Fiscal Management
Prepared and Presented By
F. Barry Wilkes
Clerk and Court Administrator
Liberty Superior, State, Juvenile and Magistrate Courts
Winter Training for Superior Court Clerks of Georgia
Savannah, Georgia
November, 1999
This training session provides participants rudimentary financial management necessary for planning day-to-day financial operations within their offices. It is not a course in bookkeeping or accounting. It is simply a guide and should not be relied in lieu of professional accounting or legal advice. Although information has been derived from accountants and financial managers, participants should use information only as a beginning point for the developments of their offices' own financial management system.
For economy, exhibits and other related information are provided as addendum to this text. References and other bibliographical information are not included but are available upon request.
Duties of Clerk of Superior Court for Accounting
Tradition and laws ascribe solely to the clerk of superior court (hereinafter, "clerk"), an elected, constitutional county officer charged with and sworn to perform specific duties required by law, managerial responsibility for internal control of the financial resources of the clerk’s office. Correspondingly, the clerk is subject to civil and criminal liability for errors, omissions or wrongdoing involving funds for which the clerk is accountable. Specific statutes, judicial decisions, and attorney general’s opinions regarding a clerk’s financial management responsibilities and duties are shown in Figure 1.
Standard accounting procedures for clerks’ offices are not mandated by statute, court rule, or otherwise. Various accounting systems have been adopted over the years. Many offices use manual systems, with the "one-write" (generally a two-column entry) system being the most predominant. Most offices, however, currently use a computer-based accounting system that integrates journals—receipts (cash) and accounts payable—with a general ledger. Together, they provide a financial reporting system.
The following should be considered when selecting the type of accounting system to use:
Delineating Financial Management Responsibilities
Employees can not be held accountable if they are not properly instructed as to their assigned duties and responsibilities. When responsibility is not clearly spelled out, it is difficult to determine who is at fault should errors, omissions, or theft-related offenses occur. Employees in such instances tend to blame the other, and it is often impossible to prove which employee is responsible. Although verbal instructions are often provided to employees, the best method for assuring that they know the proper procedures for performing their assigned tasks is to provide step-by-step, specific, written instructions. Albeit preparation of a policies and procedures for employees is a very time-consuming task, doing so may prevent employees’ misunderstanding and misinterpretation of their roles, duties and responsibilities, often contributing to errors, omissions, or malfeasance.
The starting point for development of a policies and procedures manual is to first enumerate each task employees are required to perform. It is helpful to solicit information from employees assigned specific jobs, enlisting them to help identify specific tasks they are already performing. Secondly, determine applicable statutes, rules, and accepted practices applicable to each employee’s duties. Using this information, formulate a rough-draft of job-specific duties. Circulate the draft among employees, asking them to review them and to comment on them. Cite specific statutes and related information in the manual for employees’ reification. Then state specific rules applicable to each task (the do’s and don’t’s), indicating applicable sanctions for violation of each rule (such as "violation of this provision shall result in the immediate suspension, discharge, and prosecution of employee"). (See Sanctions). Publish the manual and provide each employee with a copy. If an employee only performs limited or specific duties such as receipting, it may necessary to only provide the employee with policies and procedures applicable to receipting.
One of the most important managerial functions a clerk can perform is to ensure that personnel performing accounting functions are qualified and properly trained. Adequate compensation is also a deterrent to theft and other problems associated with disgruntled or dissatisfied employees.
Controlling Liability: Bonds, Defenses and Other Provisions
The clerk of superior court is required to execute a bond in not less than $25,000 prior to taking office and assuming his or her duties. The county governing authority may increase the bond amount, but is responsible for premiums for the clerk’s bond in either instance. The clerk may also require bond with good security of all deputy clerks appointed. O.C.G.A. § 45-9-20 authorizes the county governing authority to purchase policies of liability insurance or contracts of indemnity insuring or indemnifying elected county officers and their employees against personal liability for damages "arising out of the performance of their duties or in any way connected therewith, whether based upon negligence, violation of contract rights, or violation of civil, constitutional, common law, or other statutory rights." In lieu of insurance or indemnity, the county is required by O.C.G.A. § 45-9-21 to "undertake to defend all or specified civil, criminal, or quasi-criminal actions brought or maintained against…county…employees, or other elected…county officers, arising out of performance of their duties or in any way connected therewith…" Defenses against criminal offenses involving theft, embezzlement, or other like crime are specifically excluded, although the county may reimburse an elected officer for defense against such offenses.
