Kansas Attorney General Opinion 2013-003

January 2, 2013
ATTORNEY GENERAL OPINION NO. 2013-3
Charles F. Moser, Unified Attorney
Unified Government of Greeley County
113 W. Greeley Ave., P.O. Box 429
Tribune, KS 67879
Re: 	Cities and Municipalities—Consolidation of Municipalities—Unification of
Governmental Units in Greeley County; Unification Plan; Unified City-
County Powers, Duties, Limitations
Counties and County Officers―County Clerk—County Clerk; Deputies
and Assistants; Budget; Limitation on Personnel Policies and Practices
Counties 	and 	County 	Officers―County 	Treasurer—County 	Treasurer;
Deputy Treasurers; Budget; Limitation of Personnel Action
Counties 	and 	County 	Officers―Sheriff—Sheriff; 	Deputies 	and
Undersheriffs; Budget; Limitation of Personnel Action
Counties and County Officers―Register of Deeds—Register of Deeds;
Deputy Registers of Deed; Budget; Limitation of Personnel Action
Synopsis: 	The authority of county elected officials to pay bonuses to their employees
is subject to any county-wide pay plan adopted by the board of county
commissioners. 	When a pay plan establishes specific salaries for county
employees and is silent on the issue of bonuses, the pay plan should
generally be read as prohibiting bonuses.
County elected officials whose salaries are set by the board of county
commissioners may not pay themselves bonuses without the board’s
approval. 	Cited herein: K.S.A. 2011 Supp. 12-365; 19-101a; K.S.A. 19-
302; 19-503; 19-805; 19-1202; 79-2934.

Charles Moser
Page 2
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Dear Mr. Moser:
As the County Attorney and County Counselor for the Unified Government of Greeley
County, you ask whether the Sheriff, Register of Deeds, County Clerk, and County
Treasurer of the Unified Government of Greeley County may use excess funds within
their budgets to pay bonuses to their employees or themselves. 	As background, you
note that the Board of Supervisors for the Unified Government of Greeley County
appropriates a lump sum for the salaries of all personnel, including the elected official,
within each of these offices. 	The Board also sets the salaries of the county’s elected
officials and has established a pay plan for all non-elected county employees. 	The
Board has not, however, specifically authorized these officials to pay bonuses or
explicitly forbidden them from doing so.
Before answering your specific questions, we will first review the relationship between
boards of county commissioners and county elected officials. Under Kansas’ home rule
statutes, the board of county commissioners in each county has the authority to
“transact 	all 	county 	business 	and 	perform 	all 	powers 	of 	local 	legislation 	and
administration it deems appropriate,” subject to certain enumerated restrictions not
directly relevant here. 1 These statutes have been interpreted as granting a board
“general authority over [the] county purse,” including authority to set the budgets and
salaries of county elected officials. 2 Due to the unification of the governments of
Greeley County and the City of Tribune, 3 the Unified Government of Greeley County is
governed by a board of supervisors rather than a board of commissioners, but the board
of supervisors has the same powers.4
Kansas statutes also create several elected offices within each county, including the
offices of Sheriff, County Clerk, County Treasurer, and Register of Deeds. 	Despite its
unification, 	the 	Unified 	Government 	of 	Greeley 	County 	has 	retained 	these 	same
officials. 5 The Sheriff, County Clerk, County Treasurer, and Register of Deeds may
“appoint, promote, demote and dismiss” deputies and assistants as “necessary to carry
out the duties of the office.”6
1 K.S.A. 2011 Supp. 19-101a.
2 Bd. of County Comm’rs of County of Lincoln v. Nielander, 275 Kan. 257, 267 (2003); Attorney General
Opinion No. 91-65.
3 The Unified Government of Greeley County was established following the procedure set forth in K.S.A.
2011 Supp. 12-360 et seq. It is both a county and a city of the third class. See K.S.A. 2011 Supp. 12-
365.
4 K.S.A. 2011 Supp. 12-365(k); Final Plan for the Unification of the Governments of Greeley County and
Tribune Kansas (August 22, 2007).
5 You inform us that a few of the county elected officials assumed additional responsibilities formerly
performed by city officials. Because nothing in the unification plan purports to alter the statutory duties
and powers of these officials, however, this does not affect our analysis. See id.
6 K.S.A. 19-302(a) (county clerk); K.S.A. 19-503(a) (county treasurer); K.S.A. 19-805(a) (sheriff); K.S.A.
19-1202(a) (register of deeds).

