. LEXIS 310 ( Ky. 1969 ).

Where chairman orally stated to other trustees that he was resigning from board of trustees of city, such oral resignation was void under this section and subsequent election of new trustee by other trustees was invalid under KRS 88.230 (repealed), thus annexation ordinance could not be validly enacted by such improperly constituted board. Lile v. Powderly, 612 S.W.2d 762, 1981 Ky. App. LEXIS 225 (Ky. Ct. App. 1981).

3.— Effect.

Resignations are effective when accepted by the proper authority, or by equivalent action, such as the appointment of a successor. Commonwealth ex rel. Wootton v. Berninger, 255 Ky. 451 , 74 S.W.2d 932, 1934 Ky. LEXIS 265 ( Ky. 1934 ).

Resignations filed by two deputy constables with county judge (now county judge/executive), instead of with constable appointing them, were void under this section; hence a mandatory order compelling county judge (now county judge/executive) to sign orders removing deputies from office, filed by constable appointing them and recorded by county clerk, was proper. Sparks v. Adkins, 304 Ky. 212 , 200 S.W.2d 307, 1947 Ky. LEXIS 615 ( Ky. 1947 ).

Where there were four members of a city council of a fifth-class city, when two members tendered their resignations, the council was the proper body to accept the resignations and failure of the council to accept the resignations left the members in office and as there were no vacancies, the Governor was without authority to appoint new members. Daniels v. Adams, 314 Ky. 258 , 234 S.W.2d 742, 1950 Ky. LEXIS 1065 ( Ky. 1950 ).

In the absence of a statute to the contrary the resignation of a public officer does not become effective until accepted by proper authority, or by equivalent action, such as the appointment of a successor. Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ).

An officer against whom ouster proceedings are pending cannot by relinquishing office with consent of person required to fill the vacancy evade any of the substantial consequences attached by law to an adverse determination of the matter. Frederick v. Combs, 354 S.W.2d 506, 1962 Ky. LEXIS 46 ( Ky. 1962 ).

Cited:

Smith v. McDermott, 313 Ky. 184 , 230 S.W.2d 636, 1950 Ky. LEXIS 844 ( Ky. 1950 ).

Opinions of Attorney General.

The resignation of a member of the county board of education became effective when it was accepted. OAG 61-742 .

The resignation of a police judge of a city of the sixth class should be submitted to the Governor in writing. OAG 70-459 .

Police are municipal officers appointed to serve a term subject to removal only for cause so that when such officers were not removed and resigned verbally rather than in writing and to the mayor rather than to the city council, such resignations did not comply with the resignation requirements of this section and the action taken by the mayor in accepting the resignations and that of the city council in ratifying the same, would be invalid. OAG 73-870 .

As ASC regulations provide that an elected official is not eligible to serve as a member of the county ASC committee, a magistrate elected committeeman must resign by submitting his resignation to the Governor, who has the authority to fill the vacancy, but the resignation must be received and accepted prior to the date on which the individual entered the office of county committeeman in order to be effective. OAG 74-36 .

In view of this section and KRS 160.190, the resignation of a board of education member is not effective, and there is no vacancy on the board, until the resignation is tendered in writing and accepted by the board. OAG 75-635 .

Where a state senator’s letter of resignation was submitted to the President of the Senate on the next to last day of the session, the President of the Senate as the presiding officer of the house in which the legislative vacancy occurred would be required to issue a writ of election to fill the vacancy for the unexpired term. OAG 76-267 .

Where the mayor submitted his resignation but it was never officially accepted by the council and the council named one of its members mayor pro tem but did not name him mayor, the mayor had the right to withdraw his resignation up until the time it was either duly accepted by a proper vote of the council or up to the time a person was named as his successor and where neither of these events take place the mayor still legally holds the office. OAG 76-442 .

Anyone who wishes to resign from the housing authority must tender his or her resignation in writing directly to the appointing authority, which in this case is the fiscal court. OAG 78-161 .

Resignations not only must be tendered in writing to the person authorized to fill the vacancy but must be accepted by the officer, either by some notation or recording of same or by appointment of someone to fill the vacancy. OAG 79-42 .

The appointing authority may make an appointment in advance of the time that a member’s resignation becomes effective, provided, of course, that the appointing authority would be authorized to fill the vacancy when it actually occurs. OAG 79-42 .

The city council may appoint any qualified resident of the city to fill a vacancy in the office of mayor. OAG 79-42 .

When a resignation is once made to the appointing authority and accepted, it may not be withdrawn unless the resignation was conditioned so as to make it voidable if the condition was not performed and the fact that a resignation was accepted but made effective at a later date would not alter the fact that the resignation was accepted when tendered. OAG 79-42 .

If the letter of the elected county jailer which contained an explicit resignation effective April 1, 1982, was tendered to the county judge/executive, then the resignation was effective, regardless of a later letter in which he attempted to withdraw his resignation, where the county judge/executive communicated no acceptance of the resignation, but did the equivalent of appointing a successor. OAG 82-222 .

Resignation of a public officer does not become effective until accepted by the proper authority, or by equivalent action, such as the appointment of a successor. OAG 82-222 .

The requirement that a resignation be received and recorded by the appointing authority is not a condition precedent for an effective resignation. OAG 82-222 .

This section does not require any communication from the appointing authority that resignation was accepted. OAG 82-222 .

Research References and Practice Aids

ALR

Public officer’s withdrawal of resignation made to be effective at future date. 82 A.L.R.2d 750.

Removals

63.020. Impeachment and removal by address.

Proceedings for impeachment or removal by address may be instituted by the House of Representatives without a petition from any person.

History. 2175.

Opinions of Attorney General.

The only method for removing a police judge for malfeasance, even though he was appointed rather than elected, would be by impeachment under the terms of Const., §§ 66 to 68 and by the procedure prescribed in KRS 63.020 to KRS 63.075 . OAG 64-66 .

Since cities of the fourth class have no provision in their charters for the removal of city officers with the exception of councilman, the only method of removing a police judge for failure to perform his duties would be by impeachment under Const., §§ 66 to 68 and KRS 63.020 before the house of representatives. OAG 70-153 .

The Legislature has not provided any statutory method for the removal from office of a police judge in a city of the fourth class for failure to perform his official duties and the only method whereby he may be removed from office is by impeachment under this section and Const., §§ 66 and 68. OAG 75-352 .

Since the laws pertaining to cities of the fifth class contain no provision for removal of elected city officers the only method to remove members of the city council and the mayor is by impeachment before the General Assembly pursuant to Const., § 68 and this section. OAG 76-631 .

The only method of removing a member of the city council is by impeachment before the General Assembly pursuant to Const., § 68 and this section. OAG 78-155 .

Where members of a city council have allowed city funds to be spent unconstitutionally, they are subject to prosecution under KRS 522.020 and/or 522.030 , taxpayers’ suits for the recovery of the misused funds, and impeachment under Const., §§ 66 to 68 and KRS 63.020 to 63.070 . OAG 79-509 .

Research References and Practice Aids

Cross-References.

Removal of officers generally:

Bond:

Failure to give forfeits office, KRS 62.050 , 62.990 .

Failure to renew forfeits office, KRS 62.120 .

Bribery, conviction of forfeits office, Const., § 150; KRS 432.350 .

Buying, selling or farming office vacates office, KRS 61.010 .

Costs upon proceeding to remove officer, KRS 453.130 .

Dueling disqualifies person from holding office, Const., § 239.

Election laws, officer violating may be removed, KRS 119.175 .

Fees, illegal charging, ground for removal, KRS 64.990 .

Felony, conviction for vacates office, KRS 61.040 .

Free pass, officer receiving forfeits office, Const., § 197.

Impeachments, Const., §§ 66 to 68.

Incompatible office, acceptance of vacates first office, KRS 61.090 .

Interest on public funds, officer receiving disqualified, Const., § 173.

Judgment of conviction to remove officer, KRS 61.170 .

Misfeasance, malfeasance or neglect, ground for removal, Const., § 227; KRS 61.170 .

Mismanagement of state affairs, ground for removal, KRS 45.131 .

Oath, failure to take forfeits office, KRS 62.010 , 62.990 .

Salary limitation in Const., § 246, person violating forfeits office, Const., § 246.

Various officers, manner and ground for removal:

Air pollution control officer and secretary-treasurer of air pollution control district, KRS 77.085 , 77.090 .

Alcoholic Beverage Control Board, KRS 241.100 , 241.990 .

Board for municipal electric plant, KRS 96.760 .

Board of Education, members, KRS 156.132 to 156.142.

Charitable and correctional institutions, officers and employees in, KRS 196.210 , 196.230 .

City officers generally:

Board of adjustment, KRS 100.217 .

Commissioners, KRS 83A.040 .

Councilmen, KRS 83A.040 .

Housing authority, members, KRS 80.090 .

Mayor, KRS 83A.040 .

Planning commissioners, KRS 100.157 .

Recreational commissioners, KRS 97.120 .

Financial Institutions, Department of, officers and employees in, KRS 287.990 , 289.991 .

First-class cities, KRS 83.580 , 83.660 .

Aldermen, KRS 83.470 .

Board of adjustment, KRS 100.217 .

Board of equalization, KRS 91.390 .

Chiefs of divisions, KRS 83.610 .

Civil service board, KRS 90.120 .

Director of health for city and county, KRS 212.420 .

Personnel director, KRS 90.140 .

Planning and zoning commissioners, KRS 100.157 .

Third-class cities:

Electric and water plant board members, KRS 96.172 .

Fifth-class cities, KRS 61.280 .

Sixth-class cities, KRS 61.280 .

Commissioner of judicial circuit, KRS 31A.010.

Constable, KRS 70.990 .

County attorney’s assistant, KRS 69.300 .

County board of elections, KRS 117.035 .

County road engineer and supervisor, KRS 179.020 , 179.060 .

County tax collector, KRS 134.280 .

County tax supervisors, KRS 131.990 , 133.020 .

County treasurer, KRS 68.010 .

Director of health for Louisville and Jefferson County, KRS 212.420 .

District detectives, KRS 69.110 .

Election officers, precinct, KRS 117.045 .

Finance and Administration Cabinet, officers and employees in, KRS 66.990 .

Fish and Wildlife Resources Commission, commissioner of, KRS 150.061 .

Fish and Wildlife Resources Commission, members of, KRS 150.022 .

Guardian, KRS 387.090 , 387.100 .

Health officers:

City-county, KRS 212.660 .

County and city, KRS 212.170 .

District, KRS 212.170 .

Housing authority, members:

City, KRS 80.090 .

County and regional, KRS 80.480 .

Interpreters, KRS 30A.410.

Jailer, deputy, KRS 71.060 .

Judges:

Circuit court, Const., § 121.

County court, Const., § 140; KRS 61.210 .

Court of Appeals, Const., § 112.

Secretary of state to record and notify clerk, KRS 14.060 .

Justices of the peace, Const., § 142; KRS 61.210 .

Kentucky School for Blind, officers and employees of, KRS 167.150.

Labor inspectors, chief and deputies, KRS 336.990 .

Library trustees of city, county or regional library, KRS 173.340 .

Planning commission, KRS 100.157 .

Processioners of land, KRS 73.180 .

Property valuation administrator, Const., § 172; KRS 131.140 , 131.990 , 132.990 .

Deputies, Const., § 172; KRS 132.990 .

Psychologists, board of examiners of, KRS 319.020 .

Public administrator, KRS 395.380 .

Railroad commissioners, Const., § 209.

Receiver for circuit courts, KRS 30A.010, 30A.080.

Representative, state, KRS 6.050 .

Revenue cabinet, officers and employees in, KRS 68.990 , 131.990 , 134.990 .

School district officers and employees, KRS 160.350, 160.390, 160.990, 161.790, 189.540 .

Senator, state, KRS 6.050 .

Sewer district board for metropolitan sewer district, KRS 76.030 .

Sheriff, KRS 70.990 , 134.280 .

Deputies, KRS 70.030 , 134.200 .

Soil Conservation Board of Adjustment, KRS 262.460 .

Soil conservation supervisors, KRS 262.240 .

State Board of Accountancy members, KRS 325.230 .

State fair manager, KRS 247.130 .

Stenographic reporters, KRS 30A.300.

Tax officers, Const., § 172.

Treasurer, county, KRS 68.010 .

Universities or colleges, officers and teachers of, KRS 164.230, 164.360.

Veterinarian, state, KRS 257.210 .

Warehouse inspectors, KRS 359.070.

Warehouse weighers and registrars, KRS 359.070.

Workers’ Compensation Board, employees of, KRS 342.230 .

ALR

Induction or voluntary enlistment in military service as creating a vacancy in, or as ground for removal from public office or employment. 143 A.L.R. 1470; 147 A.L.R. 1427; 148 A.L.R. 1400; 150 A.L.R. 1447; 151 A.L.R. 1462; 152 A.L.R. 1459; 154 A.L.R. 1456; 156 A.L.R. 1457; 157 A.L.R. 1456.

Injunction as remedy against removal of public officer. 34 A.L.R.2d 554.

Removal of public officers for misconduct during previous term. 42 A.L.R.3d 691.

63.030. Petition for impeachment.

  1. Any person may, by written petition to the House of Representatives, signed by himself, verified by his own affidavit and the affidavits of such others as he deems necessary, and setting forth the facts, pray the impeachment of any officer.
  2. The House shall refer the petition to a committee, with power to send for persons and papers, to report thereon.

History. 2172.

NOTES TO DECISIONS

1.Application.

This section provides for the impeachment of officers, which would include judges, and such remedy sufficiently protects the public interest. Commonwealth v. Tartar, 239 S.W.2d 265, 1951 Ky. LEXIS 877 ( Ky. 1951 ).

2.Privileged Communications.

The affidavits and correspondence concerning impeachment, are, if made in good faith, privileged communications, and libel may not be predicated upon them. Yancey v. Commonwealth, 135 Ky. 207 , 122 S.W. 123, 1909 Ky. LEXIS 278 ( Ky. 1909 ).

Research References and Practice Aids

Cross-References.

Evidence, means of production, KRS 421.110 to 421.140 .

63.035. Articles of impeachment.

  1. If an impeachment is recommended by the committee of the House of Representatives to which it is referred, the committee shall draw up the articles of impeachment in accusation of the officer and submit the articles to the House with the recommendation for impeachment.
  2. The articles of impeachment shall state with reasonable certainty the misdemeanor in office for which impeachment is sought; and if there be more than one (1) misdemeanor, each shall be stated separately and distinctly.

History. Enact. Acts 1962, ch. 234, § 11.

63.040. Prosecution — Witnesses.

  1. If an impeachment is ordered by the House of Representatives a committee shall be appointed to prosecute it, and the committee chairman shall, within five (5) days, lay the impeachment before the Senate.
  2. The Senate shall appoint a day for hearing the impeachment. The accused shall be summoned by precept, issued by the clerk of the Senate, to appear on that day. The precept shall be served in person, or a copy left at his residence with a member of his family over the age of sixteen (16) years, together with a copy of the impeachment.
  3. The clerk of the Senate shall, at the instance of the chairman of the committee, or of the accused, issue process for the summoning of witnesses, and the production of books, papers, documents or tangible things. Process so issued shall be executed by peace officers or officers specially appointed by the Senate for that purpose in the same manner as similar process of courts. Upon disobedience to the process, the Senate may order the clerk to issue process for arresting the witnesses and seizing the books, papers, documents or tangible things. Disobedience may be punished in the manner provided for other witnesses before the General Assembly.
  4. A witness so summoned shall receive the same compensation, and have the same privilege in going, remaining and returning, as a witness in Circuit Court.

History. 2172: amend. Acts 1962, ch. 234, § 12.

Research References and Practice Aids

Cross-References.

Evidence, means of production, KRS 421.110 to 421.180 .

Witnesses’ mileage allowance, KRS 421.015 .

63.050. Oath of Senators trying.

Before the Senate proceeds to try an impeachment the presiding officer and every member present shall take the following oath or affirmation: “I do solemnly swear (or affirm) that I will faithfully and impartially try the impeachment against A. B., and give my decision according to the law and the evidence.”

History. 2173.

63.055. Absence of Senators.

The Senate shall determine what amount of absence of a Senator during the trial shall exclude the Senator from voting on the final decision.

History. Enact. Acts 1962, ch. 234, § 13.

63.060. Petition for removal by address.

A person may, in the manner prescribed by KRS 63.030 , petition either the Senate or House of Representatives or both to have an officer removed by address, which petition shall, in like manner, be referred to a committee.

History. 2174.

63.070. Costs of proceeding upon petition.

  1. In a proceeding for impeachment or removal by address, if the committee reports against the petition and the report is not overruled by the house petitioned, the petitioner shall be liable to witnesses and to the accused for the costs of investigation before the committee. These costs shall be taxed by the clerk of the house appointing the committee.
  2. In an impeachment proceeding prosecuted before the Senate, if the accused is acquitted the petitioner shall pay the costs of the accused; and if the accused is convicted, he shall pay the petitioner the costs incurred in behalf of the prosecution. Costs mentioned in this subsection shall be taxed by the clerk of the Senate.
  3. Costs taxed pursuant to this section may be recovered on motion, after five (5) days’ notice, in a Circuit Court.

History. 2172, 2174: amend. Acts 1976 (Ex. Sess.), ch. 14, § 21, effective January 2, 1978.

Research References and Practice Aids

Cross-References.

Costs, KRS Ch. 453.

63.075. Costs of proceeding without petition.

In a proceeding for impeachment instituted by the House of Representatives without a petition from any person, if the accused be acquitted he shall be entitled to his costs, to be taxed by the clerk of the Senate against the Commonwealth. If the accused be convicted, he shall pay the costs, to be taxed by the clerk and recovered by motion by the Attorney General, in the Franklin Circuit Court.

History. Enact. Acts 1962, ch. 234, § 14; 1976 (Ex. Sess.), ch. 14, § 22, effective January 2, 1978.

63.080. Officers appointed by Governor may be removed without cause — Exceptions — Removal of university or KCTCS board members for cause or to comply with proportional representation requirements.

  1. Except as provided in subsection (2) of this section and otherwise provided by law, any person appointed by the Governor, either with or without the advice and consent of the Senate, may be removed from office by the Governor for any cause the Governor deems sufficient, by an order of the Governor entered in the executive journal removing the officer.
    1. Except as provided in subsections (3) and (4) of this section, members of the Kentucky Board of Education; the board of trustees of the University of Kentucky; the board of trustees of the University of Louisville; and the board of regents respectively of Eastern Kentucky University, Western Kentucky University, Morehead State University, Kentucky State University, Northern Kentucky University, Murray State University, and the Kentucky Community and Technical College System shall not be removedexcept for cause. (2) (a) Except as provided in subsections (3) and (4) of this section, members of the Kentucky Board of Education; the board of trustees of the University of Kentucky; the board of trustees of the University of Louisville; and the board of regents respectively of Eastern Kentucky University, Western Kentucky University, Morehead State University, Kentucky State University, Northern Kentucky University, Murray State University, and the Kentucky Community and Technical College System shall not be removedexcept for cause.
    2. Members of the Council on Postsecondary Education shall not be removed except for cause.
    3. A member of a board of trustees or board of regents specified in paragraph (a) of this subsection may be removed for cause as follows:
      1. The Governor or the board of trustees or board of regents, as applicable, shall notify, in writing, the member and the Council on Postsecondary Education that the member should be removed for cause and shall specify the conduct warranting removal;
      2. The member shall have seven (7) days to voluntarily resign or to provide evidence to the Council on Postsecondary Education that the member’s conduct does not warrant removal;
      3. Within thirty (30) days after receipt of notice from the Governor or the board, the Council on Postsecondary Education shall review the written notice, investigate the member and the conduct alleged to support removal, and make a nonbinding recommendation, in writing, to the Governor as to whether the member should be removed, a copy of which shall also be provided to the Legislative Research Commission;
      4. The Governor shall then make a determination, in writing, whether the member should be removed and shall notify the member, the applicable board, the Council on Postsecondary Education, and the Legislative Research Commission of the determination; and
      5. If the Governor’s determination is to remove the member, the Governor shall remove the member by executive order, and shall replace the member with a new appointment according to the applicable statutes for the board of trustees or board of regents.
    4. For the purposes of this subsection, a member may be removed for cause forconduct including but not limited to malfeasance, misfeasance, incompetence, or gross neglect of duty.
  2. For a board specified in subsection (2)(a) of this section that is required by law to have proportional representation in its membership based on residence, political affiliation, gender, minority racial composition, or professional qualifications, the Governor or other appointing authority may remove any member of the board and replace him or her with another individual in order to bring the membership into compliance with the statutory proportional representation requirement for the board, provided that the Governor or other appointing authority shall:
    1. Only exercise the removal authority granted in this subsection if appointment at the end of the next expiring term of a member, or at the end of the next expiring term of members if two (2) or more members’ terms expire at the same time, cannot cure the deficiency in the proportional representation requirement;
    2. Remove the fewest number of members necessary to bring the membership into compliance with the proportional representation requirement for the board;
    3. Identify the order in which the members were appointed to their current terms on the board and, beginning with the most recently appointed member who may be removed and replaced to bring the membership into compliance with the proportional representation requirement, remove the member or members according to the length of their tenure on the board, without taking into account any prior term of service on the board by the member;
    4. Provide any member proposed to be removed with the following:
      1. Written notice, at least seven (7) days prior to the member’s removal from the board, stating the statutory proportional representation requirement that the member does not satisfy; and
      2. An opportunity during the seven (7) day notice period for the member to voluntarily resign or to provide evidence to the Governor or other appointing authority that the member does satisfy the proportional representation requirement or that another member on the board who also does not satisfy the requirement has a shorter tenure than the member proposed to be removed;
    5. Replace any removed member with only those individuals who will bring the board into compliance with the proportional representation requirement; and
    6. Appoint any new member in the same manner as provided by law for the member being removed and to fill the remainder of the removed member’s unexpired term.
  3. For a board of trustees or board of regents specified in subsection (2)(a) of this section, the Governor may remove for cause all appointed members of the board and replace the entire appointed membership as follows:
    1. The Governor shall notify, in writing, the board and the Council on Postsecondary Education that the entire appointed membership of the board should be removed for cause and shall specify the conduct warranting removal;
    2. The board or its members shall have seven (7) days to voluntarily resign or to provide evidence to the Council on Postsecondary Education that the conduct of the board or of individual members does not warrant removal;
    3. Within thirty (30) days after receipt of notice from the Governor, the Council on Postsecondary Education shall review the written notice, investigate the board and the conduct alleged to support removal, and make a nonbinding recommendation, in writing, to the Governor as to whether the appointed board membership should be removed, a copy of which shall also be provided to the Legislative Research Commission;
    4. The Governor shall then make a determination, in writing, whether the entire appointed board membership should be removed and shall notify the members, the Council on Postsecondary Education, and the Legislative Research Commission of the determination; and
    5. If the Governor’s determination is to remove the entire appointed membership of the board, the Governor shall remove the members by executive order, and shall replace the members with new appointments according to the applicable statutes for the board of trustees or board or regents.

For the purposes of this subsection, the entire appointed membership of a board of trustees or board of regents may be removed for cause if the board is no longer functioning according to its statutory mandate as specified in the enabling statutes applicable to the board, or if the board membership’s conduct as a whole constitutes malfeasance, misfeasance, incompetence, or gross neglect of duty, such that the conduct cannot be attributed to any single member or members.

History. 3750: amend. Acts 1948, ch. 25; 1966, ch. 255, § 67; 1968, ch. 152, § 28; 1990, ch. 60, § 2, effective July 13, 1990; 1990, ch. 476, Pt. II, § 37, effective July 13, 1990; 1990, ch. 504, § 5, effective July 13, 1990; 1992, ch. 10, § 16, effective July 1, 1992; 1996, ch. 362, § 6, effective July 15, 1996; 1997 (1st Ex. Sess.), ch. 1, § 41, effective May 30, 1997; 2017 ch. 101, § 1, effective March 21, 2017; 2021 ch. 178, § 3, effective June 29, 2021.

NOTES TO DECISIONS

1.Constitutionality.

An officer holding an appointive statutory office may be removed therefrom with or without cause, with or without trial, arbitrarily or otherwise, without violating Const., § 2. Johnson v. Laffoon, 257 Ky. 156 , 77 S.W.2d 345, 1934 Ky. LEXIS 505 ( Ky. 1934 ).

2.Nature of Removal.

The power of removal herein vested in the Governor is administrative or executive in its character, and this would be so even if hearing were required. Johnson v. Laffoon, 257 Ky. 156 , 77 S.W.2d 345, 1934 Ky. LEXIS 505 ( Ky. 1934 ).

Removal extends not only to the office to which appointed, but also to other offices held by virtue thereof. Johnson v. Laffoon, 257 Ky. 156 , 77 S.W.2d 345, 1934 Ky. LEXIS 505 ( Ky. 1934 ).

3.Right to Hold Office.

The right to hold office is not a property right except in a peculiar or qualified extent. Johnson v. Laffoon, 257 Ky. 156 , 77 S.W.2d 345, 1934 Ky. LEXIS 505 ( Ky. 1934 ).

The right to hold office is not contractual. Johnson v. Laffoon, 257 Ky. 156 , 77 S.W.2d 345, 1934 Ky. LEXIS 505 ( Ky. 1934 ).

Cited in:

Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673, 2019 Ky. LEXIS 214 ( Ky. 2019 ); Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673, 2019 Ky. LEXIS 214 ( Ky. 2019 ).

Opinions of Attorney General.

KRS 68.300 voiding any claim or appropriation in excess of budget appropriations applies to the jail budget part of the county budget. OAG 82-424 .

Research References and Practice Aids

Cross-References.

Fish and Wildlife Resources Commission, members removal only for cause and after hearing, KRS 150.022 .

Psychologists, Board of Examiners of, removable only for cause, KRS 319.020 .

Public service commissioners, removal of, KRS 278.070 .

State Board of Accountancy members may be removed only for cause, KRS 325.230 .

ALR

Power to remove public officer without notice and hearing. 99 A.L.R. 341.

Removal of public officers for misconduct during previous term. 42 A.L.R.3d 691.

63.090. Definition of “neglect of duty” as used in KRS 63.100 to 63.160.

As used in KRS 63.100 to 63.160 , unless the context requires otherwise, “neglect of duty” includes the following things listed but does not exclude things not listed:

  1. The commission of a trespass or wrongful act in the performance of official duty;
  2. Accepting a bribe to neglect official duty;
  3. Gross neglect equivalent to fraud;
  4. Willful neglect and such forms of misfeasance or malfeasance as involve a failure in the performance of the duties required by law;
  5. Careless or intentional failure to exercise due diligence in the performance of official duty;
  6. Habitual drunkenness in office; or,
  7. Gross immorality or misconduct in office amounting to neglect of duty.

History. 3766a-6.

NOTES TO DECISIONS

1.Constitutionality.

The section does not unconstitutionally enlarge scope of term “neglect of duty” as defined in Const., § 227. Stuart v. Combs, 360 S.W.2d 144, 1962 Ky. LEXIS 213 ( Ky. 1962 ).

2.Official Duty.

A sheriff was guilty of gross neglect of duty and properly removed from office by the Governor when he let his personal feelings overcome his statutory duty to maintain order in the court and assaulted an attorney in the judge’s chamber while the judge was considering a motion although the sheriff had insisted his act in striking the attorney was a private act since his presence was not required in the judge’s chambers and he had not been ordered to arrest the attorney. Cornett v. Chandler, 307 S.W.2d 918, 1957 Ky. LEXIS 122 ( Ky. 1957 ).

3.Orders of Superior.

A county chief of police was properly removed from office by the Governor under this section on a finding he was guilty of neglect of duty as defined in this section and that there was flagrant and notorious violation of the gambling laws in the incorporated towns of the county and that the chief of police knew or should have known of these violations even though the chief of police relied on county court orders requiring the county patrol to regularly patrol the unincorporated area and to assist in the incorporated areas if personnel permitted. Stuart v. Combs, 360 S.W.2d 144, 1962 Ky. LEXIS 213 ( Ky. 1962 ).

4.Neglect of Duty.

Neglect of duty did not include personal acts even though they constituted violations of law, nor did it include a single act of intoxication which was not accompanied with a failure to discharge official duties. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ) (decided under prior law).

Neglect of duty might have been defined as a careless or intentional failure to exercise due diligence in the performance of official duty; the degree of care which should have been exercised depended upon the character of the duty which was performed. This included wilful neglect and such forms of misfeasance or malfeasance as involved a failure in the performance of duties required by law. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ) (decided under prior law).

Opinions of Attorney General.

Where a constable moved out of state and his whereabouts were unknown and his bond was canceled, the constable could be removed for “neglect of duty” by a hearing before the Governor. OAG 60-371 .

The fiscal court cannot grant leave of absence to a county coroner who voluntarily accepts employment overseas with the department of the army as a civilian embalmer as the prolonged absence might subject the coroner to claims of abandonment or neglect of office and no statutory authority exists for granting such leave. OAG 69-239 .

A city jailer, as a peace officer, may be subject, where the facts warrant, to the procedure outlined in this section and KRS 63.100 to 63.130 for removal. OAG 71-314 .

Research References and Practice Aids

Cross-References.

Abuse of public office, Penal Code, KRS 522.010 to 522.040 .

Grounds for removal of peace officers:

Failure of sheriff to give bond, KRS 70.990 .

Misfeasance, malfeasance or neglect, Const., § 227, KRS 61.170 .

Official misconduct, KRS 522.010 to 522.040 .

ALR

Failure of public employee to pay creditors or claims not related to his position, as ground for his removal or suspension. 127 A.L.R. 495.

Mistreatment of prisoner as ground for removal. 100 A.L.R. 1401.

63.100. Removal of peace officers for neglect — Charges — Notice.

  1. A peace officer guilty of neglect of duty shall be removed from office in the manner prescribed by KRS 63.100 to 63.130 .
  2. The Governor shall sign written charges setting forth the grounds for removal of the officer. The charges, when considered collectively, must be supported by the affidavit of at least two (2) witnesses, but it shall not be necessary to support each separate count or individual charge embraced in the charges by two (2) affidavits. The affidavits must be filed by the Governor as a part of the record in the proceedings. The charges need not possess the formalities and exactness of an indictment. The charges shall be recorded in the Executive Journal and an attested copy thereof shall be made by the Secretary of State, and served upon the officer sought to be removed. No response shall be filed to the charges, but they shall stand traversed of record.
  3. Notice must be given to the officer sought to be removed, stating the time and place of the hearing, and giving him at least twenty (20) days to prepare his defense.

History. 3766a-6, 3766a-7, 3766a-13.

NOTES TO DECISIONS

1.Nature of Power.

The power of removal conferred by this section is executive or administrative in its nature, and does not constitute the governor a court. Holliday v. Fields, 207 Ky. 462 , 269 S.W. 539, 1925 Ky. LEXIS 114 ( Ky. 1925 ).

2.Witnesses.

The requirement of affidavit of two witnesses is mandatory, and each charge must be so supported. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

3.Charges.

The charges need not possess the formalities and exactness of an indictment, but must be legally sufficient. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

4.Notice.

Proper notice must be given. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

5.Removal of Deputies.

This section does not prevent officers from removing deputies upon purely personal grounds, or for reasons sufficient to the officer under whom the deputy may serve. Milliken v. Harrod, 275 Ky. 597 , 122 S.W.2d 148, 1938 Ky. LEXIS 471 ( Ky. 1938 ).

6.Relinquishment of Office.

An officer against whom ouster proceedings are pending cannot be allowed to evade, by relinquishing his office, any of the substantial consequences attached by law to an adverse determination of the matter. Frederick v. Combs, 354 S.W.2d 506, 1962 Ky. LEXIS 46 ( Ky. 1962 ).

Cited:

Whitaker v. Commonwealth, 487 S.W.2d 901, 1972 Ky. LEXIS 78 ( Ky. 1972 ).

Research References and Practice Aids

ALR

Custom or usage as affecting performance of sheriff’s duties. 65 A.L.R. 815.

63.110. Hearing — Order of removal.

  1. The case shall be heard before the Governor on oral testimony or by depositions, as the Governor may direct. Testimony before the Governor shall be taken upon oath administered by the Governor or by a stenographer designated by him, and shall be taken down in shorthand notes and transcribed by the stenographer. All exhibits, depositions and the transcript of testimony taken before the Governor shall be filed in the office of the Secretary of State as a part of the record in the proceedings. The officer sought to be removed shall have the right to appear in person before the Governor and testify and be represented by counsel. The hearing need not be conducted under the forms of court procedure.
  2. The Governor shall consider all the testimony offered by each side and make findings of fact, and if the Governor finds from the testimony that the officer is guilty of neglect of duty, he shall enter an order removing the officer from office. The order of removal, together with the findings of fact, shall be signed by the Governor and recorded in the Executive Journal.

History. 3766a-7, 3766a-13.

NOTES TO DECISIONS

1.Conduct of Hearing.

Removal of a peace officer is an executive or administrative function and not a judicial function and the Governor is not required to conduct the hearing personally but may under power to hear on depositions make reasonable delegations and consider the recommendations of the delegees along with the proof and the record made in the matter. Cornett v. Chandler, 307 S.W.2d 918, 1957 Ky. LEXIS 122 ( Ky. 1957 ).

2.Evidence.

An opportunity must be afforded for a development of the facts, and the order of removal must be supported by legal evidence. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

Research References and Practice Aids

ALR

Public officer’s privilege as to statements made in connection with hiring and discharge. 26 A.L.R.3d 492.

63.120. Appeal to Court of Appeals.

  1. Any peace officer removed from office under the provisions of KRS 63.110 may, within ten (10) days from the date of the entry of the order removing him, appeal to the Court of Appeals by obtaining from the Secretary of State a certified copy of all charges, findings of fact and orders entered in the proceedings against him and filing them with the clerk of the Court of Appeals, and entering a motion before the clerk for an appeal. The motion shall set forth the alleged errors of fact and law committed by the Governor. No response shall be filed to the motion. The Governor shall be made appellee in the appeal, and notice thereof shall be served upon the Governor immediately after the motion is filed with the clerk. If the Governor is out of his office or away from the seat of government, the notice shall be served on the Attorney General or one (1) of the assistants in his office. The Secretary of State shall, after the appeal has been filed, immediately deliver the original record to the clerk of the Court of Appeals, and append thereto a certificate showing that it is the entire record in the case on file.
  2. The judgment of the court shall be final and shall be certified to the Secretary of State. If the order of removal entered by the Governor is affirmed it shall become effective immediately and the office held by the peace officer shall be deemed vacant.
  3. The original papers in the case shall be returned to the Secretary of State after the case has been disposed of in the Court of Appeals.

History. 3766a-8: amend. Acts 1976, ch. 62, § 58.

NOTES TO DECISIONS

1.Determination on Merits.

As to sufficiency of charges, notice, hearing, and as to whether the order of removal is supported by legal evidence, the Court of Appeals may review any error of law or fact and finally determine the matter on its merits. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

Research References and Practice Aids

ALR

Acquiescence or delay as affecting rights of public employee illegally discharged, suspended, or transferred. 145 A.L.R. 767.

63.130. Proceedings do not bar criminal action.

The removal of an officer from office under the provisions of KRS 63.090 to 63.120 shall not be a bar to criminal prosecution for misfeasance, malfeasance, or willful neglect in discharge of official duties.

History. 3766a-11.

63.140. Removal of peace officer for losing custody of prisoner.

If any prisoner or other person lawfully in custody is taken from a peace officer and lynched, killed, maimed or injured, it shall be prima facie evidence of neglect of duty on the part of the peace officer. When such neglect of duty, or such lynching or injury is made to appear to the Governor, he shall at once publish a proclamation declaring the office of the peace officer vacant, and at the same time mail a copy of the proclamation to the peace officer, whereupon the office shall be immediately vacated.

History. 1151a-3.

Research References and Practice Aids

Cross-References.

Official misconduct, KRS 522.010 to 522.040 .

63.150. Vacancies — How filled.

The county judge/executive shall at once fill the vacancy created by a removal under KRS 63.140 , either for the remainder of the term or temporarily as the occasion may demand, as provided for by KRS 63.220 . Until a vacancy in the office of sheriff or jailer is filled, the coroner shall act as sheriff, and the county clerk shall take charge of the jail.

History. 1151a-4.

Research References and Practice Aids

Cross-References.

Jailer, who to act in absence of, KRS 71.090 .

Sheriff, who to act in absence of, KRS 70.200 , 454.135 .

63.160. Reinstatement by Governor.

  1. Any peace officer removed from office pursuant to KRS 63.140 may, within ten (10) days thereafter, file with the Governor a petition for reinstatement. He shall give written notice of the filing of such petition to the county attorney of his county and the Commonwealth’s attorney of the district of which his county is a part, and the Governor shall give notice to the Attorney General.
  2. The Governor shall hear the evidence, which may be oral or by deposition, and arguments presented. If the Governor is of the opinion that the peace officer did all in his power to protect the life and person of the prisoner, and did not neglect to perform his legal duty, the Governor shall order the immediate reinstatement of the removed peace officer. The order of the Governor shall be final, and should he fail to reinstate, his previous order removing shall also be final.
  3. When a peace officer is reinstated under this section, his original fidelity bond shall continue in full force and effect.

History. 1151a-4, 1151a-5.

Research References and Practice Aids

ALR

Constitutionality and construction of statute providing for payment of salary of public employee during period of unlawful removal or suspension or expenses incurred by him in gaining reinstatement or in defending himself against charge of misconduct or incompetency. 103 A.L.R. 763.

Reappointment or reinstatement of employee as restoration of original status as regards incidental rights or privileges. 89 A.L.R. 684.

63.170. Removal of peace officer for violating KRS 61.310.

Any “peace officer” as defined in KRS 61.310 who violates any of the provisions of subsections (2), (4), or (5) of KRS 61.310 may be removed from office by the same courts and in the same manner that a nonelective peace officer may be removed under the provisions of KRS 63.180 .

History. 3766a-18.

63.180. Proceeding for removal of nonelective peace officer.

  1. Any person serving as a nonelective peace officer or deputy peace officer in violation of the provisions of KRS 61.300 shall be subject to removal. The Circuit Court of the county in which such person is serving and the Circuit Court of Franklin County shall have concurrent jurisdiction of all proceedings for the removal of any such person. The proceedings shall be in equity and the procedure shall be as set forth in subsections (2), (3) and (4) of this section.
  2. The Commonwealth’s attorney of the judicial circuit or the county attorney of the county in which such person is serving, the Attorney General, or any three (3) or more citizens of said county may file a petition in equity setting forth the facts constituting a violation of the provisions of KRS 61.300 . If instituted by the Commonwealth’s attorney, county attorney or Attorney General, the proceeding shall be in the name of the Commonwealth, and if instituted by three (3) or more citizens, it shall be in the name of such citizens as plaintiffs. A copy of the petition shall be served upon the person complained against, who shall have ten (10) days in which to answer.
  3. Thereafter the proceeding shall be heard and determined by the court as a proceeding in equity. The court shall render a final judgment within sixty (60) days from the date the petition is filed, unless the court, for good cause shown, extends the time for the final hearing, but in no case shall it be extended beyond ninety (90) days from the date the petition is filed.
  4. If it appears upon final hearing that any nonelective peace officer or deputy peace officer is disqualified under the provisions of KRS 61.300 , the court shall enter a judgment forthwith removing the officer from office.

History. 3766a-5f: amend. Acts 1976, ch. 62, § 59; 1976 (Ex. Sess.), ch. 14, § 23, effective January 2, 1978.

NOTES TO DECISIONS

1.Supersedeas Bond on Appeal.

There is no provision for the execution of a supersedeas bond on appeal of an ousted officer from a judgment declaring his office vacant so as to suspend the execution of the vacating judgment pending his appeal therefrom. Baker v. Wilson, 310 Ky. 692 , 221 S.W.2d 690, 1949 Ky. LEXIS 1272 ( Ky. 1949 ).

Cited:

Smiddy v. Commonwealth, 247 S.W.2d 215, 1952 Ky. LEXIS 678 ( Ky. 1952 ).

Opinions of Attorney General.

If disqualification of a nonelective peace officer arises after his appointment this section provides for a method of removal and the provision as to removal is permissive. OAG 73-13 .

KRS 15.335 remains effective irrespective of the subsequent amendments to KRS 61.300 , 95.710 and this section and consequently controls the residency requirements for police officers in cities of the fifth class. OAG 79-505 .

Vacancies

63.190. Vacancies filled by the Governor.

In every case where there is no other provision of law for the filling of a vacancy in any office, the vacancy shall be filled by appointment by the Governor.

History. 3758.

NOTES TO DECISIONS

1.In General.

An appointee to fill a vacancy may be commissioned by the Governor, although appointed by another agency or officer. Frost v. Johnston, 262 Ky. 592 , 90 S.W.2d 1045, 1936 Ky. LEXIS 82 ( Ky. 1936 ).

2.Construction.

Legislature is authorized to provide for filling vacancies in county offices or offices in districts smaller than counties. Frost v. Johnston, 262 Ky. 592 , 90 S.W.2d 1045, 1936 Ky. LEXIS 82 ( Ky. 1936 ); Barton v. Brafford, 264 Ky. 480 , 95 S.W.2d 6, 1936 Ky. LEXIS 354 ( Ky. 1936 ), overruled, Gearhart v. Kentucky State Board of Education, 355 S.W.2d 667, 1962 Ky. LEXIS 76 ( Ky. 1962 ).

Statute authorizing Governor to fill vacancies by appointment, in any office for which no provision is made by law, though construed as applying to appointive offices, does not grant Governor power in excess of that authorized by Const., § 152, in view of the provision of Const., § 160 specifically authorizing General Assembly to prescribe manner in which vacancies in both elective and appointive offices in cities of the commonwealth may be filled. Culbertson v. Moore, 302 Ky. 768 , 196 S.W.2d 308, 1946 Ky. LEXIS 742 ( Ky. 1946 ).

3.Purpose.

The law abhors vacancies, and the presumption is against a legislative intent to create or to allow a condition which may result in an executive or administrative office remaining unoccupied. Board of Trustees v. Kercheval, 242 Ky. 1 , 45 S.W.2d 846, 1931 Ky. LEXIS 711 ( Ky. 1 931).

4.Application.

This section pertains to vacancies in office not covered by Const., § 152, which deals with vacancies in elective offices. Rouse v. Johnson, 234 Ky. 473 , 28 S.W.2d 745, 1930 Ky. LEXIS 220 ( Ky. 1930 ).

5.Circuit Judge.

Vacancy in office of circuit judge is filled by the Governor. Feck v. Commonwealth, 264 Ky. 556 , 95 S.W.2d 25, 1936 Ky. LEXIS 362 ( Ky. 1936 ).

6.Common Council.

Where a commission form of government for a city of the third class was abolished by an election under KRS 89.290 (now repealed) and the incumbent officers lost such rights as they had in their offices when the certificate of election was spread upon the city records it was proper for the Governor to appoint councilmen under this section to serve as the common council and divide the city into wards from which members of the council could be elected at the next election. Payne v. Davis, 254 S.W.2d 710, 1953 Ky. LEXIS 606 ( Ky. 1953 ).

7.Mayor Pro Tem.

Under this section the Governor had the authority to appoint mayor pro tem of second-class city upon board of commissioners’ failure to do so. Culbertson v. Moore, 302 Ky. 768 , 196 S.W.2d 308, 1946 Ky. LEXIS 742 ( Ky. 1946 ).

8.Board of Education.

Vacancies in offices of board of education are to be filled by the board so long as a quorum remains, but when no quorum remains then by the Governor. Glass v. Hopkinsville, 225 Ky. 428 , 9 S.W.2d 117, 1928 Ky. LEXIS 798 ( Ky. 1 928 ); Board of Trustees v. Kercheval, 242 Ky. 1 , 45 S.W.2d 846, 1931 Ky. LEXIS 711 ( Ky. 1931 ).

When a board of education is without any members, the Governor may appoint the entire body. Board of Trustees v. Kercheval, 242 Ky. 1 , 45 S.W.2d 846, 1931 Ky. LEXIS 711 ( Ky. 1 931).

9.Justice of Peace.

Vacancy in office of justice of the peace is filled by the Governor. Daugherty v. Arnold, 110 Ky. 1 , 60 S.W. 865, 22 Ky. L. Rptr. 1504 , 1901 Ky. LEXIS 54 ( Ky. 1 901).

10.Police Judge.

Vacancy in office of police judge in city of fourth class is to be filled by the council. Traynor v. Beckham, 116 Ky. 13 , 74 S.W. 1105, 1903 Ky. LEXIS 167 (Ky. Ct. App. 1903); Jarvis v. Stanley, 176 Ky. 630 , 197 S.W. 183, 1917 Ky. LEXIS 94 ( Ky. 1917 ); Dillon v. Stubbs, 267 Ky. 17 , 100 S.W.2d 823, 1937 Ky. LEXIS 266 ( Ky. 1937 ).

Vacancy in office of police judge in city of sixth class is to be filled by the Governor. Willson v. Hahn, 131 Ky. 439 , 115 S.W. 231, 1909 Ky. LEXIS 31 ( Ky. 1909 ).

The mere fact that under KRS 61.020 the Governor issues commissions to police judges does not of itself vest in him exclusive power of appointment to fill vacancies. Heringer v. Rolf, 287 S.W.2d 149, 1956 Ky. LEXIS 442 ( Ky. 1956 ).

11.Boards of Trustees.

When a vacancy is to be filled by the remaining members of a board, such members as remain in office may act but if the remaining members are deadlocked, the Governor may appoint. Board of Trustees v. Kercheval, 242 Ky. 1 , 45 S.W.2d 846, 1931 Ky. LEXIS 711 ( Ky. 1 931 ); Middleton v. Lewis, 248 Ky. 86 , 58 S.W.2d 251, 1933 Ky. LEXIS 186 ( Ky. 1933 ); Horn v. Wells, 253 Ky. 494 , 69 S.W.2d 1011, 1934 Ky. LEXIS 695 ( Ky. 1934 ).

12.Unauthorized Appointments.

Unauthorized appointments by Governor are invalid and vest no title. Barton v. Brafford, 264 Ky. 480 , 95 S.W.2d 6, 1936 Ky. LEXIS 354 ( Ky. 1936 ), overruled, Gearhart v. Kentucky State Board of Education, 355 S.W.2d 667, 1962 Ky. LEXIS 76 ( Ky. 1962 ).

Cited:

Smith v. McDermott, 313 Ky. 184 , 230 S.W.2d 636, 1950 Ky. LEXIS 844 ( Ky. 1950 ).

Opinions of Attorney General.

Where a vacancy occurs in the office of police judge and there is no other provision by law for filling the vacancy, the vacancy is to be filled by the Governor as provided in this section, subject to the provisions of Const., § 152. OAG 61-231 .

Where it was anticipated that the police judge would resign, the vacancy could be filled by an appointment of the city council but the appointment would only be valid until the next regular election that embraced the city. OAG 65-877 .

In view of a prolonged deadlock among the remaining members of a city council concerning the filling of the vacancy in the city council and the resulting lack of a quorum which affects the city’s power to function as a governmental unit, the Governor is authorized to fill the vacancy. OAG 67-19 .

Where a city of the sixth class is reactivated the police judge vacancy must be filled by an appointment of the Governor under KRS 63.190 . Both the police judge and the trustees who were previously appointed will serve only until the next regular election. The term of office of the police judge being four (4) years will not expire however and the vacancy in the position created by the city’s activation will have to be filled at the coming election for the unexpired term. OAG 67-218 .

When two or more cities elect to merge to create a new city the vacancy for police judge of the newly created city should be filled by the Governor. OAG 67-488 .

Where the candidates for mayor, police judge and five (5) out of six (6) candidates for city commissioner failed to qualify for nomination, three vacancies on the four (4) man commission should be filled by the Governor pursuant to KRS 63.190 . Following the Governor’s commission appointments, the commission in turn should select a mayor pro tem under the provisions of KRS 89.520 (now repealed) and while one commissioner is serving in effect as mayor on a permanent basis, the remaining members must select another commissioner to complete the four (4) member board. The police judge vacancy should be filled pursuant to KRS 86.240 (now repealed) giving authority to the commission. All appointments mentioned should be held only until an election can be held pursuant to Const., § 152. OAG 69-447 .

A police judge appointed by the county judge (now county judge/executive) to fill a vacancy was an invalid appointment since only the Governor can make such an appointment. OAG 70-807 .

Where a magistrate died after the primary election in a year in which a statewide election was to be held, a replacement could be appointed to hold office only until the November election at which time a magistrate would be elected to take office immediately. OAG 71-257 .

A vacancy created by the resignation of the police judge in a sixth-class city must be filled by the Governor pursuant to this section. OAG 72-197 .

When a member of the fiscal court resigns, the Governor has the authority to fill the vacancy and there is no reason that the person who resigned can not be appointed to fill that same position. OAG 72-389 .

Vacancies in the office of police judge must be filled by the Governor with a person who has resided within the city for the time prescribed and is a registered voter. OAG 73-722 .

Where a magistrate resigns, the only provision for filling a vacancy in the office is by appointment by the Governor until the next regular election. OAG 73-809 .

Governor is authorized to fill any vacancy created in the office of magistrate since there is no other specific provision in the statutes for filling such vacancy. OAG 73-809 .

As ASC regulations provide that an elected official is not eligible to serve as a member of the county ASC committee, a magistrate elected committeeman must resign by submitting his resignation to the Governor, who has the authority to fill the vacancy, but the resignation must be received and accepted prior to the date on which the individual entered the office of county committeeman in order to be effective. OAG 74-36 .

Upon the reclassification of a city of the fourth class to a city of the third class, since the city under KRS 86.030 (now repealed) formerly had only six (6) councilmen, the quorum of seven required by KRS 85.080 (now repealed) could not exist for appointment under KRS 85.310 (now repealed) (providing for filling of vacancies) of the six (6) additional members required by KRS 85.040 (now repealed) (providing for twelve (12) councilmen in third class city); thus since the Governor is the appointing power under this section and he may either fill the remaining vacancies on the council or appoint one member so as to constitute a quorum and enable the council to fill the remaining vacancies under the provisions of KRS 85.310 (now repealed). OAG 74-308 .

Where a justice of the peace, whose term was to expire at the end of December, 1981, moved out of his district in July, 1980, a vacancy was thereby created on the fiscal court; the Governor fills the vacancy by appointment until the November, 1980, general election, at which time the vacancy will be filled by election for the remainder of the unexpired term. OAG 80-425 .

Where county increased its magisterial districts from four (4) to five (5), then a vacancy would automatically exist in the fifth district which must be filled for the unexpired term in accordance with the requirements of Const., § 152 and said election would be held in the coming November election; prior to the election for the unexpired term, the Governor could fill the vacancy by appointment, pursuant to this section, which would end when the person elected in November received his certificate of election and qualified for the office. OAG 83-55 .

Research References and Practice Aids

Cross-References.

Acceptance of incompatible office vacates first, KRS 61.090 .

Constitutional offices, vacancies in filled by Governor, Const., § 76.

Definition of vacancy, KRS 446.010 .

Elections to fill vacancies, KRS Ch. 121.

Elective offices, vacancies in, how filled, Const., § 152.

Various offices, filling of vacancies in:

Alcoholic beverage control board, KRS 241.100 .

Assistant secretary of state, KRS 14.020 .

Bar examiners, SCR 2.000.

Board of dentistry, KRS 313.200 .

Board of education, county and city, KRS 160.190.

Board of health for Louisville and Jefferson County, KRS 212.390 .

Board of nursing education and nurse registration, KRS 314.121 .

Chiropractic examiners, KRS 312.025 .

City officers:

Generally, Const., § 160.

Board of adjustment, KRS 100.217 .

Housing authority, members, KRS 80.040 .

Planning commissioners, KRS 100.157 .

Recreational commissioners, KRS 97.120 .

First-class cities, KRS 83.580 .

Aldermen, KRS 83A.040 .

Board of adjustment, KRS 100.217 .

Board of equalization, KRS 91.390 .

Board of health for city and county, KRS 212.390 .

Civil service board, KRS 90.120 .

Heads of departments, KRS 83.580 .

Library trustees, KRS 173.040 .

Mayor, KRS 83A.040 .

Memorial commissioners, KRS 97.630 .

Planning commissioners, KRS 100.157 .

Waterworks board, KRS 96.240 .

Second-class cities, 83A.040 .

Third-class cities, KRS 83A.040 .

Fourth-class and fifth-class cities, KRS 83A.040 .

Civil service commission, KRS 95.763 .

Sixth-class cities, KRS 83A.040 .

Clerk of Court of Appeals, Const., § 122.

Constitutional officers, Const., § 76.

Elections, county board of, KRS 117.035 .

Election officers, precinct, KRS 117.045 .

Elective office, Const., § 152.

Embalmers and funeral directors, board of, KRS 316.170 .

Fire protection district trustees, KRS 75.031 .

Fish and Wildlife Resources Commission, KRS 150.022 .

Governor, Const., § 84; KRS 120.205 .

Housing authority, members, county and regional, KRS 80.420 , 80.430 .

Jailer, KRS 63.150 , 71.090 .

Jefferson County Children’s Home, board for, KRS 201.020 .

Judge of circuit court, Const., § 118.

Judicial council, KRS 27A.100.

Kentucky School for Blind, officers and employees of, KRS 167.150.

Legislative Research Commission, KRS 7.090 .

Levee commissioners, KRS 266.190 .

Librarians, State Board for Certification of, KRS 171.240 .

Library trustees of city, county or regional library, KRS 173.340 .

Lieutenant Governor, Const., § 85; KRS 120.205 .

Military officers, Const., § 222.

Nominees of political parties, KRS 118.105 , 118.325 .

Pharmacy, Board of, KRS 315.150 .

Planning commission to which capital city belongs, Governor to appoint member, KRS 100.133 .

Playground and recreation board, county and city, KRS 97.030 .

Podiatry, official examiners in, KRS 311.410 .

Presidential electors, KRS 118.445 .

Processioners of land, KRS 73.180 .

Psychologists, Board of Examiners of, KRS 319.020 .

Public road district board of directors, KRS 184.060 .

Public service commissioners, KRS 278.050 .

Railroad commissioners, Const., § 209.

Sanitation district directors, KRS 220.140 .

School district superintendent, KRS 160.350.

Sheriff, KRS 63.220 , 70.200 , 134.220 , 134.280 .

Soil and Water Resources Commission, KRS 146.090 .

Soil conservation, board of adjustment, KRS 262.460 .

Soil conservation supervisors, KRS 262.240 .

State Board of Accountancy members, KRS 325.230 .

State fair board members, KRS 247.090 .

State treasurer, KRS 41.050 , 41.330 .

Statutory administrative department heads, KRS 12.040 .

Tax collector, KRS 134.280 .

Teachers’ retirement system, trustees of, KRS 161.270.

Veterinary Examiners, State Board of, KRS 321.230 .

Water district commissioners, KRS 74.020 .

63.200. United States Senator — Vacancy filled by the Governor.

    1. The Governor shall fill vacancies in the office of United States Senator by appointment and the appointee shall serve until a successor has been elected and qualified under subsections (2), (3), (4), or (5) of this section. (1) (a) The Governor shall fill vacancies in the office of United States Senator by appointment and the appointee shall serve until a successor has been elected and qualified under subsections (2), (3), (4), or (5) of this section.
    2. The appointee shall be selected from a list of three (3) names submitted by the state executive committee of the same political party as the Senator who held the vacant seat to be filled, shall have been continuously registered as a member of that political party since December 31 of the preceding year, and shall be named within twenty-one (21) days from the date of the list submission
    3. In the event the vacant seat was held by a person who was not a member of any political party as defined under KRS 118.015 , the Governor shall appoint any qualified voter who is not a member of any political party as defined under KRS 118.015 .
    4. Upon appointment, the Governor shall, under the seal of the Commonwealth, certify the appointment to the President of the Senate of the United States. The certificate of appointment shall be countersigned by the Secretary of State.
  1. If a vacancy occurs more than three (3) months before the election in any year in which any regular election is held in this state, the remainder of the unexpired term shall be filled as follows:
    1. Candidates for the unexpired term shall file petitions of nomination no later than the fourth Tuesday in August before the date of the scheduled regular election;
    2. Petitions shall meet the requirements established under KRS 118.315 except:
      1. The signatures of no more than one thousand (1,000) petitioners shall be required;
      2. The petition of nomination shall contain a selection where a candidate shall designate whether the political party affiliation, or lack of affiliation, shall be placed on the ballot with the name of the candidate; and
      3. The designation made under subparagraph 2. of this paragraph shall not be changed following the filing of the nomination papers;
    3. The order of the names on the ballot for the candidates to be voted for shall be determined by lot at a public drawing to be held in the office of the Secretary of State at 2 p.m., prevailing time, on the Thursday following the last Tuesday in August;
    4. After the order of names has been determined under subsection (c) of this section, the Secretary of State shall certify to the county clerks:
      1. The name of each candidate; and
      2. The party affiliation, or lack of affiliation, of the candidate if designated for inclusion on the ballot as provided in paragraph (b) of this subsection;
    5. All candidates qualifying to be placed on the ballot shall be listed in a separate column or columns, or in a separate line or lines, and in a manner so that the casting of a vote for all of the candidates of a political party will not operate to cast a vote for any candidate for a vacancy in the United States Senate. The words “Vote for one” shall be printed in the appropriate location;
      1. No candidate shall be elected to fill a vacancy at any regular election held under this subsection unless the candidate receives a majority of the votes cast in the regular election; (f) 1. No candidate shall be elected to fill a vacancy at any regular election held under this subsection unless the candidate receives a majority of the votes cast in the regular election;
      2. If no candidate receives a majority of the votes cast, a runoff election shall be held between the candidates receiving the two (2) highest numbers of votes cast in the regular election;
      3. If a runoff election is required as provided in this paragraph, it shall be held seventy (70) days after the date of the regular election at which the two (2) candidates were selected; and
      4. The candidate receiving the highest number of votes cast in the runoff election to fill the vacancy shall be the candidate elected to fill the unexpired term of the office of United States Senator;
    6. If a vacancy occurs in the nomination of a candidate eligible for the special election because of death, disqualification to hold the office sought, severe disabling condition, or withdrawal, the remaining candidate or candidates receiving the second highest number of votes shall be the second candidate or candidates in the special election;
    7. The order of names on the ballot of the two (2) candidates to be voted for under paragraph (f) of this subsection shall be determined by lot at a public drawing to be held in the office of the Secretary of State at 2 p.m., prevailing time, on the Thursday following the certification by the State Board of Elections under KRS 118.425 ;
    8. After the order of names has been determined, the Secretary of State shall give certification to the county clerks in accordance with paragraph (d) of this subsection; and
    9. The successful candidate in the special election held for the purpose of filling the unexpired term in the office of United States Senator shall take office immediately as provided under subsection (9) of this section.
  2. If a vacancy occurs less than three (3) months before the regular election in any year in which any regular election is held in this state, and if a regular election is scheduled in the succeeding year, the vacancy shall be filled by appointment under subsection (1) of this section, and the unexpired term shall be filled at the regular election in the succeeding year.
  3. If a vacancy occurs less than three (3) months before the regular election in any year in which any regular election is held in this state, but no regular election is scheduled in the succeeding year, or if a vacancy occurs during any year in which no regular election is scheduled, the Governor shall issue a writ of election. The writ of election shall:
    1. Be signed by the Governor;
    2. Be issued within thirty (30) days of the occurrence of the vacancy;
    3. Set the date of the special election which shall be held no sooner than sixty (60) days, and no later than ninety (90) days, following the issuance of the writ; and
    4. Be directed to the sheriffs as required under Section 2 of this Act.
    1. Candidates in any special election held under this section shall file petitions of nomination no later than forty-nine (49) days before the date of the election. (5) (a) Candidates in any special election held under this section shall file petitions of nomination no later than forty-nine (49) days before the date of the election.
    2. Petitions shall meet the requirements established under KRS 118.315 except:
      1. The signatures of no more than one thousand (1,000) petitioners shall be required;
      2. The petition of nomination shall contain a selection where a candidate shall designate whether the political party affiliation, or lack of affiliation, shall be placed on the ballot with the name of the candidate; and
      3. The designation made under subparagraph 2. of this paragraph shall not be changed following the filing of the nomination papers.
    3. All candidates qualifying for the election shall be placed on the same ballot regardless of any candidate’s political party affiliation, or lack of affiliation.
    4. The order of the names on the ballot for the candidates to be voted for shall be determined by lot at a public drawing to be held in the office of the Secretary of State at 2 p.m., prevailing time, no later than forty-seven (47) days before the day of the election.
    5. After the order of names has been determined under paragraph (d) of this subsection, the Secretary of State shall certify to the county clerks:
      1. The name of each candidate; and
      2. The party affiliation, or lack of affiliation, of the candidate if designated for inclusion on the ballot as provided in paragraph (b) of this subsection.
    1. No candidate shall be elected to fill a vacancy at any special election held under subsection (5) of this section unless the candidate receives a majority of the votes cast in the special election. (6) (a) No candidate shall be elected to fill a vacancy at any special election held under subsection (5) of this section unless the candidate receives a majority of the votes cast in the special election.
    2. If no candidate receives a majority of the votes cast, a special runoff election shall be held between the candidates receiving the two (2) highest numbers of votes cast in the special election.
    3. If a special runoff election is required as provided in this subsection, it shall be held forty-nine (49) days after the date of the special election.
    4. The candidate receiving the highest number of votes cast in the special runoff election to fill the vacancy shall be the candidate elected to fill the unexpired term of the office of United States Senator.
  4. Any special election or special runoff election held under this section shall proceed in the manner prescribed in KRS 118.740 to 118.775 , except as otherwise provided in this section.
  5. After the returns for any election under this section have been canvassed and certified by the State Board of Elections, the Governor shall certify the election of the person elected in accordance with KRS 118.465 .
  6. Any person elected to fill an unexpired term in the office of United States Senator under this section shall take office immediately upon certification of the election results by the State Board of Elections and administration of the oath of office.
  7. Notwithstanding any other statute to the contrary, if the unexpired term will end at the next succeeding regular election, the office shall be filled by appointment in accordance with subsection (1) of this section until the winner of the election takes office in January.
  8. Notwithstanding the provisions of KRS 117.085 and any other statute to the contrary, ballots for any special election or special runoff election under this section shall be printed as soon as practicable following the certification by the Secretary of State under KRS 118.225 .

History. 1546-2; 2021 ch. 154, § 1, effective June 29, 2021.

63.210. County judge/executive — Notice of vacancy.

When a vacancy occurs in the office of county judge/executive, the county clerk shall immediately notify the Governor of the vacancy.

History. 1529.

Research References and Practice Aids

Cross-References.

Removal from county vacates office, Const., § 140.

63.220. Vacancies in county offices.

  1. A vacancy in the office of sheriff, coroner, surveyor, county clerk, county attorney, jailer, or constable, shall be filled by the county judge/executive, or by the mayor in a consolidated local government.
  2. Appointments to fill vacancies under this section shall be until the successor is elected, as provided in Section 152 of the Constitution, and qualified.

History. 1526, 1528, 4042a-6: amend. Acts 1976, ch. 62, § 60; 1976 (Ex. Sess.), ch. 14, § 24, effective January 2, 1978; 1978, ch. 384, § 128, effective June 17, 1978; 1990, ch. 411, § 10, effective July 13, 1990; 2002, ch. 346, § 17, effective July 15, 2002.

