Request By:
Mr. Ray L. Slone
Boyd County Court Clerk
Courthouse
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter raises questions about the duties of the county clerk in connection with the role of clerk of the fiscal court. Specifically you inquire as to the duties of the county clerk if the clerk continues as the clerk of the fiscal court.
Under H.B. 152, Section 9, Subsection (1) enacted in the Regular Session of 1978, and effective January 1, 1979, KRS 67.120 was amended to provide that except in Jefferson County the county clerk, "at his option", shall be clerk of the fiscal be clerk of the fiscal court. (Emphasis added). If the county clerk chooses not to be the clerk of the fiscal court, the fiscal court may select a clerk according to the provisions of subsection (2) of this section. Under H.B. 152 if the county clerk continues as clerk of the fiscal court, he, or she as the case may be, shall attend all sessions of the fiscal court and keep a full and complete record of all its proceedings, with a proper index. For his services as clerk of the fiscal court he shall receive an annual salary fixed at a reasonable amount by the fiscal court and paid in monthly installments out of the county treasury.
In connection with the meetings of the fiscal court and the minutes of such proceedings, Section 8 of H.B. 152 amends KRS 67.100 to provide that minutes of the proceedings of each meeting shall be prepared and submitted for approval at the next suceeding meeting. The present language of KRS 67.100 will thus be deleted when Section 8 of the bill becomes effective January 1, 1979. Until January 1, 1979, the county clerk as fiscal court clerk would have the duties now prescribed in KRS 67.100.
The filing of claims against the county, as provided in KRS 68.325, has been repealed by H.B. 33, enacted in the 1978 regular session, effective June 17, 1978. That statute requires all claims against the county to be filed with the clerk of the fiscal court. Thus if the county clerk continues as the clerk of the fiscal court, he (or she) will not continue his function in receiving claims as set forth in KRS 68.325.
Next you ask whether the county clerk would continue to have any financial responsibility if the county judge/executive or some other person becomes clerk of the fiscal court. Generally, there would be no financial duties except where expressly provided by statute. For example, see KRS 137.115 [county license taxes collected by county clerk] .
Under Section 9 of H.B. 152, if the county clerk chooses not to be the clerk of the fiscal court, the fiscal court may select a clerk according to the provisions of subsection (2). Such appointed clerk of the fiscal court serves at the pleasure of the fiscal court. Offices are said to be incompatible when executed by the same person when they cannot be executed with impartiality and honesty. Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126.
It is our opinion that the county judge/executive could be appointed as clerk of the fiscal court if the county clerk opts to not continue as fiscal court clerk. However, he should not be present and participate in the fiscal court meeting when he is so selected as clerk of fiscal court, nor should he be present and participate in the fiscal court meeting at which regulations affecting his duties as clerk of fiscal court are enacted. To so participate would constitute a common law incompatibility as dealt with in Hermann v. Lampe, above. Where the county clerk opts not to be clerk of fiscal court, he would still record settlements made with the county treasury [KRS 68.030].
You ask just how H.B. 33 would affect the responsibility of the county clerk if he chooses to continue as clerk of the fiscal court.
As we said above, H.B. 33 repeals KRS 68.325, relating to the filing of claims against the county. Thus the fiscal court clerk would not continue to receive and process claims against the county. Under Section 2 of H.B. 33, effective June 17, 1978, KRS 68.020 was amended to provide that all warrants for the payment of funds from the county treasury shall be cosigned by the county treasurer and the county judge/executive. Thus the present practice of the county clerk co-signing such warrants will, on and after June 17, 1978, no longer be required.
In addition H.B. 33, effective June 17, 1978, repealed KRS 68.330, 68.340 [fiscal court clerk keeps appropriation ledger] and 68.370 [quarterly statement of fiscal court clerk as to county receipts and expenditures] .
Sections 3, 4, 5, 8, 9, 10 and 13, of H.B. 33, deal with certain budgetary responsibilities of the county judge/executive. Section 9, effective June 17, 1978, amends KRS 68.360, by requiring the county treasurer to file monthly financial statements showing a list of warrants paid, etc., with the county judge/executive and other members of fiscal court. It imposes upon the county judge/executive the duty of preparing a financial statement quarterly showing county receipts and expenditures and fund transfers.
It can be seen from the above new legislation that certain financial duties will no longer [depending upon effective date] be performed by county clerks, regardless of whether they remain as clerk of fiscal court or not. The county judge/executive has been given a central executive and administrative role in county finances. Also see KRS 67.710.