Kansas Attorney General Opinion 2016-002

February 16, 2016
ATTORNEY GENERAL OPINION NO. 2016- 2
Paul F. Kitzke
Stevens County Attorney
1024 S. Trindle, P. O. Box 909
Hugoton, KS 67951-0909
Re: 	Counties and County Officers—County Attorney—Duties
Counties and County Officers—County Attorney—Absence or Disability;
Appointment by Court
Counties and County Officers—County Attorney—County Commissioners
Authorized to Hire Additional Counsel
Courts—District Courts—County Commissioners Responsible for Certain
Expenses of District Court Operations
Synopsis: 	When a board of county commissioners appoints an acting county attorney
pursuant to K.S.A. 19-723, the county compensates such attorney from its
general funds. 	When a court appoints an acting county attorney pursuant
to K.S.A. 19-711, the county, with the cooperation of the chief judge,
compensates such attorney from the funds for the operation of the district
court if the county has not adopted a different system. Cited herein: K.S.A.
19-702; 19-706b; 19-711; 19-723; 20-348; K.S.A. 2015 Supp. 20-349.
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Paul Kitzke
Page 2
Dear Mr. Kitzke:
As the County Attorney for Stevens County, you have asked our office for an opinion
regarding the payment of an acting county attorney. 1 You advise, because you also have
a private practice, there are instances where you have an ethical conflict of interest based
upon either professional or personal reasons and have to use the services of an acting
county attorney. However, the budget for the Office of the Stevens County Attorney does
not include any moneys for an acting county attorney. 	You ask whether the fees for an
acting county attorney are paid from your salary as the Stevens County Attorney or the
county's general fund.
K.S.A. 19-701 et seq. contains the general law regarding county attorneys. The duties of
a county attorney are stated in K.S.A. 19-702(a):
"Except as otherwise provided in this section, 2 it shall be the duty of the
county attorney to appear in any court having jurisdiction within the county
and 	prosecute 	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. 19-706b governs the funds for the office of the county attorney. 	It provides in
pertinent part:
The board of county commissioners of any county having a population of
not more than one hundred thousand (100,000) may allow to the office of
the county attorney of such county such reasonable sums for salaries and
compensation which will permit said county attorney to appoint such
deputies and assistants as are necessary to properly expedite the business
of his office. 	Said deputies and assistants shall have such powers and
duties within the scope of the office of county attorney as are prescribed by
the county attorney, and within the limits of the sums made available by the
board of county commissioners, each such deputy and assistant shall
receive an annual salary in an amount prescribed by the county attorney.
K.S.A. 19-706b does not apply to your question because the county attorney is not hiring
a deputy or assistant county attorney as an employee who receives an annual salary.
1 In your request for an opinion, you refer to someone acting as a special prosecutor. Because the county
attorney prosecutes and defends in civil and criminal proceedings, we refer to an acting county attorney
rather than a special prosecutor for purposes of this opinion. Our use of the term acting county attorney
therefore includes, but is broader than, the term special prosecutor that is used in the statutes and case
law.
2 Subsection (b) provides that the county attorney is not required to appear in any civil action relating to the
operation of the county hospital, but may appear at such action at the county attorney's discretion if
requested by the board of county commissioners or the board of the county hospital.

Paul Kitzke
Page 3
Thus, the fees of the acting county attorney are not paid from the salary of the county
attorney.
We next look at the two statutes authorizing the appointment of an acting county attorney.
One grants such authority to the board of county commissioners and the other to the
court. Under both of those statutes, the appointed attorney becomes the county attorney
for that particular case. As discussed below, the fund that is used to pay an acting county
attorney is dependent upon which entity appoints such person.
Appointment by the board of county commissioners
K.S.A. 19-723 states:
That when, in the judgment of the board of county commissioners of any
county in this state, it becomes necessary or expedient, the said board of
county commissioners may 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.
Under K.S.A. 19-723, the board of county commissioners appoints the acting county
attorney and is responsible for payment of the fees for the acting county attorney from the
county's general fund.
Appointment by the court
K.S.A. 19-711 states:
In the absence, sickness or disability of both the county attorney and his
deputy, any court before whom it is his duty to appear and in which there
may be business for him, may appoint an attorney to act as county attorney,
by order to be entered upon the minutes of the court.
The word "disability" includes cases involving an ethical disqualification of the county
attorney.3 	However, unlike K.S.A. 19-723, K.S.A. 19-711 is silent on the compensation
of the acting county attorney. Thus, we look at other statutes to discern the answer.
K.S.A. 20-348 states:
Except for expenses required by law to be paid by the state, the board of
county commissioners of each county have [sic] an obligation to adequately
3 Attorney General Opinion No. 82-139.

Paul Kitzke
Page 4
fund the operation of the district court in the county and shall be responsible
for all expenses incurred for the operation of the district court in the county.
In Attorney General Opinion No. 2003-4, we concluded that pursuant to K.S.A. 20-348,
the county is responsible for paying the fees of a special prosecutor appointed by the
court under K.S.A. 19-711. In reaching this conclusion, we relied upon two cases.
In the first case, Board of Osage County Comm'rs v. Burns,4 the Kansas Supreme Court
concluded that, because no statute required the state to do so, K.S.A. 20-348 required a
county to pay the attorney fees for indigent defendants charged with misdemeanor crimes
when imprisonment is a real possibility. 5 In the second case, In Re Care & Treatment of
Raborn, 6 the Court affirmed the rationale of Burns. 	It applied K.S.A. 20-348 and
concluded that, absent a statute requiring the state to do so, counties must pay the fees
of attorneys appointed by the court to represent indigent individuals in cases arising under
the Sexually Violent Predator Act.7
Our research revealed no intervening law to change the conclusion reached in Attorney
General Opinion No. 2003-4. 	Thus, we believe in instances where no statute requires
the state to pay the fees for an acting county attorney appointed by the court under K.S.A.
20-348, the county must compensate the acting county attorney. 8 	The procedure
establishing the budget for the court is set forth in K.S.A. 2015 Supp. 20-349. 	To meet
this obligation, the county has various options.
The county must have a system in place. 	It may contract for the services
of attorneys; it may continue to budget funds for payment of counsel fees,
in cooperation with the administrative judge, based upon the anticipated
number of appointments and expected time required; or it may resolve the
problem in other ways.9
To paraphrase the Court, "the responsibility for providing [a court-appointed acting county
attorney] has been left by the legislature to the county, and the obligation is thus that of
the county." 10
Based 	upon 	the 	above 	analysis, 	we 	conclude 	that 	when 	the 	board 	of 	county
commissioners appoints an acting county attorney pursuant to K.S.A. 19-723, the county
compensates such attorney from its general funds. 	We further conclude that when the
court appoints an acting county attorney pursuant to K.S.A. 19-711, the county, with the
4 242 Kan. 544 (1988).
5 Id. at 549.
6 259 Kan. 813 (1996).
7 Id. at 821.
8 Attorney General Opinion No. 2003-4.
9 Burns, 242 Kan. at 549.
10 Id.

Paul Kitzke
Page 5
cooperation of the chief judge, compensates such attorney from the funds for the
operation of the district court if the county has not adopted a different system.
Sincerely,
Derek Schmidt
Attorney General
Janet L. Arndt
Assistant Attorney General
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