Request By:
Ms. Pruda Shay
Rowan County Treasurer
Courthouse
Morehead, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The fiscal court of each county, at its regular April term every four (4) years, beginning with 1913, is required to appoint a county treasurer for a term of four (4) years. Under the current statute in the April term of 1981 the county treasurer must be appointed to serve a four (4) year term, beginning May 1, 1981. Senate Bill 172 has recently been passed by the Senate and is now nearing a vote in the House. It amends KRS 68.010, but creates no change in the specific manner of appointment. The change in the bill is from a four (4) year term to a two (2) year term.
Your question is whether the fiscal court can appoint a county treasurer without first having a nomination of a person for that office by the county judge/executive.
It is our opinion that KRS 67.710(8) is dispositive of your question. It provides in substance that the county judge/executive shall nominate persons for appointments to boards, commissions, and designated administrative positions as the fiscal court, law or ordinance may create, subject to the approval of the fiscal court. The county treasurer is an office, for a specific term of years, created by statute [KRS 68.010]. Thus we are of the opinion that this new manner of appointments applies to the office of county treasurer. The county judge/executive must nominate a person for that office, subject to the approval of the fiscal court as a body. It is our view that KRS 67.710(7) relates generally to county employees, not county officials. The subsection refers merely to "county personnel".
Since KRS 68.010 and 67.710(8) are irreconcilable and KRS 68.010 has not yet been amended, it is our opinion that KRS 68.010 has been by the later statute, KRS 67.710(8) [Enact. Acts 1976, Ex. Sess., Ch. 20, § 3, effective January 2, 1978] impliedly amended.
The application of the doctrine of amendment by implication in this situation rests upon two elements: (1) The two statutes are irreconcilable; and (2) The later statute governs, since a legislative change in the method of accomplishing a legislative purpose [appointments] is evident. See Washburn v. Paducah Newspapers, Ky., 121 S.W.2d 911 (1938) 914, which view we are hereby following. In Washburn, above, the court stressed that the use of the doctrine of "later legislative expression", in construing conflicting statutes, arises out of the judicial reasoning that it will not be presumed that the legislature intended a useless thing. See OAG 79-352, of related interest, copy enclosed.
Assuming that the fiscal court, in passing on the nomination of a person for county treasurer, comes to a tie vote, your question is whether or not the tie vote provisions of KRS 67.040(3) apply. Subsection (3) reads:
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"(3) When there is a tie vote in the fiscal court in the selection of any officer or employe to be selected by the fiscal court, and a deadlock results and continues for fifteen (15) days or longer, the county judge/executive shall cause to be entered upon the minutes of the fiscal court an order reciting the facts as to the deadlock, and the question upon which it has occurred and exists, and thereupon, the county judge/executive shall make such appointment. "
We are of the opinion that the statute would apply, since the statute literally provides that " When there is a tie vote in the fiscal court in the selection of any officer or employe to be selected by the fiscal court . . . ." (Emphasis added). See Cook v. Fihe, Ky., 358 S.W.2d 350 (1962) 352, 353.