Types of Funds for Which Clerk is Responsible
Governmental receipts (funds to be distributed to the county governing authority, funds established by statute, or internal court funds, such as juror payroll fund), including:
Fines, fees, court costs
Escrow (registry) funds (funds received by court in its capacity of custodian or fiscal agent or as a temporary holder pending a court action or decision). Examples are condemnation awards, cash bonds/bail, and trust accounts.
Pass-through funds (money processed almost immediately through the court for a payee named in a court order, such as restitution, child support and alimony).
In general, appropriated funds are managed by the county governing authority on behalf of constitutional officers such as the clerk of superior court. The manner and methodology for purchasing, payment for purchases, and inventory control are not prescribed by law and generally are relative to local (often times, long-standing) practices and procedures. Thus, this is a topic for discussion at another time.
Clerk’s Responsibility for Non-Appropriated Funds
To perform statutory duties under the color of his or her office, the clerk should provide leadership, management, and adequate controls. The following are functions the clerk should perform:
Controlling Money (from Intake to Deposit)
It is necessary to prescribe and, if required, to limit the forms of payment acceptable (i.e., cash, cashier’s check, money orders, credit cards, corporate check, attorney’s office check, foreign currency).
Cash is the most common form of payment. Although subject to few limitations, some courts do not accept cash by mail since payments come to deputy (mail) clerks unequipped to hand cash receipts. Cash is subject to the most loss or misappropriation and is usually subject to a number of special protective procedures: stringent receipting requirements, counting out the money in front of a payor, strict limits of over-the-counter cash with cash from external sources, and strict requirements on placing cash in a secure location. Employees should be trained and procedures should be followed to identify counterfeit currency. Modern paper currency has a small printed "thread" that runs vertically (up and down) the bill. If the thread exists, then bill is probably not counterfeit. Counterfeit money detector markers are available from various vendors for less than $5.00. The markers look like ordinary highlighters. When used, a mark is made on a bill and, if the mark turns dark, the bill is suspect and probably counterfeit.
Foreign currency is generally not accepted due to complications with valuation and exchange and because processing charges may exceed the dollar value of the check.
Personal checks generally create problems by their very nature. Checks, when compared to cash, provide much better documentation and a better audit trail.. The following are suggestions to reduce the risk of personal checks:
Credit cards have low risk and permit almost instantaneous credit to the clerk’s account, with limited or no processing cost. Clerks may enter into contracts with banks or other lending institutions for the purpose of serving as a credit card merchant and is authorized to accept credit card payments for any fee payable to the office. O.C.G.A. § 50-1-6 provides that government agencies may assess an administrative fee to credit card payments to cover fees charged by banks. For example, if a bank charges a merchant charge of .019 for each transaction, then the clerk may add that amount to credit card payor’s payments. For a civil case, a charge of .019 x $60.00 (the filing fee for a case), or $1.14, would be added, making the total assessment for filing $61.14. Although there are other costs affiliated with credit card services (such as fees for electronic point-of-sale machines or transaction transmittal slips), clerks may find that credit cards enhance services to customers and reduce errors and opportunity for employee theft common to cash and check transactions. Credit cards provide an invaluable service to the public. Some suggestions concerning credit cards:
Absolutely, under no circumstances should employees be allowed to use receipts or any other revenue of the office for loans or "I.O.U.’s" to any employee.
The reasons it is preferable to centralize intake and deposit functions are:
Barriers to centralizing Intake/Deposit Duties
Every accounting system should use pre-numbered receipts (which may be generated internally and automatically by an automated accounting system). Normally, the receipting process should include the following:
- strict adherence to numerical sequence
- explaining voided or omitted receipts and submitting copies of such receipts at end of day
- reconciliation of receipts issued with money received
- issuance of receipts to individual cashiers/deputy clerks with defined responsibilities.
- Code receipt forms to accommodate a broad variety of receipts.
- Prepare and issue a receipt for each over-the-counter payment (whether cash, check or credit card) and each payment received by mail. Absolutely require that a receipt be issued for any moneys received. More than one receipt may be required for multiple tender payments or for separate offenses or types of filing.
- Record the receipt number on each check tendered, in case the check does not clear.
- Person(s) receiving payments by mail should prepare a receipt (and, if required, should log the payments received) but should not perform daily cash balancing and deposit functions.
