February 9, 2006

ATTORNEY GENERAL OPINION NO. 2006- 5

Gary Thompson

Linn County Counselor

P.O. Box 184

Mound City, Kansas 66056

Re:	Counties and County Officers--General Provisions--Home Rule Powers; Limitations, Restrictions and Prohibitions; Procedure; Power to Exempt
County From Any Statute Authorizing or Requiring the Levy of Taxes

Counties and County Officers--County Commissioners--Powers of Board of Commissioners; Control over County Sheriff Budget

Taxation--Miscellaneous Provisions--Budgets of Taxing Bodies; Application of Act; Exceptions; Definitions

Synopsis:	A county is subject to uniform statutes concerning taxation and budgeting. Absent a specific provision in those statutes so authorizing, a county may not create a special county sheriff fund or taxes. If a county wishes to hold a county officer to greater accountability standards, a line-item budget may serve that purpose. Cited herein: K.S.A. 12-11a01; 19-101; K.S.A. 2005 Supp. 19-101a; K.S.A. 19-117; 19-212; 19-241; 79-2925; 79-2929; K.S.A. 2005 Supp. 79-2929a; K.S.A. 79-2934; Kan. Const., Art. 9, §1, Art. 12, § 5.

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Dear Mr. Thompson:

On behalf of Linn County, you request our opinion regarding whether a board of county commissioners has the authority to take the county sheriff's department budget completely out of the county general fund and create a separate fund just for the sheriff's office, to be funded with money raised by a special sheriff's tax. You ask that we address the following questions:

"1.	Does the County have the authority to create a separate fund, outside of the General Fund and with its own taxing authority, for the Sheriff's Department budget?

"2.	Does the County's home rule power give it the right to determine what separate funds it creates and maintains in its budget?

"3.	If authority to create a separate Sheriff's Department Fund does exist, what is the process for creating such a fund? Is it created by motion, by resolution, by home rule resolution, or by some other procedure?

"4.	If authority to create such a fund exists, when may it be created? That is, can a new Fund be created at any time and then funded through a transfer from the existing General Fund or through a Budget Amendment process, so that, for example, it may be created in December 2005, and made effective in the 2006 Budget year? Or is this a process that may only be done at the time of the annual budgeting process?"

We note that you do not indicate which statutes the county is considering using or exempting itself from, nor do you provide a specific county resolution creating the new tax or fund. Rather, your questions are general in nature. Therefore, our response is necessarily general as well.

Article 9, Section 1 of the Kansas Constitution authorizes the Kansas Legislature to create and organize counties. Counties are generally regarded as political subdivisions and instrumentalities of the State, providing municipal services and exercising those powers delegated to them by state lawmakers.1

County commissioners are authorized to conduct the business of the county, especially as it relates to financial matters.2 K.S.A. 19-212 sets forth county commission powers and states in pertinent part:

"The board of county commissioners of each county shall have the power, at any meeting:

. . . .

"Second. To examine and settle all accounts of the receipts and expenses of the county, and to examine and settle and allow all accounts chargeable against the county; and when so settled, they may issue county orders therefor, as provided by law.

. . . .

"Fifth. Apportion and order the levying of taxes as provided by law.

"Sixth. To represent the county and have the care of the county property, and the management of the business and concerns of the county, in all cases where no other provision is made by law.

. . . .

"Thirteenth. To perform such other duties as are or may be prescribed by law."3

Thus, a county commission may conduct county business but only as authorized by law. Therefore, in order to create the proposed "sheriff's fund" and levy taxes to provide moneys for that purpose, there must be some provision of the law authorizing the county commissioners to take those steps. You indicate that the commissioners believe county home rule authority may be used.

K.S.A. 2005 Supp. 19-101a provides counties with statutory home rule authority.4 However, county home rule power is limited as set forth in that statute, which provides in pertinent part:

"(a) The board of county commissioners may transact all county business and perform all powers of local legislation and administration it deems appropriate, subject only to the following limitations, restrictions or prohibitions:

"(1) Counties shall be subject to all acts of the legislature which apply uniformly to all counties.

. . . .

"(11) Counties shall have no power under this section to exempt from any statute authorizing or requiring the levy of taxes and providing substitute and additional provisions on the same subject, unless the resolution authorizing the same specifically provides for a portion of the proceeds of such levy to be used to pay a portion of the principal and interest on bonds issued by cities under the authority of K.S.A. 12-1774, and amendments thereto."

The annual preparation of a county budget is generally governed by K.S.A. 79-2925 et seq. K.S.A. 79-2925 states in pertinent part:

"(a) This act shall apply to all taxing subdivisions or municipalities of the state. . . .

. . . .