NOTES TO DECISIONS

Cited:

In re Appointment of Clerk of Court of Appeals, 297 S.W.2d 764, 1957 Ky. LEXIS 357 ( Ky. 1957 ).

Opinions of Attorney General.

Where a constable moved out of state and his whereabouts unknown and his bond was canceled, the county court could require him to renew his bond and upon his failure to do so declare the office vacant, whereupon an appointment could be made to the office until an election could be held. OAG 60-371 .

Where a county clerk died the day after being elected to a new term, the appointment of a successor is effective only until the expiration of the term the clerk was serving at the time of his death. OAG 61-1014 .

Where upon a vacancy occurring in the position of county tax commissioner (now property valuation administrator) five (5) persons holding certificates were eligible for appointment, the county judge had the authority to appoint one of the persons to fill the vacancy. OAG 65-166 .

Where a county had gone under the commission form of government and no one ran for the office of constable, the county judge could appoint a constable to fill the constable vacancy existing in each magisterial district of the county, subject to the provisions of Const., § 152. OAG 66-105 .

A vacancy in the office of county attorney should be filled by interim appointment made by the county judge (now county judge/executive) as soon as the appointment can be practicably and legally accomplished. OAG 67-145 .

Where a county has two (2) circuit judges, the two (2) judges must by agreement select a qualified person to fill a vacancy in the office of circuit court clerk. OAG 67-491 .

The person who fills the vacant office of county attorney, by way of interim appointment, must possess all the constitutional and statutory requirements of that office. Accordingly either lack of one (1) year’s residence in the county or not having been a licensed practicing lawyer for two (2) years would bar a candidate. OAG 67-522 .

A vacancy in the office of constable may be filled by the county court subject to an election for the unexpired term as provided in Const., § 152. OAG 68-83 .

Constables are required to live in the county from which they are elected pursuant to Const., §§ 99 and 100. If a person is elected constable and does not legally reside within the district from which he is elected, he would be subject to removal by the Commonwealth’s Attorney pursuant to KRS 415.040 . Once such person is removed, a vacancy is created which must be filled by the county court pursuant to KRS 63.220 . OAG 70-157 .

Vacancies in the office of constable are to be filled by the county court subject to an election to fill the unexpired term if the vacancy occurs more than 90 days before the regular November election. OAG 70-207 .

Where a vacancy occurs in the office of county attorney and the vacancy is not filled with reasonable haste, if there is one lawyer in the county who meets the constitutional requirements for the office, the county judge (now county judge/executive) is subject to a mandamus action by a taxpayer in which the plaintiff could procure an order of the circuit court requiring the county court to fill the vacancy. OAG 70-650 .

Where the county attorney was nominated to run for the office of Commonwealth’s Attorney, no vacancy would occur in the office of county attorney until the incumbent resigned or assumed his duties as Commonwealth’s Attorney following his election. OAG 71-267 .

Where the county clerk’s wife had always worked in the county clerk’s office, she would not automatically become county clerk on his death but she could be appointed to fill the vacancy. OAG 71-375 .

Where there was a vacancy in the office of coroner and no one filed for the office and one person’s name was written in on one ballot, the person whose name was written in was not legally elected and the vacancy could be filled immediately. OAG 71-496 .

Special judge of the twenty-first district, which includes Rowan Circuit Court, appointed because of the regular judge’s illness may fill the vacancy created by the death of the Rowan Circuit Court Clerk under the authority of this section read with KRS 23.220 (repealed) and KRS 23.230 (repealed). OAG 72-148 .

Vacancy in the office of county attorney could be filled pursuant to this section in the event no one ran for the office or received a plurality of the votes for the office. OAG 73-93 .

If a circuit clerk retires effective January 1, 1974, the circuit judge of the district is empowered to fill the vacancy by appointment but all vacancies in an elective office must be filled at the succeeding regular election which here would be the regular election for circuit clerk in November, 1975. OAG 73-606 .

When there is no constable in a district and no one applied for nomination, the county court could appoint someone to fill the unexpired term or, since it is too late for any person to file for office and have his name appear on the ballot, a candidate could be elected in November by write-in votes. OAG 73-648 .

A district health officer may be appointed to fill a vacancy in the office of county coroner if in the judgment of the county court the health officer can execute both positions with care, ability, impartiality, and honesty. OAG 75-703 .

The term of a person appointed to fill a vacancy is subject to election to fill the unexpired term at the next regular election embracing the area in which the vacancy occurred and an election at which presidential electors are elected is a regular election while a congressional election is not. OAG 75-427 .

The county judge/executive should make appointments of officers by issuing an executive order and recording such order in the “county judge/executive order book” in the county clerk’s office. OAG 78-69 .

A vacancy in the office of sheriff, coroner, surveyor, county clerk, county attorney, jailer, constable, or property valuation administrator shall be filled by the county judge/executive as authorized substitution for “county court.” OAG 78-73 .

Considering the well established rule that the appointment of public officers is executive in nature, and considering that the county judge/executive is the chief executive officer of the county (see KRS 67.700 to 67.745 ), and considering that the Legislature in 1976 and 1978 made explicit provisions for substituting the words “county judge/executive” in place of “county judge” and “county court,” this section applies and any vacancy in the office of sheriff, coroner, surveyor, county clerk, county attorney, jailer, constable or property valuation administrator must be filled by the county judge/executive of that county, which means the residual authority of the Governor in connection with appointments does not come into play. OAG 78-476 .

If the office of county attorney is vacated, the county judge/executive alone appoints a person as county attorney. OAG 79-266 .

Where a county clerk died in office July 5, 1979, his successor was appointed July 10, 1979, his term would not expire in 1979, and the 1979 general election would be held on November 6, there were more than three (3) months between the date of death and election day, and therefore an election would be held to fill the vacancy, for the remainder of the term, on November 6, 1979. OAG 79-419 .

If no one has been elected to the office of constable in a certain district an automatic vacancy exists which should first be filled by appointment by the county judge/executive subject to an election at the next regular election in November. OAG 79-525 .

If letter of the elected county jailer which contained an explicit resignation effective April 1, 1982, was tendered to the county judge/executive, then the resignation was effective, regardless of a later letter in which he attempted to withdraw his resignation, where the county judge/executive communicated no acceptance of the resignation, but did the equivalent of appointing a successor. OAG 82-222 .

Resignation of a public officer does not become effective until accepted by the proper authority, or by equivalent action, such as the appointment of a successor. OAG 82-222 .

Abandonment is not a generally recognized method of vacating a public office and there is no statutory law governing when abandonment of an office creates a vacancy. OAG 84-341 .

There is no fixed time lapse during which an officer is absent and therefore not performing his duties that automatically creates a vacancy in his office by reason of abandonment; in other words, there must be some clear indication that an officeholder does not intend to continue in office by total or complete neglect of his duties over a reasonable period of time or some overt act clearly indicating his intent to relinquish the office. OAG 84-341 .

Research References and Practice Aids

Cross-References.

Jailer, who to act as in certain cases, KRS 63.150 , 71.090 .

Road engineer, KRS 179.020 .

Sheriff, who to act as in certain cases, KRS 70.200 , 134.220 , 134.280 .

Tax supervisors, KRS 133.020 .

Treasurer, KRS 68.010 .

Penalties

63.990. Penalties.

Any peace officer removed from office under the provisions of KRS 63.090 to 63.160 and not reinstated shall be disqualified from holding any office in this state for a period of four (4) years.

History. 1151a-6, 3766a-10.

NOTES TO DECISIONS

1.Relinquishing Office Does Not Evade Penalties.

Where chief of police and chief of detectives of a city vacated office with the consent and approval of the city council who had authority under KRS 63.010 to appoint their successors the proceedings instituted against them for neglect of duty did not become moot since an officer against whom ouster proceedings are pending cannot by relinquishing office evade any of the substantial consequences attached by law to an adverse determination of the matter and the Governor had power to find the facts warranted removal from office and that the provisions and penalties of the statutes disqualified the officers from holding any office in the state for a period of four (4) years. Frederick v. Combs, 354 S.W.2d 506, 1962 Ky. LEXIS 46 ( Ky. 1962 ).

CHAPTER 64 Fees and Compensation of Public Officers and Employees

Fees and Compensation

64.005. Clerk’s fee for filing bond or release on recognizance.

  1. The clerks of the Supreme Court, the Court of Appeals, and the Circuit Courts shall collect a fee of twenty-five dollars ($25) for taking or filing any bond or release on recognizance.
  2. Such fee shall be deposited in the general fund of the State Treasury.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 25; 1982, ch. 235, § 2, effective July 13, 1984; 2008, ch. 158, § 5, effective July 1, 2008.

Opinions of Attorney General.

With regard to a clerk’s fee involving bonds, the more specific statute, KRS 431.530 governs over this section. OAG 82-325 .

64.010. Clerks’ fees. [Repealed.]

Compiler’s Notes.

This section (1720: amend. Acts 1950, ch. 211; 1958, ch. 105; 1960, ch. 19; 1962, ch. 83, § 19; 1970, ch. 82, § 1; 1974, ch. 222, § 1; 1976 (1st Ex. Sess.), ch. 14, § 26) was repealed by Acts 1978, ch. 84, § 26, effective June 17, 1978. For present law see KRS 64.012 .

64.011. Fees of clerk of Court of Appeals and circuit clerks for attesting order book or court record. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 141, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective March 19, 1977.

64.012. Fees of county clerks — Use of fees for recording real estate mortgages — Reimbursement of clerk.

The county clerk shall receive for the following services the following fees:

  1. The county clerk shall receive for the following services the following fees:
      1. Recording and indexing of a: (a) 1. Recording and indexing of a:
        1. Deed of trust or assignment for the benefit of creditors;
        2. Deed;
        3. Deed of assignment;
        4. File-stamped copy of documents set forth in KRS 14A.2-040 (1) or (2) that have been filed first with the Secretary of State;
        5. Real estate option;
        6. Power of attorney;
        7. Revocation of power of attorney;
        8. Lease which is recordable by law;
        9. Deed of release of a mortgage or lien under KRS 382.360 ;
        10. United States lien;
        11. Release of a United States lien;
        12. Release of any recorded encumbrance other than state liens;
        13. Lis pendens notice concerning proceedings in bankruptcy;
        14. Lis pendens notice;
        15. Mechanic’s and artisan’s lien under KRS Chapter 376;
        16. Assumed name;
        17. Notice of lien issued by the Internal Revenue Service;
        18. Notice of lien discharge issued by the Internal Revenue Service;
        19. Original, assignment, amendment, or continuation financing statement;
        20. Making a record for the establishment of a city, recording the plan or plat thereof, and all other service incident;
        21. Survey of a city, or any part thereof, or any addition to or extensions of the boundary of a city;
        22. Recording with statutory authority for which no specific fee is set, except a military discharge;
        23. Will or other probate document pursuant to KRS Chapter 392 or 394;
        24. Court ordered name change pursuant to KRS Chapter 401;
        25. Land use restriction according to KRS 100.3681 ; and
        26. Filing with statutory authority for which no specific fee is set. For all items in this subsection if the entire thereof does not exceed five (5) pages . . . . . $33.00 And, for all items in this subsection exceeding five (5) pages, for each additional page . . . . . $3.00 And, for all items in this subsection for each additional reference relating to same instrument . . . . . $4.00
      2. The thirty-three dollar ($33) fee imposed by this subsection shall be divided as follows:
        1. Twenty-seven dollars ($27) shall be retained by the county clerk; and
        2. Six dollars ($6) shall be paid to the affordable housing trust fund established in KRS 198A.710 and shall be remitted by the county clerk within ten (10) days following the end of the quarter in which the fee was received. Each remittance to the affordable housing trust fund shall be accompanied by a summary report on a form prescribed by the Kentucky Housing Corporation.
    1. For noting a security interest on a certificate of title pursuant to KRS Chapter 186A  . . . . . $12.00
    2. For filing the release of collateral under a financing statement and noting same upon the face of the title pursuant to KRS Chapter 186 or 186A  . . . . . $5.00
    3. Filing or recording state tax or other state liens  . . . . . $5.00
    4. Filing release of a state tax or other state lien  . . . . . $5.00
    5. Acknowledging or notarizing any deed, mortgage, power of attorney, or other written instrument required by law for recording and certifying same  . . . . . $5.00
    6. Recording plats, maps, and surveys, not exceeding 24 inches by 36 inches, per page  . . . . . $40.00
    7. Recording a bond, for each bond  . . . . . $10.00
    8. Each bond required to be taken or prepared by the clerk  . . . . . $4.00
    9. Copy of any bond when ordered  . . . . . $3.00
    10. Administering an oath and certificate thereof  . . . . . $5.00
    11. Issuing a license for which no other fee is fixed by law  . . . . . $8.00
    12. Issuing a solicitor’s license  . . . . . $15.00
    13. Marriage license, indexing, recording, and issuing certificate thereof  . . . . . $26.50
    14. Every order concerning the establishment, changing, closing, or discontinuing of roads, to be paid out of the county levy when the road is established, changed, closed, or discontinued, and by the applicant when it is not  . . . . . $3.00
    15. Registration of licenses for professional persons required to register with the county clerk  . . . . . $10.00
    16. Certified copy of any record  . . . . . $5.00 Plus fifty cents ($.50) per page after three (3) pages
    17. Filing certification required by KRS 65.070(2)(a) . . . . . $5.00
    18. Filing notification and declaration and petition of candidates for Commonwealth’s attorney  . . . . . $200.00
    19. Filing notification and declaration and petition of candidates for county and independent boards of education  . . . . . $20.00
    20. Filing notification and declaration and petition of candidates for boards of soil and water conservation districts  . . . . . $20.00
    21. Filing notification and declaration and petition of candidates for other office  . . . . . $50.00
    22. Filing declaration of intent to be a write-in candidate for office  . . . . . $50.00
    23. Filing petitions for elections, other than nominating petitions  . . . . . $50.00
    24. Notarizing any signature, per signature  . . . . . $2.00
    25. Filing bond for receiving bodies under KRS 311.310 . . . . . $10.00
    26. Noting the assignment of a certificate of delinquency and recording and indexing the encumbrance under KRS 134.126 or 134.127 . . . . . $27.00
    27. Filing a going-out-of-business permit under KRS 365.445 . . . . . $50.00
    28. Filing a renewal of a going-out-of-business permit under KRS 365.445 . . . . . $50.00
    29. Filing and processing a transient merchant permit under KRS 365.680 . . . . . $25.00
    30. Recording and indexing a real estate mortgage:
      1. For a mortgage that does not exceed thirty (30) pages  . . . . . $63.00
      2. And, for a mortgage that exceeds thirty (30) pages, for each additional page  . . . . . $3.00
    31. Filing or recording a lien or release of lien by a consolidated local government, urban-county government, unified local government, or city of any class  . . . . . $20.00
  2. The sixty-three dollar ($63) fee imposed by subsection (1)(ae) of this section shall be divided as follows:
    1. Fifty-seven dollars ($57) shall be retained by the county clerk; and
    2. Six dollars ($6) shall be paid to the affordable housing trust fund established in KRS 198A.710 and shall be remitted by the county clerk within ten (10) days following the end of the quarter in which the fee was received. Each remittance to the affordable housing trust fund shall be accompanied by a summary report on a form prescribed by the Kentucky Housing Corporation.
  3. For services related to the permanent storage of records listed in paragraphs (a), (g), (n), and (ae) of subsection (1) of this section, the clerk shall be entitled to receive a reimbursement of ten dollars ($10).

HISTORY: Enact. Acts 1978, ch. 84, § 1, effective June 17, 1978; 1980, ch. 21, § 3, effective July 15, 1980; 1980, ch. 30, § 4, effective July 15, 1980; 1980, ch. 143, § 2, effective July 15, 1980; 1980, ch. 240, § 4, effective July 15, 1980; 1982, ch. 161, § 1, effective July 15, 1982; 1982, ch. 375, § 1, effective July 15, 1982; 1984, ch. 185, § 3, effective July 13, 1984; 1986, ch. 118, § 94, effective July 15, 1986; 1992, ch. 288, § 59, effective July 14, 1992; 1994, ch. 28, § 2, effective July 15, 1994; 1994, ch. 239, § 2, effective July 15, 1994; 1994, ch. 428, § 1, effective July 15, 1994; 1996, ch. 195, § 26, effective July 15, 1996; 2000, ch. 408, § 176, effective July 1, 2001; 2002, ch. 34, § 3, effective July 15, 2002; 2006, ch. 255, § 3, effective August 1, 2006; 2009, ch. 10, § 56, effective January 1, 2010; 2010, ch. 151, § 49, effective January 1, 2011; 2013, ch. 40, § 82, effective March 21, 2013; 2014, ch. 92, § 28, effective January 1, 2015; 2019 ch. 88, § 26, effective August 1, 2019; 2019 ch. 86, § 43, effective January 1, 2020; 2020 ch. 49, § 2, effective July 15, 2020.

Legislative Research Commission Notes.

(7/15/94). This section was amended by 1994 Ky. Acts chs. 28, 239, and 428. Where these Acts are not in conflict, they have been codified together. Where a conflict exists between Acts chs. 28 and 428, Acts ch. 428, which was last enacted by the General Assembly, prevails under KRS 446.250 .

NOTES TO DECISIONS

1.Fees Not Permitted.

No fee is provided for making copy of licensees for jury commissioners. Owen County v. Walker, 141 Ky. 516 , 133 S.W. 236, 1911 Ky. LEXIS 43 ( Ky. 1911 ) (decided under prior law).

Statutory services for which no fee is provided are rendered ex officio, and are not compensable. Owen County v. Walker, 141 Ky. 516 , 133 S.W. 236, 1911 Ky. LEXIS 43 ( Ky. 1911 ); Lewis v. James, 191 Ky. 769 , 231 S.W. 526, 1921 Ky. LEXIS 392 ( Ky. 1921 ); Logan County v. Russell, 203 Ky. 592 , 262 S.W. 953, 1924 Ky. LEXIS 958 ( Ky. 1924 ) (decided under prior law).

No fee is provided for recording sheep claims, or for making small individual index books of conveyances. Mills v. Lantrip, 170 Ky. 81 , 185 S.W. 514, 1916 Ky. LEXIS 21 ( Ky. 1916 ) (decided under prior law).

Only the salary provided for in KRS 133.125 may be paid the county clerk when acting as clerk of the board of supervisors. Mills v. Lantrip, 170 Ky. 81 , 185 S.W. 514, 1916 Ky. LEXIS 21 ( Ky. 1916 ); Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ) (decided under prior law).

Rearranging and relabeling of suits is an ex officio duty and not compensable. Allin v. Mercer County, 174 Ky. 566 , 192 S.W. 638, 1917 Ky. LEXIS 216 ( Ky. 1917 ) (decided under prior law).

No fee is provided for “completing books of assessment,” “completing supervisors’ books,” or “assisting board of supervisors.” Taylor v. Jones, 253 Ky. 285 , 69 S.W.2d 372, 1934 Ky. LEXIS 648 ( Ky. 1934 ) (decided under prior law).

No fee is provided for signing, sealing, and certifying originals and copies of county bonds. Taylor v. Jones, 253 Ky. 285 , 69 S.W.2d 372, 1934 Ky. LEXIS 648 ( Ky. 1934 ) (decided under prior law).

2.— Tax Matters.

No fee is allowable to county clerk for copying names of delinquent taxpayers. Owen County v. Walker, 141 Ky. 516 , 133 S.W. 236, 1911 Ky. LEXIS 43 ( Ky. 1911 ) (decided under prior law).

No fee is allowable for entering orders for exoneration, recording sheriff’s sale for taxes, entering orders appointing tax supervisors, recording delinquent tax list, recording report of delinquent taxes, recording license collection reports, nor listing omitted tax payments. Mills v. Lantrip, 170 Ky. 81 , 185 S.W. 514, 1916 Ky. LEXIS 21 ( Ky. 1916 ) (decided under prior law).

No fee is allowable for certifying franchise assessments, nor for certifying to the Department of Revenue (now Revenue Cabinet) the approval of the tax books by the board of supervisors. Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ) (decided under prior law).

3.— Entering Court Orders.

No fee is provided for making orders calling terms of fiscal court. Mills v. Lantrip, 170 Ky. 81 , 185 S.W. 514, 1916 Ky. LEXIS 21 ( Ky. 1916 ) (decided under prior law).

No fee is allowable for entering order of appointment of road overseer. Taylor v. Jones, 253 Ky. 285 , 69 S.W.2d 372, 1934 Ky. LEXIS 648 ( Ky. 1934 ) (decided under prior law).

No fee is allowable for orders entered for the county other than those specified herein. Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ) (decided under prior law).

4.— Elections.

No fee is allowable to county clerk for filing nominating certificates of school trustees. Owen County v. Walker, 141 Ky. 516 , 133 S.W. 236, 1911 Ky. LEXIS 43 ( Ky. 1911 ) (decided under prior law).

No fee is allowable for preparing ballot boxes. Taylor v. Jones, 253 Ky. 285 , 69 S.W.2d 372, 1934 Ky. LEXIS 648 ( Ky. 1934 ); Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ) (decided under prior law).

5.— Fiscal Court Clerk.

Issuance of right of way warrants by county clerk is done in capacity as fiscal court clerk and is not compensable. Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ) (decided under prior law).

The clerk of the fiscal court is not entitled to fees. Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ) (decided under prior law).

6.Fees Permitted.

Fee is allowable for delivery of ballot boxes. Taylor v. Jones, 253 Ky. 285 , 69 S.W.2d 372, 1934 Ky. LEXIS 648 ( Ky. 1934 ); Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ) (decided under prior law).

7.Statutory Fee Exclusive.

If fee is fixed by statute, only that fee may be allowed. Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ) (decided under prior law).

8.Liability for Fees.

Fees for entering orders and making copies thereof should be paid by the party benefited. Owen County v. Walker, 141 Ky. 516 , 133 S.W. 236, 1911 Ky. LEXIS 43 ( Ky. 1911 ) (decided under prior law).

The county is not liable for fees for recording or noting of record the bonds of the county judge (now county judge/executive) or sheriff as this is a personal expense of the official involved. Owen County v. Walker, 141 Ky. 516 , 133 S.W. 236, 1911 Ky. LEXIS 43 ( Ky. 1911 ) (decided under prior law).

County is liable only for fees specified herein. Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ) (decided under prior law).

9.Lien on Fund in Court.

Where it is decided that a fund in court belongs to one of the parties, it is error to give the clerk a lien thereon for his fees against the other party to the prejudice of party entitled to fund. Wilson v. House, 73 Ky. 406 , 1874 Ky. LEXIS 65 ( Ky. 1874 ) (decided under prior law).

10.Deduction from Fee.

Penalty for gross violation of rule as to order of copying pleadings will be deducted from clerk’s fee. Bowens v. Amburgey, 289 Ky. 763 , 160 S.W.2d 169, 1942 Ky. LEXIS 644 ( Ky. 1942 ) (decided under prior law).

11.Itemization.

Fees are not allowable unless the services rendered are itemized with particularity. Taylor v. Jones, 253 Ky. 285 , 69 S.W.2d 372, 1934 Ky. LEXIS 648 ( Ky. 1934 ) (decided under prior law).

12.Cross-Indexing Taxed as Costs.

Fee for cross-indexing land sales for taxes is taxed as part of the costs. Owen County v. Walker, 141 Ky. 516 , 133 S.W. 236, 1911 Ky. LEXIS 43 ( Ky. 1911 ) (decided under prior law).

Opinions of Attorney General.

Plats exceeding 18 x 24 inches are recordable documents, and since there is no express fee authorized to be charged for a plat exceeding 18 x 24 inches, the fee charged shall be $10.00 per page, the same as the fee to be charged for plats not exceeding 18 x 24 inches. OAG 78-448 .

Those offering plats for recording should consider the 18 x 24 inches as a guide to be complied with whenever possible. OAG 78-448 .

If a partial assignment has been made prior to filing, the financing statement must be filed and indexed both under the original secured party and the assignee, and the clerk will have to perform both services, and may charge the $6.00 fee for filing the financing statement, and the $6.00 fee for filing and indexing the assignment. OAG 78-471 .

In the situation where the entire security interest has been assigned prior to filing, the clerk has only one duty to perform and, correspondingly, may only charge the $6.00 fee for filing and indexing the financing statement. OAG 78-471 .

It is certain from the time that the financing statement is first filed that the county clerk will eventually have to file and note the statements of release of collateral; therefore, the clerk may charge the $1.00 fee for filing and noting the statement of release of collateral at the same time as the $6.00 fee for filing the original financing statement. OAG 78-471 .

With the exception of the fee for the final/total release which is paid at the time of the original filing, the clerk may charge $1.00 for filing and noting a statement of release of collateral for each partial release. OAG 78-471 .

A continuation statement is not included in the definition of a financing statement, and is not subject to the $1.00 tax imposed by KRS 142.010(1)(b) on original financing statements involving more than $200.00, nor the $1.00 for filing and noting a statement of release which has already been paid and is not to be included in calculating the fee for filing a continuation statement. OAG 79-147 .

The correct fee for filing a continuation statement is $6.00. OAG 79-147 .

There is no basis for a county fiscal court paying any compensation to a county clerk for exonerating tax bills. OAG 80-7 .

The filing and recording of each tax exoneration by the county clerk entitles the clerk to a fee of $5.00 from the fiscal court, for the first three pages. OAG 80-56 .

Both the orders of the fiscal court and the executive orders entered by the county judge/executive must be recorded and retained in the clerk’s office in the appropriate book, and the fee established for both is $5.00 for the first three pages and $1.50 for each page thereafter. OAG 80-85 .

Pursuant to this section the clerk shall be paid, by the county, $5.00 for recording the first three pages of the sheriff’s monthly report concerning tax collections and $1.50 for each page thereafter. OAG 80-85 .

Inasmuch as there is no specific fee set for cluster assignments of oil and gas leases, the provision concerning miscellaneous recordings governs the fee to be charged therefor. OAG 80-86 .

Under the fee provisions of this section and under KRS 133.130 , the $5.00 fee to the county clerk for recording the exoneration order will have to be borne by the taxpayer complainant and not by the county fiscal court since the statutes make no provisions for payment by someone other than the complainant. OAG 80-140 .

Under this section, the clerk must charge $3.50 for a certified copy of a deed; thus the clerk cannot charge in excess of $3.50 for a certified copy of a deed regardless of how many pages are involved. OAG 80-209 .

A group of continuation financing statements cannot be clustered, i.e., referred to by number in only one continuation form, in order to avoid paying the county clerk a filing fee for each continuation statement, because each financing statement and its companion continuation statement stands as a separate transaction and they may not be clustered so as to avoid the proper statutory filing fee. OAG 80-250 .

The county clerks have to charge one uniform fee for release of real estate mortgages; it has to be precisely the fee authorized under this section and the clerks cannot vary that fee. OAG 80-484 .

Under this section, as amended in the 1980 regular session, the correct fee for recording a deed of release of a mortgage is $5.00 for each such instrument; the $5.00 fee for recording the deed of release includes one marginal notation made pursuant to KRS 382.360(2), then for each additional marginal notation relating to the deed of release, the fee is $1.50; thus where one deed of release is lodged for record, but which releases two different mortgages, the total fee is $6.50. OAG 80-484 .

A creditor submitting a UCC-3 form to the clerk’s office which contained both an amendment of the creditor’s branch address and a continuation statement must pay a separate fee for each under this section even though the information is contained on the same form. OAG 81-33 .

Where the Farmers Home Loan Administration lodged with the county clerk a release of a real estate mortgage instrument, qualifying as a “deed of release” under KRS 382.360 and expressly referring to three different mortgages by book and page numbers, the clerk need only charge $5.00 for the first mortgage and $1.50 for each additional mortgage rather than $5.00 for each mortgage, since the explicit reference to KRS 382.360 in this section as well as the immediate juxtaposition of the $1.50 fee for “each additional marginal notation” to the $5.00 fee for recording and certifying a deed of release must be read together to make sense. OAG 81-329 .

In connection with transfer of notes secured by mortgages on single-family dwellings within the commonwealth of Kentucky, the county clerk is entitled to a fee for noting the assignment on the real estate mortgages presently on file in his office, pursuant to KRS 382.290 and this section. OAG 82-264 .

In connection with transfer of notes secured by mortgages on single-family dwellings within the commonwealth of Kentucky, the county clerk is entitled to a fee for recording the deed of assignment of the real estate mortgages under this section. The $5.00 fee is payable for each assigned mortgage regardless of whether the mortgage assignments are contained in one document or in separate documents. OAG 82-264 .

A county clerk, if he or she has a notarial appointment under KRS 423.010 , may of course act as notary in proving, acknowledging and certifying an instrument. OAG 82-336 .

Under this section, any county clerk may administer any oath and certify it, and any county clerk may take any acknowledgment or proof of any written instrument required by law to be done and certify it, subject to the proviso that the particular instrument is not one required by statute to be taken only before a notary. OAG 82-336 .

A properly filed assignment (a single assignment), whether involving one, two or more security agreements, calls for a six dollar fee for the clerk. OAG 82-432 .

Since the amendment of this section by Acts 1982, ch. 161, § 1 changed the clerk’s fee for marriage licenses from $4.00 to $14.00, while the amendment of the section by Acts 1982, ch. 375, § 1 did not change such amount, the Reviser in combining the amendments showing such fee to be $14.00 correctly concluded that the General Assembly intended the fee to be $14.00. OAG 82-643 .

KRS 61.874(2), governing fees for copies of public records, is a residual and general statute and applies where there is no other applicable and specific fee statute; this section will apply where the language on the schedule is appropriate and applicable to the particular clerk’s record. OAG 83-42 .

The fee charged for a copy of a will, a land purchase contract, and assignment of a land purchase contract would be governed by KRS 61.874(2), the general law governing fees for copies of public records, while the fee for copies of a deed of trust, a deed and a real estate mortgage would be governed by this section. OAG 83-42 .

Where an appended plat is specifically referred to in the deed and must be resorted to in order to locate the land on the ground, it will be considered as an integral part of the deed in question and thus if the deed, considering the plat, did not exceed three pages, the recording fee is $7.00; where the deed exceeds three pages, the recording fee is $1.50 for each extra page over three. OAG 83-237 .

If the description, from which the land conveyed can be actually located on the ground, is contained within the deed instrument, then a plat of the land contained on a separate page must be construed as a superfluity and as being separate from the deed in terms of a recording fee; the fee for recording such plat is $10.00 and the plat should be recorded in the plat book and separately indexed. OAG 83-237 .

An army chaplain serving in a Kentucky county is required to pay the county clerk’s fee in connection with the license to solemnize marriages; there can be no valid waiver of that legal responsibility. OAG 83-240 .

Since no specific fee is set for filing an amendment to a financing statement, it falls into a general category under this section, which provides that the fee for miscellaneous recordings for which no specific fee is set, provided the entire record does not exceed three pages, is five dollars, and where the document exceeds three pages, one dollar and fifty cents for each additional page. OAG 83-421 .

The county clerk’s proper fee for filing and indexing a continuation financing statement is six dollars according to this section. OAG 83-421 .

Where mortgages contain assignments that are appended to the mortgage instruments and are executed prior to the lodging of the mortgages with the clerk for recording, the assignment is merely a part of the mortgage instrument and there can be no valid charge for recording the assignment part over and above the fee for recording the entire mortgage document, which includes the assignment. OAG 84-78 .

The literal language of this section clearly suggests that a “deed of assignment” means a separate deed of assignment, involving only an assignment. OAG 84-78 .

The “reasonable fee” provision of KRS 61.874(2) applies only when there is no other applicable fee statute; this section, pertaining to fees of county clerks, therefore governs over KRS 61.874(2) in case of a conflict. OAG 84-91 .

The fee schedule under this section, as applies to an assignment of real estate mortgages, is stated in language that envisions one single document of assignment, regardless of the multiplicity of assignments within the one document; if the General Assembly had intended to prohibit “clustering” in such assignments, it could have easily said so by statute. OAG 84-197 .

The history of this section reflects that the fee schedule for the county clerks is constructed around a specific fee for the filing of a particular document, i.e., the singular is used; thus the fee schedule does not deal specifically with the multiple transaction-within-one-document concept; any inequity which may arise from this clustered document approach will have to be remedied by the General Assembly. OAG 84-197 .

As relates to the multiple assignment of real estate mortgages, this section provides one fee for recording the single instrument ($5.00); however, by the strongest implication, the clerk should, for making marginal notations on each real estate mortgage affected, collect $2.50. OAG 84-260 , modifying OAG 84-197 .

The fee in this section, for filing and indexing an assignment of a financing statement is $6.00 for each financing statement mentioned and assigned in the one instrument of assignment; the cluster technique cannot be used to circumvent the clear policy expressed in KRS 355.9-405 and 355.9-403(4). OAG 84-260 .

Concerning the county clerk’s fee for filing and indexing a certified copy of a disability judgment under KRS 387.590(8), the proper fee for the county clerks to accompany such filing and indexing is five dollars for filing miscellaneous documents for which no specific fee is set, where the record does not exceed three pages; where such document exceeds three pages, for each additional page the clerk’s fee is one dollar and fifty cents. OAG 84-322 .

Where a deed of trust, involving real and/or personal property, or a deed of assignment, as a conveyance of real and/or personal property for the benefit of creditors, is filed with the county clerk for record, the state tax of $3.00 must be collected by the county clerk. OAG 85-66 .

The fee to be collected for the filing of an original security agreement containing an assignment is $10.50, pursuant to KRS 186A.190 , if the security interest is to be noted upon a motor vehicle lien statement; however, if the secured interest is being filed upon property other than a motor vehicle, the fee, pursuant to this section, would be $6.00 for filing, $6.00 for an assignment, and $1.00 for termination, plus any miscellaneous fees established by other applicable statutes. OAG 87-52 .

If the county clerk’s office could not demonstrate that the fee list set forth in this section was applicable to the documents requested by the newspaper reporter, then subsection (2) of KRS 61.874 applied relative to the costs that a public agency could charge for copies of documents. OAG 87-80 .

If the county clerk cannot demonstrate that the records involved are included under the provisions of this section, then the amount to be charged for copies of the records is governed by subsection (2) of KRS 61.874 ; unless the county clerk can demonstrate that it actually costs 50¢ per page to provide copies of documents, considering the applicable factors set forth in KRS 61.874 (2), he should recalculate the fees imposed to conform to the statutory requirements. OAG 89-9 .

If the county clerk’s office cannot demonstrate that the records requested by a citizens group are among those identified in this section, and governed by this section, the amount which may be charged for copies is governed by KRS 61.874(2); unless the county clerk’s office can then demonstrate that the cost to the county clerk’s office for providing copies is indeed 50¢ per page, based on the factors set forth in KRS 61.874(2), the county clerk’s office should recalculate the fees imposed to conform to the statutory requirements. OAG 92-79 .

County clerk cannot lawfully impose upon the fiscal court a separate charge for certified copies of minutes of fiscal court meetings furnished to the fiscal court for its use. OAG 94-38 .

The proper fee of the county clerk for recording a reassignment of a certificate of delinquency from a third-party purchaser to a subsequent purchaser is the general fee of $12.00 provided in KRS 64.012(1)(a). OAG 12-002 , 2012, Ky. AG LEXIS 46.

A county clerk did not violate the Open Records Act in imposing a $1.50 charge for certified copies of official bonds executed by public officials which he furnished in response to an open records request as this section authorized a charge of $2.00. OAG 99-ORD-56.

Research References and Practice Aids

Cross-References.

Clerk of county court, other fees of:

Assignment of notes, noting, KRS 382.290 .

Bankruptcy, lis pendens notice of proceedings in, recording of, KRS 382.510 .

Business under assumed name, indexing and filing certificate of, KRS 365.015.

Certified copy of public record relating to eligibility for veterans’ assistance to be furnished without fee, KRS 388.330 .

Chambers of commerce, no fee for recording articles of incorporation of, KRS 102.020(2).

Cooperative livestock protective association, filing articles of, KRS 272.410 .

Cooperative marketing association, filing articles of incorporation of, KRS 272.141 .

Corporations, fees for filing and recording papers concerning, KRS 271B.1-220 .

County board of supervisors, fees for duties concerning, KRS 133.125 .

County farm bureau, no fee for filing articles of incorporation of, KRS 247.260 ; nor for filing treasurer’s bond, KRS 247.270 .

Dead body, approving bond of person taking, KRS 311.310 .

Discharge papers, no fee for recording, KRS 422.090 .

Drainage districts, services under laws relating to, KRS 268.610 , 269.230 .

Elections, fees for duties concerning, KRS 116.145 , 118.255 .

Encumbrances, for recording original instrument, notices and discharges, KRS 134.420 , 376.080 , 376.140 , 376.230 , 382.290 , 382.460 , 382.470 , 382.500 .

Extension of time on debt secured by lien, entering memorandum of, KRS 413.100 .

Licenses, issuing:

County, KRS 137.115 .

Liquor, KRS 243.600 .

Motor vehicle, KRS 186.040 , 186.060 , 186.070 , 186.180 , 186.190 .

Watercraft, KRS 182.160 .

Licenses, recording:

Entertainment, places of, KRS 231.050 .

Podiatrist’s, KRS 311.440 .

Lien for unpaid unemployment compensation contributions, filing notice of, KRS 341.310 .

Notary’s signature and certificate, filing, KRS 423.020 .

Property taxes, duties in relation to:

Board of tax supervisors, acting as clerk of, KRS 133.125 .

Calculating taxes, KRS 132.550 .

Certificate of transfer and release of; recording, KRS 134.100 .

Conveyances, furnishing list of, KRS 132.480 .

Correction of tax books after equalization by board of tax appeals, KRS 133.181 .

Notes for purchase-money mortgages, certifying to property valuation administrator, KRS 132.490 .

Recapitulation sheets, making and recording, KRS 133.125 .

Sales of property for taxes, services in, KRS 134.480 .

State tax liens, filing notice of, KRS 134.420 .

Tax bills, making out, KRS 133.240 .

Taxes on legal processes and instruments, collecting, KRS 142.015 .

United States tax liens, filing notice and discharge of, KRS 382.500 .

Water district assessments, recording sale of property for, KRS 74.190 .

Rural electric cooperative corporation, recording articles of incorporation of, KRS 279.190 .

Will, receiving and keeping, KRS 394.110 .

Clerks’ fees generally:

Governor may not remit, Const., § 77.

Commonwealth, fees not collectible from when unsuccessful in suit, KRS 453.010 .

Compensation:

Deduction for neglect of duty, Const., § 235.

Maximum allowed to officers, Const., § 246.

Not to be changed during term, Const., §§ 161, 235.

Salary, officers who must be paid by, Const., § 96.

Special or local acts concerning prohibited, Const., § 59(18).

Confederate pensions, no fee allowed for helping collect, KRS 206.080 .

Costs, KRS Ch. 453.

County offices, fees in to be regulated by law, Const., § 106.

Drainage district laws, fees of officers under, KRS 267.420 .

Fees of officers not covered in this chapter:

Bailiff, special, KRS 421.135 .

Collector of dog license, KRS 258.135 .

Commonwealth’s Attorney, Const., § 98; KRS 69.120 , 69.130 .

County attorneys, KRS 64.530 , 393.200 , 393.210 .

Elisor, KRS 70.200 .

Jurors, KRS 29A.330.

Property valuation administrator, KRS 132.590 , 132.645 .

Vital statistics, fees for certified copies of certificates or records or search of records, KRS 213.141 .

Forma pauperis, fees not to be collected from person suing in, KRS 453.190 .

Governor may not remit fees in criminal cases, Const., § 77.

Insolvent person, fees may be taken out of judgment recovered by, KRS 453.200 .

Kentucky Law Journal.

Notes, Vehicular Registration in Kentucky: A Remnant of the Horse and Buggy Age, 69 Ky. L.J. 124 (1980-81).

Kentucky Law Survey, Weinberg, Graham and Stipanowich, Modernizing Kentucky’s Uniform Commercial Code, 73 Ky. L.J. 515 (1984-85).

Treatises

Petrilli, Kentucky Family Law, Marriage Licenses, § 5.9.

64.015. Fees of county clerks for taking acknowledgments, certifying, and recording deeds for state or county road systems.

  1. County clerks shall be paid out of the state road fund the fees provided for in KRS 64.012 , for taking acknowledgments, certifying, and recording deeds conveying right-of-way to be used in the state road system.
  2. County clerks shall be paid by the fiscal court the fees provided for in KRS 64.012 , for taking acknowledgments, certifying, and recording deeds conveying right-of-way to be used in the county road system.

History. Enact. Acts 1954, ch. 237, effective June 17, 1954; 1978, ch. 384, § 129, effective June 17, 1978.

64.017. County clerk’s expense allowance.

  1. The county clerk of any county shall receive a maximum annual expense allowance of $3,600 to be paid from the fees collected by the clerk. In counties of less than 75,000 population, the expense allowance shall be taken in monthly installments of $300 from fees collected on a calendar year basis. In counties of 75,000 or more population, the allowance shall be paid in semimonthly installments of $150 according to the procedures found in KRS 64.345(4). The expense allowance provided by this section shall be in addition to other lawful expense payments.
  2. If the amount of fees collected will not fund the full amount of the annual expense allowance, then the county clerk shall receive the excess of such fees after all other lawful expenses and salaries have been paid. The fiscal court of any county may pay that portion of the maximum annual expense allowance for which no excess fees are available.

History. Enact. Acts 1978, ch. 84, § 25, effective June 17, 1978.

Opinions of Attorney General.

Beginning July, 1978, and each month thereafter the clerk will receive $300 as long as there are fees available or are received from the fiscal court. OAG 78-245 .

Since this section becomes law June 17, 1978, on June 30, 1978, the clerk will have $1,800 due as expenses if there are fees available. OAG 78-245 .

The term “annual expense allowance” clearly indicates an intent to make the bill retroactive to January 1, 1978, since “annual” in this context means the calendar year. OAG 78-245 .

64.019. Procedures for obtaining copies of records under control of county clerk — Per-page fee.

Notwithstanding any other provision of the Kentucky Revised Statutes:

  1. A county clerk may establish procedures for obtaining copies of records under his or her control, including restricting the use of devices including but not limited to scanners, cameras, computers, personal copiers, or other devices that may be used by an individual seeking a copy of a document maintained by the clerk, but a clerk shall not restrict the ability of any person to make handwritten notes regarding documents and records maintained by the clerk.
    1. Unless the provisions of paragraph (b) of this subsection apply, the county clerk shall collect a per-page fee, not to exceed fifty cents ($0.50) per page, for providing legal size or smaller paper copies of records or documents maintained by the clerk. (2) (a) Unless the provisions of paragraph (b) of this subsection apply, the county clerk shall collect a per-page fee, not to exceed fifty cents ($0.50) per page, for providing legal size or smaller paper copies of records or documents maintained by the clerk.
    2. If a higher fee for copying a document or record is specifically established by statute, the provisions of that statute shall prevail over the provisions of this subsection.

History. Enact. Acts 2012, ch. 161, § 12, effective April 23, 2012.

64.020. Circuit clerks. [Repealed.]

Compiler’s Notes.

This section (355, 1720 to 1724: amend. Acts 1944, ch. 151, § 1; 1956, ch. 140, § 1; 1962, ch. 269, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective March 19, 1977.

64.030. Advance fees of circuit clerk. [Repealed.]

Compiler’s Notes.

This section (1720 to 1724: amend. Acts 1944, ch. 151, § 1; 1954, ch. 123, § 1; 1968, ch. 109, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective March 19, 1977.

64.035. Fees of clerks of county and quarterly courts in certain counties containing a city of the second class. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 207, §§ 3, 4) was repealed by Acts 1946, ch. 185.

64.040. Circuit and county clerks in counties of 75,000 population or over. [Repealed.]

Compiler’s Notes.

This section (1761, 1762, 1764, 1765) was repealed by Acts 1950, ch. 196, § 2.

64.050. Collection of fees and payment after leaving office.

  1. When the term of any county clerk in counties of seventy-five thousand (75,000) population or over expires, or he dies or resigns, or is removed from office, he or his personal representative, trustee, or committee, as the case may be, shall at once deliver to his successor in office all accounts, claims, and fees due him in his official capacity. The successor shall have the fees, claims, and accounts collected, or the Department for Local Government may, in its discretion, when said accounts, fees, and claims are so delivered to the successor, appoint a person to collect them. If a collector is appointed, the successor shall at once, or when demanded by the collector, deliver to him all accounts, fees, and claims uncollected. The successor or collector, as the case may be, shall, every sixty (60) days after receiving the accounts, fees, and claims, report to the Department for Local Government, under oath, the amount collected thereon, and at the same time pay to the Department for Local Government the amount so collected, and shall continue to so report for three (3) years, unless the accounts, fees, and claims are sooner collected.
  2. The Department for Local Government shall, upon each payment, draw a warrant on the State Treasurer in favor of the person collecting, for an amount equal to twenty percent (20%) of the amount so paid in, which shall be the full compensation allowed for the collection.
  3. If the amount paid to any clerk during his term or incumbency was not sufficient to pay the salaries and office expenses of the clerk, the Department for Local Government shall, out of the money collected and paid in as provided in subsection (1) of this section, pay to the clerk, or to the person entitled to receive the same, an amount sufficient to supply the deficit due for salaries and expenses, not exceeding seventy-five percent (75%) of the amount of fees accrued during his official term and which have been collected and paid to the Department for Local Government.

History. 1767 to 1769: amend. Acts 1962, ch. 210, § 10; 1974, ch. 74, Art. II, § 9(1); 1976 (Ex. Sess.), ch. 14, § 27; 1986, ch. 374, § 14, effective July 15, 1986; 1998, ch. 69, § 24, effective July 15, 1998; 2007, ch. 47, § 35, effective June 26, 2007; 2010, ch. 117, § 41, effective July 15, 2010.

NOTES TO DECISIONS

1.Duties of Successor.

It is the duty of the successor in office to collect the delinquent fees of his predecessor. Meriwether v. Summers, 179 Ky. 437 , 200 S.W. 619, 1918 Ky. LEXIS 219 ( Ky. 1918 ).

Under this section it is the duty of a clerk of court to collect fees earned by his predecessor. Riley v. Shannon, 266 Ky. 265 , 98 S.W.2d 906, 1936 Ky. LEXIS 647 ( Ky. 1936 ).

Under this section the clerk of court is to report to the auditor (now Finance and Administration Cabinet) the fees of his predecessor collected by him. Riley v. Shannon, 266 Ky. 265 , 98 S.W.2d 906, 1936 Ky. LEXIS 647 ( Ky. 1936 ).

2.Unpaid Salaries and Expenses.

Amounts collected hereunder, to the extent of seventy-five percent, are available for payment of deficits in salaries and office expenses of the officer to whom said fees accrued. Meriwether v. Summers, 179 Ky. 437 , 200 S.W. 619, 1918 Ky. LEXIS 219 ( Ky. 1918 ); Shannon v. Grieb, 266 Ky. 591 , 99 S.W.2d 751, 1936 Ky. LEXIS 716 ( Ky. 1936 ).

The clerk of a court is not liable to deputies of his predecessor who are entitled to unpaid salaries from fees of his predecessor collected by him since he is accountable to the auditor for all fees collected. Riley v. Shannon, 266 Ky. 265 , 98 S.W.2d 906, 1936 Ky. LEXIS 647 ( Ky. 1936 ).

Deputies of predecessor must look only to the auditor for their unpaid salaries and not to the successor who collects the fees of the predecessor. Riley v. Shannon, 266 Ky. 265 , 98 S.W.2d 906, 1936 Ky. LEXIS 647 ( Ky. 1936 ).

Opinions of Attorney General.

Where a county clerk dies in office, all fees earned by him in the year of his death, during his actual term, including any earned fees remaining uncollected but which are thereafter collected, should be applied to his annual compensation, the salaries of his deputies and office expenses for the period of his incumbency during the year of his demise before any part is considered excess fees subject to the seventy-five percent limitation of KRS 64.345 and to any deficit existing at the clerk’s demise. In the event any deficit remains after extending credit to the deceased clerk for fees earned, then receipts of the office coming in during the successor’s period and during the remainder of the decedent’s official term should be used to liquidate the deficit. OAG 69-103 .

Research References and Practice Aids

Cross-References.

Collection of fees after death of officer, KRS 64.420 .

Sheriff may distrain for fees for two years after leaving office, KRS 70.100 .

ALR

Outgoing officer’s failure to see that person to whom public moneys are turned over is a duly qualified successor as affecting liability on his bond. 106 A.L.R. 195.

64.055. Salary for circuit clerks — Adjustment for changes in consumer price index — Limits. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 21, § 19, effective January 2, 1978; 1978, ch. 159, § 2, effective June 17, 1978; 1980, ch. 407, § 2, effective July 1, 1980; 1982, ch. 331, § 1, effective July 1, 1982; 1982, ch. 396, § 8, effective July 15, 1982; 1986, ch. 374, § 15, effective July 15, 1986) was repealed by Acts 1994, ch. 134, § 9, effective July 1, 1994. For present law, see KRS 64.056 and 64.058 .

64.056. Manner of setting compensation of clerks of the Circuit Court — Salary increases.

Compensation of clerks of the Circuit Court shall be set in accordance with the judicial personnel system. The Chief Justice shall include anticipated salary increases for clerks of the Circuit Court in the judicial branch budget recommendation. The increases may be limited by the General Assembly in the judicial branch budget bill.

History. Enact. Acts 1994, ch. 134, § 2, effective April 1, 1994; 2011, ch. 73, § 15, effective June 8, 2011.

64.057. Annual salary increments for deputy circuit clerks.

Deputy circuit clerks may receive annual salary increments for each year’s services, subject to determination by the Supreme Court.

History. Enact. Acts 1978, ch. 159, § 1, effective June 17, 1978; 1980, ch. 407, § 3, effective July 1, 1980.

Opinions of Attorney General.

To get constitutional officer’s compensation in proper perspective, one must consider two levels of compensation restriction: (1) the overall constitutional maximum based upon the adjustment of the dollar in terms of change in the consumer price index formula enunciated by the appellate court as applied to the monetary base levels set out in Const., § 246; (2) the statutory maximum compensation which, of course, must not exceed the constitutional maximum. OAG 78-840 .

64.058. Expense account for circuit clerks.

Each Circuit Court clerk shall receive an annual expense allowance of three thousand six hundred dollars ($3,600) per year. A lump-sum payment shall be made by the Administrative Office of the Courts to each Circuit Court clerk in the first month of each quarter as of July, 1984, in the amount of nine hundred dollars ($900) per quarter. The allowance shall be in addition to reimbursement for official travel and the regular compensation provided for by KRS 64.056 .

History. Enact. Acts 1984, ch. 235, § 1, effective July 13, 1984; 1994, ch. 134, § 8, effective July 1, 1994.

64.060. Peace officers generally.

  1. Sheriffs, constables, coroners, marshals, and policemen shall be paid out of the State Treasury for the following services the following fees:
    1. Apprehending a person on charge of felony, or a fugitive from justice charged with a felony in this state  . . . . .  $10.00
    2. Executing a process of contempt in a criminal case when the court excuses the contempt  . . . . .  1.60
    3. Executing a summons upon a witness in behalf of the Commonwealth in a felony case  . . . . .  3.00
    4. Summoning a jury, on order of a court, in a county other than that in which the action is pending, a reasonable allowance to be fixed by the court.
    5. Summoning and attending a jury in a case of felony  . . . . .  2.50
  2. No claim for services incidental to examining courts shall be allowed to any sheriff, deputy sheriff, constable, marshal, policeman, or other officer authorized to execute process in felony cases until the grand jury has returned an indictment for a felony.

History. 353, 354, 4586: amend. Acts 1962, ch. 254; 1992, ch. 366, § 1, effective July 14, 1992; 1996, ch. 248, § 1, effective July 15, 1996.

NOTES TO DECISIONS

1.Disposition of Fees.

Fees earned hereunder by policeman of second-class city need not be turned over to city under KRS 84.340 (now repealed). In re Burke, 101 Ky. 175 , 40 S.W. 379, 19 Ky. L. Rptr. 358 , 1897 Ky. LEXIS 167 ( Ky. 1897 ).

Opinions of Attorney General.

While the sheriff’s fee for making an arrest pursuant to KRS 64.090 does not apply to peace officers generally, a county policeman, although a peace officer, is entitled to a fee of $3.00 paid out of the state treasury for apprehending a person on the charge of felony. OAG 72-77 .

County patrolmen may not use the sheriff’s facilities under the cooperative attempt to save costs. OAG 78-376 .

Subsection (2) of this section (as amended by Acts 1992, ch. 366, § 1) takes effect in a given county, only upon the approval of a fiscal court — an authority other than the General Assembly. The effect and operation of what might be termed the “alternate fee schedule” for certain sheriffs, provided for by 1992 amendment of this section by ch. 366, § 1, depends not upon the discretion of the legislature, but upon the discretion of another (here the fiscal court). This is exactly the thing that is prohibited by Const., § 60. OAG 92-107 .

When a felony arrest is made without a warrant, there is no return of any document to the court. In these cases the $10 arrest fee provided for in this section applies. The sheriff has neither executed nor returned process, so he is not entitled to the $20 fee provided for in KRS 64.090 . OAG 96-34 .

64.070. Officers conveying prisoners.

    1. Except as provided in KRS 441.540 , an officer conveying a prisoner to the penitentiary shall be paid out of the State Treasury the rate per mile paid state employees for official travel in privately-owned vehicles, as established by administrative regulation of the Finance and Administration Cabinet, pursuant to KRS Chapter 13A, to be calculated by the nearest traveled route, and shall be paid all actual necessary expenses for feeding, lodging and transporting the prisoner; (1) (a) Except as provided in KRS 441.540 , an officer conveying a prisoner to the penitentiary shall be paid out of the State Treasury the rate per mile paid state employees for official travel in privately-owned vehicles, as established by administrative regulation of the Finance and Administration Cabinet, pursuant to KRS Chapter 13A, to be calculated by the nearest traveled route, and shall be paid all actual necessary expenses for feeding, lodging and transporting the prisoner;
    2. Upon the production of the receipt of the warden of the penitentiary for the delivery of a prisoner, and a complete verified account of all expenses incurred, giving the names of the guards employed and distance traveled, the Finance and Administration Cabinet shall audit the account of the officer for conveying the prisoner and, if found correct, draw a warrant for its payment.
    1. For conveying a prisoner charged with a felony from one (1) county to another, an officer shall receive the same mileage and expenses allowed for conveying a prisoner to the penitentiary, to be paid out of the State Treasury except as provided in KRS 441.530 ; (2) (a) For conveying a prisoner charged with a felony from one (1) county to another, an officer shall receive the same mileage and expenses allowed for conveying a prisoner to the penitentiary, to be paid out of the State Treasury except as provided in KRS 441.530 ;
    2. Upon the production of the receipt of the jailer of the county to which the prisoner is transferred, and a complete verified account of all expenses incurred, giving the names of the guards employed and the distance traveled, the Finance and Administration Cabinet shall audit the account of the officer for conveying the prisoner and if found correct shall draw a warrant for its payment.
    1. For arresting a person charged with a misdemeanor upon a warrant issued from another county, and conveying the person to the county jail of the county from which the warrant issued, an officer shall be paid out of the county treasury of the county from which the warrant was issued the same mileage and expenses allowed for conveying a prisoner to the penitentiary; (3) (a) For arresting a person charged with a misdemeanor upon a warrant issued from another county, and conveying the person to the county jail of the county from which the warrant issued, an officer shall be paid out of the county treasury of the county from which the warrant was issued the same mileage and expenses allowed for conveying a prisoner to the penitentiary;
    2. The officer shall present to the county judge/executive of the county from which the warrant issued a verified and itemized statement of his mileage and expenses and the county judge/executive shall direct the county treasurer to pay the same out of the county treasury.
  1. For conveying a prisoner charged with a felony to the jail of the county in which he was arrested, an officer shall be paid out of the State Treasury the rate per mile paid state employees for official travel in privately-owned vehicles, as established by administrative regulation of the Finance and Administration Cabinet, adopted pursuant to KRS Chapter 13A, for each mile traveled in going and returning.
  2. The number of guards employed in conveying prisoners to the penitentiary or from one (1) county to another shall not exceed one (1) for every two (2) prisoners. Where only one (1) prisoner is conveyed no guard shall be employed, except that the Circuit Judge may appoint one (1) guard for each prisoner to the nearest railroad station.

History. 164, 354, 361, 363, 1728, 2046: amend. Acts 1974, ch. 74, Art. II, § 9(1); 1976 (Ex. Sess.), ch. 12, § 12, effective January 1, 1978; 1976 (Ex. Sess.), ch. 14, § 28, effective January 2, 1978; 1978, ch. 162, § 1, effective June 17, 1978; 1986, ch. 374, § 16, effective July 15, 1986; 1994, ch. 508, § 16, effective July 15, 1994.

NOTES TO DECISIONS

1.Construction.

Claims for conveying prisoners are not subject to the provisions of Const., § 106, since they are not properly “office expenses.” Greene v. Ballard, 174 Ky. 808 , 192 S.W. 841, 1917 Ky. LEXIS 246 ( Ky. 1917 ).

2.Application.

Nothing in this section requires a county to pay the county jailer for transporting prisoners from county seat to larger town in which circuit court is alternately held. Fulton v. Shanklin, 275 Ky. 772 , 122 S.W.2d 733, 1938 Ky. LEXIS 490 ( Ky. 1938 ).

3.Mileage.

This section authorizes allowance of mileage both for coming and going. Greene v. Jones, 170 Ky. 757 , 186 S.W. 675, 1916 Ky. LEXIS 135 ( Ky. 1916 ).

The state is not liable for witness fees and mileage of the accused’s witnesses. Greene v. Ballard, 174 Ky. 808 , 192 S.W. 841, 1917 Ky. LEXIS 246 ( Ky. 1917 ).

4.Prisoner Under Attachment.

State is not liable to sheriff for expense of transporting prisoner arrested under attachment to a distant county. Suter v. Stone, 108 Ky. 518 , 56 S.W. 971, 22 Ky. L. Rptr. 224 , 1900 Ky. LEXIS 73 ( Ky. 1900 ).

5.Transporting Prisoner to Testify.

Cost of bringing witness from penitentiary to testify for a defendant is allowable under subsection (1). Hancock v. Parker, 100 Ky. 143 , 37 S.W. 594, 18 Ky. L. Rptr. 622 , 1896 Ky. LEXIS 155 ( Ky. 1896 ).

6.Special Bailiffs.

Special bailiffs are entitled to the fees provided in subsection (1). Mann v. Commonwealth, 102 Ky. 383 , 43 S.W. 694, 19 Ky. L. Rptr. 1437 , 1897 Ky. LEXIS 128 ( Ky. 1897 ).

7.Venue in False Claims Action.

Where Warren County deputy sheriff filled out or caused to be filled out false claims for mileage and expenses in the transportation of prisoners under this section and KRS 440.090 which were filed with and paid by the department of finance in Franklin County, venue was proper in either Warren County where expense claims were filled out, mailed, checks received, cashed and funds diverted to persons other than payee, or in Franklin County where the claims were received, relied upon, processed and checks issued and mailed, since under KRS 452.550 venue in either county is proper where offense occurred in more than one county, thus omission in jury instructions of reference to Warren County is not fatal. Hodges v. Commonwealth, 614 S.W.2d 702, 1981 Ky. App. LEXIS 236 (Ky. Ct. App. 1981).

Cited:

Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 , 5 A.L.R.2d 1154 ( Ky. 1948 ).

Opinions of Attorney General.

Where an officer conveys different types of prisoners or patients at the same time to institutions operated by different departments, he shall apportion the mileage cost to each department. OAG 62-713 .

Subsection (1)(a) of this section is broad enough to authorize reimbursement to the sheriff for toll road charges as actual necessary expense in transporting felons to the state penitentiary at Eddyville as such expense was not intended to be included in the ten cents per mile computation. OAG 70-498 .

Sheriff was limited to ten cents per mile, designed to cover the cost of gasoline, for himself and the one guard used in the transportation of prisoners to another county. OAG 73-804 .

This section does not provide for the payment of the mileage allowance to guards as well as to the drivers conveying prisoners since the mileage is actually a reimbursement of the costs for operating the automobile. OAG 78-528 .

Under the plain language of the statute an “employed” guard is entitled to compensation for his services to be paid out of the State treasury. OAG 78-617 .

If the Circuit Court has ordered the transfer of a prisoner to another county’s jail because of the failure of the fiscal court to provide adequate facilities to house the prisoner, then the sheriff may be reimbursed as per the provisions of this section from county funds; the court must state in its order that the costs shall be borne by the county. OAG 80-482 .

A sheriff cannot obtain reimbursement under this section for costs incurred in transporting a prisoner from the county jail to a hospital, pursuant to a court order, for emergency medical care where the prisoner remains in the hospital’s security unit for the duration of the medical treatment, since there is no statutory authorization for payment of those transportation costs; the sheriff may however be given a credit against any excess fees for the actual costs involved in this type of transfer under the doctrine of Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ), as he is performing an official function in making these transfers. OAG 80-499 .

KRS 44.020 , concerning allowance of claims against the State Treasury, may be read together and applied with subsections (2) and (4) of this section and KRS 441.030 (now KRS 441.520 ) to KRS 441.050 (now KRS 441.540 ), which relate to the transfer of prisoners. OAG 81-336 .

While this section covers such situations as conveying a prisoner to the penitentiary, conveying a prisoner charged with a felony from one county to another and arresting a person charged with a misdemeanor upon a warrant issued from another county and conveying such person to the county jail of the county from which the warrant issued, it does not cover the transportation of a juvenile in a nonfelony situation from one county to another in order to detain him in a proper facility. OAG 82-111 .

Research References and Practice Aids

Cross-References.

Compensation allowed for conveying persons in other cases:

Bailiff, special, bringing witness from out of county, KRS 421.135 .

Fugitive from justice, returning to this state, KRS 440.090 .

Insecure jail, removing prisoner from, KRS 441.530 .

Penitentiary, removing prisoner to pending trial, KRS 441.540 .

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky, 40 Ky. L.J. 275 (1952).

64.080. Advance fees for execution of process.

Unless a party has established his right to prosecute or defend as a poor person under KRS 453.190 , or unless the party is the Commonwealth, a county, city, or any agency thereof, no officer shall be required to execute any process in a civil case on behalf of a party until the party has deposited with the clerk of the court from which the process issued a sum, not exceeding five dollars ($5), sufficient to pay the fees for executing all process on behalf of that party in the case. Upon filing due return showing service the officer shall be paid his proper fee by the clerk. Any portion of the deposit not used to pay fees for process actually executed shall be returned to the party who paid it. If the process is sent to the officer from another county, he shall not be required to execute it unless it is accompanied by the fee or a certificate from the clerk that there is a sufficient sum on deposit to pay the fee.

History. 1727.

NOTES TO DECISIONS

1.Application.

This section has no application to criminal cases. Hoskins v. Commonwealth, 216 Ky. 358 , 287 S.W. 924, 1926 Ky. LEXIS 917 ( Ky. 1926 ).

Cited:

Scott Bros. Logging & Lumber Co. v. Cobb, 465 S.W.2d 241, 1971 Ky. LEXIS 438 ( Ky. 1971 ).

Opinions of Attorney General.

