Request By:
Mr. Edward J. Rudd
Bracken County Attorney
Brooksville, Kentucky 41004
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise questions about county attorneys:
1. May an assistant county attorney be appointed who does not reside in Bracken County?
2. If not, then may the "pro tem" appointment under KRS 69.060 be a continuing one, or must I request the court to appoint a pro tem prosecutor each time I am absent?
A. Wwould the pro tem appointment have any power to carry out the duties of the office other than to prosecute criminal cases?
3. If neither of the above methods may be used to legally provide for the execution of the duties of the office in my absence, am I to assume that I am simply not to be absent from the county for the duration of my term, from Monday through Saturday?
The answer to question 1 is that KRS 69.300 requires the assistant to reside in the county in which the county attorney is elected. KRS 69.060 covers only pro tem appointments for prosecution of cases in the district court (as concerns the county attorney) .
Concerning question no. 2, the pro tem appointment is merely temporary, covering your absence from district court. The pro tem appointment narrowly and exclusively relates to criminal prosecutions.
In answer to question 3, the statute, KRS 69.300, prevents the appointment of an assistant county attorney who resides outside your county. There would simply be no official assistant to perform your civil duties under KRS 69.210 in your absence. However, a pro tem would prosecute criminal cases in your district court.
You ask this final question:
May the county road equipment and crew be used in assisting the various cities in the county with blacktopping of city streets, where the cities would pay the crew and purchase materials and, if so, could other public agencies (specifically, the Board of Education) make use of this program?
Generally, a fiscal court has no authority to use county road equipment and crews on city streets, except where the city street segment has been made a part of the county road system for purposes of construction, maintenance, or repair. See KRS 178.010(1) and (2). Thus a fiscal court may contribute to the maintenance or construction of a city street if it so elects by making such street a county through road. Such county action is permissive only. Illinois Central Railroad Co. v. Hopkins County, Ky., 369 S.W.2d 116 (1963). See OAG 73-466, copy enclosed.
Since you represent the county in your official capacity, we are responding to your county part of that question.
In connection with the interlocal legislation, KRS 65.240 et seq., the essence of that statute is that what a public agency, such as a county, can do by itself can usually be done jointly with another public agency, such as a city, assuming no statutory bar exists to the contrary. However, the difficulty here is that since the county cannot furnish county equipment and road employees to maintain or construct a city street unless such street is made a part of the county road system, the mere fact that an interlocal agreement is being entered into that does not encompass the city street's being made a part of the county road system would not convert it into a lawful project. In other words, under the interlocal concept, two public agencies may do jointly what they could do singly. In that respect, the interlocal legislation does not create additional "single entity" powers. As Roy Owsley wrote in his article on the Interlocal Cooperation Act in 51 K.L.J. 22, in speaking about the bill permitting a public agency to exercise and enjoy jointly any of its powers, privileges or authority with any other public agency [see the present KRS 65.240], "This language would hardly suggest that any such public agency could join in the exercise of any powers not separately possessed by it, especially in view of the well known rule of strict construction of municipal powers followed by the Kentucky courts." (Emphasis added). See City of Harrodsburg v. Southern Ry., Ky., 313 S.W.2d 864 (1958).