Kansas Attorney General Opinion 2018-014

October 5, 2018
ATTORNEY GENERAL OPINION NO. 2018- 14
The Honorable Bradley C. Ralph
State Representative, 119 th District
State Capitol, Room 512-N
300 S.W. 10th Avenue
Topeka, Kansas 66612
Re: 	Procedure, Civil—Asset Seizure and Forfeiture—Disposition of Forfeited
Property; Use of Proceeds of Sale; Salary
Synopsis: 	Asset forfeiture funds credited to a special prosecutor’s trust fund pursuant to
K.S.A. 2017 Supp. 60-4117(c)(3)(A) may be used to pay for salaries only if the
county or district attorney or other governmental agency’s attorney determines
the expenditure is for an appropriate and additional law enforcement and
prosecutorial purpose, and the expenditure is supplemental to, but does not
supplant, normal operating expenses. 	However, if such salary subsequently
becomes a “normal operating expenditure,” then such salary shall not be paid
from the special prosecutor’s trust fund. 	Cited herein: 	K.S.A. 60-4102; K.S.A.
2017 Supp. 60-4107; 60-4117; K.S.A. 1993 Supp. 65-4173.
* 	* 	*
Dear Representative Ralph:
As State Representative for the 119 th District, you ask for an opinion regarding whether moneys
contained in the special prosecutor’s trust fund, pursuant to the Kansas Standard Asset Seizure
and Forfeiture Act (Act)1 may be used to pay for salaries. If so, you ask whether there are any
limitations on the payment of such salaries. For the reasons described below, we believe the
answer to your first question is yes, but only if the county or district attorney or other
1 K.S.A. 60-4101 et seq.

The Honorable Bradley C. Ralph
Page 2
governmental 	agency’s 	attorney 	determines 	the 	expenditure 	is 	for 	an 	appropriate 	and
additional law enforcement and prosecutorial purpose, and the expenditure is supplemental to,
but does not supplant, normal operating expenses. 	The answer to your second question
regarding limitation on the payment of such salaries is, if such salary subsequently becomes a
“normal operating expenditure,” then such salary shall not be paid from the special prosecutor’s
trust fund.
Disposition of forfeited property and the use of proceeds of the sale is authorized and controlled
by K.S.A. 2017 Supp. 60-4117. K.S.A. 2017 Supp. 60-4117 allows the law enforcement agency
to (1) retain for official use, (2) destroy or use for investigative or training purposes, (3) sell if
not required by law to be destroyed and not harmful to the public, or (4) salvage property
forfeited under the act.2
Subsection (c) of K.S.A. 2017 Supp. 60-4117 controls the distribution of the proceeds of any
sale of property forfeited pursuant to the Act. The distribution, in order of priority, is as follows:
(1) satisfaction of any court preserved security interest or lien, 3 (2) payment of all proper
expenses of the forfeiture and disposition of the forfeited property, 4 (3) reasonable attorney
fees, 5 and (4) repayment of law enforcement funds expended in purchasing of contraband or
controlled substances, subject to any interagency agreement.6
Because your question asks specifically about the special prosecutor’s trust fund and whether
it can be used to pay for salaries, we believe your question is limited to interpreting K.S.A. 2017
Supp. 60-4117(c)(3)(A).7 This provision states:
The proceeds of any sale shall be distributed in the following order of priority:
…
(3) reasonable attorney fees:
(A) If the plaintiff’s attorney is a county or district attorney, an assistant, or another
governmental 	agency’s 	attorney, 8 	fees 	shall 	not 	exceed 	15% 	of 	the 	total
2 K.S.A. 2017 Supp.60-4117(a). We note that sale of forfeited firearms is not authorized. K.S.A. 2017 Supp.60-
4117(b).
3 K.S.A. 2017 Supp.60-4117(c)(1).
4 K.S.A. 2017 Supp.60-4117(c)(2).
5 K.S.A. 2017 Supp.60-4117(c)(3).
6 K.S.A. 2017 Supp.60-4117(c)(4). Any proceeds remaining after the distribution under subsection (c) is fulfilled
are distributed under subsection (d) of K.S.A. 2017 Supp. 60-4117. Moneys distributed under subsection (d) are
not credited to the special prosecutor’s trust fund.
7 We exclude K.S.A. 2017 Supp. 60-4117(c)(3)(B) and (C) from our analysis because those moneys are not
credited into the special prosecutor’s trust fund as specified in your question. K.S.A. 2017 Supp. 60-4117(c)(3)(B)
provides for credit of moneys to the medicaid fraud prosecution revolving fund when the “plaintiff’s attorney” is the
Attorney General. As negotiated by the employing law enforcement agency, K.S.A. 2017 Supp. 60-4117(c)(3)(C)
authorizes the payment to a private attorney who is hired by the seizing law enforcement agency to be the
“plaintiff’s attorney”.
8 “‘Plaintiff’s attorney’ means a county or district attorney, or the attorney general, such attorney’s assistant, or
another attorney approved, pursuant to subsections (h) and (i) of K.S.A. 60-4107, employed by a law enforcement

