Request By:
Mr. Gary C. Johnson
Attorney at Law
P.O. Box 231
Pikeville, Kentucky 41501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A question has arisen in Pike County as to what specific procedure must be followed at the meetings of the Pike Fiscal Court concerning the minutes of such proceedings.
KRS 67.100 reads:
"(1) The fiscal court is a court of record.
"(2) Before each adjournment, the minutes of the proceedings of the fiscal court shall be publicly read by the clerk of the court, and corrected if necessary, and shall be signed by the presiding judge, with the approval of the justices of the peace or county commissioners who were present when the court was held.
"(3) No minute or order of the fiscal court shall be valid until read and signed as required by subsection (2), nor unless the record shows by whom the court was held."
Your specific question is whether or not KRS 67.100, which deals with the minutes of meetings, is a mandatory statute. If so, you want to know our view as to exactly what procedure must be followed in order to comply with the "minutes" statute.
Under the statute presently, and before the 1978 amendment takes effect, it seems clear that before the fiscal court can adjourn its meeting, the minutes of the proceedings of the fiscal court must be publicly read by the clerk or deputy clerk of the court, and corrected, if necessary, then and there, and the minutes must be signed by the presiding judge, with the approval of the justices of the peace or county commissioners [depending on the form of county government] who were present when the court was held. No minutes or order of fiscal court shall be valid until read and signed as required above, nor unless the record shows by whom the court was held. KRS 67.100(3).
In the 1978 regular session of the General Assembly, Section 8 of H.B. 152 amended KRS 67.100 by deleting the present subsections (1), (2), and (3) and adding five subsections as follows:
"(1) The fiscal court is a court of record. Minutes of the proceedings of each meeting shall be prepared and submitted for approval at the next succeeding meeting.
"(2) Every official action of the fiscal court shall be made a part of the permanent records of the county.
"(3) The county budget ordinance shall be indexed so that each index list covers one fiscal year and shall be listed in such index no later than thirty days after passage and any required approval.
"(4) County ordinances other than the county budget ordinance shall be indexed in a composite index of all county ordinances in force, and shall be listed in the index no later than thirty days after passage and any required approval.
"(5) A copy of all records required by this section shall be kept in the office of the county court clerk. "
Section 8 of H.B. 152 will become effective January 1, 1979. It may be noted that the present formal system of preparing the minutes of the fiscal court meetings prior to adjournment and signing them, etc., has been abandoned in the amendment. Instead it is sufficient if the minutes of each meeting are prepared by the clerk after the meeting has been adjourned and submitted for approval at the next succeeding meeting of fiscal court. However, this means that the clerk during the meeting should take down accurate notes of the proceedings in order that the minutes can be properly submitted for a vote of approval at the next succeeding meeting. Every official action of the fiscal court shall be made a part of the permanent records of the county, a copy of which shall be kept in the office of the county clerk.
Sections 4, 5, and 6 of H.B. 152 deal in detail with the procedure relating to county ordinances. Sections 5 and 6 become effective January 1, 1979.
The 1978 amendment to KRS 67.100 carries with it implicitly the idea that the citizens of the county are, "as of right, entitled to know clearly the act and vote of every member, of their agents and servants, on every proposition relating to public duties, and a record of such acts and votes should be plainly made in a permanent form so that every inhabitant may have definite information." 4 McQuillen, Municipal Corporations, § 13.45.
Since the 1978 amendment of KRS 67.100 will go into effect January 1, 1979, we shall deal with the statute as it presently exists.
The case law is settled that KRS 67.100 is mandatory. Further, the statute requires the specific identity of the members of the court holding the meeting. In McDonald's Adm'x v. Franklin County, 125 Ky. 205, 100 S.W. 861 (1907) 862, in speaking of the necessity for the record's showing the specific identity of members of the fiscal court present at the meeting and voting on various questions, Judge O'Rear wrote that there is a wise reason for KRS 67.100. He said this:
"Public meetings at which the county attorney, the legal representative of the county, must be present, or have an opportunity to be present, give security against heedless measures being adopted. They invite discussion and examination, and are some guard against illadvised action. Publicity in such matters concerning the community is one of the best guaranties against improvident action by the public representatives. Then the public record which is required to be kept is an additional safeguard to the public, affording the best evidence of what is done on its behalf, and a check against irresponsibility and extravagance."
See also Lewis v. Board of Education of Johnson County, Ky., 348 S.W.2d 921 (1961), stressing that the formal records of the governing body of cities and counties constitute the only legal evidence of all that was done by any such governing body and that nothing more was done. Thus it is vital, for the sake of the public and good government, that the formalities set out in KRS 67.100 be literally followed.
While the provisions of KRS 67.100 are mandatory, the court has held that where the records do not show that the minutes of the court were publicly read by the clerk or signed by the county or presiding judge with the approval of the justices, and the record is regular on its face, it will be presumed that the minutes were read by the clerk and signed by the judge, with the approval of the justices. See Louisville & N.R. Co. v. Bullitt County, 247 Ky. 489, 57 S.W.2d 506 (1933) 508. Of Course this presumption is controlling until the contrary is affirmatively charged and shown. See Louisville & N.R. Co. v. Bullitt, above. Thus where the records do not affirmatively show compliance with KRS 67.100, the situation is always pregnant with the possibility that the subject presumption of verity of the official record might be overcome by an affirmative charge and evidence.
The old Court of Appeals of Kentucky, in Graves Co. Pub. Lib. Dist. Bd. v. Graves Co. Fiscal Ct., Ky., 479 S.W.2d 27 (1972), held that the court has consistently ruled that an order book, when kept, is not a substitute for compliance with KRS 67.100, in that signing the order book after adjournment will not validate an order or resolution that was not read and signed before adjournment in compliance with KRS 67.100. However, Judge Cullen, in that opinion, wrote that the order book may supply the record called for in subsection (3) of KRS 67.100. This means that the order book can be used to show the identity of members of the court who participated in the voting and in the meeting held by the fiscal court. That part of the statute does not require that such record be made in the presence of the members of the fiscal court.
We concluded in OAG 78-152, copy enclosed, that if the minutes before adjournment are publicly read by the clerk and signed by the presiding judge with approval of the other members of the fiscal court who were present, we see no objection to the minutes being written out in longhand at the meeting. Such longhand minutes should be filed as the official record to support the typed version appearing in the fiscal court order book. You will note that KRS 67.100 does not require the keeping of an order book but only that such orders be read and signed in the presence of the members of the court holding such meeting. The original minutes composed and written at the meeting really constitute the official minutes. The so called orders appearing in the order book are merely reference material which conveniently documents the record for the public's convenience.
It can be seen that the 1978 amendment dispenses with the highly technical approach of the present statute. However, it is clear that the amendment requires minutes which accurately depict who, of the fiscal court membership, participated in the meeting, who voted for what, and an accurate statement of what was actually voted on. Thus the final order, resolution, motion, or ordinance, of record in the clerk's office, would be presumably accorded verity.