Request By:
Mr. John M. Berry, Jr.
Attorney at Law
New Castle, Kentucky 40050
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
We appreciate your letter relating to the appointment of county personnel and board members. It raises this specific issue:
"When the county judge executive makes an administrative appointment (specifically the county road engineer or supervisor) and the appointment is not approved by the fiscal court, is the circuit court empowered through a writ of mandamus to confirm the appointment notwithstanding the fiscal court's action?
KRS 67.710(7) provides that the county judge executive has the authority to appoint, supervise, suspend and remove county personnel with the approval of the fiscal court.
KRS 67.710(8) provides that the county judge executive has the authority to make appointments to or remove members from boards, commissions and designated administrative positions, with the approval of fiscal court.
KRS 179.020 gives the county judge executive the power to employ a county road engineer or supervisor, with the consent of the fiscal court.
KRS 179.060 gives the county judge executive the power to remove a county engineer for specified causes, and subsection three gives him the power to appoint an engineer to fill the vacancy, with the consent of the fiscal court.
As relates to the county engineer or road supervisor, you say that KRS 67.710(7) and 179.020 are silent as to what happens if the county judge executive appoints a person as road supervisor and the fiscal court refuses to approve.
The appointment of a county road engineer or county road supervisor is mandatory under the statutes when viewed in pari materia. The nature of his duties in connection with the county road program compel this construction. See KRS 179.040, 179.070, 179.180, 179.210, 179.230, 179.280, and 179.370. See also KRS 179.020(2), providing that the county engineer's duties "shall be performed by a county road supervisor . . . ." (Emphasis added).
We wrote in OAG 82-63, copy enclosed, that where the duty to hire county personnel, such as a county road supervisor, is not performed by the fiscal court in its consenting capacity, the members of fiscal court can be compelled by a proper proceeding in mandamus in circuit court to perform the duty which KRS 67.710(7) and 179.020 lay upon them. In
Morga v. Champion, 150 Ky. 396, 150 S.W. 517 (1912) 519, the court said this about an appointment of a road supervisor for Anderson County:
"The record shows that the supervisor of roads in Anderson County under the old law had resigned from his office. The office of county road engineer was, therefore, vacant and ready to be filled. Under section 48 of the statutes it is made imperative upon the county judge, with the consent of the fiscal court, to make the appointment. If that duty is not performed, they can be compelled by proper proceeding to perform the duty which the statute lays upon them. They will not be permitted for whimsical or arbitrary reasons to avoid the operation of the statute. We do not consider it proper at this time to go into a discussion of what reasons might be sufficient to sustain the refusal of the fiscal court to consent to any particular appointment or any particular selection which might be made by the county judge; but rest the matter by saying that they cannot, by their own arbitrary refusal to consent, defeat the filling of the office."
The point is that where the county judge executive makes his appointment of a county road supervisor, or other county personnel, the fiscal court as a body cannot arbitrarily withhold its consent.
Of course mandamus may issue to compel the performance of a ministerial act, but not to control discretion. The point is that the court can order the fiscal court to appoint someone chosen by them, and the court may in its judgment direct that they will not be permitted, in arriving at their choice of employees, for whimsical or arbitrary reasons to avoid the operation of the statutes. Thus the entire fiscal court may be compelled by mandamus to appoint a county road supervisor, or other necessary employee, if they arbitrarily refuse to do so. The judicial court will not name the particular person to be appointed, of course. See
Commonwealth v. McCrone, 153 Ky. 296, 155 S.W. 369 (1913) 371, in which the court observed that "there is nothing in the record before us to indicate a whimsical or arbitrary purpose on the part of fiscal court to prevent the election of a county road engineer for Campbell County."
Thus your feeling that we have issued an opinion saying that mandamus will pinpoint the person to be appointed is, as you can see from our careful analysis above, with case authority, not correct. You have performed a public function, however, in asking us in effect to state our position and rational with more precision. Our position of course hangs on the principle hammered out by the Court of Appeals, above.
We read with great interest your account, as a former State Senator, of the legislative history of KRS 67.710(7) and (8). You noted that "During the deliberations of the General Assembly there was a struggle between the county judge executives and the fiscal courts over the various powers and responsibilities involved in the operation of county government. The county judge executives offered a bill which would have given them exclusive authority to make appointments of the kind in question. The General Assembly felt that the bill vested too much power in the county judge executives and added numerous amendments which had the effect of sharing the power between the executive and legislative branches of county government. "
We agree with you that the county judge executive does not have a "rubber stamp" power, and that the relative powers of the county judge executive and the other members of fiscal court, as relate to KRS 67.710(7)(8), are to be used with thoughtfulness, care and reason until they can actually agree on persons to be employed. This balance of power may be so exercised, provided that both the county judge executive in making the appointments and the fiscal court in the matter of consenting or not consenting to such suggested appointees act with care, and reason and avoid scrupulously and arbitrary or whimsical action. Thus the fiscal court can withhold its consent to a particular appointee when it is based upon sound discretion and is not arbitrary nor whimsical.
We have carefully, we think, laid out the conditions for mandamus, above.
Again we thank you for your in put on this vital legislation and giving us your legislative perspective.