Kansas Attorney General Opinion 1992-087

ROBERT T. STEPHAN
ATTORNEY GENERAL
July 7, 1992
ATTORNEY GENERAL OPINION NO. 92- 87
Brad L. Jones
Coffey County Attorney
P.O. Box 310
Burlington, Kansas 66839
Re: Counties and County Officers -- County Attorney
--Duties; Opinions and Advice to County; Who is a
Civil Officer; Expenditure of Money for Legal
Counsel to County Officer or Employee who is Target
of Grand Jury Proceeding
Synopsis: The board of county commissioners has statutory
authority pursuant to K.S.A. 19-723 to hire an
additional attorney to perform county attorney
functions if it deems such an action necessary and
expedient. The additional counsel or the county
attorney, whichever the case may be in that
particular situation, shall give advice and legal
opinions to civil officers and may give advice and
legal opinions to county employees if the board of
county commissioners determines that the person
requesting advice has acted within the scope of
their employment, the employee acted in good faith,
and it is a matter which is of interest to the
county. The board of county commissioners may
authorize the reimbursement of legal fees incurred
by the retention of independent legal counsel for a
county officer or employee as long as there is a
public purpose for the expenditure and the claims
are presented to the board of county commissioners
in accordance with K.S.A. 1991 Supp. 12-105b(a).
Such an expenditure of funds should be made on a
case-by-case basis to determine whether the

employee or officer was asking for reimbursement of
legal fees based on actions that were within his or
her scope of employment, whether the employee or
officer acted in good faith and whether the
services for which fees are sought concerned a
matter in which the county had an interest. Cited
herein: K.S.A. 12-105b(a); 19-702; 19-704; 19-723.
Dear Mr. Jones:
As Coffey county attorney you request our opinion on the
following questions:
1. Can the Coffey county board of commissioners employ a
special counsel to perform duties otherwise performed by the
county attorney and pay such a person from the county general
fund?
2. Pursuant to K.S.A. 19-704, who is encompassed by the
phrase "other civil officers of the county"?
3. Is a county officer who has been identified as the target
of a grand jury investigation of criminal activity entitled to
legal counsel at the expense of the county during the course
of the grand jury proceedings?
By way of background you have informed us that on May 12, 1992
a petition for grand jury was submitted to the clerk of the
district court for Coffey county. The petition requested an
investigation of alleged violations of the law by county
officials and/or employees, but did not list any specific
violations of law.
Newspaper articles did state that the allegations needing
investigation included:
"misappropriation of county funds;
allowing county employees to receive
consulting fees from county contractors
and suppliers; violations of the open
meetings act; incomplete recordings of
meetings and motions passed; use of county
funds and equipment for private property
improvements and distribution of economic
development funds with written agreements."

Based on such information, you, as the Coffey county
attorney, requested that the court agree to your withdrawal as
counsel since you would be required to investigate individuals
whom you have had a duty to advise, and possibly to testify.
The court agreed to your request and appointed a special
prosecutor.
Shortly after June 10, 1992, when the grand jury was
impaneled, it became apparent to you that some or all of the
county officials involved might have conflicting positions and
interests and therefore you informed the Coffey county board
of commissioners that you could not represent them and that
they should consider retaining special counsel either for the
county or for the individual county commissioners, officers,
and employees. On June 22, 1992, the Coffey county board of
commissioners passed Resolution No. 382 authorizing the
retention of special counsel for members of the board of
county commissioners and other county officials.
Based on these occurrences you have requested our opinion
concerning the above mentioned questions.
1. Can the Coffey county board of commissioners employ
special counsel to perform the duties otherwise performed by
the county attorney and pay such person from the county
general fund?
K.S.A. 19-723 authorizes the board of commissioners to:
"employ an additional attorney at law to
assist the county attorney of its county
in any specific investigation, prosecution
or any civil or criminal matter involving
the duties of said county attorney and the
said board of county commissioners may pay
such attorney so employed reasonable
compensation for his services, the same to
be charged to the general fund of said
county."
In Attorney General Opinion No. 91-53 we discussed the
authority of county commissions to establish a tort claims
fund to reimburse county officials for certain expenditures.
We quote extensively from that opinion:
"K.S.A. 19-212 provides that '[t]he 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. . . .' Through the county's home
rule powers, a board of county
commissioners is able to 'transact all
county business and perform all powers of
local legislation and administration it
deems appropriate. . .' with certain
exceptions. K.S.A. 1990 Sup. 19-101a.
Furthermore, K.S.A. 19-229 gives the
county commissioners the 'exclusive
control' of county expenditures.
"However, K.S.A. 1990 Supp. 12-105b(a)
requires that 'all claims against a
municipality must be presented in writing
with a full account of the item, and no
claim shall be allowed except in
accordance with the provisions of this
section.' Employees wishing payment of
legal expenses are making a claim against
the county for funds which are not
otherwise available to them. Therefore,
such employees or [officials] would need
to set forth in detail the amount they are
requesting.
"Through these statutes and other Kansas
law the commissioners have been given
broad and sweeping authority to decide how
local financial matters will be handled.
However, the general rule is that funds
must be spent only for a 'public
purpose.' Authorities discussing the
public purpose doctrine include:
Ulrich v. Board of Thomas County
Commissioners, 234 Kan. 782, 789 (1984);
Duckworth v. City of Kansas City, 243
Kan. 386 (1988); Savings and Loan
Association v. Topeka, 87 U.S. 655, 22
L.Ed. 455 (1875). See also Gold ,
Economic Development Projects: A
Prospective, 19 Urban lawyer 193 (1987);
Leavenworth County v. Miller, 7 Kan. 479

