Request By:
Ray G. Wiethorn
Campbell County Property Valuation Administrator
Campbell County Courthouse
Newport, Kentucky 41071
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ross T. Carter, Assistant Attorney General
You have presented the following questions to the Attorney General:
Under K.R.S. 132.350 the County Attorney shall assist in tax assessment proceedings in court and receive a compensation.
In your opinion does this assistance extend to the representation by the County Attorney in civil matters whereby the Property Valuation Administrator's Office is sued by certain school districts in his jurisdiction for a failure to properly code automobile computer update printouts.
Should the County Attorney represent the Property Valuation Administrator? Should the County Attorney or his office be compensated for such service and in what amount? Can or should the Property Valuation Administrator retain private representation and compensate same in a necessary and reasonable amount?
Duties of the County Attorney:
Two statutes obligate the county attorney to provide representation in tax cases. The statute that you cite, KRS 132.350, deals only with tax collection cases in which the county attorney brings an action against delinquent taxpayers. The other statute, KRS 133.120(7), requires the county attorney to "represent the interest of the state and county in all hearings before the board of assessment appeals and on all appeals prosecuted from its decision." Neither of these statutes requires the county attorney to defend the property valuation administrator in a legal action brought against him.
The general duties of the county attorney appear in KRS 69.210. That statute requires the county attorney "when so directed by the fiscal court [to] institute, defend and conduct all civil actions in which the county is interested before any of the courts of the Commonwealth." In OAG 83-380 we said that the county attorney's duty is to defend the county rather than any particular county officer, and that he must defend the county when there is any conflict between the interests of the county and the officer. In OAG 83-35 we said that the fiscal court may direct the county attorney to represent a county official, but there must be a definite showing of a county interest in the proceeding. The circumstances described in your letter suggest that the litigants allege that the property valuation administrator's actions have resulted in a decrease to the tax base and a consequent loss in revenue to all taxing districts, including the state and the county. In this situation the county's interest would lie with the plaintiffs rather than the defendant, and the fiscal court would be unlikely to direct the county attorney to represent the property valuation administrator.
We conclude that the county attorney may represent the property valuation administrator if the fiscal court determines that the county has a definite interest in defending the action and directs the county attorney to undertake representation. Without such direction from the fiscal court, the county attorney has no duty to represent the property valuation administrator.
Other Representation:
KRS 12.213 directs the governor to provide, by regulation, for the defense of state employees in four ways: by the Attorney General, by employing other counsel, by authorizing the purchase of insurance, and by employing counsel for the state agency whose employee has been sued. The administrative regulation implementing this statute, 10 KAR 1:010, provides the only source of authority for the PVA's defense by government counsel. The regulation provides that the PVA may make written application to the Attorney General for representation, although KRS 12.212 allows the Attorney General to decline if a conflict of interest exists or if the representation would not be in the best interest of the commonwealth. The regulation also authorizes representation by contract counsel or by agency counsel, although again the representation is discretionary. Nothing in the regulation or the statute requires the state to provide for the defense of an employee such as a PVA. Indeed, if the suit alleges that the PVA has undervalued the tax base, the state could possibly face a conflict of interest situation if it undertook to defend the PVA.
We conclude that the property valuation administrator may be assured of representation only by retaining counsel himself at his own expense.