- When money is transmitted to a cashier/deputy clerk from a mail unit or some related court agency (e.g., sheriff or magistrate), an aggregate receipt should be issued to the agency, supplying a supporting list of individual payments received. By law, sheriffs and deputy sheriffs should be issued receipt books which are sequentially numbered. Blocks of receipts should be issued, and a log should be kept which can and should be audited by the clerk periodically.
- Commingling of receipts from multiple sources should be discouraged. Each person responsible for receipting should keep his or her receipts separate, and a method should be provided to separately identify which agent/deputy clerk created a receipt. (Automated systems can be programmed to automatically perform this function internally, using the operator’s password at log-on. Entry of initials or signatures on receipts in a manual system provides the same type of audit trail).
- Use of a "change fund" is a public convenience and reduces the incidence of error in over-the-counter functions. Such a fund should always be a set amount (e.g., $50, $100, etc.) determined by the office accounting policies and procedures. The funds should never be used to cash checks or loans to employees.
General rules for intake and deposit
A policy is required to secure cash, checks, credit card receipts and money orders. The policy should address security during office hours and after-hours. The following should be addressed:
Other suggestions concerning deposits are:
A reconciliation should be done at the close of each business day, reconciling deposits to receipts and actual moneys on hand. Monthly bank statements should be reconciled as soon as they are received. Delay in reconciliation is an invitation to trouble. The types of reconciliation that should occur in a timely fashion are: (a) receipts of each intake person with audit tapes and receipt journals (or logs); (b) total receipts from all sources with summary of receipts; (c) receipts with deposits, cash journal entries, and checkbook entries; (d) bank statements with disbursement journal, checkbooks, and deposit records; and (e) disbursement vouchers with checks issued.
The following are general rules for protecting the integrity of the disbursement process:
The balance shown on a bank statement does not equal the balance of the office’s accounting records usually. To prove accuracy of both the office’s records and the bank’s, it is necessary to reconcile the two balances. An employee who does not handle cash receipts, process checks, or maintain cash records should prepare the bank reconciliation. Alternatively, a bookkeeper responsible for processing checks and maintaining cash records may be permitted to reconcile bank statements if another employee (preferably the clerk) is designated to check the bookkeeper’s work.
Processing Aberrant Transactions
Aberrational transactions include unclaimed funds, NSF (non-sufficient funds), Un-cashed and Undistributed checks. The following are recommendations concerning such funds:
Depositories (Banking Facilities)
Careful attention should be given to selecting a bank with which the office may conduct its financial business. Because clerks’ offices are generally large depositors, banks usually will compete for their accounts. It is important to shop around to find a bank(s) that will offer the best net return and services. As previously noted, state laws governing the selection of depositories by clerks are enumerated in O.C.G.A. §§ 45-8-11 through 45-8-13.1. Procedures for selecting a bank are:
Bank services include: clearing check deposits; accepting cash deposits; and accounting for checks drawn against the account. Other services include free checks, free courier service for deposits, reconciliation of deposits and disbursements, lock boxes, credit cards, electronic wire transfers, direct deposits, cash concentration accounts with zero balance disbursement accounts, paying agents, and investment services, many of which are of no utility for courts). Bank charges should be carefully analyzed. A bank may pay a higher percentage in interest but may charge for every service offered.
The most common investments are passbook savings accounts, certificates of deposit, NOW accounts, U.S. Treasury bills, money market deposit accounts, and U.S. Agency securities.
The number of bank accounts a clerk’s office has should relate directly to the types of non-appropriated funds for which the clerk is responsible, as noted previously. In general, there should be no fewer than two bank accounts—a general account for pass-through funds that will be held no longer than thirty days and an interest-bearing account for funds that will be held longer than thirty days. If required by court order, other accounts (such as certificates of deposit or passbook savings) should be established for funds that are being held in escrow for the benefit of one or more parties (such as in a condemnation action, where money is paid into the court pending a judgment on distribution of the funds).
No funds should be deposited in a bank account that is not insured (either by state insurance coverage, FDIC coverage, or FSLIC coverage). Careful scrutiny is required to ensure that deposits do not exceed coverage, in which event banks in Georgia are required to protect deposits by putting up collateral. Insurance protection is most needed on accounts held over a period of time where balance are large and interest accrues in large amounts. Interest should always be included in the amount of collateral pledged by the bank.
