Request By:
Mr. Jim Nickell
Rowan County Judge Executive
Courthouse
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On June 3, 1982, the Rowan Fiscal Court appointed Virginia Colliver as Rowan County Treasurer. You have written that some questions have arisen concerning this appointment.
Question No. 1:
"At the time of this appointment, was the term according to the statutes for a two (2) year or four (4) year term. (Ref. OAG 81-11)."
We pointed out in OAG 81-11 that under the 1980 amendment of KRS 68.010, the fiscal court in all counties in Kentucky must appoint a county treasurer at its regular June term in 1982 for a two (2) year term. However, in the 1982 session, the General Assembly amended KRS 68.010 to provide that "The fiscal court of each county, at its regular June term every four (4) years, beginning with June, 1982, shall appoint a county treasurer for a term of four (4) years." (1982 Acts, Ch. 296, § 2). Oddly enough, section 1 of the bill amended KRS 68.010 as of the amendment of 1968, with language identical to that shown above under section 2 of the bill.
In light of the 1982 amendment, it is our opinion that the term of office of the county treasurer is four (4) years. The 1982 amendment is the latest legislative enactment and thus governs. Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400. The 1982 amendment became effective on April 2, 1982, one day after the 1980 amendment became effective. Thus the fiscal court's action of appointment on June 3, 1982, brought into application the four (4) year term.
KRS 68.010 provides for the appointment of a treasurer at the "regular June term" of fiscal court. However, that language does not mesh with KRS 67.090, dealing with terms of the fiscal court. Subsection (2) requires a fiscal court to hold two (2) regular terms per year, one of which must be in October. Where the county judge executive does not fix the terms, the first regular term must commence on the first Tuesday in April and the second regular term on the first Tuesday of October. However, here we believe that the making of the appointment on June 3, as a special term, is substantial compliance with KRS 68.010. See KRS 67.090(3), relating to special terms.
Question No. 2:
"If the term is for two (2) years according to the statutes, should the fiscal court appoint a county treasurer at its April 1984 regular meeting of fiscal court?"
Since the county treasurer's term is for four (4) years, the next regular appointment will be at its June term, 1986.
Question No. 3:
"If the county judge/executive recommends a person to fill the office of the county treasurer, and the court refuses to accept this recommendation, what steps should be taken in filling this position?"
It must be borne in mind that the county judge executive's nominating or initiating or initiating an appointment for approval of the fiscal court pursuant to KRS 67.710(8) has no application here. In this situation, the 1982 amendment of KRS 68.010, providing for the "fiscal court's appointment" of a treasurer, governs. The later legislative enactment governs. KRS 67.710 was enacted in 1976, effective in 1978. See Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400.
Thus any member of the fiscal court may suggest a person for the office of county treasurer, and then the fiscal court votes on the nominee. Where you suggested a person for that office, and the fiscal court by majority vote rejects your suggestion, some other person may be suggested by you or some other member for a vote by the fiscal court.
Question No. 4:
"Can one of the fiscal court members, other than the county judge executive, recommend a person to fill the county treasurer's position, or must this recommendation come only from the county judge executive himself?"
We have answered that above. Any member of fiscal court can suggest a person for that office.
Question No. 5:
"If No. 4 above is true, then what, according to law can the county judge executive do to appoint a county treasurer on a temporary basis until the fiscal court can accept this appointment? "
There are no statutory provisions for a temporary appointment. The fiscal court, in view of the duties of the county treasurer, and considering the importance of county finances, is mandated to appoint a county treasurer at the time stated in the statute. If the fiscal court delays on coming to a majority vote on such appointment, they are subject to a mandamus suit in circuit court seeking a court order requiring them to appoint some person as county treasurer. The statute, KRS 68.010, says "The fiscal court of each county . . . . shall appoint a county treasurer. " (Emphasis added). Under KRS 446.010(29), the word "shall" means that it is mandatory.