Request By:
Mr. Jesse Allen Ross
Boyd County Commissioner
P.O. Box 423
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Boyd County Fiscal Court adopted an ordinance this year which provides in part as follows:
"The District Public Defender will appoint with prior approval and consent of the Fiscal Court as many assistants, clerks, investigators, stenographers and other persons as are necessary to carry out the responsibilities of his office under Chapter 31 of Kentucky Revised Statutes. A person employed under this section serves at the pleasure of the County or District Public Defender."
Under this ordinance you ask whether a member of the fiscal court can nominate an investigator and, upon such nomination, proceed to fill the vacancy which will commence October 1, 1978.
We assume that the Fiscal Court of Boyd County has in effect established an office for public advocacy under KRS 31. 170. Under subsection (1)(b) the fiscal court shall prescribe the qualification of the district public advocate, his term of office which may not be more than four (4) years and fix the rate of annual compensation for him and his assistants.
By reasonable implication the fiscal court has the authority by ordinance to establish the necessary positions, that is clerks, investigators, stenographers, as are necessary to carry out responsibilities of the office for public advocacy. However, once a particular position is authorized and created by the fiscal court, then under KRS 31.170 the district public advocate can fill the appointment, except that the fiscal court appoints the assistant district public advocates.
It is true that KRS 67.710(7) provides that the county judge/executive can appoint county personnel, subject to the approval of the fiscal court, unless otherwise provided by state law. As we said, the reasonable implication under KRS 31.170 is that, except for assistant district public advocates, the appointment of staff personnel is to be made by the district public advocate. Thus it is our opinion that the procedure envisioned in KRS 31.170 would govern over the general procedure established in KRS 67.710(7). The Court of Appeals of Kentucky, in City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969), held that legislation, being specific and detailed in nature, was intended to take precedence over the pertinent general statutory provisions. There the court wrote that "as between legislation of a broad and general nature on the one hand, and legislation dealing minutely with a specific matter on the other hand - the specific shall prevail over the general."
In summary, if the fiscal court by ordinance has established the position of investigator for the staff of the district public advocate, then that position can be filled by the district public advocate without the consent of the fiscal court. Thus the position cannot be filled by the nomination by a member of the fiscal court and the subsequent acceptance of the nomination by the fiscal court as a body. KRS 31.170 provides that the fiscal court can only appoint the district public advocate and any number of assistant public advocates necessary for the program. If the legislature had intended for the fiscal court as a body to appoint such positions as investigators and other staff members, other than the assistant public advocates, it could clearly have said so. The reason that KRS 67.710(7) does not apply, in connection with the general procedure of nomination by the county judge/executive and consent and acceptance by the fiscal court as a body, is the fact that KRS 31.170 governs and conforms to the phrase in subsection (7) "unless otherwise provided by state law. " KRS 31.170 is a specific subject matter.