Request By:
Mr. Ronnie Watts
Magistrate, District 1
P.O. Box 123
Garner, Kentucky 41717
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You are writing on behalf of yourself as magistrate of Knott County Fiscal Court and of two other magistrates concerning several alleged charges or irregularities involving the county road supervisor.
KRS 179.020(2) provides that a county road supervisor may be removed in the same manner provided for county road engineers. KRS 179.060 reads in part:
"(1) The county judge/executive may remove the county engineer, appointed under KRS 179.020, at any time for incompetency, malfeasance or misfeasance in office upon written charges after a hearing of which ten (10) days' notice shall be given by serving a copy of the charges upon the county engineer. The hearing shall be at the courthouse, in the county seat.
(2) If upon the hearing the charges are sustained, the county judge/executive shall remove the county engineer and immediately notify him by mail of his removal. The notice shall state specifically the grounds for removal. The record of the proceedings shall be filed in the office of the county clerk."
KRS 179.060 provides, in effect, pursuant to KRS 179.020(2), that the county judge/executive can remove a county road supervisor, without the consent of the Fiscal Court.
However, KRS 67.710(7) reads concerning powers of the county judge/executive:
"Exercise with the approval of the fiscal court the authority to appoint, supervise, suspend, and remove county personnel (unless otherwise provided by state law);. . ."
It can be said that KRS 67.710(7) amended by implication KRS 179.060. See
Fiscal Court Com'rs., etc. v. Jefferson, etc., Ky. App., 614 S.W.2d 954 (1981) 959.
Under KRS 179.060, the county judge/executive is not mandated to remove a county engineer or county road supervisor. The statute says "he may remove the engineer, " etc. (emphasis added). See KRS 446.010(20), defining the auxiliary "may" as being permissive, unless the context requires otherwise. We have said that KRS 67.710(7) controls in the removal of a county road supervisor. However, there is nothing in the latter statute indicating that it is mandatory that the county judge/executive, with Fiscal Court approval, remove any county road supervisor. The removal addresses itself to the sound discretion of the county judge/executive and the Fiscal Court. The discretion of such officers cannot be controlled by mandamus.
Combs v. State Board of Education, 249 Ky. 320, 60 S.W.2d 957 (1933) 958. See also
Kaelin v. City of Indian Hills, Ky., 286 S.W.2d 898 (1956); and
Commonwealth v. McCrone, 153 Ky. 296, 155 S.W. 369 (1913).
In connection with any allegations of crime, we can only suggest that you take this up with your County Attorney and Commonwealth's Attorney for any appropriate action.