Request By:
Ms. Patricia Collinsworth
Magoffin County Treasurer
Salyersville, Kentucky 41465
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The county attorney has requested that you sign no more checks to three different county officials since, he says, they perform no substantial services for the county.
The constitutional principle is that no tax revenues should be paid to anyone except where public services are actually rendered. See Sections 3 and 171, Kentucky Constitution.
The county treasurer holds county money subject to orders of the fiscal court. KRS 68.020(1). All checks against the county bank account must be co-signed by the county treasurer and the county judge/executive.
The county attorney is the legal advisor to the fiscal court and the several county officers. KRS 69.210(2).
Of course you are not required to co-sign any checks for claims against the county until and unless the fiscal court as a body has expressly approved such claims for proper payment out of the county treasury. We assume that the fiscal court has accepted these claims for periodic payment by way of the checks.
The court said this in Breathitt County v. Cockrell, 250 Ky. 743, 63 S.W.2d 920 (1933) 923:
"The treasurer is a mere disbursing officer without power to question the act of the fiscal court when ordering a warrant drawn on him, except when it shows on its face that it is illegal, or it or the record, required by statute to be kept by him, shows that its payment will exceed the fund levied for that year for the purpose for which it was drawn, or it is in the same manner shown that its payment will exceed the constitutional limit of the county's debts for that year, and that it was not drawn for governmental purposes."
Since the county's legal advisor has advised you that the three (3) county officials (dog warden, county auditor, and highway employee) are not delivering basic services for which they were hired, you have the right to believe that on the face of it, the checks are not drawn for county governmental purposes. Thus under these extraordinary circumstances we believe you can decline to sign the checks in following the county attorney's advice. If you were to sign them you would do so at your personal risk; and it is possible that the courts would find that you did not act in good faith if you went against the written advice of the county attorney.
If the county officials affected by such action disagree with your action of declining to sign the checks, the appropriate remedy would lie in a mandamus action against you in circuit court in which the court would determine whether or not you should sign such checks. See Breathitt County v. Cockrell, above, p. 924.
Compare Roberts v. Hickman County Fiscal Court, Ky., 481 S.W.2d 279 (1972) 283, where the court recited that the orders of the fiscal court allowing the claims and the warrants drawn pursuant to the orders [authorizing an expense allowance to the justices of the peace] were regular on their face and did not reflect that the warrants may have been issued contrary to law and without authority nor did the records kept by the county treasurer reflect any possible illegality. Further, the court noted that the "expense allowance payments" to the justices of the peace "were made by the Hickman County Treasurer upon warrants drawn in compliance with the orders of the fiscal court and upon the advice of the county attorney. " (Emphasis added). The court held that the county treasurer of Hickman County was not personally liable for any sums paid by him under the terms of the order of September 11, 1970. But here the county attorney has specifically advised you not to make any further payment in the three instances mentioned.
Under the total circumstances, it is our opinion that you would be performing your statutory duty to decline any such further payments until so ordered by the courts.