Request By:
Mr. Gardner D. Wagers
Clark County Judge/Executive
Courthouse
P.O. Box 5
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions relate to the deputy of the county judge/executive.
First, you ask whether the county judge/executive is limited to one deputy. The answer is "yes". H.B. 152 (Ch. 118, § 15, 1978 Acts) created a new section in KRS Chapter 67, which provides in part that 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. In considering the ordinary use of language, this simply means that he can appoint only one deputy.
In Griffin v. City of Bowling Green, Ky., 458 S.W.2d 456 (1970) 457, Judge Vance wrote that "where the words used in a statute are clear and unambiguous and express the legislative intent, there is no room for construction and the statute must be accepted as it is written." "A" deputy simply means one deputy. Webster's New World Thesaurus, Charlton Laird, page 1. The legislative intent is clear.
The next question: What is the extent of the deputy's authority?
Under Section 15 of H.B. 152, "Such deputy may exercise all administrative powers, duties, and responsibilities of that office [county judge/executive], and may assume such other responsibilities as shall be prescribed in the administrative code of the county." It can be seen that the deputy may exercise all statutory powers and duties of the office of county judge/executive. While the administrative code of the county may prescribe additional duties for the deputy, the administrative code can rise no higher than the statutes. The administrative code provisions must conform strictly to any statutory powers given the county judge/executive. Thus if the deputy is substituting for the county judge/executive on the county health board, he has the full powers of the county judge/executive in voting and discussing questions arising before that body. See KRS 212.020.
In your third question you ask whether the deputy can act only in the absence of the county judge/executive. It may be noted that in dealing with the old county judge pro tem, KRS 25.140 provided that pro tem can serve for the county judge when the county judge is absent, or is unable or disqualified to act. However, KRS 25.140 was repealed by Acts 1976 (Ex. Sess.) Chapter 14, § 491. Under the old statute [KRS 25.140] the court, in Cox v. Allen, 188 Ky. 598 222 S.W. 932 (1920) 934, held that the county judge pro tem could act for the county judge when the county judge was absent from the county, or for any cause was unable to attend and perform the duties of the office. But this decision involved the judicial function of the county judge. The court said that to construe the statute as the county judge did in that case would result in having two or more county judges in the same county at the same time. The court said that such would establish the possibility of making contradictory orders concerning the same matter at the same time. The county judge/executive performs only executive functions. It is our opinion that, whenever the county judge/executive is absent from his office or is unable to act as county judge/executive for any good reason, he can instruct his deputy to act for him. Of course where the county judge/executive is ill or incapacitated such that he cannot request his deputy to act, the deputy can act in his stead where the circumstances would demand. It is not necessary that the county judge/executive be physically out of the county in order for his deputy to act in his stead.
Since the county judge/executive is no longer a judicial officer and is now an executive and administrative officer, it is our opinion that the county judge/ executive can direct his appointed deputy to assist him in carrying out his executive and administrative statutory functions, even though the county judge/executive is not absent from his office and his work and is not ill. There is case law authority for the general rule that a deputy of an officer is one having power to do every act which the principal might do. Connors v. Jefferson County Fiscal Court, 277 Ky. 23, 125 S.W.2d 206 (1939) 209. However, a deputy's authority to act is subject to legislative direction. Here § 15 of H.B. 152 permits the deputy to "exercise all administrative powers, duties, and responsibilities of that office" [county judge/executive].