Request By:
Mr. Larry R. Mott
1516 Sharon Drive
Louisville, Kentucky 40216
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the employment of legal counsel by the board of trustees of a fire protection district pursuant to KRS 75.250 which provides as follows:
"(1) The board may, in its discretion, employ or retain a regularly licensed attorney to advise them on all matters pertaining to their duties and shall have the discretion to delegate such authority to said attorney not forbidden by law. Said attorney shall attend all meetings of the board, except executive sessions when the board does not desire his presence, whenever the board shall request him to attend and shall advise the board on all legal matters on which he is requested to give advice.
(2) In addition to the attorney provided for in subsection (1) of this section, the county attorney in the county in which the fire protection district lies shall advise and represent the board in all matters and on the occasions chosen by the board whenever the board so requests.
(3) The board may fix the salary or compensation of the attorney provided for in subsection (1) of this section, in their discretion."
In your opinion, KRS 75.250(1) clearly gives the board the authority to employ a private attorney for "advice" but it does not give the board the authority to hire a private attorney to "represent" it. You maintain that KRS 75.250(2) appears to impose upon the county attorney the duty of representing the board in any litigation in which it might be involved.
Your specific question is:
"Therefore, would the fees paid to a private attorney representing the board in litigation, without the board having first made an attempt to secure the services of a county attorney, be a legitimate expense of the fire protection district."
In City of Ludlow v. Richie, Ky., 78 S.W. 199, 200 (1904), the Court interpreted a statute requiring in part that the city attorney attend all meetings of the board of council, advise it in all matters of litigation or legal proceedings and perform such other duties as the council may require. In dealing with the word "advise" the Court said:
". . . The word 'advise' is used herein in its broad sense. The meaning is, he shall be the legal adviser of the council in all matters of litigation and legal proceedings, and in defining the duties which are required of him in his department the council may properly include attention to litigation as to which it is his duty to advise it. * * * The rule of strict construction is not to be applied to such a statutory provision, but, on the contrary, it is to be liberally construed, so as to promote its objects. . . ."
See also Board of Education v. Ritchie, 149 Ky. 674, 149 S.W. 985 (1912), where the Court quoted from the City of Ludlow case, supra, and said the word "advise" shall be used and considered in its broad sense. The city attorney was considered the legal representative of the council in all matters of litigation and legal proceedings.
KRS 75.250(1) authorizes the board of trustees of a fire protection district, in its discretion, to employ an attorney to advise it on all matters pertaining to the board's duties. KRS 75.250(2) requires the county attorney to advise and represent the board in all matters whenever the board so requests. The board, therefore, may utilize the services of a private attorney for advice in all legal matters or it may require the county attorney to provide advice and representation.
In our opinion, the word "advise" in KRS 75.250(1) is to be used in a broader sense than merely the giving of advice by the attorney to the board of trustees. As the legal adviser, the private attorney the board of trustees of the fire protection district employs to render advice may become involved in litigation on the board's behalf and as its representative. The board may employ a private attorney to advise and represent it and the board is not required to secure the services of the county attorney for such work. Fees paid to a private attorney, hired pursuant to KRS 75.250(1), for legal representation are legitimate expenses of a fire protection district.