Request By:
Mr. Scott Allan Wilson
Attorney
Kentucky Association of Counties
323 Shelby Street
Frankfort, Kentucky 40602
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A new statute, KRS 67.711, was enacted in 1978 [H.B. 152, Ch. 118, 1978 Acts, § 15], which reads:
"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."
The legislature eliminated the "county judge/executive pro tem" from KRS 67.040 [H.B. 152, Ch. 118, 1978 Acts, § 7]. The statute deals with the makeup of the fiscal court, and who shall preside, etc.
In prior opinions we concluded that the county judge/executive deputy can perform any statutory function which the county judge/executive is authorized to perform, which would include the deputy's presiding over fiscal court in the absence of the county judge/executive. You are asking us to reconsider our conclusion as specifically relates to the matter of presiding over fiscal court meetings.
First, you question our conclusion on the ground that KRS 67.711 relates only to the administrative powers of the county judge/executive, but does not include his legislative function as a member of the fiscal court.
The simple answer to that is that the legislature, in using the general term "administrative", intended that the deputy could exercise any power exercisable by the county judge/executive. The term "administrative" is really residual in nature, since under the Judicial Amendment to the Constitution the county judge has been stripped of his judicial function. The county judge/executive is basically an administrative officer, although the fiscal court in certain enactments acts in a "legislative capacity."
Commonwealth v. Kenneday, 118 Ky. 618, 82 S.W. 237 (1904) 238. In
Shelton v. Smith, 284 Ky. 236, 144 S.W.2d 500 (1940) 501, the court wrote that "The fiscal court exercises legislative and ministerial powers as well as powers in their nature quasi-judicial." (Emphasis added). Thus because of this mix in the character of fiscal court actions, it can be reasonably said that if one word is to generally characterize a member of fiscal court, it is the word "administrative." The word "ministerial" is defined as "being or having the characteristic of an act or duty prescribed by law as a part of the duties of an administrative office. Webster's Seventh New Collegiate Dictionary, p. 539. Moreover, there is nothing in the case law that suggests considering the county judge in a separate capacity as a strictly "legislative" officer, although the courts did delineate the separate role as a judicial officer.
Fiscal Court of Jefferson Co. v. City of Anchorage, Ky., 393 S.W.2d 608 (1965) 613.
Section 29 of the Kentucky Constitution provides that the legislative power is vested in the House of Representatives and a Senate. The fiscal court in § 144, Constitution, is not characterized as the legislative body of the county. The court, in Fiscal
Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977), in referring to powers exercisable by a fiscal court, spoke in terms of its "administering" county government, and the General Assembly's granting of "governmental powers" to fiscal courts.
The term "administrative" has been defined as including "executive, controlling, deciding, presiding, governmental, supervising, legislative, regulative." Webster's New World Thesaurus, Charlton Laird, p. 11. This many faceted definition at once explains the legislative intent in KRS 67.711 in using a general term which embraces the multi-faceted nature of fiscal court functions. The legislature undoubtedly was faced with using a word which would generally depict the entire statutory role of the county judge/executive. That word was logically "administrative", as reflected in the above authorities. In
Knott County v. Michael, 264 Ky. 36, 94 S.W.2d 44 (1936), the court observed that "a fiscal court has some duties to perform that are judicial and others that are administrative, and it is sometimes difficult to determine when its acts are judicial and when administrative . . ." Obviously the fiscal court is not a part of the judiciary.
The county judge/executive deputy may be used to assist the county judge/executive on a day-by-day basis, in addition to filling in for him when the county judge/executive is ill, absent from the county, or is otherwise unable to perform his statutory tasks. You say that range of duties does not embrace the deputy's serving on the fiscal court in the absence or illness of the county judge/executive. Here again the answer to that argument is that the deputy can perform any statutory function prescribed for the county judge/executive. A striking parallel to this is found in KRS Chapter 15, wherein an assistant attorney general can perform any statutory or constitutional function prescribed for the attorney general.
You mention that KRS 67.040 deletes the county judge/executive pro tem. It was obvious to the legislature that with a deputy the county judge/executive did not need a pro tem. KRS 67.040 is not in conflict with KRS 67.711 [deputy county judge/executive], since the deputy merely fills in for the county judge/executive. There is no necessity for naming a deputy or proxy as a part of a standing fiscal court.
Although KRS 67.040 provides that a majority of the justices of the peace or commissioners shall elect one of their number to preside over fiscal court during the absence or inability of the county judge/executive to preside, it is our view that when sections 7 [amending KRS 67.040] and 15 [creating KRS 67.711- Deputy C.J.E.] are read together, KRS 67.711 has the effect of amending KRS 67.040. Since Section 7 of H.B. 152, amending KRS 67.040, is followed by Section 15, creating the new county judge/executive deputy statute, and even if they were deemed to be in irreconcilable conflict, Section 15 must control as it is last in order of position.
Gish v. Shaver, 140 Ky. 647, 131 S.W. 515 (1910) 516.
Since the pro tem was deleted from KRS 67.040 because of the enactment of the deputy statute, it could be argued that the court, in order to complete the sense of the statute, could construe the statute as providing that the county judge/executive, "or in his absence his deputy, " shall preside. (Emphasis added). Courts may supply words when necessary to obviate inconsistency or to complete the sense of the statute.
Bedinger v. Graybill's Ex'r & Trustee, Ky., 302 S.W.2d 594 (1957).
Finally, the legislative intent must be viewed in the context of the progressively mounting business of the fiscal court in Kentucky. The interpretation we have given the statutes accomodates the principle of promoting a continuity and proper functioning of fiscal court. The county judge/executive or his deputy will bring to fiscal court a perspective and administrative view point vital in the solution of county governmental problems. We cannot imagine that the legislature was remiss in noting the modern necessity for a county judge/executive deputy to serve on fiscal court in the absence of his principal.
For the above reasons, we are still of the opinion that the county judge/executive deputy may legally preside over fiscal court in the absence of the county judge/executive.