Request By:
Mr. John R. Cox
Rowan County Attorney
316 East Main
P.O. Box 9
Morehead, Kentucky 40351
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As the Rowan County Attorney you ask when the county judge/executive may participate in voting on the fiscal court.
It is our opinion that the county judge/executive has the right and duty to vote on all matters or questions coming before that body. The Kentucky Constitution, § 144, makes the county judge a member of the fiscal court. Being such a member he has all the powers of a member, and even the General Assembly cannot take away such membership powers as the constitution provides for the county judge. Thus the county judge has all the powers of any other member of the fiscal court, including the right to vote. He is a member of fiscal court as well as being the chairman.
The old idea or tradition [in some parts of Kentucky] that the county judge can only vote in case of a tie is strictly a myth. See
Bath County v. Daugherty, 113 Ky. 518, 68 S.W. 436 (1902) 438.
In KRS 67.040(4), the county judge breaks a tie where the selection of any officer or employe is involved. However, that special statutory provision can in no way constitutionally militate against this broad constitutional principle that the county judge is indeed a regular, full member of fiscal court, which is expressly so called for by § 144, Kentucky Constitution. In Bath County v. Daugherty, above, Judge DuRelle wrote at page 438 that since the Constitution makes the county judge a member, he has inevitably and irrevocably the full powers of a member. He said the General Assembly may give him other powers but they cannot take away those granted by the constitution.
Thus custom or tradition must give way to the constitution as interpreted by our appellate court.
We hope this opinion might lay to rest the old notion and myth that the county judge comes into the fiscal court with such severe verbal or vocal restrictions.
Finally, do not forget that in the tie vote provision, KRS 67.040(4), the statute presupposes that the county judge has voted on some officer or employe, along with the other members, the vote resulting in a tie. Then, later, under the terms of the statute, the county judge breaks the tie by naming the person to be employed.
Obviously it would be better if such legislative bodies be created with an odd number of members so that a tie vote would be impossible. But the constitution [§§ 142 and 144] so provides for even and odd numbers of members of fiscal courts.