Request By:
Mr. Jerome R. Baker, Jr.
Law Clerk
Jefferson County Attorney's Office
Citizens Plaza
Twenty Seventh Floor
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You refer, in your letter, to OAG 81-123, which related to accumulated leave and overtime extended to deputies of the county clerk, jailer and sheriff in counties having a population of 75,000 or more.
We concluded, on page 2 of that opinion, to which you refer, in answer to the question as to whether the Department of Finance could pay a terminated employee of one of those constitutional offices, accumulated leave time, as follows:
"We can find no statute providing accumulated leave for such employees. However, pursuant to KRS 67A.060, 67.080 and 67.083, the Urban County Council, and the Fiscal Courts in other counties coming under the application of § 106 of the Constitution and KRS 64.345, may enact reasonable ordinances providing for leave time, i.e., for accumulated leave payment upon leaving the local service and taking leave with pay while still in local service."
Your specific question reads:
"Is it your opinion that pursuant to the statutes and the constitutional section cited in OAG 81-123 an ordinance of the Jefferson County Fiscal Court providing for leave time payment is a condition precedent to such payment out of the '75% account of the affected office'?
"I am unable to read the relevant law in that manner particularly because of the use of the discretionary word 'may' rather than the use of the mandatory 'shall' in the cited statutes. Please explain."
You refer to the auxiliary "may", as used in KRS 67.080 and 67.083. KRS 67.080(1)(c) provides that the fiscal court may, inter alia, regulate and control the fiscal affairs of the county. The term "may" is defined in KRS 446.010(20) as permissive, and "shall" (subsection 29) as mandatory. However that statutory definition of "may" does not apply to KRS 67.080(1)(c), when viewed in its total context, since the courts have held that the fiscal court has almost unlimited control of the fiscal affairs of a county. The exercise of that control by fiscal court is mandatory. Pulaski County v. Richardson, 225 Ky. 556, 9 S.W.2d 523 (1928). There is no other body or person who can assume it. KRS 67.083(3) states that the fiscal court shall have the power to carry out governmental functions necessary for the operation of the county, and that it may issue ordinances and employ personnel in performing certain enumerated public functions.
It must be kept in mind that the fiscal court has a definite interest in the fees collected by the county clerk, sheriff and jailer in counties having a population of 75,000 or more, since twenty-five percent off the top of the fees go to the county or urban county government, and any unexpended balance in the 75% account (the account which finances the office operations of those constitutional officers) at the end of their term shall be paid to the affected county or urban county government. See KRS 64.350 and 64.355 (fees are property of the county).
What we are saying in OAG 81-123 is that in order to provide for payment of such employees of those officers for accumulated leave upon leaving the local service and for the employees' taking leave with pay while still in the local service, it is first necessary that the Jefferson Fiscal Court enact an appropriate ordinance to that effect. The fiscal court is not mandated to pass such an ordinance, but it may. If it does enact such an ordinance, it is necessary that the circuit court allowing for necessary office expenses of the county clerk, sheriff and jailer, pursuant to KRS 64.345, reflect such payments.