Request By:
Paul C. Gaines
Johnson, Judy & Gaines
326 W. Main Street
P.O. Box 756
Frankfort, Kentucky 40602
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Dale D. Brodkey, Assistant Attorney General
This opinion is in response to your letter of August 16, 1979 in which you are acting as counsel for the Kentucky Department of Fish and Wildlife Resources. You request an opinion on the correctness of the procedures for selection by a wildlife district of names to be submitted to the Governor for the position of member of the Department of Fish and Wildlife Commission. This opinion will deal with the four specific questions you asked regarding the matter.
The statute setting out the selection procedure is KRS 150.022. The statute states in part:
(1) The department of fish and wildlife resources commission shall consist of nine (9) members, one (1) from each wildlife district, as set out by the commissioner with the approval of the commission, and not more than five (5) of the same political party. (2) The governor shall appoint the members of the commission. Each of such members shall be appointed for a term of four (4) years. (3) Vacancies through the expiration of terms of the members of the commission shall be filled by appointment by the governor from a list of five (5) names from each wildlife district, recommended and submitted by the sportsmen of each respective district. When the term of a member expires, the commissioner shall call a meeting of the sportsmen in that district no later than thirty (30) days prior to the expiration of such member's term. Notice of the meeting shall be given by publication pursuant to KRS chapter 424. At such meeting, the sportsmen in attendance shall select and submit to the governor a list of five (5) residents and citizens of the district who are well informed on the subject of wildlife conservation and restoration. The governor shall appoint a successor to the member whose term is about to expire within sixty (60) days following the submission to him of the list hereinabove referred to, and in no event later than August 13.
(11) The word "sportsman" as used in this section shall mean a resident hunter or fisherman who has been licensed in Kentucky for each of the past two (2) consecutive years.
The procedure is not stated in much detail. Rather, this section simply states that the Governor is to select a member of the commission from a given wildlife district from a list of five names "recommended and submitted by sportsmen of each respective district" . The commissioner is to call a meeting of the sportsmen in that district, at the meeting "the sportsmen in attendance shall select and submit to the Governor" a list of five persons from which the Governor selects the commission member.
There is nothing in the statute which gives any grester detail as to how such meetings are to be run. We are unable to find any other statutory provisions setting out procedures for such meetings. Because the language in KRS 150.022(3) as to procedure is "recommended and submitted" and "shall select and submit", there is no statutory requirement as to how the selection is to be made. There is no language mandating any particular type of election or method by which votes are distributed.
It is our opinion that any means chosen by the sportsmen in attendance to select five nominees would be acceptable as long as the people selected are "residents and citizens of the district who are well informed on the subject of wildlife conservation and restoration. "
A 1963 Attorney General's opinion is on point, OAG 63-245, It states:
KRS 150.022(3) does not purport to set forth the manner in which the meeting of sportsmen shall proceed to select the candidate for membership on the Commission. . . . It is our opinion that the sportsmen meeting in a particular district to select their nominees may determine at such meeting the manner in which they wish to proceed and the form of the election.
Although KRS 150.022 has been amended several times since 1963, none of the changes affect the substance of the statute on this particular point.
Therefore, the answers to the first three of your questions are as follows:
1. "Is it acceptable procedure for the commissioner to permit the sportsmen to conduct their own selection process in each district after the commissioner has followed the mandate of KRS 150.022(3) in giving proper notice of the meeting?" Yes.
2. "Is it acceptable procedure for the sportsmen in each district at each meeting to determine the method and manner in which they will select the five individual names which shall be submitted to the governor, including determining at the meeting the number of votes which each member attending shall have during the meeting?" Yes.
3. "Is there any necessity that the sportsmen at each district meeting even determine the number of votes which each individual has during the election process?" By this question, you are asking whether there is any problem with having a voting system with more than one vote per person. No.
Your fourth question asks: "Would it be acceptable for the Fish and Wildlife Commission to adopt regulations to control the selection process? " The issue is whether such powers have been delegated to the Commission pursuant to KRS chapter 150.
KRS 150.021(1) states: "The department [Fish and Wildlife Resources] consists of a commissioner, a fish and wildlife resources commission and the conservation officers and other agents and employes provided for in this chapter. The department shall enforce the laws and regulations adopted under this chapter relating to wildlife and shall exercise all powers necessarily incident thereto."
The Department also has powers to promulgate certain types of regulations pursuant to KRS 150.025. This section deals with maintaining or restoring depleted supplies of wildlife. Paragraph (1) details the considerations the Department is to take into account in making such regulations. Paragraph (2) sets out the types of regulations the Department may promulgate and carry out; "In carrying out the provisions of this section the department may, by regulations. . . ." These include matters such as hunting seasons and places, taking limits, and taking methods and devices.
In addition, this section states that the Department may "[m]ake any other regulation reasonably necessary to implement or carry out the purposes of this chapter." KRS 150.0." (2)(g). (Emphasis added). "This chapter." Is the entire KRS chapter 150, "Fish and Wildlife Resources." This language appears to indicate that regulations are allowed for fish and wildlife matters beyond those specifically set out in KRS 150.025 so long as there is some reasonable connection with this section.
The selection of commission members is an integral part of fish and wildlife management because the commissioner acts with the concurrence of the commission in these matters, KRS 150.025(1). In addition, in order to carry out the purposes of KRS chapter 150 certain department offices have been created, KRS 150.021(1) supra. The statutes have estahlished procedures by which the commission members and commissioner are to be selected (KRS 150.022 and 150.061 respectively). However, as we have seen, the proceiures stated for selecting commission members are not complete. It is our conclusion that the department could promulgate regulations, pursuant to KRS 150.025(2)(g) and 150.021(1), to establish more clearly such selection process as long as they do not contradict what is already statutorily required.
That is, according to KRS 150.022, the commissioner is the person who calls the meetings; notice is given pursuant to KRS chapter 424; and the sportsmen in attendance "select and submit" to the Governor a list of the five well informed residents and citizens of the district. OAG 63-245 states that the commissioner simply calls the meeting but should not actively participate in the selection process.
If you have any further questions, feel free to contact this office.