An advance of $5.00 (plus tax) for fees for execution of process is required to be paid into court under this section by one prosecuting a civil action; in the quarterly court the clerk is required to deliver the process to the designated officer pursuant to KRS 25.015 (repealed), 70.070 , and 70.350(1); the designated officer shall serve it and make proper return before payment of his fee from the advance deposited with the clerk; KRS 64.090 fixes fees to be paid to the sheriff and KRS 64.190 fixes constable fees; and any other advances charged or demanded are not authorized by law. OAG 63-215 .

In cases where a plaintiff has paid the usual court costs deposit at the time of filing suit and has also deposited $5.00 with the clerk as an advancement towards the sheriff’s fees, the sheriff has no authority to require an additional deposit of $5.00 before he will levy execution on a judgment rendered in the case since the statute requires only deposit of “a sum, not exceeding five dollars, sufficient to pay the fees for executing all process.” OAG 67-173 .

The advance filing fee statute (KRS 64.030 , repealed) does not apply to a petition, for review of an award or order of the workmen’s compensation board, filed pursuant to KRS 342.285 , since such a petition is not an original action within the purview of KRS 64.030 (repealed). However the advance fee of $5.00 for execution of process, covered in this section would apply to such an appeal unless the petitioner is a poor person under KRS 453.190 . OAG 70-51 .

The University of Louisville, as a state agency, cannot be required to pay advanced court costs under KRS 64.030 (repealed), state taxes under KRS 142.011 (repealed), or advanced sheriff’s fees under this section when filing a civil law suit as plaintiff in the circuit court. OAG 76-370 .

The commonwealth, except for the provisions of KRS 416.620 , pertaining to proceedings for eminent domain, is exempt from paying costs, although it may, pursuant to KRS 453.010 , pay costs when such costs are approved and allowed by the judge of the court in which the case was filed. OAG 78-343 .

An urban county government is exempt from paying the advance fees for execution of process under this section. OAG 83-186 .

Research References and Practice Aids

Cross-References.

Sheriff to pay secretary of state $10.00 at time of service in nonresident motorist cases, KRS 188.040 .

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky, 40 Ky. L.J. 275 (1952).

64.090. Fees charged by sheriffs.

  1. Sheriffs may charge and collect the following fees from the Commonwealth and any of its agencies, including the Department of Kentucky State Police, when the source of payment is not otherwise specified, if the Commonwealth, any of its agencies, or the Department of Kentucky State Police makes a request that the sheriff perform any of the following:
    1. Executing and returning process  . . . . . $20.00;
    2. Serving an order of court and return  . . . . . 3.00;
    3. Summoning or subpoenaing each witness, fee to be paid by requester to sheriff before service  . . . . . 10.00;
    4. Summoning an appraiser or reviewer  . . . . . 2.00;
    5. Attending a surveyor, when ordered by a court, per deputy or sheriff assigned  . . . . . 20.00;
    6. Taking any bond that he is authorized or required to take in any action  . . . . . 5.00;
    7. Collecting money under execution or distress warrant, if the debt is paid or the property sold, or a delivery bond given and not complied with, six percent (6%) on the first three hundred dollars ($300) and three percent (3%) on the residue; when he or she levies an execution or distress warrant, and the defendant replevies the debt, or the writ is stayed by legal proceedings or by the order of the plaintiff, half of the above commissions, to be charged to the plaintiff and collected as costs in the case;
    8. Taking a recognizance of a witness  . . . . . 3.00;
    9. Levying an attachment  . . . . . 5.00;
    10. When property attached is sold by an officer other than the officer levying the attachment, the court shall, in the judgment, make the officer an additional and reasonable allowance for levying the attachment, and the fee of the officer selling the property shall be lessened by that sum. Reasonable charges for removing and taking care of attached property shall be allowed by order of court;
    11. Summoning a garnishee  . . . . . 3.00;
    12. Summoning a jury in a misdemeanor case, attending the trial, and conducting the defendant to jail, to be paid by the party convicted  . . . . . 8.00;
    13. Serving process or arresting the party in misdemeanor cases, to be paid by the plaintiff  . . . . . 30.00;
    14. Serving an order or process of revivor  . . . . . 3.00;
    15. Executing a writ of possession against each tenant or defendant  . . . . . 7.00;
    16. Executing a capias ad satisfaciendum, the same commission as collecting money on execution. If the debt is not paid, but stayed or secured, half commission;
    17. Summoning and attending a jury in a case of forcible entry and detainer, besides fees for summoning witnesses  . . . . . 8.00;
    18. Collecting militia fines and fee-bills, ten percent (10%), to be deducted out of the fee-bill or fine;
    19. Levying for a fee-bill  . . . . . 3.00;
    20. Serving a notice  . . . . . 2.00;
    21. Serving summons, warrants or process of arrest in cases of children born out of wedlock  . . . . . 6.00;
    22. Serving a civil summons in a nonsupport case  . . . . . 10.00;
    23. Serving each order appointing surveyors of roads, to be paid out of the county levy  . . . . . 5.00;
    24. Serving each summons or order of court in applications concerning roads, to be paid out of the county levy if the road is established, and in all other cases to be paid by the applicant  . . . . . 5.00;
    25. Like services in cases of private passways to be paid by the applicant  . . . . . 5.00;
    26. Executing each writ of habeas corpus, to be paid by the petitioner  . . . . . 3.00;
    27. All services under a writ issued under KRS 381.460 to 381.570 . . . . . 10.00;
    28. Fingerprinting persons for professional, trade, or commercial purposes, or for personal use, per set of impressions  . . . . . 10.00;
    29. Taking or copying photographs for professional, trade, or commercial purposes, or for personal use, per photograph  . . . . . 5.00; and
    30. For services in summoning grand and petit jurors and performing his or her duties under KRS Chapter 29A the sheriff shall be allowed, for each person so summoned, and paid out of the State Treasury for constructive service the sum of $1.50 and for personal service the sum of $3.00.
  2. Sheriffs shall charge and collect a fee of sixty dollars ($60) from any person not requesting the service of the sheriff on behalf of the Commonwealth, any of its agencies, or the Department of Kentucky State Police for the services provided in subsection (1) of this section where a percentage, commission, or reasonable fee is not otherwise allowed. If a percentage, commission, or reasonable fee is allowed, that amount shall be paid. If payment is specified from a person other than the person who requested the service, then the person specified shall be responsible for payment.
  3. Sheriffs may charge and collect a fee of twenty-five dollars ($25) for the handling of an impounded vehicle and a fee of twenty-five dollars ($25) per day for the storage of an impounded vehicle.

History. 354, 357, 1726: amend. Acts 1944, ch. 25; 1952, ch. 72; 1962, ch. 253; 1976 (Ex. Sess.), ch. 22, § 77, effective January 1, 1978; 1978, ch. 162, § 2, effective June 17, 1978; 1982, ch. 159, § 4, effective July 15, 1982; 1982, ch. 385, § 15, effective July 1, 1982; 1984, ch. 16, § 2, effective July 13, 1984; 1996, ch. 248, § 2, effective July 15, 1996; 2002, ch. 194, § 1, effective July 15, 2002; 2005, ch. 43, § 1, effective June 20, 2005; 2006, ch. 255, § 1, effective January 1, 2007; 2007, ch. 85, § 137, effective June 26, 2007; 2014, ch. 135, § 2, effective July 15, 2014; 2019 ch. 46, § 1, effective March 22, 2019; 2019 ch. 164, § 1, effective June 27, 2019.

Legislative Research Commission Notes.

(6/27/2019). This statute was amended by 2019 Ky. Acts chs. 46 and 164, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Application.

The quarterly court, though presided over by the county judge (now county judge/executive), is separate and independent of the county court, and this section which fixes the sheriff’s fees for attending the county court, does not apply to his attendance upon the quarterly court. Perry County v. McIntosh, 280 Ky. 223 , 133 S.W.2d 90, 1939 Ky. LEXIS 124 ( Ky. 1939 ).

2.Regular Sessions.

The sheriff is not entitled to a fee of $2.00 per day for attending sessions of the county court at which only routine orders are made; he is only entitled to the fee when he attends a regular session held for the transaction of business. Perry County v. McIntosh, 280 Ky. 223 , 133 S.W.2d 90, 1939 Ky. LEXIS 124 ( Ky. 1939 ); Laurel County Fiscal Court v. Steele, 285 Ky. 407 , 148 S.W.2d 283, 1941 Ky. LEXIS 399 ( Ky. 1941 ).

3.Commissions.

When property is levied on under fieri facias and sold under venditioni exponas, sheriff is limited to one full commission, and not to half commission for levying and full commission for selling. Boyd v. Harper, 66 Ky. 142 , 1867 Ky. LEXIS 145 ( Ky. 1867 ).

Quashal of sale by creditor does not divest sheriff of right to full commission. Boyd v. Harper, 66 Ky. 142 , 1867 Ky. LEXIS 145 ( Ky. 1867 ).

This section provides that when the sheriff shall levy execution and same is replevied or the writ stayed by injunction, appeal or by other legal proceedings or by order of plaintiff, the officer shall be entitled to half the commissions provided for by this section to be charged to plaintiff and collected as costs in the case. McManama v. Johnson, 283 Ky. 156 , 140 S.W.2d 1022, 1940 Ky. LEXIS 307 ( Ky. 1940 ).

4.Approval of Claim.

A claim of the sheriff for compensation for attending the county court cannot be allowed by the fiscal court until it has been allowed or approved by the county judge (now county judge/executive). Perry County v. McIntosh, 280 Ky. 223 , 133 S.W.2d 90, 1939 Ky. LEXIS 124 ( Ky. 1939 ).

5.Fees Not Permitted.

Sheriff is not entitled to reimbursement by county court for amounts spent for tax receipts, tax books or county claim books. Graves County v. Wallace, 144 Ky. 194 , 138 S.W. 306, 1911 Ky. LEXIS 630 ( Ky. 1911 ).

Sheriff is entitled to no fee for attendance on quarterly court, although it is his duty to attend. Graves County v. Wallace, 144 Ky. 194 , 138 S.W. 306, 1911 Ky. LEXIS 630 ( Ky. 1911 ).

No fee is chargeable by sheriff for arresting operator of moonshine still, for summoning inquest jurors, or for notices for juvenile or fiscal courts. Taylor v. Scoville, 252 Ky. 809 , 68 S.W.2d 423, 1934 Ky. LEXIS 868 ( Ky. 1934 ).

No fee is chargeable by sheriff for delivering ballot boxes. Taylor v. Scoville, 252 Ky. 809 , 68 S.W.2d 423, 1934 Ky. LEXIS 868 ( Ky. 1934 ).

6.Misdemeanor Cases.

This section provides the sheriff shall be paid $6.00 for arrests in misdemeanor cases. Dearing v. McCormack, 352 S.W.2d 197, 1961 Ky. LEXIS 196 ( Ky. 1961 ).

7.Percentage of Property Collected.

This section provides among other things that for collecting money under execution if the debt be paid or the property sold or a delivery bond given and not complied with, the sheriff shall be entitled to 6 percent of the first $300 and 3 percent of the residue. McManama v. Johnson, 283 Ky. 156 , 140 S.W.2d 1022, 1940 Ky. LEXIS 307 ( Ky. 1940 ).

8.Comparison With Constable's Fees.

Sheriff’s fees are generally higher than constable’s fee for performing the same service. Dearing v. McCormack, 352 S.W.2d 197, 1961 Ky. LEXIS 196 ( Ky. 1961 ).

9.Classification.

The 1956 amendment to KRS 64.190 ending the equality of constable’s and sheriff’s fee for making arrest in misdemeanor case is not so arbitrary and unreasonable as to be unconstitutional as the difference in overall responsibility of the sheriff versus the constable provides a reasonable basis for classification. Dearing v. McCormack, 352 S.W.2d 197, 1961 Ky. LEXIS 196 ( Ky. 1961 ).

The difference in a fee of $6.00 paid to sheriffs under this section and 50¢ paid to constables under KRS 64.190 for arrests in misdemeanor cases involving the use of motor vehicles upon the public highways is based on the reasonable classification of overall responsibility. Dearing v. McCormack, 352 S.W.2d 197, 1961 Ky. LEXIS 196 ( Ky. 1961 ).

Cited:

Fulton v. Shanklin, 275 Ky. 772 , 122 S.W.2d 733, 1938 Ky. LEXIS 490 ( Ky. 1938 ).

Opinions of Attorney General.

A warrant can be issued and an arresting fee taxed as cost after the issuance of a citation and the voluntary appearance of the accused pursuant to the citation. OAG 60-663 .

If the judge or justice issues a warrant and places it in the sheriff’s or deputy sheriff’s hands for service and he so serves it, he is entitled to his $6.00 fee. OAG 60-663 .

A sheriff is not entitled to a fee of $6.00 where he merely issues a citation without making an arrest. OAG 60-787 .

A sheriff cannot collect a fee for the service of a subpoena to appear before the grand jury because no one is liable for such a cost in a grand jury proceeding. OAG 65-842 .

Only collections of money or cash were envisioned by the legislature in providing sheriffs’ commissions in connection with an execution sale. Accordingly the sheriffs’ commissions percentage factor cannot be applied to a mortgage indebtedness where the buyer as a part of the sale merely assumed the mortgage. OAG 67-94 .

A sheriff is entitled to his arresting fee in a misdemeanor case only when a judgment of conviction is entered against the defendant, at which time the county, from the cost levied against and recovered from the defendant, pays the sheriff his fee. OAG 68-499 .

Where the sheriff gives a citation under KRS 431.015 , instead of making an arrest for a misdemeanor committed in his presence, the arresting fee does not apply. OAG 68-511 .

A sheriff is not entitled to any fee for assisting a state trooper when the offender is merely given a citation and when the sheriff makes no arrest. OAG 70-200 .

The sheriff is entitled to the fee of $1.00 for each juror summoned in a lunacy inquest proceeding which proceeding must be brought in the Circuit Court. OAG 70-231 .

The complaining witness who swears out a warrant in a misdemeanor case is not responsible for paying the sheriff’s arresting fee. OAG 70-553 .

The sheriff’s arresting fee in a misdemeanor case is charged to the plaintiff commonwealth but to the extent of its being collected from a convicted defendant. OAG 70-553 .

As relates to the judicial sale of property, the circuit judge may fix a standing fee schedule for the sheriff to supplement the provision found in this section, but in all cases evidence may be heard for and against such allowance as a specific situation. OAG 71-92 .

Where, in handling an attachment and attached properties, the specific fees did not cover the sheriff’s services in removing and caring for the property, the sheriff could ask the court for an order allowing him a reasonable fee for his services pursuant to this section. OAG 71-329 .

For service of a contempt of court order on a defendant in a divorce action for nonpayment of support or alimony, if the sheriff serves the contempt order on the defendant the sheriff would be entitled to a $2.00 fee. OAG 71-433 .

Sheriff’s fee for making an arrest does not apply to peace officers generally, so that county policeman cannot charge an arrest fee although he would be entitled to a fee for apprehending a person on the charge of felony pursuant to KRS 64.060 . OAG 72-77 .

Sheriff would not be entitled to $7 arrest fee unless he actually serves the process or arrests the defendant in a misdemeanor case. OAG 72-114 .

Payment of the sheriff’s fee is expressly conditioned by the terms of KRS 64.340 and, in any case, the person swearing out the warrant is not responsible for paying the arrest fee. OAG 72-262 .

The payment for summoning a jury for a criminal case is conditioned upon the recovery and collection of the fee from the defendant as provided in KRS 64.340 if the defendant is convicted. OAG 72-435 .

Section governs the arresting fee of a constable in a misdemeanor case tried by a justice of the peace. OAG 72-823 .

Salaried city policemen have no authority to demand the sheriff’s arresting fee as, under KRS 64.410(2), no officer can demand or receive more than is authorized by law, and the illegal arresting fees can be recovered by the city in an action against the policemen on behalf of the person who originally paid the fees. OAG 73-197 .

The usual court costs in misdemeanor actions in a court of a justice of the peace would normally be as follows:

Commonwealth attorney tax (KRS 142.030 (repealed)) . . . . . $3.50

County attorney tax (KRS 142.040 (repealed)) . . . . . 3.50

Arrest fee (this section and KRS 64.340 ) . . . . . 7.00

County attorney fee (KRS 69.260 (2) (repealed)) . . . . . 5.00

Library tax (KRS 172.180(3)(b) (now KRS 172.180(3)(a))) . . . . . .50

and, in accordance with KRS 28.170(1) (repealed), all fines and forfeitures are reported to the circuit court at the close of the last day of each regular term of circuit court. OAG 73-275 .

In an appeal from the Erlanger police court to the Kenton Circuit Court in which the prosecuting attorney had the sheriff serve two subpoenas, the fee for service cannot be charged to the Commonwealth or the city but if the defendant is convicted the fee can be collected from him. OAG 73-636 .

The arresting fee for a sheriff serving process or arresting a party in a misdemeanor case in a fifth-class city where the defendant is convicted is $7 but if a city policeman or a state trooper makes such an arrest, he is not entitled to an arresting fee. OAG 74-49 .

The $7 per day fee is paid directly to the sheriff regardless of whether the Circuit Court-appointed deputy-baliff makes the appearances or whether it is some noncircuit court-appointed deputy sheriff who makes the appearances before the court but the baliff has no standing in connection with filing a claim for his court appearance work with the Department for Finance and Administration (now Finance and Administration Cabinet) as only the sheriff can do that. OAG 74-71 .

It is legal for a fifth-class city to return the sheriff’s arresting fee of $7, chargeable under this section in a misdemeanor case, to a chief if the city has no ordinance providing a salary for him or if the city has passed an ordinance providing a salary for him but specifying that the chief gets his fees in addition to the salary, but the fee is returnable to a deputy chief only when the city has not passed an ordinance providing a salary for him. OAG 74-98 .

If a sheriff needs additional deputies in connection with court appearances under this section and KRS 70.140 he can move the courts for them under KRS 64.345 and the circuit and county courts in their discretion can increase the number of sheriff’s deputies whose salaries would be fixed by the judges payable out of “75 percent” account, but the fees received by the sheriff for court appearances from the state treasury and the county treasury must be turned in to the state treasury monthly pursuant to KRS 64.345 . OAG 74-112 .

When the county court handles the violation, a sheriff or other peace officer is entitled to the same fee ($7.00) for issuing a citation for a misdemeanor as they are for making an arrest for the same misdemeanor. OAG 74-361 , overruling OAG’s 60-787, 66-756, 68-511, 74-27 and any other opinions to the extent they are in conflict.

Attendance at hearings of the domestic relations commissioner does not constitute attendance at circuit court so as to entitle the circuit court clerk, sheriff or jailer to fees. OAG 74-806 .

The $2.00 fee charged by the sheriff for the collection of bail in either a misdemeanor or felony action must be collected from the defendant, if convicted, providing he is not proceeding as a pauper, and becomes a part of the judgment against the convicted defendant which, if unpaid, shall be collected by process as in civil cases. OAG 74-911 .

Where the amount of bail in a criminal offense is fixed and indorsed on the warrant of arrest, the bail may be taken by the sheriff making the arrest and, if the sheriff does take such bail under those circumstances outlined in RCr 4.07, then the $2.00 fee for the sheriff applies. OAG 74-911 .

Despite this section and KRS 64.095 (now repealed), KRS 64.340 is controlling and a sheriff may not be paid his fees in misdemeanor cases by the county unless the defendant is convicted and pays over such fees to the county as costs. OAG 75-393 .

Under the special circumstances surrounding the operation of the criminal circuit courts in Jefferson County, KRS 70.140 and this section may be extended to permit the plural payment by the state of the $7.00 fee for each deputy sheriff attending a particular criminal court upon the request of the particular circuit judge and, even though this can mean more than one deputy per circuit judge, this is justified under KRS 446.020 as a logical and reasonable conclusion as to legislative intent. OAG 75-472 .

Where a circuit judge has routinely required the presence of more than one deputy sheriff in the court, the fee provided in this section may not be paid retroactively, except for prior years’ claims under KRS 45.231 , in the absence of legislative action dealing with this problem. OAG 75-520 .

A letter from the circuit judge indicating to the sheriff the particular service and number of deputies he requires to attend and keep order in court would be sufficient to establish the judge’s requirements and, in counties having continuous terms, the sheriff should take this matter up with their circuit judge and request that the court give them a direction in writing. OAG 75-520 .

This section provides that the sheriff may charge and collect a fee of $2.00 for executing and returning process but there is no statute providing an additional fee for serving a copy of the complaint or other initiating document and since CR 4.04 contemplates the serving of the summons and complaint as a simultaneous or single act, the sheriffs of Kentucky have no statutory authority to charge an additional fee for serving the complaint. OAG 75-576 .

Where a deputy sheriff arrests a person for drunkenness or other misdemeanor without the sheriff’s being present the $7.00 fee should be paid, for the deputy is merely acting for the sheriff. OAG 77-455 .

If the sheriff’s regular deputy staff is inadequate to meet the total statutory responsibilities of the sheriff, including the service of process and legal papers, he may in writing empower the elected constables, as peace officers, to assist him in the serving of process under his supervision and directing with the fees accruing as a result of the process serving by such constables accruing to the sheriff’s office. OAG 78-66 .

The sheriff is still a fee officer, and he is still entitled to the fee for arrests in misdemeanor cases. OAG 78-162 .

The sheriff can collect the arrest fee only where he, or a deputy, arrests the defendant and takes him to the appropriate judge for bail and further processing, but where the arrest is only for a short period and is followed by issuing a citation, the arrest fee cannot be earned. OAG 78-224 .

This section, providing the “arrest fee,” is framed around a “physical arrest” and taking defendant into custody and before the court. OAG 78-224 .

A sheriff who serves an arrest warrant for a case involving unemployment insurance fraud may not receive his fees for service of process from the Division of Unemployment Insurance, but may only be paid if the defendant is convicted and pays fees and costs to the district court. OAG 78-495 .

There is no provision in this section dealing with the fees that sheriffs may charge and collect, nor is there any provision in any other statute authorizing sheriffs to charge and collect a fee for attending sessions of the fiscal court; therefore, sheriffs cannot be compensated in connection with attendance at meetings of the fiscal court. OAG 78-717 .

The fee should be only $3.00 for both civil summons and complaint combined. OAG 78-777 .

A clerk is under no affirmative duty to collect the misdemeanor arrest fee payable to city policemen or a sheriff, but where the defendant is convicted and judgment of conviction and costs being entered, the defendant pays the fee to the clerk who pays the fee to the Department of Finance (now Finance and Administration Cabinet), then the arresting officer may collect his fee. OAG 79-125 .

A sheriff, deputy sheriff, or any other peace officer entitled by statute to the fee for serving criminal process, cannot legally demand or require the complaining party to pay the fee in advance of the serving of the process. OAG 79-372 .

When aiding the State Police or water enforcement officers, the sheriff would be entitled to the arrest fee if the actual arrest were made by himself or one of his lawful deputies. OAG 79-542 .

Where a warrant is issued and given to the sheriff who tries to serve it by making several trips to the subject’s residence in an attempt to locate him and the subject comes into the clerk’s office and pays off before the court date, the sheriff is not entitled to his arrest fee. OAG 79-542 .

Under KRS 24A.140, 64.348 (now KRS 64.092 ) and this section, the sheriffs of Kentucky are entitled to the payment of fees for service of process and court attendance in connection with services rendered in the juvenile session of district court, as well as in the regular session of district court. OAG 79-636 .

The primary duty of transporting prisoners falls upon the sheriff unless the circumstances meet one of the exceptions of KRS 441.500 (now KRS 441.510 ). OAG 80-23 . (Overruling and withdrawing OAG 78-752 ).

In urban counties the jailer bears the duty of transportation and is entitled to charge the $6.00 fee if he performs the service, and the sheriff is entitled to collect the fee if he does the transporting in lieu of the jailer. OAG 80-23 .

This section as amended effective January 2, 1978, has not repealed by implication the provisions of KRS 64.340 , and a sheriff cannot legally demand in advance the payment of the fee for service of process in a misdemeanor case. OAG 80-271 .

This section provides that a sheriff may charge and collect for his services the sum of $2.00 for summoning each witness; however, the collection of the fee is conditioned upon the conviction of the defendant and his payment of the fee to the court clerk. OAG 80-342 .

A fee based on the sheriff’s fee schedule contained in this section and paid to the sheriff for services in summoning grand and petit jurors and performing his duties under KRS Chapter 29A is payable out of the state treasury; and since such claims would arise out of court actions, KRS 44.020 would apply. OAG 81-336 .

Assuming that district court is in session in one of the facilities mentioned in KRS 24A.140(1)(a) and through (e), the sheriff is responsible for waiting on the court and serving court process; under subsection (2) of KRS 24A.140, the sheriff shall be compensated for such services in the same manner and at the same rates as are provided to the circuit court. Thus the sheriff’s fee schedule in this section determines his fees. OAG 82-140 .

There is no statutory basis for compensating the sheriff for transporting misdemeanants from one county to another. OAG 82-140 .

The sheriff’s collection of his fee in a criminal case is conditioned upon the conviction of the defendant and his payment of the fee to the court clerk. OAG 82-140 .

A sheriff may constitutionally receive a fee for services which are actually and fully rendered by him, but he cannot legally receive a fee which is actually earned by a sheriff in another county; thus a court clerk could not honor a reciprocal agreement for sheriff’s fees whereby criminal summonses and arrest warrants involving residents in county B, issued from the District Court in county A, were delivered to the sheriff of county A who forwarded them to the sheriff of county B for service or execution and, when the sheriff of county B returned the executed documents to the sheriff of county A, such sheriff delivered them to the court clerk in county A along with a statement for services for which the fees were payable to the sheriff of county A; moreover, if there were a statute authorizing such a reciprocal agreement it would be unconstitutional under Ky. Const., §§ 3 and 171. OAG 82-535 .

Since the sheriff is a fee officer, the fee for executing a warrant or summons is covered in this section, regardless of whether the process is served by the sheriff or one of his deputies; in the absence of a statute to the contrary the fees earned by the sheriff’s deputies must be turned into the sheriff’s official account. OAG 83-74 .

A sheriff is allowed a fee of $2.00 for serving a subpoena on a witness for defendant in a criminal case, pursuant to this section; the sheriff’s collection of such fee is conditioned upon the conviction of the defendant and his payment of the fee to the court clerk. OAG 83-179 .

The fee for serving process is conditioned upon the actual service of process upon the defendant and where sheriff was unable to actually serve process upon the defendant, who had moved from the jurisdiction, the normal fee could not be legally collected. OAG 83-243 .

Since there is nothing in the schedule suggesting that the fee for summoning a witness relates to civil cases only, the fee for serving a subpoena in criminal cases is $2.00 under this section; if the defendant is convicted, he is responsible for paying such cost unless he is permitted by the court to proceed in forma pauperis under KRS 453.190 and, if he is not convicted, then under KRS 64.340 and 453.020 the fee cannot be collected. OAG 83-311 .

The fee for summoning a witness, regardless of whether the suit is a civil case or a criminal case, is $2.00; the specific designation “summoning each witness” governs over the more general term “process.” OAG 83-311 .

The fact that the defendant is required to pay the fee for serving a subpoena on a witness in a criminal case, provided the defendant is convicted and provided he is not found by the court to be indigent, in no way militates against the defendant’s right under the constitution to have compulsory process for obtaining a witness for himself. OAG 83-311 .

Under the language of this section, relating to the sheriff’s fee, and where the judgment debt is paid, or the property is sold to satisfy the judgment debt, or a delivery bond given is not complied with, the six percent and three percent calculations in arriving at the sheriff’s fee are based upon the amount of the judgment debt. Thus, where the precise amount of the judgment debt is paid or where the sale of the property brings the exact amount of the judgment debt, the judgment debt is the basis for the sheriff’s fee; where for any reason the amount paid is less than the judgment debt, or where the property upon sale brings less than the judgment debt, the sheriff’s fee calculations must be based upon the precise amount of money so paid or resulting from the sale of the property. OAG 83-443 .

The fee for serving process under this section is ten dollars; accordingly, where the sheriff served process upon nine codefendants simultaneously by going to a meeting at which all nine codefendants were present, the sheriff was entitled to receive only one fee of ten dollars for serving the process, since this section does not provide ten dollars for serving process on each defendant. The sheriff was also entitled to a fee of three dollars for “serving an order of the court and return.” OAG 84-6 .

Service of the delinquent tax notice required to be served pursuant to KRS 134.500 entitles the sheriff to an additional fee, and that fee should be added to the tax bill. The sheriff is entitled to a two-dollar fee for serving each notice, and that fee should be collected at the time the delinquent tax claim is paid since, by definition, a tax claim includes all fees incurred during the course of its collection. OAG 84-316 .

Where a jury is demanded in an eviction proceeding by either the plaintiff or defendant, pursuant to KRS 383.210(2), the sheriff must be paid the additional fee of eight dollars for summoning and attending a jury in case of forcible entry and detainer, besides fees for summoning witnesses, as prescribed by this section. OAG 84-333 .

Since the warrant described in KRS 383.210 is the document to be used to bring the defendant before the court in an eviction proceeding, regardless of whether or not the matter is to be tried by a jury, the warrant is judicial process; thus the sheriff’s fee for executing the warrant by serving it on the defendant is ten dollars, pursuant to this section, which uses the term for “executing and returning process” in designating a fee of ten dollars. OAG 84-333 .

In misdemeanor cases, in determining the sheriff’s fee it does not matter how the defendant is brought within the court’s jurisdiction; under this section a single $10 fee applies to “serving process or arresting the party in misdemeanor cases” and whether the sheriff serves and returns a summons, or proceeds on an arrest warrant, or arrests the defendant without a warrant, the fee is $10. OAG 96-34 .

There are only two types of action, civil and criminal, and process in those actions is governed by the Rules of Civil Procedure and the Rules of Criminal Procedure. Therefore there are no other types of process to which the $20 fee provided for executing and returning process in this section applies. OAG 96-34 .

When a felony arrest is made without a warrant, there is no return of any document to the court. In these cases the $10 arrest fee provided for in KRS 64.060 applies. The sheriff has neither executed nor returned process, so he is not entitled to the $20 fee provided for in this section. OAG 96-34 .

When criminal process in a felony case is accomplished by execution and return of summons, the $20 fee provided for in this section applies; “process” in such a context means a summons, RCr 2.04, and the phrase “executing and returning process” precisely describes the sheriff’s actions. When criminal process in a felony case is accomplished by execution and return of an arrest warrant, the $20 fee provided for in this section applies; “process” in such a context means an arrest warrant, and the phrase “executing and returning process” describes the sheriff’s action with respect to the arrest warrant. OAG 96-34 .

Research References and Practice Aids

Cross-References.

Compensation of sheriff for other services:

Abating nuisance, KRS 233.100 .

Collecting taxes, KRS 134.290 .

Drainage district assessments, collecting, KRS 268.420 .

Mine, preventing obstruction to entry and exploration of, KRS 352.500 .

Patrolling highways and inspecting dance halls and roadhouses, KRS 70.170 .

Proceeding to ascertain value of improvements, services in, KRS 381.520 .

Sales of contraband seized under liquor law, making, KRS 242.360 , 242.380 , 244.200 .

Selling property for taxes, KRS 134.440 .

Serving subpoenas for board of supervisors or board of tax appeals, KRS 133.215 .

Tax bills, receipt for unpaid and partially paid bills, outgoing sheriff, entitled to expenses for preparing, KRS 134.215 .

Water district assessments, collecting, KRS 74.190 .

Fee-bills, sheriff may distrain for after term, KRS 70.100 .

Governor may not remit fees of sheriff, Const., § 77.

64.091. Assessment by the fiscal court of additional fees on sheriff’s service of subpoenas and civil summonses.

  1. A fiscal court, by ordinance, may assess additional fees on subpoena and civil summons service by the local sheriff for the purpose of paying expenses for courthouses, bonds related to them, and administration expenses of courthouses. The fees may be added as follows:
    1. In addition to the fees normally charged for the service of a subpoena, the person requesting service may be charged a fee of ten dollars ($10); and
    2. In addition to the fees normally charged for the service of a civil summons, the person requesting service may be charged a fee of ten dollars ($10).
  2. Nothing in this section shall change any other fee allocation allowed by statute.

History. Enact. Acts 2001, ch. 54, § 4, effective March 15, 2001.

Compiler’s Notes.

Section 5 of Chapter 54 of the Acts of the 2001 Regular Session read: “The provisions of Section 1 to 4 of this Act shall supersede and prevail over any conflicting provisions of the 2000 Kentucky Acts Chapter 524 (House Joint Resolution 84), the 2000-2002 Judicial Branch Budget Memorandum.”

64.092. Compensation of sheriffs and other law enforcement officers or agencies for attending court and providing security services — Rates.

Compensation of sheriffs and other law enforcement officers or agencies for attending court shall be as follows:

  1. Compensation shall be provided only for the actual time for which the sheriff or other officer is ordered to be physically present in the courtroom or is ordered to be physically present to discharge a duty ordered by the Chief Circuit Judge, Chief District Judge, or Judge of the Court of Appeals, as appropriate.
  2. Compensation shall not be provided for more than one (1) sheriff or other officer per courtroom unless the need for additional personnel is certified in writing by the Chief Circuit Judge, Chief District Judge, or Judge of the Court of Appeals, as appropriate, and the utilization of additional personnel is approved by the Chief Justice, or his designee. In the event of an emergency of such nature precluding contacting the Chief Justice or his designee, the Chief Circuit Judge, Chief District Judge, or Judge of the Court of Appeals may authorize such assignment of additional personnel for a period not to exceed twenty-four (24) hours.
  3. Where a single sheriff or other law enforcement officer serves more than one (1) court or courtroom during a single day, he shall be paid as if he had served only one (1) courtroom during that day. Dual compensation for service during a single day shall not be permitted.
  4. Time, for compensation purposes, shall be computed as the actual time spent in the courtroom pursuant to court direction or order and the actual time spent in other service to the court as directed or ordered by the appropriate judge.
  5. Time spent in court service by a sheriff or other law enforcement officer shall be certified by the judge of the court which the officer attended and by the Chief Judge of the Circuit Court, if the service was to the Circuit Court, or by the Chief Judge of the District Court, if the service was to the District Court.
  6. The sheriff or other law enforcement officer serving a Circuit or District Court shall be compensated at the rate of eight dollars ($8) per hour of service. If service is for a part of an hour, then compensation for such service shall be prorated for the actual number of minutes’ service within a given hour.
  7. The sheriff shall receive the disbursements provided for in KRS 42.320(2)(i) to help defray the cost of providing security services and related activities to the court. The moneys received by the sheriff under this subsection are authorized official expenses to be considered operating expenses of the sheriff’s office and shall not be considered as part of his compensation.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 63, effective January 2, 1978; 1984, ch. 321, § 1, effective July 13, 1984; 1996, ch. 248, § 3, effective July 15, 1996; 1998, ch. 606, § 188, effective July 15, 1998; 2000, ch. 328, § 3, effective July 14, 2000; 2002, ch. 183, § 10, effective August 1, 2002.

Compiler's Notes.

This section was formerly compiled as KRS 64.348 .

NOTES TO DECISIONS

1.Person Entitled to Receive Compensation.

Where members of the city police force provided security services to the District Court the intent of the Legislature in enacting KRS 24A.140, 24A.175, 61.120 and this section was to pay the person or agency performing the service, and thus the city was entitled to receive the funds held by the clerk of the Circuit Court. Baskett v. Radcliff, 709 S.W.2d 463, 1986 Ky. App. LEXIS 1131 (Ky. Ct. App. 1986).

2.Security Services.

Where the sheriff did not provide any of the services to the District Court which would give rise to his entitlement to the fees established in subsection (7) of KRS 24A.175 and subdivision (7) of this section, the trial court properly denied the sheriff’s claim to the sums being held for such purposes by the clerk of the Circuit Court. Baskett v. Radcliff, 709 S.W.2d 463, 1986 Ky. App. LEXIS 1131 (Ky. Ct. App. 1986).

Opinions of Attorney General.

Under KRS 24A.140, 64.090 and this section, the sheriffs of Kentucky are entitled to the payment of fees for service of process and court attendance in connection with services rendered in the juvenile session of District Court, as well as in the regular session of district court. OAG 79-636 .

Although this section, which involves fees for officers attending court and litigation, is silent as to who pays the fees, the strongest implication is that it must be borne by the state, for whom the services are rendered, thus KRS 44.020 would apply. OAG 81-336 .

This section relates only to the compensation of the sheriff, or other officers, paid by the state, for attending court; it does not authorize any reimbursement to the sheriff for the employer’s contribution as covered in KRS 61.565 . OAG 82-113 .

Where four bailiffs were appointed by the orders of the District and Circuit Court in a county, pursuant to subsection (2) of this section, but in administrative practice the four bailiffs were considered to be legally deputy sheriffs by the courts of the county, by the county sheriff, and by the Finance Department (now Finance and Administration Cabinet) of the state, and, in addition, the fiscal court authorized the payment of a monthly salary out of the county treasury to each of the four bailiffs, a jointure had taken place by court and contemporaneous construction wherein the bailiffs had been joined with the sheriff’s office for certain purposes. This special jointure of bailiffs with the sheriff’s office, as effected by the local courts, the sheriff of the county, and the State Department of Finance, was a permissible variation of the establishing of deputy positions under KRS 64.530 . OAG 82-113 .

A court has no authority to direct the Finance and Administration Cabinet to make direct payments for deputy sheriff court attendance to such deputy sheriff since such fees are in legal reality the fees of the sheriff’s office; thus the payments should go directly to the sheriff. OAG 83-19 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, F, 6, (2) at 878.

2016-2018 Budget Reference.

See State/Executive Branch Budget, 2016 Ky. Acts ch. 149, Pt. I, F, 5, (2) at 1070.

64.095. Mileage allowance to officers serving papers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 71, §§ 1 to 4; 1962, ch. 255; 1978, ch. 162, § 3, effective June 17, 1978) was repealed by Acts 1982, ch. 159, § 6, effective July 15, 1982.

64.100. Record of sheriffs’ fees.

Each sheriff shall keep an accurate account of all fees collected by him from all sources. The clerk issuing process in a civil case shall keep an accurate account of all fees paid to the sheriff for the execution thereof, and report the amount to the fiscal court, which shall record it for the purpose of determining the amount of the sheriff’s annual income.

History. 1727.

Research References and Practice Aids

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky, 80 Ky. L.J. 275 (1952).

64.110. Account and receipt to be given before distraint.

Every sheriff shall, upon request, deliver to the person from whom fees are demanded, or to his agent, an account stating distinctly every item of the demand, and offer to give a receipt for the same, before he may make distress therefor.

History. 4573.

64.120. Sheriffs in certain counties containing second-class city and of less than 75,000 population. [Repealed.]

Compiler’s Notes.

This section (1779a-1) was repealed by Acts 1950, ch. 123, § 29.

64.121. Salaries and other necessary expenses of sheriff and deputies to be paid on the sheriff’s death or incapacity in counties with population less than 70,000 — Applicability of KRS 64.368 if population decreases below 70,000.

  1. “Incapacity” means a condition under which a sheriff or his or her personal representative may apply to the Circuit or District Judge that presides over the sheriff’s county for an order to determine that the sheriff is physically or mentally unable to discharge the duties of his or her office. The application to the Circuit or District Judge shall include and be supported by an affidavit by the sheriff’s physician documenting the sheriff’s incapacitating condition.
  2. If a sheriff in a county containing a population of less than seventy thousand (70,000) dies or is incapacitated during his or her term of office, the fiscal court of that county shall on or before the first day of March of the year following the death or date of incapacity of the sheriff pay to the sheriff or to the personal representative of the sheriff sufficient money to reimburse the sheriff or his or her estate for the salaries of his deputies and assistants and other necessary expenses of his or her office that were paid by the sheriff during the year of his or her death or incapacity. Additionally, for each month that the sheriff or his or her personal representative performed the duties of sheriff during the year of his or her death or incapacity, the fiscal court shall pay to the sheriff or to the sheriff’s personal representative a sum of money equal to one-twelfth (1/12) of the total salary received by the county’s sheriff in the year prior to the year of the death or incapacity. The sheriff’s salary and all fees and commissions paid to the sheriff during the year of his or her death or incapacity shall be deducted from the amount that the sheriff or his or her personal representative is to receive by this section.
  3. If a county’s population that equaled or exceeded seventy thousand (70,000) is less than seventy thousand (70,000) after the most recent federal decennial census, then the provisions of KRS 64.368 shall apply.

History. Enact. Acts 1964, ch. 34; 1992, ch. 220, § 3, effective January 1, 1994; 1998, ch. 164, § 1, effective July 15, 1998; 2002, ch. 71, § 10, effective July 15, 2002.

64.125. Sheriffs in certain counties containing second-class city, population between 70,000 and 75,000, and valuation less than $100,000,000. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 92, § 1) was repealed by Acts 1950, ch. 123, § 29.

64.130. Sheriffs in counties of 75,000 population or over. [Repealed.]

Compiler’s Notes.

This section (1761, 1762, 1764, 1765, 1767, 1768, 1769) was repealed by Acts 1950, ch. 196, § 2.

64.140. Advancement to sheriffs for expenses.

  1. Any sheriff may be entitled to receive an advancement to defray necessary official expenses and to apply to the payment of the salaries of the sheriff or the sheriff’s deputies and assistants. The secretary of the Finance and Administration Cabinet shall, on the first day of each calendar month, determine the necessary amount that may be advanced to the sheriff, which amount shall not exceed one-twelfth (1/12) of the total fees collected by the sheriff for the preceding year and may be for a less amount, and in no event shall it exceed sixty thousand ($60,000) dollars per month. When approved by the secretary of the Finance and Administration Cabinet, a warrant shall be drawn on the State Treasury in favor of the sheriff for such advancement. At the end of each calendar year the sum of such advancements shall be deducted from the part of the total of fees and commissions paid into the State Treasury by the sheriff, pursuant to Section 106 of the Constitution of Kentucky, that is available for use for the payment of the salaries of the sheriff, the sheriff’s deputies and assistants, and necessary office expenses.
  2. If the office of sheriff becomes vacant, the sums advanced under this section shall be charged against that part of the fees and the commissions of the office of the sheriff that have been, or shall be, paid into the State Treasury during the calendar year in which the advancements were made, and that is available for payment of the salaries of the sheriff, the sheriff’s deputies and assistants, and necessary expenses of the office.
  3. If the total of fees and commissions paid into the State Treasury by the sheriff for any calendar year is insufficient to match the amount of advancements made to the sheriff, his or her sureties and the sheriff in his or her official capacity shall be liable to the state for any excess of advancements over the total of fees and commissions paid into the State Treasury.
  4. If a sheriff makes a request for funds from the State Treasury to defray necessary official expenses, the sheriff shall not be required to submit a detailed statement of his or her personal assets and liabilities as a condition of the application process.

History. 4587-1: amend. Acts 1950, ch. 138, § 1; 1964, ch. 132, § 1; 1986, ch. 374, § 17, effective July 15, 1986; 1994, ch. 508, § 17, effective July 15, 1994; 2002, ch. 233, § 1, effective July 15, 2002.

Opinions of Attorney General.

Sheriffs cannot purchase automobiles for the purpose of carrying out duties of their office that are not set out and required by KRS 64.095 (now repealed), 70.150 and 70.160 pursuant to the authority of KRS 44.050 and regulations thereunder. OAG 62-432 .

The purchase of automobiles or the expense of their operation is not a “necessary official expense” within the meaning of the statute. OAG 62-432 .

If a sheriff must borrow money to meet the current expenses of running the office he must do so as a personal loan and he cannot claim the interest as an official expense. OAG 65-876 .

Where certification of assessments on property in the county have been delayed so that the sheriff may not be able to collect taxes in the calendar year and would therefore be unable to receive compensation based upon the amount collected, consideration should be given to this section which provides that a sheriff may be entitled to an advancement to defray necessary official expenses and to apply to the payment of salaries of himself and his deputies and assistants. OAG 67-450 .

In counties of less than 75,000 population as well as in those of more, if something happened to the sheriff before there was time to collect the taxes against which he had received an advance, the advancements to the sheriff should be charged against the total receipts of the sheriff’s office for the entire calendar year in which the advancements were made. OAG 71-387 .

An advancement to a sheriff by the Commissioner (now Secretary of the Finance and Administration Cabinet) must not exceed one-twelfth of the total fees collected by the sheriff for the preceding year and must be repaid to the state treasury. OAG 76-106 .

Subject to the limitations contained in this section, the advancements can be used to pay the premiums for the general obligation bond and the state revenue bond of the sheriff. OAG 76-715 .

County patrolmen may not use the sheriff’s facilities under a cooperative attempt to save costs. OAG 78-376 .

A succeeding sheriff is not personally liable for repayment of the advancements made to the outgoing sheriff, but such advancements are a proper charge against the tax commissions “of his office,” to the extent that they represent taxes which would normally have been collected during the fourth year of the outgoing sheriff’s term. OAG 80-298 .

Where the tax collection procedure is delayed during the fourth year of the sheriff’s term to the following year, through no fault of the incumbent sheriff, advancements to the outgoing sheriff during his fourth year may be refunded to the state by: (1) the fiscal court’s payment out of the county treasury, if available; or (2) the tax commissions collected by the succeeding sheriff during the successor’s first year of office, which commissions would normally have been earned during the fourth year of the outgoing sheriff’s term; or (3) the payment of the outgoing sheriff out of his pocket for any balance of advancement remaining after exhausting sources (1) and (2) above. OAG 80-298 .

Where an outgoing sheriff, through no fault of his own, was unable to collect the tax bills for the fourth year of his term due to delay, the incoming sheriff should repay the advancements from the fees and commissions received from the outgoing sheriff’s fourth year tax bills. OAG 82-89 .

Where the outgoing sheriff failed to collect taxes for the fourth year of his term, then to the extent that tax commissions received for collecting such taxes in the following year by the incoming or present sheriff were not sufficient to fund any extra costs occasioned by the collection of such taxes, the commissions for collecting the taxes could be used to fund such extra costs. This “extra cost” situation would be a special limitation upon the application of tax commissions received in the following year for the previous year’s taxes to advancements made to the outgoing sheriff under this section. OAG 82-122 .

64.150. Jailers’ fees. [Repealed.]

Compiler’s Notes.

This section (356, 1730: amend. Acts 1944, ch. 152; 1948, ch. 220; 1950, ch. 199; 1954, ch. 120; 1956, ch. 95, § 2; 1962, ch. 81; 1962, ch. 271; 1966, ch. 233, § 1; 1968, ch. 146, § 1; 1972, ch. 88, § 1; 1972, ch. 230, § 1; 1974, ch. 122, § 1; 1976, ch. 240, § 1; 1976 (Ex. Sess.), ch. 12, § 14, effective January 1, 1978; 1976 (Ex. Sess.), ch. 14, § 29, effective January 2, 1978; 1979 (Ex. Sess.), ch. 15, § 1, effective February 13, 1979) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

64.152. County clerk’s settlement with fiscal court for excess fees in counties of less than 75,000.

  1. In counties containing a population of less than seventy-five thousand (75,000), the county clerk shall provide to the fiscal court by March 15 of each year a complete statement for the preceding calendar year of all funds received by his office in an official capacity or for official services, and of all expenditures of his office, including his salary, compensation of deputies and assistants, and reasonable expenses.
  2. At the time of filing the statement required by subsection (1) of this section, the clerk shall pay to the fiscal court any income of his office, including income from investments, which exceeds the sum of his maximum salary as permitted by the Constitution and other reasonable expenses, including compensation of deputies and assistants. The settlement for excess fees shall be subject to correction by audit conducted pursuant to KRS 43.070 or 64.810 , and the provisions of this section shall not be construed to amend KRS 64.820 .
  3. When the county clerk vacates his office, the provisions of KRS 64.830 shall be applicable.

History. Enact. Acts 1982, ch. 8, § 2, effective July 15, 1982; 1986, ch. 51, § 5, effective July 15, 1986.

NOTES TO DECISIONS

1.Authority of fiscal court.

Fiscal court was properly granted summary judgment in a county court clerk’s action for declaratory and injunctive relief because the ordinance in question did not implicate powers not already afforded to the fiscal court, was not inconsistent with the statutory requirements that required the clerk to account for expenses and to relinquish excess income, and merely allowed the fiscal court to exercise a degree of financial control throughout the year. Carroll v. N.E. Reed, 425 S.W.3d 921, 2014 Ky. App. LEXIS 47 (Ky. Ct. App. 2014).

Cited:

Lawrence v. Bushart, 2005 Ky. App. LEXIS 171 (Ky. Ct. App. 2005).

Opinions of Attorney General.

If the county clerk’s office does not generate sufficient fees to pay, along with other necessary official expenses of the office, the necessary official telephone bills of the office, the fiscal court could, and probably would have a duty to, pay such expenses of the county clerk’s office from the county treasury. OAG 93-4 .

Reasonable expenses of the county clerk’s office (which would include bills for official telephone costs) are to be paid from the fees of the office. The fiscal court must approve (or disapprove) payment of claims against the county, which must be presented to the fiscal court by the county judge/executive. OAG 93-4 .

64.160. Jailers in certain counties containing second-class city. [Repealed.]

Compiler’s Notes.

This section (2240b-1, 2240b-2) was repealed by Acts 1950, ch. 123, § 29.

64.170. Crediting jailers. [Repealed.]

Compiler’s Notes.

This section (1772 to 1775: amend. Acts 1950, ch. 196, § 2) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

64.180. Coroners. [Repealed.]

Compiler’s Notes.

This section (532, 1739) was repealed by Acts 1956, ch. 143, § 3.

64.185. Coroners and deputies — Compensation schedules — Continuing education — Expense allowance — Training requirements — Limitation on number of deputy coroners.

    1. Coroners shall receive out of the county, consolidated local government, charter county government, urban-county government, or unified local government treasury, whichever is appropriate, the monthly compensation the fiscal court of each county shall fix, subject to the following minimums: (1) (a) Coroners shall receive out of the county, consolidated local government, charter county government, urban-county government, or unified local government treasury, whichever is appropriate, the monthly compensation the fiscal court of each county shall fix, subject to the following minimums:
    2. Coroners who hold a current certificate of continuing education, issued jointly by the Department of Criminal Justice Training, Justice and Public Safety Cabinet, and the Office of the Kentucky State Medical Examiner, Justice and Public Safety Cabinet, shall be paid the following minimum monthly compensation set forth in this subsection in recognition of the training:
  1. Deputy coroners who hold a current certificate of continuing education, as described in subsection (1)(b) of this section, shall receive out of the county, consolidated local government, charter county government, urban-county government, or unified local government treasury, whichever is appropriate, the monthly compensation the fiscal court of each county shall fix, subject to the following minimums:
  2. The fiscal court of any county, or the legislative body of a consolidated local government, charter county government, urban-county government, or unified local government may compensate coroners and deputy coroners an additional amount of up to three hundred dollars ($300) per month as an expense allowance.
  3. The initial course of continuing education required under subsection (1)(b) of this section shall consist of a forty (40) hour basic training course prescribed by the Justice and Public Safety Cabinet. Annually thereafter the coroner shall attend and successfully complete at least eighteen (18) hours of approved training in order to be compensated in accordance with subsection (1)(b) of this section.
  4. If a deputy coroner assumes the office of coroner after receiving the training stipulated in this section, the deputy coroner shall be compensated in accordance with the compensation schedule set forth in subsection (1)(b) of this section.
  5. The number of deputy coroners in a county shall not exceed one (1) for each twenty-five thousand (25,000) inhabitants, or fraction thereof, according to the most recent federal census, but every coroner may, subject to the approval of the legislative body of the county, consolidated local government, charter county government, urban-county government, or unified local government, appoint additional deputy coroners, regardless of population.

County Monthly Minimum Population Compensation 1. 10,000 or less $200 2. 10,001 to 20,000 300 3. 20,001 to 40,000 350 4. 40,001 to 60,000 400 5. 60,001 to 100,000 450 6. 100,001 to 150,000 800 7. 150,001 or more 1,000

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County Monthly Minimum Population Compensation 1. 10,000 or less $400 2. 10,001 to 20,000 500 3. 20,001 to 40,000 650 4. 40,001 to 60,000 750 5. 60,001 to 100,000 850 6. 100,001 to 150,000 1,100 7. 150,001 or more 1,300

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County Monthly Minimum Population Compensation (a) 10,000 or less $200 (b) 10,001 to 20,000 250 (c) 20,001 to 40,000 275 (d) 40,001 to 60,000 300 (e) 60,001 to 100,000 400 (f) 100,001 to 150,000 900 (g) 150,001 or more 1,100

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History. Enact. Acts 1954, ch. 125, § 1 to 3; 1956, ch. 143, § 1; 1966, ch. 255, § 68; 1974, ch. 387, § 2, effective July 1, 1974; 1978, ch. 93, § 19, effective June 17, 1978; 1982, ch. 195, § 13, effective July 15, 1982; 1988, ch. 248, § 1, effective July 15, 1988; 1990, ch. 465, § 1, effective July 13, 1990; 1998, ch. 65, § 3, effective July 15, 1998; 2000, ch. 424, § 1, effective July 14, 2000; 2007, ch. 85, § 138, effective June 26, 2007; 2008, ch. 74, § 1, effective July 15, 2008; 2016 ch. 65, § 1, effective July 15, 2016.

NOTES TO DECISIONS

1.Constitutionality.

The provisions of Acts 1956, ch. 143, § 1 requiring certain cities to contribute to the salary of the coroner and authorizing any city to provide compensation for one or more deputy coroners were held unconstitutional. Lexington v. Hager, 337 S.W.2d 27, 1960 Ky. LEXIS 358 ( Ky. 1960 ).

2.Changes in Compensation Minimums.

In order to avoid the restrictions contained in Const., §§ 161 and 235 and KRS 64.530 against changes in salary during the coroner’s term, it would be necessary to show that the 1974 amendment to this section increasing the minimum salary from $50.00 per month to $150 per month was pursuant to the rubber dollar doctrine, and absent such a showing the changing of the salary during the elected term violated both constitutional and statutory prohibitions against the changing of the compensation during the elected term. Carey v. Washington County Fiscal Court, 575 S.W.2d 161, 1978 Ky. App. LEXIS 644 (Ky. Ct. App. 1978).

3.Limitations on Compensation.

When coroner had received fees totaling the maximum permitted by Const., § 246 in any year, the city was not liable for further inquest fees either to the coroner or county. Louisville v. Keaney, 267 Ky. 557 , 102 S.W.2d 996, 1937 Ky. LEXIS 346 ( Ky. 1937 ) (decided under prior law).

Each incumbent of the office of coroner during a particular year might have received in compensation the constitutional limit. Louisville v. Keaney, 267 Ky. 557 , 102 S.W.2d 996, 1937 Ky. LEXIS 346 ( Ky. 1937 ) (decided under prior law).

Opinions of Attorney General.

Under KRS 72.090 (repealed) it is the responsibility of the county to pay the fees of physicians employed by the coroner during inquests to perform post-mortem examinations or autopsies which were requested by the police and other officials of a city within the county. OAG 65-702 .

A city cannot appropriate its tax funds to help pay the expense incurred by the coroner in connection with post-mortem examinations performed on bodies of persons who died within the city limits. OAG 66-45 .

No lump sum expense account for coroners is authorized. OAG 70-482 .

The fiscal court is mandatorily required to adjust the incumbent coroner’s salary at the minimum provided by this section beginning July 1, 1974. OAG 74-255 .

If the legislative adjustment of the coroner’s salary is within a permissible range, calculated on the basis of the 1949 constitutional level and using the consumer price index formula to measure the amount of permissible adjustment, then implicit in the calculation is the reasoning that there is no “change” in compensation but only an “adjustment” which surmounts the prohibitions of Const., §§ 161, 235 and 246. OAG 74-255 .

The fiscal court of Gallatin County is required to fix the coroner’s salary at a minimum of $100 per month effective July 1, 1974, subject to proper budgetary procedure under KRS chapter 68. OAG 75-321 .

The joint certificate would embrace law enforcement training courses under the aegis of the Department of Justice (now Justice Cabinet) (KRS 15.330 , 15.310(3) and 15A.070 ) and the Department for Human Resources, Medical Examiner Program (KRS 72.210 , 72.220 and 72.400 ). OAG 78-749 .

The subject certificates of attendance at a coroner’s conference does not qualify the coroner for the monthly minimum of $450 under subsections (1) and (2) of this section. OAG 78-749 .

Where in a particular year the coroner qualifies for the enhanced miminum pay, the increased pay would become effective upon the date of such qualification, since the statute does not provide for retroactive application. OAG 78-749 .

Where the coroner of a county with a population of 30,000 completed a 30-hour course of continuing education, as envisioned by subsection (2) of this section, on August 2, 1979, it was permissible for the fiscal court, on December 28, 1979, to authorize a salary increase to $325 per month from the date of completion of the course, August 2, 1979. OAG 80-19 .

Where a coroner holds a current certificate of continuing education as described in this section, the fiscal court is required to honor the current minimum salary of $325 under this section. OAG 80-433 .

The fiscal court is required to set a salary for deputy coroners, payable out of the county treasury as a properly budgeted item. OAG 83-211 .

The reference to the deputy coroner in subsection (3) of this section refers to the former deputy coroner. OAG 83-211 .

Research References and Practice Aids

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky, 40 Ky. L.J. 275 (1952).

64.190. Constables.

Constables may collect for the following services the following fees:

Making arrests for violations involving a motor vehicle on the public highways $0.50 Taking up a vagrant .50 Killing a mad dog 1.00 Killing and burying a distempered horse, ass or mule 3.00 Killing and burying any other cattle, per head 2.00 Altering a stud, jackass or bull 1.00

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Any other services, the same fees allowed sheriffs for similar services.

History. 1733: amend. Acts 1956, ch. 205; 1976 (Ex. Sess.), ch. 14, § 30, effective January 2, 1978.

NOTES TO DECISIONS

1.Constitutionality.

The 1956 amendment to this section ending the equality of constable’s and sheriff’s fee for making arrest in misdemeanor case is not so arbitrary and unreasonable as to be unconstitutional as the difference in overall responsibility of the sheriff versus the constable provides a reasonable basis for classification. Dearing v. McCormack, 352 S.W.2d 197, 1961 Ky. LEXIS 196 ( Ky. 1961 ).

2.Application.

The difference in a fee of $6.00 paid to sheriffs under KRS 64.090 and 50¢ paid to constables under this section for arrests in misdemeanor cases involving the use of motor vehicles upon the public highways is based on the reasonable classification of overall responsibility. Dearing v. McCormack, 352 S.W.2d 197, 1961 Ky. LEXIS 196 ( Ky. 1961 ).

3.— Counties over 250,000.

This section, insofar as it applied to compensation of constables in counties containing more than 250,000 people, was superseded by KRS 64.200 . Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

4.Summons.

Under this section a constable is entitled to a fee for serving a summons on each defendant. Muenninghoff v. Bartholomew, 269 Ky. 36 , 106 S.W.2d 97, 1937 Ky. LEXIS 554 ( Ky. 1937 ).

5.Outright Salary.

Legislature may require county to pay an outright salary of $200 per month to a constable, notwithstanding fees collected by him do not amount to that much. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

6.Deputies.

The legislature may allocate fees earned by office of constable, through deputy constables, to payment of salary of deputy constables alone. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

Opinions of Attorney General.

An advance of $5.00 (plus tax) for fees for execution of process is required to be paid into court under KRS 64.080 by one prosecuting a civil action; in the quarterly court the clerk is required to deliver the process to the designated officer pursuant to KRS 25.015 (repealed), 70.070 and 70.350 ; the designated officer shall serve it and make proper return before payment of his fee from the advance deposited with the clerk; KRS 64.090 fixes fees to be paid to the sheriff and this section fixes constable fees; and any other advances charged or demanded are not authorized by law. OAG 63-215 .

Constable is not entitled to his fee if the defendant is not found. OAG 72-437 .

Marshal in a sixth-class city is authorized to execute and return process issued to him by any legal authority and he receives the same fees as a constable for such service. OAG 73-634 .

The serving of an arrest warrant, other than a peace or search warrant, entitles the constable serving it to the same fee allowed sheriffs. OAG 74-431 .

A city marshal of a city of the sixth class receives the same fees as a constable as set out in this section, although under KRS 88.080 (now repealed) and 64.580 (now repealed) the board of trustees of a city of the sixth class has the authority to set the marshal’s salary provided the city has available budgeted money. OAG 74-905 .

A town marshal of a city of the sixth class is entitled to receive the same fees provided under this section for the service of process as a constable. OAG 75-512 .

Since there is no statute providing that the constable’s compensation shall be payable only out of the fees of his office, the fiscal court may pay him a salary under KRS 64.530 . OAG 76-579 .

Research References and Practice Aids

Cross-References.

Gelding an animal, fee for, KRS 259.190 .

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky, 40 Ky. L.J. 275 (1952).

64.200. Constables in counties of over 250,000 population.

  1. In counties containing a population of over 250,000, for the performance of the duties of his office, each constable shall be exclusively compensated by a salary of nine thousand six hundred dollars ($9,600) per annum to be paid in equal monthly installments out of the county treasury.
  2. Each constable and deputy constable shall daily deliver or cause to be delivered to the recorder for the justice’s district in which he holds office all moneys received or collected by him by virtue of his office, or the recorder may receive such moneys for the officer, and in either event the recorder shall daily issue to each officer a receipt for moneys received from or for him. Each recorder shall keep such records of each daily transaction, in such manner and form, and showing such information, as the fiscal court of the county requires.
  3. All moneys received or collected on account of or resulting from the performance of the duties or the exercise of the powers incident to the offices of constable and deputy constable shall be paid into the county treasury.
  4. Before the tenth day of each calendar month the recorder for each justice’s district shall prepare a sworn statement showing the correct amounts of money received or collected during the next preceding calendar month from the administration of the offices of constable and deputy constable. The statement shall be in the form and shall disclose the information required by the fiscal court. Each monthly statement, and as many copies thereof as the fiscal court may require, shall be subscribed and sworn to by the recorder. On or before the tenth day of each calendar month each recorder shall deliver one (1) or more copies of the monthly statement to the fiscal court, or such person as the fiscal court designates, and at the same time deliver by certified check, payable to the order of the county treasurer, the total sum of money received by the recorder under the provisions of this section during the next preceding calendar month. During the interims between such monthly statements each recorder shall safely preserve the funds coming into his hands by virtue of this section in a bank designated by the justice of the peace, which bank shall duly execute a depository bond in a sufficient amount to cover monthly balances.

History. 1083a-2, 1083a-6, 1083a-7, 1083a-9: amend. Acts 1942, ch. 180, §§ 8, 9; 1960, ch. 243; 1974, ch. 223, § 1.

NOTES TO DECISIONS

1.Constitutionality.

Law which provided that it should apply only to counties having a population of 250,000, and provided that money collected by constables and deputy constables should go to the general fund of the county, that provided for the delivery of fees to the recorders by the constables, and deputy constables, that required a report thereof by the recorder to the fiscal court and that the recorder should deposit the funds at certain times in the bank and provided for payment of constables and deputy constables by the fiscal court did not violate Const., §§ 14, 51, 59, 60, 106, 246. Shaw v. Fox, 246 Ky. 342 , 55 S.W.2d 11, 1932 Ky. LEXIS 761 ( Ky. 1932 ).

