Request By:
Mr. Joe W. Johnson
Fulton County Attorney
207 Commercial Avenue
P.O. Box 433
Fulton, Kentucky 42041
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Fulton County Fiscal Court is comprised of four magistrates and the county judge/executive. It is time to hire the county road supervisor as the present two year term has expired. See KRS 179.020(7). The current road supervisor wishes to be rehired. Two magistrates and the county judge/executive want him rehired. Two other magistrates would vote "no".
Question No. 1:
"When the question of hiring comes before the fiscal court, can the county judge/executive vote, thus avoiding the problem of a tie? "
The county judge/executive nominates the road supervisor, and if the fiscal court as a body by majority vote votes their consent, then the person the county judge/executive nominates may be so appointed to that position by the county judge/executive. KRS 179.020(1). When the fiscal court votes on the county judge/executive's nominee, the county judge/executive has the right to vote even on his own nominee. This is because the county judge/executive has all the powers of any other member of the fiscal court, including the right to vote on all matters coming before that body. See KRS 67.040 and
Bath County v. Daugherty, 113 Ky. 518, 68 S.W. 436 (1902). In this situation the consent to the county judge/executive's nominee would carry, since the vote would be three to two. See KRS 67.710(7).
Your second question, dealing with the assumption that the county judge/executive cannot initially vote, is academic under the above analysis.
Suppose that only three of the magistrates were present, the absent magistrate favoring the county judge/executive's nominee. Then with the county judge/executive's vote, you would have a two against two tie vote. Then under KRS 67.040(4), if the deadlock persisted 15 days, the county judge/executive could break the tie by naming his nominee for the job.