Request By:
Mr. J. Bruce Miller
Jefferson County Attorney
Citizens Plaza
Twenty Seventh Floor
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter presents a problem relating to the county treasurer in Jefferson County.
Question No. 1:
"Does the Fiscal Court of Jefferson County possess the power to delete office personnel from the County Treasurer's Office and place that personnel under a separate department, known as the Department of Finance, which is, also funded and staffed by the Fiscal Court - thus leaving the County Treasurer with no employees to directly answer to his authority?"
It is our understanding that the county budget proposal of the county judge/executive contemplates that: (1) the mandated statutory duties of the county treasurer will be shifted over to the Director of the County Finance Department for all practical purposes; (2) the three directly supporting staff of the county treasurer will be transferred to the County Finance Department; (3) the county treasurer will be paid his usual salary; and (4) the county treasurer, as such, will have no directly budgeted money for surety bonds, postage, telephone, office supplies and expenses, or for office equipment and furniture. The county judge/executive's office has written us that provisions for postage, surety bonds, telephone, supplies and equipment and staff for the county treasurer will be provided the county treasurer out of the Finance Department's cost center. However, on page 24 of the proposed budget document we find this:
"PROGRAM/PERSONNEL CHANGES: In order to provide more efficient administration and control of mandated functions, it is recommended that the Treasurer's Office be placed under the authority of the Secretary for Finance in Fy'81. This recommendation also includes the transfer of three (3) support positions in the Treasurer's Office and all of the office's operating expenses to the Finance Department budget for administration and control purposes. The salary and fringe benefits for the Treasurer's position will continue to be budgeted in the Treasurer's Office to comply with the technical statutory requirement for the Treasury function. The three (3) support staff transferred to the Finance Department will be assigned clerical/bookkeeping functions at the discretion of the Secretary of Finance as work assignments dictate use of available resources."
To begin, the office of county treasurer is a county office created under a general statute for all counties in Kentucky. It is an office of a definite term. See KRS 68.010. Note that KRS 68.010 states that the fiscal court "shall appoint a county treasurer. " (Emphasis added). The appointment is mandatory. See Miller v. Rockcastle County, 248 Ky. 290, 58 S.W.2d 598 (1933); and Reynolds v. Floyd County Fiscal Court, 262 Ky. 445, 90 S.W.2d 694 (1936) 696.
The county treasurer has certain mandatory duties spelled out in KRS 68.020. Those duties include the receiving and receipting of and for all county revenue or money due or coming to the county, the holding of money subject to orders of the fiscal court, the co-signing of all warrants for the payment of funds from the county treasury, and the keeping of an accurate detailed account of all money received and disbursed by him for the county. The failure to carry out these mandated duties ordinarily could subject a county treasurer to removal from office. KRS 68.010(3); and Lyon v. Bell, 275 Ky. 69, 120 S.W.2d 752 (1938).
Since the duties of the county treasurer are mandated, it is our opinion that the proposed budget and personnel changes, by way of transferring the treasurer's duties and immediate supporting staff to the Director of Finance, would on its face constitute an unlawful interference with his mandated statutory duties. Neither the county judge/executive under his reorganization powers [see KRS 67.715] nor the fiscal court [KRS 67.080 and 67.083] has the authority to interfere with in any way or render less effective the county treasurer's performing of his mandated statutory duties. It is rather obvious that the proposed personnel and budget changes would substantially interfere with the effective performance of the county treasurer's duties, such as to leave him an empty, impotent shell.
It is understandable that a county with a 68 million dollar budget has problems not faced by other and rural counties. And, the county treasurer should be provided sufficient personnel to insure that Jefferson's finances are properly looked after through the key statutory office of the county treasurer, not through the Finance Department. There is no legal way, however, that the county treasurer in any county of Kentucky can be legislated out of his statutory role by a fiscal court, regardless of the financial complexity involved. KRS 68.010 and 68.020 are general statutes and must be observed by all counties in Kentucky.
