Request By:
Mr. Fred B. Creasey
Executive Director
Kentucky Association of
Counties
205 Capital Avenue
Frankfort, Kentucky 40602
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask who presides over the meeting of fiscal court in the absence of the county judge/executive.
In OAG 80-372, we pointed out that under the 1980 amendment to KRS 67.711 [H.B. 134, Ch. 52, Section 1, 1980 Acts], the deputy county judge/executive cannot act for the county judge/executive as a member or presiding officer of the fiscal court [effective July 15, 1980]. Thus on and after July 15, 1980, should the county judge/executive be absent or unable to attend the meeting, then under KRS 67.040(2) a majority of the justices of the peace, or commissioners [as the case may be] on the fiscal court shall elect one (1) of their number to preside during the absence or inability of the county judge/executive to preside.
It is our opinion, though we have never before addressed this point precisely, that the literal language of KRS 67.040 suggests only a reference to each meeting, as it occurs. H.O. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657 (1937).
Your companion question is whether at another meeting, where the county judge/executive is absent or unable to attend the fiscal court meeting, the same selection process applies.
The answer is "yes". Since the literal language of the statute suggests only a single meeting at a time, the selection process necessarily must be used at each meeting anew, when it occurs. There is simply nothing in the statute to suggest that, if the county judge/executive is absent for more than one meeting consecutively, the magistrate chosen to preside will preside over the subsequent meetings where the county judge/executive is absent. Not only that, but such a provision would not necessarily be practical, since the magistrate chosen to preside over the first meeting, involving the absence of the county judge/executive, might not necessarily be present for the next successive meeting also involving the absence of the county judge/executive. Thus this interpretation makes sense in practical terms. In construing statutes it is important to consider: how does this statute actually work? All Kentucky statutes are to be liberally construed with a view to promote their objects and carry out the legislative intent. KRS 446.080(1), and Roth v. Investment Properties of Lexington, Inc., Ky. App., 560 S.W.2d 831 (1978) 833.
As you suggest, the statutes contain no provisions for the justice of the peace chosen to preside for a particular meeting to assume any of the executive duties of the absent county judge/executive. His stand-in function relates only to his presiding over the fiscal court meeting.