Request By:
Mr. William Engle, III
Attorney at Law
Adams Building
P.O. Box 831
Hazard, Kentucky 41701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On November 13, 1981, the Perry County Judge/Executive terminated the employment of four (4) county employees. That was done without the approval of fiscal court.
Actually KRS 67.710(7) requires that the county judge/executive must remove county personnel, if it is done at all, with the approval of the fiscal court as a body. As a basic principle of county government, the county can only speak through its constitutional authorities, the fiscal court.
East Cairo Ferry Co. v. Brown, 233 Ky. 299, 25 S.W.2d 730 (1930) 732. KRS 67.710(7) describes precisely how the fiscal court, through the county judge/executive and the other members, makes the appointments of employees.
On January 11, 1982, upon the recommendation (nomination, we assume) of the county judge/executive, the fiscal court voted to terminate the employment of three of those employees. The court additionally voted to pay the employees for that period of time from their notice of termination of November 13, 1981, through January 11, 1982.
The fiscal court seeks our opinion regarding the legality of authorizing payment to these three employees through January 11, 1982.
The attempted termination of employment of the four employees on November 13, 1981, was void, since the fiscal court did not consent to it, as required by KRS 67.710(7).
Although affirmative action was required to re-employ county employees as of January 4, 1982, the fiscal court order of January 11, 1982, had the express effect of recognizing the continued employment of the three employees through January 11, 1982. Thus the fiscal court can validly pay the salaries of the three employees terminated on January 11, 1982, from their notice of termination of November 13, 1981, through January 11, 1982. In fact it is our opinion that under the illegal and void dismissal of those employees, the fiscal court is now required to give them back pay covering the period in question. See
Goss v. Personnel Board, Ky., 456 S.W.2d 819 (1970) 822.
As concerns the fourth person who was named in the county judge/executive's action of November 13, 1981, by the strongest implication the salary of that person should be paid from November 13, 1981, to the present, and later on into the future, since that employee was retained.
In connection with those employees who were illegally fired and who received unemployment benefits (see KRS 341.050(1)(d)) during the period in question, a recoupment is due the Unemployment Insurance Trust Fund. See KRS 341.415. Thus the fiscal court, in issuing back pay to those employees entitled to it, should issue one check jointly to the illegally fired employee and the Unemployment Insurance Trust Fund of Kentucky for an amount out of the county treasury equal to the total unemployment benefits paid to that employee during the period in question. Then the fiscal court should issue a separate check to such employee only for the excess of the back pay due from the county over the previously paid unemployment benefits.
The ruling in this opinion should be relayed to the local office where the illegally dismissed employees filed their claims for unemployment benefits.