As to the county judge/executive's reorganization powers, as approved by fiscal court under KRS 67.715, such powers of reorganization relate to a statutory county function not focalized and immediately vested in a particular statutorily created office, such as the county treasurer. Thus the reorganization powers of the county judge/executive cannot be used to interfere with or strip a statutorily created office with clearly defined and mandated duties.
It is also our opinion that should the county judge/executive and fiscal court attempt to install such changes, the county treasurer may sue such officials in circuit court to protect his rights and to insure the effective performance of his statutory duties [Stanley v. Fiscal Court of Hopkins County, 189 Ky. 390, 224 S.W. 1081 (1920) 1082], for in such case the officials would be proceeding arbitrarily. See Section 2, Kentucky Constitution; and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). Also see Young v. Jefferson County Election Commission, 304 Ky. 81, 200 S.W.2d 111 (1947), relating to a mandamus or injunction suit to compel public officers to perform a duty imposed by law.
Question No. 2:
"Does the Fiscal Court of Jefferson County have the authority to provide no monies for office expenses and supplies for the county treasurer, including any expense for his bond requirements?"
It is our opinion that the fiscal court has the duty to provide the county treasurer with any necessary items of office supplies and equipment, including bond requirement expense. In other words, the fiscal court must actually furnish [not just on paper] the county treasurer with any necessary supplies or equipment in order that he may adequately carry out his duties. See Barkley v. Gatewood, 285 Ky 179, 147 S.W.2d 373 (1941) 375; and KRS 67.083. As the court said in Todd County Fiscal Court v. Frey, Ky., 285 S.W.2d 499 (1956) 500, the county has a duty to make available to the county treasurer a properly equipped office. As to the treasurer's bond, KRS 68.010(2) provides that the fiscal court may pay the premium on the bond from county funds. The context of the entire statute suggests that the county should pay the bond premium. It is our understanding that this is the practice over the state for many years. The giving of bond has been held to be a condition precedent to the right to qualify for the office. Reynolds v. Floyd County Fiscal Court, 262 Ky. 445, 90 S.W.2d 694 (1936). Otherwise [where no bond is made], there is a vacancy in that office. Thus the fiscal court, in order to insure a continuity in office, has the duty to pay for the bond.
Since the county treasurer could be removed from office at any time for neglect of duty [see KRS 68.010(3)], it is our opinion that the courts would not countenance the treasurer's removal where the neglect of duty is brought about by the positive acts of the fiscal court in interfering with the treasurer's carrying out of his duties, as dealt with above. The statutory intent is that the treasurer must be allowed to perform his duties, free from such interference. Stanley v. Fiscal Court of Hopkins County, 189 Ky. 390, 224 S.W. 1081 (1920).
Finally, the extent to which the county treasurer suffers an interference with his duties and suffers an actual loss of supporting staff and necessary office supplies and equipment if these budget and personnel programs go into effect would have to be determined by the courts. Here the proposed budget document on its face appears to interfere with and eliminate the functions, staff, equipment and supplies of the county treasurer. However, the county judge/executive is saying in effect, "We shall take care of the county treasurer through the Finance Department." Actually the statutes envision that the county treasurer be not prevented from carrying out his statutory duties. They envision that the treasurer has a basic independence in carrying out his duties and that he is not to be placed under the administrative control of some other officer. It was pointed out in Breathitt County v. Cockrell, 250 Ky. 743, 63 S.W.2d 920 (1933) 923, that:
"The treasurer is a mere disbursing officer without power to question the act of the fiscal court when ordering a warrant drawn on him, except when it shows on its face that it is illegal, or it or the record, required by statute to be kept by him, shows that its payment will exceed the fund levied for that year for the purpose for which it was drawn, or it is in the same manner shown that its payment will exceed the constitutional limit of the county's debts for that year, and that it was not drawn for governmental purposes."
The statutes envision that the county treasurer be directly, not indirectly and thus ineffectively, funded in connection with office space and supplies and equipment necessary for him to carry out his function. They require that he have sufficient supporting staff directly under his control. The proposed personnel and budget programs do not, for the above reasons, meet the requirements of the statutes.