Can a Kentucky sheriff spend donated money on a community event like a free movie night?

Plain-English summary

After a 2019 audit, the Auditor of Public Accounts questioned whether the Franklin County Sheriff's Office could spend money from its donations account on a free community movie night. The Auditor's report said the spending did not look like a "public purpose" of the office, which the Auditor described narrowly as tax collection, election duties, services to courts, and law enforcement. Sheriff Chris Quire disagreed and, at the Auditor's recommendation, asked the Attorney General to settle the question.

The Attorney General concluded the spending was permissible. The governing statute, KRS 61.310(8), lets a sheriff accept and spend donations "for the public purposes of his or her office," as long as the donations are recorded in a public register and are not used for the private benefit of the sheriff, deputies, or employees. The statute does not define "public purposes," so the opinion gave the words their plain meaning and looked at the wide range of duties a sheriff performs. Because the movie night was free and open to the public, was funded by donations earmarked for that event, and was aimed at building community trust and law-enforcement awareness, it fit within the office's public purposes.

The opinion found support in an unpublished Court of Appeals decision, Sturgill v. Boyd Fiscal Ct., which read KRS 61.310 to allow donations used "for the benefit of the public at large" while forbidding donations used as personal compensation. The opinion stressed the limit: donations may never inure to a public officer's private gain, a rule grounded in the idea that public office is a public trust and reinforced by state and local ethics codes. The opinion declined to bless a list of other proposed uses (such as scholarships, drug-awareness camps, and "shop with a cop" events), saying it could not opine on them without a specific factual context.

What this means for you

Sheriffs and county officials

Under this opinion, a sheriff may spend properly recorded donated funds on community-engagement activities like a free public event, because those can serve the office's "public purposes" under KRS 61.310(8), provided the funds are not used for any officer's or employee's personal benefit.

Auditors

The opinion holds that the Auditor's narrow "bright line" definition of public purpose (limited to tax collection, election duties, court services, and law enforcement) is too restrictive given the statute's text, and that older authority like Funk v. Milliken has limited value after the 2005 amendment that added KRS 61.310(8).

Law enforcement and government attorneys

The opinion treats community-oriented policing activities as within a sheriff's public purposes when the spending is documented under KRS 61.310(8)(a) and confers no private benefit. The opinion expressly declined to opine on other proposed uses (scholarships, DARE programs, camps, essay contests) absent a concrete factual situation.

Common questions

Q: Can a Kentucky sheriff use donated money for a community event?
A: Yes, according to this opinion, if the donations are recorded as required and the event serves the office's public purposes rather than anyone's private benefit.

Q: What does the donation statute require?
A: KRS 61.310(8) requires the sheriff to keep a public register of donations (donor name and address, a description, the date, the amount or estimated worth, and any stated purpose), and bars using donations for the private benefit of the sheriff, deputies, or employees.

Q: Why did the Attorney General disagree with the Auditor?
A: The opinion concluded the Auditor's narrow list of "public purposes" added a limit the statute does not contain. The opinion read "public purposes" by its plain meaning, which is broader than the Auditor's four categories.

Q: Does this opinion approve every charitable use of donated funds?
A: No. The opinion limited its holding to the community movie night described and declined to opine on other proposed uses (such as scholarships or youth camps) without a specific factual context.

Background and statutory framework

Sheriffs are elected constitutional officers (Ky. Const. §§ 99, 105) whose accounts the Auditor audits annually under KRS 43.070. KRS 61.310(8), added by a 2005 amendment, permits a sheriff to accept donations "for the public purposes of his or her office" if the sheriff keeps a public register (subject to the Open Records Act, KRS 61.870 to 61.884) and does not use donations for private benefit. The opinion applied plain-meaning canons (Poole Truck Line v. Commonwealth Transp. Cab.; Gateway Constr. Co. v. Wallbaum; Commonwealth, Dep't of Revenue v. McDonald) and relied on Sturgill v. Boyd Fiscal Ct., while explaining that Funk v. Milliken (decided in 1958, before sheriffs could accept donations) has limited value after the 2005 amendment. The personal-benefit bar reflects the public-trust principle in City of Middlesboro v. Ky. Util. Co. and ethics provisions including KRS 11A.020(1)(c) and a Franklin County ethics ordinance.

Citations and references

Constitution and statutes:
- Ky. Const. §§ 99, 105; KRS 61.310(8); KRS 43.070
- KRS 61.870 to 61.884 (Open Records Act); KRS 11A.020(1)(c); KRS 521.060
- 40 KAR 1:010 § 3

Cases:
- Poole Truck Line, Inc. v. Commonwealth Transp. Cab., 892 S.W.2d 611 (Ky. App. 1995)
- Gateway Constr. Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962)
- Commonwealth, Dep't of Revenue, Fin. & Admin. Cab. v. McDonald, 304 S.W.3d 62 (Ky. App. 2009)
- Sturgill v. Boyd Fiscal Ct., 2005 WL 736600 (Ky. App. 2005)
- Funk v. Milliken, 317 S.W.2d 499 (Ky. 1958)
- City of Middlesboro v. Ky. Util. Co., 146 S.W.2d 48 (Ky. 1940)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2021-09.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
September 7, 2021
OAG 21-09
Subjects: Whether the Franklin County Sheriff's Office's use of donated money for a community movie night is a public purpose of a sheriff's office within the meaning of KRS 61.310(8).
Requested by: Chris Quire, Franklin County Sheriff; and Mike Harmon, Auditor of Public Accounts
Written by: Carmine G. Iaccarino, Heather L. Becker, Assistant Attorneys General
Syllabus: The expenditure of donated funds for a community movie night, as described below, is a public purpose of a sheriff's office within the meaning of KRS 61.310(8).

