Request By:
Honorable Thomas O. Castlen, President
Kentucky Commonwealth Attorney's Association
100 East Second Street
P. O. Box 787
Owensboro, KY 42302
Opinion
Opinion By: Chris Gorman, Attorney General; Ian G. Sonego, Assistant Attorney General
Your letter of April 30, 1992 raises four questions regarding the Office of Commonwealth's Attorney. We note at the outset that County Attorneys are subject to the same answers, as set out in greater detail below, regarding their responsibilities in the prosecution of criminal cases in district court.
Question One : When a Commonwealth's attorney resigns or such office otherwise becomes vacant, which official is legally responsible for those duties or selecting a temporary Commonwealth's attorney pending appointment by the Governor of an attorney to serve the remainder of that term of office?
KRS 15.715(4), adopted in the 1990 Regular Session of the General Assembly, states:
If the office of Commonwealth's attorney or the office of county attorney becomes vacant, the Attorney General or his designee shall perform the duties of that office until such time as the successor of that Commonwealth's attorney or of that county attorney shall be appointed or elected as elsewhere provided by law or until the Commonwealth's attorney or county attorney resumes the duties of his office as provided by law.
Therefore, when the office of Commonwealth's attorney becomes vacant, the responsibilities of that office automatically become the responsibilities of the Attorney General. KRS 15.715(4) also authorizes the Attorney General to designate a temporary Commonwealth's attorney, pending appointment by the Governor pursuant to Sections 76 and 152 of the Kentucky Constitution and KRS 63.190.
The new statute is not in conflict with prior law. Although KRS 69.060 permits the chief judge of a circuit court to appoint a suitable attorney to act as a Commonwealth's attorney pro tem when the Commonwealth attorney is "absent," KRS 69.060 is inapplicable to a position which is "vacant. " In Northcutt v. Howard, 279 Ky. 219, 130 S.W.2d 70, 71 and 72 (1939), the court explained the meaning of the word "absent" in KRS 69.060, stating:
It is argued for appellant that the commonwealth attorney is absent in legal effect when he is either disqualified or, for some reason, disabled from performing the functions of his office, and that when his own actions are being investigated by the grand jury he is thereby disqualified from assisting the grand jury in any investigations pending before it. . . . The office of commonwealth attorney is a constitutional office and such officer may not be deprived of the right to perform the duties of that office except in a manner clearly authorized by law, nor may a substitute be appointed in his place except by virtue of [KRS 69.060]. That section authorizes the appointment of a substitute only when the commonwealth attorney is absent. In legal effect, the commonwealth attorney is absent when he himself is the subject of investigation by the grand jury, or is on trial. Unless he is physically absent from court or absent in legal effect by virtue of proceedings pending against him , no right or authority exists in the circuit court or any other official to appoint a substitute for him.
(Emphasis added.)
It is clear from the language of the statute, as interpreted in the Northcutt case, that KRS 69.060 applies to the absence of a Commonwealth attorney, either physical or legal, but does not encompass a vacancy in office.
Question Two : When a Commonwealth's attorney resigns or such office otherwise becomes vacant, do the employees of that Commonwealth's attorney retain their employment and compensation or are they automatically terminated from employment?
KRS 15.715(4), discussed above, addresses this question indirectly, since, as already indicated, this statute automatically shifts the responsibilities of the Commonwealth's attorney to the Attorney General whenever such office becomes vacant. This statute reflects the legislative intention that no interregnum occur regarding the position of Commonwealth's attorney and implicitly provides that employees of the former Commonwealth's attorney continue to retain their employment unless the Attorney General, or his designated temporary Commonwealth's attorney, specifically directs otherwise. In OAG 91-227, we concluded that generally when a county official's office becomes vacant there was no provision for the official's deputies to continue to perform their duties, but neither was there any statutory provision to prohibit them from doing so. KRS 15.715(4) implicitly authorizes the employees of a former Commonwealth's attorney to continue their duties.