Charles Moser
Page 3
At the same time, Kansas statutes also establish certain limitations on a county elected
official’s personnel decisions. 	Although different statutes apply to the various officials,
each of these statutes provides:
Any personnel action taken by [the elected official] shall be subject to the
following: (1) Personnel policies and procedures established by the board
of county commissioners for all county employees other than elected
officials; 	(2) 	any 	pay 	plan 	established 	by 	the 	board 	of 	county
commissioners for all county employees other than elected officials; (3)
any applicable collective bargaining agreements or civil service system;
and (4) the budget for the financing of the operation of the [official’s] office
as approved by the board of county commissioners.7
The Kansas Supreme Court considered the interaction between these various statutes
in Board of County Commissioners of County of Lincoln v. Nielander, 8 a case in which
the Lincoln County Sheriff disputed the Lincoln County Commissioners’ authority to fire
a deputy sheriff.9 On appeal, the Kansas Supreme Court recognized that while
personnel action taken by a county elected official is subject to the personnel policies,
pay plans, collective bargaining agreements or civil service system, and budget set by
county commissioners, these restrictions do “not give county commissioners the ability
to supersede a sheriff’s power to appoint, promote, demote, or dismiss his or her
personnel.” 10 Accordingly, the Court held that the Lincoln County Commissioners
lacked legal authority to fire the deputy sheriff.11
The facts in Nielander differ materially from those specified in your opinion request.
There, the county commissioners attempted to fire a sheriff’s deputy when the statute at
issue 	gave 	the 	sheriff 	the 	authority 	to 	“appoint, 	promote, 	demote, 	and 	dismiss”
employees. Here, your question is whether county elected officials may pay bonuses to
their employees or themselves. 	Paying bonuses does not relate to an elected official’s
authority to “appoint, promote, demote and dismiss” employees but is instead, by the
terms of the relevant statutes, subject to any pay plan and budget adopted by the board
of county commissioners.
With this background, we turn now to your specific questions.
1. 	Does an elected official have the authority to pay out unused, appropriated
funds in that official’s budget as bonuses to his/her deputies and staff?
7 K.S.A. 19-302(c); K.S.A. 19-503(c); K.S.A. 19-805(d); K.S.A. 19-1202(c).
8 275 Kan. 257 (2003).
9 Id. at 259-60. The Court also addressed a second issue: whether the commissioners could require the
sheriff to obtain prior approval for purchases in excess of $250. See id. at 268-69. The Court’s holding
on that issue is not directly relevant here — while no statute explicitly provides that county elected
officials’ purchases are subject to the county commissioners’ purchasing policies, the statutes cited above
do provide that county elected officials’ personnel actions are subject to the pay plan and budget adopted
by the county commissioners.
10 Id. at 266-67.
11 Id. at 267.