Opinion of the Attorney General

Sheriffs serve a broad and varied purpose in Kentucky. They are elected constitutional officers, Ky. Const. §§ 99, 105, with broad authority and many responsibilities assigned by statute. Under KRS 43.070, the Auditor of Public Accounts ("Auditor") annually audits county officers, including sheriffs. In a 2019 audit, the Auditor conducted an audit of the Franklin County Sheriff's Office. In its report, the Auditor referenced several expenditures from the Franklin County Sheriff's donations account that were used to fund a community movie night in Franklin County. Recognizing that "promoting public awareness and positive public relations with law enforcement" was a "worthy objective," the Auditor concluded that "this type of activity has not been defined in statute as a public purpose of the office" and that "[r]eceiving and spending donated funds for this community movie night does not appear to be for the public purposes of the sheriff's office, such as tax collection, election duties, services to courts, and law enforcement."[1]

Franklin County Sheriff Chris Quire ("Sheriff Quire") disagrees with the Auditor's findings. At the recommendation of the Auditor, Sheriff Quire asks whether his use of donated funds to sponsor the community movie night violated KRS 61.310(8). Sheriff Quire's question is answered by the text of the statute: Because Sheriff Quire's expenditure of donated funds for the community movie night concerns the public work of law enforcement and does not inure to his personal benefit, the expenditure of donated funds is permissible. KRS 61.310(8). This conclusion is based on the plain meaning of the text of KRS 61.310(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.

(b) 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.
(c) 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.
(d) 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.

KRS 61.310(8). Under this provision, a "sheriff may accept a donation of money or goods to be used for the public purposes of his or her office . . . ." KRS 61.310(8) (emphasis added). Although the statute does not define "public purposes of his or her office," the words and phrases of a statute must be given their plain, ordinary meaning, and—when clear—determine legislative intent. See Poole Truck Line, Inc. v. Commonwealth Transp. Cab., 892 S.W.2d 611, 613 (Ky. App. 1995); Gateway Constr. Co. v. Wallbaum, 356 S.W.2d 247, 249 (Ky. 1962). And Black's Law Dictionary defines "public" as "[o]f, relating to, or involving an entire community . . . open or available for all to use, share, or enjoy." Black's Law Dictionary (11th ed. 2019).

According to Sheriff Quire, the community movie night at issue in the 2019 audit was "free and open to the public." All donations "were used for the specific purpose given by community businesses," each of which concerned only the community movie night. The sheriff's office "gave out [e]ducational & safety items and talked with children and parents regarding positive Law Enforcement assistance/awareness and Safety Awareness." The intent of the event was to "create a strong bond between our citizens and the Sheriff's Office."

Sheriff Quire notes the Franklin County Sheriff's Office "has always and will continue to adhere to the values and ideas of Community Oriented Policing. We feel very strongly that our role as the primary law enforcement agency in Franklin County gives us an inherent responsibility to serve our citizens as well as educate them as to our mission." The Auditor echoes the same sentiment: "society as a whole, and law enforcement activity specifically, benefits from a closer, community level connection between citizens and the law enforcement officers that they elect, employ, and fund."

The Attorney General agrees. Although the Auditor's report endorses a bright line rule to determine how such donations may be used, that rule seems too narrow based on the text of the statute, Commonwealth, Dep't of Revenue, Fin. & Admin. Cab. v. McDonald, 304 S.W.3d 62, 65 (Ky. App. 2009) ("[W]e cannot add or subtract from the language used in a statute."), and the context in which law enforcement performs its work, see, e.g., KRS 70.030(2) (appointing certified court security officers); KRS 70.045(1) (allowing for appointment of special deputies to assist with law enforcement and maintenance of public order); KRS 70.078 (authorizing entry to a house or enclosure to execute an arrest warrant); KRS 70.085 (requiring officers to serve and return summonses); KRS 70.090 (requiring collecting and accounting of fines and forfeitures); KRS 70.140 (keeping order in the fiscal court and any court in the Court of Justice); KRS 70.150 (requiring sheriffs and deputies to patrol roads and direct traffic, including investigating accidents and wrecks); KRS 70.155 (authorizing impoundment of vehicles); KRS 133.220 (authorizing the sheriff to collect county taxes); KRS 134.160 (requiring sheriff to keep an accurate account of all moneys received and disbursements made); KRS 431.005 (authorizing arrest by peace officers).

