Request By:
Honorable Robert M. Kirtley
County Attorney
Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of February 4, in which you refer to a memorandum from the State Board of Elections calling attention to the provisions of KRS 117.035 (5) which requires counties containing first and second class cities to hire a staff on a nonpartisan basis sufficient to carry out the duties assigned to the county board. The question is raised as to whether or not the employment of a staff is itself mandatory where in the case of the county board of elections of Daviess County there has never been the need for a staff and the board itself has discharged the duties and responsibilities assigned to it by statute, thus "saving tax dollars" otherwise required to support a staff.
On its face KRS 117.035(5) seems to require that the board of elections employ a staff on a nonpartisan basis to assist in the performance of its duties by the use of the word "shall," which is normally considered a mandatory word pursuant to KRS 446.010(29). However, this is not always the case as the word's ultimate significance is to be determined from the act as a whole and its legislative intent. Stanfield v. Willoughby, Ky., 286 S.W.2d 909 (1956). Thus, the question is: Did the legislature intend that the board must in fact employ a staff, irrespective of whether or not one is needed in the performance of its duties, or did it simply require that if a staff was necessary, it must be employed on a nonpartisan basis. We think the latter intent was the case and we would construe this statute as directory insofar as the necessity to employ a staff but mandatory in that if a staff is required in order for the board to perform its duties, it must be employed on a nonpartisan basis.
Generally a statute is directory if it relates to some immaterial matter or if it does not reach the substance of the thing to be done, and if by omission to observe it, the rights of those interested will not be prejudiced. See Fannin v. Davis, Ky., 385 S.W.2d 321 (1964) and 1 Am.Jur.2d, Administrative Law, § 46. In Baker v. Marcum, 216 Ky. 210, 287 S.W. 69 (1926), the Court declared that election laws must be interpreted along sound and reasonable lines and not so technical as to place an unnecessary burden on the electors.
In the case of Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884 (1938), the Court declared that:
". . . Provisions of election laws are all mandatory in the sense that they impose the duty of obedience on those who come within their purview, but it does not follow that every slight departure therefrom should vitiate the whole proceeding. If a statute simply provides that certain acts or things shall be done within a particular time or in a particular manner but does not declare or indicate that their performance is essential to the validity of the election, they will be regarded as directory if they do not affect the actual merits of the election. And under the recognized principle of statutory construction that laws are to be liberally construed when necessary to reach a substantially correct result, to that end their provisions will, to every reasonable extent, be treated as directory rather than mandatory. 25 R.C.L. 772; Ferguson v. Gregory, 216 Ky. 382, 287 S.W. 952. . . ."
In Davidson v. Board of Education, 225 Ky. 165, 7 S.W.2d 248 (1928), the Court said:
"The rules as to when a statute is mandatory and must be literally followed, or when it is directory and may be substantially followed, are these:
'Whether a particular statute is mandatory or directory does not depend upon its form, but upon the intention of the Legislature, to be ascertained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other.' 36 Cyc. 1157.
'When a particular provision of a statute relates to some immaterial matter, as to which compliance with the statue is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, the provision may generally be regarded as directory. ' 36 Cyc. 1158."
The statute which gives directions to accomplish the ends and the ends are accomplished and the merits of the case are not affected, although the directions are not complied with, they are to be considered directory and not mandatory. Jones v. Steele, 210 Ky. 205, 275 S.W. 790 (1925).
Aside from the question of whether or not KRS 117.035(5) is mandatory or directory, we further believe that unless a discretionary interpretation is placed on the board's right to determine whether or not supporting staff is needed, a serious constitutional question could be raised under the separate powers doctrine (Sections 27 and 28 of the Constitution) concerning the power of the legislature to predetermine the necessity for staff which is basically an administrative and discretionary function, normally delegated to administrative agencies by the legislature.
The employment of a staff is certainly not essential where the duties can otherwise be performed by the board with no adverse effect on the election process. The necessity for such employment is essentially an administrative matter to be left to the discretion of the county board of elections. Such necessity should not be predetermined by the legislature and we do not believe this was the intent of the legislature.
Therefore, we would interpret KRS 117.035(5) to be directory insofar as requiring the board to employ a supporting staff but mandatory that if a staff is needed, it be selected on a nonpartisan basis.