Request By:
Mr. Charles R. McCollom, III
Henderson County Attorney
P.O. Box 1316
Henderson, Kentucky 42420
Opinion
Opinion By: David L. Armstrong, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter you ask whether the county judge/executive can break a tie in the fiscal court over the hiring of a county road engineer, pursuant to KRS 67.040. You state that OAG 75-280 opines that he cannot. You also state that a later opinion (OAG 80-175) opines that a county judge/executive may utilize KRS 67.040 in the case of a tie vote over the hiring of a county treasurer. You suggest that these two opinions are irreconcilable and ask which is correct.
KRS 67.040(3) states:
"When there is a tie vote in the fiscal court in the selection of any officer or employe to be selected by the fiscal court, and a deadlock results and continues for fifteen (15) days or longer, the county judge/executive shall cause to be entered upon the minutes of the fiscal court an order reciting the facts as to the deadlock, and the question upon which it has occurred and exists, and thereupon the county judge/executive shall make such appointment. "
In OAG 75-280 we opined, inter alia, that KRS 67.040(4) does not apply to county road engineers or county road supervisors. However, in OAG 80-175 we opined that KRS 67.040(4) does apply to county treasurers, relying on Cook v. Fihe, Ky., 358 S.W.2d 350 (1962).
We agree that the two opinions are irreconcilable. We can discern no difference between the appointment of a county road engineer and a county treasurer. Both are statutory county officers. By the literal terms of the statute, it is applicable to county officers. In Cook v. Fihe, supra, the court was under the presumption that the statute applied to statutory county officers, but extended it to apply to county employees as well. Consequently, we must conclude that that portion of OAG 75-280 that opined that KRS 67.040(4) did not apply to county road engineers and county road supervisors was incorrect, and we hereby modify it.