Request By:
Mr. Ralph E. McClanahan
Estill County Judge/Executive
Courthouse
Irvine, Kentucky 40336
Opinion
Opinion By: Steven L. Beshear, Attorney General; BY: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question as to how exonerations can be processed when new tax bills are needed and the county clerk will not accept exonerations for filing and recording.
A person claiming to be erroneously charged with a tax upon property not owned by him may offer evidence in support of the complaint to the county judge/executive, pursuant to KRS 133.130. If the county judge/executive finds that the petitioner does not own the land, he may correct the same by issuing an order exonerating that person from the tax. An appeal may be taken to the circuit court from any final order of the county judge/executive under that section.
While the statute contains no express provision as to the recording of the order of exoneration, it is just plain common sense that if these executive of administrative orders are to be properly preserved for the use of the petitioning parties, the courts and the public generally, such orders must necessarily be recorded as an executive or administrative order of the county government's chief executive officer. Thus the implied requirement of filing and recording such executive orders in the county judge/executive's "Executive Order Book", to be maintained by the county clerk, emerges from the subject statute and by virtue of the nature of the county judge/executive's function. See KRS 67.710.
We pointed out in OAG 80-56, copy enclosed, that all executive orders of the county judge/executive, as the chief executive of the county, should be made a part of the county records through filing and recording his executive orders in the "Executive Order Book". Otherwise, there can be no order in maintaining such records, and the affected parties and public could suffer. Even though the General Assembly has not explicitly dealt with the recordation of the county judge/executive's executive orders, we believe the courts will, for the sake of the orderly conducting of county business, sustain the idea of the necessity for the county clerk's recording such by statutory implication. It is interesting to note that when the county clerk delivers the tax bills to the sheriff, the clerk must take a receipt from the sheriff, showing the number of tax bills and the total amount of tax due, etc. The receipt must be filed with the county judge/executive and recorded in the order book of the county judge/executive. KRS 133.220. Likewise, an exoneration of a tax bill should be recorded in the same manner.
The county judge/executive is the chief executive of the county and has all executive duties vested in, or imposed upon, the county or fiscal court by law. KRS 67.710. It necessarily follows by the strongest implication that his executive orders, in managing county affairs, including the exonerations, be recorded in his executive order book, just as fiscal court orders must be recorded in the fiscal court order book, maintained by the county clerk. See KRS 67.100, declaring that the fiscal court is a court of record, such records to be kept by the county clerk. The chief executive officer in issuing orders is likewise an officer of record, which records must be kept by the county clerk. Who else will keep county records?
Now you write us that the clerk is refusing to accept exonerations for recording. You want to know what can be done about this.
The answer is that you can file a mandamus suit against the clerk in your circuit court, seeking an order requiring the clerk to carry out her duty of recording such county documents. Broadway Nat. Bank v. Hargis, 238 Ky. 669, 38 S.W.2d 674 (1931) 675.