Request By:
Mr. Dwight Preston
Hardin County Attorney
#30 Public Square
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Hardin County Fiscal Court is proposing to enter into a lease agreement with a nonprofit corporation in regard to the local county hospital. You have indicated by telephone that the fiscal court intends to lease the county hospital building and allied facilities to a nonstock, nonprofit corporation [KRS Chapter 273], and that the hospital will be operated as a hospital of that corporation, but not as a county hospital. The incorporators of the corporation will be citizens of Hardin County, not connected with county government. See KRS 273.167. However, the county will retain fee simple ownership in the hospital realty. The overall control of the hospital will be in the corporation, through its board of directors.
The resolution, setting forth the proposed lease arrangement, recites that the members of the board of directors of the lessee corporation will be selected by the fiscal court, eleven of the board being non-physician, and four members being medical doctors. The citizens of Hardin County will send in nominations for the non-physician members, and the medical staff of the hospital will submit nominations for the physician members. But, as we said, the fiscal court, by majority vote, will select the board members from the nominations. The proposed lease is on a one year basis, subject to renewals for a similar term.
Your question is whether or not the general appointment system provided by KRS 67.710(8), in the filling of county officer positions, applies here?
First, there is no problem about delegation of authority, since it is contemplated that the hospital will not, under the lease, be operated as a county hospital.
Knox Cty. Fiscal Court v. Knox Cty. Gen. Hosp., Inc., Ky., 528 S.W.2d 672 (1975); and
Abernathy v. City of Irvine, Ky., 355 S.W.2d 159 (1962) 161, in which the court stressed that the statutes do not demand that a county maintain a hospital as a function of government, but that they do require that if a hospital is maintained as a governmental institution it be controlled and managed by public officials.
KRS 67.710(8) provides that the county judge/executive shall, with 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 have interpreted this as meaning that the county judge/executive shall nominate persons to fill such positions, and that the fiscal court can then approve or disapprove such nominations. That is the general law as to county officer positions.
From the facts submitted, the hospital corporation is a separate legal entity from the county. Its powers are derived from its articles of incorporation, though such a corporation may be organized for a governmental purpose. KRS 273.167. The authority of the corporation to manage this county hospital property as a private hospital can only come from the agreement with Hardin Fiscal Court.
It is our view that when the statute speaks of positions, "as the fiscal court, charter, law or ordinance may create", it is really saying county officer positions as created by statute or by an authorized ordinance of the fiscal court, pursuant to statute. (Emphasis added). See Fiscal
Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977) 481 [requiring expressly delegated powers to fiscal court]. Under this view the use of the term "charter" does not add anything to the enumerated sources of officer creations, since it can only mean a power statute relating to fiscal court. The term "charter" apparently was borrowed from the practice in municipal corporations. In the latter connection, the courts have often referred to the "charter" of city governments as the city power statutes. In
Board of Council of Harrodsburg v. Renfro, Ky., 58 S.W. 795 (1900), the court observed that "The charter of a municipal corporation is a delegation of powers to its governing authority by the legislative branch of the government . . ." Another kind of "charter" is the articles of incorporation of a corporation. However, KRS 67.710(8) could not reasonably refer to corporate articles, since most "charters" of that kind would have no connection with county government.
The Old Court of Appeals, in Carson & Co. v. Shelton, 128 Ky. 248, 107 S.W. 793 (1908), wrote that "In construing statutes, a word is always construed in connection with the words with which it is associated, and, where several things are referred to, they are presumed to be of the same class, when connected by a copulative conjunction, unless a contrary intent appears." Here "charter" is inextricably linked with the term "law", which means "statute".
It is therefore our opinion that the county officer selection system of KRS 67.710(8) has no application here. The fiscal court, by the lease agreement, can agree to make the selections as a body out of the agreed upon nominations procedure. See KRS 67.083 [Home Rule statute, powers of fiscal court].