Decision that law providing that constables and deputy constables should receive a salary but that in no event should the sums paid to them exceed the fees paid in on account of services rendered by them and providing that it should apply only to counties with a population of 250,000, was based on reasonable classification, and that law was not special or local, was conclusive of question of classification both in law and later amendment, which merely broadened purposes of original law. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

Insofar as the amendment to law providing for salaries for constables and deputy constables that were not to exceed the fees paid in on account of services rendered by them provided for payment of outright salaries of $2,400 per year to constables in office at time of its enactment, it was unconstitutional as violative of Const., §§ 161 and 235. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

2.Application.

KRS 64.190 , insofar as it applied to compensation of constables in counties containing more than 250,000 people, was superseded by this section. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

3.Outright Salary.

Legislature may require county to pay an outright salary of $200 per month to a constable, notwithstanding fees collected by him do not amount to that much. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

4.Deficit in Monthly Earnings.

A deficit in one month may not be made up from overplus earnings for another month. Commonwealth v. Bartholomew, 265 Ky. 703 , 97 S.W.2d 591, 1936 Ky. LEXIS 563 ( Ky. 1936 ); Muenninghoff v. Bartholomew, 269 Ky. 36 , 106 S.W.2d 97, 1937 Ky. LEXIS 554 ( Ky. 1937 ).

5.Compelling Payment of Compensation.

A constable may compel payment by mandamus. Muenninghoff v. Bartholomew, 269 Ky. 36 , 106 S.W.2d 97, 1937 Ky. LEXIS 554 ( Ky. 1937 ).

6.Deputies.

The Legislature may allocate fees earned by office of constable, through deputy constables, to payment of salary of deputy constables alone. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

7.Salary Ordinance.

Kentucky Legislature's failure to include any mention of the statutory salary provision for constables in the consolidation legislation is fatal to enactment of an ordinance relating to the salary of constables. Therefore, a constable's salary should not have been determined based on an ordinance. Whitlock v. Rowland, 453 S.W.3d 740, 2015 Ky. App. LEXIS 1 (Ky. Ct. App. 2015).

Cited:

Burton v. Mayer, 274 Ky. 245 , 118 S.W.2d 161, 1938 Ky. LEXIS 233 ( Ky. 1938 ).

Research References and Practice Aids

Cross-References.

Bond of depositories, KRS 62.060 .

Deputy constable’s salary, KRS 70.320 .

Embezzling funds, penalty for, KRS 70.440 , 70.990 .

64.210. Allowance to constables and deputies in counties containing first-class city.

Fiscal courts of counties containing a city of the first class shall authorize the payment of two hundred dollars ($200) per month out of the county treasury to constables and deputy constables using their own automobile in the performance of their official duties.

History. 1851b-14: amend. Acts 1948, ch. 34; 1960, ch. 240; 1974, ch. 223, § 2.

NOTES TO DECISIONS

1.Salary Increase Instead of Auto Expenses.

Fiscal court had a right to substitute an increase in salary for the automobile expenses provided for in this section. Fleischer v. Jefferson County, 390 S.W.2d 895, 1965 Ky. LEXIS 379 ( Ky. 1965 ).

Upon enactment of KRS 64.710 the fiscal court of Jefferson County discontinued payments to deputy constables under this section and at the same time raised the salary of the constables by the amount of $70 per month. The evidence indicated that this salary raise was intended to include the $50 a month theretofore paid them for expenses. Under such circumstances, deputy constables were not entitled to the $50 per month provided by this section. Fleischer v. Jefferson County, 390 S.W.2d 895, 1965 Ky. LEXIS 379 ( Ky. 1965 ).

64.220. Officers holding examining courts. [Repealed.]

Compiler’s Notes.

This section (353: amend. Acts 1962 ch. 234, § 15) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

64.230. County judges. [Repealed.]

Compiler’s Notes.

This section (1732: amend. Acts 1952, ch. 209, § 1; 1974 ch. 29, § 1) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

64.240. Police judges and justices of the peace. [Repealed.]

Compiler’s Notes.

This section (1731) was repealed by 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

64.250. Justices of the peace in counties of over 250,000 population not containing a consolidated local government.

  1. Except for a county containing a consolidated local government, in counties containing a population of over two hundred fifty thousand (250,000), each justice of the peace shall be exclusively compensated for the performance of the duties of his office by a salary to be determined by the fiscal court at a rate no less than nine thousand six hundred dollars ($9,600) per annum but no greater than twelve thousand dollars ($12,000) per annum, which shall be paid, in equal monthly installments, out of the county treasury.
  2. The provisions of subsections (2), (3), and (4) of KRS 64.200 shall apply to justices of the peace in counties containing a population of over two hundred fifty thousand (250,000) except in a county containing a consolidated local government, the same as to constables, and the recorder shall perform the same duties and functions in regard to moneys collected by or for justices of the peace as they are required by KRS 64.200 to perform in regard to moneys collected by or for constables.

History. 1083a-2, 1083a-3, 1083a-6, 1083a-7, 1083a-11: amend. Acts 1972, ch. 311, § 3; 1974, ch. 254, § 6; 1976 (Ex. Sess.), ch. 14, § 31, effective January 2, 1978; 2002, ch. 346, § 18, effective July 15, 2002.

Legislative Research Commission Note.

A portion of Acts 1972, ch. 311, including this section and a portion of KRS 64.257 (now repealed), was not included in the enrolled bill, due apparently to clerical error.

NOTES TO DECISIONS

1.Constitutionality.

Law that provided that the money collected by justices should go to the general fund of the county, that the justices should receive a salary to be paid by the county, that justices should deliver all fees to the recorders, that a report thereof should be made by the justices to the recorders and that justices should collect $1 in each original civil action or proceeding at the time of its commencement as costs to be turned over to the fiscal court did not violate Const., §§ 14, 51, 59, 60, 106 nor 246. Shaw v. Fox, 246 Ky. 342 , 55 S.W.2d 11, 1932 Ky. LEXIS 761 ( Ky. 1932 ).

2.Disposition of Fees and Costs.

The magistrates still tax fees and costs, but must pay same to the county treasury. Muenninghoff v. Bartholomew, 269 Ky. 36 , 106 S.W.2d 97, 1937 Ky. LEXIS 554 ( Ky. 1937 ).

3.Deficit in Monthly Earnings.

A deficit in one month may not be made up from overplus earnings for another month. Commonwealth v. Bartholomew, 265 Ky. 703 , 97 S.W.2d 591, 1936 Ky. LEXIS 563 ( Ky. 1936 ); Muenninghoff v. Bartholomew, 269 Ky. 36 , 106 S.W.2d 97, 1937 Ky. LEXIS 554 ( Ky. 1937 ).

4.Division of Deposit.

The deposit of $1.00 should be divided equally between the magistrate and the constable. Muenninghoff v. Bartholomew, 269 Ky. 36 , 106 S.W.2d 97, 1937 Ky. LEXIS 554 ( Ky. 1937 ).

5.Salary Levels.

Where a county fiscal court could not justify paying at least $9,600 to each of its three justices of the peace based upon the present absence of public services performed by them, the solution would be for the magistrates to request the General Assembly to either increase the duties of those not serving on a fiscal court, or, in the alternative for fiscal court, to be permitted to establish a salary below $9,600 in line with services actually performed. Roland v. Jefferson County Fiscal Court, 599 S.W.2d 469, 1980 Ky. App. LEXIS 320 (Ky. Ct. App. 1980).

Cited:

Roberts v. Noel, 296 S.W.2d 745, 1956 Ky. LEXIS 2 38 ( Ky. 1956 ); Brown v. Hoblitzell, 307 S.W.2d 739, 1956 Ky. LEXIS 2 ( Ky. 1957 ).

Opinions of Attorney General.

The payment for vacation time not taken while a person was serving as judge of a magisterial district court would be illegal since such a payment would constitute a bonus or pay for services not rendered and a fiscal court order, pursuant to KRS 67.083 , for the vacation pay would have the practical effect of increasing his salary beyond that set by this section and thus in violation of KRS 67.083 (1) and this section. OAG 76-100 .

Although subsequent to January 2, 1978, persons may still be elected to the office of justice of the peace and justices of the peace would retain any nonjudicial powers found in the statutes, in a county having the commissioner type of government in 1978 there are practically no authorized statutory functions for a justice of the peace and since performance of some statutory duties is necessary to entitle justices of the peace to compensation and expense allowances in 1978, payment of any compensation or expense allowance to such justices not serving on fiscal courts would raise a serious constitutional question. OAG 77-133 .

Research References and Practice Aids

Kentucky Law Journal.

Note, Pecuniary Interest of a Justice of the Peace in Final Trial of a Misdemeanor in Kentucky — Violation of the Due Process Clause of the Fourteenth Amendment, 36 Ky. L.J. 422 (1948).

Vanlandingham, The Fee System in Kentucky, 40 Ky. L.J. 275 (1952).

Vanlandingham, Pecuniary Interest of Justices of the Peace in Kentucky; The Aftermath of Tumey v. Ohio, 45 Ky. L.J. 607 (1957).

Bivin, The Historical Development of the Kentucky Courts, 47 Ky. L.J. 465 (1959).

64.255. Justices of the peace in counties of less than 250,000 population — Compensation — Return of fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 81, §§ 1 and 2; 1968, ch. 152, § 29; 1972, ch. 311, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

64.257. Justices of the peace in counties containing a city of the first class — Filing fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 311, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

64.258. Office expense assistance payments to justice of the peace. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 181, § 1; 1972, ch. 331, § 1; 1976 (Ex. Sess.), ch. 14, § 32, effective January 2, 1978; 1980, ch. 188, § 24, effective July 15, 1980) was repealed by Acts 1984, ch. 5, § 1, effective January 1, 1986.

64.260. Commissioners and receivers. [Repealed.]

Compiler’s Notes.

This section (396, 401, 407, 408, 1740: amend. Acts 1952, ch. 210; 1954, ch. 138) was repealed by Acts 1970, ch. 61, § 3.

64.262. Fees of master commissioners and receivers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 61, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

64.265. Master commissioner for court of continuous session may be paid salary in addition to fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 37) was repealed by Acts 1968, ch. 152, § 168.

64.270. Salary, expenses of master commissioners, receivers. [Repealed.]

Compiler’s Notes.

This section (1761, 1761-1; amend. Acts 1950, ch. 196, § 3; 1960, ch. 252; 1966, ch. 249, § 1; 1970, ch. 61, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

64.275. Shortage in receiver’s fees in certain counties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 192, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

64.280. Shortage in commissioner’s fees in certain counties. [Repealed.]

Compiler’s Notes.

This section (1761-1, 1761-2(2)) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

64.285. Compensation of fiscal court members adjusted to current purchasing power of the dollar.

In order to equate current compensation for fiscal court services with the purchasing power of the dollar and to keep abreast of such compensation’s initial value and purchasing power, the fiscal court of any county, on or before September 1, 1972, may adjust, within the limits of KRS 64.530(6), the compensation of the justices of the peace or county commissioners serving on a fiscal court of a county.

History. Enact. Acts 1972, ch. 358, § 2.

Legislative Research Commission Note.

(8/2/89). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

Opinions of Attorney General.

Increase under this section must be based on the compensation presently received for trying criminal cases and for attending fiscal court meetings three (3) times a month. OAG 72-507 .

Final adjusted level of compensation cannot exceed that provided by an application of the consumer price index formula enunciated in Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 (1965). OAG 72-507 .

In establishing a new annual salary for county commissioners serving on a fiscal court for the term which begins in 1974, the new compensation should be fixed not later than the first Monday in May, 1973, with the 20% maximum increase based on the annual compensation actually paid for calendar year preceding June 16, 1972, or the consumer price index formula may be applied to determine the increase. OAG 73-65 .

This section gives the fiscal court authority, in its discretion, to adjust, prior to September 1, the annual salaries of the incumbent county commissioners not to exceed $9,000 per year each, as provided in KRS 64.530(6), retroactive to January 1974. OAG 74-622 .

Within the limits of KRS 64.530 and 64.255 (repealed), where the maximum salary has not yet been reached, the fiscal court may authorize an adjustment of such salaries, subject to proper budgeting procedure as required by KRS Ch. 68, since the purchasing power adjustment theory of the “rubber dollar” controls and an “adjustment” is not a “change” if the statutory maximum has not been attained. OAG 75-149 .

In conformity with Const., § 59, this section and KRS 64.527 envision equal pay for all magistrates or commissioners on a particular fiscal court. OAG 82-461 .

The county commissioners on a fiscal court must be paid the same compensation, regardless of what the legal sum is. In view of the fact that Const., §§ 3 and 171 demand that an officer or employee of the government receive compensation actually earned by rendering appropriate statutory services, this means that each commissioner is required to have approximately the same work load. OAG 82-461 .

64.290. Notaries, examiners and other officers. [Repealed.]

Compiler’s Notes.

This section (1741: amend. Acts 1950, ch. 38, § 4) was repealed by Acts 1974, ch. 323, § 5.

64.300. Exemption from fees of notaries public.

No fee or compensation shall be allowed or paid for affixing the jurat of a notary public to any application, affidavit, certificate or other paper necessary to be filed in support of any claim for the benefits of federal legislation for any person or his dependents who has served as a member of the National Guard or a reserve component or as an active member of the Army, Navy, Air Force, Coast Guard, or Marine Corps of the United States.

History. 1746: amend. Acts 1970, ch. 89, § 1; 1982, ch. 360, § 13, effective July 15, 1982; 2016 ch. 46, § 1, effective July 15, 2016.

NOTES TO DECISIONS

1.Bank Employee.

A bookkeeper employed in a bank who protests delinquent notes by virtue of being a notary is entitled to collect his statutory fees. Archer v. Dorman, 263 Ky. 105 , 91 S.W.2d 1007, 1936 Ky. LEXIS 139 ( Ky. 1936 ).

Research References and Practice Aids

Cross-References.

Forfeiture of fees and fine for failure to record protest, KRS 423.990 .

No fee for affidavit made in connection with inquest concerning sanity, KRS 210.265 .

64.310. Arbitrators and appraisers.

  1. Arbitrators shall be allowed $1.50 per day, to be paid by the successful party and taxed as costs.
  2. When land or improvements, in a county containing a population of 150,000 or over, are ordered by a court to be sold, and an appraisement is required, the appraisers shall be paid out of the proceeds of the sale a reasonable compensation fixed by the court, to be taxed as a part of the costs of the action.

History. 1745, 1745a, 2362a-1.

Compiler’s Notes.

Former subsection (2) was repealed by Acts 1968, ch. 144, § 2, and the remaining subsections renumbered.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Appraisal, Form 257.11.

64.320. Surveyors.

Any court shall pay or order payment, as the case may be, of reasonable compensation relating to the nature of the work to the county surveyor, and his agents who assist him, for any services it orders the surveyor to perform pursuant to KRS 73.040 . The surveyor may refuse to deliver to any party or file in court any plat or report of survey until his fees for making it have been paid.

History. 1744, 4672a-4: amend. Acts 1990, ch. 89, § 1, effective July 13, 1990.

NOTES TO DECISIONS

1.Application.

This section applies only to the county surveyor acting in his official capacity, or when ordered to make a survey by the court. Paine v. Kentucky Refining Co., 159 Ky. 270 , 167 S.W. 375, 1914 Ky. LEXIS 801 ( Ky. 1914 ).

Research References and Practice Aids

Cross-References.

County road engineer or county road supervisor, surveyor may be employed as, KRS 179.020 .

64.330. Chain-carriers, viewers and processioners.

  1. Chain-carriers and markers shall be paid, by the person causing the survey to be made, one dollar ($1) per day. If the survey is made under an order of court their services and the fees to which they are entitled shall be reported by the surveyor in his report.
  2. Viewers of a road shall be paid, by the applicant, one dollar ($1) per day.
  3. Processioners shall be paid, by the employer, two dollars ($2) per day.

History. 1747.

Research References and Practice Aids

Cross-References.

Drainage district laws, viewer’s and chain-carrier’s compensation for services under, KRS 267.420 .

64.340. Fee in misdemeanor cases must be collected from defendant.

No officer shall be entitled to any fee in a proceeding for a misdemeanor unless the fee is recovered and collected from the defendant, in which case the fee allowed and taxed shall be the same as for similar services in civil cases.

History. 1760.

NOTES TO DECISIONS

Cited:

Bell County v. Minton, 239 Ky. 840 , 40 S.W.2d 379, 1931 Ky. LEXIS 871 ( Ky. 1931 ).

Opinions of Attorney General.

A sheriff is entitled to his fee for service of process or arrest in misdemeanor action only when a judgment is found against the defendant in said action, at which time the county, from the cost levied against the defendant, pays the sheriff his fee. OAG 60-964 .

A magistrate or constable cannot properly charge a collection fee which is in excess of the charges permitted for the simple writing of a warrant. OAG 65-403 .

A sheriff is entitled to his arresting fee in a misdemeanor case only when a judgment of conviction is entered against the defendant, at which time the county, from the cost levied against and recovered from the defendant, pays the sheriff his fee. OAG 68-499 .

The sheriff’s arresting fee in a misdemeanor case is charged to the plaintiff commonwealth but to the extent of its being collected from a convicted defendant. OAG 70-553 .

When a criminal case is appealed to Circuit Court under RCr 12.02 and the defendant is acquitted, the circuit clerk would not be entitled to any statutory fees. OAG 70-580 .

The sheriff must execute warrants issued under KRS 434.290 (repealed) when placed in his hands for execution and he is not entitled to his $7.00 fee until the defendant is convicted and it is taxed to the defendant as costs. OAG 71-277 .

Fee for summoning a jury in criminal cases which is established in KRS 64.050 may only be paid where the fee is collected from the defendant as provided in this section. OAG 72-435 .

Since warrantless arrest for a misdemeanor must meet the stern statutory and constitutional requirements, a policeman’s pecuniary interest in arrest cannot be effectively applied so as to impinge upon a defendant’s constitutional rights. OAG 73-250 .

Fact that police judge in Augusta has virtually no executive duties, being a conservator of the peace under KRS 26.190 (repealed), his salary was paid from the city’s general fund [into which a portion of the fines go] and this did not disqualify him as a judge in misdemeanor conviction cases in connection with the due process clause of the 14th amendment. OAG 73-250 .

The usual court costs in misdemeanor actions in a court of a justice of the peace would normally be as follows:

Commonwealth attorney tax (KRS 142.030 ) (now repealed) . . . . . $ 3.50

County attorney tax (KRS 142.040 ) (now repealed) . . . . . 3.50

Arrest fee (KRS 64.090 and 64.340 ) . . . . . 7.00

County attorney fee (KRS 69.260 (2) (repealed)) . . . . . 5.00

Library tax (KRS 172.180(3)(b) (now KRS 172.180(3)(a)) . . . . . .50

and, in accordance with KRS 28.170(1) (repealed), all fines and forfeitures are reported to the circuit court at the close of the last day of each regular term of circuit court. OAG 73-275 .

Payments to the sheriff’s office for summoning and obtaining witnesses in misdemeanor cases arising from indictment or information in the circuit court fall on the defendant if convicted but if he is not convicted or if he proceeds in forma pauperis, the state would not be liable for the cost so the sheriff could not collect such fee under KRS 453.010 . OAG 73-631 .

In an appeal from the Erlanger police court to the Kenton circuit court in which the prosecuting attorney had the sheriff serve two subpoenas, the fee for service cannot be charged to the commonwealth or the city but if the defendant is convicted, the fee can be collected from him. OAG 73-636 .

Although payment of a fine may be suspended or probated when a person is found guilty, costs are not a part of the penalty and the convicted defendant must pay the costs so officers involved will get paid for services rendered. OAG 74-75 .

In misdemeanor cases, if the quarterly court judge is serving as his own clerk, then he is entitled to the docket fee as well as the fee for entering an order provided that the clerk is entitled to said fees under the provisions of KRS 453.020 , 453.190 and this section, otherwise, the clerk of the quarterly court is entitled to the fees. OAG 74-587 .

The $2.00 fee charged by the sheriff for the collection of bail in either a misdemeanor or felony action must be collected from the defendant, if convicted, provided he is not proceeding as a pauper, and becomes a part of the judgment against the convicted defendant which, if unpaid, shall be collected by process as in civil cases. OAG 74-911 .

Since the imposition of court costs against a criminal defendant is conditioned upon his conviction and upon his not proceeding in forma pauperis, a police court judge may not assess costs when the case or charge is filed away with leave to reopen. OAG 75-378 .

Despite KRS 64.090 and 64.095 (now repealed), this section is controlling and a sheriff may not be paid his fees in misdemeanor cases by the county unless the defendant is convicted and pays over such fees to the county as costs. OAG 75-393 .

Where a misdemeanor defendant is convicted but never pays the costs, including the sheriff’s fees, the sheriff, as a fee officer, is accountable in his audit for such uncollected fees unless he shows to the auditor that he took all reasonable and practical steps to collect such fees, although the statutes do not make the sheriff an insurer of the collection of fees legally due and payable. OAG 75-393 .

Where the defendant in a misdemeanor case is not convicted, or the case does not proceed to judgment, a sheriff has no statutory means for collecting his fees and, since such fees are uncollectible, he is not accountable for them. OAG 75-393 .

The constable would receive the $7.00 (now $10.00) fee described in KRS 64.090 for making an arrest with or without a warrant in a misdemeanor case if: (1) the defendant is convicted and (2) the defendant pays over the fee to the district court clerk. OAG 78-189 .

The sheriff in serving process and performing other services in District Court is compensated under existing applicable fee schedules, subject to the contingency of this section that a convicted defendant pays the fees in misdemeanor cases and such contingency is constitutional. OAG 78-193 .

If defendant is convicted of a misdemeanor and is declared by the court to be a pauper, the sheriff does not get paid. OAG 78-249 .

A sheriff who serves an arrest warrant for a case involving unemployment insurance fraud may not receive his fees for service of process from the Division of Unemployment Insurance, but may only be paid if the defendant is convicted and pays fees and costs to the District Court. OAG 78-495 .

A clerk is under no affirmative duty to collect the misdemeanor arrest fee payable to city policemen or a sheriff, but where the defendant is convicted and judgment of conviction and costs being entered, the defendant pays the fee to the clerk who pays the fee to the Department of Finance (now Finance and Administration Cabinet), then the arresting officer may collect his fee. OAG 79-125 .

A sheriff in serving a summons is compensated under the existing applicable fee schedule subject to the contingency of this section that a convicted defendant pays the fees in a misdemeanor case. OAG 79-354 .

If a charge is dismissed or filed away, the court cannot assess costs. OAG 79-408 .

If a defendant enters a plea of guilty, and no fine is assessed, but a bond to keep the peace is required, costs can be imposed. OAG 79-408 .

The party securing a warrant and failing to appear at trial is not liable for court costs. OAG 80-142 .

KRS 64.090 as amended effective January 2, 1978, has not repealed by implication the provisions of this section and a sheriff cannot legally demand in advance the payment of the fee for service of process in a misdemeanor case. OAG 80-271 .

The contingency aspect of this section is still valid and, therefore, the sheriff can only collect the authorized fees in misdemeanor cases, set forth in KRS 64.090 , under the following conditions: (1) the defendant is convicted; (2) the defendant, upon a judgment of costs being entered, pays the fee to the court clerk; (3) the court clerk, assuming conditions (1) and (2) are satisfied, pays over the fee to the sheriff. OAG 80-271 .

KRS 64.090 provides that a sheriff may charge and collect for his services the sum of $2.00 for summoning each witness; however, the collection of the fee is conditioned upon the conviction of the defendant and his payment of the fee to the court clerk. OAG 80-342 .

Since there is nothing in the schedule suggesting that the fee for summoning a witness relates to civil cases only, the fee for serving a subpoena in criminal cases is $2.00 under KRS 64.090 ; if the defendant is convicted, he is responsible for paying such cost unless he is permitted by the court to proceed in forma pauperis under KRS 453.190 and, if he is not convicted, then under this section and KRS 453.020 the fee cannot be collected. OAG 83-311 .

Research References and Practice Aids

Cross-References.

Defendant in criminal cases liable for cost if convicted, KRS 453.020 .

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky, 40 Ky. L.J. 275 (1952).

64.345. Clerks and sheriffs and jailers in counties having population of 70,000 or more — Compensation — Expenses — Deputies and assistants — Applicability of KRS 64.368 if population decreases below 70,000 — Expenses not to exceed annual approved budgetary amounts.

  1. The county clerk and sheriff of each county having a population of seventy thousand (70,000) or over shall receive an annual salary pursuant to the salary schedule in KRS 64.5275 .
  2. In counties containing a city of the first class, an urban-county form of government, or a consolidated local government, the amount, if any, allowed for the necessary office expenses of each officer shall be approved by the fiscal court in counties containing a city of the first class, by the legislative body in counties containing an urban-county form of government, or by the legislative council in a consolidated local government. This approval shall be signed by the county judge/executive in a county containing a city of the first class, the executive authority in a county having an urban-county form of government, or the mayor in a consolidated local government. Approval by the fiscal court, urban-county legislative body, or legislative council of a consolidated local government under this subsection shall not include oversight of expenditure of the funds. This oversight shall be retained by the Office of the Controller created pursuant to KRS 42.0201 . In counties having a consolidated local government or containing a city of the first class, each sheriff’s deputy who uses his own automobile in the performance of official duties shall be authorized an allotment for expenses incurred, up to a maximum of three hundred dollars ($300) per month, to be paid out of the fees and commissions of the sheriff’s office. In all other counties with a population of seventy thousand (70,000) or more, the amount, if any, allowed for the necessary office expenses of each officer shall be fixed by the fiscal court by an order entered upon the fiscal court order book no later than January 15 of each year. Necessary office expenses for sheriffs and county clerks in counties containing a city of the first class, an urban-county form of government, or a consolidated local government, and counties with a population of seventy thousand (70,000) or more shall include discretionary funds to cover additional expenses related to special training and travel related to homeland security emergencies, academy graduations, retirements, state and national sheriff’s conventions, and extraordinary office expenses in amounts authorized by the approving authority. A certified copy of the orders, and of any subsequent changes made therein, shall, as soon as entered, be forwarded to the Finance and Administration Cabinet.
  3. Each officer shall, on the first day of each month, send to the Finance and Administration Cabinet a statement, subscribed and sworn to by him, showing the amount of money received or collected by or for him the preceding month as fees or compensation for official duties and shall, with these statements, send to the Finance and Administration Cabinet the amount so collected or received. The Finance and Administration Cabinet may extend the time for filing the statement and making the payment for a period not exceeding ten (10) days in any month.
  4. The salary of each officer and his deputies and assistants and his office expenses shall be paid semimonthly by the State Treasurer upon the warrant of the Finance and Administration Cabinet made payable to the officer. If seventy-five percent (75%) of the amount paid into the State Treasury in any month by any of such officers is not sufficient to pay the salaries and expenses of his office for that month, the deficit may be made up out of the amount paid in any succeeding month; but in no event shall the amount allowed by the Finance and Administration Cabinet to any officer for salaries and expenses exceed seventy-five percent (75%) of the amount paid to the Finance and Administration Cabinet by the officer during his official term.
  5. In counties containing a city of the first class, an urban-county form of government, or a consolidated local government, the number of deputies and assistants allowed to each officer and the compensation allowed to each deputy and assistant shall be approved at reasonable amounts upon motion of each officer by the fiscal court in counties containing a city of the first class, by the legislative council in a consolidated local government, and by the legislative body in counties containing an urban-county form of government. This approval shall be signed by the county judge/executive in a county containing a city of the first class, the executive authority in a county having an urban-county form of government, or the mayor in a consolidated local government. Approval by the fiscal court, urban-county legislative body, or legislative council of a consolidated local government under this subsection shall not include oversight of expenditure of the funds. This oversight shall be retained by the Office of the Controller. In all other counties with a population of seventy thousand (70,000) or more, the number of deputies and assistants allowed to each officer and the compensation allowed to each deputy and assistant shall be fixed at reasonable amounts upon motion of each officer by the fiscal court by an order entered upon the fiscal court order book no later than January 15 of each year. A certified copy of the orders, and of any subsequent changes made therein, shall, as soon as entered, be forwarded to the Finance and Administration Cabinet.
  6. If a county’s population that equaled or exceeded seventy thousand (70,000) is less than seventy thousand (70,000) after the most recent federal decennial census, then the provisions of KRS 64.368 shall apply.
  7. The Office of the Controller shall recognize the amount allowed for necessary office expenses of each officer under subsection (2) of this section as the official budget for the office. The Office of the Controller shall use professional judgment in creating the appropriate fund and account structure to ensure that the offices do not exceed annual approved budgetary amounts or expend more than the resources available for the term of office.

History. Enact. Acts 1950, ch. 196, § 1; 1964, ch. 109, § 2; 1966, ch. 255, § 69; 1972, ch. 203, § 4; 1974, ch. 44, § 1; 1974, ch. 254, § 2; 1974, ch. 304, § 1; 1976 (Ex. Sess.), ch. 14, § 33; 1978, ch. 360, § 1, effective June 17, 1978; 1982, ch. 111, § 1, effective July 15, 1982; 1982, ch. 385, § 16, effective July 1, 1982; 1986, ch. 374, § 18, effective July 15, 1986; 1992, ch. 220, § 4, effective January 1, 1994; 1994, ch. 508, § 18, effective July 15, 1994; 1996, ch. 319, § 1, effective April 9, 1996; 1998, ch. 610, § 2, effective July 15, 1998; 2002, ch. 71, § 2, effective July 15, 2002; 2002, ch. 346, § 19, effective July 15, 2002; 2003, ch. 192, § 1, effective June 24, 2003; 2004, ch. 140, § 1, effective July 13, 2004.

NOTES TO DECISIONS

1.Constitutionality.

The 1964 amendment to this section is constitutional as it does not violate the purpose of the constitutional provisions prohibiting changing compensation during current terms of office, for the salaries of the various offices are merely being kept abreast of their initial value or purchasing power. Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ).

This section in providing for salary increases for local constitutional officers in excess of the constitutional maximum of $7,200 did not violate Ky. Const., § 246 for that section may be interpreted and periodically applied so as to equate current salaries with the purchasing power of the dollar in order to provide adequate compensation for the judges. Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ).

Whereas this section mandates that a judicial officer, the Chief Circuit Judge, approve the sheriff’s budget in certain counties, it is a clear violation of Ky. Const. §§ 27 and 28 because it mandates that a judicial officer perform what is clearly a function of the executive branch of government and so violates the separation of powers. Vaughn v. Knopf, 895 S.W.2d 566, 1995 Ky. LEXIS 49 ( Ky. 1995 ).

2.Amount Available for Payment.

A county clerk who had received unauthorized payments from fiscal court, and had forwarded said receipts as herein provided, might have been required to refund 75% thereof to the county, inasmuch as that percent of said receipt was returned to him for salaries and office expenses. Ray v. Woodruff, 168 Ky. 563 , 182 S.W. 662, 1906 Ky. LEXIS 277 ( Ky. 1906 ) (decided under prior law).

Amount payable to clerk for salaries and expenses could not exceed 75% of receipts. Neutzel v. Fiscal Court of Jefferson County, 183 Ky. 1 , 208 S.W. 11, 1919 Ky. LEXIS 433 ( Ky. 1 919) (decided under prior law).

Seventy-five percent of official receipts accruing during the term was available for payment of salaries and office expenses, whether paid to the officer, his successor, or a collector, and regardless of when paid. Shannon v. Grieb, 266 Ky. 591 , 99 S.W.2d 751, 1936 Ky. LEXIS 716 ( Ky. 1936 ) (decided under prior law).

In determining amount available for payment of salaries and office expenses, the term and not the month was the unit. A deficit in one month might have been made up out of a surplus in a succeeding month. Shannon v. Grieb, 266 Ky. 591 , 99 S.W.2d 751, 1936 Ky. LEXIS 716 ( Ky. 1936 ) (decided under prior law).

3.Increase in Fee.

Clerk might have recovered for state an increase in fee added during his term, but neither he nor his office had any interest in said recovery. Neutzel v. Fiscal Court of Jefferson County, 183 Ky. 1 , 208 S.W. 11, 1919 Ky. LEXIS 433 ( Ky. 1 919) (decided under prior law).

4.Reduction of Fees.

Fees due sheriff might have been reduced during his term of office, notwithstanding Ky. Const., §§ 161 and 235, when his compensation was not thereby reduced. Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ) (decided under prior law).

5.Excess Fees.

Excess fees might have been recovered from the sheriff only to the extent that they had not been turned over by him to the auditor (now Finance and Administration Cabinet). Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ) (decided under prior law).

Excess commissions on collection of state revenue belonged to county. Shipp v. Bradley, 210 Ky. 51 , 275 S.W. 1, 1925 Ky. LEXIS 627 ( Ky. 1925 ) (decided under prior law).

In action to recover excess fees, sheriff was chargeable with allowances made him by fiscal court, even though said allowances were not recoverable in such an action. Shipp v. Bradley, 210 Ky. 51 , 275 S.W. 1, 1925 Ky. LEXIS 627 ( Ky. 1925 ) (decided under prior law).

6.Deputies.

Deputies unpaid at the expiration of their principal’s term should have applied to the auditor (now Finance and Administration Cabinet) for payment from delinquent fees due their principal and collected by his successor in office. Meriwether v. Summers, 179 Ky. 437 , 200 S.W. 619, 1918 Ky. LEXIS 219 ( Ky. 1918 ); Riley v. Shannon, 266 Ky. 265 , 98 S.W.2d 906, 1936 Ky. LEXIS 647 ( Ky. 1936 ) (decided under prior law).

7.Population.

Certificate of national census was not conclusive as to whether a county had a population of 75,000 or more. Proof that fraud was committed in taking the census, by adding a substantial number of fictitious names, and that the population of the county had substantially decreased since the date of the census, was sufficient to overcome census certificate showing county population to be slightly in excess of 75,000, thus making this section inapplicable to the county. Gross v. Ross, 299 Ky. 383 , 185 S.W.2d 547, 1945 Ky. LEXIS 430 ( Ky. 1945 ) (decided under prior law).

Cited:

Shamburger v. Commonwealth, 240 S.W.2d 636, 1951 Ky. LEXIS 1014 ( Ky. 1951 ); Harlan v. Sawyers, 290 S.W.2d 488, 1956 Ky. LEXIS 327 ( Ky. 1956 ); Commonwealth Office of the Jefferson County Clerk v. Gordon, 892 S.W.2d 565, 1994 Ky. LEXIS 144 ( Ky. 1994 ).

Opinions of Attorney General.

The court order relating to the number and compensation of deputies and assistants of county officers in counties containing a population of 75,000 or more must specifically set forth the positions involved and the compensation allotted to each position. In addition, any change in the number and/or compensation of any deputy or assistant must be authorized and approved by the same authorities and in the same manner as that followed in the original designation of the number and compensation of deputies and assistants. OAG 61-1039 .

“Necessary office expense” as used in KRS 64.350 , of a jailer, or combined sheriff and jailer in Jefferson County, does not include construction in or additions to the existing county jail, and the department of finance could not pay for such construction out of the fees of the jailer. OAG 62-1084 .

The increase in compensation authorized by Acts 1964, ch. 109, § 2, for those constitutional officers designated in this section could not be granted during the officers’ present terms without violating Ky. Const., § 161. OAG 64-540 .

Architectural drawings for new construction of a building are not necessary office expenses of the circuit court clerk. OAG 64-891 .

An order of the Pike County fiscal court requiring all fee officers in that county to turn over to the fiscal court 25% of all fees collected was illegal. OAG 65-398 .

The fiscal court has no discretion by way of fixing the maximum income of the officers set out in KRS 64.535 . OAG 65-543 .

Where in settling with the fiscal court the sheriff only withheld $8,400 for 1964 instead of $9,600, the 1964 settlement with the county should be reopened and the county should pay the $1,200 to the sheriff out of an appropriate budgeted fund. OAG 65-755 .

Where an outgoing sheriff, who had purchased office furniture and equipment from the fees of his office, attempted to sell the property in order to meet the payroll he had no authority to sell the property and the attempted sale was illegal and void ab initio and the title to the property did not pass. OAG 65-881 .

Where a city also housed prisoners in the county jail and paid the jailer the fees for them, those fees had to be considered in arriving at his maximum compensation of $9,600. OAG 66-18 .

Where parking space near the courthouse is necessary to the proper functioning of the sheriff’s office, the expense of a lease arrangement to rent such parking space may be paid out of the fees of the sheriff’s office, subject to the payment procedure outlined in this section. OAG 68-455 .

Where a county clerk dies in office, the maximum compensation to which his duly appointed successor is entitled is $9,600 for the year provided that the 75% of the fees earned by him during that year is sufficient to cover such compensation, the salaries of his deputies and assistants, his office expenses and any deficit which may have occurred in his predecessor’s official accounts. OAG 69-103 .

Where a deputy sheriff is injured while apprehending a juvenile attempting to escape from juvenile court, the cost of medical and surgical bills necessitated by the injury cannot be paid out of sheriff’s fees as the phrase “necessary office expenses” as it appears in Ky. Const., § 106 and in this section does not include surgical fees. OAG 69-293 .

Where during the last 15 months of the sheriff’s term of office certain deputies voluntarily accepted reduction in salaries as a precautionary device to avoid exceeding the 75% limitation imposed by this section and no changes in the court orders regarding the deputies’ salaries were made and a balance remained at the end of the sheriff’s term in the 75% account, the deputies may be paid at the end of the sheriff’s term for any amount they have not received under their authorized salaries, for work actually performed, provided the 75% limitation for the entire term is not exceeded. OAG 69-384 .

The county and circuit courts of a county having a population of 75,000 or more have authority, within their sound discretion, to grant an order allowing the sheriff of the county to expend, out of the 75% account of excess fees, money for the purchase of necessary new office equipment for the sheriff’s office pursuant to bidding procedure established in KRS 424.260 . OAG 69-666 .

There is no authority providing that a burglary loss is a necessary office expense, and the loss sustained may not be charged against a county clerk’s excess fee balance as an expense of the county clerk’s office. OAG 69-697 .

In counties having a population of 75,000 or over, if the court orders, establish the compensation of two deputy county court clerks at $9,600 per year each, that is the authorized and legal procedure envisioned by the statute. It is up to those courts to determine what “reasonable” compensation is. OAG 70-65 .

The outgoing sheriff and his assistants may be paid salaries and other reasonable expenses incurred for work done in making final settlement with the department of revenue, the fiscal court and the taxing district under KRS 134.215 in accordance with the schedule of salaries of the previous year. Funding of the operations of the outgoing sheriff is effected from the excess receipts of the outgoing sheriff which have accumulated at the end of his term in the 75% account under this section. OAG 70-112 .

The fiscal court of a county of 75,000 or more population could not require the sheriff, jailer and county clerk to purchase compensation insurance out of their excess fees since it would not constitute “a necessary office expense” of such offices. OAG 70-577 .

Subject to the 75 percent restriction found in this section, the county and circuit courts of Jefferson County have the authority, within their sound discretion, to grant an order allowing the Jefferson Circuit Court to expend, out of the 75 percent account of the fees of his office, money for the actual and necessary expenses occasioned by his deputies attending the circuit court clerks’ convention. OAG 70-747 .

Before a fiscal court could authorize the expenditure of funds to hire outside counsel to assist in the defense of several suits against a sheriff, it would have to be determined that the requisite county interest was involved and that the sheriff had acted in good faith in the performance of his duties. OAG 71-355 .

The necessary and actual expenses of the deputy sheriffs in staying overnight with sequestered juries under orders of the circuit court can be paid, when properly documented, from the sheriff’s 75 percent account pursuant to this section as a legitimate and necessary office expense. OAG 71-495 .

Where the county court clerk was sued regarding an election ballot and the county attorney was unable to take the appeal, the costs accruing to the clerk on appeal, including the attorney’s fees, could be funded from the county clerk’s 75 percent account, provided that it is authorized by an order of the county and circuit judges and provided there is a sufficient balance in the 75 percent account. OAG 71-506 .

Because of the provision of subsection (5) there is no legal or statutory basis for the appointment of “special deputies” of the sheriff’s office, since they would be in addition to the authorized deputy staff previously established under this section. OAG 72-98 .

Under subsection (5) the county clerk could move the county court judge (now county judge/executive) and the circuit judges for an order authorizing additional county clerk deputies to assist, without pay, the clerk in the registering of voters, if such deputies are willing to serve without compensation. OAG 72-147 .

Judges of the circuit and county courts can require a job description or title statement for each proposed deputy so the courts can properly carry out their judicial duties under this section. OAG 73-618 .

The expense of providing radio programming to jail prisoners is a “necessary expense” of the office of jailer and circuit and county judges (now county judges/executive) could properly approve such expense, payable out of the 75% account. OAG 73-622 .

Since the storage of voting machines is a responsibility and a necessity of the county clerk’s office, the judges of the circuit and county courts of Jefferson County are authorized by law to allow this expenditure for storage of voting machines as a necessary office expense of the county clerk payable out of the 75% account on a monthly basis by the same method provided for office expense. OAG 73-788 .

The special mandatory system of this section does not apply to counties of less than 75,000. OAG 74-1 .

If a sheriff needs additional deputies in connection with court appearances under KRS 64.090 and KRS 70.140 he can move the courts for them under KRS 64.345 and the circuit and county courts in their discretion can increase the number of sheriff’s deputies whose salaries would be fixed by the judges payable out of “75 percent” account, but the fees received by the sheriff for court appearances from the state treasury and the county treasury must be turned in to the state treasury monthly pursuant to KRS 64.345 . OAG 74-112 .

In the application of this section, use of the federal decennial census figure for the population of Hardin County, which includes the population of the Fort Knox military complex, is mandated by KRS 64.347 . OAG 74-134 .

An order, as an advisory matter, of the circuit judges and county judges (now county judges/executive) in reference to fair unemployment practices as covered by KRS Ch. 344 is valid but enforcement is the responsibility of the state and local human rights commissions. OAG 74-390 .

Xerox rentals and necessary paper used by the county clerk, and insurance covering sheriff’s official operations are necessary office expenses and as such are payable out of the 75% fund under this section. OAG 74-413 .

The semimonthly writing of checks to certain local officers is controlled by this section rather than the general statute KRS 45.340 . OAG 74-484 .

In counties of 75,000 population or more, the payment of the premiums for the state revenue bond covered in KRS 134.230 and the sheriff’s general performance bond out of the “75% account” is not based on KRS 62.155 but is based upon the specific nature of “necessary office expenses” as mentioned in Ky. Const., § 106 and this section and as construed by the courts over the years. OAG 74-561 , modifying OAG 74-413 .

The circuit judges and county judge (now county judge/executive), as a judicial panel, do not have authority under this section and Ky. Const., § 106 to authorize, as a necessary office expense, the expense of parking for the county clerk’s deputies and assistants out of the fees of the clerk’s office since such expense is incidental to their getting to their offices and, while the cars are parked in the parking area, they are not being used for the official business of the office. OAG 74-582 (modifying OAG 72-540 to the extent it is in conflict).

The requirement in KRS 70.030 that the county court approve a sheriff’s appointment of his deputies has been amended by implication since KRS 64.530(4) controls where the county population is less than 75,000 and the fiscal court determines the number and compensation of deputies, this section controls in Jefferson and Fayette County and an order of a panel of circuit judges and county judge (now county judge/executive), signed by a majority, makes the determination and this section controls in all other counties having 75,000 population or more and the determination is made by the fiscal court. OAG 74-697 .

A panel of circuit judges and county judges (now county judges/executive) could not legally enter an order, pursuant to this section, authorizing the sheriff to pay the college tuition of certain of his employes to enable them to improve their job related capabilities out of his 75% account. OAG 75-43 .

Under this section and KRS 71.060 a jailer may on his own authority appoint not more than two deputies but he may not pay their salaries from the salaries and fees of his office and their salaries would have to be fixed by order of the fiscal court unless a salary had been set previously in which case, in the absence of a fiscal court order, it would carry over as the salary of the new deputy under KRS 64.730 . OAG 75-69 .

The fiscal court is not required to authorize, approve or fix any adjustment in compensation of circuit clerk, county clerk, sheriff and jailer in counties of 75,000 or more population, pursuant to this section, based on consumer price index increase or decrease as computed by the Department of Commerce (now Finance and Administration Cabinet) pursuant to KRS 64.527 and it cannot take any action affecting the earned fees by such officers. OAG 75-167 .

The advance cost becomes a fee to the clerk at that point where the suit has been terminated, judgment has been entered, the clerk has taxed the costs and filed the paper in the case and any correction has been made, and the clerk has applied the $20 or any portion thereof, to the clerk’s earned fees in the case under KRS 28.120 (repealed) and such earned fees must be sent to the Executive Department for Finance and Administration (now Finance and Administration Cabinet) for deposit to the state treasury on the first day of each month under this section. OAG 75-233 .

Under the “rubber dollar” principle the adjusted maximum compensation for 1975 for clerks, sheriffs and jailers is $15,667.20. OAG 75-252 .

Under this section, KRS 64.527 and KRS 64.535 the upward adjustment under the “rubber dollar” principle of the salaries of the named officers is automatic and requires no action by state or local government, but the payment of the maximum amount is subject to the limitation in subsection (4) of this section of 75% of the amounts paid in by the offices named to the state treasury, unless, if the 75% is less than the maximum salary allowed, it is supplemented under KRS 64.346 by the fiscal court or where appropriate the urban county council. OAG 75-252 .

The question of whether the incumbent sheriff of a county with 75,000 or more population can make claim for payment of advance fees for execution of process rendered not only during his term but also the terms of his predecessors for the past seven years can be answered only in terms of the accounting system applicable under this section which requires the sheriff to report and send in monthly the amount of money received or collected to the state treasury from which 25% goes back to the fiscal court under KRS 64.350 and any remaining in the “75%” account, after the payment of the expenses of the sheriff’s office expenses, goes back to the fiscal court so it is academic as to who actually earned the fee or performed the service. OAG 75-444 .

In a county where the finance system of this section applies, the sheriff’s expenses must be paid out of the 75% account as fixed by the fiscal court no later than January 15 of each year and, as KRS 64.346 was designed to pay for expenses actually incurred and documented by the sheriff, the fiscal court has no authority to grant the sheriff a lump sum expense allowance as KRS 64.710 provides that no officer shall receive a lump sum expense allowance except where such allowance is expressly provided for by statute. OAG 75-484 .

An “adviser to the jailer” who is not appointed to fill a deputy jailer position under this section is not a deputy jailer or a peace officer but merely a civilian employe of the metro police department and therefore, he may not legally equip his vehicle with or use either a flashing, rotating or oscillating blue light. OAG 76-81 .

The statutory requirement pertaining to the printing of special ballots for absent voters, disabled voters and for voting in emergency situations constitutes an election expense to be paid for by the fiscal court pursuant to the terms of KRS 117.345 and such costs cannot be allowed as a necessary office expense of the county court clerk under this section. OAG 76-474 .

Inasmuch as the public has an interest in the quality of the county clerk’s official performance of his public duties, the fiscal court could authorize payment of premiums on errors and omissions insurance out of the clerk’s 75% office expense account. OAG 77-90 .

In Jefferson and Fayette counties the number of deputies of certain officers and their compensation must be determined by the chief judge of the district court. OAG 77-724 .

If the sheriff’s regular deputy staff is inadequate to meet the total statutory responsibilities of the sheriff, including the service of process and legal papers, he may in writing empower the elected constables, as peace officers, to assist him in the serving of process under his supervision and directing with the fees accruing as a result of the process serving by such constables accruing to the sheriff’s office. OAG 78-66 .

The sheriff, if an appropriate order is entered by the chief judge of the district court, could pay the reasonable compensation for the services of constables empowered by him to serve process, including necessary office expenses, out of his 75% account in the state treasury or the fiscal court could fund a reasonable compensation and necessary office expenses for the constables. OAG 78-66 .

The fiscal court sets the number and salaries of the county clerk’s deputies, except in counties containing a population of 75,000 or over. OAG 78-402 .

Where a county jailer was sued in a civil suit filed in federal court by an inmate and compromised the suit for $500, he was entitled to reimbursement from his “75% account” under this section, since the expenditure was reasonable in account, beneficial to the public and not predominantly personal to the jailer. OAG 78-416 .

Because primary responsibility for the payment of necessary office expenses and the salaries of deputies or assistants rests upon the respective fee officers the deputies or assistants work for, the fees earned by those officers may be used to pay the unemployment contributions. OAG 79-433 .

Where the elected offices generate sufficient fees to cover the unemployment compensation contributions, the county has the option of having the various offices pay the contributions on those people employed in the office. OAG 79-468 .

Where a county fiscal court sets up a maximum of $5,000 for equipment, and the sheriff sends an invoice for $6,000 to the Department of Finance (now Finance and Administration Cabinet), the Department can only honor the invoice up to $5,000, until and unless the fiscal court by a subsequent order raises the limit to $6,000, at which time the Department can honor the additional $1,000; the Department of Finance has to stick to the proper breakdown maximums set up by fiscal court in its initial order and any subsequent orders of modification. OAG 80-100 .

Where the tax collection procedure is delayed during the fourth year of the sheriff’s term to the following year, through no fault of the incumbent sheriff, advancements to the outgoing sheriff during his fourth year may be refunded to the state by: (1) the fiscal court’s payment out of the county treasury, if available; or (2) the tax commissions collected by the succeeding sheriff during the successor’s first year of office, which commissions would normally have been earned during the fourth year of the outgoing sheriff’s term; or (3) the payment of the outgoing sheriff out of his pocket for any balance of advancement remaining after exhausting sources (1) and (2) above. OAG 80-298 .

Since the state, under Ky. Const., § 106 and this section, receives the fees of the county clerk, the sheriff and jailer in counties of 75,000 population or more, and pays their expenses out of the state treasury, such constitutional officers are state officers for the purpose of paying their travel expenses and are therefore subject to the state travel regulations. OAG 80-317 .

In order to provide for payment of employes of the county clerk, jailer and sheriff for accumulated leave upon leaving the local service and for the employes’ taking leave with pay while still in the local service, it is first necessary that the county fiscal court enact an appropriate ordinance to that effect, although the fiscal court is not mandated to pass such an ordinance; however, if it does enact such an ordinance, it is necessary that the circuit court, allowing for necessary office expenses of the county clerk, sheriff and jailer pursuant to this section, reflect such payments. OAG 81-203 .

Pursuant to KRS 62.155 , the premium on the sheriff’s general revenue bond and his faithful performance bond must be paid by the state; thus, in counties of 75,000 population or more, the Chief Circuit Judge and Circuit Court, or fiscal court, as the case may be under subsection (2) of this section, may permit the sheriff to take the subject premium out of the sheriff’s “75% account” where the state has not otherwise paid the premium; however, KRS 44.020 does not apply. OAG 81-336 .

By the statement in OAG 70-112 that the finding of the outgoing sheriff’s expenses is effected from the excess receipts of the outgoing sheriff which have accumulated by the end of his term as relates to his 75 percent account it was meant that the county could ultimately utilize the 75 percent account after it received the excess, in the funding of the transitional expenses required by KRS 64.830(4). OAG 82-83 .

At the end of the term of the county clerk, sheriff, and jailer in counties of 75,000 population or more, the Finance Department (now Finance and Administration Cabinet) of the state must turn over any excess money in the cumulative 75 percent account to the respective county fiscal court and treasury; thus, the excess in the 75 percent account, prior to its transfer to the county, is not subject to paying the transitional expenses involved in KRS 64.830(4). OAG 82-83 .

While this section controls the compensation to jailers in counties having a population of 75,000 or more to the extent that the jailer’s compensation must be taken out of the “75% account” in the state treasury (all the jailer’s fees are turned into the state for administration), the general law of KRS 64.527 governs as to county jailers and that statute is geared to the annual compensation of the consumer price index adjustment; thus the fiscal court, in counties of 75,000 or more population, cannot prevent the state’s applying money out of the jailer’s “75% account” to the jailer’s compensation but the maximum established for the particular year under the indexing (C.P.I.) of KRS 64.527 must be observed. OAG 82-155 .

Pursuant to KRS 67.080 , 67.083 and this section, the Urban County Council, and the fiscal courts in other counties coming under the application of Ky. Const., § 106 and this section, may enact reasonable ordinances providing for leave time, i.e., for accumulated leave payment upon leaving the local service and taking leave with pay while still in local service. Such leave would be payable out of the “75% account” of the affected office. Thus such leave payments would require: (1) a local ordinance and (2) a corresponding order of the court or fiscal court, as the case may be, relating to necessary office expenses (budget). OAG 82-221 .

The budget role of the court or fiscal court under this section was not designed to usurp the legislative role assigned to a county or urban county government. OAG 82-221 .

There is nothing in subsection (5) of this section to suggest that the circuit court has the authority to legislate on the “leave with pay” concept. If the court did have such legislative power, it would be unconstitutional under Ky. Const., § 28. OAG 82-221 .

The term “compensation” includes the total consideration paid a governmental officer or employe for public services rendered, and thus the term is broad enough to include pay for leave during government service and upon leaving government service, but the matter of pay for leave does not come into play unless the local legislative body enacts an ordinance expressly providing for leave payment. OAG 82-221 .

The purchase of handguns for a sheriff and his deputies in their law enforcement role constitutes a “necessary office expense,” as envisioned in Ky. Const., § 106 and this section. Thus the sheriff should request the fiscal court to authorize him to effect such a purchase, to be paid out of his 75 percent account. OAG 82-475 .

Jailers in counties containing populations of 75,000 or more are not to be considered in the service of the state for workers’ compensation purposes in light of Acts 1982, ch. 385. Their coverage is now the obligation of the individual counties. OAG 82-507 .

There is no statutory basis for exceeding the $300 per month expense allowance for deputy sheriffs in the official use of their automobiles; however, under KRS 64.346 , the fiscal court could pay out of its general fund for such official deputy sheriff car expense where it was shown by appropriate documentation that the maximum of $300 per month did not fully cover a deputy’s actual car expense. OAG 82-536 .

The urban county Circuit Court could establish reasonable guidelines for making purchases for the sheriff’s office, consistent with the policy expressed in this section. OAG 83-249 .

The urban-county council has no statutory basis for establishing purchasing procedures for the sheriff since the circuit court action under this section preempts the field. OAG 83-249 .

Regardless of whether or not a county sheriff adopted the Model Procurement Code, the purchase of patrol cars would require approval by the Circuit Court as outlined in this section and such court would not approve such a purchase where the court believed that the sheriff did not use sound business judgment in effecting such purchase; “sound business judgment” would normally embrace the competitive bidding principle as a matter of common law. OAG 83-249 .

While the fiscal court determines the number of the clerk’s deputies under KRS 64.530 , the actual hiring or firing of the clerk’s deputies is a prerogative only of the county clerk; the deputies are not elected officials, and, in the absence of a statutory merit system, have no employment life beyond the term of the clerk who appoints them. OAG 84-383 .

A sheriff, subject to proper budgeting and approval of the fiscal court (urban-county council where applicable) as to their number and compensation, may employ “assistants” as well as “deputies.” OAG 91-118 .

While KRS Chapter 70 might not “contemplate” an “assistant” of the sheriff other than a “deputy,” KRS Chapter 64 does. KRS 64.530(3) and (4) expressly provide for the fiscal court to establish compensation for both “deputies” and “assistants.” Similarly, subsection (5) of this section, which applies to counties containing a city of the first class and counties with an urban-county form of government, provides, in part, for establishment of the “number of deputies and assistants allowed to each officer and the compensation allowed to each deputy and assistant …” In other words, there is specific legislative provision for two classes of employees of certain county officers — (1) deputies and (2) assistants. OAG 91-118 .

Research References and Practice Aids

Cross-References.

Collection of fees after death of officer, KRS 64.420 .

Depository of fees, KRS 64.365 .

Jailer’s office abolished in county containing city of first class, KRS 71.110 .

Officers in counties of 75,000 to pay fees into state treasury and to be paid salary not exceeding 75%, Ky. Const., § 106.

Premium on official bond is claim against state, KRS 62.140 .

Return of 25% of fees to county, KRS 64.350 .

Sheriff may distrain for fees for two years after leaving office, KRS 70.100 .

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky, 40 Ky. L.J. 275 (1952).

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

Northern Kentucky Law Review.

Herbert, Kentucky’s In Forma Pauperis Statute: Indifferent Justice or Merely Different Justice?, 5 N. Ky. L. Rev. 169 (1978).

64.346. County contribution toward office expenses of clerks, sheriffs, and jailers in counties having population of 70,000 or more — Applicability of KRS 64.368 if population decreases below 70,000.

  1. The fiscal court in counties containing a population of seventy thousand (70,000) or over may authorize and pay out of the general fund of the county for any expenditures which, in its discretion, are deemed necessary for the efficient operation of the offices of the county and Circuit Court clerk, sheriff, and jailer.
  2. If a county’s population that equaled or exceeded seventy thousand (70,000) is less than seventy thousand (70,000) after the most recent federal decennial census, then the provisions of KRS 64.368 shall apply.

History. Enact. Acts 1950, ch. 196, § 5; 1978, ch. 384, § 18, effective June 17, 1978; 1992, ch. 220, § 5, effective January 1, 1994; 2002, ch. 71, § 3, effective July 15, 2002.

Opinions of Attorney General.

A car for the sheriff’s official use could be purchased under the statute but it could not be driven for private use. OAG 62-432 .

Sheriffs cannot purchase automobiles for the purpose of carrying out duties of their office that are not set out and required by KRS 64.095 (now repealed), 70.150 and 70.160 pursuant to the authority of KRS 44.050 and regulations thereunder. OAG 62-432 .

Fiscal courts in counties of 75,000 or less may finance or furnish sheriff’s automobiles in such counties as necessary official expenses of that office. OAG 68-330 .

Action by the fiscal court or, where appropriate, the urban county council to supplement the salary of an officer which is less than the maximum allowable under the “rubber dollar” principle in view of the 75% of sums paid in to the State Treasury limitations in KRS 64.345(4) is permissive and not mandatory. OAG 75-252 .

Under KRS 64.345 , 64.527 and 64.535 the upward adjustment under the “rubber dollar” principle of the salaries of the named officers is automatic and requires no action by state or local government, but the payment of the maximum amount is subject to the limitation in KRS 64.345 (4) of 75% of the amounts paid in by the offices named to the state treasury, unless, if the 75% is less than the maximum salary, it is supplemented under this section by the fiscal court or where appropriate the urban-county council. OAG 75-252 .

In a county where the finance system of KRS 64.345 applies, the sheriff’s expenses must be paid out of the 75% account as fixed by the fiscal court no later than January 15 of each year and, as this section was designed to pay for expenses actually incurred and documented by the sheriff, the fiscal court has no authority to grant the sheriff a lump sum expense allowance as KRS 64.710 provides that no officer shall receive a lump sum expense allowance except where such allowance is expressly provided for by statute. OAG 75-484 .

The sheriff, if an appropriate order is entered by the chief judge of the district court, could pay the reasonable compensation for the services of constables empowered by him to serve process, including necessary office expenses, out of his 75% account in the state treasury or the fiscal court could fund a reasonable compensation and necessary office expenses for the constables. OAG 78-66 .

The fiscal court may authorize the payment out of the county treasury for the monthly maintenance of automobiles used by the county sheriff in connection with his statutory duties and, in addition, it can authorize the payment out of the county treasury for gasoline used by the sheriff’s vehicles in the carrying out of his statutory functions, of course these payments for automobile maintenance and gasoline should not be in duplication of reimbursements involved in KRS 70.170 and 64.095 (now repealed); it is legal to budget a sum for such expenditures which is an estimate of what may be expended for that category; however, the actual expenditure of such money must be based upon actual maintenance cost accrued as documented and presented by the sheriff to the fiscal court for payment on an item by item basis. OAG 78-271 .

There is no statutory basis for exceeding the $300 per month expense allowance, under KRS 64.345 , for deputy sheriffs in the official use of their automobiles; however, under this section, the fiscal court could pay out of its general fund for such official deputy sheriff car expense where it was shown by appropriate documentation that the maximum of $300 per month did not fully cover a deputy’s actual car expense. OAG 82-536 .

64.347. Population, how determined — Effect of change of population during term of officer.

The population of a county shall, for the purposes of KRS 64.346 , be determined by the most recent federal decennial census enumeration; provided: however that the provisions of those sections and subsections shall not become operative to such officers mentioned therein during their term in counties determined to have acquired, since the last census, a population of more than 75,000.

History. Enact. Acts 1950, ch. 196, § 7; 1980, ch. 188, § 25, effective July 15, 1980; 1998, ch. 610, § 3, effective July 15, 1998.

Opinions of Attorney General.

The federal decennial census figure, which includes the population of the Fort Knox military complex in the Hardin County population, is to be used in determining population for purposes of KRS 64.345 and 64.350 , relating to the salaries of county officers. OAG 74-134 .

64.348. Compensation of sheriffs and other law-enforcement officers or agencies for attending court — Rates. [Renumbered.]

Compiler’s Notes.

This section is now compiled as KRS 64.092 .

64.350. Return of fees to counties whose officers pay fees into State Treasury — Applicability of KRS 64.368 if population decreases below 70,000.

  1. In counties having a population of seventy thousand (70,000) or more, the salaries of the county clerks and sheriffs and of their deputies and all necessary office expenses, including the equipping, furnishing, maintaining, and operation of the offices, shall be paid out of the State Treasury in amounts not to exceed seventy-five percent (75%) of the fees collected by the officers respectively, and received into the Treasury; and twenty-five percent (25%) of the fees collected by the officers respectively, and received into the State Treasury shall be paid in the manner provided by law for the payment of other claims against the state to the fiscal courts, urban-county governments, or consolidated local governments of the respective counties. The amount of twenty-five percent (25%) of the fees collected by the jailers during each calendar year shall be paid to the fiscal courts, urban-county governments, or consolidated local governments of the respective counties by April 1 of each year succeeding the calendar year during which the fees were received by the Finance and Administration Cabinet. The amount of twenty-five percent (25%) of the fees collected by the county clerks and sheriffs during each calendar year shall be paid to the fiscal courts, urban-county governments, or consolidated local governments of the respective counties quarterly no later than April 15, July 15, October 15, and January 15. Each payment shall be for the preceding three (3) months during which fees were received by the Finance and Administration Cabinet. Adjustments necessary to insure that exactly twenty-five percent (25%) of fees collected are returned to the fiscal courts, urban-county governments, or consolidated local governments shall be made in the January 15 payment. After payment of the salaries and expenses specified in this subsection, any remaining balance of the seventy-five percent (75%) of the fees collected by the officers respectively at the end of their official term shall be paid by the State Treasurer to the fiscal courts, urban-county governments, or consolidated local governments of the respective counties, subject to the provisions of subsection (2) of this section.
  2. Notwithstanding the provisions of subsection (1) of this section, all sums received into the State Treasury and representing seventy-five percent (75%) of the fees collected by the sheriffs specified in subsection (1) of this section from any county or consolidated local government in which a metropolitan correctional services department has been established shall be expended from the State Treasury for the payment of the salaries and costs specified in subsection (1) of this section, and in Section 106 of the Constitution of Kentucky. After payment of the salaries and costs specified in this subsection, the remaining balance representing fees collected by sheriffs shall be paid by the State Treasury to the fiscal court or to the consolidated local government of the county in which a metropolitan correctional services department has been established by April 1 of each year succeeding the calendar year in which the fees were received by the Finance and Administration Cabinet.
  3. If a county’s population that equaled or exceeded seventy thousand (70,000) is less than seventy thousand (70,000) after the most recent decennial census, then the provisions of KRS 64.368 shall apply.

