Request By:
Mr. Ralph Ed Graves
Commissioner
Department for Local Government
Capitol Annex
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 77-619, in view of the present ruling of the Supreme Court of Kentucky as to the unconstitutionality of the Home Rule statute [KRS 67.083], we concluded that there is no valid statute authorizing a fiscal court to create an Equal Opportunity Coordinator to administer the county's affirmative action program. The Supreme Court of Kentucky, in Fiscal Court of Jefferson County v. City of Louisville (76-604) [decided September 16, 1977] held in effect that a county has no legislative function under the terms of § 29 of the Kentucky Constitution. We concluded that while KRS 344.300 impliedly would authorize the establishing of such Equal Employment Opportunity Coordinator, the statute cannot be used for such purpose since it would contravene the holding of the Supreme Court for the reason that such establishing of that position would indeed be a legislative act. And the Supreme Court says there is no such thing [constitutionally] as a legislative act of a fiscal court.
You request that we reconsider OAG 77-619 in light of the fact that counties are required to have an Equal Employment Opportunity Coordinator as a condition precedent to receipt of federal funds, including revenue-sharing funds and community development block grants. All counties are required to be nondiscriminatory in employment practices, which necessarily requires a qualified Equal Opportunity Coordinator. See also 31 U.S.C.A. § 1242. You are asking: Is there any way out of this dilemma under the present holding of the Supreme Court? The answer is "no". The tragic element is that any local government which does not have an acceptable affirmative action program is considered in noncompliance; and all federal funds may be discontinued. It would create serious fiscal difficulties if these various funds turned over to local governments [revenue-sharing, community development block grants, and grants from Federal Law Enforcement Assistance Administration] were terminated.
As you say, KRS Chapter 344 makes it an unlawful practice for an employer [including a county] to discriminate in hiring, classification, compensation or their benefits, and authorizes a county to adopt and enforce ordinances prohibiting such discrimination.
You suggest that the employment of an EEO Coordinator is an administrative act necessary for the administration of KRS Chapter 344. Unfortunately, it is our view that the creation of the position of EEO Coordinator is a legislative act. And the Supreme Court says that the fiscal court cannot act in a legislative capacity. The Supreme Court wrote that "Fiscal courts of this Commonwealth are not legislative bodies under the Constitution and the General Assembly cannot declare them as such." (Emphasis added). The court's opinion is couched in trenchant and unequivocal language which, at the end, reaches a crescendo of constitutional absolutism. In this incredibly inflexible declaration we can find no way in which the legislature can delegate a legislative function to fiscal courts, including the authority to create a new county office such as EEO Coordinator. While the case of
Veith v. Tinnell, 307 Ky. 575, 210 S.W.2d 930 (1948) 932, suggests that fiscal court can create an office where the General Assembly has expressly delegated such authority, the absolute position taken by the Supreme Court of Kentucky will not now permit the legislature to delegate legislative powers to fiscal courts.
The Supreme Court's decision on Home Rule, as it presently stands, points up the disastrous disability of fiscal courts and the General Assembly to pass implementing ordinances and statutes, which are necessarily of a legislative character, in order to meet mandatory conditions of financial assistance from the federal government. Note the tough and explicit requirements as to nondiscrimination employment practices as condition precedents in the administration of the revenue-sharing program at 31 U.S.C.A. § 1242 and 31 C.F.R. §§ 51.50 to 51.71. Note especially the detailed fiscal and auditing procedures applicable to the use of revenue-sharing funds by a political subdivision in connection with assuring compliance with the nondiscrimination employment practices laws, as set forth in 31 C.F.R. § 51.70.
In summary, this monumental dilemma as to the delegation of legislative authority to fiscal courts rests only with the Supreme Court of Kentucky.