Charles Moser
Page 4
Yes, subject to the four limitations listed above. In Attorney General Opinion No. 1984-
30, Attorney General Stephan opined that:
In 	the 	absence 	of 	[ ] 	personnel 	policies, 	pay 	plans, 	civil 	service
regulations, or collective bargaining agreements a sheriff may determine
and adjust the salaries of his or her deputies (including the undersheriff) or
assistants subject only to the limits of the budget for the financing and
operation of the sheriff’s office approved by the county commissioners.12
The relevant statutory text has not changed since Opinion No. 1984-30 was issued, and
we see no reason based on intervening case law or otherwise to revisit its conclusion
on this issue. 	Of course, Opinion No. 1984-30 does not explicitly mention bonuses. 	It
does, however, discuss an official’s authority to “adjust the salaries” of employees, and
as Attorney General Opinion No. 1977-55 observed, “the payment of a bonus . . . is
analogous, if not directly tantamount, to increased compensation.” 13
2. 	Does it matter whether these unused funds were appropriated to the Major
Service Area of “salaries” or some other Major Service Area?
Yes. 	Among other limitations, a county elected official’s authority to pay bonuses is
subject to the budget approved by the board of county commissioners or, in this case,
board of supervisors. 	An official may not pay bonuses from money appropriated for
some other purpose or if doing so would exceed the official’s overall budget. The cash-
basis and budget laws of the state further support this conclusion. 14
3. 	If the Board of Supervisors has established a pay plan for all non-elected
personnel would the elected official’s action of paying unused budgeted funds
out as bonuses violate K.S.A. 19-302(c), K.S.A. 19-503(c), K.S.A. 19-805(d),
or K.S.A. 19-1202(c), as they may apply to the respective elected official?
The answer to this question depends on the details of the pay plan. 	Under the plain
language of K.S.A. 19-302(c), K.S.A. 19-503(c), K.S.A. 19-805(d), and K.S.A. 19-
1202(c), a county elected official’s authority to pay bonuses is subject to any pay plan
adopted by the board of county commissioners for all non-elected county employees.
When such a pay plan specifically authorizes or forbids bonuses, determining whether
bonuses are allowed will be straightforward. But in many cases, as in yours, a pay plan
12 Attorney General Opinion No. 84-30.
13 Attorney General Opinion No. 77-55.
14 See K.S.A. 79-2934 (“The budget as approved . . . 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.”). 	K.S.A. 2011 Supp. 12-365(b) specifies that the
Unified Government of Greeley County remains subject to these laws, despite its unification.

Charles Moser
Page 5
will be silent on the matter of bonuses. 	Although we will not address the details of any
particular plan, 15 we offer the following opinion as guidance.
When a pay plan in one way or another establishes specific salaries for an elected
official’s employees and is silent on the issue of bonuses, we opine that paying bonuses
will generally be inconsistent with the pay plan, absent some provision in the pay plan
suggesting otherwise. 	In reaching this conclusion, we rely on the expressio unius
canon, which provides that “the mention of one thing indicates an exclusion of other
things not mentioned.” 16 As applied here, the canon dictates that when a pay plan
authorizes a particular level of compensation for an employee, the plan should ordinarily
be read as excluding any additional compensation not specifically authorized. 	And
bonuses 	paid 	from 	a 	salary 	account 	are 	allowable 	only 	to 	the 	extent 	they 	are
compensation; otherwise the payment of such bonuses would conflict with the budget
approved by the board.
4. 	Does an elected official have the authority to pay out unused, appropriated
funds in that official’s budget as a bonus to himself/herself?
Not without the approval of the board of county commissioners (or in this case, board of
supervisors). 	The 	salaries 	of 	county 	elected 	officials 	were 	once 	fixed 	by 	the
legislature. 17 With the enactment of the county home rule statutes in 1974, this
legislative function passed to the boards of county commissioners. 18 You advise us that
the Unified Government of Greeley County Board of Supervisors has, in fact, set the
salaries for Unified Government of Greeley County’s elected officials. 	Because fixing
the salaries of county elected officials is a legislative function entrusted to the board of
county commissioners (or board of supervisors), we believe these officials cannot,
without 	the 	board’s 	approval, 	increase 	their 	compensation 	by 	paying 	themselves
bonuses.
Additionally, the fact that a board has appropriated a lump sum for salaries, including
the salary of the elected officials, does not mean that the board has authorized these
officials to pay themselves bonuses. 	This conclusion is based on the expressio unius
canon discussed above. Since the board set particular salaries for the elected officials,
we should generally presume that the board did not intend for these officials to increase
their compensation by paying themselves bonuses.
Given that the practice of county officials paying themselves bonuses usurps the
board’s legislative authority, we need not (and do not) opine on whether paying such
bonuses would violate any other law or ethics rule.
15 Attorney General’s Statement of Policy Relating to the Furnishing of Written Opinions, ¶ 8 (“Only
questions of law will be answered”).
16 Metro. Life Ins. Co. v. Strnad, 255 Kan. 657, 661-62 (1994) (the expressio unius canon is not limited to
statutory interpretation).
17 See, e.g., L. 1974, Ch. 361 (setting the salaries of county clerks, county treasurers, sheriffs, and
registers of deeds, among others); see also Attorney General Opinion No. 85-147.
18 Id.

Charles Moser
Page 6
Sincerely,
Derek Schmidt
Attorney General
Dwight Carswell
Assistant Attorney General
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