History. Enact. Acts 1942, ch. 84; 1968, ch. 152, § 30; 1972, ch. 100, § 9; 1974, ch. 59, § 2; 1976 (Ex. Sess.), ch. 14, § 34, effective January 2, 1978; 1982, ch. 70, § 1, effective July 15, 1982; 1982, ch. 385, § 17, effective July 1, 1982; 1986, ch. 374, § 19, effective July 15, 1986; 1992, ch. 220, § 6, effective January 1, 1994; 1994, ch. 508, § 19, effective July 15, 1994; 2002, ch. 71, § 4, effective July 15, 2002; 2002, ch. 346, § 20, effective July 15, 2002.

Legislative Research Commission Note.

(7/15/2002). This section was amended by 2002 Ky. Acts chs. 71 and 346, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Constitutionality.

Where all the counties affected by this section were parties to the preceding litigation, res judicata precludes the commonwealth and those who may be regarded in priority with it from questioning this section’s constitutionality so long as the judgment of May 15, 1943, holding it constitutional remains in force. Commonwealth ex rel. Dummit v. Jefferson County, 300 Ky. 514 , 189 S.W.2d 604, 1945 Ky. LEXIS 570 ( Ky. 1945 ).

2.Office Expenses.

A “Money and Securities Insurance Policy” covering loss of money or securities by destruction, disappearance or wrongful abstraction and the premiums thereon may be “necessary office expenses” within the meaning of this section. Hennessy v. Stewart, 283 S.W.2d 719, 1955 Ky. LEXIS 327 ( Ky. 1955 ).

Cited:

Harlan v. Sawyers, 290 S.W.2d 488, 1956 Ky. LEXIS 327 ( Ky. 1956 ).

Opinions of Attorney General.

“Necessary office expense” as used in this section, of a jailer, or combined sheriff and jailer in Jefferson County, does not include construction in or additions to the existing county jail, and the department of finance (now Finance and Administration Cabinet) could not pay for such construction out of the fees of the jailer. OAG 62-1084 .

Architectural drawings for new construction of a building are not necessary office expenses of the Circuit Court Clerk. OAG 64-891 .

An order of the Pike County fiscal court requiring all fee officers in that county to turn over to the fiscal court 25% of all fees collected was illegal. OAG 65-398 .

Where an outgoing sheriff, who had purchased office furniture and equipment from the fees of his office, attempted to sell the property in order to meet the payroll, he had no authority to sell the property and the attempted sale was illegal and void ab initio and the title to the property did not pass. OAG 65-881 .

Considering the broad scope of duties of the sheriff in connection with enforcing the criminal law and the necessary patrol activity which the function suggests, the expense of training and maintaining a police dog for patrol work in a county having a population exceeding 75,000 would constitute a necessary expense of the office. OAG 67-79 .

Where during the last 15 months of a sheriff’s term of office, certain of his deputies voluntarily accepted reduction in their salaries as a precautionary device to avoid exceeding the 75% limitation imposed by subsection (4) of KRS 64.345 and no changes in the court orders regarding the deputies’ salaries were made and a balance remained at the end of the sheriff’s term in the 75% account, the deputies could be paid at the end of the sheriff’s term for any amount they had not received under their authorized salaries, for work actually performed, provided the 75% limitation for the entire term is not exceeded. OAG 69-384 .

Enumeration of categories of necessary office expenses do not place a limit on the meaning and scope of the phrase “necessary office expenses” as stated in Const., § 106 and in this section. OAG 72-644 .

Under this section and KRS 64.345 a portion of the Blue Cross and Blue Shield insurance premiums covering a sheriff and his deputies may be paid out of the 75% account dealt with in Const., § 106. OAG 72-644 .

The expense of providing radio programming to jail prisoners is a “necessary expense” of the office of jailer and circuit and county judges (now county judges/executive) could properly approve such expense, payable out of the 75% account. OAG 73-622 .

In the application of this section, use of the federal decennial census figure for the population of Hardin County, which includes the population of the Fort Knox military complex, is mandated by KRS 64.347 . OAG 74-134 .

The 1974 statutory changes did not change the status of sheriffs, jailers, and county clerks as state officers for purposes of workmen’s compensation. OAG 75-230 .

The question of whether the incumbent sheriff of a county with 75,000 or more population can make claim for payment of advance fees for the execution of process rendered not only during his term but also the terms of his predecessors for the past seven years can be answered only in terms of the accounting systems applicable under KRS 64.345 which requires the sheriff to report and send in monthly the amount of money received or collected to the state treasury from which 25% goes back to the fiscal court under KRS 64.350 and any remaining in the “75%” account after the payment of the expenses of the sheriff’s office expenses, goes back to the fiscal court so it is academic as to who actually earned the fee or performed the service. OAG 75-444 .

Once the sheriff’s total fee for collecting school taxes is properly computed the constitutional test of diversion is met since the constitutional diversion occurs no sooner than the reasonable cost of collection is exceeded, regardless of how much the excess is. OAG 78-146 .

The payment to the urban county government of 25% for the school tax collection fee paid to the sheriff does not constitute an unlawful diversion of school money. OAG 78-146 .

The sheriff has no authority to turn over any part of his fees to anybody except the state treasury and the distribution of the 25% to urban county government occurs solely, under the law, at the state level (through the Finance and Administration Cabinet). OAG 78-146 .

The total cost of collecting school taxes (prior to the 75% and 25% distribution at state level) is strictly constitutional as being an expenditure for school purposes. OAG 78-146 .

Since it appears that deputies and assistants of a county jailer, sheriff and county clerk are covered by the provisions of KRS Chapter 341 pertaining to unemployment compensation and that such coverage must be provided for them, the expenses associated with providing such coverage under the law are necessary expenses of those offices and can be paid pursuant to the provisions of this section from the 75 percent accounts. OAG 79-235 .

Under subsection (1) of this section, any remaining balance in the 75 percent fund shall be paid to the fiscal court or urban county government at the end of the officer’s term; such funds cannot be retained for any reason and must be paid as directed. OAG 79-235 .

Research References and Practice Aids

Cross-References.

Clerks, sheriffs and jailers in counties of 75,000 population to receive salaries and expenses from 75% of fees paid into state treasury, Const., § 106.

64.355. Fees in counties of 70,000 or more are property of respective county — Applicability of KRS 64.368 if population decreases below 70,000.

  1. It is hereby declared to be the intent of the General Assembly that all fees of the office of county clerk and sheriff in counties having a population of seventy thousand (70,000) or more that are paid into the State Treasury pursuant to the provisions of Section 106 of the Constitution of Kentucky are the property of the respective county, and these fees along with those collected by the circuit clerk shall be computed as part of the county’s total tax effort for the purpose of determining credit for any federally funded program.
  2. If a county’s population that equaled or exceeded seventy thousand (70,000) is less than seventy thousand (70,000) after the most recent federal decennial census, then the provisions of KRS 64.368 shall apply.

History. Enact. Acts 1974, ch. 59, § 1; 1976 (Ex. Sess.), ch. 14, § 35, effective January 2, 1978; 1982, ch. 385, § 18, effective July 1, 1982; 1992, ch. 220, § 7, effective January 1, 1994; 2002, ch. 71, § 11, effective July 15, 2002.

NOTES TO DECISIONS

Cited:

Lawrence v. Bushart, 2005 Ky. App. LEXIS 171 (Ky. Ct. App. 2005).

64.360. Clerks, sheriffs and jailers in counties of seventy-five thousand population may require security of depositories. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 104, § 1) was repealed by Acts 1962, ch. 194, § 2.

64.365. Clerks and sheriffs in counties of 75,000 population not liable for default of approved depository.

Clerks and sheriffs who are required under Constitution Section 106 to pay the fees collected by them into the State Treasury are relieved from all liability as insurers of funds that come into their hands or subject to their control after the funds are deposited in good faith in a depository or depositories in the county approved by the fiscal court, and the obligors in the bonds shall not be responsible for loss of, or delay in payment of such funds by reason of the failure or suspension of such depository.

History. Enact. Acts 1962, ch. 194, § 1; 1982, ch. 385, § 19, effective July 1, 1982.

64.368. Clerks and sheriffs in counties whose population drops below 70,000.

If a county clerk and sheriff are operating under the procedures applicable to counties equaling or exceeding populations of seventy thousand (70,000), and after the most recent federal decennial census the county population is less than seventy thousand (70,000), the county clerk and sheriff shall continue to operate and shall continue to be treated in the same manner as if the county’s population equals or exceeds seventy thousand (70,000).

History. Enact. Acts 2002, ch. 71, § 1, effective July 15, 2002.

64.370. Conditions of bond or collateral. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 104, §§ 2, 3) was repealed by Acts 1962, ch. 194, § 2.

64.380. Effect of security on liability of officer and depository, liability when security not taken. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 104, § 4) was repealed by Acts 1962, ch. 194, § 2.

Fee-Bills

64.400. Constable may distrain for fees — Duty concerning.

A constable may distrain for his own fees, or may place his fees in another officer’s hands for collection, and may distrain for other officers’ fees placed in his hands for collection. He shall account for officers’ fees six (6) months after they are placed in his hands.

History. 441.

Research References and Practice Aids

Cross-References.

Powers, duties and liabilities of constables as to claims placed in their hands, KRS 70.340 , 70.350 , 70.390 , 70.400 , 70.990 .

Sheriff may distrain for fee-bills for two years after leaving office, KRS 70.100 .

64.410. How fee-bills made out — Provisions concerning.

  1. The fee-bills of every officer shall be made out at length, in figures and in plain English, and signed by the officer in his official capacity.
  2. No officer shall demand or receive for his services:
    1. Any other or greater fee than is allowed by law;
    2. Any fee for services rendered when the law has not fixed a compensation therefor;
    3. Any fee for services not actually rendered.
  3. Where there are more plaintiffs or defendants than one (1) in an action and they sever in their pleadings or otherwise, so that part of them cause an officer to render separate services for him or them, for which the others ought not to be liable, the fees for such services shall be charged separately to those for whom the service is rendered.
  4. No officer in making out his fee-bill shall omit the name of any person properly chargeable therewith, or insert the name of a person not properly chargeable.
  5. Fees against a person acting in a trust capacity shall be made out against him in such capacity and he shall only be liable therefor to the extent of the trust funds in his hands liable to the payment thereof.
  6. No fee-bill shall be made out, or compensation allowed hereafter, for any ex officio services rendered by any officer.

History. 1749.

NOTES TO DECISIONS

1.Construction.

Where fees were paid the sheriff on written but unsigned fee-bills and where payment of some other fees was directed by the county court without fee-bills this section was directory only and an omission to literally comply with this section did not create liability. Fannin v. Davis, 385 S.W.2d 321, 1964 Ky. LEXIS 158 ( Ky. 1964 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

2.Common Law Rule Discarded.

Common law rule that right of compensation is incidental to title to public office and not to performing functions of same, thereby entitling officer to receive emoluments under the office even though he performs no duties or services providing he does not abandon the office, was discarded upon adoption of the present constitution and the enactment of KRS 61.120 and this section. Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

3.Statutory Compensation.

An officer is not entitled to a fee for services performed for which his statutory compensation has not been fixed. Owen County v. Walker, 141 Ky. 516 , 133 S.W. 236, 1911 Ky. LEXIS 43 ( Ky. 1911 ); Graves County v. Wallace, 144 Ky. 194 , 138 S.W. 306, 1911 Ky. LEXIS 630 ( Ky. 1911 ); Elliott v. Commonwealth, 144 Ky. 335 , 138 S.W. 300, 1911 Ky. LEXIS 626 (Ky. 1911); Elliott v. Commonwealth, 144 Ky. 341 , 138 S.W. 303, 1911 Ky. LEXIS 627 (Ky. 1911); Woodruff v. Shea, 152 Ky. 657 , 153 S.W. 1005, 1913 Ky. LEXIS 722 ( Ky. 1913 ); Ray v. Woodruff, 168 Ky. 563 , 182 S.W. 662, 1906 Ky. LEXIS 277 ( Ky. 1906 ); Mills v. Lantrip, 170 Ky. 81 , 185 S.W. 514, 1916 Ky. LEXIS 21 ( Ky. 1916 ); Allin v. Mercer County, 174 Ky. 566 , 192 S.W. 638, 1917 Ky. LEXIS 21 6 ( Ky. 1917 ); Grinstead v. Carter, 181 Ky. 331 , 204 S.W. 87, 1918 Ky. LEXIS 515 ( Ky. 1918 ); Lewis v. James, 191 Ky. 769 , 231 S.W. 526, 1921 Ky. LEXIS 392 ( Ky. 1921 ); Graves County v. Roach, 197 Ky. 734 , 248 S.W. 175, 1923 Ky. LEXIS 715 ( Ky. 1923 ); Logan County v. Russell, 203 Ky. 592 , 262 S.W. 953, 1924 Ky. LEXIS 958 ( Ky. 1924 ); Dorris v. Logan County, 205 Ky. 152 , 265 S.W. 512, 1924 Ky. LEXIS 70 ( Ky. 1924 ); Nichols v. Board of Education, 232 Ky. 428 , 23 S.W.2d 607, 1930 Ky. LEXIS 18 ( Ky. 1930 ); Harlan County v. Blair, 243 Ky. 777 , 49 S.W.2d 1028, 1932 Ky. LEXIS 193 ( Ky. 1932 ); Baker v. Tedders, 244 Ky. 736 , 52 S.W.2d 715, 1932 Ky. LEXIS 511 ( Ky. 1932 ); Talbott v. Caudill, 248 Ky. 146 , 58 S.W.2d 385, 1933 Ky. LEXIS 206 ( Ky. 1933 ); Taylor v. Scoville, 252 Ky. 809 , 68 S.W.2d 423, 1934 Ky. LEXIS 868 ( Ky. 1934 ); Taylor v. Jones, 253 Ky. 285 , 69 S.W.2d 372, 1934 Ky. LEXIS 648 ( Ky. 1934 ); McNally v. Grauman, 255 Ky. 201 , 73 S.W.2d 28, 1934 Ky. LEXIS 217 (Ky. 1934); Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ); Bates v. Greenup County, 282 Ky. 268 , 138 S.W.2d 463, 1940 Ky. LEXIS 160 ( Ky. 194 0 ); Smothers v. Washington County Fiscal Court, 294 Ky. 35 , 170 S.W.2d 867, 1943 Ky. LEXIS 366 ( Ky. 1943 ); Wilson v. Ball, 323 S.W.2d 840, 1959 Ky. LEXIS 336 ( Ky. 1959 ).

4.— Limitation.

No officer is entitled to demand or receive for the performance of his public duties more than is authorized by law. Webster County v. Nance, 362 S.W.2d 723, 1962 Ky. LEXIS 261 ( Ky. 1962 ).

Where the sheriff did not provide any of the services to the District Court which would give rise to his entitlement to the fees established in subsection (7) of KRS 24A.175 and subdivision (7) of KRS 64.092 , the trial court properly denied the sheriff’s claim to the sums being held for such purposes by the clerk of the Circuit Court. Baskett v. Radcliff, 709 S.W.2d 463, 1986 Ky. App. LEXIS 1131 (Ky. Ct. App. 1986).

5.Form.

Fee-bills are to be made out against those to whom the services have been rendered. Howard v. Commonwealth, 231 Ky. 54 , 20 S.W.2d 1011, 1929 Ky. LEXIS 204 ( Ky. 1929 ).

6.Service Rendered.

An officer is not entitled to fee for services not actually rendered. Ray v. Woodruff, 168 Ky. 563 , 182 S.W. 662, 1906 Ky. LEXIS 277 ( Ky. 1906 ); Wright v. Morris, 212 Ky. 403 , 279 S.W. 631, 1926 Ky. LEXIS 157 ( Ky. 1926 ); Webster County v. Vaughn, 365 S.W.2d 109, 1962 Ky. LEXIS 283 ( Ky. 1962 ).

KRS 69.530 (repealed), construed in the light of subsection (2)(c) of this section and KRS 69.520 (repealed), contemplates the payment of compensation to a prosecuting attorney of a city of the third class only for services rendered in actual prosecution of cases in the police court. Grant v. Winchester, 310 Ky. 417 , 220 S.W.2d 993, 1949 Ky. LEXIS 944 ( Ky. 1949 ).

The prosecuting attorney in a city of the third class is not entitled to receive as compensation 30% of $1.00 penalties paid for violation of parking meter regulations. Grant v. Winchester, 310 Ky. 417 , 220 S.W.2d 993, 1949 Ky. LEXIS 944 ( Ky. 1949 ).

If the county attorney, though not physically present, actually renders some service in the particular case in quarterly court or magistrate’s court, by some means of communication with the court, he is entitled to the fees, and the question of whether or not the written notice has been given is not material. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

7.Overcharges.

Overcharges collected by officer are recoverable. Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ).

8.Excess Receipts.

All of the fees, or portions thereof, may be given to the officer performing the service for the public and if part only is allotted to the officer he is required to pay to the county the excess receipts over and above the amounts allowed for his maximum compensation and reimbursement of his expenses of office, if any. Webster County v. Nance, 362 S.W.2d 723, 1962 Ky. LEXIS 261 ( Ky. 1962 ).

9.Absence of Officer.

In light of KRS 61.120 this section as enacted in conformity to Ky. Const., §§ 42, 97, 98, 106, 108 and 235, Commonwealth’s Attorney was not entitled to receive emoluments of office while absent therefrom in army. Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

10.Justice of Peace.

Fees collected by a justice of the peace do not belong to him personally but represent the charges which the county makes for services rendered through him as an officer and constitute a fund subject to the control of the county. Webster County v. Nance, 362 S.W.2d 723, 1962 Ky. LEXIS 261 ( Ky. 1962 ).

Where a county fiscal court could not justify paying at least $9,600 to each of its three (3) justices of the peace based upon the present absence of public services performed by them, the solution would be for the magistrates to request the General Assembly to either increase the duties of those not serving on a fiscal court, or, in the alternative for fiscal court, to be permitted to establish a salary below $9,600 in line with services actually performed. Roland v. Jefferson County Fiscal Court, 599 S.W.2d 469, 1980 Ky. App. LEXIS 320 (Ky. Ct. App. 1980).

11.Collateral Attack.

Allowance of fee for services for which statutory compensation has not been fixed is void and subject to collateral attack. Elliott v. Commonwealth, 144 Ky. 335 , 138 S.W. 300, 1911 Ky. LEXIS 626 ( Ky. 1911 ); Elliott v. Commonwealth, 144 Ky. 341 , 138 S.W. 303, 1911 Ky. LEXIS 627 ( Ky. 1911 ); Logan County v. Russell, 203 Ky. 592 , 262 S.W. 953, 1924 Ky. LEXIS 958 ( Ky. 1924 ); Dorris v. Logan County, 205 Ky. 152 , 265 S.W. 512, 1924 Ky. LEXIS 70 ( Ky. 1924 ); Taylor v. Jones, 253 Ky. 285 , 69 S.W.2d 372, 1934 Ky. LEXIS 648 ( Ky. 1934 ); Goodlett v. Anderson County, 267 Ky. 166 , 101 S.W.2d 421, 1936 Ky. LEXIS 761 ( Ky. 1936 ).

12.Ex Officio Duties.

Subsection (6) recognizes right of Legislature to impose new ex officio duties upon a public officer, without compensation. Greene v. Cohen, 181 Ky. 108 , 203 S.W. 1077, 1918 Ky. LEXIS 501 ( Ky. 1918 ); Lewis v. James, 191 Ky. 769 , 231 S.W. 526, 1921 Ky. LEXIS 392 ( Ky. 1921 ); Smothers v. Washington County Fiscal Court, 294 Ky. 35 , 170 S.W.2d 867, 1943 Ky. LEXIS 366 ( Ky. 1943 ).

Where no compensation is fixed by statute for services rendered by an officer, and where the services are ex officio, the officer is entitled to make no charge by way of fee-bill, or on account of necessarily entailed expenses. Fulton v. Shanklin, 275 Ky. 772 , 122 S.W.2d 733, 1938 Ky. LEXIS 490 ( Ky. 1938 ).

Cited:

Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ); Polston v. King, 965 S.W.2d 143, 1998 Ky. LEXIS 34 ( Ky. 1998 ).

Opinions of Attorney General.

Where the circuit clerk does not attend to the collecting of fines imposed by the county judge (now county judge/executive) but which were not reported to the circuit clerk nor make out the reports on such fines, nor forward them to the state, he is not entitled to the 5% allowed by subsection (2) of KRS 28.180 (now repealed). OAG 61-409 .

Where a county judge (now county judge/executive) appointed his wife to serve as juvenile officer at a salary although she performed no services, the judge had an indirect interest in a contract or claim against the county contrary to KRS 61.220 . OAG 61-527 .

A magistrate or constable cannot properly charge a collection fee which is in excess of the charges permitted for the simple writing of a warrant. OAG 65-403 .

A mayor, even though he had qualified as such, would not be entitled to the emoluments of the office where he had never performed any of the duties of the office. OAG 66-69 .

Where the county attorney does not personally participate in the prosecution but has another attorney, not an assistant county attorney, acting in his behalf, the county attorney could not collect the statutory fees. OAG 66-382 .

Fees earned by the county clerk who resigned must be paid to him instead of to his successor. OAG 67-442 .

Under subsections 2(a) and 2(b) of this section, it is unlawful for a constable in Fayette County to conduct the inspection of out-of-state motor vehicles required by subsection (1) of KRS 186.235 (now repealed) and collect a fee therefor. OAG 67-496 .

A chief of police is not authorized to receive additional fees or a percentage of the taxes collected for acting as tax collector. OAG 68-16 .

Where, due to incapacitating illness, the regular judge was unable to return to his duties following his statutory vacation and a pro tem judge served in his place, if the regular judge continued to receive his salary during his illness his estate was liable to the county for the money except for that received for the vacation period. OAG 69-660 .

Where a pro tem judge was appointed to serve during the regular judge’s statutory vacation and continued to serve due to the regular judge’s incapacitating illness, the fiscal court was legally responsible for paying the county judge pro tem for his services in that capacity for the period of time he served. OAG 69-660 .

Where the regular police judge of a fourth-class city has been ill and unable to perform his duties for a reasonable period of time, the city would not be compelled to pay the regular judge for services not performed, especially when the regular judge has appointed a pro tem judge to take his place. OAG 72-164 .

Section would prohibit a constable from collecting a fee for service of summons when the defendant could not be found and served. OAG 72-437 .

County attorney may not collect a fee for processing support payments under the Uniform Support of Dependents Act. OAG 72-485 .

Salaried city policemen have no authority to demand the sheriff’s arresting fee and the illegal arresting fees can be recovered by the city in an action against the policemen on behalf of the person who originally paid the fees. OAG 73-197 .

The arresting fee for a sheriff serving process or arresting a party in a misdemeanor case in a fifth-class city where the defendant is convicted is seven dollars ($7) but if a city policeman or a state trooper makes such an arrest, he is not entitled to an arresting fee. OAG 74-49 .

Chief of police of fifth-class city, who is entitled to a salary plus arresting fees, may not claim the arresting fee where state trooper makes the arrest. OAG 74-188 .

A sheriff cannot receive compensation or a fee for guarding the jury overnight and for several days and nights as there is no statute expressly authorizing such compensation. OAG 74-309 .

Where the coroner retains a copy of the report of his inquest and makes copies of it for interested persons, there is no statutory basis for a coroner’s fee. OAG 75-248 .

Although subsequent to January 2, 1978 persons may still be elected to the office of justice of the peace and justices of the peace would retain any nonjudicial powers found in the statutes, in a county having the commissioner type of government in 1978 there are practically no authorized statutory functions for a justice of the peace and since performance of some statutory duties is necessary to entitle justices of the peace to compensation and expense allowances in 1978, payment of any compensation or expense allowance to such justices not serving on fiscal courts would raise a serious constitutional question. OAG 77-133 .

To the extent that any salary paid to constables under KRS 64.200 would not reflect payment for services rendered, such payment would be unconstitutional and in violation of this section. OAG 77-257 .

Where the county jail was condemned and closed and the incumbent county jailer performed only janitorial services at the courthouse but had no duties in relation to keeping prisoners since they were housed in jail facilities in surrounding counties the payment of any portion of such jailer’s salary not reflecting services actually rendered would be illegal. OAG 77-523 .

This section contemplates the use of tax money to pay public officials only for services actually rendered. OAG 78-206 .

Where a police officer was on work-related disability for approximately one (1) year and, consequently, rendered no public service during that period since he did not work in his capacity as a city police officer, he was not entitled to paid annual leave time for that period of time. OAG 78-206 .

The fiscal court can approve the payroll prior to the actual pay period so that the clerk can issue checks without having to wait for the next fiscal court meeting for approval as long as, at the time the checks are actually issued and delivered to the county employees, the checks relate only to services actually performed prior to the issuance and delivery of the checks to the payees. OAG 78-248 .

Any practice of making full or partial payments on state personal service contracts in advance of the actual and full performance of the contract is unconstitutional. OAG 80-38 .

A city employee cannot, in lieu of receiving the fringe benefit of a Blue Cross, Blue Shield hospital insurance policy paid for by the city, receive the cash value of the insurance policy as salary. OAG 80-276 .

The county clerks have to charge one (1) uniform fee for release of real estate mortgages; it has to be precisely the fee authorized under KRS 64.012 and the clerks cannot vary that fee. OAG 80-484 .

A county sheriff or local police officer cannot be paid an arrest fee and transportation expenses for arresting and transporting a member of the National Guard pursuant to a “Warrant of Arrest on Military Charges.” OAG 83-487 .

Where fiscal court magistrates served on a number of boards and committees, but none of these boards or committees were official committees of the fiscal court, no part of the expense allowance provided by KRS 64.530(6) could be paid since such moneys can only be expended in consideration for public services. OAG 84-71 .

Research References and Practice Aids

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky Counties, 40 Ky. L.J. 275 (1952).

64.420. Collection of fees after death of officer.

  1. Except as otherwise provided in KRS 64.050 , if any officer dies before making out a fee-bill or collecting his fees, his deputy, or, if none, his personal representative, may, within two (2) years after the services were rendered, make out and sign a fee-bill therefor, and may list the fee-bill in due time for collection with the proper officer, and the fee-bill shall be collectible and distrainable as if issued by the deceased officer in his lifetime.
  2. Any person against whom an illegal fee-bill is made by a deputy or personal representative shall be entitled to the same remedies against such deputy or personal representative as are given against an officer.
  3. If any person against whom a fee-bill is issued under this section makes an affidavit that the fee was paid to the officer in his lifetime, and produces the affidavit to the officer having the fee-bill for collection, such officer shall forthwith return the fee-bill and affidavit to the person who issued it, and the same shall thereafter be collectible by action only, as other debts.

History. 1750: amend. Acts 1962, ch. 210, § 11.

64.430. Fee-bills due and distrainable, when.

  1. All fees are due and payable within two (2) months after the services are rendered.
  2. The fee for the attendance of a witness may be distrained for immediately after it is due, and shall retain its distrainable power for three (3) years, after which it shall only be collectible as other debts of like quality.
  3. The fees of all officers shall be distrainable on and after January 1 next ensuing the rendition of the services; and whether an officer lists the same or not, it shall retain its distrainable force for three (3) years, after which it shall only be collectible as other debts of like quality.
  4. When the officer rendering the services makes an affidavit on the back of the fee-bill that the person it is against is about to leave the state with his effects, or that he intends and is about to fraudulently sell or dispose of his effects with the intent of hindering and delaying his creditors in the collection thereof, the officer’s fees may be distrained for immediately after the services are rendered.

History. 1751, 1753.

NOTES TO DECISIONS

1.Performance of Duty.

Officer may not refuse to perform duties on ground that his fees may not be paid. Jeffers v. Taylor, 178 Ky. 392 , 198 S.W. 1160, 1917 Ky. LEXIS 740 ( Ky. 1917 ).

2.Transcripts.

Delivery of transcripts without payment or security may be compelled, but the court will not issue rule to aid one able to pay to obtain record without payment of fees. Duncan v. Baker, 76 Ky. 514 , 1877 Ky. LEXIS 99 ( Ky. 1877 ).

If a clerk refuses or unreasonably delays making out a transcript, he is liable for damages on his bond. Bates v. Foree, 67 Ky. 430 , 1868 Ky. LEXIS 159 ( Ky. 1868 ).

Opinions of Attorney General.

In view of KRS 64.340 , where a misdemeanor defendant is not convicted, or the case does not proceed to judgment, a sheriff has no statutory means for collecting his fees and, since such fees are uncollectible, he is not accountable for them. OAG 75-393 .

Where a misdemeanor defendant is convicted but never pays the costs, including the sheriff’s fees, the sheriff, as a fee officer, is accountable in his audit for such uncollected fees unless he shows to the auditor that he took all reasonable and practical means to collect such fees, although the statutes do not make the sheriff an insurer of the collection of fees legally due and payable. OAG 75-393 .

There is no statute mandating that the county clerk collect the fees accruing to that office at precisely the time when the services are fully performed. OAG 80-618 .

Research References and Practice Aids

Cross-References.

Sheriff may distrain for fee-bills two years after term, KRS 70.100 .

64.440. Demand must be made before distress.

No distress shall be made for any fee-bill until the same is exhibited to and a demand of payment thereof is made from the person it is against.

History. 1752.

64.450. Action against officer issuing illegal fee-bill.

An officer who issues a fee-bill that contains any illegal or improper item or item for services not rendered, or that omits the name of any of the parties legally chargeable therewith or that issues for a fee against any person not legally chargeable with the same, or that has been paid, or does not strictly comport in every particular with the laws in respect to fee-bills, shall be liable to an action at the suit of any person upon whose property a distraint is made by virtue of such fee-bill. No officer issuing such fee-bill shall, in defense of such action, justify under the fee-bill. In such action the finding of the jury shall not be less than three (3) times the amount of the fee-bill.

History. 1757.

NOTES TO DECISIONS

1.Parties Permitted Recovery.

There can be no doubt that each of the defendants whom the justice of the peace overcharged could recover from him the amount of the excess. Webster County v. Nance, 362 S.W.2d 723, 1962 Ky. LEXIS 261 ( Ky. 1962 ).

Research References and Practice Aids

Cross-References.

Illegal return on fee-bill, action against sheriff for, KRS 70.990 .

64.460. Illegal fee-bill may be examined by Circuit Judge — Proceedings.

  1. Any person who pays any fee-bill or claim for fees which he believes contains an erroneous, improper or illegal item, or charge for services not actually rendered, or does not comport with the law in every respect, may hand the fee-bill to the Circuit Judge of the county in which he resides, and if there is any item in the fee-bill not authorized by law or if it does not comport with the law in every respect, the Circuit Judge shall quash the fee-bill, and order the officer to repay the amount of the fee-bill to the person who paid it, and pay the costs of the proceeding.
  2. The judge shall enter a fine against the officer who issued the fee-bill, in favor of the person aggrieved, of not less than one dollar ($1.00) nor more than four dollars ($4.00) for each illegal item contained therein. The production of the fee-bill by the party charged shall be prima facie evidence of its payment.
  3. If the judge is of the opinion that there is no improper charge or illegal item in the fee-bill, he shall restore it to the person placing it in his hands, without costs or expense.
  4. A fieri facias, indorsed that no surety is to be taken, may issue in behalf of the person aggrieved for all the sums and costs adjudged under this section.
  5. Before any judgment is entered under the provisions of this section, the defendant in the proceeding must be given at least two (2) days’ notice thereof by rule or otherwise.

History. 1758: amend. Acts 1976 (Ex. Sess.), ch. 14, § 36.

NOTES TO DECISIONS

1.Application.

Since the statutes do not provide for writ of fieri facias in civil cases in favor of an officer on a fee-bill, and this section and KRS 64.470 do not apply to such writs, except when the judge pursuant to KRS 453.200 indorses the execution in favor of the officer. Taylor v. Sowards, 225 Ky. 567 , 9 S.W.2d 709, 1928 Ky. LEXIS 820 ( Ky. 1928 ).

2.Writ of Prohibition.

Defendant in proceding hereunder may procure writ of prohibition when trial judge is about to act erroneously within his jurisdiction and there is no other remedy, and great injustice or irreparable injury will ensue from the decision of the lower court if the writ is denied. Buechel v. Field, 202 Ky. 298 , 259 S.W. 353, 1924 Ky. LEXIS 701 ( Ky. 1924 ).

3.Fine for Illegal Items.

This section authorizes the court in which a justice of the peace serves to impose a fine for each illegal item in a bill of costs. Webster County v. Nance, 362 S.W.2d 723, 1962 Ky. LEXIS 261 ( Ky. 1962 ).

4.Costs Questioned.

This section provides the sole method whereby costs may be questioned. But where the amount of the costs has been adjudicated and voluntarily paid, the sole remedy is by a proceeding to correct the judgment. Commonwealth use of Bouteiller v. Ray, 275 Ky. 758 , 122 S.W.2d 750, 1938 Ky. LEXIS 496 ( Ky. 1938 ).

5.Procedure.

In action against sheriff for allegedly illegal fee bills, no formal pleadings were required since the total procedure consists of presenting the fee bill to the circuit judge. Lamar v. Office of Sheriff, 669 S.W.2d 27, 1984 Ky. App. LEXIS 499 (Ky. Ct. App. 1984).

Representative of purported class in action challenging legality of fee bills failed to adhere to this requirement of the statute by handing the complaint to the circuit judge. Lamar v. Office of Sheriff, 669 S.W.2d 27, 1984 Ky. App. LEXIS 499 (Ky. Ct. App. 1984).

6.— Strict Compliance Required.

This section provides the exclusive proceeding that the legislature has made available to compel repayment of illegal amounts charged for fees such as those with which the courts are concerned; it is a summary proceeding and its provisions must be strictly adhered to. Lamar v. Office of Sheriff, 669 S.W.2d 27, 1984 Ky. App. LEXIS 499 (Ky. Ct. App. 1984).

64.470. Remedy for distress for illegal fee-bill.

  1. If distraint is made upon the property of a person for a fee-bill that has any unjust or improper charge or item therein, or any item not made out in every respect agreeably to the requirements of law, the person may apply to the officer making the distraint for an exact copy of the fee-bill, and the officer shall make out and deliver the same to such person forthwith.
  2. Upon receipt of such copy, the person on whom the distraint is made may present it to the circuit judge of the county of his residence, and if, on inspection thereof, the judge is of the opinion that the fee-bill contains any unjust item, or item not made out in every respect according to the requirements of law, he shall, by written indorsement thereon, order the officer to stay proceedings under the distraint until the matter is determined in court.
  3. Upon the receipt of the order, the officer who made the distraint shall obey it, restore the property distrained to the owner, and return the fee-bill and copy with the judge’s order thereon to the circuit clerk’s office of his county, with the facts of the case indorsed on the fee-bill.
  4. The officer who issued the fee-bill shall be notified as directed in subsection (5) of KRS 64.460 .
  5. The court shall quash the fee-bill, and render judgment against the officer issuing the same for the amounts and in the manner stated in KRS 64.460 , and execution may issue therefor.

History. 1759: amend. Acts 1976 (Ex. Sess.), ch. 14, § 37, effective January 2, 1978.

NOTES TO DECISIONS

1.Application.

The statutes do not provide for writ of fieri facias in civil cases in favor of an officer on a fee-bill, and this section and KRS 64.460 do not apply to such writs, except when the judge pursuant to KRS 453.200 indorses the execution in favor of the officer. Taylor v. Sowards, 225 Ky. 567 , 9 S.W.2d 709, 1928 Ky. LEXIS 820 ( Ky. 1928 ).

Compensation of Public Officers and Employees Generally

64.475. Executive Branch Compensation Advisory Council — Organization — Staff — Duties — Recommendations.

  1. There is hereby established an advisory council to be known as the Executive Branch Compensation Advisory Council.
    1. The council shall consist of three (3) voting members: the state budget director, the secretary of the Governor’s Executive Cabinet, and the secretary of the Finance and Administration Cabinet.
    2. The state budget director shall serve as the chair of the council.
    3. If a voting member is unable to attend a meeting of the council, he or she shall designate, in writing, a member of his or her staff to attend in his or her place, and such designation shall confer on such designee, for that meeting only, the authority to act, including the right to vote on any matter coming before the council.
  2. The council shall be attached to the Personnel Cabinet for administrative purposes. Personnel Cabinet staff shall provide necessary administrative and operational support for the council. The council may, from time to time, utilize the services of professional and technical personnel employed by other agencies of state government, if the need arises. The council shall meet on a quarterly basis at a time and place to be determined by the council. Additional meetings may be called upon request of two (2) voting members of the council.
  3. The duties of the council shall include the following:
    1. Advise and make recommendations to the secretary of the Personnel Cabinet on appropriate salaries for the following:
      1. The heads of the various departments in the executive branch of state government, with the exception of:
        1. Departments headed by constitutionally elected officers;
        2. The Department of Education;
        3. The Council on Postsecondary Education; and
        4. The Kentucky Authority for Educational Television;
      2. The heads of offices, as defined in KRS 12.010 ;
      3. The administrative heads of boards and commissions and for their employees, if they are not covered by the salary schedules set forth in KRS Chapter 16, KRS Chapter 18A, or KRS Chapter 151B, notwithstanding any other statute to the contrary empowering a board, commission, authority, or other administrative body for which the Personnel Cabinet provides personnel and payroll services except for any board governing any of the Kentucky Retirement Systems, the County Employees Retirement System, the Kentucky Public Pensions Authority, the Kentucky Higher Education Assistance Authority, the Kentucky Authority for Educational Television, or the Council on Postsecondary Education to establish, set, or approve the salaries of its administrative head and other employees;
      4. Requests from boards, commissions, or cabinet heads to approve salary increases in excess of those increases provided other state employees to individuals in the positions listed in paragraphs (a), (b), and (c) of this subsection;
    2. Advise the secretary of the Personnel Cabinet on requests from agencies to establish or abolish a separate salary schedule, or schedules, reflective of the marketplace need to recruit and hire classified employees in technical or professional fields when the classified service salary schedule is inadequate. A positive recommendation of such requests shall not be granted unless significant credible evidence exists of a job market shortage and an inadequacy of the classified or unclassified salary schedules to recruit and retain competent, qualified applicants for such positions; and
    3. Recommend that the Personnel Cabinet conduct salary surveys of the executive branch positions outlined in subsection (3)(a)1., 2., and 3. of this section, using state governments in the seven (7) states contiguous to the Commonwealth, other states in the southeastern United States, and private sector employers, where appropriate.
  4. The council’s recommendations shall:
    1. Take into consideration the provisions of KRS 64.640 , if the specific position in question is subject to the provisions of KRS 64.640 ; and
    2. Not take into consideration the provisions of KRS 64.640, if the specific position in question is exempt from the provisions of KRS 64.640.

History. Enact. Acts 2000, ch. 495, § 1, effective July 14, 2000; 2020 ch. 79, § 29, effective April 1, 2021.

64.480. Compensation of elective state officers — Adjustment of salaries.

  1. Effective, with respect to the offices of Governor on December 11, 1979, and Lieutenant Governor on the fifth Tuesday following the regular November election in 1975, and with respect to the other offices named in this section on the first Monday in January, 1976, the compensation of the following named officers, payable monthly out of the State Treasury, shall be the sum per annum designated for the respective offices, as follows: Governor, forty-five thousand dollars ($45,000) until December 11, 1981, then fifty thousand dollars ($50,000) until December 13, 1983, and then sixty thousand dollars ($60,000) until January 1, 1985; Lieutenant Governor, twenty-seven thousand nine hundred dollars ($27,900) per annum, plus any compensation received while acting in the place of the Governor; Attorney General, Commissioner of Agriculture, Secretary of State, State Treasurer, Auditor of Public Accounts, and clerk of the Supreme Court of Kentucky elected in November, 1975, as clerk of the Court of Appeals, twenty-seven thousand nine hundred dollars ($27,900).
  2. In order to equate or adjust the compensation of the Lieutenant Governor, Attorney General, Commissioner of Agriculture, Secretary of State, State Treasurer, Auditor of Public Accounts, and clerk of the Supreme Court of Kentucky with the purchasing power of the 1949 dollar, the Department for Local Government of Kentucky shall compute by the second Friday in February of every year, beginning in 1977, the maximum permissible compensation of the officials mentioned in this subsection based precisely upon the consumer price index formula approved in Matthews v. Allen, Kentucky, 360 S.W.2d 139 (1962). Thus the maximum permissible compensation effective for the entire year of 1977 and subsequent years will be the actual compensation to be paid said officials. The year of adjustment will be the particular full calendar year involved.
  3. It is the intention of the Legislature that the constitutionally permissible adjustment of salaries of these officials be framed around equating current salaries with the purchasing power of the dollar in 1949 when Section 246 of the Constitution of Kentucky was amended. Section 246 of the Constitution of Kentucky, as amended, established a monetary level of twelve thousand dollars ($12,000) per annum for said officials. The formula merely effects an adjustment of the constitutional monetary level in terms of the current consumer price index.
  4. In order to adjust the compensation of the Governor to reflect changes in the purchasing power of the dollar, the Department for Local Government shall compute by the second Friday in February of every year, beginning in 1985, an adjusted salary of the Governor by multiplying sixty thousand dollars ($60,000) by the increase in the consumer price index during the period from January 1, 1984, to the beginning of the then-current calendar year. The actual compensation paid to the Governor for the entire calendar year of 1985 and subsequent years shall be the adjusted salary.

History. Enact. Acts 1950, ch. 123, § 1; 1954, ch. 176; 1958, ch. 50; 1966, ch. 38, § 1; 1972, ch. 22, § 2; 1976, ch. 83, § 15, effective March 29, 1976; 1978, ch. 155, § 57, effective June 17, 1978; 1978, ch. 384, § 581, effective June 17, 1978; 1978, ch. 386, § 1, effective June 17, 1978; 1982, ch. 328, § 1, effective July 15, 1982; 1986, ch. 374, § 20, effective July 15, 1986; 1992, ch. 27, § 5, effective March 2, 1992; 1994, ch. 486, § 20, effective July 15, 1994; 1998, ch. 69, § 25, effective July 15, 1998; 2007, ch. 47, § 36, effective June 26, 2007; 2010, ch. 117, § 42, effective July 15, 2010.

NOTES TO DECISIONS

1.Construction.

The treasurer’s salary as fixed by this section was not changed by the biennial budget appropriation bills. Dishman v. Coleman, 244 Ky. 239 , 50 S.W.2d 504, 1932 Ky. LEXIS 397 ( Ky. 1932 ).

KRS 64.480 to 64.760 (KRS 64.760 , now repealed) did not impliedly repeal KRS 89.250 (now repealed) relating to initiative procedure in cities operating under the commission form of government. Maysville v. Kenton, 252 S.W.2d 39, 1952 Ky. LEXIS 976 ( Ky. 1952 ), overruled, Newport v. Gugel, 342 S.W.2d 517, 1960 Ky. LEXIS 95 ( Ky. 1960 ).

2.Limit on Compensation.

Under KRS 64.480 to 64.760 (KRS 64.760 , now repealed) and the amendment to Const., § 246 compensation up to $7,200 per annum is authorized to be fixed for local officers. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

3.Power of Local Bodies.

KRS 64.480 to 64.760 (KRS 64.760 , now repealed) gave the legislative bodies of various political subdivisions the power and duty to fix the salaries of officials who served that unit, limit the number and amount of salaries of deputies and assistants, and generally to control or define proper expenditures to be made in connection with the operation of the office. Wilson v. Ball, 323 S.W.2d 840, 1959 Ky. LEXIS 336 ( Ky. 1959 ).

4.Increase During Term.

Nothing in KRS 64.480 to 64.760 (KRS 64.760 , now repealed) is intended to authorize an increase in the compensation of any officer in office on June 30, 1950, during his term except where these sections make such an increase or where the public officer or body having authority under these sections to fix the compensation or the limits of compensation takes specific action to make such increase. Farnsley v. Henderson, 240 S.W.2d 82, 1951 Ky. LEXIS 951 ( Ky. 1951 ).

5.Jefferson County Commissioners.

KRS 64.480 to 64.760 (KRS 64.760 , now repealed) affirmatively state that no change was being made in the salaries of Jefferson County commissioners. Shamburger v. Duncan, 253 S.W.2d 388, 1952 Ky. LEXIS 1090 ( Ky. 1952 ).

Cited:

Harlan v. Sawyers, 290 S.W.2d 488, 1956 Ky. LEXIS 327 ( Ky. 1956 ); Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ); Veith v. Louisville, 355 S.W.2d 295, 1962 Ky. LEXIS 64 ( Ky. 1962 ); Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

Opinions of Attorney General.

An increase of the Lieutenant Governor’s salary as provided for in the 1972 amendment to this section by Acts 1972, chapter 22, is considered a salary adjustment and not a salary change and is, therefore, not prohibited by Const., § 235 as it conforms to the consumer price index when the amendment was passed. OAG 72-567 .

Following the 1980 adjustment, the maximum compensation permissible for constitutional officers who are in the $12,000 limit category mentioned in Const., § 246 would be $38,640. OAG 80-74 .

The officers listed in subsection (2) of this section must be paid the maximum permissible under “rubber dollar.” OAG 80-74 .

Although state officials must, under this section, receive the maximum indexed compensation figure, under KRS 15.755 and 15.765 , the maximum compensation of the Commonwealth’s Attorneys and county attorneys is not mandated. OAG 82-80 .

The Governor’s salary for 1988 was $68,364. OAG 88-10 .

The maximum annual compensation for the Lieutenant Governor, Attorney General, Superintendent of Public Instruction, Commissioner of Agriculture, Secretary of State, State Treasurer, Auditor of Public Accounts, and clerk of the Supreme Court of this Commonwealth was $58,101. OAG 88-10 .

The maximum annual compensation possible for the Lieutenant Governor, Attorney General, Superintendent of Public Instruction, Commissioner of Agriculture, Secretary of State, State Treasurer, Auditor of Public Accounts and Clerk of the Supreme Court of Kentucky for 1990 would be $63,462. OAG 90-17 .

The Department of Local Government accurately computed the maximum annual compensation for the Lieutenant Governor, Attorney General, Superintendent of Public Instruction, Commissioner of Agriculture, Secretary of State, Treasurer, Auditor of Public Accounts, and Clerk of the Supreme Court, as $67,378 for 1991. OAG 91-29 .

The Department of Local Government is required to compute, by the second Friday in February of every year, beginning in 1985, an adjusted salary of the Governor; such computation is to be made by multiplying the base compensation of sixty thousand ($60,000), by the increase in the CPI during the period from January 1, 1984, to the beginning of the then-current calendar year (here 1991), and the Department computed accurately the Governor’s maximum annual compensation for 1991 as $79,255. OAG 91-29 .

Pursuant to subsection (4) of this section, the Department of Local Government is required to compute, by the second Friday in February of every year, beginning in 1985, an adjusted salary of the Governor; such computation is to be made by multiplying the base compensation of sixty thousand ($60,000), by the increase in the CPI during the period from January 1, 1984, to the beginning of the then-current calendar year. OAG 92-27 .

For an opinion verifying the accuracy of computations to be used in adjusting salaries of constitutional officers in relation to changes in the Consumer Price Index, see OAG 93-21 .

For the adjustments to salaries of constitutional officers in relation to changes in the Consumer Price Index salary adjustment computations and therefore, the maximum annual compensation allowable by law for such positions in 1994 see OAG 94-7 .

For the adjustments to salaries of constitutional officers in relation to change in the Consumer Price Index salary adjustment computations and therefore, the maximum annual compensation allowable for such positions in 1995 see OAG 95-5 . OAG 95-5 .

Research References and Practice Aids

Cross-References.

Attorney General to be paid by salary only, Const., § 96.

Fees of Attorney General to be covered into state treasury, Const., § 93.

Fees of Treasurer to be covered into state treasury, Const., § 93.

Governor to be paid by salary only, Const., § 96.

Governor’s compensation to be fixed by law, Const., § 74.

Lieutenant Governor, compensation for services as President of the Senate, and while acting as Governor, Const., § 86, KRS 6.190 .

Lieutenant Governor’s compensation for services as member of Legislative Research Commission, KRS 7.090 .

Limit on compensation of public officers, Const., § 246.

Per diem of Lieutenant Governor as President of the Senate, KRS 6.190 .

Secretary of State, compensation as member of State Board of Elections, KRS 117.015 .

Superintendent of Public Instruction to be paid by salary only, Const., § 96.

Treasurer to be paid by salary only, Const., § 96.

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 1, (1) at 852.See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 16, (2) at 857.See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 19, (7) at 858.See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 21, (2) at 859.See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 22, (3) at 860.See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 23, (4) at 860.See Judicial Branch Budget, 2020 Ky. Acts ch. 96, Pt. I, A, 1, a, (5) at 1142.

64.485. Salaries of Justices and Judges of Court of Justice — Adjustments for changes in consumer price index — Limits. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 83, § 18, effective July 1, 1976; 1980, ch. 407, § 1, effective July 1, 1980; 1982, ch. 449, § 13, effective July 15, 1982; 1986, ch. 374, § 21, effective July 15, 1986) was repealed by Acts 1994, ch. 134, § 9, effective July 1, 1994. For present law, see KRS 48.195 .

64.486. Salary supplements for Chief Justice and chief judges.

In addition to the salary provided for in KRS 48.195 as adjusted by salary increments the General Assembly may from time to time provide, the Chief Justice of the Supreme Court, the Chief Judge of the Court of Appeals, the chief regional Circuit Judges, and the chief regional District Judges shall receive the following salary supplements per annum establishing a total salary differential of: five thousand dollars ($5,000), Chief Justice, Supreme Court; three thousand dollars ($3,000), Chief Judge, Court of Appeals; and one thousand dollars ($1,000), chief regional Circuit and District Judges, over other justices and judges of their courts respectively.

History. Enact. Acts 1990, ch. 475, § 1, effective July 13, 1990; 1994, ch. 134, § 7, effective July 1, 1994.

Compiler’s Notes.

Acts 1990, ch. 475, § 2, provided: “The salary supplements provided for in Section 1 of this Act do not apply to the current terms of office of the Chief Justice of the Supreme Court, Chief Judge of the Court of Appeals, and chief regional circuit and district judges. The salary supplements shall begin with the next succeeding term of office of the Chief Justice of the Supreme Court, the Chief Judge of the Court of Appeals, and the chief regional circuit and district judges.”

64.490. Compensation of additional Court of Appeals Commissioners. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 4) was repealed by Acts 1962, ch. 210, § 50.

64.495. Compensation of judges and commissioners of the Court of Appeals. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 23) was repealed by Acts 1954, ch. 234, § 2.

64.496. Compensation of judges and commissioners of the Court of Appeals. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 234, § 1; 1960, ch. 84, Art. II) was repealed by Acts 1963 (3rd Ex. Sess.), ch. 2, § 5.

64.497. Salaries of judges of the Court of Appeals. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1963 (3rd Ex. Sess.), ch. 2, §§ 2, 3; repealed and reen. Acts 1968, ch. 197, §§ 1, 2, 4; 1972, ch. 336, § 1; 1974, ch. 61, § 2; 1976, ch. 83, § 16, effective March 29, 1976) was repealed by Acts 1980, ch. 407, § 26, effective July 1, 1980.

64.498. Compensation of circuit judges. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 25, § 1) was repealed by Acts 1963 (3rd Ex. Sess.), ch. 2, § 5.

64.499. Compensation of circuit judges. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1963 (3rd Ex. Sess.), ch. 2, § 4; repealed and reen. Acts 1968, ch. 197, §§ 3, 4; 1972, ch. 336, § 2; 1974, ch. 61, § 1; 1976, ch. 83, § 17, effective July 1, 1976) was repealed by Acts 1980, ch. 407, § 26, effective July 1, 1980.

64.500. Expenses of circuit judges. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 5; 1958, ch. 25, § 2; 1976, ch. 62, § 61) was repealed by Acts 1976, ch. 83, § 19, effective March 29, 1976.

64.502. Construction of KRS 64.500. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 25, § 3; 1968, ch. 152, § 31) was repealed by Acts 1976, ch. 83, § 19, effective March 29, 1976.

64.505. Expenses allowed certain circuit judges — Claims for, how made. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 45; 1962, ch. 210, § 12; 1976, ch. 62, § 62) was repealed by Acts 1976, ch. 83, § 19, effective March 29, 1976.

64.507. Salary of district judges. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 28, § 14) was repealed by Acts 1980, ch. 407, § 26, effective July 1, 1980.

64.510. Compensation of commonwealth’s attorneys. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 7; 1966, ch. 26, § 6; 1966, ch. 255, § 71; 1968, ch. 152, § 32; 1974, ch. 254, § 3; 1974, ch. 318, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 17, § 52, effective January 1, 1978. For present law, see KRS 15.755 .

64.515. Expenses of commonwealth’s attorney. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 37, § 1; 1962, ch. 261, § 1; 1970, ch. 129, § 1; 1974, ch. 192, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 17, § 52, effective January 1, 1978. For present law, see KRS 15.755 .

64.518. Compensation of assistants and stenographers of commonwealth’s attorney in counties of 200,000. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 255, § 72; 1968, ch. 149, § 1; 1976, ch. 62, § 63) was repealed by Acts 1976 (Ex. Sess.), ch. 17, § 52, effective January 1, 1978. For present law, see KRS 15.755 .

64.520. Compensation of assistants, stenographers and circuit detectives for commonwealth’s attorneys. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 8; 1954, ch. 236, § 1; 1966, ch. 255, § 73; 1976, ch. 62, § 64) was repealed by Acts 1976 (Ex. Sess.), ch. 17, § 52, effective January 1, 1978. For present law, see KRS 15.755 .

64.525. Compensation of circuit detectives. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 255, § 74; 1972, ch. 45, § 1; 1972, ch. 249, § 1; 1976, ch. 62, § 65) was repealed by Acts 1976 (Ex. Sess.), ch. 17, § 52, effective January 1, 1978. For present law, see KRS 15.755 .

64.527. Annual computation of consumer price index for determination of rate of adjustment of compensation of certain elected county officials.

In order to equate the compensation of jailers who do not operate full service jails, constables in counties having an urban-county form of government, justices of the peace, county commissioners, and coroners with the purchasing power of the dollar, the Department for Local Government shall compute by the second Friday in February of every year the annual increase or decrease in the consumer price index of the preceding year by using 1949 as the base year in accordance with Section 246 of the Constitution of Kentucky which provides that the above elected officials shall be paid at a rate no greater than seven thousand two hundred dollars ($7,200) per annum. The Department for Local Government shall notify the appropriate governing bodies charged by law to fix the compensation of the above elected officials of the annual rate of compensation to which the elected officials are entitled in accordance with the increase or decrease in the consumer price index. Upon notification from the Department for Local Government, the appropriate governing body may set the annual compensation of the above elected officials at a rate no greater than that stipulated by the Department for Local Government.

History. Enact. Acts 1974, ch. 254, § 1; 1976, ch. 283, § 1; 1976 (Ex. Sess.), ch. 14, § 38; 1976 (Ex. Sess.), ch. 17, § 19, effective January 1, 1978; 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1978; 1978, ch. 384, § 582, effective June 17, 1978; 1982, ch. 385, § 20, effective July 1, 1982; 1986, ch. 374, § 22, effective July 15, 1986; 1992, ch. 350, § 1, effective July 14, 1992; 1998, ch. 69, § 26, effective July 15, 1998; 1998, ch. 441, § 1, effective July 15, 1998; 1998, ch. 595, § 2, effective July 15, 1998; 1998, ch. 610, § 4, effective July 15, 1998; 2007, ch. 47, § 37, effective June 26, 2007; 2010, ch. 117, § 43, effective July 15, 2010.

Legislative Research Commission Note.

(7/15/98). This section was amended by 1998 Ky. Acts chs. 69, 441, 595, and 610. Where these Acts are not in conflict, they have been codified together. Where a conflict exists between Acts chs. 595 and 610, Acts ch. 595, which was last enacted by the General Assembly, prevails under KRS 446.250 .

NOTES TO DECISIONS

1.Magistrates’ Salaries.

Where a fiscal court adjusted salaries of magistrates to a fixed $11,772 per annum, such action was not unconstitutional since Const., § 246 allows salaries to be equated with the purchasing power of the dollar in 1949 and under this section and the “rubber dollar” theory, the current maximum salary would be approximately $18,000 and there was no showing of illegality. Hasty v. Shepherd, 620 S.W.2d 325, 1981 Ky. App. LEXIS 280 (Ky. Ct. App. 1981).

Reading this section with KRS 64.530 , the intent of the legislature is that the compensation that may be set for a magistrate in the year of his or her election cannot exceed an amount equal to the purchasing power of $7200 in 1949 as measured by the Department of Local Government using the consumer price index. Polston v. King, 965 S.W.2d 143, 1998 Ky. LEXIS 34 ( Ky. 1998 ).

County magistrates were without authority to change their compensation to greatly exceed the annual “adjustment” permitted by this section and KRS 64.530 to maintain the purchasing power of their compensation as set in the year of their election. Polston v. King, 965 S.W.2d 143, 1998 Ky. LEXIS 34 ( Ky. 1998 ).

A magistrate’s compensation may be increased in the year of his or her election, not exceeding an amount equal to the purchasing power of the dollar in 1949 as measured by the Department of Local Government using the Consumer Price Index. Allen v. McClendon, 967 S.W.2d 1, 1998 Ky. LEXIS 35 ( Ky. 1998 ).

2.Jailers.

Services performed by county jailer under his contract with the county government as director of detention, namely the fingerprinting and photographing of prisoners, were not a part of his official duties as jailer, and he was not prohibited from entering into a contract with the county government for such nonofficial duties. Buchignani v. Lexington-Fayette Urban County Government, 632 S.W.2d 465, 1982 Ky. App. LEXIS 212 (Ky. Ct. App. 1982).

KRS 441.009 (now KRS 441.245 ) permits a jailer to receive from fiscal court as his 1982 salary that amount of personal compensation he received or paid himself in 1981 plus the adjusted change in the cost of living, under the limit provided in this section. Nickell v. Thomas, 665 S.W.2d 927, 1984 Ky. App. LEXIS 453 (Ky. Ct. App. 1984).

Opinions of Attorney General.

In determining the maximum salary of the officers named in this section the Department of Commerce must equate the current consumer price index and the consequent current salary ceilings with the value of the dollar as it existed in March, 1949, when Const., § 246 was adopted. OAG 75-79 .

The “annual compensation” referred to in this section only relates to a salary payable out of the county treasury and the fiscal court’s action or inaction in adjusting the amount of compensation as it bears on the area of “earned fee” is irrelevant and elected officials in this section may collect additional compensation by deducting it from excess fees before remittance to the county. OAG 75-119 .

The maximum “compensation” is composed of the earned “fees” of the office and the earned “salary” of the office, which salary is paid out of the county treasury so that the local governing body, the fiscal court, has no control over the fixing of the maximum “compensation” which is fixed by the General Assembly and where the subject officers who get no salary from the county, earn fees sufficient to reach the maximum, they are so entitled and the fiscal court is not required nor permitted to take any action in such situation. OAG 75-147 .

The fiscal court is charged by law with the fixing of only any salary payable out of the county treasury pursuant to KRS 64.530 so that the “annual compensation” spoken of in this section, as it applies to counties, can only relate to a “salary” payable out of the county treasury and the fiscal court’s action or nonaction as relates to the area of “earned fees” of office is wholly irrelevant and meaningless in this context but the federal court’s “salary” fixing power remains unexhausted where the statutory maximum has not been reached. OAG 75-147 .

Justices of the peace, magistrates and commissioners for the years beginning after 1974 are not included in the provisions of this section. OAG 75-149 . (Opinion prior to 1976 amendment.)

No authorization or approval by fiscal court is required before Commonwealth’s Attorneys may be compensated at the adjusted rate authorized by this section. OAG 75-167 .

The maximum rates of compensation as adjusted pursuant to this section apply to a calendar year. OAG 75-167 .

Under the “rubber dollar” principle the adjusted maximum compensation for 1975 for Commonwealth’s Attorneys, county judges (now county judges/executive), county attorneys, county clerks, circuit clerks, sheriffs and jailers is $15,667.20. OAG 75-252 .

Under this section, KRS 64.345 and KRS 64.535 the upward adjustment under the “rubber dollar” principle of the salaries of the named officers is automatic and requires no action by state or local government, but the payment of the maximum amount is subject to the limitation in KRS 64.345 (4) of 75% of the amounts paid in by the offices named to the state treasury, unless, if the 75% is less than the maximum salary allowed, it is supplemented under KRS 64.346 by the fiscal court or where appropriate the urban-county council. OAG 75-252 .

The highest salary payable out of the county treasury to the Circuit Court Clerk is a maximum of $15,667.20 under KRS 64.535 and this section but since the Circuit Court Clerk’s work involves a phase of law enforcement, which is an aspect of public safety, the clerk’s salary could be a permissible expenditure out of available county revenue sharing. OAG 75-410 .

Where a circuit clerk also is master commissioner his maximum salary from the fees of both offices is limited to the maximum salary allowed circuit clerks. OAG 75-626 .

Although the legislative intent was to include the justices of the peace under the general annual maximum compensation formula which computes a salary level by applying the change in the consumer price index to the 1949 base of $7,200, the fiscal courts, in voting on salaries for justices of the peace, should consider the justices’ work schedules. OAG 76-220 .

Where the fiscal court had not exhausted its salary fixing authority, the fiscal court, in its sound discretion, could enter an order adjusting the salary of an incumbent county judge (now county judge/executive) upward to the maximum compensation provided for in this section. OAG 76-228 .

The salaries of justices of the peace and other constitutional officers mentioned in this section can be raised during their term of office, for the salaries are merely being adjusted in purchasing power. OAG 76-252 .

The constitutional and statutory prohibitions against a change in compensation during a term do not apply to adjustments in purchasing power; thus the fiscal court can adjust the salary of the county at any time, provided that the adjusted salary does not exceed the maximum authorized. OAG 76-300 .

Under the rubber dollar concept, the fiscal court could raise the salaries of the magistrates who were then members of the fiscal court. OAG 76-548 .

Although subsequent to January 2, 1978 persons may still be elected to the office of justice of the peace and justices of the peace would retain any nonjudicial powers found in the statutes, in a county having the commissioner type of government in 1978 there are practically no authorized statutory functions for a justice of the peace and since performance of some statutory duties is necessary to entitle justices of the peace to compensation and expense allowances in 1978, payment of any compensation or expense allowance to such justices not serving on fiscal courts would raise a serious constitutional question. OAG 77-133 .

Where a county jailer in taking his compensation through the fees of his office fell short of the maximum allowed for 1975, and where the fiscal court did not authorize a salary for that year, the fiscal court could not in retrospect authorize salary payments out of the county treasury to make up the deficit. OAG 77-154 .

Where a fiscal court has not exhausted its implementing authority in compensation adjustment, the salary of any county constitutional official could be adjusted upward any time during the term. OAG 77-168 .

The compensation paid to a county judge (now county judge/executive) by the federal government (revenue sharing, etc.) must be included in applying the statutory maximum compensation of this section to the county judge (now county judge/executive); thus this section is the maximum in public compensation that the county judge (now county judge/executive) may receive from any and all sources, including revenue sharing and federal grants. OAG 77-214 .

