Kansas Attorney General Opinion 2013-010

April 29, 2013
ATTORNEY GENERAL OPINION NO. 2013- 10
Natalie Randall, County Attorney
Office of the Ford County Attorney
Government Center
100 Gunsmoke, P.O. Box 1057
Dodge City, KS 67801
Re: 	Procedure, Civil—Asset Seizure and Forfeiture—Disposition of Forfeited
Property; Use of Proceeds of Sale
Synopsis: 	Asset forfeiture funds may be used to pay for victim or witness relocation if
the 	prosecutor 	determines 	the 	expenditure 	is 	for 	an 	additional 	law
enforcement and prosecutorial purpose or the head law enforcement
officer 	determines 	the 	expenditure 	is 	for 	a 	special, 	additional 	law
enforcement purpose and the expenditure is not used to supplant normal
expenditures. In addition, counties are not prohibited from agreeing to pay
certain 	expenses 	for 	such 	victim 	or 	witness 	relocation 	so 	long 	the
appropriate official in each county determines the expenditure meets the
applicable statutory requirement. Cited herein: K.S.A. 60-4101; 60-4102;
and K.S.A. 2012 Supp. 60-4117.
* 	* 	*
Dear Ms. Randall:
As Ford County Attorney, you ask for our opinion on whether moneys obtained through
the Kansas Standard Asset Seizure and Forfeiture Act (the Act), 1 may be used to pay
for costs associated with relocating witnesses and victims of gang violence who,
presumably, are necessary to the investigation and/or prosecution of a criminal offense.
1 K.S.A. 60-4101 et seq.

Ms. Natalie Randall
Page 2
You anticipate the relocation costs to include the cost of movers, fuel, rental deposits,
first 	month’s 	rent, 	and 	similar 	costs. 	Additionally, 	you 	ask 	whether 	counties 	are
authorized to pool forfeiture funds to pay for such victim or witness relocation costs
pursuant to an interlocal agreement 2 or other method in order to accomplish the same
task.
We look to the Act to determine the permissible use of proceeds from the sale of
forfeited property. 	You direct our attention to the statute within the Act that authorizes
the creation of a “special prosecutor’s trust fund” 3 and a “special law enforcement trust
fund.”4 While the provisions are similar, the standard used to measure the prosecutors’
discretion and the law enforcement officers’ discretion is slightly different. 	Therefore,
we will address each fund separately. 	We note that our research revealed no cases
that resolved or decided the questions presented.
Special Prosecutor’s Trust Fund
The statute that provides for the establishment of a special prosecutor’s trust fund,
K.S.A. 2012 Supp. 60-4117, provides:
(c) 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, fees shall not exceed 15% of the
total 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
2 See K.S.A. 12-2901 et seq.
3 K.S.A. 2012 Supp. 60-4117(c)(3)(A).
4 K.S.A. 2012 Supp. 60-4117(d)(2) and (3).

