Request By:
Mr. Floyd B. Hay, M.D.
207 E. Cumberland Street
Albany, Kentucky 42602
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter indicates that at one time a county hospital [with Hill-Burton financial aid] was in operation in your county. See KRS 216.040. Seven years ago the magistrates (fiscal court) deeded the hospital to a board of five men, which they appoint and keep within a family circle. The chairman of the board is a well known grocer, and his son is the administrator of the hospital. The two young doctors have their offices in the board chairman's building. You ask about the legality of this situation.
If this is actually a county hospital, as envisioned under KRS 216.040, it is required to remain under the control of the fiscal court by that statute. There is no way the fiscal court can legally delegate its overall supervisory control of a "county hospital" to any individual or corporation. So the critical fact here is whether or not this is a county hospital. The court has interpreted this statute, KRS 216.040, to mean that the county is not permitted to take a private corporation into partnership in conducting such public enterprise. The Supreme Court of Kentucky, in Knox Cty. Fiscal Court v. Knox Cty. Gen. Hosp., Inc., Ky., 528 S.W.2d 672 (1975), reiterated the principle that a fiscal court may sell or lease property for the purpose of being operated as a hospital, but if it is to be operated as a county hospital it must remain under the control of the governing body directly responsible to the county voters, which is the fiscal court.
If this is a county hospital then to surrender its operation to a board is to surrender official responsibility and to delegate the public function to persons who are not responsible to the people. See also Booth v. City of Owensboro, 274 Ky. 325, 118 S.W.2d 684, 686 (1938).
If this is not being operated as a county hospital, then the fiscal court should have nothing to do with its operational control. If this is not legally a county hospital, then if the chairman of the board wants his son to be administrator, there is no law to prevent it. If this is a county hospital, then the fiscal court is responsible for hiring a competent administrator and competent hospital employees, regardless of whose kinfolks they may be.
The statutes do not demand that a county or city maintain a hospital as a function of government; they merely require that if a hospital is maintained as a public, governmental institution, it be controlled and managed by public officials. Abernathy v. City of Irvine, Ky., 355 S.W.2d 159 (1962).
The fiscal court can set up a board, or similar agency, to take care of the day by day operations of a county hospital, but the board must operate within the scope of administrative and ministerial decisions, policies and directives of the fiscal court in the operation and management of the county hospital.