Request By:
Mr. Drewie Muncy
Martin County Attorney
Courthouse
Box 411
Inez, Kentucky 41224
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On October 23, 1980, at a special fiscal court meeting, neither the county clerk nor his deputy were notified as to the meeting; and the fiscal court authorized the county planner to transcribe the minutes.
Your question reads:
"May the fiscal court designate one other than the county court clerk or his deputy to transcribe the minutes of the fiscal court when the county court clerk's office has not been notified and the county judge/executive has not declared an emergency to exist?"
We assume that the members of the fiscal court and the affected newspaper and other news media were given written notice of the special meeting, as required by KRS 61.825, since no emergency was involved, as described in subsection (2) of that statute. The statute makes no mention of giving notice to the county clerk or his deputy or the clerk of fiscal court.
Where the county clerk is clerk of the fiscal court, as is the case in Martin County, he or his deputy is required to attend all sessions, regular or special, of fiscal court "and keep a full and complete record of all of its proceedings, with a proper index." (Emphasis added). The legislature has made provisions for the usual keeping of such fiscal court records, including the minutes of the proceedings of each meeting, by the fiscal court clerk or his deputy. KRS 67.120 and 67.100. The latter statute requires that minutes of the proceedings of each meeting be prepared and submitted for approval at the next succeeding meeting.
Under KRS 67.120 and 67.100, the usual procedure is that the clerk of the fiscal court (who, in most instances, would be the county clerk) is required to prepare the minutes of the fiscal court meeting. However, where the clerk of fiscal court (in your county, the county clerk) or his deputy is not present for any reason, it is our opinion that the fiscal court has the authority to designate some other person, capable of preparing such minutes, to prepare the minutes of the fiscal court meeting. KRS 67.100, prior to the 1978 amendment (Ch. 118, § 8), provided that prior to each adjournment, the minutes of the proceedings of fiscal court shall be publicly read by the clerk of the court, and corrected if necessary, and shall be signed by the presiding judge, etc. The 1978 amendment, however, eliminates any reference to the fiscal court clerk. The statute contains no express mention as to who is to prepare the minutes. As we said earlier, KRS 61.825 does not require that notice of a special meeting be given to the clerk of the fiscal court. If the fiscal court clerk's presence were legislatively deemed to be a sine qua non, the legislature undoubtedly would have inserted in KRS 61.825 a statement that notice of a special meeting must be given to the fiscal court clerk. In addition, the preparation of the minutes is a purely ministerial function which may be properly delegated to some person other than the clerk of fiscal court. See KRS 67.080 and 67.083. Under the statutes, it would be illogical and impractical to say that the legality of a special meeting could hinge on the absence of the fiscal court clerk. The appellate court has written that in interpreting statutes, the courts should adopt a practical construction.
Cawood v. Coleman, 294 Ky. 858, 172 S.W.2d 548 (1943). Finally, the fiscal court itself, not the clerk of that body, is directly responsible for the proper preparation and acceptance of the minutes of the meeting under KRS 67.100.
During the subject meeting the fiscal court voted on a motion to spend county money to blacktop approximately two miles of a state maintained road located in the county.
Your question:
"Does the motion fail to carry for the reason that the abstention is to be counted with the majority and since '4' is a majority of the fiscal court the motion fails and is a nullity?"
The fiscal court is composed of five (5) magistrates and the county judge/executive, all of them being present. Two magistrates voted "yes", and two magistrates voted "no". The county judge/executive voted "yes", and he declared the motion carried. Actually there was a total of 3 "yes" votes and one magistrate abstained.
In
Lawrence County v. Lawrence Fiscal Court, 191 Ky. 45, 229 S.W. 139 (1921) 141, this was written as to the rule relating to the abstention of members of fiscal court on a vote:
"Under these authorities we gather the rule to be that when the requisite number of the body to form a quorum is present and has an opportunity to and does vote upon a proposition, those members who are present and do not vote will be considered as acquiescing with the majority, and their silence construed as they voting with the majority."
The above rule was amplified to point out that the word "majority" as used in the rule does not mean a numerical majority of the entire elected membership of the board, "but means a majority of those present and voting. " (Emphasis added).
Payne v. Petrie; Ky., 419 S.W.2d 761 (1967) 763. Since 3 voted "yes" and 2 voted "no" in your situation, there was a majority of the 5 present and voting. The abstaining magistrate would be counted with the majority. The motion, therefore, passed.
Since the motion passed, it is not necessary to deal with your last question relating to money expended if the motion did not carry. In addition, where the majority of those present and voting vote "yes", the motion carries, regardless of whether or not the abstention is counted with the majority.