Request By:
Mr. John C. Dixon
Knox County Attorney
P.O. Box 28
Barbourville, Kentucky 40906
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to whether or not the county judge/executive can employ an outside attorney to advise on the reapportionment of the county's magisterial districts (see KRS 67.045) without consulting you.
The case of Lawrence County v. Stewart, 287 Ky. 827, 155 S.W.2d 446 (1941) 447, established the principle of employing outside counsel for the county:
"It is primarily the duty of the county attorney to represent the county where its interests are concerned, but where, in the reasonable judgment of the fiscal court, he is unable for any reason to look after the interests of the county fully and completely the fiscal court may employ counsel to assist him. This is a necessary incident to the power to regulate and control the fiscal affairs of the county vested in the fiscal court by section 1840 of the Kentucky Statutes."
The answer to your first question is that, since it is the duty of the county attorney, under KRS 69.210, to be the county's legal advisor in county matters, the fiscal court must first consult with you about this problem. After they consult with you, and if they determine that you are unable for any reason to look after the interests of the county fully and completely, they may employ counsel to assist you.
You ask whether the county would have to pay this outside attorney.
The answer is "yes". The fiscal court must provide for the payment of the extra counsel out of the county treasury, subject to a properly budgeted item pursuant to KRS Chapter 68. See KRS 67.080, 67.083 and 67.045. In Jefferson County v. Jefferson County Fiscal Court, 161 Ky. 538, 170 S.W. 1171 (1914) 1172, Judge Hobson, for the court, wrote this:
"We have often sustained the power of the fiscal court to employ counsel to represent the county, where its interests were concerned. Terrell v. Trimble County, 128 Ky. 519, 108 S.W. 848; Scoville v. Baugh, 84 S.W. 1146, 27 Ky. Law Rep. 319; Garrard County Court v. McKee, 11 Bush, 234. The power to regulate and control the fiscal affairs of the county necessarily carries with it the power to employ counsel, when counsel is necessary to protect the interest of the county."
Legitimate governmental interests of the county are involved in the proper reapportioning of magisterial districts pursuant to KRS 67.045. The expense of it is borne by the county. It is vital that the county receive adequate legal counsel in the reapportionment procedure in order to insure that the county's money is not wasted on a fruitless effort. Thus the county is authorized to pay for such needed legal services.