Request By:
Mr. Dan D. Ball
Lawrence County Attorney
122 Main Cross Street
Louisa, Kentucky 41230
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns the adoption of an administrative code for the county government. You assume all counties must adopt a code.
You are correct. The fiscal court in all counties must adopt an administrative code. KRS 68.005 and 67.710(2). However only the county judge/executive has the burden of and authority to submit such a code and suggested revisions thereof to the fiscal court for their approval or rejection. KRS 67.710(2).
You ask what is the legal effect of the failure to provide an administrative code.
There is no penalty provision. Cf. KRS 68,990. However, the county judge/executive could be subjected to a mandatory injunction or mandamus action in circuit court where he fails to submit a proposed administrative code to fiscal court for approval. This code business has been a requirement since January 2, 1978. See KRS 67.710(2). Judge Stanley wrote for the court, in
Young v. Jefferson County Election Commission, 304 Ky. 81, 200 S.W.2d 111 (1947) 114, that an action for mandamus or mandatory injunction may be brought against public officers to require them to perform a duty imposed by law. Likewise, a mandatory injunction or mandamus action could be brought against the other members of fiscal court in circuit court where the county judge/executive has submitted a proposed code, but the other members of fiscal court either fail to act upon the proposed code or repeatedly reject the proposals of the county judge/executive as to the proposed code and suggested revisions thereof. Such litigation, where necessary, may be conducted by the county attorney or by citizens as a class action for the taxpayers.
KRS 424.260 calls for newspaper advertisement for bids on county purchases where the cost exceeds $5,000. A proposed code provision would permit the county judge/executive to determine the county's purchasing needs where the cost is $5,000 or less, subject to the fiscal court's final approval of such purchases. One magistrate would like for the county judge's authority to involve purchases of $500 or less.
We see nothing objectionable about such delegation of authority. The area of authority could be purchases of $5,000 or less or some lesser figure, which can be finally agreed upon as between the county judge's code proposal and the final acceptance by fiscal court as a body. There is no problem concerning the subsequent approval of such purchases by fiscal court when the claims for payment are presented to fiscal court. See KRS 67.080 and 67.083. Even though we view this delegation of executive authority, with an understanding that fiscal court will finally approve such purchases, as legal [see KRS 67.710 and 68.005(4)], the fiscal court can always subsequently ratify what it could have legally done contractually before.
Estill County v. Wallace, 219 Ky. 174, 292 S.W. 816 (1927) 817.
You ask whether the code could legally require that an equal amount of road work be done in each magisterial district, especially since the population in these districts is presently substantially unequal. See KRS 68.005(2), (4), and (5).
The code is primarily a code of administrative procedure. The legislative determination as to the county programs relating to the construction, reconstruction and maintenance of county roads is properly one via fiscal court orders, resolutions or ordinances, as the case may be. In establishing the county road programs, the fiscal court must use its sound discretion in making appropriations covering these districts, based upon such relevant factors as population, volume of traffic reflected by engineer studies, overall importance to the county of the road segments in the districts, number of mileage, etc.
Although KRS 67.045 requires magisterial districts to be reapportioned into districts as nearly equal in population as is reasonably possible, because of the one man, one vote principle, 1 in your present unequal population situation the appropriation of county road money equally in all districts could be characterized, unless supported by reasonable analytical bases as suggested above, as arbitrary. See § 2, Kentucky Constitution.
Footnotes
Footnotes
1 Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968).