Request By:
Mr. Joseph L. Moore
County Fee Systems
Division of Accounts
Executive Department for
Finance and Administration
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Supreme Court of Kentucky in case numbers SC-566-KB and SC-481-KB has suspended Gary L. Littleton from the practice of law for a period of two years. Mr. Littleton is the elected County Attorney of Carter County and at present is continuing to receive both his statutory salary and expense allowance for performing the duties of that office.
You seek our opinion as to whether or not these salary payments should be discontinued.
The county attorney is a constitutional officer. Section 99, Kentucky Constitution. Section 100 of the Constitution requires the county attorney to have been a practicing attorney for two years prior to taking the office. Implicit in this constitutional section and in KRS 69.210, relating to the functions of the county attorney, is the principle that the county attorney must, so long as he holds that office, continue to be a licensed lawyer in Kentucky.
Since the county attorney of Carter County does not now possess the constitutional qualification of being licensed to practice law in Kentucky, it is our opinion that so long as he continues to hold that office he is a usurper and is subject to being ousted by an action brought under KRS 415.040. See
Broughton v. Pursifull, 245 Ky. 137, 53 S.W.2d 200 (1932) 203, holding that where the constitution prescribes the qualifications for a named public office, only a possessor of such qualifications can hold the office.
However, your immediate question is whether or not his prosecutorial salary from the state treasury should be discontinued.
It is our opinion that such salary payments 1 should be stopped immediately, since he can no longer serve as county attorney and as a prosecutor in the Court of Justice. He has no right to exercise the functions of that office and thus no right to receive the emoluments thereof. His disqualification has created a vacancy in law since he is not eligible to hold the office.
Kash v. Day, Ky., 239 S.W.2d 959 (1951) 961.
First, any payment out of the state treasury can only be made in consideration of public services. Section 3, Kentucky Constitution. Since the county attorney here cannot legally serve as county attorney and state prosecutor, it inevitably follows that he cannot be paid money out of the state treasury for services which he cannot legally perform. Implicit in § 3 is the principle that the public service must be legally performed.
In addition, KRS 61.120 establishes the principle that if any officer paid out of the state treasury fails or neglects to perform his duties without a good excuse, there shall be thereafter deducted from his salary such an amount as to reflect the period during which he failed or neglected to discharge his duties. Since the Carter County Attorney is disqualified from serving as county attorney, it follows that he must be deemed to have failed to perform his duties under the statute. The point is he cannot legally perform such duties; so therefore he must be deemed to have failed to perform such duties in the practical and legal sense. Therefore, the stopping of his salary for such disqualification is authorized under KRS 61.120. Even though this man has not resigned, he has no legal authority to countinue to serve as county attorney. Therefore, in the light of the applicable legal principle involved, he must be considered as if he were not in the state of Kentucky. See
Whitworth v. Miller, 302 Ky. 24, 193 S.W.2d 470 (1946) 472. We can find nothing in the law that would authorize the payment of an officer who is constitutionally disqualified from carrying out the functions of that office. We assume the district court is not permitting him to perform as prosecutor. Under the above analysis, it is not necessary to answer the question as to when such payments would be resumed if previously stopped.
Footnotes
Footnotes
1 The expense allowance should also be stopped.