Request By:
Mr. Ralph Ed Graves
Commissioner
Department for Local Government
Capital Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Department for Local Government is providing assistance to county judge/executives in preparation of an Administrative Code as required by KRS 67.710. You are being requested to recommend procedures relating to executive orders of the county judge/executive.
Question No. 1:
"What constitutes an Executive Order by the County Judge/Executive and what form, if any, is required?"
An executive order is a formal document labeled as an executive order by which the county judge/executive takes some executive action, pursuant to some particular statutory power vested in him as such. Under present statutes, no particular form is provided. Such a document is adequate as an executive order, if it expresses clearly the statutory action being taken, the specific statute authorizing the action, the subject matter and parties or officials involved, and the date it is to be effective and filed in the county judge/executive order book. While the statutes do not define "executive action", there is authority for the view that a public officer is an executive in performing an act of discretion; but he is a ministerial officer if his act is imperative or mandatory under the law.
People v. Strohl, App., 129 Cal. Rptr. 224, 57 Cal. App.3d 363 (1976). Thus "where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial, but where the act to be done involves the exercise of discretion and judgment it is not to be deemed merely ministerial. " The character of a duty as ministerial or discretionary must be determined by the nature of the act to be performed. 63 Am.Jur.2d, Public Officers and Employees, §§ 273, 274, p.p. 789-790. Also see
Commonwealth v. Frost, 295 Ky. 137, 172 S.W.2d 905 (1943) 909. Thus an executive order should be executed by the county judge/executive as a documentation of an executive action, i.e., an action involving discretion in a governmental course of action or in the manner of the exercise of the statutory function.
Question No. 2:
"How is an Executive Order promulgated or published?"
The executive order must be labeled as such as a formal document or writing. While the statutes do not deal with this, if various executive statutory functions of the county judge/executive are to be properly carried out and made a public record, it is clear that certain executive actions must take the formal form of a county judge/executive order properly dated and signed by him and recorded.
Question No. 3:
"What is the legal effect of an Executive Order? Does it affect any activities other than internal administration of county government? "
The effect of the executive order, if properly drafted, signed and entered in the executive order book, would be that it would constitute the proper implementation of a particular executive action authorized by statute. Such legal effect would not extend beyond the function of government covered by the particular authorizing statute. For example see KRS 67.710 for specific powers and duties of the county judge/executive.
Question No. 4:
"How are Executive Orders kept? The county court clerk kept the Judge's Order Book of the old county court and is required to keep all records of the fiscal court (KRS 67.100), but the fiscal court does not have anything to do with executive authority (H.B. 152, p. 4, line 18-19). Are Executive Orders kept by the county court clerk? "
It is our opinion that the executive order book of the county judge/executive, since it clearly relates to county government, should be kept or maintained by the county court clerk. Here again there is no specific or express statutory treatment of this subject. However, in considering the historical and statutory function of the county court clerk as a custodian and recorder of county records generally, the overwhelming logic points to the county court clerk as the proper person to record and keep such executive orders in a book or books properly labeled Executive Order Book of the County Judge/Executive. This is the place where the public would expect to find such orders.