Request By:
Mr. Ben A. Elston
Henry County Judge/Executive
Courthouse
New Castle, Kentucky 40050
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions relate to problems of county government.
Question No. 1:
"During a Fiscal Court Meeting, if a member of the Fiscal Court, the County Attorney, or other individual is out of order and/or disorderly; what action can I, as Judge/Executive, take against these persons or Court members? Do I have them ejected from the meeting, charge them with contempt, or is there some other course of action I should take?"
If, as chairman of the fiscal court, you direct such person to desist from such disorderly conduct, and such person fails to comply with your order, then you as county judge/executive can make application to your circuit court to compel obedience by proceedings in circuit court for contempt. KRS 67.040(2). Before the 1978 amendment of KRS 67.040 [1978 Acts, Ch. 118, Sec. 7], the statute provided that the county judge/executive shall preserve order, and may fine and imprison for contempt of court in the same manner as the presiding judge of the county court. But the 1978 amendment deleted such a provision and placed the contempt proceeding in circuit court. Since the county judge/executive has no judicial function, the statute before the 1978 amendment was apparently in violation of Sec. 28, Kentucky Constitution. In Young v. Knight, Ky., 329 S.W.2d 195 (1959), the court observed that "The power of a court to punish for contempt extends to all persons who interfere with the proper exercise of its judicial functions." The fiscal court is not a judicial body. The statute suggests that the circuit court can entertain a contempt proceeding to compel obedience to orders of fiscal court. Under the doctrine just cited in Young v. Knight, above, we entertain a serious doubt that such a contempt proceeding would be within the jurisdiction of circuit court, since the authority of a judicial court to punish for contempt would extend to persons who interfere with the proper exercise of its own judicial functions.
A valid remedy in this situation would be that the chairman of fiscal court can ask such disorderly person to either desist from such bad conduct or leave the meeting room. If the offender does not desist from engaging in such disorder and does not leave the meeting room, the chairman can have him removed by calling the sheriff's office or county or city police. See Robert's Rules of Order Newly Revised, Sec. 60, p.p. 542-543. The disruption of a meeting is a class B misdemeanor. KRS 525.150. For a class B misdemeanor the convicted person can be fined not to exceed $250 and imprisoned in county jail not to exceed 90 days. KRS 534.040(2)(b) and 532.090(2). See OAG 78-242, copy enclosed, of related interest.
Question No. 2:
"The Fiscal Court is presently furnishing a car and the gas for the Henry County Sheriff and his Chief Deputy for performance of their official duties. If the Fiscal Court decides to withdraw their cars and gas payments, are we legally responsible for paying them gas mileage for performance of their official duties in serving papers for the District Court?"
The mileage allowance of KRS 64.095 for serving papers must be paid by the litigants, unless the litigant is proceeding in forma pauperis. See KRS 24A.170, relating to the mileage fee for service of process in civil cases. See OAG 76-349, copy enclosed, on the subject of fiscal court's reimbursing the sheriff for necessary and official travel expenses.