Request By:
Mr. Christopher C. Slone
Magistrate District #3
Route #3, Box 75
Mousie, Kentucky 41839
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
This is in response to your questions.
Question No. 1:
"Does the county judge/executive have to have a deputy judge executive during his term of office?"
KRS 67.711 reads:
"Notwithstanding the provisions of KRS 67.710(7) the county judge/executive of any county may appoint a deputy who shall serve at his pleasure. Such deputy may exercise all administrative powers, duties, and responsibilities of that office, and may assume such other responsibilities as shall be prescribed in the administrative code of the county, except that the deputy county judge/executive shall not act for the county judge/executive as a member or presiding officer of the fiscal court."
Under KRS 67.711 the county judge/executive may appoint a deputy. If he does, the fiscal court is required to fund the salary of the deputy out of money available in the county budget, pursuant to KRS Chapter 68. The executive and administrative duties of the county judge/executive obviously would require a deputy, who can perform any function the county judge/executive can, except for sitting on the fiscal court or presiding over the fiscal court meetings. Note that the appointment can be made by the county judge/executive, without the approval of the fiscal court, since the statute expressly contains the language "notwithstanding the provisions of KRS 67.710(7)." The latter reference is to a general method of appointing county personnel.
Question No. 2:
"Does the fiscal court have the authority to do away with the expense account of the elected constable's? In other words does the fiscal court have to allow an expense account? "
KRS 64.710 prohibits the fiscal court from providing a lump sum expense account for any officer where there is no statute or specific appropriation by the General Assembly. We are not aware of any such statute or appropriation. The fiscal court has the authority, under KRS 67.080 and 64.530, to authorize the payment out of the county treasury for necessary office equipment for constables, subject to its being a properly budgeted item, pursuant to KRS Chapter 68. Barkley v. Gatewood, 285 Ky. 179, 147 S.W.2d 373 (1941). Of course such county expenditures for the constable's office equipment would be legal only where the duly elected constable is actually filling the office, i.e., devoting his full time (a full work week) to that office as the law envisions. There is no law requiring that a constable's office expenses be paid by the county.
Question No. 3:
"If any citizen that was qualified to operate machinery and they wanted to donate some time to working on the county road does the county fiscal court have the right to let them work? If so how does the fiscal court go about protecting the county in case there is an accident?"
There is nothing in the statutes precluding the acceptance of voluntary and donated work for the county. In the case of accident, the county would be subject to sovereign immunity, i.e., the county would not be liable. Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967). However, the fiscal court members, including the county judge/executive, are not immune from tort liability. Therefore, before any voluntary work is permitted, a voluntary waiver of the right to recover from the individual fiscal court members should be obtained from the volunteers.
Question No. 4:
"Would it be legal for a magistrate or judge executive to work on the county road without extra pay? With the permission of the county judge/executive would it be legal for a magistrate to supervise road work? Also work with the men or women."
The county judge/executive and other members of fiscal court may work on county roads for free, but not for money. They cannot work for money, since the only valid claim they have against the county treasury relates to their salaries and any office expenses permitted by law. KRS 61.210 and 61.220 prohibit the members of fiscal court from being financially interested in county road improvements or other claims against the county. The case of Trimble County v. Moore, Ky., 275 S.W.2d 50 (1955), expressly held that the justices of the peace on fiscal court could not allow certain claims to themselves for work done for the county.
It would not be legal for the magistrates to supervise road work or other county work, with or without pay. The statutes do not permit them to engage in such administrative work. See the basic powers of fiscal court in KRS 67.080 and 67.083. They can only do what the statutes direct or permit.