A basic principle for controlling cash disbursements requires that all disbursements be made by check. An exception to this rule is made for petty cash disbursements, usually used by companies in the private sector for small payments for items such as postage, express charges, repairs, and small items of supplies. In clerks’ offices, however, the use of a petty cash fund for such purchases is strongly discouraged. There is no statutory provision for the clerk to make such purchases from public funds. Doing so may subject the clerk to civil or criminal liability. An alternative is to request the county governing authority to issue a check from appropriated funds for the clerks’ office to establish a petty cash fund.
If the clerk establishes a petty cash fund using his or her own personal funds, then purchases may be made from the fund without consequence. The clerk may be reimbursed for such purchases by submitting a voucher to the county governing authority, requesting remuneration from appropriated funds budgeted for the clerks’ office. If a check from the county governing authority is used to establish the petty cash fund, then the same procedure may be used to reimburse the fund for expenditures. Doing so will enable the county governing authority to credit the offices’ accounts payable account for purchases, providing an accurate accounting for funds expended for operations.
When the clerk provides petty cash funds, it is recommended that a check be written by the clerk to document the amount of petty cash which he or she has provided for benefit of the office. In either instance, petty cash should be locked in a box in a safe place. As each disbursement is made, the person receiving the payment should be required to sign a petty cash receipt. The receipt is placed in the petty cash box with the remaining money. The cash box should always contain petty cash receipts and cash equal to the amount of the fund. The total should remain constant. When the cash is nearly gone, the funds should be reimbursed, using the process discussed above.
When errors in making change are discovered, there are differences between the cash in the cash drawer (or register) and the record of the amount of cash received. Errors are inevitable. As a result, at the end of the day, the cash journal total will not equal actual cash. The accounting policy for the office should address how cash shortages and overages are handled (e.g., a cashier/deputy clerk may be required to personally make up the difference for shortages, or an overage may be recorded in as a credit to the to miscellaneous expenses or a daily cash sales and overage account). Every effort should be made to ascertain where the error occurred and to correct the error as expediently as possible. A cashier/deputy clerk that repeatedly has overages or shortages should be scrutinized.
O.C.G.A. § 15-5-50 provides, "No court of record in this state shall be required to refund any overpayment of court costs in an amount not exceeding $5.00 or to collect any due costs in an amount of less than $5.00 over the initial filing fee." The provision does not apply to costs arising from other sources, such as real estate and personal property fees.
The key to controlling the finances of the clerk’s office is to be aware of behavior an employee may exhibit that indicates potential illicit activity. The following are characteristics auditors have identified in employees guilty of misappropriation of funds:
These characteristics can apply to an employee at any level. Supervisors may exhibit other types of suspicious behavior, such as being resistant to a division of responsibilities or task rotation; usually has a defensive or protective attitude toward employees under their supervision; and orders employees to perform acts that are not consistent with administrative regulations.
To control the integrity of the financial process against dishonest employees, clerks and other supervisors should perform control functions, including: a) verifying receipts of each cashier at the end of the business day; b) overseeing storage of cash in safes or vaults and controlling access to vaults; c) enforcing rules and regulation on limited access to cashier areas; d) handling "over-rings" on cash registers (if applicable); and e) enforcing regulations on division of functional specialties.
Accounts that are most susceptible to theft are those that have: a) accumulations of money due to unclaimed funds or accrual of interest; b) frequent transactions; and c) disbursements to individual, as opposed to government agencies. Cash bail/bond accounts, support and restitution accounts, and escrow accounts from which refunds are made are common targets of dishonest employees. Two methods are used by dishonest employees to remove money from vulnerable accounts. The first is "lapping," a process wherein funds are taken from one account and applied to another account, the process being repeated between the accounts over a period to time so as to keep shortages from appearing.
The other method is called "kiting," when a check on one bank (X) is deposited in another bank (Y), and the amount of the check is not listed as a deduction from the balance in Bank X on the date of transfer. Usually, this occurs near the end of an accounting cycle. No book entry is made, but the check deposited in Bank Y covers the cash shortage and essentially increases the balance of cash in the bank on the books at the end of the period, facilitated because the check has not cleared against Bank X. Kiting works most effective for the theft of cash.
Annual Audits by Government Auditors
Annual audits should be conducted by government auditors or accounting firms employed by the county governing authority. Although audits are aggravating and may seem like a general nuisance or a threat, they are a critical step for increasing financial management in the clerk’s office. When an audit is conducted correctly, it should provide the clerk with information on whether financial procedures used in the office conform to statutes, rules of the court, and administrative regulations. Auditors do not always know all the pertinent legal provisions and, thus, the clerk should be prepared to brief them and give them guidance.
