Request By:
Mr. Harold Kirby
Madison County Judge/Executive
Courthouse
Richmond, Kentucky 40475
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion concerning the county budget commission.
First, you ask whether there is a limited number of appointments to that committee. Yes. There is only one.
The county budget commission consists of the county judge/executive, the county attorney, and one (1) member appointed by the fiscal court by an order entered on the "order book of the county judge/executive." KRS 68.230. This can only refer to the executive order book of the county judge/executive. The statute is somewhat ambiguous. However, it is our view that the county judge/executive makes the appointment of this one (1) member, subject to the approval of the fiscal court. See KRS 67.710(8). There are no other members of that committee.
KRS 68.230, prior to the amendments of 1976 and 1978 [statutory reviser's correctional legislation] reads: "One (1) member appointed by the fiscal court by an order entered on the county court order book." The correctional legislation was passed to convert the "county court order book" to the "order book of the county judge/executive." KRS 68.230 was first enacted in 1934. See Carroll's Kentucky Statutes [Banks-Baldwin, 1936], § 1851 C-2. It then read: "One member appointed by the fiscal court by an order entered on the county court order book."
First, an appointment to public office is "generally regarded as an executive function. . ." 63 Am.Jur.2d, Public Officers and Employees, § 90, p.p. 684-685. Thus the appointment's being made by way of an order of the county court, which was before January 1, 1978, a judicial court, does not make sense, since the appointment is not a judicial act in the technical sense. We are inclined to believe that the legislature, prior to 1976, by vesting the appointive power in the fiscal court, intended that the appointment be entered by way of an order of fiscal court entered in the county "fiscal" court order book.
The court has held that the precise words of a statute may be restricted or words may be transposed or supplied where that is necessary to obviate inconsistency and give effect to the manifest intention of the legislature and to carry out the general scope and purpose of the act.
Commonwealth v. Trousdale, 297 Ky. 724, 181 S.W.2d 254 (1944) 255. Further, "literal language contained in some parts of a statute in apparent conflict with the general scheme should surrender to the general purpose and intent of the legislature as gathered from all parts of the statute."
Department of Revenue v. Miller, 303 Ky. 822, 199 S.W.2d 622 (1947) 623.
Thus, in order to fully effectuate the idea of the appointment by fiscal court, prior to the 1976 and 1978 amendments, we are of the opinion that such appointment should have been made as an order of fiscal court and entered accordingly in the fiscal court order book, since that is the book of record reflecting orders of fiscal court.
In 1976 [Ex. Sess., Ch. 20, § 3], KRS 67.710 was enacted. Subsection (8) provides that the county judge/executive, with the approval of fiscal court, has the authority to make appointments to boards and commissions created by law etc. This simply means the county judge/executive nominates a person to a commission and then the fiscal court either rejects or accepts the nomination.
When KRS 67.710(8) and 68.230 are now read together, it is our opinion that the county judge/executive nominates a person for the appointive membership on the budget commission, subject to the approval or disapproval 1 of the nomination. Where the fiscal court approves your nomination, the appointment is entered in your county judge/executive order book. It seems evident that the 1978 amendment to KRS 68.230 was designed to translate the appointment function in terms of the newly established general procedure for county appointments to boards and commissions, otherwise why enter the appointment in the county judge/executive's order book? Cf. KRS 67.710(7) [appointment of county personnel], which establishes the same general system of appointments, "unless otherwise provided by state law." (Emphasis added). But the last clause in quotes is not in KRS 67.710(8).
Next, you ask whether the county treasurer can be appointed to serve as the third member of the county budget commission.
The answer is "no", since KRS 68.230 expressly prohibits such appointive commission member from holding any other public office at the time of appointment.
Question No. 3: Can a magistrate of fiscal court serve on the commission?
The answer is "no", for the reason just given in question no. 2, above.
Question No. 4: Are the county attorney and county judge/executive automatically members of the county budget commission? The answer is "yes". They are ex officio members of the commission [KRS 68.230] and thus they are two of the three members. The term "ex officio" is defined in Black's Law Dictionary, at page 661, as "from office; by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office."
Footnotes
Footnotes
1 of fiscal court.