Request By:
Mr. Don I. Bingham
Knox County Judge/Executive
Courthouse
Barbourville, Kentucky 40906
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Fiscal Court of Knox County has a problem relating to the county road supervisor. The fiscal court has not established the position of road engineer or road supervisor, pursuant to KRS 179.020. Subsection (5) of that statute reads:
"(5) This section shall not be construed to prohibit the supervision of the construction and maintenance of roads, without additional compensation, by the county judge, or by committees of the fiscal court, in counties where the position of road engineer or road supervisor has not been established by the fiscal court."
By motion passed, the Knox Fiscal Court selected a committee, consisting of the entire fiscal court, to supervise the construction and maintenance of the county roads and bridges, without additional compensation..
You tell us that what the magistrates really had in mind was that this committee was to take the place of a road supervisor. That intent is apparently reflected in this part of the fiscal court's motion:
"Said committee to have the same authority as a road supervisor in exercising their function in carrying out the policies ordered by the fiscal court."
The county engineer and road supervisor have certain statutory qualifications. If a road engineer is hired, he must be either a civil or highway engineer licensed under KRS Chapter 322, generally. If the fiscal court appoints a county road supervisor instead, he must have at least three years' practical road building experience of a nature satisfactory to examining authorities selected by the Bureau of Highways. He must have passed an exam, oral or written, or both, given by the examining authorities, and have received a certificate of qualification from the authorities.
The appellate court has many times held that the closing of county roads can only be effected by following the statutes. Freeman v. Dugger, Ky., 286 S.W.2d 894 (1956). Even a cursory examination of KRS Chapter 179 indicates that the chapter is replete with specific provisions relating to the road engineer or road supervisor. See KRS 179.070 (general powers), 179.170 (engineer to care for road machinery) , 179.180 (engineer may lease or hire machinery) , 179.190 (engineer may acquire gravel and stone for roads), 179.200 (engineer to inspect roads and bridges) , 179.350 (engineer measures roads), 179.390 (engineer processes road work claims), and 179.450 (engineer to bring actions for county). The central role of a road engineer or road supervisor, as outlined in KRS 179.020, cannot possibly escape the understanding of the reader.
It is our opinion that KRS 179.020(5) was designed as a temporary expedient or emergency measure. Thus where the fiscal court has not appointed either a road engineer or road supervisor, the legislative mandate of KRS 179.020 as to such appointment requires the employment of an engineer or supervisor within a reasonable time. The fiscal court's intent to substitute the committee for such appointment on a permanent or indefinite basis is clearly illegal. Under KRS 179.020(4), a temporary supervisor may be appointed for three months, where no qualified applicant who is acceptable to fiscal court is available. But that doesn't apply here, since fiscal court is not interested in an appointment of an engineer or supervisor. Under the facts, the position of engineer or supervisor is vacant, and should be filled within a reasonable time. Bristow v. Shrout, 264 Ky. 125, 94 S.W.2d 352 (1936).
In the meantime, the fiscal court is responsible for seeing to it that the county bridge and road program continues without a break. See KRS 179.110 and Chatham v. Davenport County Judge, 187 Ky. 801, 220 S.W. 1062 (1920). A failure to fill the position of road engineer or road supervisor within a reasonable time will subject fiscal court to a mandamus action. Morgan v. Champion, 150 Ky. 396, 150 S.W. 517 (1912). In Morgan, the court wrote, where there was a vacancy in the position of engineer or supervisor, that the fiscal court can be "compelled by proper proceeding to perform the duty (to appoint a person to fill the vacancy) which the statute lays upon them. They will not be permitted for whimsical or arbitrary reasons to avoid the operation of the statute."
In addition, the magistrates cannot justify their salaries in terms of time spent in supervising road and bridge construction and maintenance. KRS 179.020(5) expressly prohibits the magistrates from getting any additional compensation for this temporary work.
The county judge/executive, however, has an overall executive role on a permanent basis during his term in connection with the county road and bridge program. KRS 67.710 and 67.722. However, that in no way militates against the critical role of the road engineer or road supervisor.