(1871); and McQuillin, 15 Municipal
Corporations § 39.19 (3d Ed.).
"The courts will generally defer to the
commissioners' determination as to whether
or not the expenditure is for a public
purpose. However, the courts will step in
if it is clear that the funds will only
benefit a private entity. The general law
governing judicial scrutiny in the
application of the 'public purpose'
doctrine is stated thus:
'Each case must be decided in the
light of the existing conditions,
with respect to the objects sought to
be accomplished, the degree and
manner in which that object affects
the public welfare, and the nature
and character of the thing to be
done; but the court will give weight
to a legislative determination of
what is a municipal purpose, as well
as widespread opinion and general
practice which regard as city
purposes some things which may not be
such by absolute necessity, or on a
narrow interpretation of
constitutional provisions. When an
appropriation of public funds is
primarily for public purposes, it is
not necessarily rendered violative of
constitutional provisions against
gifts and loans of public credit by
an incidental result which may be of
private benefit. On the other hand,
if the result is chiefly that of
private benefit, an incidental or
even ostensible public purpose will
not save its constitutionality. A
purpose may be a public one so as to
be within a municipal power to
appropriate funds therefor, even
though it is not a necessary
purpose. It has been laid down as a
general rule that the question
whether the performance of an act or
the accomplishment of a specific

purpose constitutes a 'public
purpose' for which municipal funds
may be lawfully disbursed rests in
the judgment of the municipal
authorities, and the courts will not
assume to substitute their judgment
for that of the authorities unless
the latter's exercise of judgment
or discretion is shown to have been
unquestionably abused.' Attorney
General Opinion No. 82-229, 64 C.J.S.
Municipal Corporations, § 1835
(1950), State ex rel., McClure v.
Hagerman, 98 N.E.2d 835 (Ohio
(1951)." Attorney General Opinion
No. 91-53.
Therefore, if the board of county commissioners deems it
"necessary and expedient" to hire an additional attorney to
perform county attorney functions, the money is spent for a
public purpose as determined on a case-by-case basis by the
county commission, and the expenses are submitted to the
county pursuant to the uniform procedure for payment of
claims, then such an expenditure from the county general fund
would be appropriate.
2. Is the county attorney authorized or required to give
advice to county employees who are not county officials?
K.S.A. 19-704 states that it is the duty of the county
attorney to "give opinions and advice to the board of county
commissioners and other civil officers of the county, when
requested by such board or officers, upon all matters in which
the county is interested, or relating to the duties of such
board of officers in which the state or county may have an
interest." (Emphasis added).
The county attorney also has the duty to: "[p]rosecute or
defend on behalf of the people all actions and proceedings,
civil or criminal, in which the state or the county is a party
or interested." K.S.A. 19-702.
An officer is distinguished from an employee by the "greater
importance, dignity and independence of his or her position;
in being required to take an official oath, and perhaps give
an official bond; in the liability to be called to account as
a public offender for misfeasance or nonfeasance in office,

and usually, though not necessarily, in the tenure of his or
her position." 3 McQuillan, § 12.30 (1990).
Based on the language of statute and the general rule of
statutory construction which states that "when a statute is
plain and unambiguous the court must give effect to the
intention of the legislature as expressed, rather than
determine what the law should or should not be," Randall v.
Seeman, 228 Kan. 395 (1980), it is our opinion that the
county attorney does not have a duty to advise or give legal
opinions to county employees. However, since the main duty of
the county attorney is to represent the best interests of the
county, the county may deem it an appropriate public purpose
to advise a county employee or indemnify an employee for legal
expenses when it is determined that the employee "was acting
in a manner in which the corporation had an interest; . . .
the acts were committed within the scope of his or her public
employment and in furtherance of official duty . . . and the
[employee] acted in good faith." 3 McQuillan, § 12.137.10
(1990). Such a determination will need to be made on a
case-by-case basis.
3. Is a county officer who has been identified as the target,
in a grand jury investigation of criminal activity by county
officers, entitled to legal counsel at the expense of the
county during the course of the grand jury proceedings?
We believe the same analysis that we used in determining
whether the county attorney would be required to render legal
opinions and advice to county employees is applicable to
county officers. Although, K.S.A. 19-704 states the county
attorney shall give opinions and advice to county officers
when requested, this is only applicable to "matters in which
the county is interested, or relating to the duties of such
board or officers, in which the state or county may have an
interest." K.S.A. 19-704. Therefore, there is no duty to
give advice to county officers if they are asking for advice
regarding matters which are outside the scope of their
employment and where the county would not have an interest in
the matter. Once again this determination needs to be made on
a case-by-case basis.
In conclusion, the board of county commissioners has statutory
authority pursuant to K.S.A. 19-723 to hire an additional
attorney to perform county attorney functions if it deems such
an action necessary and expedient. The additional counsel or
the county attorney, whichever the case may be in that
particular situation, shall give advice and legal opinions to

civil officers and may give advice and legal opinions to
county employees if the board of county commissioners
determines the person requesting advice has acted within the
scope of their employment, the employee acted in good faith
and it is a matter which is of interest to the county. The
board of county commissioners may authorize the reimbursement
of legal fees incurred by the retention of independent legal
counsel for a county officer or employee as long as there is a
public purpose for the expenditure and the claims are
presented to the board of county commissioners in accordance
with K.S.A. 1991 Supp. 12-105b(a). Such an expenditure of
funds should be made on a case-by-case basis to determine
whether the employee or officer was asking for reimbursement
of legal fees based on actions that were within his or her
scope of employment, whether the employee or officer acted in
good faith and whether the fees are sought for a matter in
which the county had an interest.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane Stattelman
Assistant Attorney General
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