The annual computation of the consumer price index formula for compensation relates only to constitutional officers and thus would not apply to deputy circuit clerks. OAG 77-327 .

A salary of $12,000 per year for the magistrates’ work on the fiscal court would be excessive and illegal in view of the sporadic holding of meetings of the fiscal court and the sporadic performance of county duties generally by the magistrates. OAG 77-382 .

Magistrates are included in the rubber dollar adjustment of compensation as set forth in this section; therefore, the fiscal court can adjust the magistrates’ salaries within the statutory maximum, even during their terms of office, where the magistrates’ work schedule justifies salary increases. OAG 77-491 .

An order by a fiscal court setting the salaries for its magistrates at the maximum payable to an elected county official under this section would be legal so long as the justices of the peace in the county work full time. OAG 77-774 .

A county official, when considering any fees earned and collected and a salary paid out of the county treasury, cannot be compensated in excess of the maximum rubber dollar amount for the particular year. OAG 78-251 .

While this section provides for an annual adjustment in connection with the consumer price index and thus establishes an annual maximum compensation amount, it is not automatic and thus, if there is to be any adjustment upward, where the new maximum rubber dollar amount permits, the fiscal court would have to enter an order expressly providing for an adjustment of the salary payable out of the county treasury to the new figure, so long as the new figure does not exceed the maximum rubber dollar amount authorized for the particular year and where a fee officer makes the maximum in fees, then the maximum is automatic. OAG 78-251 .

The fees of the jailer plus any salary payable out of the county treasury cannot exceed the rubber dollar maximum in the particular year. OAG 78-350 .

The fiscal court can establish a salary for the county jailer payable out of the county treasury, so long as the salary does not exceed the rubber dollar maximum for the particular year, and where the fiscal court has not authorized a salary up to the rubber dollar maximum, the salary fixing power of the fiscal court remains unexhausted. OAG 78-350 .

The compensation limits set forth in Const., § 246 are based on the purchasing power of the 1949 dollar and are therefore adjustable to its fluctuations, but a court could set aside such salaries if the evidence in a taxpayers’ suit would show that the time spent by the magistrates on county business is such that payment of such salaries would be arbitrary under Const., § 2. OAG 78-426 .

Under the rubber dollar theory the fiscal court at any time, in implementing this section, can adjust the salaries of the justices of the peace upward, subject to the maximum rubber dollar amount payable. OAG 78-426 .

If the officer’s compensation is payable out of fees and salary, and the officer makes enough fees to equal the maximum compensation allowed under the rubber dollar principle, to that extent the increase in compensation reflected for that particular year would be automatic. OAG 78-477 .

In connection with an officer who gets no fees, for example, a county judge/executive, if he is to get the benefit of any annual increase in the consumer price index, it could only take place where the fiscal court, by an appropriately entered order, authorizes an adjustment in his salary payable out of the county treasury. OAG 78-477 .

If the jailer had no salary out of the county treasury during the preceding term, then the fiscal court may at any time fix a salary for the county jailer, payable out of the county treasury, which cannot exceed the maximum authorized under this section. OAG 78-565 .

The fiscal court is under no compulsion to provide, as a salary to the county judge/executive, the maximum permitted under this section, but the fiscal court, if it wishes, may provide him with the maximum compensation. OAG 78-642 .

The consumer price index formula which is involved in the rubber dollar cases actually applies only to constitutional officers, that is, officers who are specifically designated in the text of the Kentucky Constitution. OAG 78-817 .

To get constitutional officers’ compensation in proper perspective, one must consider two levels of compensation restriction: (1) the overall constitutional maximum based upon the adjustment of the dollar in terms of change in the consumer price index formula enunciated by the appellate court as applied to the monetary base levels set out in § 246 of the Constitution; (2) the statutory maximum compensation which, of course, must not exceed the constitutional maximum. OAG 78-840 .

Under this section, the jailer cannot receive compensation, including dieting fees, plus janitorial appropriation, in excess of the annual rubber dollar maximum for each year of his term. OAG 79-50 .

An increase under this section each year does not contravene Const., §§ 161 and 235, since such increases are purchasing power adjustments. OAG 79-189 .

In view of the broadly stated general principle of this section, the provisions of KRS 64.530 (6) imposing special monetary restrictions upon commissioners’ salaries in certain counties is wholly irreconcilable and this section governs over KRS 64.530 . OAG 79-189 .

The salary voted for county magistrates and commissioners must be supported by a work schedule which would justify the compensation paid. OAG 79-189 .

Where the sheriff’s total compensation is under the rubber dollar maximum for the year, the fiscal court in its discretion may authorize salary payments to the sheriff. OAG 79-542 .

Where a county sheriff who received only $6,852 as personal compensation in 1978, whereas he was eligible, under this section, for over $18,000, settled his 1978 accounts in mid-1979, then sought the difference of almost $12,000 for 1978 in September, 1979, his request came too late, since the 1978 accounting year had expired before the request was made. OAG 80-35 .

For 1980, the maximum compensation permissible for constitutional officers who are in the $7,200 limit category under Const., § 246 would be $23,184. OAG 80-74 .

The payment of the maximum rubber dollar amount is not automatic under this section; the implementation of the rubber dollar principle will depend upon the fiscal court in setting salaries and the applicable operation of the fee system. OAG 80-74 .

As relates to a fee officer, under this section, the annual rubber dollar adjustment to the new maximum each year automatically, by virtue of this section, entitles the fee officer to the maximum or anything less, depending upon the amount of the fees earned that year. OAG 80-164 .

Since there is no minimum salary payable to jailers out of the county treasury, the amount of any salary paid to jailers out of the county treasury is in the sound discretion of the fiscal court; but as to fee officers, such as the county jailer, where the jailer receives sufficient fees to make the maximum rubber dollar amount for 1980, the jailer is entitled to such maximum compensation, and in such case the fiscal court can do nothing to prevent the fee officer’s getting the maximum rubber dollar compensation where the jailer’s fees are sufficient to give him or her, as the case may be, the maximum possible under the rubber dollar formula. OAG 80-164 .

Under the provisions of the Home Rule Act, namely KRS 83.410 and 83.520 , a compensation change for elected municipal constitutional officers comes under the rubber dollar theory and such officers are entitled to salary increments during their term based on the cost of living index; likewise, salary increases for county officers also come under the rubber dollar theory and are valid so long as they do not exceed the established maximum. OAG 80-171 .

A county judge/executive is not auto-matically entitled to the annual maximum rubber dollar compensation; the fiscal court must set his salary, subject to the applicable minimum and the rubber dollar maximum, and the fiscal court has a discretion as to his salary in the range from the minimum level to the maximum level. OAG 80-208 .

The county judge/executive’s salary, when adjusted for 1980, can be retroactive to January 1, 1980, since the fiscal court is dealing with an “annual compensation” concept, even though it is broken down to monthly payments. OAG 80-208 .

Where a county jailer is also acting as a police dispatcher for the county sheriff’s office, for which latter work he receives $2,500 per year, that amount for dispatcher is to be applied to his statutory limitation of $23,184 for 1980, since the rubber dollar maximum applies annually to the same person for “public services,” whether such services are rendered in one position or more than one. OAG 80-269 .

A jailer who was receiving the maximum annual salary rate could not contract out services to the local government for payment since, if he was getting additional money from urban county government as compensation for any statutory duties, such extra money would violate Const., § 246 and this section, and the extra money was recoverable to the public treasury. OAG 80-525 .

Although constitutional officers’ salaries may be increased during term up to the authorized rubber dollar maximum for that year, such salaries cannot be decreased during term, since that would not be rubber dollar, and would constitute a change in compensation, as prohibited by Const., §§ 161 and 235. OAG 82-16 .

The compensation of the county judge/executive, county clerk, sheriff and jailer can be adjusted to the rubber dollar maximum pursuant to this section; however, such adjustment for a magistrate or coroner would violate Const., §§ 3 and 171 where such offices are not full-time positions, unless the officer is only paid a percentage of the rubber dollar maximum equivalent to the actual hours worked as compared to a full workweek. OAG 82-16 .

Where an outgoing fiscal court sets new compensation levels for part-time constitutional officers which exceed the amount that such part-time officers should be entitled to receive, the appropriate relief for the new fiscal court to pursue is a Circuit Court action setting aside the increases, since any unilateral action by the new fiscal court to decrease the compensation would be a “change” of the type prohibited by Const., § 161. OAG 82-16 .

Where an outgoing fiscal court sets new salary levels for part-time constitutional officers, which salaries exceed the amount that the part-time officers should receive, the new fiscal court should not honor the new salaries for any part-time officers; if the new salaries for the part-time officers are paid, the new fiscal court members would be personally and individually liable. OAG 82-16 .

Where a previous fiscal court had adopted a budget which provided for a salary of $200 per month and an expense allowance of $200 per month for magistrates, the $200 expense allowance exceeded the statutory limitation set out in KRS 64.258 (now repealed); however, the new fiscal court could amend that budget to decrease the expense allowance to $100 per month and to increase the salary to $300 per month so long as the compensation increase does not exceed the rubber dollar maximum for the particular year. OAG 82-22 .

The $7,200 monetary level of Const., § 246 applies to county judges/executive, county clerks, sheriffs, justices of the peace, county commissioners, coroners and jailers, pursuant to this section; the implementation of the indexed principle will depend upon the fiscal court setting salaries payable out of the county treasury and the operation of the fee system for fee officers and, thus, the fee officer can apply fees earned by himself or herself, without any action on the part of fiscal court, up to the maximum payable for the particular year under the indexed system. OAG 82-80 .

As to county constitutional officers, the maximum compensation payable under the indexed system is not mandated, except where the fee officer actually earns enough fees to justify the maximum. OAG 82-80 .

If a jailer’s salary is a combination of a payment made to him by the county for janitorial services and the state fees, the fiscal court cannot limit his salary to less than the statutory maximum since the fiscal court can only control money paid out of the county treasury to be applied to the jailer’s compensation. OAG 82-155 .

The fiscal court has no control over the amount of actual fees which can be applied to a county jailer’s compensation since the control device in that area is simply this section and the annually computed consumer price index maximum; the fiscal court, however, does have a sound discretion as to the amount of money to be derived from the county treasury to be applied to the jailer’s compensation. OAG 82-155 .

While KRS 64.345 controls the compensation to jailers in counties having a population of 75,000 or more to the extent that the jailer’s compensation must be taken out of the “75% account” in the state treasury (all the jailer’s fees are turned into the state for administration), the general law of this section governs as to county jailers and is geared to the annual compensation of the consumer price index adjustment; thus the fiscal court, in counties of 75,000 or more population, cannot prevent the state’s applying money out of the jailer’s “75% account” to the jailer’s compensation but the maximum established for the particular year under the indexing (C.P.I.) of this section must be observed. OAG 82-155 .

Any “salary” paid to a jailer under KRS 67.130 in 1979 and 1980 must be considered in the total “statutory” compensation permitted the jailer for those years under the rubber dollar compensation. OAG 82-333 .

Where a jailer was paid a salary for janitorial work in the courthouse, the “salary” would be an unconstitutional addition to his regular jailer’s compensation, provided that regular jailer compensation was at the maximum rubber dollar amount permitted by this section and Const., § 246. OAG 82-333 .

Jailers holding office on July 1, 1982, shall be entitled to a level of compensation in calendar year 1982 equal to the compensation of the jailer in calendar year 1981 as adjusted for change in the Consumer Price Index during calendar year 1981 or $12,000, whichever is greater. The salary can in no case exceed the rubber dollar limit for the year under this section. OAG 82-344 .

Where magistrates’ salaries on the first Monday in May in 1981 (election year) were set at $10,000 per magistrate, the fiscal court could authorize a salary to each magistrate, not to exceed $28,387 for the calendar year of 1982. However, since the magistrates on fiscal court have no executive duties, they should only be paid in terms of the work week they put in for the county. OAG 82-348 .

In conformity with Const., § 59, KRS 64.285 and this section envision equal pay for all magistrates or commissioners on a particular fiscal court. OAG 82-461 .

The county commissioners on a fiscal court must be paid the same compensation, regardless of what the legal sum is. In view of the fact that Const., §§ 3 and 171 demand that an officer or employee of the government receive compensation actually earned by rendering appropriate statutory services, this means that each commissioner is required to have approximately the same work load. OAG 82-461 .

The $7,200 monetary level of Const., § 246 applies to county judges/executive, county clerks, sheriffs, justices of the peace, county commissioners, coroners and jailers, pursuant to this section. The implementation of the index principle will depend upon the fiscal court setting salaries payable out of the county treasury and the operation of the fee system for fee officers; thus, the fee officer can apply fees earned by himself or herself, without any action on the part of fiscal court, up to the maximum payable for the particular year under the indexed system. OAG 83-38 .

Once the jailer’s salary is properly set under KRS 64.530 , 64.527 , and 441.009 (now KRS 441.245 ), it cannot be reduced, since that would be a “change in compensation,” which is prohibited by Const., §§ 161 and 235; upward adjustment during the term of a jailer’s salary, not to exceed the rubber dollar level, is not a change in compensation. OAG 83-49 .

The $7,200 monetary level of Const., § 246 applies to county judges/executive, county clerks, sheriffs, justices of the peace, county commissioners, coroners and jailers, pursuant to this section; the implementation of the indexed principle will depend upon the fiscal court setting salaries payable out of the county treasury and the operation of the fee system for fee officers. Thus the fee officer can apply fees earned by himself or herself, without any action on the part of fiscal court, up to the maximum payable for the particular year under the indexed system. OAG 84-54 .

A county judge/executive cannot refuse to accept the full mandatory salary provided by KRS 67.705 and this section and he must be paid back pay for any year in which he was not paid the amount required by statute. OAG 84-381 .

The maximum annual compensation possible for county judge/executives, justices of the peace, county commissioners, county clerks, sheriffs, jailers and coroners, mayors (except in cities of the first class), and city legislative body members in 1988 was $34,861. OAG 88-10 .

The maximum annual compensation for 1990 for county judge/executives, justices of the peace, county commissioners, county clerks, sheriffs, jailers, coroners, mayors (except in cities of the first class), and city legislative body members would be $38,077, and for mayors in cities of the first class is $63,462. OAG 90-17 .

The Department of Local Government computed accurately the maximum annual compensation of the county judge/executives, county clerks, sheriffs, magistrates, county commissioners, coroners, and jailers, for 1991, as $40,427 (rounded). OAG 91-29 .

For an opinion verifying the accuracy of computations to be used in adjusting salaries of constitutional officers in relation to changes in the Consumer Price Index, see OAG 93-21 .

For the adjustments to salaries of constitutional officers in relation to changes in the Consumer Price Index salary adjustment computations and therefore, the maximum annual compensation allowable by law for such positions in 1994 see OAG 94-7 .

For the adjustments to salaries of constitutional officers in relation to change in the Consumer Price Index salary adjustment computations and therefore, the maximum annual compensation allowable for such positions in 1995 see OAG 95-5 . OAG 95-5 .

While the Governor may issue executive orders pursuant to the powers granted in Const., §§ 76 to 81 or specifically delegated by the General Assembly, no known grant of power to the Governor authorizes him to declare public policy in contravention of policy established by the General Assembly; therefore, since this section makes a plain expression of public policy declaring that county clerks are subject to salary maximum applicable to “all other public officers” rather than the salary maximum applicable to “officers whose jurisdiction or duties are coextensive with the Commonwealth”, executive order that declared that county clerks are officials whose duties are coextensive with the Commonwealth for the purposes of constitutional salary computations was of no effect. OAG 96-32 .

64.5275. Legislative finding relating to certain county officers — Maximum salary schedule — Annual incentive for completed training units.

  1. The General Assembly of the Commonwealth of Kentucky hereby finds and determines that county judges/executive, county clerks, jailers who operate a full service jail, and sheriffs in all counties are officers whose duties or jurisdictions are coextensive with that of the Commonwealth within the meaning of Section 246 of the Constitution of Kentucky.
  2. Effective on the first Monday in January of 1999, the maximum salary of county judges/executive, county clerks, jailers who operate a full service jail, and sheriffs shall be fixed by the Department for Local Government according to a salary schedule in accordance with Section 246 of the Kentucky Constitution. The salary schedule provides that these officials, as officers whose jurisdiction or duties are coextensive with the Commonwealth, shall be paid at a rate no greater than twelve thousand dollars ($12,000) per annum as adjusted for any increase or decrease in the consumer price index and as described in subsection (4) of this section.
  3. The salary schedule for county judges/executive, county clerks, jailers who operate a full service jail, and sheriffs in all counties provides for nine (9) levels of salary based upon the population of the county in the year prior to the election of county officials as determined by the United States Department of Commerce, Bureau of the Census’s annual estimates. To implement the salary schedule, the Department for Local Government shall, by November 1 of each year preceding the election of county officials, certify for each county the population group applicable to each county based on the most recent estimates of the United States Department of Commerce, Bureau of the Census. For the purposes of this section, the salary schedule for county judges/executive, county clerks, jailers who operate a full service jail, and sheriffs shall remain as determined by the Department for Local Government pursuant to this section, regardless of changes in the population estimates or the actual census count that may occur during the term for which the official has been elected or appointed. The salary schedule provides four (4) steps for yearly increments within each population group. County officers named in this section shall be paid according to the first step within their population group for the first year or portion thereof they serve in office. Thereafter, each officer, on January 1 of each subsequent year, shall be advanced automatically to the next step in the salary schedule until the maximum salary figure for the population group is reached. Prior to assuming office on the first Monday in January, 1999, or thereafter, any person assuming any of the offices for which the salary is determined by this section must certify to the commissioner of the Department for Local Government the total number of years, not to exceed four (4) years, that the person has previously served in the office. The Department for Local Government shall place the officer in the proper step based upon a formula of one (1) incremental step per full calendar year of service:
  4. Upon publication of the annual consumer price index by the United States Department of Commerce, the Department for Local Government shall fix the salary of the county judge/executive, county clerk, jailer who operates a full service jail, and sheriff at an annual rate of salary to which the county official is entitled pursuant to the increase in the Consumer Price Index and the salary schedule contained in this section. This salary determination shall be retroactive to the preceding January 1.
  5. Notwithstanding any provision contained in this section, no county official holding office on July 15, 1998, shall receive any reduction in salary or reduction in adjustment to salary otherwise allowable by the statutes in force on July 15, 1998.
  6. In addition to the step increases based on service in office, each officer shall be paid an annual incentive of one hundred dollars ($100) per calendar year for each forty (40) hour training unit successfully completed, based on continuing service in that office and, except as provided in this subsection, completion of at least forty (40) hours of approved training in each subsequent calendar year. If an officer fails, without good cause as determined by the commissioner of the Department for Local Government, to obtain the minimum amount of approved training in any year, the officer shall lose all training incentives previously accumulated. Each training unit shall be approved and certified by the Department for Local Government. No officer shall receive more than one (1) training unit per calendar year nor more than four (4) incentive payments per calendar year. Each officer shall be allowed to carry forward up to forty (40) hours of training credit into the following calendar year for the purpose of satisfying the minimum amount of training for that year. Each annual incentive payment shall be adjusted by the Department for Local Government on an annual basis for any increase or decrease in the consumer price index in the same manner as salaries are adjusted as described in subsection (4) of this section. The Department for Local Government shall promulgate administrative regulations in accordance with KRS Chapter 13A to establish guidelines for the approval and certification of training units.
  7. Except in counties that contain an urban-county form of government, justices of the peace who serve on fiscal courts, county commissioners, and jailers who operate life safety jails, jailers who are part of a transportation plan, or jailers who act as court bailiffs shall also be eligible for the training incentive payments in accordance with subsection (6) of this section.
  8. The provisions of this section shall not apply to a county judge/executive in a county which has established a consolidated local government pursuant to KRS Chapter 67C.

SALARY SCHEDULE County Population by Group Steps and Salary for Affected Officers Step 1 Step 2 Step 3 Step 4 Group I0-4,999 $6,600 $6,800 $7,000 $7,200 Group II5,000-9,999 7,200 7,400 7,600 7,800 Group III10,000-19,999 7,800 8,000 8,200 8,400 Group IV20,000-29,999 8,100 8,400 8,700 9,000 Group V30,000-44,999 8,700 9,000 9,300 9,600 Group VI45,000-59,999 9,000 9,400 9,800 10,200 Group VII60,000-89,999 9,600 10,000 10,400 10,800 Group VIII90,000-499,999 9,900 10,400 10,900 11,400 Group IX500,000 and up 10,500 11,000 11,500 12,000

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History. Enact. Acts 1998, ch. 610, § 1, effective July 15, 1998; 2001, ch. 71, § 1, effective June 21, 2001; 2002, ch. 245, § 1, effective July 15, 2002; 2002, ch. 346, § 21, effective July 15, 2002; 2007, ch. 47, § 38, effective June 26, 2007; 2010, ch. 117, § 44, effective July 15, 2010.

64.5277 Definitions for KRS 64.5277 to 64.5279.

As used in KRS 64.5277 to 64.5279 :

  1. “City” means:
    1. Any city of any class;
    2. An urban-county government that does not participate in the county officers training program under KRS 64.5275 ; and
    3. A consolidated local government that does not participate in the county officers training program under KRS 64.5275 ;
  2. “City officer” means:
    1. Any individual elected to a city office existing under KRS Chapter 83A;
    2. Any individual elected to a city office existing under KRS Chapter 67A or 67C, if the respective government does not participate in the county officers training program under KRS 64.5275 ;
    3. Any individual appointed to fill a vacancy in an elected city office as defined under paragraph (a) or (b) of this subsection; and
    4. Any individual serving in a nonelected city office as defined by KRS 83A.080 that is designated by the city as eligible for participation in the city officers training program in the ordinance adopted pursuant to KRS 64.5278 ;
  3. “Training incentive multiplier” means a number of one (1) to four (4) that is used to calculate the final training incentive to be paid to a city officer eligible to participate in the training incentive program; and
  4. “Training unit” means fifteen (15) clock hours of attendance or participation in qualifying courses during a calendar year.

History. Enact. Acts 2011, ch. 44, § 1, effective June 8, 2011.

Legislative Research Commission Note.

(6/8/2011). The order of subsections (3) and (4) in 2011 Ky. Acts. ch. 44, sec. 1, has been reversed so that definitions in this section are now in alphabetical order. The Reviser of Statutes has rearranged these subsections under the authority of KRS 7.136 .

64.5278. Ordinance establishing incentive program for city officers to obtain educational training — Training incentive payments — Continuing education hours required — Proof of attendance and evaluation of courses.

  1. Any city may elect, by adopting an ordinance meeting the requirements of this section, to establish an incentive program for city officers to obtain educational training related to their duties and responsibilities as city officers and the functions of city governments.
  2. The ordinance shall apply to all elected city officers within the city, and the city may allow any nonelected city officer holding an office existing or created under KRS 83A.080 to participate in the incentive program.
  3. The ordinance shall designate a base training incentive payment amount that shall be awarded to the city officer for the completion of a training unit during service as a city officer within the city. This base incentive payment amount shall be no less than one hundred dollars ($100) and no more than five hundred dollars ($500). The training incentive payment amount established in the ordinance shall not be adjusted by any index reporting changes to consumer prices or any other method to account for inflation.
  4. The ordinance shall require city officers to complete a number of continuing education hours equal to at least one (1) training unit during each calendar year in order to receive a training incentive payment.
  5. The ordinance shall state that the city shall award the training incentive payment to the city officer for the completion of a training unit during the calendar year. The training incentive payment awarded shall be the base training incentive payment multiplied by the training incentive multiplier earned by the city officer. The city officer shall accumulate no more than one (1) training incentive multiplier per calendar year of continuous service, for a maximum of four (4) training incentive multipliers.
  6. The ordinance shall provide that a city officer who fails to earn at least one (1) training unit in any calendar year shall receive no training incentive payment for that calendar year and shall have his or her training incentive multiplier reset to one (1) for the following year.
  7. The ordinance may permit the city officer to carry forward no more than fifteen (15) hours of excess credit hours earned in one (1) calendar year to apply to the minimum fifteen (15) hours training unit required in the next calendar year. “Excess hours” means credit hours earned beyond fifteen (15) during a single calendar year.
  8. The ordinance shall require the city officer to present proof of his or her completion of the annual training unit and shall establish the time that the city officers shall receive their training incentive payments.
  9. Each city shall, in the ordinance establishing the city officers training program, establish a policy regarding the reimbursement to the city officer, or payment to the provider for the city officer’s attendance of an event hosting a course where the officer seeks to earn credit.
  10. The ordinance shall specify criteria for the presentation of proof of attendance by city officers and the criteria for the evaluation of a course’s relevance to the duties and functions of city officers and the functions of city governments. In addition to other courses that may be deemed relevant by the city, courses that provide instruction on statutory powers and duties of cities and city officers, intergovernmental relationships, municipal finance and budgeting, municipal taxation, ethics, open records, open meetings, economic development, or municipal police powers shall satisfy the criteria established in the ordinance.

History. Enact. Acts 2011, ch. 44, § 2, effective June 8, 2011.

64.5279. Repeal of training incentive program for city officers — Designation of incentive payments relative to retirement and compensation — Alternate incentives for continuing education and training.

  1. A city may, by ordinance, elect to repeal the training incentive program.
  2. The training incentive payments provided under KRS 64.5278 shall not be included in the calculation for a retirement allowance for any city officer participating in the County Employees Retirement System set out in KRS 78.510 to 78.852 .
  3. Training incentive payments provided under KRS 64.5278 shall not be considered compensation and shall not be required to be included in the ordinance establishing the compensation of elected city officers under KRS 67C.129 , 67C.131 , 83A.070 , or when applicable, KRS 64.610 .
  4. Training incentive payments provided under KRS 64.5278 shall not be a factor in setting elected city officers’ maximum compensation under KRS 83A.075(2).
  5. Nothing in KRS 64.5277 to 64.5279 shall be construed to prohibit a city from enacting or establishing alternative incentives for the continuing education and training of its elected officers or employees.

History. Enact. Acts 2011, ch. 44, § 3, effective June 8, 2011.

64.528. Compensation of specified officials adjusted to current purchasing power of the dollar.

In order to equate the current rate of compensation of Commonwealth’s attorneys, county clerks, county judges/executive, county attorneys, sheriffs, justices of the peace, and commissioners with the present value and purchasing power of the dollar, the court required by law to fix the compensation of the officials named in this section may, on or before September 1, 1974, adjust said officials’ compensation within the limits set forth in Acts 1974, Chapter 254, and may provide that said officials be entitled to the maximum amount of compensation for the entire 1974 calendar year.

History. Enact. Acts 1974, ch. 254, § 7; 1976 (Ex. Sess.), ch. 14, § 39; 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1976; 1978, ch. 384, § 130, effective June 17, 1978; 1982, ch. 385, § 21, effective July 1, 1982.

Opinions of Attorney General.

In view of this section, any adjustment by the fiscal court in the salary of the sheriff under the authority of KRS 64.535 must have been ordered on or before September 1, 1975. OAG 74-731 .

Although the fiscal court could vote to make each magistrate’s monthly expense allowance retroactive to January 1 of the same current year, it would be illegal to make the allowances retroactive to July of the previous year. OAG 77-384 .

64.530. Compensation of county officers, employees, deputies and assistants, and members of fiscal court — Excess fees — Applicability of KRS 64.368 if population decreases below 70,000.

  1. Except as provided in subsections (5) and (6) of this section, the fiscal court of each county shall fix the reasonable compensation of every county officer and employee except the officers named in KRS 64.535 and the county attorney and jailer. The fiscal court may provide a salary for the county attorney.
  2. For the purposes of this section, justices of the peace and constables in all counties shall be deemed to be county officers and deputies or assistants of county officers shall be deemed to be county employees, but employees of county boards or commissions which are now authorized by law to fix the compensation of their employees shall not be deemed to be county employees for the purposes of this section.
  3. In the case of officers compensated from fees, or partly from fees and partly by salary, the fiscal court shall fix the reasonable maximum compensation that any officer except the officers named in KRS 64.535 may receive from both sources. The fiscal court may also fix the reasonable maximum amount that the officer may expend each year for expenses of his office. The fiscal court shall fix annually the reasonable maximum amount, including fringe benefits, which the officer may expend for deputies and assistants, and allow the officer to determine the number to be hired and the individual compensation of each deputy and assistant. Any revenue received by a county clerk in any calendar year shall be used exclusively for the statutory duties of the county clerk and budgeted accordingly. At the conclusion of each calendar year, any excess fees remaining shall be paid to the fiscal court pursuant to KRS 64.152 .
  4. In the case of county officers elected by popular vote and the county attorney, in the event the fiscal court provides him a salary, the monthly compensation of the officer and of his deputies and assistants shall be fixed by the fiscal court, consistent with the provisions of subsection (3) of this section, not later than the first Monday in May in the year in which the officers are elected, and the compensation of the officer shall not be changed during the term but the compensation of his deputies or assistants may be reviewed and adjusted by the fiscal court not later than the first Monday in May of any successive year upon the written request of the officer. On or before August 1, 1966, the fiscal court shall fix the salary provided herein for the county attorneys for the term commencing in January, 1966, notwithstanding any other provisions of this section which may be inconsistent herewith.
  5. Nothing in this section shall apply to property valuation administrators or their deputies, assistants, and expenses, in any county, or to the circuit court clerk, county clerk, sheriff, jailer, and their deputies, assistants, and expenses, in counties having a population of seventy thousand (70,000) or more. If a county’s population that equaled or exceeded seventy thousand (70,000) is less than seventy thousand (70,000) after the most recent federal decennial census, then the provisions of KRS 64.368 shall apply.
  6. Justices of the peace serving on a fiscal court in any county, and county commissioners serving on a fiscal court in any county shall be paid for their services, out of the county treasury, not to exceed the maximum compensation allowable under KRS 64.527 . The fiscal court shall fix the amount to be received within the above limit, but no change of compensation shall be effective as to any member of a fiscal court during his term of office. All of said annual salaries shall be payable monthly. Justices of the peace and county commissioners shall not receive any compensation for their services on the fiscal court, other than as provided by this section; provided, however, justices of the peace and county commissioners may receive no more than three thousand six hundred dollars ($3,600) annually or three hundred dollars ($300) per month as an expense allowance for serving on committees of the fiscal court. The fiscal court shall fix the amount to be received within the above limit, but no change of compensation except as provided in KRS 64.285 shall be effective as to any member of a fiscal court during his term of office.

History. Enact. Acts 1950, ch. 123, § 9; 1956, ch. 144; 1958, ch. 126, § 2; 1962, ch. 214, § 1; 1964, ch. 109, § 3; 1966, ch. 15, § 2; 1966, ch. 255, § 75; 1968, ch. 152, § 33; 1970, ch. 203, § 1; 1972, ch. 30, § 1; 1972, ch. 203, § 5; 1972, ch. 358, § 1; 1974, ch. 60, § 2; 1974, ch. 254, § 4; 1976, ch. 306, § 1; 1976 (Ex. Sess.), ch. 17, § 20, effective January 1, 1978; 1976 (Ex. Sess.), ch. 14, § 40, effective January 2, 1978; 1978, ch. 196, § 1, effective June 17, 1978; 1978, ch. 384, § 131, effective June 17, 1978; 1982, ch. 384, § 3, effective July 15, 1982; 1982, ch. 385, § 22, effective July 1, 1982; 1984, ch. 22, § 1, effective February 23, 1984; 1988, ch. 249, § 7, effective July 15, 1988; 1992, ch. 220, § 8, effective January 1, 1994; 2002, ch. 71, § 5, effective July 15, 2002; 2006, ch. 255, § 8, effective January 1, 2007; 2010, ch. 175, § 1, effective July 15, 2010; 2014, ch. 92, § 29, effective January 1, 2015.

NOTES TO DECISIONS

1.Constitutionality.

Raise in fees provided county jailer was not violative of Ky. Const., § 161 as expenses must come out of the fees which vary in total amount. Bell County v. Ball, 302 S.W.2d 131, 1957 Ky. LEXIS 183 ( Ky. 1957 ).

The 1964 amendment to this section in providing for salary increases for local constitutional officers in excess of the constitutional maximum of $7,200 did not violate Ky. Const., § 246 for that section may be interpreted and periodically applied so as to equate current salaries with the purchasing power of the dollar in order to provide adequate compensation for the judges. Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ).

The salary increases provided by the 1964 amendment to this section did not violate Ky. Const., § 235 for the salaries of the various officers are merely being kept abreast of their initial value or purchasing power. Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ).

2.Purpose.

The purpose of this section is to have salaries fixed before the election and the assumption of office on the first day of January following. Webster County v. Vaughn, 365 S.W.2d 109, 1962 Ky. LEXIS 283 ( Ky. 1962 ).

3.Construction.

This section did not make any changes in the salary of county commissioners in Jefferson County but amounted merely to statement that KRS 64.480 to 64.740 (1950 salary act) was not intended to effect a change in such salaries. Shamburger v. Duncan, 253 S.W.2d 388, 1952 Ky. LEXIS 1090 ( Ky. 1952 ).

This section and KRS 69.280 (now repealed) are not irreconcilable as KRS 69.280 was intended to assure the county attorney at least two assistants and this section is intended to authorize the fiscal court to grant him more than two assistants if it deems the work of his office requires it (decision prior to 1968 amendment). Shamburger v. Tierney, 314 Ky. 459 , 236 S.W.2d 279, 1951 Ky. LEXIS 685 ( Ky. 1951 ).

Reading subsections (4) and (6) with KRS 64.527 , the intent of the legislature is that the compensation that may be set for a magistrate in the year of his or her election cannot exceed an amount equal to the purchasing power of $7200 in 1949 as measured by the Department of Local Government using the consumer price index. Polston v. King, 965 S.W.2d 143, 1998 Ky. LEXIS 34 ( Ky. 1998 ).

Language of KRS 64.530(3) did not release the county clerk from the financial control of the fiscal court, but simply meant that revenue received by the county clerk could be used only to fulfill the clerk’s statutory duties and for no other purpose. Sheffield v. Graves, 337 S.W.3d 634, 2010 Ky. App. LEXIS 108 (Ky. Ct. App. 2010).

4.Application.

This section sets apart as not being affected by its terms certain officers of counties of less than 75,000 population, including the Circuit Clerk, county clerk, sheriff and the master commissioner or receiver, their deputies, assistants and expenses. Shamburger v. Commonwealth, 240 S.W.2d 636, 1951 Ky. LEXIS 1014 ( Ky. 1951 ).

5.Fixing Compensation.

An assistant county attorney was entitled to no compensation other than his salary as fixed by the fiscal court. All fees arising in prosecutions conducted by him were payable to the county attorney. McNally v. Grauman, 255 Ky. 201 , 73 S.W.2d 28, 1934 Ky. LEXIS 217 ( Ky. 1934 ).

Fixing the salaries of public officials was impressed with public interest and officials invested with authority to fix such salaries should have acted justly and reasonably and not arbitrarily. Combs v. Knott County Fiscal Court, 283 Ky. 456 , 141 S.W.2d 859, 1940 Ky. LEXIS 350 ( Ky. 1940 ).

Officials were not entitled to public largess or bounty but only to compensation commensurate with the duties of the office. Combs v. Knott County Fiscal Court, 283 Ky. 456 , 141 S.W.2d 859, 1940 Ky. LEXIS 350 ( Ky. 1940 ).

Fiscal court had no power to amend salary order in October and increase salaries which were fixed by an order in May and such an amendment was void. Fannin v. Davis, 385 S.W.2d 321, 1964 Ky. LEXIS 158 ( Ky. 1964 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

Courts may not decide that a legislative or administrative body has fixed an unreasonable compensation unless it is clearly shown that the action was in derogation of lawful duty and authority. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

The discretion is in the body authorized to set the compensation, but this discretion must be exercised in accordance with established principles of justice and not arbitrarily or capriciously, fraudulently, or without factual basis. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

Where the fiscal court, prior to the enactment of the statute providing for salaries of county attorneys, by resolution set a salary of $3,000 plus fees for the county attorney to be elected, and after enactment of the statute amended the resolution, establishing a salary of $7,200, the first resolution simply established that a certain portion of the salary would be paid out of the county treasury and was not finally fixing the compensation as contemplated by the constitution. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

In order to avoid the restrictions contained in Ky. Const., §§ 161 and 235 and this section against changes in salary during the coroner’s term, it would be necessary to show that the 1974 amendment to KRS 64.185 increasing the minimum salary from $50.00 per month to $150 per month was pursuant to the rubber dollar doctrine, and absent such a showing the changing of the salary during the elected term violated both constitutional and statutory prohibitions against the changing of the compensation during the elected term. Carey v. Washington County Fiscal Court, 575 S.W.2d 161, 1978 Ky. App. LEXIS 644 (Ky. Ct. App. 1978).

This section states that the fiscal courts shall fix compensation for every county officer or employee, but it does not either specifically or inferentially require the fiscal courts to employ anyone, or to pay such employees any particular amount of money; to do so would be wholly inconsistent with KRS 67.080(1)(c). Fiscal Court of Taylor County v. Taylor County Metro Police, 805 S.W.2d 113, 1991 Ky. LEXIS 21 ( Ky. 1991 ).

Action against three (3) magistrates who voted to double their salaries after being elected to office breached the quasi-contract created by KRS 64.530 and Ky. Const., §§ 2, 161, 235, under which they were deemed to have contracted with the citizens of a county to accept office and to serve at the original salary; the county’s general liability insurer had no duty to defend or indemnify the magistrates in litigation that arose from their vote to increase their salaries because the action was for breach of that quasi-contract and the insurance policy’s unambiguous language excluded coverage for breach of contract actions. Ky. Ass'n of Counties All Lines Fund Trust v. McClendon, 157 S.W.3d 626, 2005 Ky. LEXIS 93 ( Ky. 2005 ).

Circuit court properly dismissed the deputy jailers’ complaint against the fiscal court; alleging a violation of the Kentucky Wage and Hour Act for wages owed to them in accordance with the pay increases promised by the county jailer; because, even though the deputies’ salaries were paid from the jail budget, the deputy jailers were considered county employees, the jailer’s role was simply to direct the county treasurer to pay the deputies their wages as agreed upon by the fiscal court and had nothing to do with the determination of compensation or the discretion to adjust the compensation of the deputy jailers, the fiscal court was to fix the reasonable compensation for county employees and had never agreed to the claimed wages. Grossl v. Scott Cty. Fiscal Court, 566 S.W.3d 221, 2018 Ky. App. LEXIS 223 (Ky. Ct. App. 2018).

6.Expenses.

A claim for automobile expense should not be allowed without a showing of the purpose and official necessity of each trip, and the distance traveled on each trip. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

County attorney should be allowed credit for cost of textbook on legal medicine upon submission of satisfactory proof as to the necessity of the books for official purposes. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

County attorney should be allowed credit for postage and stationery upon submission of suitable supporting data. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

The county attorney was entitled to dues and expenses paid to national association of county and prosecuting attorneys and incurred in attending a state school for county attorneys and the annual state convention of county attorneys. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

The expense of maintaining an office for the carrying on of the legal business of the county is properly an official rather than a personal expense, and should be allowable on proof of reasonableness and necessity. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

The fiscal court may fix, in advance, the categories of reasonable official expenses that will be allowed and the maximum amount that will be allowed for each category. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

This section bars payment for expense allowances to county magistrates absent their required services on committees of the fiscal court. Polston v. King, 965 S.W.2d 143, 1998 Ky. LEXIS 34 ( Ky. 1998 ).

7.Reimbursement.

In order for an officer to receive credit for his expenses he must show the amount, purpose, and reasonableness of each expenditure and that it is in an allowable category. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

8.Deputies or Assistants.

In view of the provisions of this section and the long established legislative policy of authorizing deputies by specific statute when they are deemed necessary, the fiscal court has no authority under this section or otherwise, to authorize a deputy or assistant for an officer unless there is a statutory recognition of the right of the particular officer to have deputies or assistants. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

9.Justices of the Peace.

This section provides a salary as compensation to a justice of the peace for performance of his ministerial duties for service in attending the meetings of the fiscal court, but does not provide any compensation for services in the performance of judicial duties. Kitchens v. Milliken, 329 S.W.2d 68, 1959 Ky. LEXIS 142 ( Ky. 1959 ).

Where a county fiscal court could not justify paying at least $9,600 to each of its three justices of the peace based upon the present absence of public services performed by them, the solution would be for the magistrates to request the General Assembly to either increase the duties of those not serving on a fiscal court, or, in the alternative for fiscal court, to be permitted to establish a salary below $9,600 in line with services actually performed. Roland v. Jefferson County Fiscal Court, 599 S.W.2d 469, 1980 Ky. App. LEXIS 320 (Ky. Ct. App. 1980).

10.County Judge/Executive.

While Ky. Const., § 161 prohibits any change in compensation of a county judge/executive after his election or during his term, subsection (4) of this section requires that the official’s salary be fixed not later than the first Monday in May in the year of his election, an apparent, but not actual, conflict. Wood v. Shelby County, 581 S.W.2d 31, 1979 Ky. App. LEXIS 406 (Ky. Ct. App. 1979).

Where the Shelby County Fiscal Court was required by KRS 67.705(4) to set the county judge/executive’s salary at a minimum of $16,768.80, but had set it at a lower figure, there was no conflict with either Ky. Const., § 161 or subsection (4) of this section since the increase would merely correct the situation to do what should have been done, and mandamus would be the proper remedy. Wood v. Shelby County, 581 S.W.2d 31, 1979 Ky. App. LEXIS 406 (Ky. Ct. App. 1979).

Even though the effective date of KRS 67.705(2), (3) and (4) was January 2, 1978, which would put the burden for fixing the salary of the county judge/executive on the new fiscal court in conflict with Ky. Const., § 161 and subsection (4) of this section, the old fiscal court was free to fix the salary anywhere within the limits, and any salary set above or below the limits would be illegal and void. Wood v. Shelby County, 581 S.W.2d 31, 1979 Ky. App. LEXIS 406 (Ky. Ct. App. 1979).

11.Magistrates.

A fiscal court properly adjusted the compensation of magistrates under the “rubber dollar” theory since this section allows adjustments during the term of office to provide compensation adequate for changes in the cost of living and the value of the dollar, despite the prohibitions in Ky. Const., §§ 161 and 235 against changing compensation during the term of office for city, county or public officers. Hasty v. Shepherd, 620 S.W.2d 325, 1981 Ky. App. LEXIS 280 (Ky. Ct. App. 1981).

County magistrates were without authority to change their compensation to greatly exceed the annual “adjustment” permitted by this section and KRS 64.527 to maintain the purchasing power of their compensation as set in the year of their election. Polston v. King, 965 S.W.2d 143, 1998 Ky. LEXIS 34 ( Ky. 1998 ).

A magistrate’s compensation may be increased in the year of his or her election, not exceeding an amount equal to the purchasing power of the dollar in 1949 as measured by the Department of Local Government using the Consumer Price Index. Allen v. McClendon, 967 S.W.2d 1, 1998 Ky. LEXIS 35 ( Ky. 1998 ).

12.Jailers.

By its clear terms, this section, as amended in 1982, excludes jailers from its application; jailers’ salaries are instead controlled by KRS 441.245 . Wallace v. King, 973 S.W.2d 485, 1998 Ky. App. LEXIS 59 (Ky. Ct. App. 1998).

13.Refund of Excess Earnings.

Circuit Court Clerk who was also master commissioner was ordered to turn over to county earnings in excess of the constitutional limit from the offices combined. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

Cited:

Harlan v. Sawyers, 290 S.W.2d 488, 1956 Ky. LEXIS 327 ( Ky. 1956 ); Stokely v. Fleming County Fiscal Court, 323 S.W.2d 844, 1959 Ky. LEXIS 337 ( Ky. 1959 ); Wilson v. Ball, 323 S.W.2d 840, 1959 Ky. LEXIS 336 ( Ky. 1959 ); Smith v. Harlan County Fiscal Court, 329 S.W.2d 61, 1959 Ky. LEXIS 141 (Ky. 1959); Hall v. Noplis, 367 S.W.2d 456, 1963 Ky. LEXIS 27 ( Ky. 1963 ); Fannin v. Davis, 385 S.W.2d 321, 1964 Ky. LEXIS 158 ( Ky. 1964 ); Brown v. Hartlage, 456 U.S. 45, 102 S. Ct. 1523, 71 L. Ed. 2d 732, 1982 U.S. LEXIS 92 (1982).

Opinions of Attorney General.

Under this section the fiscal court has authority to enter an order authorizing the payment of the reasonable office expenses incurred by an outgoing sheriff in making a final settlement. OAG 60-789 .

Officers in offices whose compensation have been set by the fiscal court are limited to that amount of compensation for that term. OAG 62-1120 .

The salary of any county officer who is elected or appointed for a term fixed by the constitution, or by statute, cannot be changed during his term but the salary of any statutory county officer or employee whose term is not so fixed by law and who may be removed at the pleasure of the appointing authority may be changed during the term for which he was appointed. OAG 63-672 .

It is not mandatory that the fiscal court fix the limit of a sheriff’s expenses, and if it is not done there is no limit on what a sheriff may spend for necessary office expenses. OAG 63-1054 .

Even though the jailer’s work is considered unsatisfactory, as long as he attempts to perform the duties in some manner, and as long as he remains in office, his salary cannot be changed during his term. OAG 64-399 .

Deputies, assistants and other employees of the county are no longer limited insofar as compensation is concerned or any change therein during their tenure, except when so restricted by statute. OAG 64-554 .

The fiscal court cannot change the compensation of the deputies and assistants of the elected county officers after the first Monday in May in the year in which such officers are elected. OAG 64-554 .

KRS 64.720 specifically authorizes a fiscal court to pay the constable a salary out of the county treasury, not to exceed $7,200 pursuant to Const., § 246. OAG 65-71 .

Where the sheriff entered into separate contracts with two cities in the county to collect their taxes, fees collected from the two cities should be deemed fees of the sheriff’s office and added to the total fees collected by the sheriff in computing the amount of excess fees to be turned over to the county. OAG 65-112 .

While the fiscal court has the authority to authorize the job or position of deputy for the county court clerk, the actual selection, employment or appointment of the person to serve as deputy is left to the discretion of the county court clerk. OAG 65-423 .

While under this section the fiscal court has the authority to fix the number of deputies of the county court clerk and the compensation of such deputies, the actual selection, employment, or appointment of the person to serve as deputy is left to the discretion of the county court clerk. OAG 65-423 .

The necessary office supplies and record books, as required by the office of master commissioner, are properly payable from the county treasurer. OAG 65-445 .

Where the Fayette County fiscal court passed a resolution authorizing the three justices of the peace to try misdemeanor cases by paying them a salary, the resolution could not take effect prior to the commencement of the next term of office following the election of justices of the peace. OAG 65-504 .

An order of the fiscal court entered in 1961 could not be amended in 1965 to increase the justices’ salaries for the remainder of their terms. OAG 65-507 .

The fiscal court is authorized to pay a salary to the Circuit Court Clerk, and the amount of such a salary is, when being initially established, purely discretionary with the fiscal court. OAG 65-785 .

Where the county fiscal court fixed a salary of $1,200 per year to be paid to the Circuit Court Clerk, that body could not validly eliminate that salary during the clerk’s term of office. OAG 65-785 .

The fiscal court could not raise the county judge’s (now county judge/executive’s) salary for the coming term after the first Monday in May of the year in which he was elected. OAG 65-866 .

Where no categories of reasonable expenses to be allowed members of the court were established by the fiscal court, members would be required to submit a detailed account of the claimed official expenses with proper supporting documentation. OAG 65-884 .

A county judge’s (now county judge/executive’s) salary is on an annual basis. OAG 66-98 .

The General Assembly has provided in this section a set of rules for the compensation of all county officers and employees in counties with populations below 75,000. OAG 92-108 .

A county judge (now county judge/executive) was entitled to no extra compensation over his annual salary where his term ran two days past the beginning of the next calendar year. OAG 66-98 .

The number and compensation of deputy jailers must be fixed by not later than the first Monday in May of the election year, and, if not so fixed, the number and compensation will be limited to that of the preceding term. OAG 66-105 .

Where a county had had no deputy jailers in the past and the fiscal court failed to make provision for their number and compensation prior to the deadline of this section, the jailer could appoint two deputies and a matron without the necessity for fiscal court approval, but the fiscal court would have the authority to determine their compensations. OAG 66-105 .

The salary of the master commissioner in counties having a population of less than 75,000 is left to the discretion of, and establishment by, the fiscal court of such counties. OAG 66-303 .

Where the magistrates did not receive any compensation for trying criminal cases in the preceding term, an order entered by them after their term had begun authorizing such compensation was valid. OAG 66-388 .

A fiscal court must fix the salary of a county attorney, subject to the maximum limit of $9,600, on or before August 1, 1966. OAG 66-389 .

Where the fiscal court failed to designate the position of a deputy sheriff to serve as dog warden, if the sheriff has not appointed all the deputies that he is permitted by law, he can appoint the present dog warden as one of his deputies. OAG 66-398 .

The fiscal court could validly raise that portion of the circuit clerk’s salary that constituted his salary as law librarian after his term of office had begun. OAG 66-412 .

Any excess fees that the county attorney may accumulate must be turned over to the county within a reasonable time after the end of each calendar year of his term of office, but the county attorney cannot be compelled to do so on a monthly basis. OAG 66-545 .

The fiscal court has the authority to effect payment for postage stamps, envelopes, and all similar necessary expendable supplies for the operation of the office of Circuit Court Clerk directly out the county treasury. OAG 66-783 ; 67-26.

A jail cook’s salary cannot be changed during the term of the jailer, since the term “assistant” would include the cook, since he is not an official or deputy but is an employee. OAG 67-246 .

An order of the fiscal court stating merely, “it is ordered that the magistrates start drawing a salary of $100 per month under the new law which was passed in 1958” is invalid because it fails to indicate the narrow statutory authority to be applied, and it fails to establish standards as required by the courts. OAG 67-255 .

A lump sum travel expense account for the county judge (now county judge/executive) is not authorized and unless payments made to him for “expenses” meet the requirements of necessary travel expenses for official business they would constitute a prohibited increase in salary. OAG 67-325 .

Minimum wage and maximum hour provisions do not apply to county jail deputies. OAG 67-333 .

Necessary travel expenses of the coroner’s office properly documented may be authorized by the fiscal court. OAG 67-343 .

This section governs the procedure for fixing the salary of a trial commissioner. OAG 67-356 .

The fiscal court, in its sound discretion, can establish the compensation or salary of the trial commissioner, and such discretion is not subject to the constitutional limitations of Const., § 246 because a trial commissioner is not an officer. OAG 67-356 .

Subsection (1) of KRS 64.200 provides the limits of constables’ salaries in counties containing a population of over 250,000 and under this section the fiscal court is required to fix the compensation of constables within the limits prescribed. Const., § 161 and subsection (1) of this section direct that the salary shall not be changed during the term. Therefore the Jefferson County fiscal court cannot raise the salary of constables during their terms. OAG 68-29 .

The county is liable for the employer’s contributions to social security involving the official fees of the offices of county clerk, the sheriff, and their deputies and as relates to the county sheriff, county clerk, and their deputies. OAG 68-51 .

In counties of less than 75,000 population, the fiscal court of such county shall set the salary to be received by the master commissioner of the county Circuit Court. OAG 68-79 .

A circuit clerk was not entitled to additional fees or compensation for building or maintaining an office in his home for the transaction of business after hours and on holidays. OAG 68-231 .

The fiscal court cannot change the maximum compensation of $9,600 per year established by the General Assembly for county attorneys. OAG 68-268 .

A proper adjustment of the sheriff’s 1966 and 1967 settlements with the county, based upon a proper allocation of the 1966 franchise taxes collected in 1967, can be made by reopening those settlements and making corrections. OAG 68-319 .

The fiscal court has no authority to pay a portion of a county judge’s (now county judge/executive’s) salary or office expenses (that might be attributed to his road work) from the county road fund. OAG 68-581 .

The salaries of two (2) deputies of the Circuit Court Clerk cannot be changed during the term of office of the Circuit Court Clerk. OAG 68-598 .

The fiscal court may, in the year of election of a county officer, fix the maximum amount that the officer may expend in each category each year. In such case, such expense, though documented as required by Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ) cannot exceed those maximums. OAG 69-32 .

The paper, chemicals, and other copying supplies used for the recording books of the county court should be paid for out of excess fees, but if this is not possible payment should be made out of the county treasury. OAG 69-492 .

The salary of a deputy county court clerk cannot be changed once the fiscal court sets such salary during the term. OAG 70-23 .

The Circuit Court has no authority to set a salary for the grand jury stenographer. The fiscal court of the county in which the Circuit Court is held and grand jury proceedings take place should fix the compensation for the grand jury stenographer. OAG 70-38 .

A county attorney, who used his private secretary from his law practice and supplemented a monthly rate with funds out of his own pocket, may be properly reimbursed for the expense of having stenographic work performed for the county, provided that such expense is detailed and documented. OAG 70-46 .

In counties having a population of 75,000 or less the fiscal court must establish salaries of deputy county court clerks not later than the first Monday in May of the year of the election of the clerk. If the fiscal court sets the salaries for deputies at $9600 per year within the proper time mentioned, such action could not be reversed by the courts unless it could be shown that the fiscal court acted arbitrarily or unreasonably in setting the salaries. OAG 70-65 .

A fiscal court order increasing the salary of the trial commissioner to $575 per month is valid, since it does not come within the prohibition against change of compensation of deputies during the term. OAG 70-102 .

A county judge’s (now county judge/executive’s) salary cannot be raised $100 per month by calling the $100 an expense account. OAG 70-122 .

Generally the salary levels of justices of the peace are based upon the population factor and, where the compensation of justices of the peace have been set by the fiscal court pursuant to KRS 64.255 (now repealed), that compensation cannot be changed during their terms of office despite the fact that they may have unusual and burdensome case loads. OAG 70-165 .

Where a county with a population of less than 75,000 has two divisions of Circuit Court presided over by two (2) judges with a deputy clerk employed for each division, with the same work load, the two deputies cannot each receive the salary of a first deputy. OAG 70-198 .

A county judge’s (now county judge/executive’s) stenographer appointed under KRS 25.290 (now repealed) is not an elected officer or his deputy, hence such stenographer’s salary can be changed by the fiscal court. OAG 70-221 .

Even though the furnishing of residential space within the jail would have a rental value, there is no increased or change of compensation in that form. OAG 70-225 .

Where a specific sum is budgeted (or ordered to be paid out of the fees of the office) to cover extra help or extra pay to the regular deputies, which payments or help are based upon the necessities of the office and are beyond the normal demands and operations of the office, such extra pay provisions are legal. OAG 70-331 .

While the salary of the deputy county clerk and deputy sheriff could not be increased in July 1970, since the law requires the adjustment to be made not later than the first Monday in May and in May the law was not yet effective, nevertheless the salaries of the secretaries to the county judge (now county judge/executive) and county attorney may be changed during the term of those officers, since their secretaries are not deputies or assistants as mentioned in this section. OAG 70-504 .

Although the three magistrates of Wolfe County were authorized to try criminal cases pursuant to KRS 64.255 (repealed), their salaries for such services cannot be raised, since a change in the salaries of elected officers is prohibited under this section and by Const., §§ 161 and 235. OAG 70-505 .

The payment of a salary to a county clerk from county funds is discretionary, generally, with the fiscal court and such discretion should be exercised under this section and KRS 64.720 . OAG 70-524 .

A jailer was not authorized to compensate a deputy for cooking services in the absence of a specific order of the fiscal court providing for the compensation of the deputy jailer pursuant to this section. OAG 70-591 .

The fiscal court could implement a salary adjustment in the salary of the county judge (now county judge/executive) subject to the maximum compensation of KRS 64.535 but it could not be retroactive. OAG 70-592 .

The fiscal court could legally pay a deputy clerk an amount each month in addition to the established salary where the additional amount is for performing extra duties which are not normally required of such office. OAG 70-603 .

If salary increases voted by county commissioners to county officers during their terms were actually salary “adjustments,” under the flexible dollar theory, then the increases would not be changed as contemplated by Const., §§ 161 and 235 and this section. OAG 70-618 .

If the provisions of KRS 67.100 were not complied with, an attempted “meeting” of the fiscal court was not a valid one. OAG 70-689 .

Where a meeting of the fiscal court did not comply with the provisions of KRS 67.100 , the magistrates were not entitled to per diem under this section. OAG 70-689 .

For the calendar year of 1971 and each subsequent year an elected officer, under this section, may submit a list of deputies and their salaries and written request for adjustments to the fiscal court any time but not later than the first Monday in May of 1971. OAG 70-759 .

Once the salary for the county attorney is set for the term, even though the one elected resigns and another is appointed, the salary cannot be changed for the balance of the term except the salary can be “adjusted” under the “flexible dollar” doctrine. OAG 71-50 .

Since the stenographer to the county attorney is not an elected officer or deputy, the salary of the stenographer can be changed from time to time. OAG 71-50 .

A salary increase to a deputy, where granted, must be based upon sound considerations of practical justification and of budgetary practice as required by KRS ch. 68. OAG 71-98 .

Granting salary increases to deputies upon the recommendation of the county officer employing them is within the sound discretion of the fiscal court. OAG 71-98 .

The invoking of the “all or none” principle by the fiscal court in increasing salaries for deputies would be an arbitrary exercise of its discretion. OAG 71-98 .

It is within the discretion of the majority of the fiscal court to call a meeting once a week to conduct actual and necessary county business, but these meetings cannot be legally used merely to increase the compensation of the magistrates for attending meetings. OAG 71-149 .

A special deputy sheriff who has the arresting authority of a peace officer but who is not on the county payroll and who works only for a night club does not hold a valid appointment as a deputy sheriff, since he is not a working county-paid member of the sheriff’s staff. OAG 71-170 .

The fiscal court may, in its reasonable discretion, increase the salary of the county treasurer during the term of office. OAG 71-540 .

Compensation of the sheriff cannot be changed during his term in office. OAG 72-7 .

Subsection (5) does not outline the conditions under which the number of deputy jailers may be changed. OAG 72-19 .

Subsection (5) prohibits the county jailer from receiving any part of the deputy jailer’s salary. OAG 72-19 .

Number and compensation of deputy jailers appointed by the county jailer must be fixed by the fiscal court not later than the first Monday in May of the year of the jailer’s election. OAG 72-19 .

Change or adjustment in the salary or compensation of the county clerk during his current term of office would not be valid. OAG 72-40 .

Although KRS 71.060 contains provisions concerning the appointment of deputy jailers and matrons, this section is so broad as concerns county elected officials and their deputies, that in counties of less than 75,000 population the fiscal court may establish, not later than the first Monday in May of the year of the election of the jailer, the number and compensation of the deputy jailers and matrons, while the actual selection of such persons, once the number and compensation thereof have been determined by the fiscal court, is vested in the jailer. OAG 72-118 .

Circuit Court Clerk cannot pay deputies for overtime or as a bonus if the total salary paid the deputies exceeded the maximums set up by subsection (8) (deleted by amendment). OAG 72-192 .

Circuit Court Clerk may increase the salaries of deputies up to the limits specified subject to having sufficient funds. OAG 72-282 .

County coroner whose salary was fixed before the first Monday of May, 1969 may not later have his salary increased due to an increased work load. OAG 72-285 .

Fiscal court is monetarily responsible for official postage used in the Circuit Court Clerk’s office. OAG 72-293 .

Increase in salaries of deputy clerks can be made retroactive to January 1, 1972 although there is no specific mention of such retroactivity in the 1972, ch. 30, § 1 amendment to this section. OAG 72-301 ; 72-368.

Sheriff may not appoint deputies without compensation. OAG 72-315 .

Sheriff may not appoint more deputies than he had prior to May, 1969, as the number of deputies is authorized by the fiscal court and cannot be changed during the term. OAG 72-315 .

County court or county judge (now county judge/executive) does not approve deputy appointments. OAG 72-315 .

The $215 salary provided in the 1972 amendment by ch. 358, § 1 does not conflict with a salary ordered pursuant to KRS 64.255 (repealed). OAG 72-454 .

This section as amended in 1972 supplants the old per diem allowance of up to $15 per day for justices of peace for services in connection with the fiscal court. OAG 72-454 .

The monthly salary provided in the 1972 amendment to this section covers the salary of the magistrates serving on the fiscal court in connection with their work there. OAG 72-507 .

Monthly salary provided in the 1972 amendment is in lieu of the old per diem allowance. OAG 72-507 .

The 1972 amendment to this section has brought this section into harmony with the provisions of KRS 64.535 regarding the salary of a county attorney. OAG 72-539 .

A raise on August 22, 1972 of magistrates’ salaries in excess of the consumer price index formula was invalid as were two other attempted raises which were made after September 1, 1972. OAG 72-658 .

Provided the proper budgeting is accomplished pursuant to KRS Ch. 68, the fiscal court may authorize an increase in the compensation of deputy county clerks if the request and order are entered prior to the first Monday in May of the year in which the increase is to take effect. OAG 72-786 .

If a request for a raise is filed after the first Monday of May of a given year the fiscal court can, in its discretion, authorize a raise by issuing an order in that year but the raise cannot become effective until January first of the following year. OAG 72-791 .

If a county clerk desires to raise deputy clerks’ salaries, he should request such proposed raise to the fiscal court in such time that the fiscal court can consider the request and act on it not later than the first Monday in May and so the matter of an increase is within the sound discretion of the fiscal court. OAG 73-130 .

In determining the salary of county commissioners serving on a fiscal court in a county containing a city of the fourth class, subsection (7) (deleted by amendment) provides that compensation shall not exceed 20% more than the annual compensation paid in the county for the calendar year immediately preceding June 16, 1972, but since the magisterial system and not the commissioner system was in effect during that period of time and the annual compensation paid magistrates was $360 per year, by applying this criterion $360 per year would be the minimum salary and $432 per year the maximum, which would be an unreasonable compensation, so that it would be better to apply the salary paid commissioners eight years ago when the commissioner system was in effect which would give the new commissioners a minimum salary of $3600 and a maximum salary of $4320, which interpretation appears to be in conformity with the letter and spirit of the law. OAG 73-277 .

Where the fiscal court of Johnson County wants to set the salaries for magistrates taking office in 1974 who will not be on the fiscal court but who will perform as justices of peace, subsection (5) provides that the fiscal court is required to set the salaries of elected county officers not later than the first Monday in May of the year of the officer’s election, which would be May 7, 1973; but this section must be read with KRS 64.255 (repealed), which provides that the fiscal court may establish a salary for justices of the peace trying criminal cases with the maximum salary depending on the applicable population bracket set forth in KRS 64.255 (2) (repealed), so the setting of a salary where the justice desires to exercise criminal jurisdiction is permissive and not mandatory and, assuming that the correct population figure for Johnson County is 16,845, then the salary of a justice under KRS 64.255 (repealed) must not exceed $1200 per annum and there is no minimum. OAG 73-277 .

The fiscal court setting salaries for county officers for the new term beginning in January, 1974, could withdraw its compensation order and vote on a new order for this purpose. OAG 73-352 .

Compensation of the county clerk and the sheriff and their deputies should be set by the fiscal court for the new term beginning in January, 1974, not later than the first Monday in May of the year of the election or May 7, 1973. OAG 73-363 .

