Request By:
Mr. John Paul Blair
Pike County Clerk
Courthouse
Pikeville, Kentucky 41501
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written that some people in the Finance Department have advised you that you will probably have to terminate some employees some time next year in order to balance your account.
We contacted the Finance Cabinet, and they informed us that a form letter was sent to all county clerks in those counties having a population of 75,000 or more, including one to you, pointing out the necessity for carefully watching your expenses in the last year of your four year term (1985). This is in reference to the funding of your office from the 75% account, pursuant to KRS 64.345. However, Finance indicated that they did not actually suggest the possible termination of some of your employees.
In any event, your question is:
"Do these employees work at the pleasure of the office holder and can I terminate whomever I please without any legal repercussions?"
While the fiscal court determines the number of the clerk's deputies under KRS 64.530, the actual hiring or firing of the clerk's deputies is a prerogative only of the county clerk. The deputies are not elected officials, and, in the absence of a statutory merit system, have no employment life beyond the term of the clerk who appoints them. Since the county clerk is responsible for his deputies, it logically follows that the clerk has the power to hire and fire specific individual deputy clerks. See KRS 62.210. In Smith & C. v. Cansler, 7 Kentucky Law Reporter 317 (1885), it was claimed that a deed was acknowledged before a de facto officer, i.e., an officer who exercises the duties of an office, claiming the right to do so under some appointment. The court found that the "deputy" clerk in question was a holdover from an appointment by the clerk in a prior term, the deputy not having been appointed by the succeeding clerk. Thus the court held the deputy was not a valid deputy, even de facto, since he was acting by self-appointment only.
We are aware of no statute giving the fiscal court or other county official the authority to hire and fire county clerk deputies.
In Greenup County v. Millis, Ky., 303 S.W.2d 898 (1957), the court wrote at page 902:
"A clerk is under a duty to employ only a reasonable number of deputies and assistants and to pay each one a fair compensation. If he hires an excessive number of such employees or pays any of them more than such employee's services are reasonably worth, he will be held accountable for any exorbitant sums so expended." (Emphasis added).
Of course, under KRS 64.530, the fiscal court determines the number of deputies of a county clerk and their compensation, however, Greenup County v. Millis points up the responsibility of the clerk for recommending to the fiscal court only that number of deputies actually needed to enable the clerk to carry out his statutory duties. Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). That case (Greenup County v. Millis) also highlights the point that it is the clerk who actually hires particular persons as clerk deputies; and the discharge of deputies inevitably goes with the appointing authority.
CONCLUSION
It is our opinion that only the county clerk can appoint and discharge his deputies. The discharge of a clerk deputy should only be for some good reason or cause, otherwise the courts might construe it to be arbitrary, in violation of § 2, Kentucky Constitution. Cf. Hopwood v. City of Paducah, Ky., 424 S.W.2d 134 (1968). See Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1964) 258.