"(b) Whenever the term 'fund' is used in this act it is intended to have reference to those funds which are authorized by statute to be established. 'Fund' is not intended to mean the individual budgeted items of a fund, but is intended to have reference to the total of such individual items."5

K.S.A. 79-2929 and K.S.A. 2005 Supp. 79-2929a establish the procedures that should be followed in adopting or amending a county's budget. K.S.A. 79-2934 provides:

"The budget as approved and filed with the county clerk for each year shall constitute and shall hereafter be declared to be an appropriation for each fund, and the appropriation thus made shall not be used for any other purpose. No money in any fund shall be used to pay for any indebtedness created in excess of the total amount of the adopted budget of expenditures for such fund. Any balance remaining in such fund at the end of the current budget year shall be carried forward to the credit of the fund for the ensuing budget year. The clerk or secretary of each taxing subdivision or municipality shall open and keep an account of each fund, showing the total amount appropriated for each fund, and shall charge such appropriation with the amount of any indebtedness created at the time such indebtedness is incurred. If any indebtedness is reimbursed during the current budget year and the reimbursement is in excess of the amount which was shown as reimbursed expense in the budget of revenues for the current budget year, the charge made shall be reduced by the amount of the reimbursement. No part of any fund shall be diverted to any other fund, whether before or after the distribution of taxes by the county treasurer, except as provided by law. The county treasurer shall distribute the proceeds of the taxes levied by each taxing subdivision in the manner provided by K.S.A. 12-1678a, and amendments thereto."

These statutes establish a uniform method of creating county budgets and handling funds.

A county's general fund is created pursuant to K.S.A. 19-241.6 It has been the opinion of this office that K.S.A. 19-241 is mandatory, uniformly applicable to all counties and that it is not susceptible to alteration through a county's home rule powers.7 We have located no new cases or statutory amendments that appear to impact that prior opinion on K.S.A. 19-
241.

The Kansas Supreme Court has stated that the ordinary, usual and current expenses of the county are to be paid from, and included in, the county general fund.8 Whether an item of expenses is to be paid from the general fund as a usual and ordinary expense of the county or paid out of some other county fund must be determined on a case by case basis, by looking at the laws that may apply to or authorize such expense.

For example, in A.T. & S.F. Rld. Co. v. Wilhelm,9 the Court concluded that the expense incurred by a county to support the poor was an expense that had to be paid from, and included in, the county general fund. Likewise, in Comm'rs of Osborne Co. v. Blake10 the Court said that the payment of a judgment rendered against a county was an expense of the county that had to be paid from the general fund. On the other hand, the Court, in State, ex rel., v. Comm'rs of Marion County,11 held that the expense of constructing county buildings was not an expense to be included in, and paid from, the county general fund. Also, in State v. Cowley County12 the Court concluded that the expense incurred by a county in maintaining county roads was not an expense to be paid from the general fund. In each of these cases, the Court reviewed whether there was specific statutory authority that created a special tax or fund for payment of the expenses in question. When such statutory authority does not exist, the county general tax and resulting general fund becomes the source of payment for such costs. Although these cases pre-date home rule authority, the statutes creating the county general fund and tax remain uniformly applicable to all counties.

When a special county tax is authorized by statute, K.S.A. 19-117 provides the correct procedures associated with a county adopting such a measure. However, this office has consistently held that a county's home rule taxing authority, as limited by the provisions of K.S.A. 2005 Supp. 19-101a and 19-117, only empower a county to levy those taxes authorized by law, such as the countywide ad valorem tax.13 For example, there are statutes that specifically authorize a county to levy a tax to pay for county fairs,14 golf courses in certain counties,15 operation of conservation districts,16 city and county service for programs for the elderly17 and the costs of law enforcement services in certain counties.18 As further evidenced by K.S.A. 12-11a01, in order to create a special tax and resulting fund to operate a county sheriff's office, a county must be relying upon a specific statute or act that provides such authority. As stated in Attorney General Opinion No. 82-
140, absent specific statutory authority that is applicable to the facts of the situation, county law enforcement expenses must be paid from the county general fund.19

With the exception of the provisions of K.S.A. 12-11a01 and 19-4424 et seq., we have found nothing in Kansas statutes or case law that authorizes a county to create a special "county sheriff" fund or a tax for purposes of funding that office. County home rule power may be used to create new methods of handling county matters where there are no state laws that apply or where the state laws are non-uniform. There may be some situations where state laws on budgets, funds and taxes do not exist or are non-uniform. However, there are many uniform statutes concerning such matters. Thus, it is our opinion that absent specific authorization for a county sheriff fund or tax, a county cannot create such a fund or tax. Therefore, if a county board of commissioners wishes to hold a county sheriff to greater accountability standards, we suggest that it adopt a line-item budget.

Sincerely,

PHILL KLINE

Attorney General of Kansas

Theresa Marcel Bush

Assistant Attorney General

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