In a Kentucky county, who appoints the deputy judge/executive and who is responsible for publishing legal notices of fiscal court business?

Plain-English summary

The Adair County Judge/Executive asked the Attorney General two things: who has the power to appoint his deputy and assistants and set their pay, and who is responsible for publishing the county's legal advertisements.

On appointments, the opinion explains that the general power to hire county personnel sits with the fiscal court, but KRS 67.711(1) carves out an exception. The county judge/executive may appoint a deputy and a "reasonable number" of other assistants who serve "at his pleasure," notwithstanding the usual rule that personnel decisions need fiscal court approval. The split works like this: the fiscal court sets how many assistants there may be and fixes reasonable compensation for everyone, but the judge/executive alone picks who fills the deputy slot and the assistant slots. The opinion declines to say what a "reasonable number" or "reasonable" salary is, calling those policy questions for the fiscal court, not legal questions for the AG.

On publishing legal notices, the opinion sorts it out by looking at the statute that requires each publication. If a statute says the clerk of the fiscal court must publish (for example, KRS 67.090(1), which requires the clerk of the fiscal court to publish notice when the court meets somewhere other than the county seat), that controls. If the statute is silent about who publishes, the default is the county clerk under KRS 424.150(2)(c). The historical Adair County practice of having the judge/executive's office publish notices had no statutory basis. And because the county clerk in Adair County declined to serve as clerk of the fiscal court, the opinion notes that the duty to publish notices when a statute is silent still falls to the county clerk, with no provision letting the clerk decline that publication responsibility.

What this means for you

County judges/executive

Under this opinion, you may appoint your deputy judge/executive and assistants on your own, and they serve at your pleasure, but you cannot set their pay or expand their number on your own; the fiscal court does both.

Fiscal court members

The opinion reads KRS 67.711(1) and KRS 64.530(4) as giving the fiscal court the duty to set the number of assistants and to fix reasonable compensation for the deputy and other appointees. The opinion stresses "shall" is mandatory (KRS 466.010(39)), so providing a reasonable salary for an appointed deputy is a duty, not an option.

County clerks and clerks of the fiscal court

The opinion's default rule is that the county clerk publishes county legal notices when a statute requiring publication does not name who is responsible (KRS 424.150(2)(c)), and there is no provision letting the county clerk decline that publication duty. A clerk of the fiscal court has the publication duty only where a statute specifically assigns it, such as the off-county-seat meeting notice in KRS 67.090(1).

County attorneys

The opinion is a clean statement of the appointment split and the publication default. Note the distinction it draws between KRS 424.150 as applied to counties (no fallback to the judge/executive) and the city provision, where the duty can shift to the mayor if there is no city clerk.

Common questions

Q: Can the fiscal court block the judge/executive from naming a particular deputy?
A: No. Under the opinion, once the fiscal court has set the number of positions, the judge/executive alone appoints the people who fill the deputy and assistant slots, and they serve at his or her pleasure under KRS 67.711(1).

Q: Who decides the deputy's salary?
A: The fiscal court. The opinion says the fiscal court "shall fix reasonable compensation" for the deputy and other employees (KRS 67.711(1), KRS 64.530(4)), and treats providing a reasonable salary as a mandatory duty.

Q: Will the Attorney General say what a "reasonable" number of assistants or salary is?
A: No. The opinion treats those as policy questions for the fiscal court to decide based on budget, comparable salaries, and prior practice, not legal questions for the AG.

Q: If a publication statute does not say who publishes, who does?
A: The county clerk, under KRS 424.150(2)(c). The opinion says there is no basis for the judge/executive's office to do it and no provision letting the county clerk decline.

Q: When does the clerk of the fiscal court have to publish notice?
A: When a statute specifically assigns it. The example given is KRS 67.090(1): when the fiscal court meets somewhere other than the county seat, the clerk of the fiscal court must publish notice seven days ahead for one day in a newspaper.

Background and statutory framework

The fiscal court generally holds the power to employ county personnel (KRS 67.080(1)(f), KRS 67.083(3)), and the judge/executive's appointment power ordinarily runs "with the approval of the fiscal court" (KRS 61.710(7)). KRS 67.711(1) overrides that for the deputy judge/executive and a fiscal-court-determined number of other assistants, who serve at the judge/executive's pleasure, while the fiscal court fixes their reasonable compensation under KRS 64.530(4). The word "shall" is mandatory (KRS 466.010(39)). On publication, KRS 424.150(2)(c) makes the county clerk responsible for publishing a county "activity or action" when the underlying statute is silent; KRS 67.077(2) requires county ordinances to be published but does not name the publisher; and KRS 67.090(1) specifically requires the clerk of the fiscal court to publish notice of meetings held away from the county seat. KRS 67.120(1) lets the county clerk choose whether to serve as clerk of the fiscal court, and KRS 67.120(2) governs filling that position when the county clerk declines. The opinion follows the Office's prior opinion OAG 82-515 on the fiscal court's duty to fund a deputy's salary.

Citations and references

Statutes:
- KRS 67.080(1)(f), KRS 67.083(3), KRS 61.710(7) (fiscal court and judge/executive personnel authority)
- KRS 67.711(1), KRS 64.530(4), KRS 466.010(39) (deputy/assistants serve at pleasure; fiscal court fixes pay; "shall" mandatory)
- KRS 67.120(1), (2) (county clerk option to serve as fiscal court clerk)
- KRS 424.150(2)(c), KRS 67.077(2), KRS 67.090(1) (publication responsibilities)

Prior opinions: OAG 82-515 (fiscal court's duty to provide a reasonable deputy salary)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/Opinion%20of%20the%20Attorney%20General%2024-03.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

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) (emphasis 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.

[Footnote: 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.]

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.

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). 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."

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