Audits are very useful for determining if accounting procedures adhere to standards. Clerks can use them to motivate employees to maintain standards and to ensure quality control. Auditors may uncover aberration behavior of employees, directing the clerk’s attention to high-risk areas or areas where the clerk has not noticed incipient problems. For offices using automated accounting systems, auditors may provide helpful insight as to how the system can be used more effectively.
Internal audits should be conducted as necessary but regularly by the clerk or his or her designee. When employees know that internal audits will occur, they are less likely to commit theft or to not follow established accounting procedures. Random audits are most effective. Although investigative in nature, they are a means for checking areas vulnerable to misappropriations (e.g., cash or pass-through accounts) and serve as a deterrent. Spot checks, observing employees’ daily routines, use of checklist surveys and having another employee perform an employee’s work (at the employee’s work area) during the employee’s absences (while on sick or annual leave) are also effective deterrents.
May offices currently utilize coin- or copy-card operated copying machines for convenience of customers. Coin-operated machines are subject to theft. Thus, it is critical that rigid internal controls are implemented to reduce the probability of theft. A simple procedure is to require two employees to remove and count coins from vending devices. Following tabulation, both employees should bag or wrap coins and deposit them in a sealed bag or container in a lock box or safe accessible only to the person responsible for making the next daily deposit. That employee should not be permitted to open the sealed bag or container until the currency is delivered to depository for deposit. The employees that count the currency should record the tabulated amount retrieved from the vending device and forward it to a cashier for receipting. Both employees should sign the tabulation card, attesting to the amount retrieved.
When magnetic credit cards are "sold" for photocopying purposes, customers are allowed to purchase cards in pre-paid amounts (such as, $25, $50, or $100), in the same manner as pre-paid phone cards are purchased. Card inventories should be carefully controlled, with one person responsible for the inventory. The employee should be responsible for programming and dispensing cards to customers. Another employee (a cashier) should inspect the card, validate the amount which has been allocated to the card, then receipt payment for the card. Under no circumstances should an employee be responsible for both issuance of the card and receipting payment. Customers who purchase cards should be advised in writing that, should they lose their card, that the clerk’s office will not issue a replacement card. (Note: Clerks may purchase cards and card-readers from various venders. Costs range from $.45 per card to $.55. Car-readers cost around $1,500).
The methods used by various clerks offices for compensating jurors is too diverse for discussion in this presentation. Many clerks maintain a jury expense account, which is managed by the clerk or his or her staff, providing a mechanism for expedient payment of jurors and eliminating the need for the county governing authority to perform financial functions for the clerk’s office (such as where jury scrips are issued by the clerk and actual payment to jurors is made by the county clerk). In such instances, the same principles that apply to other accounts payable are applicable disbursements for jury payroll. A division of labor affords the best internal controls. The employee that performs payroll function should not be permitted to reconcile the bank statement for the account. When jurors are paid, the payroll journal should be transmitted to the office bookkeeper or to the clerk for comparison with the actual jury list for the panel being paid. The two should be carefully examined for accuracy.
Paying jurors each day they serve by hand-delivering checks to them in the courtroom eliminates the need for mailing checks, saving postage and eliminating the probability of checks becoming unclaimed property (which requires additional clerical work).
The golden rule concerning refunds is: Do not refund any moneys to anyone without judicial authorization (by an order of the court) order or upon exacting review of all data. The financial policy should require that no refunds may be made without the clerk’s written authorization in the latter case. All refunds should be properly accounted for (as a debit on the accounts payable ledger) and should be thoroughly and accurately documented.
Employees should be required by the financial policy to provide in-depth information on receipts explaining the reason(s) why the receipt was voided. In almost every instance, documents may be attached to the voided receipt to support an explanation. Voided receipts should be retained in numerical order with valid receipts for the day. All receipts should be attached and transmitted to the office bookkeeper/clerk at the end of the day, as previously outlined above.
Precise sanctions for failure to properly account for voided receipts should be included in the office personnel policy and the financial policy.
Charge accounts (authorization, billing, and credit agreement)
Although there are no statutory provisions for doing so, many clerks permit attorneys, banks, title abstracters and other tried and true customers to charge for fees and services provided by their offices. The service eliminates the need for customers to write excessive amounts of checks throughout the month.