Ms. Natalie Randall
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forfeitures 	nor 	the 	proceeds 	therefrom 	shall 	be 	used 	in 	planning 	or
adopting a county or district attorney’s budget.5
We interpret the statutes in accordance with rules of statutory construction employed by
the courts.
“The 	fundamental 	rule 	of 	statutory 	construction 	is 	to 	ascertain 	the
legislature's intent. The legislature is presumed to have expressed its
intent through the language of the statutory scheme. Ordinary words are
given their ordinary meanings. A statute should not be read to add
language that is not found in it or to exclude language that is found in it.
When a statute is plain and unambiguous, the court must give effect to the
legislature's intent as expressed rather than determining what the law
should or should not be.”6
With regard to your first question, whether forfeiture funds from the special prosecutor’s
trust fund may be used to pay for victim or witness relocation costs, the language of
K.S.A. 2012 Supp. 60-4117(c)(3)(A) is plain and unambiguous and simply requires the
application of law to the facts. 	Forfeiture funds held in a special prosecutor’s trust fund
may be used for relocation expenses if (1) the prosecutor deems it appropriate, (2) the
expenses are supplemental to normal operating expenses, and (3) the expenses are for
additional 7 law 	enforcement 	and 	prosecutorial 	purposes. 	In 	this 	case, 	relocation
expenses for victims and witnesses of gang violence are not normal operating expenses
for 	a 	prosecutor’s 	office. 	Further, 	assuming 	that 	testimony 	from 	the 	victims 	and
witnesses is important to the prosecutor’s case, such expenses would serve additional
law enforcement and prosecutorial purposes by protecting witnesses. Under these
circumstances, if the prosecutor deems the relocation expenses appropriate, then they
may be paid from the special prosecutor’s trust fund.
With regard to your second question, whether it is permissible for counties to pool or
aggregate their forfeiture funds pursuant to an interlocal agreement or other method to
pay for costs of victim or witness relocation, we turn to the plain language of the statute.
The funds authorized by statute that pertain to the disposition of forfeiture proceeds to a
county or district attorney or where the law enforcement agency is a city or county
agency are the special prosecutor’s trust fund and the special law enforcement trust
fund. 8 The 	creation 	of 	any 	fund 	between 	counties 	using 	forfeiture 	funds 	is 	not
authorized because the statute does not provide for it. Therefore, any agreement that
5 Emphasis added.
6 State v. Bryan, 281 Kan. 157, 159 (2006).
7 The word “additional” is not defined in the phrase “additional law enforcement and prosecutorial
purposes.” Thus, “additional” means supplemental when we apply the common, ordinary meaning of the
word. Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/additional, accessed April
22, 2013.
8 Although not applicable to your question, we state for clarity that K.S.A. 2012 Supp. 60-4117(c)(3)(B)
authorizes proceeds to be credited to the Medicaid fraud prosecution revolving fund when the plaintiff’s
attorney is the Attorney General. Additionally, if the law enforcement agency is a state agency, K.S.A.
2012 Supp. 60-4117(d)(1) authorizes proceeds to be credited to such agency’s state forfeiture fund.

Ms. Natalie Randall
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contains a provision that requires moneys from a forfeiture fund to go into another fund
to be pooled or aggregated is not authorized. 9
You asked whether the agreement may take the form of an interlocal agreement.
Interlocal agreements permit a public agency to cooperate with one or more public or
private agencies to provide services, programs and facilities that will accord best with
geographic, 	economic, 	population 	and 	other 	factors 	influencing 	the 	needs 	and
development of local communities. In our opinion, interlocal agreements may not be
used to pool or aggregate forfeiture funds because the creation of another fund is not
authorized by statute.
That is not to say that all agreements are prohibited. We opine that prosecutors with a
special prosecutor’s trust fund may agree to pay for certain expenses for victim or
witness relocation if each prosecutor in each of the participating counties independently
makes the required findings that expenditure of forfeiture funds is permissible. There is
no language in the statute that prohibits the expenditure of the forfeiture funds outside
of the jurisdiction of the prosecutor. The prosecutor need only determine, in his or her
discretion, that such disbursement is appropriate, supplemental to normal operating
expenses and for additional prosecutorial or law enforcement purposes.
We conclude that under these circumstances, an agreement between counties to pay
certain 	costs 	of 	relocating 	victims 	and 	witnesses 	from 	each 	county’s 	special
prosecutor’s trust fund is not prohibited by the statute and further promotes the original
purposes served by the Act.10
Special Law Enforcement Trust Fund
The statute that provides for a special law enforcement trust fund, K.S.A. 2012 Supp.
60-4117, provides:
(d) Any proceeds remaining [from the disposition of forfeited property]
shall be credited as follows, subject to any interagency agreement:
. . .
9 If the statutory language is clear, no need exists to resort to statutory construction. Graham v. Dokter
Trucking Group, 284 Kan. 547, 554 (2007).
10 "Asset forfeiture is an effective tool as it has multiple remedial benefits: (1) it removes the offending
property be it guns or cash, so that it can't be used to commit future crimes; (2) it serves as a deterrent
not only to the criminal who loses his ill-gotten gains, but to the youth who also see that drug dealing is
not an easy way to riches; (3) it destroys the ability of an illegal enterprise to compete against or corrupt
legitimate commerce; and (4) it turns illegal profits and equipment into badly needed resources for law
enforcement agencies." Attorney General Robert T. Stephan's "Task Force on Asset Forfeiture," Final
Report, January 11, 1993.