On this basis, this Office cannot conclude that the use of donated funds for the community movie night Sheriff Quire describes violates the provisions of KRS 61.310. So long as donated funds are properly accounted for as required by KRS 61.310(8)(a), and so long as donated funds are used for the Office's public purposes and do not inure to the personal benefit of a peace officer, the community movie night Sheriff Quire describes here is an acceptable use of donated funds under KRS 61.310(8).

An opinion from the Court of Appeals supports this conclusion. In Sturgill v. Boyd Fiscal Ct., 2005 WL 736600 (Ky. App. 2005) (unpublished opinion), a county sheriff had solicited private donations for his office. At the time, the operative version of KRS 61.310 did not contain subsection (8). An audit of the sheriff's office found that Sheriff Sturgill had received $160,868 in donations and disbursed $143,244 of those donations to his office. The Auditor concluded that the disbursements "appeared to have been made for a public purpose directly benefiting the sheriff's office . . . ." Id. at 3. Nonetheless, the fiscal court sued Sturgill because, at the time, Funk v. Milliken limited the use of funds generated by public offices to "necessary office expenses," among other things. 317 S.W.2d 499, 507 (Ky. 1958).[2] The trial court ruled in the fiscal court's favor, holding that KRS 61.310 prohibited the sheriff from soliciting or accepting private donations altogether. Sturgill at *4.

The Court of Appeals reversed. It determined that the plain language of KRS 61.310 permitted donations "for the benefit of the public at large." Id. at *6–7 ("[A] reasonable reading of KRS 61.310 supports the proposition that legitimate private donations to governmental units or to peace officers may be made. What is forbidden is the use of those donated funds as a source of personal compensation or remuneration to peace officers.").

Though the Sturgill opinion is unpublished, it provides helpful guidance. Its holding—that sheriffs could accept and disburse donations for a public purpose of the office—is all the more notable because the Court of Appeals reached this conclusion before the existence of KRS 61.310(8). That the General Assembly later amended KRS 61.310(8) to specifically provide for the manner of acceptance and use of donations for a public purpose of the Office also supports the Attorney General's opinion here.

In discussing the meaning of the "public purpose" of a sheriff's office, it is important to note what it is not. Nothing in this reading of Sturgill or KRS 61.310(8) would permit a sheriff to use donations for private gain. KRS 61.310 provides a foundational rule: donated funds may not inure to the personal benefit of public officers. That is because public office is a public trust, see City of Middlesboro v. Ky. Util. Co., 146 S.W.2d 48, 52 (Ky. 1940), and its abuse has consequences. See generally KRS Chapter 522. In addition, local, state, and federal ethics codes—including an ethics code that applies in Franklin County—all support this basic notion and bar the use of such donations for private gain. Franklin County Ordinance 3-2014, II.D. (prohibiting the solicitation or acceptance "of any . . . thing of value based upon an understanding that . . . [it] was given or offered for the purpose of influencing him"); see also KRS 11A.020(1)(c) (prohibiting the use of "official position or office to obtain financial gain for himself or any members of the public servant's family"); 5 U.S.C. §§ 7321–26 (prohibiting covered federal employees from using their title or authority to solicit or receive political contributions).

The Auditor has also asked whether funds donated under KRS 61.310 may be used for other activities, including a Drug Awareness Resistance Education program for school youth; drug awareness camps for community youth; shop with a cop events; summer camp opportunities for disadvantaged community youth; anti-drug essay contests; scholarships; and other fundraising. Without more information and a factual context, however, this Office is unable to opine on whether expenditures for such events would comply with the provisions of KRS 61.310(8).[3]

Although there may be no bright line rule for when the use of donated funds serves the office's "public purposes," because Sheriff Quire's expenditure concerned the public work of his law enforcement office, did not inure to his personal benefit, and did not otherwise contravene state law, it was permissible under KRS 61.310(8).[4] Sheriff Quire has determined that a community movie night was necessary to foster positive community engagement with law enforcement public awareness, and that such event furthered the public purposes of his office. The Attorney General agrees.

Daniel Cameron
ATTORNEY GENERAL
Carmine G. Iaccarino
Heather L. Becker
Assistant Attorneys General

[1] Report of the Audit of the Franklin County Sheriff for the period January 7, 2019 through Dec. 31, 2019, at 19, available at https://perma.cc/R7A5-EC48.
[2] As an aside, the Auditor states that his Office has traditionally relied on Funk v. Milliken, 317 S.W.2d 499 (Ky. 1958), and its holding to conduct its audits. While Funk provides some guidance, it was decided in 1958 when sheriffs could not accept private donations. In 2005, the General Assembly amended KRS 61.310 specifically to permit peace officers to receive and expend donated funds, subject to certain restrictions not relevant here. Thus, Funk has limited value in this context. The same is true for OAG 82-433, which relied on Funk, but which was rendered before the 2005 amendment to KRS 61.310.
[3] See 40 KAR 1:010 § 3 (providing that "[o]pinions may be rendered . . . provided the legal question involves an actual, current factual situation[.]").
[4] To be clear, this Opinion's application is limited to donation accounts under KRS 61.310 and has no application to fee accounts.