Request By:
Mr. Sherman Dean, Jr.
Jessamine County Judge/Executive
Courthouse
Nicholasville, Kentucky 40356
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Lexington-South Elkhorn Water District operates a water district in Jessamine and Fayette County. Fayette County has three (3) commissioners and Jessamine County has two (2) commissioners under KRS 74.020(1)(b). We assume that the original water district was in Fayette County, but was later extended into Jessamine County. See KRS 74.115.
One of the Jessamine commissioners moved from the county, creating a vacancy, but there were two appointments to fill only one vacancy.
Your question: Is it possible to have three (3) water commissioners from Jessamine County?
You told us by telephone that the Fayette part of the district was deleted from the district, except for a small piece of land extending some five hundred feet across the Fayette-Jessamine boundary line into Fayette County, involving serving of one or two residents therein. The Kentucky American Water Company took over the deleted Fayette territory under a service contract with Fayette County.
We assume that the diminishing of the water district territory was accomplished pursuant to KRS 74.110, and with the assent of Fayette County. Under those circumstances it is our opinion that pursuant to KRS 74.020(1)(b), only two members can serve as commissioners for the Jessamine territory. Three commissioners serve as commissioners for the Fayette territory. This is according to the literal provisions and ordinary meaning of the statute, although only one or two residents are affected in the Fayette territory. Old Lewis Hunter Distillery Co. v. Kentucky Tax Commission, 302 Ky. 68, 193 S.W.2d 464 (1946).
Since the practical reality suggests reducing the district territory down to just the Jessamine territory, action could be taken under KRS 74.110, with the assent of Fayette County. Then, after a proper elimination of the Fayette territory from the district the commissioner membership would be three residents of Jessmine County, pursuant to KRS 74.020(1)(a).
You ask which of the two recent Jessamine appointees to the board is the lawfully appointed commissioner? The answer is the first one properly appointed. If the first appointment was properly made, the second appointment was void and inefrective.