Request By:
Mr. James S. Secrest
Allen County Attorney
Box 35
210 W. Main Street
Scottsville, Kentucky 42164
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The county clerk is Clerk of the Allen Fiscal Court. He requested you, in his absence from Scottsville, to "take the minutes" of the fiscal court of August 11, 1981. You took down the minutes, which principally involved fiscal court deliberations and action taken in regard to the closing of an old roadway in Allen County. By "taking the minutes" you explained that you simply wrote out what transpired at the meeting in longhand on a yellow pad. After the meeting adjourned, you took your notes to the county clerk's office and one of his deputies typed the minutes from your notes. The minutes were approved as written by the fiscal court at its next succeeding meeting, i.e., on August 25, 1981. As county attorney you have been advising the fiscal court as to the legal aspects of the proposed road closing.
Mr. Morgan, who questions your authority to take the minutes of fiscal court, apparently wants the road to be opened as a county road. However, you have advised fiscal court that if the road is a "dead end" road and does not serve the public, the road should be closed.
You request a formal opinion of this office as to the legality of the county attorney's "taking down" the minutes of a fiscal court meeting when requested to do so by the county clerk or fiscal court.
You feel that implicit in KRS 69.210 is the requirement that the county attorney prepare all ordinances, orders and resolutions of the fiscal court. As general procedure, the minutes of fiscal court meetings reflect motions and resolutions made and voted on and reference to any ordinances or orders introduced for passage.
KRS 69.210(1) and (3) read:
"(1) The county attorney shall attend the fiscal court and conduct all business in that court touching the rights or interests of the county, and when so directed by the fiscal court he shall institute, defend and conduct all civil actions in which the county is interested before any of the courts of the Commonwealth.
* * *
"(3) The county attorney shall give legal advice to the fiscal court and the several county officers in all matters concerning any county business within their jurisdiction. He shall oppose all unjust or illegally presented claims."
Prior to the 1978 amendment to KRS 67.100, that statute read:
"(1) The fiscal court is a court of record.
"(2) Before each adjournment, the minutes of the proceedings of the fiscal court shall be publicly read by the clerk of the court, and corrected if necessary, and shall be signed by the presiding judge, with the approval of the justices of the peace or county commissioners who were present when the court was held.
"(3) No minute or order of the fiscal court shall be valid until read and signed as required by subsection (2), nor unless the record shows by whom the court was held."
Thus the statute required the presence of either the county clerk or an authorized deputy. Those sections were held to be mandatory. Louisville & N.R. Co. v. Bullitt, 247 Ky. 489, 57 S.W.2d 506 (1933) 507.
KRS 67.100, as amended in 1978 (Ch. 118, § 8, eff. Jan. 1, 1979), reads:
"(1) The fiscal court is a court of record. Minutes of the proceedings of each meeting shall be prepared and submitted for approval at the next succeeding meeting.
"(2) Every official action of the fiscal court shall be made a part of the permanent records of the county.
"(3) The county budget ordinance shall be indexed so that each index list covers one (1) fiscal year and shall be listed in such index no later than thirty (30) days after passage and any required approval.
"(4) County ordinances other than the county budget ordinance shall be indexed in a composite index of all county ordinances in force, and shall be listed in the index no later than thirty (30) days after passage and any required approval.
"(5) A copy of all records required by this section shall be kept in the office of the county clerk. "
The minutes in question reflect various motions and actions taken by the fiscal court upon a carrying vote. On its face the record reflects adherence to the requirements of KRS 67.100. Under subsection (2) of that statute every official action of the fiscal court shall be made a part of the permanent records of the county. That has been done. The minutes are required to be prepared and submitted for approval at the next succeeding meeting. This was done, as we said earlier. They were adopted as read. The county clerk's certificate indicates the minutes of August 11, 1981, are a true and correct copy of "Fiscal Court Orders" as the same appears of record in Order Book 10, pages 666-668.
It is highly significant that KRS 67.100, as amended in 1978, is silent as to the presence of the clerk of fiscal court or his deputy. The statute is also silent as to precisely who will prepare the minutes. Under the express language of KRS 67.100, it is our opinion that the minutes of a fiscal court meeting may be taken by the county attorney where suggested by the county clerk and found acceptable to the fiscal court. Here the county clerk asked you to take the minutes for him, and it was obviously acceptable to the fiscal court. You have done this many times at the request of the county clerk or fiscal court. The members of fiscal court present later approved the minutes as read. Thus there is no question as to the accuracy of those minutes. The fiscal court is a court of record. It speaks by its records. As to the minutes of August 11, 1981, the fiscal court has spoken; and the record cannot now be nullified nor modified by extrinsic testimony. Morgan v. Champion, 150 Ky. 396, 150 S.W. 517 (1912) 519.
It historically seems obvious that the General Assembly, by its 1978 amendment of KRS 67.100, desired to put the taking of the minutes of a fiscal court meeting on a flexible basis, since under the statute prior to the amendment the presence of the clerk or deputy was mandatory. Such presence could conceivably affect the time table of holding meetings, depending upon the availability of the clerk or deputy. The courts are bound by the plain meaning of language used in a statute. H. O. Hurley v. Martin, 267 Ky. 182, 101 S. W.2d 657 (1937).
In addition, we see no conflict of interest in your role as the legal adviser to the county under KRS 69.210 and your faithful recording of the minutes of the fiscal court meeting. In fact we see a harmonius blend of purpose, since in both instances (your general legal duties and this specific task performed for the county) you were serving the same master, i.e., the people of Allen County. This result is buttressed by the fact that KRS 69.210 requires the county attorney to attend fiscal court and "conduct all business in that court touching the rights or interests of the county . . ." That language is broad enough to encompass the taking of the minutes. The county attorney has the duty concerning the proper preparation of orders, resolutions and ordinances of fiscal court, pursuant to KRS 69.210. The minutes reflect such items.