Request By:
Mr. James Hite Hays
Shelby County Attorney
501 Main Street
Shelby County Courthouse
Shelbyville, Kentucky 40065
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have informed us by letter and telephone that in 1984 a deputy county clerk negligently failed to collect certain motor vehicle usage taxes at the time a car dealer had the cars in question titled or registered in the dealer's name. Your county clerk has been informed by the Revenue Cabinet that her office will be held responsible for the payment of those uncollected taxes. The clerk has asked your office to file a civil suit against the dealer who obtained the car licenses without paying the necessary taxes. You raise the question as to whether you are under any duty to represent the county clerk in such proposed action.
When KRS 69.210 is viewed in its entirety, the role of the county attorney primarily relates to county business or to matters in which the county has an interest. See KRS 69.210 (1). That subsection provides that the county attorney must conduct all civil actions in which the county is interested before any of the courts of the Commonwealth. Since the clerk's office failed to collect the motor vehicle usage taxes mentioned above (see KRS 138.450 and 138.460), we fail to see any county interest in the collection of this state tax. You are the legal representative of the county and have a duty to see that the county's funds are not wrongfully appropriated. See
Johnson County v. High Test Oil & Gas Co., 267 Ky. 760, 103 S.W.2d 272 (1937); and
Estill County v. Noland, 301 Ky. 204, 191 S.W.2d 223 (1945) 225. However, as we said, county funds are not involved here.
Now concerning the proposed civil action to recover the taxes from the dealer, the clerk's deputy failed to collect the taxes and thus failed to carry out a statutory duty of the clerk. Therefore, the proposed suit is the responsibility of the county clerk. The county clerk, in any event (regardless of how her suit comes out), is responsible for paying the taxes to the taxing authority which she failed, through her deputy, to collect. The county clerk is responsible for acts of omission of the deputy. KRS 62.210.
CONCLUSION
It is our opinion that the fiscal court lacks the authority to direct you, as county attorney, to conduct the suit for the clerk for the collection of the state motor vehicle usage taxes. The county interest is not present. See KRS 69.210.
In addition, the county will be unable to even permissively reimburse the clerk for the costs of her legal action to recover the usage taxes, since at least two of the three necessary co-existent elements will not be present. Those elements are: (1) It must be found that the clerk was acting in good faith and was free from any infraction of law; (2) The litigation must affect county government interest; and (3) There must be available and budgeted county funds for such reimbursement. See OAG 85-25, copy enclosed.