While customers to whom credit is extended are generally reliable, necessary safeguards should be implemented to secure payment of all moneys owed. Customers should be required to enter into a credit agreement with the clerk prior to being allowed to charge. The credit agreement should be formally executed, properly witnessed and attested. The agreement should provide the following:
Accurate accounting of sums charged is best ensured by requiring the customer to sign an acknowledgment each time a charge is made. A simple charge account form can be designed for this purpose. The form should include the date of the charge, the name of the customer or authorized representative of the customer (which should be stated in the above-referenced agreement) making the charge, a description of the source of the charge (e.g., 20 copies @ $.1.00 each), and the signature of the customer or his or her authorized representative.
The charge sheets should be maintained by an employee. At the end of each period, prompt billing should occur, providing a copy of the charge sheet and an invoice for the total amount owed. A notation should be made on the charge sheet(s) as to when the invoice was mailed, with a copy of the invoice attached thereto.
To enable cashiers to close out receipting and to complete all necessary accounting duties for which they are responsible, it is advisable to implement an early cut-off schedule for receipting funds for the day. For example, when an office is open until 5:00 p.m., ending receipting for the day at 4:00 p.m. provides employees an hour to perform accounting tasks. Funds paid after 5:00 p.m. are receipted in a manual receipting system (or on some automated systems designed to do so), to be included in the subsequent day’s financial records. Sums received after the cut-off are reconciled in the same manner as other receipts (producing a total for the hour) and retained along with the particular receipts journal in a vault until the next business day. This system enables the office to finalize all financial reporting for the day by the end of the business day.
Financial records of the clerk’s office are subject to the State Records Management Act. O.C.G.A. § 50-18-102 (a) requires that "all records created or received in the performance of duty and paid for by public funds are deemed to be public property and shall constitute a record of public acts"; (and) "(b) (that) the destruction of records shall occur only through the operation of an approved retention schedule." Specific retention schedules are available from the Department of Archives and History (a division of the Office of the Secretary of State of Georgia). Generally, the retention schedules require accounting data to be held five years from the cutoff date—i.e., from the last day of the period for which the data is generated. There are exceptions to this rule. No financial data may be destroyed if it is subject to an on-going audit. However, it is not advisable to destroy any financial data without first ascertaining the applicable retention schedule. Records that are microfilmed, digitized, or reduced to any other type of microforms may be destroyed if a security copy of the microformed data is stored off-site in a secure environment.
The clerk is required by O.C.G.A. § 36-1-7 to "make a return, under oath, to the grand juries of their respective counties on the first day of each term of the superior court. The return shall set forth a just and true statement of the amount of money belonging to the county which was received by them and the source from which the money was received, along with their expenditures, accompanied by a copy of the most recent financial statement or annual audit of the financial affairs of the county offices subject to this Code section." O.C.G.A. § 15-12-71 requires the clerk to permit the grand jury access to examine any papers, books, records, and accounts." If the clerk ‘refuses to produce any such papers, books, records, and accounts, any superior court judge of the superior court of the county, upon evidence being adduced, may enforce this Code section by mandamus or attachment as the case may require."
One of the most difficult decisions a clerk has to make is whether or not an employee should be dismissed from employment for a breach of provisions of the office’s personnel policies and procedures. Common sense dictates that, when the breach involves money, there is no room for commiseration. Whether a cashier who comes up short $5.00 deserves to be, required to make up the shortage, or to be penalized otherwise is a decision each clerk must make. The decision should be made before any breach occurs, to be included in the office personnel and financial policies. Specific, detailed sanctions should be enumerated so that employees know what will happen as a consequence of any aberrant circumstance.
Unless employees of the office have been subjected to a county civil service system as provided by O.C.G.A. § 36-1-21, they are generally considered to be "at will" employees of the clerk, owning no rights to their respective positions. In other words, they serve at the pleasure of the clerk and may be discharged from employment for any reason that does not violate their constitutional or statutory rights otherwise guaranteed under state or federal laws. A common philosophy in employee relations is to provide proper training, tools, and, whenever necessary, counseling to employees before discharging them from employment. An employee who suffers from the lack of either component may not have been afforded an opportunity to develop as a competent employee. One of the best ways to avoid having to fire an employee is to select competent, trained employees from the onset. Doing so requires the development of job descriptions in advance of hiring and systematic hiring practices.
A policy that requires employees to reimburse the clerk’s office for shortages should be promulgated in advance to requiring them to do so.
An employee that repeatedly produces cash overages or shortages should be watched keenly and should continually be audited.
