Request By:
Mr. Russell Stephens
Harrison County Judge
Cynthiana, Kentucky 41031
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Cynthiana-Berry-Harrison County Planning Commission is jointly funded by the county and the city of Cynthiana. KRS 100.177. The commission takes the position that it has two employees, a part time secretary and a "zoning enforcement officer. " The zoning enforcement officer has reached age 70 and, under an ordinance of the City of Cynthiana which makes retirement mandatory at age 70, the city has taken steps to enforce the ordinance against the zoning enforcement officer. Your major question is whether the city ordinance applies, or whether the commission has authority to control conditions of his release.
The commission has its own bank account, which represents deposits derived from legislative appropriations from the City of Cynthiana and Harrison County Fiscal Court and from building permits. KRS 100.177. Mr. John Juett, the Chairman of the Commission, said by telephone that neither Cynthiana nor Harrison County has a building code-inspection-permit system. He said the city historically issued permits for buildings, but only in connection with compliance with the city's zoning regulations. When the joint planning commission was created in 1976, this matter of issuing the permits and checking on zoning regulation compliance was assigned by Cynthiana and Harrison County to the zoning enforcement officer. The permit fees are permitted to be spent by the commission for commission expense of operation. Thus the zoning enforcement officer's salary is paid out of the commission's bank account. Mr. Juett also told us that Mr. Stevens, the zoning enforcement officer, actually performs no planning work, as envisioned by KRS 100.173. He said that the commission, by formal action, never hired Mr. Stevens as an employee of the commission. The commission did recommend him to the city. Mayor Melvin Hampton by telephone informed us that some three years ago the city by formal action employed Mr. Stevens, as a part time employee, to issue permits in connection with city zoning regulations. In 1976, when the joint planning unit was created, apparently the city and county permitted Mr. Stevens to continue his work as zoning compliance officer under the "apparent authority" of the planning commission. The city and county agreed that the permit fees would go into the bank account of the commission and would be used to pay Mr. Stevens' salary.
It is our opinion that KRS 100.173 envisions the hiring of personnel by the commission to carry out the commission's statutory duties only. Such duties would not include the issuance of permits for zoning compliance. This is a function of city and county. This function of Mr. Stevens is apparently equivalent to the function of an administrator of zoning regulations as mentioned in KRS 100.271 [see also KRS 100.267], which administrator must be designated by the city or county to administer zoning regulations. Since Mr. Stevens' major role [90% of the permits relate to buildings constructed within the city limits of Cynthiana] is issuing permits for buildings in the city of Cynthiana and checking on city zoning compliance, we are of the opinion that Mr. Stevens is a city employee and comes under the city ordinance relating to mandatory retirement. See Shamburger v. Commonwealth, Ky., 240 S.W.2d 636 (1951) 637, dealing with the matter of determining the existence of an employer-employee relationship for purposes of social security. Here the fees paid for permits on constructions in the city in reality belong to the city of Cynthiana. And the bank account of the commission, in connection with the payment of Stevens' salary, is merely a conduit of city administration, since Mr. Stevens' work is not a legitimate part of the commission's statutory functions.
Finally, see Franklin County v. Webster, Ky., 400 S.W.2d 693 (1966), pointing out that a city cannot alter or enlarge the functions of an agency created under KRS Chapter 100 where the agency's powers are clearly defined by the statutes.