Ms. Natalie Randall
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(2) If the law enforcement agency is a city or county agency, the entire
amount shall be deposited in such city or county treasury and credited to a
special law enforcement trust fund. Each agency shall compile and submit
annually a special law enforcement trust fund report to the entity which
has budgetary authority over such agency and such report shall specify,
for such period, the type and approximate value of the forfeited property
received, the amount of any forfeiture proceeds received, and how any of
those proceeds were expended.
(3) Moneys in…the special law enforcement trust funds…shall not be
considered a source of revenue to meet normal operating expenses. Such
funds shall be expended by the agencies or departments through the
normal city, county or state appropriation system and shall be used for
such special, additional law enforcement purposes as the law enforcement
agency 	head 	deems 	appropriate. 	Neither 	future 	forfeitures 	nor 	the
proceeds from such forfeitures shall be used in planning or adopting a law
enforcement agency’s budget. 11
Again, with regard to your first question, whether forfeiture funds may be used to pay for
victim or witness relocations costs from the special law enforcement trust fund, the
language in K.S.A. 2012 Supp. 60-4117(d)(2) and (3) is plain and unambiguous and
simply requires the application of law to the facts. Forfeiture funds held in a special law
enforcement trust fund may be used for relocation expenses if (1) the head of the law
enforcement agency deems it appropriate, (2) the expenses are not normal operating
expenses and are special, 12 and (3) the expenses are for additional law enforcement
purposes. In this case, relocation expenses for victims and witnesses of gang violence
are not normal operating expenses for a law enforcement agency. These expenses are
not the usual expenses requested to be covered by forfeiture funds, even though such
expenses fall within the broad categories of case-related expenses or investigative
expenses. 	Again, assuming that testimony from the victims and witnesses is important
to the investigation or prosecution of the case, such expenses would serve additional
law enforcement purposes by protecting witnesses. Under these circumstances, if the
head of the law enforcement agency deems the relocation expenses appropriate, then
they may be paid from the special law enforcement trust fund.
With regard to your second question, whether pooling of law enforcement trust funds is
authorized, we conclude that the plain reading of the statute does not authorize the
creation of another fund. Therefore, pooling of funds is not authorized.
11 Emphasis added.
12 The word “special” in the phrase “special, additional law enforcement purposes” is not defined. Thus,
“special” means distinguished by some unusual quality when we apply the common, ordinary meaning of
the word. Merriam-Webster Dictionary, http://www.merriam-
webster.com/dictionary/special?show=0&t=1366625746, accessed April 22, 2013.

Ms. Natalie Randall
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We opine that heads of law enforcement agencies with a special law enforcement trust
fund may agree to pay for certain expenses for victim or witness relocation if each
official in each of the participating city or county independently makes the required
findings that expenditure of forfeiture funds is permissible. 	There is no language in the
statute that prohibits the expenditure of the forfeiture funds outside of the jurisdiction of
the head law enforcement official. The official need only determine, in his or her
discretion, that such disbursement is appropriate, supplemental to normal operating
expenses and for special, additional law enforcement purposes.
We point out that K.S.A. 2012 Supp. 60-4117(d) specifically contemplates interagency
agreements. 	The statute provides for the forfeiture proceeds to be credited to the
various state, county, and city law enforcement agencies, subject to any interagency
agreement. 	The plain reading of the phrase means that if there is an interagency
agreement, that agreement is satisfied first in order to arrive at the amount of proceeds
that are “remaining” to be distributed according to the statute. The important point here
is that such agreements are authorized and can be used to accomplish the task of
paying expenses of victim or witness relocation by more than one special fund.
Conclusion
We conclude that asset forfeiture funds may be used to pay for victim or witness
relocation 	if 	the 	prosecutor 	determines 	the 	expenditure 	is 	for 	an 	additional 	law
enforcement and prosecutorial purpose or the head law enforcement officer determines
the 	expenditure 	is 	for 	a 	special, 	additional 	law 	enforcement 	purpose 	and 	the
expenditure is not used to supplant normal expenditures. We also conclude that
counties are not prohibited from agreeing to pay expenses for such witness relocation,
so long as the appropriate official in each county determines that the expenditure meets
the applicable statutory requirement and the forfeiture money is used to pay the
expense directly and not pooled into a fund.
Sincerely,
Derek Schmidt
Attorney General
Athena E. Andaya
Deputy Attorney General
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