Before devising policies and procedures for imposing sanctions, it is recommended that you consult with an attorney who specializes in employment law. Have the attorney review your proposed sanctions to determine if they are legally sound.
| Figure 1. Statutes, Judicial Decisions, and Attorney General’s Opinions Regarding Clerks’ of Superior Court Duties for Accounting | |
| O.C.G.A. § 15-13-1 | Clerk liable to all actions and disabilities which they incur in respect to any matter or thing relating to or concerning office |
| O.C.G.A. § 15-13-12 | A rule absolute granted against officer who has defaulted in duty constitutes a lien on officer’s property from date of rendition |
| O.C.G.A. § 15-13-13 | Money in hands of officer may be paid over to plaintiff by whose process it was raised unless claimants deposit liens with officer. |
| O.C.G.A. § 15-13-14 | Failure of officer to pay over all moneys received in cash on executions upon being required to do so subjects officer to contempt and/or fine and removal from office. |
| O.C.G.A. § 15-13-3 | If clerk fails to pay persons any money clerk may have collected by virtue of his/her office belonging to party, clerk shall be compelled to pay interest at rate of 20% per annum on sum in hands from date of demand, unless good cause is shown to contrary. |
| O.C.G.A. § 15-13-31 | Clerk and deputy clerks are required to "give a statement of fees demanded and a receipt for same to any person paying any lawful or pretended fees of office, on pain of forfeiting $10.00 for every such neglect or refusal…to be demanded in court within 12 months…" |
| O.C.G.A. § 15-13-32 | If clerk takes or demands any greater fee than provided by law or a fee for services not performed, clerk shall "forfeit $50.00, to be demanded in court" pursuant to O.C.G.A. § 15-13-31. |
| O.C.G.A. § 15-13-33 | Clerk must keep in a "conspicuous place" in office a table of office’s fees in "fair words and figures." Clerk forfeits $1.00 per day for every day he/she so neglects. Keeping the Georgia Code in office is compliance with Code Section. |
| O.C.G.A. § 15-13-34 | When any action brought against clerk pursuant to O.C.G.A. § 15-13-30 through 15-13-33 and clerk prevails, clerk is entitled to treble costs against plaintiff. |
| O.C.G.A. § 15-13-35 | Demanding excess costs against a defendant or prosecutor in a criminal case shall be guilty of a misdemeanor. |
| O.C.G.A. § 15-6-60 (2) | Clerks have authority "to receive the amounts of all costs due in the court of which they are clerks and to receive other sums whenever required to do so by law or by order of the judge, and not otherwise." |
| O.C.G.A. § 15-6-60 (4) | Clerks has authority to "demand and collect in advance their fees…" |
| O.C.G.A. § 15-6-77 (a) | Clerk of superior court "entitled to charge and collect the sums enumerated in" O.C.G.A. § 15-6-77. |
| O.C.G.A. § 15-6-77 (l) | Clerk may provide additional services for which there is no fee specified by statute in connection with operation of clerk’s office as may be requested by the public and agreed to by clerk. |
| O.C.G.A. § 15-6-81 | Clerk who fails to perform duty or to exercise authority is subject to be fined as for contempt of court. |
| O.C.G.A. § 15-6-82 | Clerk is subject to be removed from office by judge of superior court for incapacity (subject to trial by jury). |
| O.C.G.A. § 15-6-83 | If clerk receives any money on any action or judgment from their courts or otherwise and does not faithfully account for it, clerk is liable to rule as sheriffs are and clerk and surety are liable on official bond(s). |
| O.C.G.A. § 15-7-49 | Clerk required to deposit funds paid into court registry in interest-bearing account and to remit interest earned to Georgia Indigent Defense Council pursuant to O.C.G.A. § 15-6-76.1 (c) through (g). |
| O.C.G.A. § 15-13-30 | Clerk can not charge state for person charged unless otherwise expressly declared by law or unless "the nature of the fees is such that they must necessarily be so paid by state." |
| O.C.G.A. § 15-13-31 | Clerk, deputy clerk, or clerk’s agent shall, when required, give a statement of fees demanded for same of any person paying any lawful or pretended fees of office, "on pain of forfeiting $10.00 for every such neglect or refusal, to be demanded in court within 12 months and recovered by the person paying the fees and making the demand." |
| O.C.G.A. § 15-13-32 | If clerk takes or demands any greater fee than is lawful or a fee for services not performed, the clerk "shall forfeit $50.00, to be demanded in court and recovered as prescribed in Code Section 15-13-31." |
