April 16, 2024
OAG 24-03
Subject:
A county judge/executive’s authority to appoint a deputy and
assistants and establish their salaries, and a fiscal court clerk’s
duty to publish notice of fiscal court meetings when certain
conditions are met.
Requested by:
Larry Russell Bryant
Adair County Judge/Executive
Written by:
Marc Manley, Assistant Attorney General
Office of Civil and Environmental Law
Syllabus:
A county judge/executive has unilateral authority to appoint a
deputy to serve at his or her pleasure. However, a county fiscal
court has the authority to establish the number of additional
assistants and a reasonable salary for all such appointees.
If a statute requiring the county to publish notice of its activity or
action is silent as to who is responsible for the publication, then
the county clerk is responsible for publishing the notice
regardless of whether the county clerk also serves as the clerk of
the fiscal court.
Opinion of the Attorney General
Larry Russell Bryant is the Adair County Judge/Executive. He has requested
an opinion regarding his authority to appoint a deputy judge/executive and additional
administrative assistants. He also asks who is responsible for publishing “legal
advertisements as specified in KRS 424.150 and KRS 67.090.”
The power to appoint county officers and employ county personnel is generally
reserved to the county fiscal courts. See KRS 67.080(1)(f); KRS 67.083(3). The county
judge/executive also has the “authority to appoint, supervise, suspend, and remove
county personnel,” “with the approval of the fiscal court.” KRS 61.710(7) (emphasisOpinion of the Attorney General 24-03
April 16, 2024
Page 2
added). However, “[n]otwithstanding the provisions of KRS 67.710(7), the county
judge/executive of any county may appoint a deputy county judge/executive, and a
reasonable number of other assistants, secretaries, and clerical workers within the
office of the county judge/executive as determined by the fiscal court, who shall serve
at his pleasure.” KRS 67.711(1). While the fiscal court has the sole authority to
establish the “reasonable number” of other assistants, the position of deputy
county/judge executive is established by statute and the authority to fill that position
lies solely with the county judge/executive “at his pleasure.” Id. Similarly, once the
fiscal court establishes the “reasonable number” of other assistants, the county
judge/executive has the sole power to appoint the individuals to fill those positions.
Id.
Although the county judge/executive has the sole power to appoint these
individuals “notwithstanding KRS 67.710(7),” “[t]he fiscal court, pursuant to
KRS 64.530(4), shall fix reasonable compensation for the deputy county
judge/executive and such other employees.” KRS 67.711(1) (emphasis added). The
word “shall,” when used in a Kentucky statute, is mandatory. KRS 466.010(39). As
the Attorney General has previously opined, “[u]pon the appointment of a deputy
county judge executive by the county judge executive pursuant to KRS 67.711, the
fiscal court has the positive duty to provide a reasonable salary for the deputy.”
OAG 82-515.1
Finally, the Adair County Judge/Executive asks for “a legal determination of
the duties of the Fiscal Court Clerk, specifically, the responsibilities for legal
advertisements as specified in KRS 424.150 and KRS 67.090.” The Adair County
Fiscal Court has hired a new clerk of the fiscal court because the previous clerk of the
fiscal court resigned and the Adair County Clerk has declined to assume that role.
See KRS 67.120(1) (“Except in counties containing a city of the first class or a
consolidated local government, the county clerk, at his option, shall be clerk of the
fiscal court.”). Because the position of Adair County Fiscal Court Clerk has been filled
pursuant to KRS 67.120(2), her statutory duties are to “attend [the fiscal court’s]
sessions and keep a full and correct record of all the proceedings of the court, together
with a complete index, and . . . perform such duties as may be required of [her] by the
court.” The Adair County Fiscal Court did not include among the job descriptions it
posted for the new Adair County Fiscal Court Clerk the responsibility to publish legal
advertisements.
1
The Adair County Judge/Executive also asks the Attorney General to opine as to what is
“reasonable compensation.” Similarly, he asks how the fiscal court can determine what constitutes a
“reasonable number” of assistants. However, these are policy questions, not legal questions. Only the
fiscal court can determine what is a “reasonable number” of assistants, or what is a “reasonable” salary
for the deputy and other assistants, after considering all of the relevant factors before it, including but
not limited to budget constraints, comparable salaries for comparable work, and salaries previously
approved for appointees in similar positions.Opinion of the Attorney General 24-03
April 16, 2024
Page 3
According to the Adair County Attorney, the historical practice in Adair
County was “for the judge executive’s office to advertise fiscal court notices.”
However, there is no statutory basis for the judge/executive to publish notices that
are required to be published under KRS Chapter 424. Rather, unless otherwise
specified by statute, the person responsible for publishing “an activity or action”
taken by the county is the county clerk. KRS 424.150(2)(c).2 For example, “[a]ll county
ordinances and amendments shall be published pursuant to KRS Chapter 424 after
passage and may be published in full or in summary form at the discretion of the
fiscal court.” KRS 67.077(2). However, this statute does not expressly state who is
required to publish newly enacted ordinances and amendments. Because
KRS 67.077(2) does not specify who is required to publish a newly enacted ordinance
or amendment, KRS 424.150(2)(c) requires the county clerk to cause the publication
to be made. While KRS 67.120(1) may allow a county clerk to decline the
responsibilities of the clerk of the fiscal court, there is no similar provision in
KRS Chapter 424 allowing him or her to decline the responsibility of posting legal
advertisements when a statute requiring the publication is silent as to who is
responsible for causing it to be made.
Nevertheless, at least one statute requires the clerk of the fiscal court to cause
a publication to be made. Under KRS 67.090(1):
The fiscal court of each county shall hold its sessions at the county seat
or at other county government centers within the county as authorized
by the fiscal court. On the seventh day prior to any meeting of the fiscal
court at a site other than the county seat, the clerk of the fiscal court
shall, for one (1) day, publish notice of the meeting in a newspaper as
provided by KRS Chapter 424.
Although the plain text of KRS 67.090(1) requires “the clerk of the fiscal court”—not
the county judge/executive or county clerk—to publish the required notice, the notice
need only be published when the fiscal court meets at a location “other than the
county seat.”
2
Compare this provision with KRS 424.150(b), which requires activities and actions of a city to be
published by the city clerk, but if no city clerk exists, then the responsibility falls to the mayor.
KRS 424.150(2)(c), in contrast, does not require the judge/executive to publish notices in the event
there is no clerk. Thus, whether the responsibility ultimately falls to the county clerk or the clerk of
the fiscal court, which can be confusing in situations where the county clerk has chosen not to be the
clerk of the fiscal court, there is no support under KRS 424.150 to require the judge/executive’s office
to cause legal publications of the county’s actions to be made.Opinion of the Attorney General 24-03
April 16, 2024
Page 4
The Adair County Judge/Executive has not elaborated further on which
publications he believes are the responsibility of the Adair County Fiscal Court Clerk.
But the Attorney General need not enumerate every statute that requires a county
to publish its activity or action in accord with KRS Chapter 424. Simply put, if a
statute explicitly says the clerk of the fiscal court is responsible for the publication,
then that statute controls. See, e.g., KRS 67.090(1). If the statute does not specify who
is responsible, then the responsibility lies with the county clerk. KRS 424.150(2)(d).
Russell Coleman
ATTORNEY GENERAL
Marc Manley
Assistant Attorney General