Request By:
Mr. J. Bruce Miller
Jefferson County Attorney
1129 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions relate to appointment and removal of county personnel and board members.
Question No. 1:
"Does the County Judge/Executive have the authority to remove a member of a board, commission or designated administrative position prior to the expiration of their term, or if there is no term, without the majority approval of the Fiscal Court?"
The answer is "no". KRS 67.710(8) amends by implication any preexisting statute providing to the contrary.
City of Pineville v. Meeks, 254 Ky. 167, 71 S.W.2d 33 (1934) 36. In connection with the Parks Board removal, KRS 67.710(8) amends by implication the provisions of KRS 97.035(2), since the provisions of the two statutes are irreconcilable such that effect cannot be reasonably given to both. See City of Pineville, above. So the later legislative expression must prevail. Also note that KRS 67.710(8) does not contain the exceptional phrase "unless otherwise provided by state law", as does KRS 67.710(7). See also
Russell v. County Board of Education, 247 Ky. 703, 57 S.W.2d 681 (1933) 683.
Question No. 2:
"Does the County Judge/Executive have the authority to appoint a member of a board, commission or designated administrative position without the majority approval of Fiscal Court?"
The answer is "no". KRS 67.710(8). The consent of the fiscal court as a body is mandatory.
Question No. 3:
"Is the County Judge/Executive the sole nominating authority for such positions of a board, commission and agencies or is it within the province of the Fiscal Court itself to nominate individuals?"
Only the county judge/executive can nominate. The other members of fiscal court can suggest a nomination, but the county judge/executive does not have to agree to the nomination. KRS 67.710(8).
Question No. 4:
"Must the County Judge/Executive exhaust the complete list of applicants for a position on a board, commission or agency before asking for new applicants for such position?"
The answer is "no". His nominating persons is solely up to the county judge/executive. This new statute does not suggest that kind of restriction.
Question No. 5:
"What is the authority of the County Judge/Executive with regard to the above four questions relating to county personnel and county employees?"
It is generally the same except where a preexisting statute provides a different procedure, in which case the different procedure would govern. See KRS 67.710(7).
Question No. 6:
"Does the county judge/executive have the authority to break a tie vote of the Fiscal Court for the appointment of county personnel? "
Where the fiscal court vote is tied on selection of personnel, either under the nomination and consent procedure preexisting statute), the county judge/executive may break the tie under KRS 67.070(3).
Question No. 7:
"Does the County Judge/Executive have the power to break a vote of the Fiscal Court for an appointment to a board, commission or agency?"
The tie breaking procedure relates to any personnel being selected by fiscal court under any statutory authorization. The pertinent provision of KRS 67.070(3) is "when there is a tie vote in the fiscal court in the selection of any officer or employe to be selected by the fiscal court." (Emphasis added). Under this literal language there is no restriction as to what function such appointee carries out. Words in a statute must be given their ordinary meaning unless a different intent is set forth in the statute defining the words used.
Old Lewis Hunter Distillery Co. v. Kentucky Tax Com'n, 302 Ky. 68, 193 S.W.2d 464 (1946) 465. Further, this statute, KRS 67.070(3), applies only to filling a vacancy or unoccupied positions.
Cook v. Fihe, Ky., 358 S.W.2d 350 (1962) 351, 352. Judge Cullen, in Cook v. Fihe, above, also wrote that "In making an appointment under the statute the county judge is not breaking a tie but is simply exercising a power which the legislature has provided shall pass from the fiscal court if it fails by reason of a deadlock to exercise it." Note that KRS 76.030, relating to an M.S.D. Board, has the same consent procedure [consent of fiscal court] as KRS 67.710(8).
Question No. 8:
"Does the County Judge/Executive have the power to break a tie vote of the Fiscal Court for the removal of either a county employee or a member of a board, commission or agency?"
The answer is "no". The so called tie break procedure applies only to appointments, not to dismissals or firing.