The Honorable Bradley C. Ralph
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proceeds, less the amounts of subsection (c)(1) and (2), in an uncontested
forfeiture nor 20% of the total proceeds, less the amounts of subsection (c)(1)
and (2), in a contested forfeiture. Such fees shall be deposited in the county or
city treasury and credited to the special prosecutor’s trust fund. Moneys in such
fund shall not be considered a source of revenue to meet normal operating
expenditures, including salary enhancement. Such fund shall be expended by the
county or district attorney, or other governmental agency’s attorney through the
normal county or city appropriation system and shall be used for such additional
law enforcement and prosecutorial purposes as the county or district attorney or
other governmental agency’s attorney deems appropriate, including educational
purposes. All moneys derived from past or pending forfeitures shall be expended
pursuant to this act. The board of county commissioners shall provide adequate
funding to the county or district attorney’s office to enable such office to enforce
this act. Neither future forfeitures nor the proceeds therefrom shall be used in
planning or adopting a county or district agency’s budget.
K.S.A. 2017 Supp. 60-4117(c)(3)(A) authorizes a county or district attorney, an assistant county
or district attorney, or another governmental agency’s attorney to collect an amount certain as
calculated by the statutory formula, and that amount is to be deposited into the city or county
treasury and credited to the special prosecutor’s trust fund. 	The remaining five sentences in
this provision are dedicated solely to setting the standard that must be met in order for the
county or district attorney to expend moneys credited to the fund. 	In other words, these five
sentences will control whether the special prosecutor’s trust fund may be used to pay for
salaries.
We have found no cases deciding the questions you pose. 	Therefore, to interpret whether
payment of salaries is an appropriate use of forfeiture proceeds pursuant to K.S.A. 2017 Supp.
60-4117(c)(3)(A), we rely upon the court’s guidance for statutory interpretation:
An appellate court must first attempt to ascertain legislative intent through the
statutory language enacted, giving common words their ordinary meanings.
When a statute is plain and unambiguous, an appellate court should not
speculate about the legislative intent behind that clear language, and it should
refrain from reading something into the statute that is not readily found in its
words. 	Where there is no ambiguity, the court need not resort to statutory
construction. Only if the statute’s language or text is unclear or ambiguous does
the court use canons of construction or legislative history to construe the
legislature’s intent.9
agency to litigate a forfeiture on behalf of the agency.” K.S.A. 60-4102. K.S.A. 2017 Supp. 60-4107(h) and (i)
provide that “another governmental agency’s attorney” includes a state law enforcement agency’s attorney or an
attorney engaged, with the approval of the county or district attorney, to represent the seizing law enforcement
agency in the forfeiture proceeding. We assume for the purposes of this opinion, that “another governmental
agency’s attorney” may also include the county counselor if the county has this position, or the city attorney.
9 State v. Barlow, 303 Kan. 804, 813 (2016) (internal citations omitted).

