Request By:
Mr. William N. Wiley
LRC Staff
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 78-353, to which you refer in your letter, in connection with the appointment of parks board members, we concluded that KRS 67.710(8) amends by implication any prexisting statute to the contrary. In that opinion apparently the county judge/executive of Jefferson County removed a member of the parks board without the majority approval of the fiscal court.
KRS 67.710(8) provides that the county judge/executive, with the approval of the fiscal court, has the authority to appoint and remove members from such boards, commissions and designated administrative positions as the fiscal court, charter, law, or ordinance may create. (Emphasis added). KRS 67.710(7) provides that the county judge/executive, with the approval of the fiscal court, has the authority to appoint, supervise, suspend, and remove county personnel ( unless otherwise provided by state law ). (Emphasis added). It must be noted that KRS 67.710(8) does not contain the exceptional phrase "unless otherwise provided by state law. " In OAG 78-375 this office concluded that the fiscal court alone appoints members of the Taylor County Hospital Board. See KRS 216.323.
As you pointed out, the hospital district was established pursuant to state law.
You have written that if the Taylor County Hospital Board is created pursuant to state law (or for that matter by the fiscal court), it would seem that KRS 67.710(8) would apply, and that KRS 216.323 would be amended by implication just as KRS 97.035(2) [parks board] is amended. You have requested that we advise you on the apparent inconsistency between the two opinions just mentioned.
As you pointed out, KRS 216.323 was last amended in 1974, while KRS 67.710(8) was enacted in the Extraordinary Session of 1976, Ch. 20, § 3, effective January 2, 1978.
It is obvious that the general system wherein the county judge/executive makes nominations as to appointments or removals of board members under KRS 67.710(8) and the appointing of board members to the district hospital by the fiscal court under KRS 216.323 are in irreconcilable conflict.
"It is an elementary rule of statutory interpretation that whenever in the statutes on any particular subject there are apparent conflicts which cannot be reconciled, the later statute controls." Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400.
In Brown v. Hoblitzell, Ky., 307 S.W.2d 739 (1957) 744, the court wrote that "Apparent conflicts or repugnancies between statutes on the same general subject enacted at different times should be reconciled in the light of the existing statutes and Constitution. . . . If the conflict cannot be reconciled, the later statute controls."
KRS 67.710(8) provides in part that where the board position is created by the fiscal court or by law, the county judge/executive must make the nomination as to appointment or removal, and it is then up to the fiscal court as a body, by a majority vote, to accept or reject such nomination. Clearly district hospital board members are created by statute, that is by law. The term "law" is listed as a separate category of creation. See Allphin v. Ohio River Company, Ky., 306 S.W.2d 94 (1957).
In OAG 78-375 it was stated that the county judge/executive's power is purely executive and administrative and thus he may not appoint the members of the hospital board, even if approved by fiscal court. This seems to suggest that the power of appointing officers must be performed by the county legislative body, that is, the fiscal court. Actually, "The power of appointment to public office is generally regarded as an executive function, whether exercised by an executive officer, by a court or judge, or by a deliberative body." 63 Am.Jur.2d, Public Officers and Employees, § 90, pages 684-685. "Although appointments to public office are generally regarded as involving an exercise of an executive function, the power of appointment is not inherent in, nor does it necessarily belong to, the executive or to any other branch of the government. It is not essentially a legislative function. " Ibid, § 91, page 685.
For the forgoing reasons, and based upon the above authorities, it is our opinion, as was stated in OAG 78-353, that the general procedure of appointing and removing members of boards created by statute is governed by KRS 67.710(8), whereby only the county judge/executive can nominate for appointment and removal a particular individual member of the board, and then such nomination is subject to the acceptance or rejection by the fiscal court as a body. In addition, it must be understood that the appointing function is generally considered to be executive in nature. It is not essentially a legislative function. The procedure of KRS 67.710(8) governs over the procedure set forth in KRS 216.323. The simple point is that KRS 67.710(8) amends by implication KRS 216.323, since the former statute is the later expression of the legislative will.
To the extent that OAG 78-375 is in conflict with this opinion, it is modified accordingly.