Request By:
Mr. Julius Berry
Citizens' Advocate
Lexington Fayette Urban County Government
107 Cheapside
Court Square Building
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You are very much concerned about the role of the Citizens' Advocate of the Lexington-Fayette Urban County Government.
Section 4.11 of the charter of Urban County Government deals with the creation of the Office of Citizens' Advocate. It reads in part:
"It shall be the purpose of said office to provide the citizens of the Lexington-Fayette Urban County Government with an independent agent through whom they can seek redress of their grievances. To that end, the Citizens' Advocate shall be empowered to: a) investigate any complaint by citizens of the Urban County Government; b) disclose any abuses or irregularities on the part of the Urban County Government, its officers, agents or employees; and c) recommend such substantive or procedural policies as may be required to reduce or eliminate problems of citizen access to the departments, divisions, agencies and officers of the Urban County Government."
Your question: Does the Citizens' Advocate have the right to sit in on executive sessions of the Urban County Council? The answer is "no".
The charter was devised pursuant to KRS 67A.020. See
Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974). The Citizens' Advocate is not a constitutional officer since the office is not mentioned in the text of the Kentucky Constitution. He is purely the creature of the legislature via the statutorily authorized charter.
It is axiomatic that under Kentucky case law an officer whose office is created by statute cannot exercise any authority not conferred on him by statute.
Commonwealth v. Central Consumers' Co., 122 Ky. 418, 91 S.W. 711 (1906) 712. Judge Stanley wrote, in
Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288, 227 S.W.2d 199 (1950) 201, that powers of officers are limited to those conferred expressly by statute or which exist by necessary and fair implication, i.e., which are necessary to accomplish his express powers. However, "these implications are never to be extended beyond fair and reasonable inferences." (Emphasis added). Of course this rule extends to the method of exercising authority.
Under the foregoing authorities, it is our opinion that the Citizens' Advocate has no authority to sit in on executive sessions of the Urban County Council. The powers listed under § 4.11 of the Charter simply do not expressly or by reasonable implication include such authority.
It is well settled that no consideration of public policy can properly induce a court to reject the statutory definition of the powers of an officer.
Government of the Virgin Islands v. Gordon (U.S.C.A. -3, 1957) 244 F.2d 818, 820, 821. As the Supreme Court of the United States said in the Floyd Acceptances, 1869, 7 Wall. 666, at pages 677-678, 19 L. Ed. 169, "we have no officers in this government from the president down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority." (Emphasis added).
It can be truly said that the charter never contemplated allowing the Citizens' Advocate to participate in such discussions of proposed governmental action. We can only suggest that the Citizens' Advocate can pursue a useful and constructive role by properly implementing those powers expressly set out in § 4.11 of the charter. It should also be noted that public officials, in any branch of the government, whether executive, legislative or judicial, are entitled to no special privileges.
Sherrod v. Saunders, Cal., 234 P.2d 693 (1951) 694.
We assume that, when you referred to an executive session of the Urban County Council, you had in mind a secret meeting of the council as authorized as an exception to the open meetings law. See KRS 61.810. "An executive session in general parliamentary usage has come to mean any meeting of a deliberative assembly, or a portion of a meeting, at which the proceedings are secret. " Robert's Rules of Order Newly Revised, p. 81. We further assume from your letter that your question is specifically addressed to the matter of your right to engage in discussions by that body of governmental problems or proposed governmental action.