WEBSTER COUNTY, KY (2/8/12) – A scheduled hearing on whether a lawsuit filed on the Webster County Board of Education’s behalf should be dismissed was unexpectedly cancelled a few hours prior to the listed time, to the apparent surprise of several involved.
 
In a written court docket listing filed Feb. 2, the day of the hearing, the defendant was instructed to file a response to a new brief the school board’s attorney, Amelia Zachary, had filed. After all the briefs had been submitted, the case would be taken “under advisement” and likely decided without any further hearings. A written ruling could be filed at any time.
 
At issue is whether a committee seeking to recall a proposed six-cent tax established by the Webster County Board of Education solely for use in construction and renovation projects successfully petitioned the tax’s recall. Webster County school district officials have alleged that the committee didn’t follow several required steps, and that it may have petitioned a tax increase that couldn’t actually be recalled, as the board had also approved an increase in some of its other collectible taxes.
 
Zachary filed a lawsuit against Webster County Clerk Valerie Newell because it was her office where the petition was filed and validated, based on the signatures collected.
 
Webster County Attorney Clint Prow, who is representing Newell, filed a motion to dismiss the case on the grounds that the Webster County Board of Education didn’t take an official vote to file the lawsuit. The filing was apparently the result of a “directive” following a closed session meeting of the board. The board subsequently approved a motion to ratify the action that had been taken, but the defense persisted in its stance that the action was illegal and that the case should be dismissed.
 
More recently, Zachary filed a motion questioning Prow’s presence in the proceedings, given that the Webster County Fiscal Court never voted to authorize him to represent Newell.
 
“Nonetheless, in a spirit of full-disclosure, it must be pointed out that the Webster County Fiscal Court did not authorize Mr. Prow to file any paperwork herein or to represent the Respondent Clerk,” Zachary wrote in her “motion to consider other relevant information.”
 
Copies of minutes of the Webster County Fiscal Court meetings are included with the motion, and Zachary stated she didn’t believe Prow could represent Newell without the Fiscal Court’s authority.
 
“Indeed, the Fiscal Court has no discussion regarding this litigation,” Zachary wrote. “Unless... the closed session, not properly identified as anything but possible litigation... included a vote (illegally in an improperly identified closed session) to have Mr. Prow represent the clerk and file an answer and motion to dismiss for the clerk.
 
“Respondent, nor her counsel, believes that its argument about the authorization of the (Webster County Board of Education) is valid. Otherwise, the county attorney was allowing the Fiscal Court to conduct business which he knew was void. Counsel for the (Webster County Board of Education) is the counsel for the (Board of Education). Counsel Prow is only allowed to represent Ms. Franklin (Newell) if directed by the Fiscal Court, which it did not do.
 
“Nonetheless, this movant believes that the Fiscal Court could correct its direction to Mr. Prow, even nunc pro tunc; however, it could not correct the fact that the actions of the clerk (validating the petition) were authorized by statute. They were not. Thus, Mr. Prow could not represent the clerk,” the motion concluded.
 
Prow filed his response on Friday, stating he was “unclear” about the point of the motion. In response to her claim that the Webster County Fiscal Court must authorize him to represent Newell, Prow cites KRS 69.210, which defines the role of a county attorney. According to the response, paragraph one states, “The county attorney shall attend the fiscal court or consolidated local government and conduct all business touching the rights or interest of the county or consolidated local government, and when so directed by the fiscal court or consolidated local government, he or she shall institute, defend, and conduct all civil actions in which the county or consolidated local government is interested before any of the courts of the Commonwealth.”
 
Other paragraphs of the statute are also cited, though Prow points out only the first paragraph is referenced in Zachary’s motion. Prow in his response stated section three is relevant.
 
“The county attorney shall give legal advice to the fiscal court or consolidated local government and the several county or consolidated local government businesses within their jurisdiction. He or she shall oppose all unjust or illegally presented claims,” section three states, according to the response.
 
“Therefore, the undersigned has a statutory duty to provide legal advice to the respondent,” Prow stated. “Obviously, the Fiscal Court is not required to take specific action for the undersigned to comply with this duty. The respondent asserts that providing legal advice to the county clerk necessarily can include representing her in court. The petitioner has provided no case law that provides otherwise.”
 
Either way, Prow said he thinks it’s irrelevant whether Fiscal Court supported Prow’s representation of Newell.
 
“Although the undersigned may not be required to represent the respondent, no express authority exists that prohibits the undersigned from said representation,” the response stated in conclusion.
 
Dennis Beard
Journal Enterprise

Copyright © 2012 SurfKY News Group, Inc. all rights reserved.  SurfKY.com is an eNewspaper providing local news FREE to Kentucky 24/7.  Read Statewide Kentucky News, Sports, Obituaries and more for Kentucky covering:  Calloway, Christian, Daviess, Henderson, Hopkins, McCracken, Muhlenberg, Warren, and Webster Counties as well as the Kentucky Lakes Area.