Fiscal court is empowered to purchase a private law library and office equipment, either for the county attorney’s office out of the excess fees of the succeeding county attorney or out of the county treasury where the fees of that office are insufficient, under the authority of this section and of KRS 67.080 which has broadly interpreted in Barkley v. Gatewood, 285 Ky. 179 , 147 S.W.2d 373, 1941 Ky. LEXIS 356 (1941), to establish the county’s authority to pay for necessary equipment of the offices of the county officials as a practical necessity in the proper conduct of the particular county office, or such purchase could be accomplished by the fiscal court under the authority of KRS 172.100 , providing for the establishment of a county law library. OAG 73-433 .

Jailer in county which previously had no deputy jailers could appoint woman as matron, with the salary for matron left to the discretion of the fiscal court. OAG 73-469 .

County judge’s (now county judge/executive’s) salary is on an annual basis so an adjustment of salary could be retroactive to the beginning of a particular year but the retroactive application of a salary adjustment could only go back to the beginning of the year in which the adjustment is made. OAG 73-489 .

Fiscal court could enter an order fixing magistrates’ salaries for their work on the fiscal court in a flat monthly sum not to exceed $215 per month for each magistrate as provided by subsection (7) (deleted by amendment) which sum could be paid in addition to the salary paid under KRS 64.255 (repealed) and the allowance under KRS 64.258 (now repealed). OAG 73-508 .

Fiscal court may in its sound discretion fix compensation for the stenographic reporting of grand jury proceedings whether the reporting is done by the regular Circuit Court reporter or by a reporter selected especially for that purpose, but the schedule of fees in KRS 28.460 (repealed) applies only to actual criminal trials and does not apply to grand jury proceedings. This opinion affirmed OAG 70-38 ; 73-519.

A magistrate who does not try criminal or civil cases may be paid a maximum of $215 per month for his services on the fiscal court and in addition he may be paid office expenses not to exceed $100 per month pursuant to KRS 64.258 (now repealed) and this sum is not considered as salary within the meaning of KRS 64.255 (repealed). OAG 73-554 .

While the sheriff may select his deputies, such appointments must be approved by the county judge (now county judge/executive), and the number of deputies and their compensation will depend upon the sound discretion of the fiscal court which considers the needs of that office in order for it to function adequately, the fees of the office, and the state of the county budget. OAG 73-637 .

Justice serving on the fiscal court can be paid a maximum of $215 per month and, based on a county population of from 20,000 to 60,000, a justice of peace trying criminal cases can receive $200 per month, pursuant to KRS 64.255 (repealed), and each justice of the peace may also receive up to $100 per month to assist with the expenses of his office if the county has sufficient excess funds, pursuant to KRS 64.258 (now repealed), which expense allowance is not compensation. OAG 73-651 .

If the finances of the clerk’s office and county treasury permit, the number of deputy clerks authorized by the fiscal court for this term will govern as to the remainder of 1973, including a replacement for the deputy who becomes clerk at the salary levels previously authorized. OAG 73-742 .

Where the present clerk who is resigning has expended all of the expenses of his office allowed by the fiscal court, the fiscal court may establish a maximum for expenses for the successor clerk as this section makes no provision for establishing a maximum which the “clerk’s office” may expend but is couched in terms of the “officer” who occupies the office. OAG 73-742 .

Although deputies’ salaries are required to be set not later than the first Monday in May in the year of the election, such compensation may be reviewed and adjusted by the fiscal court not later than the first Monday in May of any successive year after election year of the officer and if the fiscal court grants such an increase it could be retroactive to January 1 of that year since “annual compensation” is involved and if the fiscal court order so stipulates, such increase can be paid out of excess fees of the office. OAG 73-746 .

Where the county budget for fiscal year July 1, 1973, provided an increase in the salary of the county attorney from $4800 annually to $7200 annually and the maximum is $12,600 per annum, if there is nothing in the fiscal court order limiting the increase to a July 1, 1973, effective date, the fiscal court has the discretion to adjust the compensation retroactive to January 1, 1973, since the salary is on an annual basis. OAG 73-751 .

Section does not allow for a change in the number of deputy positions and the basic control device built into the salary legislation by KRS 64.730 as relates to the number of deputy positions has been retained as a fundamental legislative purpose. OAG 73-835 .

Salary of a county attorney’s legal secretary may be changed during the term of the county attorney since secretary is subject to the discretion of the fiscal court rather than the restrictions on elected officers and deputies. OAG 73-853 .

Once the fiscal court determines the number of deputy positions, such positions cannot be changed during the term and the sheriff could not fill a full-time deputy position authorized by the fiscal court with a part-time deputy and use the remaining money to pay extra help in the office. OAG 73-858 .

Where a clerk used $1000 of his fees to distribute among his deputies for extra work performed, under subsection (5), lumping or aggregating compensation authorized for the deputies cannot be used, where all deputy positions are not filled, to increase the salaries of those persons filling the deputy positions and payment for extra work on an emergency basis has to be based upon specific budgeting by the fiscal court but, in its judicial discretion, it can give the clerk credit against his excess fees in the sum of $1000 as a compromise of an unliquidated claim if he acted in good faith. OAG 73-869 .

A fiscal court has the authority to adopt an accounting system wherein fee officers turn in all fees to the county treasury and the county treasurer in turn pays each officer his monthly salary, if properly set pursuant to this section, from the general fund; but, in order not to violate KRS 64.535 , it must not provide a salary out of the county treasury that would be a sum less than the total fees of the office that would otherwise be available for the officer’s personal compensation. OAG 74-1 .

Although constable’s jurisdiction is county-wide, he must maintain his office in the district from which he was elected and the fiscal court has the responsibility for providing an office in his district with the equipment necessary to accomplish his statutory duties. OAG 74-43 .

A blanket sum from revenue sharing money allocated to the sheriff’s office is not valid since it does not conform to this section in providing specific sums for specific purposes and lump sum expense accounts are generally prohibited by KRS 64.710 . OAG 74-79 .

It was proper for the outgoing fiscal court in a county with the commissioner form of government to set a salary pursuant to KRS 64.255 (repealed) and authorize an expense account pursuant to KRS 64.258 (now repealed) for each justice of peace if it had never before done so and if it complied with the standard of performance of duties set forth in Kitchens v. Milliken, 329 S.W.2d 68, 1959 Ky. LEXIS 142 (1959) and Roberts v. Hickman County Fiscal Court, 481 S.W.2d 279, 1972 Ky. LEXIS 244 (1972) and the new court could not revoke the orders. OAG 74-101 .

Monthly compensation of $215 for a magistrate on the fiscal court is authorized by this section since the old per diem basis for that work was abolished by the 1972 amendment. OAG 74-113 .

The $100 monthly expenses paid to magistrates pursuant to KRS 64.258 (now repealed) is not compensation under KRS 64.530 and such payment is permissible where it is properly budgeted under KRS Ch. 68, the amounts paid to each justice are equal and the county has sufficient funds in the county treasury after governmental necessities have been provided. OAG 74-113 .

Since this section clearly establishes a salary limit to $215 per month for each magistrate, it is illegal for a fiscal court to vote an addition to their salaries for extra work in handling the federal revenue sharing program. OAG 74-113 .

Where number of sheriff’s deputies was fixed in April of the election year, it cannot be changed during the term, but their salaries may be increased by the fiscal court if a request from the clerk or sheriff is submitted before the first Monday in May in any year succeeding the election year. OAG 74-143 .

Fiscal court could not make a blanket appropriation in advance to sheriff for expenses incurred for automobiles, deputies’ salaries and expenses incurred by night patrolling of county roads. OAG 74-159 .

The fiscal court has a basic flexibility in providing for necessary office expenses of the sheriff’s office. OAG 74-243 .

The fiscal court has the authority to increase the mileage rate allowance for the sheriff’s office from ten cents per mile to fifteen cents per mile during the term. OAG 74-254 .

A sheriff’s allowance, as a credit against fees, for necessary and actual mileage in performing official services other than those for which he receives reimbursement under KRS 70.170 and 64.095 (now repealed) may be increased during term as this section is not applicable to such an increase. OAG 74-254 .

The fiscal court may in its discretion authorize a salary for constables payable out of the county treasury. OAG 74-282 .

The employment of a county detective, approved and supervised by the sheriff, would be a circumvention of the usual designation of deputy sheriff positions by the fiscal court and the detective would be, for all practical purposes, just another deputy sheriff. OAG 74-303 .

The fiscal court may in its discretion increase or decrease the salaries payable out of county funds of all the officers named in KRS 64.535 , except justices of the peace or commissioners serving on the fiscal courts, according the increase or decrease certified by the Kentucky Department of Commerce (now Commerce Cabinet) prior to the second Friday in February of each year, which increase or decrease is to be based on the increase or decrease of the consumer price index for 1949. OAG 74-322 .

If the fiscal court refuses to set a salary for a deputy jailer authorized by it without establishing a salary, the jailer’s only recourse is to file an action for mandamus in the Circuit Court asking that the fiscal court perform its duty under this section. OAG 74-389 .

Where the jailer and a deputy jailer reside in the jail, the fiscal court may charge them rent which must be paid out of their private funds and not from the excess fees as an office expense since the court is under no legal duty to provide residential quarters to county employees. OAG 74-389 .

There is nothing in the statutes providing that a county jailer’s wife must be the jail matron; but, a jailer may, under the authority of KRS 71.070 (now repealed), appoint a respectable woman, who may be his wife, as matron and the fiscal court must set her salary and make provisions to pay her out of excess fees or the county treasury. OAG 74-389 .

The county jailer must pay for janitorial services out of the money annually appropriated by the fiscal court under KRS 67.130 and cannot pay for such services out of excess fees. OAG 74-389 .

Although the fiscal court does not have the right to select deputies of the county court clerk, sheriff and jailer, for purposes of KRS, Ch. 344 relating to fair employment practices the deputies are county employees and the fiscal court may, as part of its duty to follow KRS, Ch. 344, enact an ordinance prohibiting the fee officers from engaging in unfair employment practices; but, enforcement is the responsibility of the state and local human rights commissions. OAG 74-390 .

The fiscal courts have the power to appropriate dues, in connection with a proposed county officials association to pay for services to members, under this section and KRS 67.080 and 67.083 . OAG 74-434 .

The words “annual compensation” in subsection (5) are to be read as authorizing retroactive changes in compensation and such a reading is not in conflict with the term “monthly” in KRS 64.535 . OAG 74-439 .

The fiscal court has the authority to fix the number of sheriff’s deputies regardless of the fact that revenue sharing, rather than county funds are being used as compensation. OAG 74-445 .

A store owner who handles large sums of money cannot be appointed a deputy sheriff for his own protection, even with approval of the county court, as such a person would not really be a working and county paid member of the sheriff’s staff as contemplated by this section. OAG 74-483 .

An urban-county council is required under KRS 25.780 (repealed) and this section to set a salary for the justices’ clerks serving in connection with the civil jurisdiction of the justices’ courts but the order fixing the salary must expressly indicate that the salary is payable only from the civil fees received by the justices’ courts. OAG 74-527 .

A fiscal court cannot contract, under authority of this section, with a city of the fourth class located within their jurisdiction to detail a deputy sheriff to perform a majority of his duties within the city in return for the payment of his salary and expenses by the city; but, the city and county may enter into a contractual arrangement for police protection pursuant to the Interlocal Cooperation Act, KRS 65.210 to 65.300 . OAG 74-578 .

The county police department whose force is established, appointed and operated by the county court pursuant to KRS 70.540 and 70.550 (now repealed) cannot be placed under the jurisdiction of the sheriff’s department as it has no organizational connection with the sheriff’s department whose staff consists of deputy sheriffs authorized by the fiscal court under this section. OAG 74-581 .

No additional deputies are authorized during term for a coroner, who has appointed two deputies pursuant to KRS 72.040 (now repealed) or 72.130 (now repealed), unless the fiscal court authorized additional deputies pursuant to this section not later than the first Monday in May in the year of the election. OAG 74-586 .

The sheriff may pay necessary office expenses as provided by statute or recognized as such by the courts out of excess fees or he may submit claims to the fiscal court, to be paid out of the county treasury, provided the claims are properly documented. OAG 74-603 .

The sheriff must perform statutory duties when called upon regardless of whether or not he gets paid. OAG 74-603 .

There is no legal basis for paying justices of the peace anything where the fiscal court fails to make an order as required by this section or to make budgetary provisions as required by KRS, Ch. 68 since KRS 64.255 (repealed) and 64.258 (now repealed) are both permissive with the fiscal court. OAG 74-621 .

KRS 64.285 gives the fiscal court authority, in its discretion to adjust, prior to September 1, the annual salaries of the incumbent county commissioners not to exceed $9,000 per year each, as provided in subsection (7) of this section, retroactive to January 1974. OAG 74-622 .

An elected sheriff who is removed from office may submit claims to the fiscal court for reimbursement of necessary office expenses provided by the statute or recognized by the courts payable out of the county treasury or excess fees, provided they are properly documented. OAG 74-680 .

The requirement in KRS 70.030 that the county court approve a sheriff’s appointment of his deputies has been amended by implication since subsection (4) of this section controls where the county population is less than 75,000 and the fiscal court determines the number and compensation of deputies, KRS 64.345 controls in Jefferson and Fayette Counties and an order of a panel of circuit judges and county judge (now county judge/executive), signed by a majority, makes the determination and KRS 64.345 controls in all other counties having 75,000 population or more and the determination is made by the fiscal court. OAG 74-697 .

Where the fiscal court on September 6, 1974 (after the September 1, 1974 deadline for salary adjustments imposed in the 1972 amendment to this section) set the salary of $260 per month for each magistrate for his service on the fiscal court its order was valid if a “salary” had never before been set for the magistrates since the 1972 amendment eliminated the old per diem basis for compensation and the per diem basis thus is not a legal salary. OAG 74-716 .

If a sheriff borrows money to operate his office, the interest he pays is not an official expense for which he can receive credit against the excess fees of his office. OAG 74-731 .

In view of KRS 64.528 , any adjustment by the fiscal court in the salary of the sheriff under the authority of KRS 64.535 must have been ordered on or before September 1, 1974. OAG 74-731 .

Justices of the peace serving on the fiscal court must be paid a monthly salary and cannot be paid a per diem for their work. OAG 75-44 .

Under KRS 64.345 and 71.060 a jailer may on his own authority appoint not more than two deputies but he may not pay their salaries from the salaries and fees of his office and their salaries would have to be fixed by order of the fiscal court unless a salary had been previously set for a deputy in which case, in the absence of a fiscal court order, it would carry over as the salary of the new deputy under KRS 64.730 . OAG 75-69 .

The salaries of commissioners serving on fiscal courts in counties containing cities of the third or fourth class may be adjusted upward not to exceed 20% more than annual compensation paid in county for calendar year immediately preceding 1974. OAG 75-149 .

Where the maximum compensation has not been reached, the fiscal court may authorize an adjustment of the salaries of the subject officers, subject to proper budgeting procedure under KRS, Ch. 68. OAG 75-149 .

A purchasing power adjustment of the salaries by the fiscal court does not constitute a “change” in compensation. OAG 75-149 .

A circuit clerk may not raise the legislative salary ceiling of $8400 for first and second deputy clerks since this is a matter within the sound discretion of the General Assembly. OAG 75-186 .

The fiscal court may, by order, raise the salaries of magistrates to the maximum amount set forth in this section subject to proper budgeting procedures under KRS, Ch. 68. OAG 75-212 .

The county jailer can, in view of KRS 71.060 , appoint up to two deputies without the approval of the county judge (now county judge/executive), county court or fiscal court and, where there has been no previous fixed compensation for such deputies, the fiscal court may, subject to proper budgetary procedures, fix their compensation during their current terms. OAG 75-293 .

Where the outgoing fiscal court fails to set compensation for county officials and their deputies, the incoming fiscal court may not do so but may adjust the compensation upwards in accordance with subsection (5) of this section. OAG 75-317 .

Where the salaries of the county officials are to be paid from the county treasury, the salaries must be set not later than the first Monday in May of the year of the election of the officials. OAG 75-317 .

A county clerk may legally appoint deputies to fill only those deputy positions authorized by the fiscal court under the provisions of this section and thus a county clerk may not appoint, as a deputy, a person who resides outside the county from which the clerk was elected. OAG 75-343 .

Any increase or adjustment of deputy salaries during the term under this section, if it is done at all, must be done on an individual basis and a county that appropriates a lump sum per year to the clerk for the deputies without specifying the individual deputy’s compensation, is not in compliance with this section which requires the fiscal court to fix the compensation of individual deputies or each deputy position. OAG 75-403 .

Where magistrates are drawing the maximum salaries for serving on the fiscal court, for handling criminal cases and for expenses, these amounts cannot be increased unless they incur actual and necessary official expenses as justices of the peace over and above the $100 allowance and their claims filed with the fiscal court are properly documented. OAG 75-410 .

The monthly salary of $260 for work on the fiscal court is permissible under this section and the sum of $100 per month may be paid to each justice as an office expense pursuant to KRS 64.258 (now repealed) but a lump sum payment of $100 per month for “travel expense” is illegal since it is prohibited by the fiscal court unless the claims are properly documented. OAG 75-418 .

Although there are no funds in a particular account with which to pay the magistrates’ salaries, the fiscal court is nevertheless required to provide a salary, not a per diem, so that the fiscal court could validly authorize a monthly salary of $260 for each magistrate and transfer money from another budget fund to provide for the emergency. OAG 75-701 .

If there is no money available for magistrates’ salaries except by transfer from another budget fund pursuant to KRS 68.290 and the county budget commission refuses to approve a transfer, then a mandamus suit would be appropriate to require the budget commission to facilitate the necessary transfer of funds since under emergency circumstances the budget commission has no discretion in the approval of the transfer. OAG 75-701 .

Subject to any maximum level of office expenses which may have been established by a fiscal court order, a county clerk could purchase, out of the fees of his office, a hospitalization plan for his regularly employed deputies as a fringe benefit based on service. OAG 76-69 .

Where a person was elected sheriff to fill a vacancy on November 4, 1975, and the predecessor who had served as sheriff from May 6, 1975 to November 6, 1975, during which time approximately 75% of the county taxes were collected and the collection fees in excess of office expenses in the amount of $20,000 were turned over to the fiscal court and deposited in the court’s general fund, it appears that an equitable and reasonable construction of this section and KRS 67.080 would be that these excess fees should be returned to the sheriff for the purpose of paying the official expenses of the office from the time of taking office through the end of the original four-year term to prevent a breakdown in the proper functioning of a county office. OAG 76-84 .

The salaries of deputy sheriffs are determined by the fiscal court and federal revenue sharing funds may be used to pay the salaries provided that such money is specifically allocated for law enforcement personnel. OAG 76-122 .

Until the unified state court system is properly financed, the responsibility for paying the court reporter of the recreated third judicial district is upon the Christian County Fiscal Court which should set the salary for the court reporter for the interim, and the court would be acting reasonably by providing a salary of $8,400 per annum. OAG 76-218 .

Although the legislative intent was to include the justices of the peace under the general annual maximum compensation formula which computes a salary level by applying the change in the consumer price index to the 1949 base of $7,200, the fiscal courts, in voting on salaries for justices of the peace, should consider the justices’ work schedules. OAG 76-220 .

The salaries of justices of the peace and other constitutional officers mentioned in this section can be raised during their term of office, for the salaries are merely being adjusted in purchasing power. OAG 76-252 .

Where the county clerk’s request for a raise in deputy compensation was presented to the fiscal court on May 2, 1976, but where the application was held over until its approval on June 1, 1976, the June 1 action was in substantial compliance with this section so as to effectuate the pay increase. OAG 76-305 .

Since there is no statute providing that the constable’s compensation shall be payable only out of the fees of his office, the fiscal court may pay him a salary under this section. OAG 76-579 .

A legally appointed deputy sheriff who is filling a deputy position authorized by the fiscal court, and who incurs a work connected injury or disability or medical expenses, should file a claim within the framework of the workmen’s (now workers’) compensation provisions rather than receiving a direct payment from the general funds of the county for expenses incurred as a result of a work connected injury. OAG 77-140 .

Subsection (1) of this section as amended by Acts 1976 (Ex. Sess.), ch. 14, § 40 and KRS 64.535 as amended (Acts 1976 (Ex. Sess.), ch. 17, § 21) requires the fiscal court to fix the compensation of the county attorney for his civil work for the county. OAG 77-219 .

Where fiscal court set salaries for county officials at April 5, 1977, regular meeting and at such meeting set the salary for magistrates at $400 a month, the fiscal court could not on April 12, 1977 call a meeting and rescind the resolution of April 5, 1977, relating to the magistrates’ salaries. OAG 77-235 .

A county attorney should not enter into a contract with the fiscal court as to the scope of his duties and compensation inasmuch as his civil duties are prescribed by statute and his compensation is strictly up to the fiscal court. OAG 78-13 .

So long as the fiscal court has not exhausted its potential to implement the rubber dollar adjustment statute, KRS 64.527 , it may adjust such compensation up to the maximum amount permitted by KRS 64.527 . OAG 78-54 .

The fiscal court can appropriate funds from the county’s general fund or revenue sharing for the purpose of paying the salary of the deputy jailer, the jailer’s fees being insufficient to fund it. OAG 78-70 .

The fiscal court cannot reduce the number of deputy county clerks during term. OAG 78-81 .

A sheriff could not legally employ two or three additional persons as part-time deputy sheriffs where the fiscal court had only authorized two deputy sheriff positions and the persons filling those two positions were the only legal deputy sheriffs in the county during the term of office of such sheriff. OAG 78-112 .

Under this section the fiscal court is required, not later than the first Monday in May in the year of the sheriff’s election, to establish by proper order the number of deputies authorized for the sheriff and their compensation and the number of deputies fixed for a sheriff’s term cannot be changed during the term of office of that sheriff. OAG 78-112 .

Under current law the compensation of county attorneys generally will be funded by the State treasury (prosecutorial duties) and by the county treasury (civil county duties). OAG 78-113 .

The only legal deputy county clerks are those appointed by the clerk to fill actual positions authorized by proper orders of fiscal court under this section. OAG 78-222 .

The fiscal court sets the number and salaries of the county clerk’s deputies, except in counties containing a population of 75,000 or over. OAG 78-402 .

The fiscal court may pay any amount or nothing at all to a county attorney for a unit of work so long as that amount plus the payments he receives from the commonwealth do not exceed the rubber dollar amount for the year. OAG 78-415 .

This section provides that on or before the first Monday in May of any successive year, upon the written request of the elected county official, the salary of his deputies may be increased by the fiscal court, but this deadline of the first Monday in May of any successive year is permissive and even though the request was filed with the Henderson fiscal court on June 5, 1978, it is the opinion that the fiscal court, if money is available for this purpose, under proper budgetary procedure of KRS Chapter 68, in its discretion, may increase the salaries of the sheriff’s deputies for 1978. OAG 78-478 .

The fiscal court should set the salary for the matron deputy, which salary may be paid out of the fees of the jailer, if available, or if not available, the salary may be paid out of the county treasury within the discretion of the fiscal court. OAG 78-489 .

If the jailer had no salary out of the county treasury during the preceding term, then the fiscal court may at any time fix a salary for the county jailer, payable out of the county treasury, which cannot exceed the maximum authorized under KRS 64.527 . OAG 78-565 .

The appointing of the first two deputies is strictly up to the jailer, but if they are to be properly salaried, the action of the fiscal court is required. OAG 78-565 .

Where time and a half payment for overtime is involved, such money will come from the same source that the ordinary salary comes from; if the deputy is paid wholly out of the fees of the jailer, then the jailer would be responsible for seeing that the time and a half payments are paid out of his fees, but if the deputy jailer is compensated wholly out of the county treasury, then the time and a half pay would have to come out of the county treasury. OAG 78-565 .

In establishing the number of sheriff’s deputies, fiscal court generally can set any number it wishes, assuming that money is available for that purpose out of the sheriff’s fees or the county treasury. OAG 78-686 .

The fiscal court in Kentucky under current legislation is not mandated to provide funds such that the sheriff can provide any certain or minimum level of police protection for his county. OAG 78-686 .

If a county clerk believes his deputies deserve a pay increase, he should arrive at a specific sum, outline his reasons and present it to the fiscal court in January of each year. OAG 78-817 .

The fiscal court can designate up to two deputies for the jailer before the term begins, but additional deputies (after the first two) may be appointed by the jailer during term, if approved by the county judge/executive, since the specific statute (KRS 71.060 ) should govern over the general (this section). OAG 79-51 .

The number of deputies is frozen at the level provided by the order of fiscal court by the first Monday in May of an election year for that office. OAG 79-51 .

Under this section, the county clerk may submit in writing a request to fiscal court asking that deputy salaries be increased. OAG 79-82 .

In view of the broadly stated general principle of KRS 64.527 , the provisions of subsection (6) of this section imposing special monetary restrictions upon commissioners’ salaries in certain counties is wholly irreconcilable and KRS 64.527 governs over this section. OAG 79-189 .

Subsection (6) of this section, by which county magistrates in any county and county commissioners in counties containing only fifth or sixth-class cities are subject to the “rubber dollar” maximum of KRS 64.527 , while county commissioners in counties with cities of the first to fourth class are treated differently, flies in the teeth of the rubber dollar principle, and in violation of Const., § 2, as arbitrary legislation, and Const., § 59 as special legislation. OAG 79-189 .

The number of deputies and assistants of the county clerk cannot be changed during the term and a bookkeeper would be an assistant. OAG 79-354 .

The sheriff’s deputies are not subject to any rubber dollar maximum. OAG 79-542 .

Where the sheriff’s fees are insufficient for paying the deputies, the fiscal court can implement their salaries out of the county treasury. OAG 79-542 .

Other than the special deputies for great emergencies, there is no such thing as a special deputy in Kentucky. OAG 80-72 .

To the extent that the annual janitorial appropriation mentioned in KRS 67.130 would represent money paid to a jailer for janitorial services rendered by him personally, that would be net compensation; any of that janitorial money paid out by the jailer for supplies or equipment used in the janitorial function or paid out by the jailer to others to assist in the janitorial function should be deducted from the gross appropriation to determine the jailer’s net compensation under KRS 67.130 . OAG 80-161 .

Under the rubber dollar principle any salary paid to the jailer plus any net janitorial compensation plus earned fees of the jailer as aggregated cannot exceed the sum of $23,184 for 1980, and any excess of the jailer’s receipts over and above the amount allowable for his personal compensation, the compensation of his deputies and assistants, and authorized official expenses, must be turned over to the county treasury. OAG 80-161 .

Since there is no minimum salary payable to jailers out of the county treasury, the amount of any salary paid to jailers out of the county treasury is in the sound discretion of the fiscal court; but as to fee officers, such as the county jailer, where the jailer receives sufficient fees to make the maximum rubber dollar amount for 1980, the jailer is entitled to such maximum compensation, and in such case the fiscal court can do nothing to prevent the fee officer’s getting the maximum rubber dollar compensation where the jailer’s fees are sufficient to give him or her, as the case may be, the maximum possible under the rubber dollar formula. OAG 80-164 .

A county judge/executive is not automatically entitled to the annual maximum rubber dollar compensation; the fiscal court must set his salary, subject to the applicable minimum and the rubber dollar maximum, and the fiscal court has a discretion as to his salary in the range from the minimum level to the maximum level. OAG 80-208 .

The county judge/executive’s salary, when adjusted for 1980, can be retroactive to January 1, 1980, since the fiscal court is dealing with an “annual compensation” concept, even though it is broken down to monthly payments. OAG 80-208 .

Where the magistrates on the fiscal court travel over the county solely for the purpose of gaining information and facts which will aid them, and which are practically necessary, in their legislative duties, they can be reimbursed on a reasonable mileage basis for such travel expenses incurred in pursuing such work for the county. OAG 80-236 .

Under subsection (4) of this section, upon the written request of the jailer, the fiscal court may review the deputy and matron salaries and adjust them, within the sound discretion of the fiscal court, and assuming there is available money to fund an increase if granted. OAG 80-319 .

Where a fiscal court order of May, 1977, fixed the number of deputy jailers at three and one matron, the fiscal court could not legally change the number of those positions by either adding or subtracting since the number of deputies during the term cannot be changed. OAG 80-319 .

A fiscal court cannot lower the salaries of constitutional officers during their terms once the fiscal court has actually, and with finality, fixed their particular salary levels in the budget, and has adopted such budget pursuant to KRS 68.260 . OAG 80-323 .

Where a 19-year-old office clerk was hired for the county sheriff’s office as a county employee under the CETA program, she could not be retained as an office clerk hired by the sheriff’s office because she was not a sworn deputy who had been appointed by the fiscal court by the first Monday in May pursuant to this section and since she was not 21 years of age as required by KRS 61.300 . OAG 81-219 .

A fiscal court has the authority, under this section, to establish in advance categories of reasonable official expenses allowable and the maximum amount that will be allowed for each category; accordingly, a fiscal court could pass a resolution or ordinance forbidding fee offices from making any purchase in excess of $1,000 without prior fiscal court approval. OAG 81-419 .

Where a fiscal court fixes in advance categories and maximum amounts of official expenses, an officer still will be required to submit a detailed account of the expenses, with adequate supporting data, in order to obtain credit against his excess fees. OAG 81-419 .

Where a guard dog was purchased by county jailer prior to the fiscal court’s resolution forbidding purchases in excess of $1,000 without fiscal court approval, the dog purchase could be given credit against the jailer’s excess fees, provided the jailer could show that the expense was reasonable in amount, beneficial to the public and was not a personal expense; further, the jailer must show the specific amount and purpose of the dog purchase. OAG 81-419 .

The fiscal court has a positive responsibility to properly fund an existing county police force under this section and once the county judge/executive establishes a county police force, he may obtain court relief to enforce the proper funding of such police force; the fiscal court cannot arbitrarily withhold proper funding. OAG 81-420 .

Where a fiscal court passed a resolution authorizing five deputies for the jailer, the jailer could not employ a cook, in addition to the five deputies. OAG 82-61 .

Since KRS 64.530 (3) and KRS 71.060 are in conflict regarding the appointment of deputies for a jailer, KRS 64.530 as the later statute governs; the two sections could be harmonized only by ruling that the fiscal court would have to recognize that the jailer is automatically entitled to two deputies; and that under subsection (3) of KRS 64.530 the fiscal court could authorize additional deputies within the time frame required by that section. OAG 82-61 .

Under subsection (3) of this section, the number of deputies of the county clerk clearly must be set by fiscal court no later than the first Monday in May in the year of the election, and the number cannot be changed during the term. OAG 82-61 .

This section requires the fiscal court to establish the number of deputies for county constitutional officers and set their compensation; thus the entire number of deputies allocated to the county clerk will have to be funded. OAG 82-61 .

The only legal deputy sheriffs are those appointed by the sheriff to fill deputy positions authorized by the urban county council pursuant to KRS 64.530 , 67A.060 , 67A.300 , and unsalaried deputy sheriffs, called “courtesy special deputies,” are illegal; such illegal deputies are merely private persons and would have the power of arrest given to private persons under KRS 431.005(2), but they are not peace officers and they cannot carry concealed deadly weapons for any reason. OAG 82-105 .

Where four bailiffs were appointed by the orders of the district and Circuit Court in a county, pursuant to subsection (2) of KRS 64.348 (now KRS 64.092 ), but in administrative practice the four bailiffs were considered to be legally deputy sheriffs by the courts of the county, by the county sheriff, and by the Finance Department (now Finance and Administration Cabinet) of the state, and, in addition, the fiscal court authorized the payment of a monthly salary out of the county treasury to each of the four bailiffs, a jointure had taken place by court and contemporaneous construction wherein the bailiffs had been joined with the sheriff’s office for certain purposes. This special jointure of bailiffs with the sheriff’s office, as effected by the local courts, the sheriff of the county, and the State Department of Finance, was a permissible variation of the establishing of deputy positions under this section. OAG 82-113 .

A county of less than 75,000 population has responsibility and authority for establishing the compensation of deputies of local constitutional officers, and the application of leave with pay to such deputies is a logical and authorized extension of its statutory power in that area. OAG 82-221 .

Where magistrates’ salaries on the first Monday in May in 1981 (election year) were set at $10,000 per magistrate, the fiscal court could authorize a salary to each magistrate, not to exceed $28,387 for the calendar year of 1982. However, since the magistrates on fiscal court have no executive duties, they should only be paid in terms of the work week they put in for the county. OAG 82-348 .

Where the county sheriff had no excess fees to pay into the county, the fiscal court should fund his documented and necessary office telephone expenses. OAG 82-402 .

This section establishes a maximum expense allowance for magistrates serving on fiscal courts of $300 per month, notwithstanding the maximum allowance of $100 in KRS 64.258 (now repealed); thus where the justices of the peace in a county are receiving $100 pursuant to KRS 64.258 (now repealed), the fixing of a $300 per month expense allowance under subsection (6) of this section would mean that such justices of the peace would be receiving a maximum expense allowance of $400 per month. Since KRS 64.258 (now repealed) was not amended in 1982, it must be assumed the General Assembly knew about it in amending subsection (6) of this section; thus KRS 64.258 (now repealed) and subsection (6) of this section should be harmonized under the doctrine of pari materia. OAG 82-419 .

The expense allowance provided for justices of the peace in KRS 64.258 (now repealed) is independent of the expense allowance treated in subsection (6) of this section. OAG 82-466 .

The expense allowance under subsection (6) of this section can be paid by the county (fiscal court) under these conditions: (1) The fiscal court must fix the specific amount to be paid the magistrates serving on fiscal court, within the $300 limit per month; (2) the amount paid to them must reflect, by appropriate documentation, the actual serving on committees of the fiscal court; (3) the money would have to be budgeted under KRS Chapter 68 and would come out of “general fund” money available and uncommitted to other purposes. OAG 82-466 .

To the extent that a particular county tax ordinance or resolution spells out with particularity that all or a certain portion of the tax must go for county road purposes, any expenditure of that tax money, “earmarked” for county road purposes, to pay for the expense allowance provided for in this section, would be in violation of Const., § 180, and KRS 68.100 . OAG 82-466 .

The fiscal court, in establishing the number of deputy clerks and their salaries and salary adjustments under this section, must take into consideration the amount of compensation and number of deputies necessary to enable the clerk to discharge properly the statutory duties of his office. OAG 82-478 .

Neither KRS 258.195 nor any other section of KRS Chapter 258 makes a dog warden a peace officer and, therefore, he does not possess the powers of a peace officer; he could be made a peace officer by being appointed, for example, a deputy sheriff but such an appointment could not involve an increase in the number of deputy sheriff positions beyond the number established by the fiscal court pursuant to this section. OAG 82-597 .

The sheriff is required to pay his deputies a salary, as set by the fiscal court. OAG 83-19 .

The actual authorizing of specific expenditures such as paying of salaries for the jailer and his deputies, though within budget levels, requires a distinct and separate action on the part of the fiscal court. OAG 83-49 .

Salary adjustment for the jailer’s deputies requires a distinct and separate action of the fiscal court; the mere transfer of funds to the salary line item of the jail budget by the fiscal court, under KRS 68.290 , would not be tantamount to salary adjustment. OAG 83-49 .

Once the jailer’s salary is properly set under this section, KRS 64.527 , and 441.009 (now KRS 441.245 ), it cannot be reduced, since that would be a “change in compensation,” which is prohibited by Const., §§ 161 and 235; upward adjustment during the term of a jailer’s salary not to exceed the rubber dollar level, is not a change in compensation. OAG 83-49 .

A fiscal court that is presently in office cannot cut the number of sheriff’s deputies that was set by the previous fiscal court. OAG 83-169 .

In reducing the compensation of county employees, including nonconstitutional officers, a fiscal court must act with reason and with a uniformly applied policy and cannot act arbitrarily since arbitrary classification and treatment of such employees would run afoul of Const., § 2, and U.S. Const., 14th amend.; in other words, where salaries of some county employees are cut and some are not, there must be a reasonable classification established for those who are cut. OAG 83-169 .

Where there is substantial compliance with subsection (4) of this section so as to effectuate its purpose that the salary adjustments be reviewed prior to county judge/executive’s submission of the proposed budget to the fiscal court by May 24, the provision setting the first Monday in May deadline for salary adjustment must be deemed directory only; accordingly, a fiscal court order issued the next day after the first Monday in May, which raised the salaries of deputy county clerks, was valid as it substantially complied with that subsection. OAG 83-178 .

Where the salaries of deputy county clerks are funded out of the fees of the county clerk’s office, the role of the fiscal court in evaluating a request for a salary increase must only be based upon sound reasoning in terms of the deputies’ duties and work performance, and upon general economic considerations as to purchasing power of the dollar; they cannot base it upon the budget, since the deputies are not paid out of the county treasury. OAG 83-178 .

The county fiscal court is prohibited by KRS 70.045 from providing salaries for the special deputies appointed pursuant to that section and the fiscal court has no authority to convert the special deputies into regular deputies. OAG 83-197 .

The fiscal court is required to set a salary for deputy coroners, payable out of the county treasury as a properly budgeted item. OAG 83-211 .

Upon request of the county clerk, the fiscal court may review and adjust his deputies’ salaries and, in refusing or failing to so review and adjust the salaries at such time, the fiscal court cannot act arbitrarily; in other words, while it is not mandatory that it review and adjust such salaries during the term, the fiscal court would have to advance a sound reason for refusing or failing to so review and adjust. OAG 83-242 .

The requirement of subsection (4) of this section that salaries of the deputies of local constitutional officers be reviewed and adjusted by fiscal court, during the term of the constitutional officer, not later than the first Monday in May of any successive year, is permissive only, not mandatory; thus a fiscal court could at any time, at a proper meeting, review and adjust the salaries of the clerk’s deputies, regardless of whether such salaries were funded out of the clerk’s fees or out of the county budget. OAG 83-242 .

Since this section does not permit the changing or adding to the number of deputies during term, fiscal court’s action in providing for an additional regular, full-time deputy for county sheriff who was elected in 1981 was illegal and invalid. OAG 83-262 .

Where a jailer appoints two deputies, who had previously been working 30 hours a week, to each work 40 hours a week, and the appointments are reasonable, the fiscal court must establish their compensation for not less than 40 hours per week. OAG 83-414 .

The salary or salaries of personnel hired to assist the county judge/executive in his financial role should be paid out of the county treasury, subject to proper budgeting procedure as outlined in KRS Chapter 68; the specific salary or salaries would be determined by the fiscal court. OAG 83-456 .

Since there is no express provision in this section for the flexibility of changing the number of deputies for a constitutional officer during the term, the number of deputies of the county court clerk must be set by the fiscal court no later than the first Monday in May in the year of the election, and the number cannot be changed during the term. OAG 83-485 .

Since there is no explicit provision for a change in the number of deputy sheriffs during the sheriff’s term, the number fixed in the year of the election of the sheriff must govern during the term. OAG 84-8 .

A fiscal court cannot adopt personnel policies by ordinance for the county employees, and then apply such policies to deputies of constitutional officers, such as the sheriff, jailer and county clerk, because the fiscal court has no general statutory authority to deal with the deputies of county constitutional officers, other than to set the number and salaries of such deputies as permitted in this section. OAG 84-22 .

The fiscal court is required to fix the precise compensation of the deputies of the sheriff, court clerk, and jailer; the fiscal court would have no authority to establish by written order a minimum or maximum scale of salaries or a program of step increases to be awarded at specific times, or a performance evaluation in terms of who receives the salary adjustment. OAG 84-36 .

The county judge/executive, alone, has no authority to fix salaries under this section; as a member of the fiscal court his vote on salary action permitted the fiscal court under this section, must be noted in determining passage of a proposed salary fixing order. OAG 84-36 .

A proposed salary raise for a deputy sheriff could be made effective retroactively to the first day of the year, since the salary was under an annual salary concept. OAG 84-53 .

This section permits the fiscal court to adjust the salaries of deputies of the county constitutional officers, including deputy sheriffs, any time during the sheriff’s term, provided that there is ample money in the county treasury for such purpose (where such salaries are paid wholly or in part out of the county treasury). OAG 84-53 .

Where fiscal court magistrates served on a number of boards and committees, but none of these boards or committees were official committees of the fiscal court, no part of the expense allowance provided by subsection (6) of this section could be paid since such moneys can only be expended in consideration for public services. OAG 84-71 .

The fiscal court has no responsibility for paying the sheriff’s statutorily authorized expenses out of the county treasury where the sheriff’s fees are adequate for such purpose. Where the fees of the sheriff are not adequate to fund such expenses, and where an audit of the sheriff’s office indicates that his office financial operations and expenditures disclose no infraction of law or mismanagement or negligence on his part, the responsibility of the fiscal court would come into play; however, there must be money available in a properly budgeted item sufficiently descriptive to embrace the specific sheriff’s expenses involved. OAG 84-104 .

A county commissioner of the fiscal court, who also served on the Kentucky Association of Counties Board, could be reimbursed on a reasonable mileage basis for travel expenses incurred in pursuing the Board’s work, so long as the work on the Board was reasonably calculated to be of benefit to the commissioner’s own fiscal court and county government. OAG 84-151 .

Under this section, the fiscal court, not the county judge/executive alone, has the authority to establish reasonable maximum amounts to be expended for the sheriff’s deputies’ travel expenses. OAG 84-167 .

Under subsection (3) of this section the fiscal court may in advance fix the maximum amount that the sheriff can spend each year for categories of expenses of his office; however, a blanket maximum of $2,000 per year for the deputies’ mileage expenses might be shown to be unreasonable and arbitrary, unless the actual facts supported the concept that such money was sufficient for that purpose. OAG 84-167 .

The fiscal court has no authority to require its approval for overtime work of deputies of local constitutional officers where the deputy’s salary is paid out of the sheriff’s fees. OAG 84-183 .

If it appeared that overtime work by sheriff’s deputy was reasonably necessary to carry out the sheriff’s duties, then the fiscal court must give the sheriff credit in the yearly settlement for the amount of overtime pay the sheriff effected from the funds of his office; the overtime should normally be paid out of the salary source, which was the county treasury for the particular deputy sheriff. If the fiscal court refuses to credit the sheriff’s payment of overtime, assuming that the overtime work was reasonably necessary, the fiscal court would be acting arbitrarily, contrary to Ky. Const., § 2. OAG 84-183 .

Overtime payments are not wage fixations or adjustments in terms of this section governing compensation of county officers; overtime payments are simply calculated at one and one-half of the regular salary rate established by fiscal court. OAG 84-183 .

In the event that the salary of the deputy sheriff is paid out of the county treasury, the fiscal court would not become the “employer” under KRS Chapter 337, but it would have the authority to approve or disapprove of overtime payment of such deputy, where the overtime is to come out of the county treasury; the fiscal court, under its powers given in KRS 67.080 , would have the authority in passing on such expenditure from the county treasury, to use its sould judgment as to whether the overtime was lawfully authorized by the sheriff. The employer in this situation is the constitutional officer, i.e., the sheriff, who is the actual employer under KRS 337.010(1)(d); the actual employer, as such, hires, fires, and directs the deputy in his statutory duties. OAG 84-183 .

Under this section, the fiscal court establishes the number and compensation of fee office deputies, but the constitutional officer, the real employer, makes the personal selection or appointment. OAG 84-203 .

Regardless of the constitutional officers’ financial tie-in with county goverment, there is not statutory authority for the fiscal court’s initial programming of personnel matters, relating to constitutional officer deputies; the initiating must take the form of a written request, for such programming applicable to the deputies, from their constitutional officer, the appointing authority. OAG 84-203 .

A fiscal court has no authority or responsibility to initiate county personnel programs applicable to deputies of county constitutional officers; there is simply no statutory authority for that approach. The establishing of such programs for the deputies can only come about where the constitutional officer requests the fiscal court to so establish such programs. OAG 84-203 .

Under this section as amended in 1984, both the number of deputies and their salaries are subject to adjustment during the term of the constitutional officer. OAG 84-232 , modifying OAG 84-105 .

While the fiscal court has the authority to designate the number of deputies for the coroner’s office as provided in this section, the coroner must point out to and document for the fiscal court the actual need for deputies, based upon the normal case load (coroner’s cases), county population, and related factors; there is no special formula. OAG 84-246 .

The specific compensation of the coroner’s deputies will be set by fiscal court, subject to in-term adjustment requested in writing by the coroner, based upon his presentation of data supporting particular salary ranges. The salary fixation may include the factors of the deputy’s ability and state of training, case load, and quality of performance. OAG 84-246 .

Under subsection (4) of this section the sheriff can petition the fiscal court in writing to review his number of deputies and their salaries and adjust the same, up or down, during his term. However, the number of deputies and their salaries will be based upon such factors as statutory functions of the sheriff’s office, the county population, ability and skill of deputies to be employed, and the reasonableness of such salaries under the total work environment. OAG 84-248 .

In the absence of a statute, the county judge/executive cannot be considered an employee for fringe benefits generally afforded county employees; if the county judge/executive, as a member of fiscal court, is to establish a fringe benefit for himself, the General Assembly would have to authorize it in a clear and unambiguous statute. OAG 84-332 .

While the fiscal court determines the number of the clerk’s deputies under this section, the actual hiring or firing of the clerk’s deputies is a prerogative only of the county clerk; the deputies are not elected officials, and, in the absence of a statutory merit system, have no employment life beyond the term of the clerk who appoints them. OAG 84-383 .

As to the proper procedure for setting the salaries of the deputies of the county clerk under this section in a county operating under the fee-pooling system, see OAG 85-76 .

A county clerk could fund hospital insurance premiums for regularly employed deputies out of the fees of his office and without formal pre-expenditure approval of the fiscal court, although such expenditures are subject to the maximum level of expenses set for the office pursuant to this section. OAG 89-51 .

This section requires fiscal court approval of expenditures for health insurance premiums for regularly employed deputy county clerks, and the fiscal court may evidence its approval prior to the actual expenditure by fixing, in advance, allowable expense categories and the maximum amount which can be spent; this is true even with the 1988 amendment to this section which specifically requires the fiscal court to set a maximum amount for fringe benefits, and if the fiscal court has complied with this section in this manner, no further approval is necessary. OAG 89-51 .

A fiscal court’s failure to comply with this section is, in a sense, a waiver of the court’s ability to approve or deny past expenditures, and an action to deny the past years’ expenditures could amount to an ex post facto action. OAG 89-51 .

A sheriff, subject to proper budgeting and approval of the fiscal court (urban-county council where applicable) as to their number and compensation, may employ “assistants” as well as “deputies.” OAG 91-118 .

While KRS Chapter 70 might not “contemplate” an “assistant” of the sheriff other than a “deputy,” KRS Chapter 64 does. Subsections (3) and (4) of this section expressly provide for the fiscal court to establish compensation for both “deputies” and “assistants.” Similarly, KRS 64.345(5), which applies to counties containing a city of the first class and counties with an urban-county form of government, provides, in part, for establishment of the “number of deputies and assistants allowed to each officer and the compensation allowed to each deputy and assistant …” In other words, there is specific legislative provision for two classes of employees of certain county officers — (1) deputies and (2) assistants. OAG 91-118 .

Subject to a constable’s employment being within the scope of approval of the fiscal court pursuant to this section, a proper mechanism for a sheriff’s employment of a constable to assist in patrolling the county could be established. OAG 91-181 .

This section does not apply to the setting of a jailer’s salary by the fiscal court, and consequently KRS 64.730 does not apply either. OAG 93-42 .

An elected county fee official cannot provide hospitalization insurance benefits to the fee official from excess fees without providing the same benefits to the employees of the county fee official. OAG 94-15 .

A county or fiscal court is required to carry insurance on constables where expressly required to do so by statute, for example, to carry workers’ compensation coverage for constables under KRS 342.630(2), 342.640(3), and this section. OAG 95-11 .

Research References and Practice Aids

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky, 40 Ky. L.J. 275 (1952).

Vanlandingham, Pecuniary Interest of Justices of the Peace in Kentucky; The Aftermath of Tumey v. Ohio, 45 Ky. L.J. 607 (1957).

Bivin, The Historical Development of the Kentucky Courts, 47 Ky. L.J. 465 (1959).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Justices of the Peace, § 17.00.

64.535. Annual salaries of certain county officers.

The county judge/executive, clerk, jailer who operates a full service jail, and sheriff shall each receive a monthly salary of one-twelfth (1/12) of the amount indicated by the salary schedule in KRS 64.5275 .

History. Enact. Acts 1964, ch. 109, § 1; 1966, ch. 15, § 1; 1970, ch. 72, § 1; 1974, ch. 60, § 1; 1974, ch. 254, § 5; 1976 (Ex. Sess.), ch. 14, § 41; 1976 (Ex. Sess.), ch. 17, § 21, effective January 1, 1978; 1978, ch. 384, § 132, effective June 17, 1978; 1982, ch. 385, § 23, effective July 1, 1982; 1998, ch. 610, § 5, effective July 15, 1998.

Compiler’s Notes.

This section was formerly compiled as KRS 69.005 .

NOTES TO DECISIONS

1.Constitutionality.

The salary increases provided by this section did not violate Const., § 235 for the salaries of the various officers are merely being kept abreast of their initial value or purchasing power. Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ).

This section in providing for salary increases for local constitutional officers in excess of the constitutional maximum of $7,200 did not violate Const., § 246 for that section may be interpreted and periodically applied so as to equate current salaries with the purchasing power of the dollar in order to provide adequate compensation for the judges. Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ).

2.Construction.

This section intended that the maximum compensation of $9,600 shall be paid if the fees of the office, together with such salary as the fiscal court may authorize to be paid under authority of KRS 64.720 will reach that amount. Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ).

3.Annual Salary.

“Annual salary” meant a continuing rate of payment that will apply for each succeeding year. Marion County Fiscal Court v. Kelly, 112 Ky. 831 , 56 S.W. 815, 22 Ky. L. Rptr. 174 , 1900 Ky. LEXIS 240 ( Ky. 1900 ) (decided under prior law).

Opinions of Attorney General.

The increase in compensation authorized by this section for those constitutional officers designated in KRS 64.345 above the constitutional maximum is valid and constitutional. OAG 64-540 .

The increase in compensation authorized by this section for those constitutional officers designated in KRS 64.345 could not be granted during the officers’ present terms without violating Const., § 161. OAG 64-540 .

The fiscal court cannot change the compensation of the deputies and assistants of the elected county officers after the first Monday in May in the year in which such officers are elected. OAG 64-554 .

Since salary or income fixation is on an annual basis, not monthly, the $9,600 maximum can apply in the calendar year of 1964, conditioned upon the fees of the office available. OAG 65-542 .

The fiscal court is to set the salary of the county judge (now county judge/executive) within the $9,600 limitation imposed by the statute. OAG 65-542 .

The salary increases of this section do not include increases for justices of the peace. OAG 65-542 .

The fiscal court has no discretion by way of fixing the maximum income of the officers set out in this section. OAG 65-543 .

Under this section the circuit court clerks and county court clerks are entitled to a maximum compensation of up to $9,600, beginning with the year of 1964, conditioned upon the availability of fees of those offices for that purpose. OAG 65-543 .

Order of fiscal county court fixing maximum compensation of officers mentioned in this section is of no effect. OAG 65-594 .

Where a sheriff made a settlement with the fiscal court for 1964 based upon a compensation of $7,200 but the fee receipts were sufficient to provide $9,600, the settlement should be reopened to provide the payment to the sheriff of an additional $2,400. OAG 65-699 .

Where in settling with the fiscal court the sheriff only withheld $8,400 for 1964 instead of $9,600, the 1964 settlement with the county should be reopened and the county should pay the $1,200 to the sheriff out of an appropriate budgeted fund. OAG 65-755 .

The fiscal court is authorized to pay a salary to the various officers listed in this section, the amount of such salary, when initially established, being purely discretionary with the fiscal court but subject to the limitation of $9,600 (now $12,600) and the limitations of Const., §§ 161 and 235. OAG 65-802 .

The fixation of salaries of deputies of officers named in this section is left to the determination of the fiscal court, and such salaries must be fixed within the time limitation of KRS 64.730 or they remain the same as for the preceding term. OAG 65-851 .

Where a city also housed prisoners in the county jail and paid the jailer the fees for them, those fees had to be considered in arriving at his maximum compensation of $9,600. OAG 66-18 .

Where a sheriff resigned one (1) month before the end of his term and a new sheriff was appointed to fill out the term, the new sheriff was entitled to retain the excess fees collected in that month not to exceed $9,600. OAG 66-170 .

Any excess fees that the county attorney may accumulate must be turned over to the county within a reasonable time after the end of each calendar year of his term of office, but the county attorney cannot be compelled to do so on a monthly basis. OAG 66-545 .

The county is liable for the employer’s contributions to social security involving the official fees of the offices of county clerk, the sheriff, and their deputies and as relates to the county sheriff, county clerk, and their deputies. OAG 68-51 .

The fiscal court in its sound discretion (and depending upon the local budget situation) is authorized (but is not required) to provide a salary, payable out of the county treasury by the county of $9,600 per year for the county judge (now county judge/executive). OAG 68-68 .

The fiscal court cannot change the maximum compensation of $9,600 per year established by the general assembly for county attorneys. OAG 68-268 .

The fiscal court can pass resolutions or orders of salary adjustments as to salaries of the sheriff and county court clerk, although the salary adjustments cannot be paid until June 18, 1970 and thereafter. OAG 70-354 .

The fiscal court can raise the salaries, payable from the county treasurer, of those elected county officers mentioned herein. OAG 70-386 .

The Department of Finance (now Finance and Administration Cabinet) can approve supplemental payrolls covering the increase for the first half of the calendar year 1970. OAG 70-415 .

The fiscal court may adjust the jailer’s salary upward in view of the flexible dollar principle. OAG 70-462 .

For the year 1969, the jailer’s fees, plus any salary set by the fiscal court covering such period, could not exceed $9,600 per year as his personal compensation. OAG 70-591 .

The fiscal court could implement a salary adjustment in the salary of the county judge (now county judge/executive) subject to the maximum compensation of this section but it could not be retroactive. OAG 70-592 .

Where the clerk of the county court is being paid an additional salary as clerk of the juvenile court, that compensation must be added to all other compensation received for his public service in arriving at his maximum compensation under the constitution. OAG 71-147 .

For social security contributions, the employer-county’s rate should be applied to that portion of the sheriff’s fees that are received and retained by him as his personal compensation, subject to the maximum of $12,600. OAG 71-266 .

For the purpose of determining the maximum compensation of $12,600 as prescribed in this section, all fees earned by the jailer and any and all salaries paid to the county jailer, including the janitorial salary as prescribed in KRS 67.130 , must be considered. OAG 71-436 .

Dieting fees provided in KRS 64.150 (now repealed) are to be credited against the maximum salary provided in this section. OAG 72-483 ; 72-531.

The estate of a circuit court clerk who dies during his term of office will be entitled to any salary authorized and payable to him beginning with the first month of the year to the date of his death as well as to any fees of his office earned and collected by him prior to his death so long as the total of such salary and fees does not exceed the salary limitation of this section. OAG 72-615 .

Where the present county clerk plans to resign before November 1, 1973, and a deputy clerk will be appointed to serve out the remainder of the clerk’s term ending the first Monday in January, 1974, the present clerk can retain the $12,600 he has earned which is the statutory limit and the successor clerk can retain all salary and fees earned during November and December 1973, not to exceed the statutory limit as the compensation limitations of Const., § 246 applies to the officer and not to the office so that successive holders of the same office during a single year are each held only to the salary and fees earned while they are in office, subject to the maximum. OAG 73-742 .

Where the county budget for fiscal year beginning July 1, 1973, provided a salary increase for the county attorney from $4800 to $7200 annually and the maximum is $12,600 per annum, if there is nothing in the fiscal court order limiting the increase to a July 1, 1973, effective date, the fiscal court has the discretion to adjust the compensation retroactive to January 1, 1973, since the salary is on an annual basis. OAG 73-751 .

If the present salary authorized for the sheriff plus the probable fees of the office will not total $12,600 per year, the fiscal court may increase the salary of the sheriff and said salary increase may be funded from available revenue sharing funds of the county as an expenditure for law enforcement but the monthly expense allowance of $175 is considered as operating expenses of the sheriff’s office and should not be considered as compensation. OAG 73-828 .

A fiscal court has the authority to adopt an accounting system wherein fee officers turn in all fees to the county treasury and the county treasurer in turn pays each officer his monthly salary, if properly set pursuant to KRS 64.530 , from the general fund; but, in order not to violate this section, it must not provide a salary out of the county treasury that would be a sum less than the total fees of the office that would otherwise be available for the officer’s personal compensation. OAG 74-1 .

County officials who took office in January, 1970, and served through January 6, 1974, were not entitled to six days extra pay in 1974 because they were compensated per calendar year, and the extension into the first calendar year of their successors merely relates back to the calendar years of their terms. OAG 74-55 .

Janitorial appropriation of $200 a month for a jailer made in accordance with KRS 67.130 is not a salary. OAG 74-102 .

Fiscal court, in a county having a population of 75,000 or less, if it has never provided a regular salary for a jailer, has the authority to set by court order a regular salary payable out of the county treasury provided the amount is not less than the total fees of the office that would otherwise be available for personal compensation of the jailer under the overall maximum of $12,600 and provided the election year deadline set forth in KRS 64.530 is not violated in which case, in accordance with KRS 64.730 , the regular salary paid in the preceding term would govern. OAG 74-102 .

Motion of a fiscal court that county elected officers shall receive maximum salaries to be paid solely out of statutory fees and salaries received by him during the next four calendar years, beginning January 7, 1974, in the amount of $12,600 or the maximum amount permitted by law merely states the officers get the maximum and provides no specific salary payable out of the county treasury. OAG 74-102 .

Where a clerk died in April and his wife was appointed to succeed him, it was permissible for the wife to be paid the maximum $12,600 in salary and fees after the husband had been paid over $3,000 in salary and fees before his death, since the limits apply to the person holding the office and not the office itself. OAG 74-291 .

The Legislature, by this section, sets the maximum salary of the designated officers but it is not implemented until the fiscal court, in its discretion, enters an order increasing the salaries of any or all of the officers. OAG 74-314 .

Compensation of the officers named in this section includes any fees, fines and forfeiture percentages, and any salary paid out of the county treasury but it does not include the state “expense” allowance or any reimbursement for the expenses. OAG 74-314 .

The fiscal court may in its discretion increase or decrease the salaries payable out of county funds of all the officers named in this section, except justices of the peace or commissioners serving on the fiscal courts, according to the increase or decrease certified by the Kentucky Department of Commerce (now Commerce Cabinet) prior to the second Friday in February of each year, which increase or decrease is to be based on the increase or decrease of the consumer price index for 1949. OAG 74-322 .

Reimbursement of a county judge (now county judge/executive), by the county on order of the fiscal court, for life, health and accident insurance premiums paid by him for himself would be reimbursement of official expenses in the public interest and would not have to be calculated within the maximum authorized by this section as a permissible adjustment of the $7,200 per year level provided in Const. § 246. OAG 74-347 .

In determining the maximum compensation of $14,300, all fees and salaries of a circuit clerk must be considered together. OAG 74-405 .

The “monthly” maximum basis under this section does not prohibit making compensation changes under KRS 64.530 retroactive. OAG 74-439 .

Voting a salary to be paid out of the county treasury pursuant to KRS 64.720 for any of the officers named in this section is permissive on the part of the fiscal court. OAG 74-603 .

If an elected sheriff in a county of less than 75,000 is removed from office and his salary and the salaries of his deputies are derived in whole or in part from earned fees of the office they would be entitled to such portion of their salaries, if any, obtainable from the fees; and, if the fiscal court had authorized any salary to be paid out of the county treasury they would be entitled to receive a check from the county paying them for the time actually in office. OAG 74-680 .

In view of KRS 64.530 , any adjustment by the fiscal court in the salary of the sheriff under the authority of this section must have been ordered on or before September 1, 1974. OAG 74-731 .

Under KRS 64.345 , KRS 64.527 and this section the upward adjustment under the “rubber dollar” principle of the salary of the jailer is automatic and requires no action by state or local government, but the payment of the maximum amount is subject to the limitation in KRS 64.345 (4) of 75% of the amounts paid in by the offices named to the state treasury, unless, if the 75% is less than the maximum salary, it is supplemental under KRS 64.346 by the fiscal court or where appropriate the urban-county council. OAG 75-252 .

Under the “rubber dollar” principle the adjusted maximum compensation for 1975 for jailers is $15,667.20. OAG 75-252 .

The highest salary payable out of the county treasury to the circuit court clerk is a maximum of $15,667.20 under KRS 64.527 and this section but since the circuit court clerk’s work involves a phase of law enforcement, which is an aspect of public safety, the clerk’s salary would be a permissible expenditure out of available county revenue sharing funds. OAG 75-410 .

Where a circuit clerk also is master commissioner his maximum salary from the fees of both offices is limited to the maximum salary allowed circuit clerks. OAG 75-626 .

Subsection (1) of KRS 64.530 as amended by Acts 1976 (Ex. Sess.), ch. 14, § 40 and this section as amended (Acts 1976 (Ex. Sess.), ch. 17, § 21) requires the fiscal court to fix the compensation of the county attorney for his civil work for the county. OAG 77-219 .

While there is no statutory authority for the fiscal court to enter into a contract to operate a county ambulance service with the office of the sheriff, there is nothing to prevent such a contract with the sheriff as an individual person, apart from his sheriff’s office and staff, provided he can carry on both functions in the manner required by law and the contract; however, while there is no express statutory requirement that a sheriff devote all of his time to the sheriff’s office, it could be implicit that in the broad range of statutory duties of the sheriff is the requirement that he devote full time to his duties but only the courts can resolve such question; moreover, the money received by the sheriff for this county ambulance service would have to be added to his regular county sheriff’s office fee income to apply the rubber dollar maximum and employees working for the sheriff in connection with the ambulance service must be private individuals. OAG 80-574 .

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, would be for a purpose personal in nature to the clerk and would not be an official expense of the office and thus such funds cannot be used to pay for such health or medical insurance. OAG 94-11 .

Research References and Practice Aids

Kentucky Law Journal.

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

64.540. Audit of accounts of county fee officers.

The fiscal court of any county is authorized to have an annual audit made of the accounts of any county officer or employee, within the meaning of KRS 64.530 , who is compensated in whole or in part by fees, except those officers enumerated in subsection (5) of KRS 64.530 .

History. Enact. Acts 1950, ch. 123, § 10.

Legislative Research Commission Note.

(1982). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

Opinions of Attorney General.

Where the elected offices generate sufficient fees to cover the unemployment compensation contributions, the county has the option of having the various offices pay the contributions on those people employed in the office. OAG 79-468 .

64.550. Denial of authority to create county office or position.

Nothing in KRS 64.480 to 64.740 is intended to authorize the fiscal court of any county to create any office or make any employment not authorized by law.

History. Enact. Acts 1950, ch. 123, § 11; 1980, ch. 188, § 26, effective July 15, 1980.

Compiler’s Notes.

KRS 64.490 to 64.499 , 64.500 to 64.525 , 64.560 , 64.570 , 64.580 , 64.600 , 64.620 , 64.645 , 64.650 , 64.670 , 64.680 and 64.700 , contained in the reference to KRS 64.480 to 64.740 above, have been repealed.

NOTES TO DECISIONS

1.Deputies or Assistants.

