Request By:
Mr. Mark E. Gormley
Woodford County Attorney
Courthouse
Versailles, Kentucky 40383
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In Section 16 of H.B. 152 (1978 Session) a new section in KRS Chapter 67 is created to read:
"Notwithstanding the provisions of KRS 67.710(7) the county judge/executive of any county may appoint a deputy who shall serve at his pleasure. Such deputy may exercise all administrative powers, duties, and responsibilities of that office and may assume such other responsibilities as shall be prescribed in the administrative code of the county."
Your question is whether that section would authorize such deputy, in the absence of the county judge/executive, to serve as chairman of fiscal court meetings, presiding, ruling and breaking tie votes much the same as the old county judge pro tem.
It is our opinion that under the express language of Section 16 of H.B. 152 (county government bill) in the absence of the county judge/executive the deputy appointed under the bill can serve as chairman of fiscal court meetings, with the authority to preside over the meeting, rule on parliamentary questions, vote on questions and break tie votes as described in KRS 67.040.
While the present KRS 67.040 speaks in terms of the "county judge pro tem" , the old county judge pro tem statutes have been repealed. See KRS 25.140, which was repealed by Acts of 1976 (Ex. Sess.), Ch. 14, § 491, effective January 2, 1978. In legal effect H.B. 152 amends KRS 67.040 as a later legislative expression. While amendments or repeals by implication are not favored, the intention to change a preexisting statute is clearly made out, as in the case here. See
City of Eddyville v. City of Kuttawa, Ky., 343 S.W.2d 404 (1961) 406. Section 7 of H.B. 152 [1978 Session] amends KRS 67.040 by deleting the county judge/executive pro tem. Thus under this new provision, effective June 17, 1978, if the county judge/executive is absent or unable to preside, a majority of the justices of the peace or commissioners [as the case may be] shall elect one of their number to preside over the fiscal court. However, it is our opinion that under Section 16 of H.B. 152, the county judge/executive may appoint a deputy, and such deputy can preside over fiscal court in his absence. It is our view that the county judge/executive pro tem was deleted since the statute which originally provided for his creation, KRS 25.140, was repealed in the 1976 Extraordinary Session, Ch. 14, § 491. Thus the term "county judge/executive pro tem" was a nonexistent term.
As above indicated, under Section 16 of H.B. 152 the deputy appointed by the county judge/executive may exercise "all administrative powers, duties, and responsibilities" of the office of county judge/executive. (Emphasis added). The fiscal court, while it performs certain acts legislative in character, 1 performs duties that are quasi-judicial and administrative in nature.
Knott County v. Michael, 264 Ky. 36, 94 S.W.2d 44 (1936) 45; and
Shelton v. Smith, 284 Ky. 236, 144 S.W.2d 500 (1940) 501. However, in using the term "administrative powers", in Section 16 of H.B. 152, we are of the opinion that the legislature used the term in its broad constitutional sense, as envisioned in a tripartite government. The county judge/executive is a part of the executive branch of government who serves on fiscal court, the county governing body possessing quasijudicial, legislative and administrative functions. The legislative intent was that the deputy was to stand in the shoes of the county judge/executive in connection with any of his statutory duties, including serving on fiscal court. If they had intended to except the deputy from serving on fiscal court, they could have so easily said so.
As another option, the fiscal court may, under KRS 67.710(8), pass an ordinance establishing the administrative office of county judge/executive pro cem to serve in the absence of the county judge/executive or when he is ill or otherwise unable to carry out the functions of that office.
Under either option, it would be up to the fiscal court to provide compensation for such stand-in officer.
Footnotes
Footnotes
1 Fiscal Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977).