The Honorable Bradley C. Ralph
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The first sentence states, “[m]oneys in such fund shall not be considered a source of revenue
to meet normal operating expenditures, including salary enhancement.”10 	“Normal operating
expenditures” is not defined in the Act, nor is the phrase defined in the Merriam-Webster
dictionary. “Normal” means “a: according with, constituting, or not deviating from a norm, rule,
or principle; b: conforming to a type, standard, or regular pattern.”11 	“Operating” means “of,
relating to, or used for or in operations.” 12 	“Expenditure” means “something expended:
disbursement, expense.”13 We conclude that the common and ordinary meaning of a “normal
operating expenditure” pursuant to K.S.A. 2017 Supp. 60-4117(c)(3)(A) is a standard or regular
expense related to the operation of the city, county or district attorney’s office.
The statute does not provide a definition of “salary enhancement,” but the term is specifically
included by the Legislature as a normal operating expenditure which the special prosecutor’s
trust fund cannot be used to pay. 	Salary enhancement is not defined per se. 	The common
definition 	of 	salary 	is 	a 	“fixed 	compensation 	paid 	regularly 	for 	services.”14 	The 	term
enhancement means “heighten, increase; especially: to increase or improve in value, quality,
desirability, or attractiveness; obsolete: raise.”15 We conclude that salary enhancement refers
to moneys paid to increase or improve a salary, regardless whether the salary is paid as a
normal operating expenditure or not.
We note that salaries are not included specifically in the statute as a per se normal operating
expense like salary enhancement is. 	Thus, depending on the facts, a salary may meet the
standard for use of moneys from the special prosecutor’s trust fund.
The second sentence states, “[s]uch fund shall be expended by the county or district attorney,
or other governmental agency’s attorney through the normal county or city appropriation
system and shall be used for such additional law enforcement and prosecutorial purposes as
the county or district attorney or other governmental agency’s attorney deems appropriate,
including educational purposes.” “Additional law enforcement and prosecutorial purposes” is
not defined by statute. “Additional” means “more than the usual or expected: added.”16 “Law
enforcement” means “: the department of people who enforce laws, investigate crimes, and
make arrests: the police.” 17 “Prosecutorial” means “of, relating to, or being a prosecutor or
prosecution.”18 “Purposes” means “1. a: something set up as an object or end to be attained:
intentions, b: resolution, determination, 2: a subject under discussion or an action in course of
execution.” 19 	We conclude that “additional law enforcement and prosecutorial purposes”
pursuant to K.S.A. 2017 Supp. 60-4117(c)(3)(A) is an unusual or unexpected expense, not
covered under normal operating expenditures, which must serve a law enforcement and
10 K.S.A. 2017 Supp. 60-4117(c)(3)(A).
11 https://www.merriam-webster.com/dictionary/normal.
12 https://www.merriam-webster.com/dictionary/operating.
13 https://www.merriam-webster.com/dictionary/expenditure.
14 https://www.merriam-webster.com/dictionary/salary.
15 https://www.merriam-webster.com/dictionary/enhancement.
16 https://www.merriam-webster.com/dictionary/additional.
17 https://www.merriam-webster.com/dictionary/law%20enforcement.
18 https://www.merriam-webster.com/dictionary/prosecutorial.
19 https://www.merriam-webster.com/dictionary/purpose.

The Honorable Bradley C. Ralph
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prosecutorial objective as deemed appropriate by the county or district attorney or other
governmental agency’s attorney.
The third sentence states, “[a]ll moneys derived from past or pending forfeitures shall be
expended pursuant to this act.” This is intended to make clear that the standard to be used to
expend funds for forfeitures that were pending at the time of the passage of K.S.A. 60-4117 in
1994, or for forfeiture funds already deposited into the special prosecutor’s trust fund, is the
standard found in K.S.A. 60-4117(c)(3)(A) and not the repealed statute, K.S.A. 65-4173. 20
The fourth sentence states, “[t]he board of county commissioners shall provide adequate
funding to the county or district attorney’s office to enable such office to enforce this act.”
The fifth sentence states, “[n]either future forfeitures nor the proceeds therefrom shall be used
in planning or adopting a county or district attorney’s budget.” The intent of the Legislature is
unmistakable in the plain language that is used in these last two sentences: that is, moneys in
the special prosecutor trust fund cannot be used to reduce or supplant appropriations that
would normally exist in the city, county, or district attorney’s budget.21
Read together, the provisions of K.S.A. 2017 Supp. 60-4117(c)(3)(A) will allow the expenditure
of forfeiture funds held in a special prosecutor’s trust fund on salaries only if such salary is not
a standard or regular expense related to operation of the city, county or district attorney’s office,
is not being used to reduce or supplant appropriations that would normally exist in the city,
county, 	or 	district 	attorney’s 	budget, 	and 	serves 	an 	additional 	law 	enforcement 	and
prosecutorial objective, as deemed appropriate by the county or district attorney or other
governmental agency’s attorney. 	However, if the salary becomes a normal operating
expenditure, then such salary shall not be paid from the special prosecutor’s trust fund.
Sincerely,
Derek Schmidt
Kansas Attorney General
Athena E. Andaya
Deputy Attorney General
DS:AA:sb
20 Repealed by L. 1994, Ch.339, §28.
21 See generally, Kansas Attorney General Opinion No. 07-15 and 13-10.