In view of the provisions of this section, and the long established legislative policy in this state of authorizing deputies by specific statute when they are deemed necessary, the fiscal court has no authority under KRS 64.530 or otherwise, to authorize a deputy or assistant for an officer unless there is statutory recognition of the right of the particular officer to have deputies or assistants. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

64.560. Compensation of sheriff for county patrol duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 12) was repealed by Acts 1966, ch. 255, § 283.

64.570. Compensation of reporters for circuit courts. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 13) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

64.580. Compensation of city officers and employees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 14; 1968, ch. 152, § 34) was repealed by Acts 1980, ch. 235, § 20, effective July 15, 1980.

64.590. Compensation of officers and employees of political subdivisions or local governmental units or districts other than counties or cities, including school districts.

In the case of any political subdivision or local governmental unit or district other than a county or city, having a governing body or authority composed of more than one (1) member, such governing body or authority shall fix the compensation of every officer and employee of the political subdivision, local governmental unit, or district whose compensation is payable from the funds of the political subdivision, governmental unit, or district, except that in the case of officers elected by popular vote the same limitations and restrictions shall apply as are applicable under KRS 83A.070 to the fixing of compensation of city officers elected by popular vote. Nothing in this section is intended to confer any power on any governing board or authority, with respect to the compensation of its own members, that it does not specifically possess under other statutes. This section applies to school districts, but is not intended to supersede any present provision of law relating to the fixing or payment of the compensation of teachers.

History. Enact. Acts 1950, ch. 123, § 15; 1984, ch. 111, § 44, effective July 13, 1984; repealed and reenact., Acts 1990, ch. 476, Pt. V, § 295, effective July 13, 1990.

Research References and Practice Aids

Cross-References.

Limit on compensation of public officers, Const., § 246.

64.600. School officers and employes deemed officers and employes of state. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 16; 1956, ch. 238) was repealed by Acts 1962, ch. 145, § 1.

64.610. Employees of county or city boards or commissions — Compensation.

Any county or city board or commission, or combined city-county board or commission, which now has authority by law to fix the compensation of its employees, either with or without statutory limits, shall have power to fix the compensation of its employees subject only to the limitations contained in KRS 64.480 to 64.740 .

History. Enact. Acts 1950, ch. 123, § 17; 1980, ch. 188, § 27, effective July 15, 1980.

Compiler’s Notes.

KRS 64.490 to 64.499 , 64.500 to 64.525 , 64.560 , 64.570 , 64.580 , 64.600 , 64.620 , 64.645 , 64.650 , 64.670 , 64.680 and 64.700 , contained in the reference to KRS 64.480 to 64.740 above, have been repealed.

64.620. Limit on compensation of local officers and employes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 18; 1958, ch. 40) was repealed by Acts 1962, ch. 19.

64.625. Compensation of physicians employed by county, city-county, or district health departments.

Physicians employed by county, city-county, and district health departments may, upon written recommendation of the hiring and paying authorities expressly approved in writing by the secretary for health and family services, receive compensation in excess of, and without regard to, any limitation imposed by any existing statute, as employees of local health units. Such rates shall be based upon studies of the duties and responsibilities of the positions and upon a comparison for rates being paid for similar or comparable services elsewhere. The secretary for health and family services may also take into consideration other appropriate factors, including the scarcity of physicians qualified for public health work and the availability of local funds therefor.

History. Enact. Acts 1954, ch. 126; 1962, ch. 84; 1974, ch. 74, Art. VI, § 107(10); 1998, ch. 426, § 90, effective July 15, 1998; 2005, ch. 99, § 108, effective June 20, 2005.

64.630. Fees not authorized to be changed.

Nothing in KRS 64.480 to 64.740 is intended to change or to authorize any public officer or body to change the amount or rate of any fee or percentage prescribed by law, it being the intention of KRS 64.480 to 64.740 , with respect to officers receiving compensation from fees or percentages, to fix or provide for the fixing of the maximum compensation that may be received by the officer, and not the sources of such compensation.

History. Enact. Acts 1950, ch. 123, § 19; 1980, ch. 188, § 28, effective July 15, 1980.

Compiler’s Notes.

KRS 64.490 to 64.499 , 64.500 to 64.525 , 64.560 , 64.570 , 64.580 , 64.600 , 64.620 , 64.645 , 64.650 , 64.670 , 64.680 and 64.700 , contained in the reference to KRS 64.480 to 64.740 above, have been repealed.

NOTES TO DECISIONS

1.Sheriff’s Salary.

This section does not bar the fiscal courts of all counties, except those having a population of 75,000 or more, from paying the sheriffs a salary from the county treasury. Harlan v. Sawyers, 290 S.W.2d 488, 1956 Ky. LEXIS 327 ( Ky. 1956 ).

Research References and Practice Aids

ALR

Constitutional or statutory limitation of compensation of public officer as applicable to one in governmental service who is paid in whole or part from funds not derived from taxation. 135 A.L.R. 1033.

64.640. Compensation of state officers and employees generally. [See Compiler’s Note below] [Effective April 1, 2021]

  1. Except as otherwise provided in subsection (2) of this section, and excepting officers elected by popular vote, employees of the General Assembly, including employees of the Legislative Research Commission, members of boards and commissions, those officers and employees of Kentucky Educational Television exempt from classified service as provided in KRS 18A.115 , presidents and employees of the state universities and the state colleges, officers employed by the Department of Kentucky State Police under KRS Chapter 16, and persons employed by the commissioner of parks on a temporary basis under KRS 148.026 , the Personnel Cabinet shall prepare schedules of compensation, payable out of the State Treasury, with a minimum salary rate, and other salary rates as are deemed necessary or advisable, for the office or position of employment of every state officer and employee, including specifically the offices and positions of employment in every constitutional administrative department, statutory administrative department, independent agency, board, commission, or other unit of state government. The language of any statute empowering a board, commission, authority, or other administrative body for which the Personnel Cabinet provides personnel and payroll services, except for any board governing any of the Kentucky Retirement Systems, the County Employees Retirement System, the Kentucky Public Pensions Authority, the Kentucky Higher Education Assistance Authority, the Kentucky Authority for Educational Television, or the Council on Postsecondary Education, to establish, set, or approve the salaries of its administrative head and other employees to the contrary notwithstanding, the establishment or setting of salaries for administrative heads or other employees shall be subject to the approval of the secretary of the Personnel Cabinet. The schedules and rates shall be based upon studies of the duties and responsibilities of the offices and positions and upon a comparison with rates being paid for similar or comparable services elsewhere, and in the preparation of such schedules, the Personnel Cabinet shall ascertain and record the duties, responsibilities, and authority pertaining to the various offices and positions in the state service, and classify such positions in the manner provided in KRS 18A.030 , 18A.035 , 18A.110 , 18A.130 , 18A.135 , and 18A.150 to 18A.160 . No such schedule shall become effective until it has been approved by the Governor by executive order.
  2. The Governor shall set the compensation payable out of the State Treasury to each officer or position in the state service, which officer or position heads a statutory administrative department, independent agency, or other unit of state government, except for those excluded under subsection (1) of this section. Such compensation shall be based upon studies of the duties and responsibilities and classification of the positions by the Governor and upon a comparison with compensation being paid for similar or comparable services elsewhere, provided, however, such compensation shall not exceed the total taxable compensation of the Governor derived from state sources, the provisions of KRS 64.660 to the contrary notwithstanding. For the purposes of this section, the total taxable compensation of the Governor from state sources shall include the amount provided for compensation to the Governor under KRS 64.480 and any benefits or discretionary spending accounts that are imputed as taxable income for federal tax purposes.
  3. The compensation payable out of the State Treasury to officers and employees subordinate to any office or position covered by subsection (2) of this section shall not exceed the maximum rate established pursuant to subsection (2) of this section for such office or position, except with respect to physicians as provided in KRS 64.655 and employees of the Public Service Commission of Kentucky whose compensation shall be fixed, within constitutional limits, by the Personnel Cabinet with the approval of the Governor as provided in subsection (1) of this section.
  4. Nothing in this section shall preclude the allowance of maintenance to officers and employees of the state.

History. Enact. Acts 1950, ch. 123, § 22; 1952, ch. 98; 1954, ch. 174, § 1; 1956 (1st Ex. Sess.), ch. 7, Art. III; 1960, ch. 38; 1962, ch. 106, Art. I, § 11; 1962, ch. 184, § 1; 1962, ch. 210, § 13; 1966, ch. 38, § 2; 1966, ch. 255, § 76; 1970, ch. 160, § 1; 1972, ch. 22, § 1; 1976, ch. 83, § 13, effective March 29, 1976; 1978, ch. 379, § 56, effective April 1, 1979; 1980, ch. 98, § 1, effective July 15, 1980; 1980, ch. 331, § 1, effective July 15, 1980; 1982, ch. 448, § 63, effective July 15, 1982; 1998, ch. 154, § 71, effective July 15, 1998; 2000, ch. 495, § 2, effective July 14, 2000; 2000, ch. 501, § 5, effective July 14, 2000; 2016 ch. 109, § 11, effective July 15, 2016; 2016 ch. 110, § 12, effective July 15, 2016; 2020 ch. 79, § 30, effective April 1, 2021.

Legislative Research Commission Notes.

(7/15/2016). This statute was amended in 2016 Ky. Acts ch. 109, sec. 11 and ch. 110, sec. 12. 2016 Ky. Acts ch. 110, sec. 15 provided that ch. 110 takes precedence over ch. 109. Chapter 110 was also the later-passed bill. Therefore, 2016 Ky. Acts ch. 110, sec. 12 has been codified and 2016 Ky. Acts ch. 109, sec. 11 has not.

Compiler's Notes.

Section 15 of Acts 2016, ch. 110 read: “Sections 6 to 12 of this Act shall take precedence over the provisions of Sections 5 to 11 of 16 RS HB 535 [Act 109] should that bill be enacted.”

Opinions of Attorney General.

The Governor is privileged, without reference to Const., § 246, to raise the salary of the commissioner of mental health to any amount which, in his opinion, is reasonably commensurate with the services rendered. OAG 61-594 .

Subsection (3) of this section relates primarily to officers and employees subordinate to any office mentioned in subsection (2). OAG 70-195 .

Salaries in excess of $7,500 per annum to officers and employees of the Crime Commission are legal provided they do not exceed $20,000 per annum. OAG 70-769 .

The Crime Commission is a statutory agency within the meaning of subsection (2) of this section. OAG 70-769 .

Where the commissioner of personnel indicated his approval of the worth of a salary increase for the executive secretary of the state and county retirement systems but denied it on the basis of the limitations set by this section which did not apply to the position, it was an abuse of discretion to deny the increase. OAG 71-369 .

Section 246 of the Constitution and this section have no application to personal service contracts, and KRS 18.140 (now repealed), as amended in 1978, expressly exempts persons employed in a professional or scientific capacity from the classified service. OAG 78-692 .

The statutes do not grant sole authority to Kentucky Authority for Educational Television to determine who may be exempt from KRS Chapter 18 (now Ch. 18A); at most, they exclude from the commissioner of personnel’s determination of salary those positions exempted by the merit system under KRS 18.140 (now KRS 18A.115 ); and Kentucky educational television was not given authority to exempt other positions not so listed, nor was it given the sole right to determine the salary of nonexempted positions. OAG 80-537 .

An annual salary increment under KRS 18A.350 to 18A.360 (KRS 18A.360 , now repealed), governing employees of the executive branch, may not take an employee’s salary beyond the maximum established in this section (the amount provided for compensation to the Governor). OAG 82-355 .

Just as this section provides an upper limit for all employees with regard to their potential salary, including any 5 percent increases, KRS 161.340 must be read into KRS 18A.350 to 18A.360 (KRS 18A.360 , now repealed) to provide an absolute upper salary limit for the executive secretary of the Teachers’ Retirement System to be the maximum set for commissioners by subsection (2) of this section. OAG 82-355 .

Constitutional officers are not entitled to vacation pay over and above their base salary; they may take vacations without reduction in salary and are not entitled to additional compensation, either as vacation, sick, or compensatory pay. OAG 88-7 .

Upon review of this section, KRS 346.030 , and 12.020 II 6. (k), as well as of KRS 18A.350 , 18A.355 , and 18A.360 (now repealed), the incumbents of the Crime Victims Compensation Board are included under the language of KRS 18A.350 which defines employee as any officer or employee of the executive branch of government; therefore, it would appear that the members of the Crime Victims Compensation Board are eligible for annual increments, although it is entirely possible that this was not the intent of the Legislature. OAG 90-25 .

Upon review of this section KRS 346.030 , 44.070 and 12.020 II 6. (k), as well as of KRS 18A.350 , 18A.355 , and 18A.360 (now repealed), the incumbents of the Board of Claims are included under the language of KRS 18A.350 which defines employee as any officer or employee of the executive branch of government; therefore, it would appear that the members of the Board of Claims are eligible for annual increments, although it is entirely possible that this was not the intent of the Legislature. OAG 90-25 .

Upon review of this section, KRS 439.320(1) and (3), and 12.020 II 10. (a), as well as of KRS 18A.350 , 18A.355 , and 18A.360 (now repealed), the incumbents of the Parole Board are included under the language of KRS 18A.350 which defines employee as any officer or employee of the executive branch of government; therefore, it would appear that the members of the Parole Board are eligible for annual increments, although it is entirely possible that this was not the intent of the Legislature. OAG 90-25 .

Upon review of this section and KRS 229.151 , as well as of KRS 18A.350 , 18A.355 , and 18A.360 (now repealed), the incumbents of the Athletic Commission are included under the language of KRS 18A.350 which defines employee as any officer or employee of the executive branch of government; therefore, it would appear that the members of the Athletic Commission are eligible for annual increments, although it is entirely possible that this was not the intent of the Legislature. OAG 90-25 .

Upon review of this section and KRS 338.071 , as well as of KRS 18A.350 , 18A.355 , and 18A.360 (now repealed), the incumbents of the Occupational Safety Health and Review Commission are included under the language of KRS 18A.350 which defines employee as any officer or employee of the executive branch of government; therefore, it would appear that the members of the Occupational Safety Health and Review Commission are eligible for annual increments, although it is entirely possible that this was not the intent of the Legislature. OAG 90-25 .

While assistant county attorneys are appointed with the approval of the Prosecutors Advisory Council, salaries are merely comparable with the classification and compensation plan for comparable positions maintained by the state department of personnel, pursuant to this section, not synonymous with them. OAG 91-218 .

The Governor did not violate provision of 2003 budget bill (Part IV, Item Three of HB 269) in establishing the initial salaries of his newly appointed Cabinet Secretaries and other appointees pursuant to his authority under subsection (2) of this section. OAG 04-003 .

Research References and Practice Aids

Cross-References.

Commissioner of mental health, salary of not limited by KRS 64.640 .

Limit on compensation of public officers, Const., § 246.

Officers and employees of state universities and state colleges not subject to this section, KRS 164.225, 164.285, 164.365.

State universities and state colleges not to be included in Department of Education, KRS 164.285.

ALR

Administrative officers’ or boards’ power in respect of compensation of public officer under statute fixing maximum or minimum compensation, as affected by constitutional prohibition of increasing or decreasing compensation during term of office. 70 A.L.R. 1055.

64.645. Maximum salary of university president and state college presidents. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 28, § 4) was repealed by Acts 1956, ch. 28.

64.650. Limit on compensation of subordinate state officers and employes; when maintenance allowable. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 23) was repealed by Acts 1954, ch. 174, § 2.

64.655. Compensation and maintenance of physicians employed by the state.

  1. As used in this section, unless the context clearly requires otherwise:

    “Physician” means a person authorized by law to practice medicine in this state.

  2. Notwithstanding the provisions of KRS 64.640 , the Personnel Cabinet may, upon the recommendation of the hiring authority and with the approval of the Governor, establish rates of compensation and maintenance within the constitutional limit for each position requiring the services of a qualified physician in any department, agency, or other unit of state government. Such rates shall be based upon studies of the duties and responsibilities of the positions and upon a comparison with rates being paid for similar or comparable services elsewhere.

History. Enact. Acts 1952, ch. 42, §§ 1, 2; 1998, ch. 154, § 72, effective July 15, 1998.

Opinions of Attorney General.

The compensation of physicians employed by the commonwealth may be set at any amount which the Department of Personnel recommends and to which the Commissioner of Mental Health and the Governor agree. OAG 61-594 .

Research References and Practice Aids

Cross-References.

Maximum limit on compensation of public officers, Const., § 246.

64.660. Compensation of members of public boards and commissions.

Nothing in KRS 64.480 to 64.740 is intended to authorize the increase of the compensation now fixed by law for the members of any public board or commission for their services as members of the board or commission, except members of fiscal courts to the extent authorized in subsection (3) of KRS 64.530 .

History. Enact. Acts 1950, ch. 123, § 24; 1980, ch. 188, § 29, effective July 15, 1980.

Compiler’s Notes.

KRS 64.490 to 64.499 , 64.500 to 64.525 , 64.560 , 64.570 , 64.580 , 64.600 , 64.620 , 64.645 , 64.650 , 64.670 , 64.680 and 64.700 , contained in the reference to KRS 64.480 to 64.740 above, have been repealed.

64.670. Compensation of public officers and employes for 1950. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 25) was repealed by Acts 1966, ch. 255, § 283.

64.680. Applicability of KRS 64.480 to 64.760 to officers in office on June 30, 1950. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 26) was repealed by Acts 1966, ch. 255, § 283.

64.690. Applicability of other statutes dealing with compensation — Applicability of KRS 64.368 if population decreases below 70,000.

  1. Except as provided in KRS 64.610 and in this section, KRS 64.480 to 64.740 are intended to supersede any existing statute, fixing the compensation, or authorizing any public officer or body to fix the compensation, of any public officer or employee covered by KRS 64.480 to 64.740 .
  2. Any public officer or body which has authority to fix the compensation of any state officer or employee covered by KRS 64.640 shall exercise such authority, subject to the schedule and limits of compensation for the particular office or position prescribed in KRS 64.640 . The secretary of the Personnel Cabinet shall have the authority to monitor and require compliance with the provisions of this section and KRS 64.640 and 64.475 .
  3. KRS 64.480 to 64.740 are not intended to supersede any existing statute, with respect to the compensation of circuit clerks, county clerks, sheriffs, master commissioners, and receivers, and their deputies and assistants, in counties containing a population of seventy thousand (70,000) or more, or property valuation administrators, their deputies, and assistants, in any county.
  4. If a county’s population that equaled or exceeded seventy thousand (70,000) is less than seventy thousand (70,000) after the most recent federal decennial census, then the provisions of KRS 64.368 shall apply.

History. Enact. Acts 1950, ch. 123, § 27; 1966, ch. 255, § 77; 1982, ch. 385, § 24, effective July 1, 1982; 1992, ch. 220, § 9, effective January 1, 1994; 2000, ch. 495, § 3, effective July 14, 2000; 2002, ch. 71, § 6, effective July 15, 2002.

Compiler’s Notes.

KRS 64.490 to 64.499 , 64.500 to 64.525 , 64.560 , 64.570 , 64.580 , 64.600 , 64.620 , 64.645 , 64.650 , 64.670 , 64.680 and 64.700 , contained in the reference to KRS 64.480 to 64.740 above, have been repealed.

Opinions of Attorney General.

KRS 64.530 governs the procedure for fixing the salary of a trial commissioner. OAG 67-356 .

The fiscal court, in its sound discretion, can establish the compensation or salary of the trial commissioner, and such discretion is not subject to the constitutional limitations of Const., § 246 because a trial commissioner is not an officer. OAG 67-356 .

64.700. Old compensation rates applicable until specific action taken by salary-fixing authority. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 28) was repealed by Acts 1966, ch. 255, § 283.

64.710. Expense accounts and contingent funds prohibited — Exceptions.

No public officer or employee shall receive or be allowed or paid any lump sum expense allowance, or contingent fund for personal or official expenses, except where such allowance or fund either is expressly provided for by statute or is specifically appropriated by the General Assembly.

History. Enact. Acts 1950, ch. 123, § 30.

NOTES TO DECISIONS

1.Lump Sum.

Any lump sum payments for office rent and telephone made to magistrate members of fiscal court after the effective date of this section are invalid. Smith v. Campbell, 286 S.W.2d 532, 1955 Ky. LEXIS 99 ( Ky. 1955 ), overruled, Ward v. Southern Bell Tel. & Tel. Co., 436 S.W.2d 794, 1968 Ky. LEXIS 189 ( Ky. 1968 ).

This section prohibits a lump sum, blanket allowance except where expressly provided for by statute. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

Payment of $50 per month for expenses, without itemization or proof of items, constitutes a blanket allowance in violation of this section. Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ).

Contract between commonwealth (on behalf of Department of Highways) and one of its employees in which the commonwealth in consideration of employee’s transfer to new work station in the state agreed to pay him $300 as a monetary allowance in lieu of his moving expense calls for payment of a lump sum expense allowance which is specifically prohibited by this section and thus such contract is invalid. Matthews v. Ward, 350 S.W.2d 500, 1961 Ky. LEXIS 112 ( Ky. 1961 ).

Payment by a municipal corporation to a public official of a lump sum allowance to cover his auto and travel expenses was improper as a violation of this section. McWhorter v. Richmond, 514 S.W.2d 678, 1974 Ky. LEXIS 323 ( Ky. 1974 ).

Cited:

Glass v. Van Zant, 307 S.W.2d 175, 1957 Ky. LEXIS 72 ( Ky. 1957 ); Burchett v. Leslie, 311 S.W.2d 551, 1957 Ky. LEXIS 10 ( Ky. 1957 ); Hall v. Noplis, 367 S.W.2d 456, 1963 Ky. LEXIS 27 ( Ky. 1963 ); Fleischer v. Jefferson County, 390 S.W.2d 895, 1965 Ky. LEXIS 379 ( Ky. 1965 ).

Opinions of Attorney General.

A city legislative body had no authority to enact an ordinance which authorized the police judge to receive a monthly expense allowance of $50.00 for the purpose of defraying his expenses for so-called extra official duties. OAG 62-510 .

No lump sum expense allowance can be allowed the county judge (now county judge/executive). OAG 66-431 .

A mayor is entitled to receive only his actual expenses incurred in a trip to Washington on behalf of the city and not entitled to receive the sum of $250 for his expenses, which would be a lump sum expense appropriation. OAG 68-118 .

The fiscal court may establish a properly budgeted item for a traveling expense account for the county judge (now county judge/executive), but not as a blanket allowance. OAG 69-403 .

The fiscal court has no authority to give the county judge (now county judge/executive) a lump sum expense account from any source. OAG 70-110 .

A county judge’s (now county judge/executive’s) salary cannot be raised $100 per month by calling the $100 an expense account. OAG 70-122 .

No lump sum expense account for coroners is authorized. OAG 70-482 .

The legislative body of a third-class city cannot legally pass by resolution or ordinance a law providing for a stated amount of money per month to be paid to the mayor and members of such governing body, such sum representing expense accounts for these officers, and not require an accounting from such officers for the additional moneys so received. OAG 70-542 .

The mayor of a third-class city cannot, in addition to his regular pay as set by statute, receive a stipulated amount of money per month for expenses and not make an accounting for such additional sums so received. OAG 70-542 .

Commissioners of a water district created pursuant to KRS Ch. 74 are public officers and as such are prohibited from receiving lump sum expense allowances. OAG 70-641 .

Members of the board of business schools and the board’s employees should be reimbursed only for their travel and other actual expenses. OAG 70-715 .

No member of the State Board of Business Schools or any employee of the Board may receive a per diem allowance. OAG 70-715 .

A lump sum expense account for constables would be illegal. OAG 70-751 .

Where an ordinance was properly passed granting the mayor a lump sum expense account but it was invalid under the statute, any payment pursuant thereto could possibly be recovered in a taxpayer’s suit with the possible exception of actual expenses incurred during the period in which it was paid. OAG 71-55 .

The county judge (now county judge/executive) is required to document his actual official expenses as they occur in order that his claims may be properly presented to the fiscal court. OAG 71-417 .

A city ordinance allowing the mayor a lump sum allowance of $50 per month for automobile expenses is invalid under this section, since no statute authorizes such an allowance. OAG 72-127 .

Pursuant to KRS 64.258 (now repealed), a county may establish for each of the magistrates on the fiscal court a monthly expense allowance not to exceed $100 providing county has sufficient excess funds and all of the magistrates in the county are paid equal amounts. Allowance does not constitute a salary within the meaning of KRS 64.255 (repealed), and if the necessary official expenses of a magistrate exceed the established allowance for a particular month the magistrate may be reimbursed for such excess out of the county treasury provided that such claims are properly documented. OAG 73-551 .

Lump sum amount for expenses cannot be paid to a public officer without express statutory authority and unless the expenses were actually incurred and properly documented. OAG 73-597 .

A blanket sum from revenue sharing money allocated to the sheriff’s office is not valid since it does not conform to KRS 64.530 in providing specific sums for specific purposes, lump sum expense accounts generally being prohibited by this section. OAG 74-79 .

Fiscal court could not make a blanket advance appropriation to sheriff for expenses incurred for automobiles, deputies’ salaries and expenses incurred by night patrolling of county roads. OAG 74-159 .

The fiscal court cannot provide for lump sum expense payments to constables. OAG 74-282 .

An ordinance of the fiscal court which approves the selection of a detective by the county attorney is in conflict with this section if it provides for a lump sum expense account for the detective. OAG 74-303 .

A county fiscal court order under authority of KRS 67.083 , providing that the county will reimburse the county judge (now county judge/executive) for the added expenses of the extra duty involved in executing extra matters not to exceed $50.00 per week, is not a flat amount or lump sum prohibited by this section and, is legal, provided it does not duplicate state payments made under KRS 25.320(2) (repealed) to county judges (now county judges/executives) to defray or partly defray the expenses of their office. OAG 74-347 .

It would be improper to pay a city attorney a flat monthly sum of $250 for office expense as he is entitled to be reimbursed only for those office expenses that are actually incurred and for which an itemized accounting has been made. OAG 74-696 .

Payment of regular expense allowances to justices of the peace under the authority of KRS 64.258 (now repealed) does not violate this section. OAG 74-716 .

The city prosecuting attorney as a public officer is prohibited from receiving any lump sum expense allowance for personal or official expenses except when expressly authorized by statute but is entitled to receive reimbursement for actual and necessary expenses incurred in connection with the performance of his duties. OAG 75-29 .

This section would prohibit a county sheriff from providing an expense account for his deputies from the excess fees of his office. OAG 75-317 .

This section prohibits the granting of a lump sum expense account to the county treasurer. OAG 75-342 .

In a county where the finance system of KRS 64.345 applies, the sheriff’s expenses must be paid out of the 75% account as fixed by the fiscal court no later than January 15 of each year and, as KRS 64.346 was designed to pay for expenses actually incurred and documented by the sheriff, the fiscal court has no authority to grant the sheriff a lump sum expense allowance as this section provides that no officer shall receive a lump sum expense allowance except where such allowance is expressly provided for by statute. OAG 75-484 .

A city council resolution setting a fixed amount for monthly expenses to be paid each city official in combination with his monthly salary would be illegal, since the city officers are entitled only to expenses actually incurred in connection with official business, and such expenses must be itemized and documented. OAG 76-70 .

Under this section no expense account system could be set up for the mayor and/or commissioners since there is no statute authorizing such. OAG 77-110 .

The setting of an expense account cannot be considered part of the overall salary for city employees because this section specifically prohibits a city from establishing a lump sum expense account for such employees. OAG 80-276 .

No county employee can be given an expense account each month, except where such allowance is expressly provided by statute. OAG 80-334 .

A commissioner under the city manager form of government may not receive a monthly lump sum gasoline allowance out of the general revenues of the city in addition to his salary since this section prohibits the payment of lump sum expenses unless the state legislature has provided otherwise, which it has not done with respect to municipal officers. OAG 81-22 .

A county fiscal court does not have to allow an expense account for an elected constable since this section prohibits the fiscal court from providing a lump sum expense account for any officer where there is no statute or specific appropriation by the General Assembly, and there is no law requiring that a constable’s office expenses be paid by the county. OAG 81-186 .

An annual lump sum allowance of $3600 for travel expenses for a mayor was illegal since public officials and employees are entitled to travel expenses only in response to detailed evidence of the actual expenses incurred. OAG 82-168 .

The mayor, in addition to his regular salary, cannot be granted an expense account of a certain amount of money each month, to take care of any expenses; of course, the mayor would be entitled to be reimbursed for any actual expenses incurred in the performance of his duties, such as his travel, etc. OAG 84-351 .

This section prohibits payment of a lump sum expense allowance to officers or employees, but it does not preclude payment of actual and necessary expenses. OAG 91-192 .

64.720. When compensation of county officers and employees payable out of county treasury.

Except where the law provides that the compensation shall be paid out of the fees of the office, the fiscal court may authorize payment of compensation out of the county treasury to any county officer or employee specifically provided for by law.

History. Enact. Acts 1950, ch. 123, § 31.

NOTES TO DECISIONS

1.Sheriff.

The Legislature authorized the fiscal court of each county except those having a population of 75,000 or more, to pay the sheriff a salary from the county treasury. Harlan v. Sawyers, 290 S.W.2d 488, 1956 Ky. LEXIS 327 ( Ky. 1956 ).

Cited:

Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ).

Opinions of Attorney General.

This section specifically authorizes a fiscal court to pay the constable a salary out of the county treasury, not to exceed $7,200 pursuant to Const., § 246. OAG 65-71 .

The fiscal court is authorized to pay a salary to the circuit court clerk, and the amount of such a salary is, when being initially established, purely discretionary with the fiscal court. OAG 65-785 .

The fiscal court is authorized to pay a salary to the various officers listed in KRS 64.535 , the amount of such salary, when initially established, being purely discretionary with the fiscal court but subject to the limitation of $9,600 and the limitations of Const., §§ 161 and 235. OAG 65-802 .

The fiscal court could validly raise that portion of the circuit clerk’s salary that constituted his salary as law librarian after his term of office had begun. OAG 66-412 .

The fiscal court in its sound discretion and depending upon the local budget situation is authorized (but is not required) to provide a salary, payable out of the county treasury by the county of $9,600 per year for the county judge (now county judge/executive). OAG 68-68 .

The fiscal court, in its discretion, may pay the county surveyor a salary based upon work to be actually performed. OAG 70-178 .

The payment of a salary to a county clerk from county funds is discretionary, generally, with the fiscal court and such discretion should be exercised under KRS 64.530 and this section. OAG 70-524 .

The fiscal court could implement a salary adjustment in the salary of the county judge subject to the maximum compensation of KRS 64.535 but it could not be retroactive. OAG 70-592 .

Once the salary for the county attorney is set for the term, even though the one elected resigns and another is appointed, the salary cannot be changed for the balance of the term except that it can be “adjusted” under the “flexible dollar” doctrine. OAG 71-50 .

Since the stenographer to the county attorney is not an elected officer or deputy, the salary of the stenographer can be changed from time to time. OAG 71-50 .

Except where the law provides that compensation of county officers shall be paid solely out of the fees of the office, the fiscal court may authorize payment of compensation out of the county treasury. OAG 74-1 .

A fiscal court has the authority to adopt an accounting system wherein fee officers turn in all fees to the county treasury and the county treasurer in turn pays each officer his monthly salary, if properly set pursuant to KRS 64.530 , from the general fund; but, in order not to violate KRS 64.535 , it must not provide a salary out of the county treasury that would be a sum less than the total fees of the office that would otherwise be available for the officer’s personal compensation. OAG 74-1 .

The fiscal court may in its discretion authorize a salary for constables payable out of the county treasury. OAG 74-282 .

Voting a salary to be paid out of the county treasury pursuant to this section for any of the officers named in KRS 64.535 is permissive on the part of the fiscal court. OAG 74-603 .

If an elected sheriff in a county of less than 75,000 is removed from office and his salary and the salaries of his deputies are derived in whole or in part from earned fees of the office, said officers would be entitled to such portion of their salaries, if any, obtainable from the fees; and, if the fiscal court had authorized any salary to be paid out of the county treasury they would be entitled to receive a check from the county paying them for the time actually in office. OAG 74-680 .

Sums paid to a county clerk for repair and service of election machines and for auditing the sheriff’s books are private remuneration and not excess fees and the clerk should be exonerated by the fiscal court from accounting for these sums as excess fees. OAG 75-61 .

A fiscal court may exonerate a county clerk from accounting for any sums as excess fees which the court believes are not a valid part of the clerk’s excess fees and there would be no personal liability of fiscal court members for such action providing the claim involved is not a liquidated claim and the fiscal court acts in good faith. OAG 75-61 .

The fiscal court, in its discretion, may pay a salary out of the county treasury, subject to proper budgetary procedure under this section of $15,667.20 maximum which can be paid out of the county’s revenue sharing funds as a public safety item and any actual and necessary office expenses of the sheriff may be reimbursed to him by the fiscal court out of the county treasury, provided such expenses are those recognized by the courts as being official expenses and provided they are documented in the proper manner. OAG 75-410 .

If there is no fiscal court order authorizing a salary for the constable out of the county treasury, then the constable has no valid claim against the county for duties performed by him while in office, nor can the fiscal court enter an order authorizing payment for services rendered in the past. OAG 76-343 .

The fees of the jailer plus any salary payable out of the county treasury cannot exceed the rubber dollar maximum in the particular year. OAG 78-350 .

The fiscal court can establish a salary for the county jailer payable out of the county treasury, so long as the salary does not exceed the rubber dollar maximum for the particular year, and where the fiscal court has not authorized a salary up to the rubber dollar maximum, the salary fixing power of the fiscal court remains unexhausted. OAG 78-350 .

The fiscal court should set the salary for the matron deputy, which salary may be paid out of the fees of the jailer, if available, or if not available, the salary may be paid out of the county treasury within the discretion of the fiscal court. OAG 78-489 .

The fiscal court is not required to provide a salary for the sheriff, it is permissive only. OAG 80-35 .

Where a county sheriff who received only $6,852 as personal compensation in 1978, whereas he was eligible, under KRS 64.527 , for over $18,000, settled his 1978 accounts in mid-1979, then sought the difference of almost $12,000 for 1978 in September, 1979, his request came too late, since the 1978 accounting year had expired before the request was made. OAG 80-35 .

To the extent that the annual janitorial appropriation mentioned in KRS 67.130 would represent money paid to a jailer for janitorial services rendered by him personally, that would be net compensation; any of that janitorial money paid out by the jailer for supplies or equipment used in the janitorial function or paid out by the jailer to others to assist in the janitorial function should be deducted from the gross appropriation to determine the jailer’s net compensation under KRS 67.130 . OAG 80.161.

Under the rubber dollar principle any salary paid to the jailer plus any net janitorial compensation plus earned fees of the jailer as aggregated cannot exceed the sum of $23,184 for 1980, and any excess of the jailer’s receipts over and above the amount allowable for his personal compensation, the compensation of his deputies and assistants, and authorized official expenses, must be turned over to the county treasury. OAG 80-161 .

The county judge/executive’s salary, when adjusted for 1980, can be retroactive to January 1, 1980, since the fiscal court is dealing with an “annual compensation” concept, even though it is broken down to monthly payments. OAG 80-208 .

The fiscal court, where the sheriff’s fees and receipts are not sufficient, should by an appropriate order, and subject to proper budget procedure under KRS Chapter 68, direct that payments be made out of the county treasury for the sheriff’s official postage, office supplies and utilities. OAG 83-293 .

As to the proper procedure for setting the salaries of the deputies of the county clerk under KRS 64.530 in a county operating under the fee-pooling system, see OAG 85-76 .

64.730. Effect of failure to fix compensation of officer prior to commencement of term.

Where any public body is required by KRS 64.480 to 64.740 to fix the compensation of an officer, and of his deputies and assistants, for terms commencing after June 30, 1950, not later than the first Monday in May in the year in which such officers are elected, and the body fails to do so, the compensation of the officer, and of his deputies and assistants, shall be the same as for the preceding term.

History. Enact. Acts 1950, ch. 123, § 32; 1980, ch. 188, § 30, effective July 15, 1980.

Compiler’s Notes.

KRS 64.490 to 64.499 , 64.500 to 64.525 , 64.560 , 64.570 , 64.580 , 64.600 , 64.620 , 64.645 , 64.650 , 64.670 , 64.680 and 64.700 , contained in the reference to KRS 64.480 to 64.740 above, have been repealed.

NOTES TO DECISIONS

1.Purpose.

This section enunciates a “saving” law to provide for instances in which the legislative body of the city may have failed to fix the salary as required by KRS 64.580 (now repealed). Somerset v. Reid, 413 S.W.2d 611, 1967 Ky. LEXIS 395 ( Ky. 1967 ).

2.Failure to Fix on Time.

Where fiscal court failed to fix salary of county attorney before his election, Const., § 161 did not prohibit court from entering order fixing his salary after his election; however, effective anytime after June 30, 1950, this section provides that if fiscal court does not fix salary of county attorney as required by KRS 69.250 (now repealed) the compensation shall be the same as the preceding term. Upton v. Whitley County, 256 S.W.2d 3, 1952 Ky. LEXIS 1148 ( Ky. 1952 ).

Under this section when the compensation has not been fixed by the first Monday in May in the year of election, the compensation is to be the same as for the preceding term. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

Upon failure to fix the compensation of every county officer “not later than the first Monday in May in the year in which such officers are elected,” the compensation shall be the same as that fixed for the preceding term. Webster County v. Vaughn, 365 S.W.2d 109, 1962 Ky. LEXIS 283 ( Ky. 1962 ).

If there was no monetary compensation legally paid to the preceding mayor or if it be found that the compensation to him was not in a reasonable amount, the setting of a salary of $100 per month for the successor mayor by ordinance adopted after his election would not be invalid. Wells v. Roberts, 448 S.W.2d 658, 1969 Ky. LEXIS 59 ( Ky. 1969 ).

3.Compensation of Predecessor.

If there was a reasonable monetary compensation to the prior mayor, the setting of a salary of $100 per month for the successor mayor by ordinance adopted after his election would be invalid and an equal rate to that received by his predecessor would be all the mayor would be entitled to receive. Wells v. Roberts, 448 S.W.2d 658, 1969 Ky. LEXIS 59 ( Ky. 1969 ).

Cited:

Stokely v. Fleming County Fiscal Court, 323 S.W.2d 844, 1959 Ky. LEXIS 337 ( Ky. 1959 ); Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

Opinions of Attorney General.

Where the attempt of the city legislative body to set the salary of the police judge prior to the first Monday in May was ineffective, the salary for the ensuing term was the same as that for the previous term. OAG 62-308 .

The fixation of salaries of deputies of officers named in KRS 64.535 is left to the determination of the fiscal court, and such salaries must be fixed within the time limitation of this section or they remain the same as for the preceding term. OAG 65-851 .

The fiscal court could not raise the county judge’s (now county judge/executive’s) salary for the coming term after the first Monday in May of the year in which he was elected. OAG 65-866 .

Where the magistrates did not receive any compensation for trying criminal cases in the preceding term, an order entered by them after their term had begun authorizing such compensation was valid. OAG 66-388 .

An ordinance passed prior to reclassification from a sixth-class to fifth-class city applies to the compensation for the new council and also for the office of mayor where the old council had fixed the compensation for the term. OAG 67-451 .

An ordinance enacted in 1961, which fixed the salary for an office to be the maximum salary permitted by KRS 89.480 (now repealed), would continue to be effective irrespective of an amendment to that section in 1966, since the city legislative body failed to amend its ordinance. OAG 68-120 .

The term, “that of the preceding term,” means the compensation actually paid during the preceding term. OAG 69-58 .

Where the fiscal court failed to fix the number of deputies for the county court clerk’s office and the proper salary levels for each authorized deputy, the number and compensation of each such deputy must be limited to that of the preceding term of the county court clerk. OAG 70-13 .

Sheriff and deputies whose salaries for new term were not set by the first Monday in May would receive salaries paid for preceding term. OAG 73-465 .

Although KRS 64.530 was amended in 1970 to permit flexibility in the adjustment of salaries of deputies by review and adjustment by the fiscal court it does not allow for a change in the number of deputy positions. OAG 73-835 .

Where sixth-class city legislative body had not fixed the salary of police court judge in May of his election year in accordance with KRS 64.580 (now repealed), and where there has never been any compensation paid in a previous term, setting of a salary after police judge took office in January was permissible and not a “change” proscribed by KRS 64.580 (now repealed). OAG 74-142 .

Under KRS 64.345 and 71.060 a jailer may on his own authority appoint not more than two deputies but he may not pay their salaries from the salary and fees of his office and the salaries would have to be fixed by order of the fiscal court unless a salary had been previously set for a deputy in which case, in the absence of a fiscal court order, it would carry over as the salary of the new deputy under this section. OAG 75-69 .

The county jailer can, in view of KRS 71.060 , appoint up to two deputies without the approval of the county judge (now county judge/executive), county court or fiscal court and, where there has been no previous fixed compensation for such deputies, the fiscal court may, subject to proper budgetary procedures, fix their compensation during their current terms. OAG 75-293 .

Where the fiscal court fails to set the salaries of the county officials as required by KRS 64.530 , the compensation of the officers and their deputies shall be the same as for the preceding term. OAG 75-317 .

Where the present city legislative body failed to change the compensation of the newly elected members to the $3,000 maximum per annum provided by KRS 86.053 (now repealed), prior to the first Monday in May in the year in which they were elected for the new term as prescribed by KRS 64.580 (now repealed), no further change in compensation could be made for members of the new term and the compensation received for the previous term remains effective. OAG 75-716 .

The rubber dollar adjustment theory of KRS 64.527 negates the limitation on salary set by this section. OAG 78-54 .

If the jailer had no salary out of the county treasury during the preceding term, then the fiscal court may at any time fix a salary for the county jailer, payable out of the county treasury, which cannot exceed the maximum authorized under KRS 64.527 . OAG 78-565 .

An ordinance authorizing payment of the members of city legislative body on a fee basis was in violation of the present municipal code; since the compensation was fixed on a per meeting basis illegally in 1981, it was legally permissible for it to be fixed on an annual basis during the 1983 term, provided, that the compensation fixed during prior terms had been established in the same manner, that is, on a “per meeting” basis. OAG 83-59 .

Where the salaries for deputy coroners were not fixed for the preceding term, the fiscal court may fix such salaries even after the coroner has assumed his office; where the deputies’ salaries were fixed for the preceding term, that salary will govern, until changed during the present term. OAG 83-211 .

If the compensation for members of a city council is not fixed by the first Monday in May of the year in which the officers are elected, or if it is fixed illegally such as on a per meeting basis, then the compensation fixed for the previous term becomes effective under this section for the present term; however, if not only was the salary not legally fixed at the May session of a certain year, having been set on a per meeting basis, but had never been fixed other than by this method, the compensation could be fixed after the May deadline or any time during the term of the elected officials. OAG 83-394 .

Following the repeal of KRS 64.580 in 1980, this section would appear to have no application to cities, which set salaries pursuant to KRS 83A.070 ; however, even if this section does apply to cities and to the salaries for the members of the Board of Aldermen for the City of Louisville for the new term that are set at an amount which is the same as the previous term, the salaries may still be adjusted under the “rubber dollar” doctrine. OAG 90-2 .

If a city’s legislative body chooses to make “rubber dollar” adjustments, it may do so at any time following publication of that year’s “rubber dollar” changes. OAG 90-2 .

KRS 64.530 does not apply to the setting of a jailer’s salary by the fiscal court, and consequently this section does not apply either. OAG 93-42 .

64.740. Protection of employees under civil service.

Nothing in KRS 64.480 to 64.740 is intended to supersede any existing provision of law with respect to protection of employees under civil service against reduction of compensation.

History. Enact. Acts 1950, ch. 123, § 33; 1980, ch. 188, § 31, effective July 15, 1980.

Compiler’s Notes.

KRS 64.490 to 64.499 , 64.500 to 64.525 , 64.560 , 64.570 , 64.580 , 64.600 , 64.620 , 64.645 , 64.650 , 64.670 , 64.680 and 64.700 , contained in the reference to KRS 64.480 to 64.740 above, have been repealed.

Public Officials Compensation Commission

64.741. Definitions for KRS 64.742 to 64.745. [Repealed]

History. Enact. Acts 1976, ch. 83, § 1, effective March 29, 1976; 1980, ch. 188, § 32, effective July 15, 1980; 1980, ch. 407, § 11, effective July 1, 1980; 1986, ch. 331, § 16, effective July 15, 1986; 1994, ch. 486, § 21, effective July 15, 1994; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

64.742. Public Officials Compensation Commission. [Repealed]

History. Enact. Acts 1976, ch. 83, § 2, effective March 29, 1976; 1994, ch. 486, § 22, effective July 15, 1994; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

64.743. Organization — Compensation — Staff. [Repealed]

History. Enact. Acts 1976, ch. 83, § 3, effective March 29, 1976; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

64.744. Studies — Recommendations. [Repealed]

History. Enact. Acts 1976, ch. 83, § 4, effective March 29, 1976; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

64.745. Reports. [Repealed]

History. Enact. Acts 1976, ch. 83, § 5, effective March 29, 1976; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

64.750. Nonseverability of 1950 Act relating to compensation of public officers and employes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 34) was repealed by Acts 1966, ch. 255, § 283.

64.760. Recognition that compensation of public officers and employes, jurors and election officers constitutes an essential governmental expense. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 123, § 35) was repealed by Acts 1968, ch. 152, § 168.

County Officials’ Compensation Board

64.770. County Officials’ Compensation Board. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 254, § 17; 1976 (Ex. Sess.), ch. 14, § 42; 1978, ch. 384, § 133; 1980, ch. 188, § 33; 1982, ch. 384, § 2; 1986, ch. 374, § 23; 1998, ch. 69, § 27) was repealed by Acts 2007, ch. 47, § 95, effective June 26, 2007.

64.780. Questionnaires — Reports of recommendations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 254, § 18; 2001, ch. 58, § 29) was repealed by Acts 2007, ch. 47, § 95, effective June 26, 2007.

Accounts and Accounting

64.810. Annual audit of books of fiscal court or county office by certified public accountant, if auditor declines to perform audit — Procedure.

    1. Any fiscal court, county clerk, or sheriff may employ a certified public accountant to audit the books, accounts, and papers of the county or his office in lieu of the audit conducted by the State Auditor of Public Accounts required by KRS 43.070 , if the Auditor of Public Accounts declines to perform the audit or has failed to respond to written notice of intent to employ a certified public accountant within thirty (30) days of receipt of the notice. (1) (a) Any fiscal court, county clerk, or sheriff may employ a certified public accountant to audit the books, accounts, and papers of the county or his office in lieu of the audit conducted by the State Auditor of Public Accounts required by KRS 43.070 , if the Auditor of Public Accounts declines to perform the audit or has failed to respond to written notice of intent to employ a certified public accountant within thirty (30) days of receipt of the notice.
    2. In the case of a documented emergency requiring an immediate audit which the Auditor of Public Accounts cannot complete within the requested deadline, the Auditor of Public Accounts shall authorize the fiscal court, the county clerk, or sheriff to engage a certified public accountant to complete the emergency audit. A certified public accountant may be engaged to conduct an emergency audit only after guaranteeing in writing to the Auditor of Public Accounts that the audit and audit report will be finished within the deadline originally requested of the Auditor of Public Accounts. The fiscal court shall bear the full cost of any county audit conducted pursuant to this paragraph. The county clerk or the sheriff shall bear the full cost of any audit of his office conducted pursuant to this paragraph, from funds received or collected by him, and the cost of the audit shall be construed as an expense of his office. Audits conducted pursuant to this paragraph shall be subject to the provisions of subsections (4) and (5) of this section.
  1. A fiscal court which has elected to employ a certified public accountant pursuant to subsection (1)(a) of this section shall notify the State Auditor in writing by July 31 following the fiscal year to be audited of the name of the certified public accountant it has employed. The fiscal court shall bear the full cost of any audit conducted pursuant to this section. An elected official who has elected to employ a certified public accountant pursuant to subsection (1)(a) of this section shall:
    1. Notify the fiscal court and the State Auditor in writing by January 30 following the calendar year to be audited of the name of the certified public accountant employed by said official to audit the books, accounts, and papers of his office; and
    2. Bear the cost of the audit from funds received or collected by him, and the cost of the audit shall be construed as an expense of his office.
  2. Any contract with a certified public accountant entered into pursuant to subsection (1)(a) of this section shall specify the following:
    1. The audit of a county official shall be completed by August 1 following the calendar year being audited, and the audit of a county budget shall be completed by February 1 following the fiscal year being audited;
    2. The certified public accountant shall forward a copy of the fee officer audit report and management letters to the county official, fiscal court of the county, and the Auditor of Public Accounts upon completion of the audit, and no later than August 1 following the calendar year being audited;
    3. The certified public accountant shall forward a copy of the county budget audit report and management letters to the fiscal court of the county and the Auditor of Public Accounts upon completion of the audit and no later than February 1 following the fiscal year being audited; and
    4. The Auditor of Public Accounts shall have the right to review the certified public accountant’s work papers before and after the release of the audit.
  3. After preliminary review of the certified public accountant’s work papers, should discrepancies be found, the Auditor of Public Accounts shall notify the fiscal court or fee official of the discrepancies. Should the certified public accountant not correct such discrepancies prior to the release of the audit, the Auditor’s office may conduct its own audit to verify the findings of the certified public accountant’s report. If such audit is conducted, the expenses to said county or county official, as directed by KRS 43.070(4) shall be construed as an allowable expense of office. If the audit conducted by the Auditor of Public Accounts discloses discrepancies in the audit by the certified public accountant, the findings of the Auditor of Public Accounts shall be deemed official for purposes of collection of money owed the county pursuant to KRS 64.820 .
  4. No later than February 1 following the fiscal year being audited, or August 1 following the calendar year being audited, the fiscal court or county official shall submit the accountant’s written report to the Governor, the General Assembly, the Attorney General, the State Librarian, and county attorney of his county. In addition the fiscal court or the official shall send the report to the newspaper having the largest paid circulation in the county, and the letter of transmittal accompanying the report shall be published in said newspaper in accordance with the provisions of KRS Chapter 424.
  5. This section shall not be construed as eliminating the requirement that the books, accounts, and papers of the above-named officials be audited yearly.

History. Enact. Acts 1974, ch. 254, § 10; 1976, ch. 329, § 2; 1976 (Ex. Sess.), ch. 14, § 43; 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1978; 1982, ch. 121, § 2, effective July 15, 1982; 1982, ch. 393, § 40, effective July 15, 1982; 1984, ch. 111, § 45, effective July 13, 1984; 1986, ch. 51, § 3, effective July 15, 1986; 1992, ch. 331, § 1, effective July 14, 1992.

Opinions of Attorney General.

The sheriff is responsible for preparing and submitting his report of settlement to the fiscal court and the reasonable cost of preparing it may be considered an official expense of his office and paid out of his fees, even though the report may not be a formal or technical audit. OAG 75-33 .

So long as the $20 advance fee remains in the trustee account in the custody of the clerk during the pendency of the suit, and prior to the termination of the suit and the taxing and paying of all costs as described above, the auditor of public accounts has the responsibility of including such “receipts,” though technically not “fees” at that stage, in the auditing of such circuit clerk’s accounts, based upon the provisions in KRS 43.070 and this section that the “books, accounts, and papers” of circuit clerks shall be audited and the advance cost is revenue of the clerk’s office even in the custodial stage. OAG 75-233 .

The expense of an audit for county fee officers under this section should normally be paid from the fees of the particular office, if available. OAG 75-342 .

Where the expense of the audit of a county fee office under this section cannot be paid out of the fees of the office the individual officer is personally responsible for the expense. OAG 75-342 .

In view of KRS 64.340 , where a misdemeanor defendant is not convicted, or the case does not proceed to judgment, a sheriff has no statutory means for collecting his fees and, since such fees are uncollectible, he is not accountable for them. OAG 75-393 .

Where a misdemeanor defendant is convicted but never pays the costs, including the sheriff’s fees, the sheriff, as a fee officer, is accountable in his audit for such uncollected fees unless he shows to the auditor that he has taken all reasonable and practical means to collect such fees, although the statutes do not make the sheriff an insurer of the collection of fees legally due and payable. OAG 75-393 .

Since the new system of uniform accounting and standard bookkeeping procedures for all counties and county officials was to be established by January, 1975, the installation of the new system of auditing of county officials called for by this section and KRS 43.070 was mandatorily required as of January, 1975, and not before. OAG 76-51 .

Audits of the county auditor’s office should cover each calendar year during the term of the county attorney. OAG 78-359 .

The county attorneys of Kentucky are not required to publish a financial statement pursuant to KRS 424.220 since the auditing of the county attorney’s books pursuant to KRS 43.070 and this section is ample to disclose the specifics of his official operation. OAG 81-168 .

Where a county clerk hires a private certified public accountant to audit prior year accounts of the clerk’s office, and the C.P.A. establishes that the clerk owes excess fees to the county, and where a state auditor then audits the same accounts and determines that even more excess fees are owed, the practical and logical construction of subsection (3) of this section and KRS 64.820 clearly means that where the state auditor finds discrepancies in the initial audit of the private C.P.A. and subsequently makes an investigative audit, such state auditor’s audit must govern until or unless the controversy is taken to the courts, since this results practically in a uniform application of statutory law and concomitant accounting procedure, as well as furnishing a stability to the auditing of local officials. OAG 81-293 .

The State Auditor of Public Accounts may elect to perform an audit of certain county offices pursuant to this section without giving a reason for so doing. OAG 93-2 .

Under this section, a fiscal court, county clerk, or sheriff has authority to employ a certified public accountant to perform to audit called for by KRS 43.070 , only if the Auditor of Public Accounts declines to perform such audit, or has failed to respond within 30 days to a written notice of intent to employ a certified accountant for such purpose. OAG 93-2 .

Research References and Practice Aids

Cross-References.

Uniform standards for conducting and reporting audits, KRS 43.075 .

64.820. Collection of amount due county from county officials as determined by audit.

  1. The fiscal court shall collect any amount due the county from county officials as determined by the audit of the official conducted pursuant to KRS 43.070 and 64.810 if the amount can be collected without suit.
  2. In the event the fiscal court cannot collect the amount due the county from the county official without suit, the fiscal court shall then direct the county attorney to institute suit for the collection of the amount reported by the Auditor or certified public accountant to be due the county within ninety (90) days from the date of receiving the Auditor’s or certified public accountant’s report.

History. Enact. Acts 1974, ch. 254, § 11; 1982, ch. 121, § 3, effective July 15, 1982.

Opinions of Attorney General.

The audit by the auditor of public accounts apparently carries with it a presumption of the financial status or of correctness as to the county clerk’s account for the year, unless such presumption is overturned or overcome in some way in an appropriate law suit; the exception to this would arise where the account involves “unliquidated claims,” and in which case, the fiscal court acting in good faith could work out a compromise with the clerk as to any unliquidated claims. OAG 80-618 .

Where a county clerk hires a private certified public accountant to audit prior year accounts of the clerk’s office, and the C.P.A. establishes that the clerk owes excess fees to the county, and where a state auditor then audits the same accounts and determines that even more excess fees are owed, the practical and logical construction of subsection (3) of KRS 64.810 and this section clearly means that where the state auditor finds discrepancies in the initial audit of the private C.P.A. and subsequently makes an investigative audit, such state auditor’s audit must govern until or unless the controversy is taken to the courts, since this results practically in a uniform application of statutory law and concomitant accounting procedure, as well as furnishing a stability to the auditing of local officials. OAG 81-293 .

There is no statute which authorizes a county to charge interest on money owed from any fee officer after his audit has been completed for that year. OAG 82-489 .

The state auditor, in what might be termed a “current audit,” may disallow credit against the fees of a county clerk’s office in prior years for improper expenditures not cited in prior year audits by a private accountant. However, a legal action filed by a fiscal court to attempt to recover monies said to have been unlawfully expended, will be governed by the general limitation of action statute, KRS 413.120 . OAG 94-15 .

64.830. Settlement of accounts upon vacation of office — Quietus.

  1. An outgoing county official, as soon as his successor has been qualified and inducted into office and his official bond approved, shall immediately vacate his office, deliver to his successor all books, papers, records and other property held by virtue of his office, and make a complete settlement of his accounts as county official, except as otherwise provided in this section.
  2. Each outgoing county official shall make a final settlement with the fiscal court of his county by March 15 immediately following the expiration of his term of office for all money received by him as county official and to obtain his quietus, and immediately thereafter he shall deliver these records to the incumbent county official.
  3. The outgoing county official and his bondsmen or sureties shall be relieved in securing his quietus and in the final settlement of his accounts of all responsibility for collecting and accounting for the amounts covered by the receipt and the incoming county official shall be charged with full responsibility for collecting and accounting for these amounts as otherwise provided by law for the collection and accounting of taxes.
  4. The outgoing county official shall be allowed and paid by the fiscal court the reasonable expenses actually incurred in preparing the receipt required under this section. Reasonable expenses actually incurred may include his office expenses and salary, and salaries of deputies and employees paid in accordance with the schedule of the previous year or the amount paid an auditor necessary in determining and verifying the final settlement to the fiscal court.

History. Enact. Acts 1974, ch. 254, § 13.

Opinions of Attorney General.

The sheriff is responsible for preparing and submitting his report of settlement ot the fiscal court and the reasonable cost of preparing it may be considered an official expense of his office and paid out of his fees, even though the report may not be a formal or technical audit. OAG 75-33 .

At the end of the term of the county clerk, sheriff, and jailer in counties of 75,000 population or more, the Finance Department (now Finance and Administration Cabinet) of the state must turn over any excess money in the cumulative 75 percent account to the respective county fiscal court and treasury; thus, the excess in the 75 percent account, prior to its transfer to the county, is not subject to paying the transitional expenses involved in KRS 64.830(4). OAG 82-83 .

Under the express wording of subsection (4) of this section, the outgoing jailer must be paid for the transitional expenses, including the salary of himself and deputies and other necessary expenses, directly out of the county treasury. OAG 82-83 .

By the statement in OAG 70-112 that the finding of the outgoing sheriff’s expenses is effected from the excess receipts of the outgoing sheriff which have accumulated by the end of his term as relates to his 75 percent account it was meant that the county could ultimately utilize the 75 percent account after it received the excess, in the funding of the transitional expenses required by KRS 64.830(4). OAG 82-83 .

64.840. Issuance of receipt for payment of fine, forfeiture, tax, or fee — County government’s payment acceptance options.

  1. Except for taxes collected on behalf of the state for which standard receipt forms had been supplied by the state prior to 1974, all county officials shall, upon the receipt of any fine, forfeiture, tax, or fee, prepare a receipt that meets the specifications of the state local finance officer, if the fine, forfeiture, tax, or fee is paid:
    1. In cash;
    2. By a party appearing in person to pay; or
    3. By check, credit card, or debit card account received through the mail, if the party includes an addressed, postage-paid return envelope and a request for receipt.
  2. One (1) copy of the receipt shall be given to the person paying the fine, forfeiture, tax, or fee and one (1) copy shall be retained by the official for his own records. One (1) copy of the receipt shall be retained by the official to be placed with the daily bank deposit.
  3. A county government may, but shall not be required to, accept payment of any fine, forfeiture, tax, or fee by check, draft, electronic funds transfer, debit or credit card account, or other similar means of payment. If an individual chooses to pay a fine, forfeiture, tax, or fee by any means other than cash, the county government may recover any transaction fee that would otherwise be incurred by the county for submitting or processing the transaction as part of and in addition to the original amount of the fine, forfeiture, tax, or fee.

History. Enact. Acts 1974, ch. 254, § 14; 1974, ch. 74, Art. II, § 9(1); 1976, ch. 323, § 1; 2000, ch. 429, § 1, effective July 14, 2000; 2002, ch. 201, § 1, effective April 5, 2002; 2006, ch. 135, § 1, effective July 12, 2006.

64.850. Commingling of public and private funds prohibited.

It shall be unlawful for any county official to deposit public funds with individual or private funds in any bank or other depository or for any such official to withdraw public funds for any purpose other than that for which they were received and deposited.

History. Enact. Acts 1974, ch. 254, § 15.

Opinions of Attorney General.

Where the sheriff is the agent in an extradition, and the reimbursement check for the agent’s expenses, written against the state treasury, is made out to the sheriff as payee, the sheriff should run that money through a special (public) account established at a local bank, since the sheriff is agent by reason of his official status and since he is receiving money from the treasury of Kentucky. OAG 81-42 .

Penalties

64.990. Penalties.

  1. If any officer to whom KRS 64.050 applies, or his personal representative, trustee, or committee, as the case may be, collects any fees, accounts, or demands due him in his official capacity after the expiration of his term, or after he has resigned or died or vacated the office, or fails to deliver to his successor all the fees, claims, and accounts due to him in his official capacity, he, or his personal representative, committee, or trustee, as the case may be, shall be guilty of a Class B misdemeanor.
  2. If any successor or collector mentioned in KRS 64.050(1) fails to make any report or pay the money collected to the Department for Local Government, as required by KRS 64.050(1), he shall be guilty of a Class B misdemeanor. If he knowingly omits or fails to report a correct statement of all money received or collected or knowingly makes or subscribes any false statement concerning the same, he shall be guilty of a Class D felony.
  3. If any deputy or personal representative issuing a fee bill in accordance with KRS 64.420 knowingly makes a wrong charge, or in any respect issues an illegal fee bill, he shall be subject to the same penalties as an officer issuing such a fee bill.
  4. Every fee bill containing one (1) illegal charge, or which, in any respect, is not according to what is required by law, shall be void for the whole amount.
  5. Any officer who splits up and divides his services so as to make two (2) charges, when the law intends but one (1) charge or fee for the whole service, or who knowingly makes an illegal charge, or issues an illegal fee bill, or collects or attempts to collect his fees twice for the same services, or by any indirection collects or attempts to collect more for his services than is allowed by law, shall be guilty of a Class B misdemeanor and his conviction shall be prima facie evidence of his guilt in a proceeding to remove him from office.
  6. Any official who violates the provisions of KRS 64.820 to 64.850 shall be guilty of a Class B misdemeanor.

History. 1750, 1754 to 1756, 1761, 1761-1, 1765, 1766, 1770, 1771, 1773, 1778: amend. Acts 1962, ch. 210, § 14; 1974, ch. 74, Art. II, § 9(1); 1974, ch. 254, § 16; 1976 (Ex. Sess.), ch. 14, § 44, effective January 2, 1978; 1978, ch. 384, § 9, effective June 17, 1978; 1986, ch. 374, § 24, effective July 15, 1986; 1992, ch. 463, § 9, effective July 14, 1992; 1998, ch. 69, § 28, effective July 15, 1998; 2007, ch. 47, § 39, effective June 26, 2007; 2010, ch. 117, § 45, effective July 15, 2010.

NOTES TO DECISIONS

1.Illegal Charges.

This section provides that no fee-bill containing an illegal charge shall be paid. Fulton v. Shanklin, 275 Ky. 772 , 122 S.W.2d 733, 1938 Ky. LEXIS 490 ( Ky. 1938 ).

Opinions of Attorney General.

Where the sheriff or his deputy sign the inspection forms required in this section in blank and later when a new license is sought the inspection form is completed as to the identity of the vehicle, such sheriff or deputy is subject to the penalties provided for in subsection (7) (now subsection (5)) of this section. OAG 77-105 .

Research References and Practice Aids

Cross-References.

Notary forfeits fee and is fined for failure to record protest, KRS 423.990 .

Removal from office for conviction of high misdemeanor, Const., § 150.