Request By:
Mr. John R. Cox
Rowan County Attorney
P.O. Box 9
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 80-412, Question No. 2 read:
"Can the county judge/executive override a fiscal court's order directing the county road foreman to be present at fiscal court meetings and report on the work completed for the 30 days past?"
In that opinion we concluded that when the fiscal court wants an engineer report on some pertinent aspect of the county road program, the fiscal court should request the county judge/executive to have himself and the road supervisor present at the fiscal court meeting or meetings for purposes of the report and any discussion which may ensue. Our conclusion is based upon the reading of KRS 67.722 and 67.710 (relating to the overall supervision, by the county judge/executive, of the county road program enacted by fiscal court) and KRS 179.070 (relating to duties of the road supervisor and his making reports to fiscal court) together.
You say that the county judge/executive believes that, even though the fiscal court requests him to have the road supervisor present at a fiscal court meeting, it is not mandatory that he comply.
The county judge/executive wears two hats. One hat concerns his being the chief executive officer of the county. The other hat relates to his being a member and presiding officer of the fiscal court.
If the engineering duties, as outlined in KRS 179.070 and other sections of KRS Chapter 179, of the road supervisor are to make any practical and meaningful sense to the fiscal court, which is charged with the legislative duty of enacting road programs and considering others for the future, it is imperative that the fiscal court have reports from the road engineer which are calculated to give the legislative body a proper perspective of the subject matter. But to make this possible, the road engineer must be present along with his executive boss, the county judge/executive, who has the overall executive or administrative responsibility for the county road program, once the program is enacted.
KRS 179.070(4) provides that the county engineer " shall make reports from time to time as the county or fiscal court directs." (Emphasis added). KRS 446.010(29) provides that as used in the Kentucky statutes, unless the context requires otherwise, the word "shall" is mandatory. See Department of Revenue v. Oldham County, Ky., 415 S.W.2d 386 (1967), applying that principle of construction.
Since the reporting of the road supervisor is mandatory under the above mentioned statute, and since the county judge/executive should be present when the report is given, it is out opinion that it is mandatory that the county judge/executive be present with the road supervisor on such report occasions. It strikes us that since the road supervisor must mandatorily make reports as required by the fiscal court, and since the roles of the county judge/executive and road supervisor are inseparable in this regard, the presence of both men are required under the statutory law.
The county judge/executive has raised the additional question as to who has authority to supervise county employees, and whether the fiscal court can order county personnel to appear before them without the approval of the county judge/executive.
The county judge/executive, as the chief executive officer of the county, is required to execute the county programs enacted by fiscal court. These are separate and distinct roles and should not be blurred in practice. The fiscal court can require the road supervisor to make reports to it under the circumstances outlined above. In the absence of any explicit statute to the contrary, the bringing of other county personnel before the fiscal court should be done by asking the county judge/executive to have them present, but it is not mandatory. Even where the road supervisor and other county personnel are before the fiscal court, that body has no authority to give them ad hoc or executive or administrative directions, apart from a proper county legislative enactment. Actually the observance of these lines of governmental function requires good will and good faith on the part of all concerned. Under the assumption that fiscal court is properly observing its line of function, we see no need at this point to go into any question of remedial action against fiscal court.