Request By:
Hon. George R. Hall
Boyd County Judge/Executive
P.O. Box 481
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
KRS 67.120 deals with the appointment of a clerk of the fiscal court.
Question No. 1:
"Is the fiscal court clerk hired as any other county employee? With the county judge the only one making the recommendation."
Except in counties containing a city of the first class, the county clerk, at his opinion, is automatically, upon the county clerk's exercising that option, the clerk of the fiscal court. Where the county clerk wants to be the clerk of the fiscal court, all that is required is simply the county clerk's filing with the fiscal court a written declaration that the county clerk is exercising the option to be clerk of the fiscal court. At that point the county clerk becomes, under the statute, the clerk of the fiscal court without any further action on the part of the fiscal court or the county judge/executive, as such, as relates to the office status of clerk of fiscal court. Of course, the fiscal court, regardless of who is clerk of the fiscal court, must establish a salary for the clerk of the fiscal court.
Now suppose that a county clerk, in a county not containing a first class city, decides not to be clerk of the fiscal court. Then the question arises as to who makes that appointment?
KRS 67.120(1) provides in part that "If the county clerk chooses not to be clerk of the fiscal court, the fiscal court may select a clerk according to the provisions of subsection (2) of this section."
Subsection (2) of KRS 67.120 reads in part:
"The fiscal court of each county in this Commonwealth in which there is located a city of the first class shall have a clerk, and may have a deputy clerk and may employ a stenographer, all of whom shall attend its sessions and keep a full and correct record of all the proceedings of the court, together with a complete index, and who in addition shall perform such duties as may be required of them by the court. The fiscal court shall appoint a clerk who shall serve at the pleasure of the fiscal court."
The 1942 amendment version of KRS 67.120 provided that the county clerk shall be the clerk of the fiscal court, except in counties having a first class city. There was no option. In the latter county the fiscal court was required to appoint a clerk of fiscal court.
In 1976 (Acts of 1976, Ex. Sess., Ch. 20, § 3), KRS 67.710(8) was enacted whereby the county judge/executive, with the approval of the fiscal court, was authorized to appoint various county officers, including the clerk of fiscal court. The latter conclusion is correct, since KRS 67.710(8) was the later expression of legislative will at that point in time.
Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400.
In 1978 (Acts of 1978, Ch. 118, § 9), KRS 67.120 was further amended to add that the county clerk "at his option", shall be clerk of the fiscal court, except in counties containing a first class city. (Emphasis added). It also added this: "If the county clerk chooses not to be the clerk of the fiscal court, the fiscal court may select a clerk according to the provisions of subsection (2) of this section." (Emphasis added). Subsection (2) was republished as relates to this provision: "The fiscal court shall appoint a clerk. . . ." (Emphasis added).
The 1978 amendment to KRS 67.120 makes it clear that the fiscal court, in counties not containing a first class city, appoints the clerk of the fiscal court, where the county clerk decides not to be clerk of fiscal court. Such provision is wholly irreconcilable with KRS 67.710(8) [county judge/executive appoints the clerk of fiscal court, with the approval of fiscal court].
Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949), is a leading case on the principle that where two statutes on any subject are in conflict and cannot be reconciled, the later statute controls. Such a doctrine carries with it the concept of implied repeal of the earlier and conflicting statute.
For the foregoing reason, it is our opinion that where the county clerk in your county decides not to be clerk of the fiscal court, the fiscal court as a body must appoint the clerk of the fiscal court, pursuant to KRS 67.120, without the intervention of the county judge/executive's appointing power under KRS 67.710(8).
Since your second question relates to your use of KRS 67.710(8) in the appointment of a clerk of the fiscal court, and in view of the above conclusion under question no. 1, the second question is moot.
Where the fiscal court appoints the clerk of fiscal court, as described above, any member of the fiscal court may suggest a person for such appointment, the name to be voted on by the fiscal court as a body.
See OAG 81-151, dealing with the appointment of a county treasurer, but which involves this same principle of the last or later expression of legislative will as controlling in the case of irreconcilable statutes.
To the extent that your second question may relate to what happens when a motion is not seconded, if no member seconds a motion, the chair must be sure that all have heard it before proceeding to other business. In such situation, the chair usually asks: "Is there a second to the motion?" If there is still no second, the chair says, "The motion is not seconded. " Then he says "The next item of business is . . . .", or "Is there any further business?" See Robert's Rules of Order (new rev.) p.p. 28, 29.