Request By:
Mr. Mitch McConnell
County Judge/Executive
Courthouse
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your letter you seek an opinion of this office with respect to KRS 67.076, enacted by the 1978 Session of the Kentucky General Assembly. As you say, the statute relates to acceptable procedure for the enactment of a county ordinance; and it spells out certain specific requirements in connection therewith. Subsection (5) of the statute provides that "county ordinances shall be amended by ordinance and only by setting out in full each amended section."
Your question is as follows:
"If, prior to enactment of an ordinance, but subsequent to that ordinance's first reading and publication, the fiscal court wishes to amend said ordinance, must that amendment take the form of a county ordinance subject to all the restrictions of KRS 67.076 through 67.078?"
The key to subsection (5) is partly found in the phrase "county ordinances shall be amended . . ." Now the pertinent question here is what are "county ordinances" in this context? The answer to your question is found in KRS 67.075(1) which reads as follows:
"For the purposes of this chapter, the following words shall have the following meanings:
"(1) 'County ordinance' means (a) an official written act of a fiscal court, the effect of which is general and lasting in nature, which is enforceable within the jurisdiction of the county; or (b) a lawful appropriation of money. "
The courts have established the principle that where a statute defines words used therein the court looks to the legislative definition rather than dictionaries or common usage.
Wohrley, Inc. v. Commonwealth, Dept. of Rev., Ky., 495 S.W.2d 173 (1973) 174.
In answer to your question it is our opinion that, based upon the express language of the definition of "county ordinance" as contained in KRS 67.075 and the express wording of KRS 67.076(5), there can be no valid amendment of a proposed ordinance that has not been fully enacted and made into law as covered in KRS 67.075 through KRS 67.078. Thus subsection (5) of KRS 67.076 refers only to the amendment of county ordinances that have been enacted under the subject statutes and have already become local law. Unfortunately the current statutes do not permit the amendment of a "proposed ordinance" that has not become the law.
An ordinance under the definition is simply an official written act of fiscal court "which is enforceable" or "is a lawful appropriation of money" , except where the context provides otherwise. (Emphasis added). Thus an "ordinance" is used contextually in two senses throughout KRS 67.076 through 67.078: (1) a proposed ordinance; and (2) an enacted ordinance. Now turning to the language of subsection (5) of KRS 67.076, "county ordinances shall be amended by ordinance . . .", we find it clearly involves two separate ordinances: the one in question (already passed) and the amending ordinance. This leaves no room for the amending of an ordinance which has not yet been enacted.
It is evident from reading KRS 67.075 through 67.078 that the legislature, in writing the definition of "county ordinance" in KRS 67.075(1), inadvertently omitted the qualifying phrase: "unless the context provides otherwise", which inclusion is a common legislative technique. The courts have held that they (the courts) "may supply clerical or grammatical omissions in obscure phrases or language of a statute in order to give effect to the intention of the legislature . . ."
Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248 (1960). Since the duality of application is at once evident from the face of these statutes, we believe the courts would give it the meaning we have [KRS 67.075(1)] in accommodating this obvious duality of meaning, i.e., a "proposed ordinance" and an "enacted ordinance. "
By way of contrast there are explicit provisions in the law providing for the amending of bills of the General Assembly. A bill may be amended at any time before final passage. See Rules of the House and Senate, Kentucky General Assembly, and § 39, Kentucky Constitution, providing that each house may determine the rules of its proceedings.
It is noted that the subject statutes carefully detail the procedure to be followed by fiscal courts in enacting ordinances. Nowhere in these statutes are there any provisions dealing concisely and explicitly with the procedural matter of amending an ordinance which has not been finally voted on and enacted, or the matter of the fiscal court's determining any additional procedural rules. It is our view that in this detailed context the failure to include such procedural treatment means exclusion. It is governed by the legal maxim "inclusio unius est exclusio alterius", meaning the inclusion of one thing is the exclusion of another.
Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321 (1943) 325.
Without specific legislative authorization we doubt that a fiscal court could amend a proposed ordinance solely on the claim that a recognized work in parliamentary procedure, such as Robert's Rules of Order, would authorize such action. It appears that Robert's Rules does not deal precisely with the amendment of proposed legislation as such. On page 7 of Robert's Rules of Order Newly Revised, it is stated that "each state or national legislative assembly generally has its own well-developed body of rules, . . . so that the exact procedure for a particular legislative house can be found only in its own manual." Here again we believe that KRS 67.075 through 67.078 have preempted the field in question and are controlling. While it has been said that a city or county legislative body may determine its own rules of procedure in the adoption of ordinances, that rule is subject to statutory requirements. Mason, Manual of Legislative Procedure, § 19. Cf. Mason, § 731 on amendment of bills in a state or national legislative assembly.
If a majority of the fiscal court felt the urgency of the immediate amendment of a proposed ordinance, the majority could, at the appropriate time, simply vote against the enactment of the ordinance as drafted; then at a later time the originally proposed ordinance could be redrafted and run through the legislative procedure outlined in KRS 67.075 through 67.078. We realize this involves some waste of time and money. We are outlining a practical option for fiscal courts when faced with the problem you suggest.