Request By:
Mr. Henry Hinton
Allen County Magistrate
Route 6
Scottsville, Kentucky 42164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking what constitutes "neglect of office, incompetency, or dishonesty" under KRS 68.010(3).
KRS 68.010(3) provides:
"The fiscal court may remove the county treasurer at any time for neglect of duty, incompetency or dishonesty. "
The term and words with which you are concerned are not defined in the statute. However, "The words of the statute are to be given their usual, ordinary and everyday meaning." See
Gateway Construction Company v. Wallbaum, Ky., 356 S.W.2d 247, 249 (1962) and
Thompson v. Bracken County, Ky., 294 S.W.2d 943, 946 (1956).
In
Holliday v. Fields, 210 Ky. 179, 275 S.W. 642, 646 (1925), the Court said that the word "neglect" is most frequently used in the sense of a failure to do or to act and this is especially true when it is used in connection with other words implying action. In Black's Law Dictionary, 4th Ed. (p. 1184), "neglect" is defined as follows:
"May mean to omit, fail, or forbear to do a thing that can be done, or that is required to be done, but it may also import an absence of care or attention in the doing or omission of a given act."
In
State ex rel. Hardie v. Coleman, Florida, 155 So. 129, 132 (1934), the Court said:
"Neglect of duty has reference to the neglect or failure on the part of a public officer to do and perform some duty or duties laid on him as such by virtue of his office or which is required of him by law. It is not material whether the neglect be willful, through malice, ignorance, or oversight. When such neglect is grave and the frequency of it is such as to endanger or threaten the public welfare it is gross."
The word "incompetency" is defined in Black's Law Dictionary, 4th Ed. (p. 906) as "Lack of ability, legal qualification, or fitness to discharge the required duty. In
Dallas v. Granite City Steel Company, Illinois, 211 N.W.2d 907 (1965), the Court referred to "incompetency" as lacking specific qualifications to perform a legal function or duty or exercise a legal right, often used without implication of any kind with respect to personal fitness.
The Court, in County Board of Education of Clarke County v. Oliver, Alabama, 116 So.2d 566, 567 (1959), said in part:
"'Incompetency' is a relative term which may be employed as meaning disqualification, inability or incapacity. It can refer to lack of legal qualifications or fitness to discharge the required duty. It may be employed to show want of physical or intellectual or moral fitness. "
The word "dishonesty" is defined in Black's Law Dictionary, 4th Ed. (p. 554) as "Disposition to lie, cheat or defraud; untrustworthiness; lack of integrity. " In Commonwealth v. Smith, lack of integrity. " In
Commonwealth v. Smith, 242 Ky. 365, 46 S.W.2d 474, 478 (1932), the Court said that fraud is synonymous with bad faith, dishonesty or overreaching. The word "dishonesty" includes any acts which show a want of integrity or a breach of trust,
Waite v. Standard Accident Insurance Company, Montana, 315 P.2d 989 (1957). In
Tucker v. Lower, Kansas, 434 P.2d 320 (1967), "dishonesty" was defined as a lack of honesty, probity, or integrity in principle; lack of fairness and straight forwardness; disposition to defraud, deceive or betray.
We have set forth above what we believe to be the usual, ordinary and everyday meaning of "neglect of duty, " "incompetency" and "dishonesty" as those words are used in KRS 68.010(3). In the absence of a specific factual situation involving the removal of a county treasurer under the terms of the statute, we can only set forth these general definitions. A thorough knowledge of the specific factual situation involved would be absolutely critical in applying these general definitions.