Request By:
Ms. Jean Hatzell
Bullitt Circuit Court Clerk Elect
Box 161
Shepherdsville, Kentucky 40165
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have presented us with the question as to what, if any, rights you have, as the newly elected circuit clerk, in the hiring and firing of your deputies.
KRS 30A.050 is the central statute dealing with this subject in the hiring and firing of your deputies. It reads:
"(1) The number and qualifications of deputy clerks and other employes in the office of each clerk shall be determined by the administrative office of the courts after consultation with the clerk concerned. All deputies and employes of the clerk's office shall be employes of the Commonwealth.
"(2) Deputy circuit clerks authorized by and under the direction of the circuit clerk, shall have full power to perform such duties as may be performed by the circuit clerk; and any act of a deputy clerk is entitled to the same faith and credit as that of the clerk.
"(3) Deputy clerks and all other employes in the office of the clerk shall be compensated according to the pay schedule established by the judicial personnel system.
"(4) The clerk may employ and dismiss such deputies and other employes."
Note that KRS 30A.050(4) in clear and unambiguous terms gives the circuit clerk the power to hire and fire the clerk's deputies, although the number and qualifications of deputy clerks shall be determined, pursuant to KRS 30A.050(1), by the Administrative Office of the Courts after consultation with the clerk concerned.
The circuit clerks, as personnel in the Court of Justice, are constitutional officers (see §§ 97 and 114, Kentucky Constitution) and state officers, who are subject to the administrative control of the Chief Justice of the Supreme Court of Kentucky. KRS 30A.010. The clerk's deputies are employes of the clerk and Commonwealth. KRS 30A.050(1).
KRS 30A.140 provides that every clerk shall perform such additional duties as may be prescribed by statute or court rule. That apparently was to make certain that no necessary clerk function for the courts is left unassigned.
The salaries of circuit clerks are payable out of the state treasury. KRS 64.055. The salaries of the circuit clerk deputies are payable out of the state treasury. The deputies are compensated according to a pay schedule established by the judicial personnel system. KRS 30A.050(3).
We advised you by letter dated September 9, 1981, that KRS 30A.050(4) gave you the authority to hire and fire your deputies. At that time, we were not aware (and had no way of knowing) that the Supreme Court of Kentucky had established in an unpublished order an elaborate set of merit system personnel policies, under the designation "ADMINISTRATIVE PROCEDURES OF THE COURT OF JUSTICE PART III, PERSONNEL POLICIES" , which, except for some minor exceptions, lay down with particularity and precision the circumstances under which the circuit clerks can hire and fire their deputies.
The Supreme Court personnel rules are patterned along the legislative lines established in KRS Chapter 18, which latter chapter elaborately deals with the legislative policies relating to state employees in general. However, KRS 18.140(1)(k) specifically exempts from the classified service the "judicial department."
A constitutional question emerges as to whether KRS 30A.050(4) is in some manner unconstitutional, or whether the Supreme Court by promulgating the personnel rules, has transcended its judicial authority under the doctrine of distribution of powers. See Sections 27 and 28, Kentucky Constitution.
Subsection 3 of Section 114 of the Kentucky Constitution mentions the circuit clerks and provides as follows:
"The clerks of the Circuit Court shall be elected in the manner provided elsewhere in this constitution. The clerks of the Circuit Court shall serve as the clerks of the district court. The clerks of the Circuit Court shall be removable from office by the Supreme Court upon good cause shown."
It appears that the Constitution recognizes that circuit court clerks are somewhat different than the clerks of any other court, in that Section 114 specifies that a circuit court clerk shall be elected as provided in the Constitution. Also, nowhere in the Constitution are the circuit court clerks declared to be employees of the Commonwealth. That matter was handled by statute, KRS 30A.050. That statute states that the Administrative Office of the Courts is given a great deal of control over the circuit clerk's office, and really allows the circuit clerk only the freedom to "employ and dismiss such deputies and other employees".
KRS 30A.050 was one of the many statutes passed by the Kentucky General Assembly in the 1976 Extraordinary Session to implement the Judicial Article. Obviously, the General Assembly did not feel that they were violating any provision of the Kentucky Constitution when they passed this statute.
Possibly the Kentucky Supreme Court feels that KRS 30A.050(4) infringes in some manner upon its power expressed in Section 116 of the Kentucky Constitution, which reads as follows:
"The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice. The Supreme Court shall, by rule, govern admission to the bar and the discipline of members of the bar."
Certainly if the Court ultimately rules in a court decision that such is the case, it would settle the matter conclusively. However, at this point such a determination has not been made.
As you can imagine, it is difficult to render an opinion on this question when the body which would ultimately decide the constitutionality of KRS 30A.050(4) is the same body that has promulgated rules in conflict with that statute. However, at this point in time, KRS 30A.050(4) has not been declared unconstitutional by any court of the Commonwealth. Therefore, it is impossible to give you a definitive answer as to whether a circuit court clerk has the right to hire and fire his own deputies, or whether they only have such rights in that regard as have been provided in the rules issued by the Kentucky Supreme Court. We would recommend a declaratory judgment action to clarify this situation. In addition, we would recommend that the circuit court clerks follow the rules promulgated by the Kentucky Supreme Court until a judicial determination is made.