Request By:
Mr. Elmer Cunnagin, Jr.
Laurel County Attorney
Courthouse
London, Kentucky 40741
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Along with the implementation of the district court system there has been generated, you say, a great deal of confusion concerning the specific duties of the county attorney.
You request an opinion outlining the major duties and responsibilities of the county attorney in Kentucky. Accordingly, we shall treat this subject under three main headings: prosecutorial, civil duties for county, and miscellaneous.
PROSECUTORIAL DUTIES
The county attorney must attend the district court in his county and prosecute all violations of criminal and penal laws within the jurisdiction of that court. Further, when necessary, the commonwealth's attorney and county attorney shall assist each other in prosecution within their courts. 1
The legislature has established a unified and integrated prosecutor system with the attorney general as chief law enforcement officer of the Commonwealth. 2 The system is administered by the Prosecutors Advisory Council, composed of three commonwealth's attorneys, three county attorneys, two nonattorney citizens, and the Attorney General. 3 The attorney general may direct any commonwealth's attorney or county attorney to act as a special prosecutor in particular cases which would normally be outside their jurisdiction. 4 Each commonwealth's attorney and county attorney shall be required by the council to submit written reports as are determined necessary for the preceding calendar year. 5
Each commonwealth's attorney and county attorney shall submit a proposed budget for his office to the Prosecutors Advisory Council to be included in the total budget of the unified prosecutorial system and submitted as part of the budget of the Office of Attorney General in accordance with KRS Chapter 45. 6
Nothing in KRS Chapter 15 shall be construed as eliminating or limiting any of the other duties of the commonwealth's attorney or county attorney as set out in the Kentucky Revised Statutes. 7
CIVIL DUTIES FOR COUNTY
The county attorney must attend the fiscal court and conduct all business before that body touching the rights or interests of the county. When directed by fiscal court, he must institute, defend and conduct all civil actions in which the county is interested before any of the courts of the Commonwealth. He must give legal advice to the fiscal court and the several county officers in all matters concerning any county business within their jurisdiction. He must oppose all unjust or illegally presented claims brought against the county. 8
A county attorney serving in a county or urban county government which is a part of a judicial circuit described by KRS 69.010(2) [containing a city of first or second class or urban county government] , in addition to duties described above, shall have the following duties: (a) He shall attend all civil cases and proceedings in his county in which the Commonwealth is interested; (b) He shall advise the collector of money due the Commonwealth in the county in regard to motions against delinquent collecting officers for failing to return executions, and shall prosecute the motions. 9
Under the broad implications of KRS 69.210, the county attorney should advise a city-county planning and zoning commission concerning the county's interest.
The county attorney must act as counsel to the water commission established under KRS Chapter 74. 10
The county and commonwealth's attorneys and the Attorney General are required to represent the Department for Human Resources and local boards of health in all matters relating to the enforcement of the health and medical laws and the performance of duties of those boards. 11
In connection with incompetency determinations and involuntary hospitalization proceedings, we can find no statutory duties on the part of county attorneys. 12
In an appeal from juvenile session of district court to circuit court, the county attorney would represent the Commonwealth. 13
Under KRS 68.230 the county attorney is one of three members of the County Budget Commission. However, beginning January 1, 1979, under the amendment of H.B. 33 [1978 regular session], Section 13, the County Budget Commission shall consist of the county judge/executive and two members appointed by the county judge/executive with approval of fiscal court. This means the county judge/executive may or may not appoint as one member of the commission the county attorney.
The county attorney is required to bring suit for the collection of money owed the county by fee officers. 14
The county attorney has the duty of filing a petition for condemnation where fiscal court desires to condemn land under the authority of KRS 178.120. 15
MISCELLANEOUS DUTIES
The county attorney must file a paternity action where sought by a mother, child, person or agency substantially contributing to the support of the child. 16
Upon the request of the court or an appropriate welfare official or state agency, when Kentucky is the initiating state, the county attorney shall represent the plaintiff in any proceeding under the Uniform Reciprocal Enforcement of Support Act. 17 When the court of Kentucky is a responding court, the county attorney must prosecute the case diligently. 18
It is the duty of the commonwealth and county attorneys to lend to the attorney general such assistance as the attorney general may request in the commencement and prosecution of court actions pursuant to KRS 367.110 to 367.300, or the commonwealth or county attorney with prior approval of the attorney general may institute and prosecute actions hereunder in the same manner as provided for the attorney general. KRS 367.110 to 367.300 covers consumer protection legislation, including the statute [KRS 367.170] dealing with unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce. See KRS 367.300.