| O.C.G.A. § 15-13-33 | Clerk must "constantly keep in a conspicuous place in his office…a table of his fees in fair words and figures." The clerk shall forfeit $1.00 per day for every day he/she neglects to do so, to be recovered on action of informer. Keeping the O.C.G.A. in office or place where clerk usually executes business thereof shall "be held and construed to have complied with the requirements of this Code section." |
| O.C.G.A. § 16-10-1 | Any public officer who willfully and intentionally violates the terms of his or her oath as prescribed by law, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years. |
| O.C.G.A. § 16-8-2 | Theft by taking is unlawfully taking or, being in lawful possession thereof, unlawfully appropriating any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated. |
| O.C.G.A. § 16-8-4 | Theft by conversion applies to a public officer or employee of a government who fails to pay on an account, upon lawful demand, from the funds or property of another held by him, the officer presumed to intend to convert the funds or property to his own use. |
| O.C.G.A. § 45-11-4 | Clerk may be indicted for "willfully and knowingly" demanding more cost than entitled to by lay in the administration and under color of office. |
| O.C.G.A. § 45-11-5 (a) and (b) | (a) Extortion is an unlawful taking by a public official, under color of office, from any person of any money or thing of value that is not due him/her or more than is due to him/her. (b) Any public officer who shall "by himself, his deputy, his agent, or other person employed by him be guilty of extortion in demanding or receiving other and greater fees than by law are allowed him shall be guilty of a misdemeanor and shall be dismissed from office." |
| O.C.G.A. § 45-3-1 (3) | Clerk is required to take oath that he or she is "not the holder of any unaccounted for public money due this state." |
| O.C.G.A. § 45-3-7 | Deputy clerks shall take same oaths as clerk and oaths shall be filed and entered on minutes of office of clerk of superior court. Does not apply to deputy who "may be employed in particular cases only." |
| O.C.G.A. § 45-3-8 | Clerk and deputy clerk are required to take and file oaths prescribed in Code section 45-3-1 before entering upon duties of their office without first taking and filing oaths in proper office. |
| O.C.G.A. § 45-8-1 | Clerk is a "collecting officer" who is "either generally or specifically elected…in whole or in part, to collect any tax, revenue, or other moneys on behalf of the state or any of its political subdivisions or on behalf of any board, commission, bureau or department thereof. |
| O.C.G.A. § 45-8-2 | As "collecting officer" by definition in O.C.G.A. § 45-8-1, clerk is required to give bond on or before entering on the duties of the office and faithfully to account for all moneys coming into their hands…" |
| 1970 Op. Attorney General. No. U70-85 | Records of amounts due Peace Officers Annuity and Benefit Fund are normally be kept by clerk of court. |
| Cargile v. State, 67 Ga. App. 610 | O.C.G.A. § 45-11-4 requires faithfulness to public trust upon part of clerk and other public officials named therein. To secure conduct, clerk is required to perform acts required by law, but is equally forbidden from committing acts under color of office not authorized by law. |
| Ga. Const. 1983, Art. II, Para. III and O.C.G.A. 45-2-1 | Public officer disqualified from holding office for holding unaccounted-for public money due state. |
| McNeil v. Smith, 55 Ga. 313 (1875) | Clerk’s liability does not attach for "breach of duty as administrator." |
| Puckett v. Chambers, 66 Ga. App. 513, affirmed sub. nom. Puckett. v. Walker, 194 Ga. 401 | Clerk is statutory receiver of and occupies a position similar to a receiver in equity of deposits of money by litigants in pending cases, and duties are to hold money for the court to those entitled thereto, possession being that of a bailee for reward. |
| Puckett v. Walker, 194 Ga. 401 | Clerk does not acquire an individual interest in receipts from parties, does not have a right to speculate on by putting money out at interest or to substitute for the court a different depository, thereby taking a risk of a loss. |
| Puckett v. Walker, 194 Ga. 401 | Where clerk is solely compensated by salary payable by county, "inhibited to receive of his own use any fees or perquisites" of office. |
| State v. Greene, 171 Ga. App. 329 (1984) | Indictment of county clerk for violating oath for failing to collect costs, fines, and forfeitures. |
| Whitsett v. Hester-Bowman Enters., Inc., 94 Ga. App. 78 (1956) | Duty of receiving all costs due in court are charged to superior court clerks. |
| Zellner v. Ham, 735 F. Supp. 1052 (M.D. Ga. 1990) | O.C.G.A. § 15-6-59 makes deputy clerk the "alter ego" of the clerk. |
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