Request By:
Mr. Roger Wm. Perry
Marshall County Attorney
Courthouse
P.O. Box 352
Benton, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Marshall County has a hospital district established, we assume, pursuant to KRS 216.310 et seq. See specifically KRS 216.317. The members of the district board were appointed by fiscal court, as required by KRS 216.323.
It now appears that the members of the board are not functioning in accord with the intent of the fiscal court. Some citizens have suggested that fiscal court remove such members. Your question: Does fiscal court have the authority to remove members who fail to function as required by statute?
The hospital district is a separate taxing district and the board is a separate, autonomous governmental unit with power to control the affairs of the district. See KRS 216.317, 216.320, 216.335, and § 157, Kentucky Constitution. See also Dunn v. Marshall County Hosp. Dist., Ky., 543 S.W.2d 767 (1976). The members hold office for a specific term of years. KRS 216.325.
Where a vacancy occurs in such board membership, the fiscal court would fill the vacancy. KRS 216.325(2). However, KRS Chapter 216 makes no provision for removal of such board members.
"The general rule that the power of appointment carries with it the power of removal ordinarily does not apply when a definite term is attached to an office by law . . ." 67 C.J.S., Officers, § 118b., p.p. 481-483. However, our Kentucky Court of Appeals, in Johnson v. Laffoon, 257 Ky. 156, 77 S.W.2d 345 (1934) 348, adopted the law that the power of removal is not incident to the power of appointment.
KRS 67.710(8) provides in part that the county judge/executive may, "with the approval of the fiscal court, make appointments to or remove members from such boards, commissions, and designated administrative positions as the fiscal court, charter, law or ordinance may create." We are of the opinion that this provision, as applied to board members having a definite term of holding office, simply means that where by statute a removal of a board member is expressly provided for, along with the conditions under which removal may be effected, this general procedure relating to removal would apply [i.e., the county judge/executive would nominate for removal, subject to the approval or rejection of the removal by fiscal court as a body]. Since there is no statute dealing expressly with the removal of hospital district board members and outlining conditions for removal, KRS 67.710(8) has no application. Thus under the searching light of the legal reality here, the notion of the fiscal court's authority to remove such board members becomes a bleak illusion. Moreover, "It is generally held that, in the absence of provisions to the contrary, officers or employees appointed or elected for a definite term, or to hold during good behavior, are removable only for cause, n1 even though this not so provided by statute." There is no Kentucky statute spelling out removal of hospital district board members for cause. See 67 C.J.S., Officers, § 120, p. 485. Thus there is no effective removal statute.
Since there is no effective removal statute, and since the power of removal is not incident to the power of appointment, it is our opinion that the fiscal court has no authority to remove hospital district board members.
Cf. Buechele v. Petty, Ky., 96 S.W.2d 1010 (1936), holding that an appointing authority may remove one who holds office at the pleasure of the appointing authority [no definite term provided].