KRS 15.705(1) establishes the Prosecutors Advisory Council and makes that Council responsible for "the administration of the unified prosecutorial system." Clearly, the Council, as the primary administrator of the Unified Prosecutorial System, has the statutory authority to authorize the continued employment of the employees in a Commonwealth's attorney's office when the position of Commonwealth attorney has become vacant. A review of the decisions made by the Council while it has been in existence indicates that in each case where a position of Commonwealth's attorney became vacant, the Council did authorize the continued employment of the employees of the former Commonwealth's attorney until such time as the Governor appointed the successor of the Commonwealth's attorney. At the April 23, 1992 meeting, the Council adopted a formal motion establishing a standing policy authorizing the continuation of employment of the employees of a former Commonwealth's attorney or county attorney unless the Attorney General, temporary Commonwealth's attorney or temporary county attorney directs otherwise. Therefore, even assuming that KRS 15.715(4) does not implicitly authorize the automatic continuation of such employment (subject to disapproval by the Attorney General or designated prosecutor) , the Prosecutors Advisory Council has so directed pursuant to its authority under KRS 15.705.
Question Three : What compensation, if any, is the attorney appointed to perform the duties of an acting or interim Commonwealth's attorney (pending appointment by the Governor of the attorney to the serve the remainder of the term of office) entitled?
First of all, we note that KRS 15.715(4) does not require such an appointment and further that subsection (5) of that statute authorizes the Attorney General to direct a Commonwealth's attorney or county attorney from another circuit or district to be appointed by the Attorney General to assume the responsibilities of a vacant Commonwealth's attorney position.
Next, we note that, "the great weight of authority is that de facto officers are not entitled to compensation, and that this rule has been consistently followed in this State." Brown v. Shannon, 280 Ky. 88, 132 S.W.2d 525 (1939). In Hubbard v. Ledford, 258 Ky. 704, 81 S.W.2d 569, 570 (1935), the Court discussed a slightly different situation where the person who was acting as a de facto officer had been under a good faith belief that he was a de jure officer. The Court stated in pertinent part:
The appropriate rule is that where it appears the de facto officer is not a mere intruder or usurper, but has acted in good faith and under fair color of title to the office, the de jure officer is limited in his recovery of the de facto officer to the fees or salary received, less the amount necessarily and actually expended in conducting the office . . . . Indeed, the weight of authority is to the effect that where the de facto officer entered in good faith, believing he was entitled to the office, the profits, and not the entire amount received, are recoverable. The de jure officer may recover the value of the office during the period held by the de facto officer, to be measured by considering the trouble, the expenses and the responsibilities of the office.
(Citations and internal quotations omitted.)
However, the individual designated by the Attorney General as a temporary or interim Commonwealth's attorney pursuant to KRS 15.715(4) is not a de facto officer. Such person holds the position pursuant to statutory authorization, and therefore would be a de jure officer. The law regarding de jure officers is that they are entitled to compensation at the same rate as the officer in whose place they act during the period that they had the responsibilities of that office. Although we have stated that KRS 69.060 is not directly applicable to situations in which the position of Commonwealth's attorney becomes vacant, we believe that the situation is sufficiently analogous that the legislative directive in that statute would apply regarding the compensation. The statute indicates that a temporary Commonwealth's attorney "shall receive for his services the same compensation which the regular commonwealth's or county attorney would receive for such criminal prosecutional duties, on a proportional basis, to be paid out of the state treasury on certificate of the circuit court clerk."
However, we note also that, rather than appointing a temporary Commonwealth's attorney, the Attorney General could authorize the previously appointed assistant Commonwealth's attorney to continue to prosecute criminal cases pursuant to KRS 69.090. If the assistant Commonwealth's attorney were simply directed to continue to perform his regular duties under that statute, the assistant Commonwealth's attorney's compensation would remain at the previously established amount for an assistant Commonwealth's attorney.
Question Four : What restrictions, if any, apply to the authority of the acting or interim Commonwealth's attorney?
This question presupposes that the Attorney General has designated a temporary Commonwealth's attorney pursuant to KRS 15.715(4). Any restrictions or limitations on the authority of such an appointee should be established in writing prior to or at the time of such an appointment, either by the Attorney General or by the Prosecutors Advisory Council. In the absence of any established restriction, the temporary Commonwealth's attorney would have the full authority of the regular Commonwealth's attorney. See Wells v. Miller, 300 Ky. 680, 190 S.W.2d 41 (1945); Royster v. Brock, 258 Ky. 146, 79 S.W.2d 707 (1935).
We again note that the same questions and answers could be applied to a county attorney regarding his responsibility to prosecute criminal cases in the district court, but not as the county government's legal counsel.
We hope that this information will be sufficient to clarify these issues.