Request By:
Mr. Richard A. Turner
State Representative
Twenty-Second District
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter to us presents the practical and legal difficulty of a newly elected County Judge/Executive in Allen County who is of a different political affiliation from the other members of fiscal court.
The new county judge/executive attempted to terminate all county employees, but without the consent of fiscal court, as required by KRS 67.710(7).
The county judge/executive nominated a highway foreman (county road supervisor), but the fiscal court did not consent to that. See KRS 179.020.
You raise the question as to the remedy for those persons who lost their jobs.
Absent a merit system, the county employees under the previous administration automatically lost their jobs at the beginning of the new administration, unless they were rehired pursuant to the general procedure of KRS 67.710(7). Under that procedure the county judge/executive nominates persons for employment, and the fiscal court as a body votes on whether it consents to the employment or not.
There is no remedy for those employees who have lost their jobs because of the automatic termination and failure to rehire, and where there is no merit system involved. Thus there is no cause of action under those assumptions.
KRS 67.040(3) provides that the county judge/executive may break a tie where employees are being hired. But here there is no tie. Also KRS 67.040 only applies where the fiscal court only selects a person for county employment. It does not apply to a situation in which the general statute, KRS 67.710(7), applies.
Your final question would be what remedy exists where county employees are not hired because of this actual and political standoff.
It is our opinion that if the county judge/executive fails to nominate persons for county employment, for a substantial period, a mandamus suit may be filed by the other members of fiscal court in circuit court against him, whereby the plaintiff will ask for judgment requiring the county judge/executive to make such nominations. This would compel the county judge/executive to perform a ministerial act, i.e., the appointment by nomination of county employees. It would not, of course, require the nominating of any particular person, as such. On the other hand, the statutes clearly require the county judge/executive and the fiscal court as a consenting body to employ necessary employees to conduct the county's functions. The court said in Morgan v. Champion, 150 Ky. 390, 150 S.W. 517 (1912) 519, that if that duty to hire is not performed, the members of fiscal court can be compelled by proper proceeding in mandamus to perform the duty which the statute lays upon them.
Frankly, neither of these proceedings is a "cure-all" for this problem. The only ultimate solution is for the county judge/executive and the fiscal court to find a way to work together for the good of the citizens of the county.