Request By:
Honorable Joseph W. Justice
Pike County Attorney
Courthouse
Pikeville, Kentucky 41501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Certain convicted criminal defendants in Pike Circuit Court have brought suits [civil rights suits] against various county officials. The Pike County Fiscal Court has authorized employment of private attorneys to defend these suits. Your workload as county attorney will not permit your defending such suits. The State Auditor has raised a question about the legality of the employment of private attorneys. Each of the attorneys are sued in their official capacities. You believe the fiscal court can legally provide for such defense. Your question: May the fiscal court legally provide for such defense.
Since these officials are sued in their official capacity it appears that a county interest is involved. The county has a direct interest in the manner in which these officials' statutory duties are performed and the concomitant impact upon the affected public. Roberts v. City of St. Louis, Mo., 242 S.W.2d 293 (1951). The courts have recognized that a county may employ counsel to represent it where its interests are concerned. Lawrence County v. Stewart, 287 Ky. 827, 155 S.W.2d 446 (1941) and cases cited the rein. In Lawrence County, above, the court wrote that "It is primarily the duty of the county attorney to represent the county where its interests are concerned, but where, in the reasonable judgment of the fiscal court, he is unable to for any reason to look after the interests of the county fully and completely the fiscal court may appoint counsel to assist him." See KRS 67.080 and 67.083. Under the assumption, the fiscal court may reimburse or indemnify an officer for financial loss [costs of litigation] suffered by him "while acting in good faith" in the discharge of his official duties. [Emphasis added]. This is not the case where the officer transcends his authority by engaging in malicious and willful wrongdoing.
Thus where the fiscal court determines that the subject officials performed their statutory duties in a bona fide or good faith manner during the period in question in the civil rights litigation, the fiscal court, in its discretion, may authorize the county attorney to defend such actions. However, where, in the reasonable judgment of the fiscal court the county attorney, considering his official workload, would be unable to look after the interests of the county fully and completely, the fiscal court may employ special counsel to assist the county attorney or to conduct, themselves, the defense of such officials. See KRS 69.210, 67.080, and 67.083.