City, county and commonwealth's attorneys, and the attorney general, shall within their respective jurisdictions, represent the Department for Natural Resources and Environmental Protection in the enforcement of the provisions of KRS Chapter 318, relating to plumbers and plumbing. 19
The county attorney may be called upon to render legal services to the Bureau of Highways in carrying out its duties. 20
He must also collect unsatisfied judgments in favor of the Commonwealth and cause them to be paid into the state treasury. 21
When the state acquires title to lands, payable out of state funds, grantor must submit an abstract, the correctness of which abstract shall be attested by the county attorney. 22
Any commonwealth's attorney, county attorney or private citizen may maintain an action in equity in the name of the state to enjoin any nuisance described by KRS 242.310 [renting or permitting use of vehicle for unlawfully selling or transporting intoxicating liquors in dry territory]. 23
The county attorney must represent the sewer construction district commission. 24
Proceedings for involuntary termination of parental rights in a child may be instituted upon petition by the Department of Human Resources, any child-placing agency licensed by the Department, any probation officer, or any county or commonwealth's attorney, or parent. 25
The county attorney has certain duties relating to collection of delinquent taxes. 26 The Department of Revenue may call upon county attorneys for legal services incident to enforcement of tax laws. 27
It is the duty of 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. In the event the county attorney is unable to represent the state and county, he or the fiscal court shall arrange for substitute representation. 28
Upon the request of the Workmen's Compensation Board, the attorney general, or, under his direction, the commonwealth's attorney or county attorney of any county, shall institute and prosecute the necessary actions or proceedings for the enforcement of any provisions of KRS Chapter 342 arising within his jurisdiction, and shall defend in like manner all actions or proceedings brought against the board or the members thereof in their official capacity. 29 The statute is "designed to afford a source of legal representation for the board when the board itself is the real party in interest. It does not contemplate or encompass the normal situation where counsel for a private party goes before the board to seek an award for a work-related injury or disease." 30 The court concluded in the case just cited that in the normal situation of presenting a claim before the board, a county attorney is guilty of no conflict of interest simply because he might some day be called upon to represent the board. The court said "Since the board acts in a neutral capacity in adjudicating claims before it, surely the board would not favor a county attorney's client simply because of the remote possibility that the county attorney might some day be called upon to represent the board."
Where a drainage board employs no attorney, the county attorney must perform such legal services as are necessary. 31
The county attorney is required to represent the commissioner in circuit court in proceedings relating to establishment of a sanitation district. 32
Footnotes
Footnotes
1 KRS 15.725(2) and (3).
2 KRS 15.700
3 KRS 15.705.
4 KRS 15.715, 15.730, and 15.735.
5 KRS 15.720.
6 KRS 15.750.
7 KRS 15.745.
8 KRS 69.210.
9 KRS 69.210(3).
10 KRS 74.030.
11 KRS 212.270.
12 KRS Chapters 202A and 203.
13 KRS 208.380.
14 KRS 64.820.
15 This involves condemnation to open, establish, construct, alter or repair any county road or bridge. See KRS 416.110 and Eminent Domain Act of Kentucky [KRS 416.540 to 416.670].
16 KRS 406.021.
17 KRS 407.190.
18 KRS 407.250.
19 KRS 318.180.
20 KRS 176.280, 177.081 and 177.082 [condemnation] .
21 KRS 69.240.
22 KRS 56.040.
23 KRS 242.340.
24 KRS 76.385.
25 KRS 199.600.
26 KRS 134.490, 134.500.
27 KRS 131.130.
28 KRS 133.120.
29 KRS 342.425.
30 In Re Advisory Opinion of Kentucky Bar Assn'n, Ky., 526 S.W.2d 306 (1974) 307.
31 KRS 267.410.
32 KRS 220.100.