Request By:
Mr. Bill Davis
Boyd County Commissioner
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question is whether the Boyd Fiscal Court may now arrange with a nonprofit organization to provide defenders under KRS 31.170(2) after it has established an office of public defender under KRS 31.170(1). The reason for the proposed switch in systems is because of the financial impact of RCr 8.30 on the county treasury. The rule prohibits an attorney from defending two or more defendants accused of the same offense or of offenses arising out of the same incident or series of incidents. The office of public defender was previously established by county ordinance under KRS 31.170(1). Now the fiscal court would like to repeal that ordinance and provide defenders under KRS 31.170(2) [fiscal court pays the nonprofit organization to provide defenders]. The presently appointed public defender has about 3 years remaining in his term. The question is: May the fiscal court now elect to go under the option of providing public defenders through a nonprofit organization. The answer is "yes".
The appointment of a public defender is statutory and legislative in nature. The arranging for defenders through a nonprofit organization is contractual in character. The statute imposes no special restrictions as to the discontinuance of operating under one of the two options or methods. However, the constitution imposes a restriction on the contractual method. Section 19 of the Kentucky Constitution and Article 1, Section 10, of the Federal Constitution prohibit the imparing of the obligation of contract.
But here the proposed change in systems is from the statutory or legislative option. In addition, we must bear in mind that the legislature has given fiscal courts two methods or options of attacking this defender problem.
The Kentucky law is well settled that an office created by the legislature may be abolished by the legislature. Here the fiscal court would be merely acting legislatively to implement an act of the General Assembly [KRS 31.170]. Payne v. Davis, Ky., 254 S.W.2d 710 (1953) 712. Under Payne, above, when a statutory office is legally abolished, the incumbent loses such right as he has in the office. Of course neither the General Assembly nor a fiscal court may abolish a constitutional office or reduce the term of such office. Black v. Sutton, 301 Ky. 247, 191 S.W.2d 407 (1945). The principle is that the power to create gives power to abolish, unless restrained by law. See McQuillin, Municipal Corporations, § 12.118, p. 496.
We are of the opinion, for the above reasons and authorities, that the fiscal court may now abolish the office of public defender and repeal subject ordinance and contract with a nonprofit organization to provide defender services pursuant to KRS 31.170(2), subject to proper budgeting procedure (KRS Ch. 68).
You ask whether fiscal court can now reduce the number of deputy county clerks. The answer is "no". KRS 64.530 provides for increasing salaries of such deputies, but no provision is made for changing the number of deputy positions during term. See Funk v. Milliken, Ky., 317 S.W.2d 499 (1958).