Request By:
Honorable Sandra M. Varellas
Fayette County Judge Executive
Suite 300, Court Plaza
266 West Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask for clarification of a portion of OAG 81-394, relating to water districts lying in Jessamine and Fayette Counties. In that opinion we noted that there is a vacancy on the board of water commissioners. The question was: Who has the power to fill the vacancy?
Under KRS 74.020(1)(b), three commissioners must serve for Fayette, though there are only two water customers left in the Fayette portion of the district. Two commissioners must serve for the Jessamine territory. Thus the vacancy must be filled by the appropriate officer in Fayette County.
We said in OAG 81-394 that under the literal wording of KRS 74.020 (1)(b), the appointment to fill the vacancy would be by the county judge executive of Fayette County, with the approval of the Fayette County Fiscal Court.
You ask whether such vacancy should be filled by the mayor and urban county council.
Bear in mind that KRS 74.020 was last amended in 1980; and there is nothing in the statute that suggests any variation for urban county government. If they had intended a variation, the 1980 amendment would have so stated.
Section 11.01, of the Charter of Urban County Government of Lexington-Fayette, provides that the charter shall not be construed to affect the responsibilities of the county judge as prescribed by the constitution or statutes. See Section 11.02, Charter, as to fiscal court. The mere recital of the county judge's appointing powers does not negate the appointing authority of the county judge executive now found in the general law of KRS 67.710(8). That statute directs the county judge executive to appoint people to various boards, with the consent of the fiscal court. No exception is mentioned concerning urban county government.
In
Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974), Judge Vance for the court wrote that the enacting of the urban county government statutes was to exempt the UCG from the operation of general laws relating to city and county government except those general laws which confer powers upon city and county governments. Thus the appointment power in KRS 67.710(8) is indeed a "power of government" and must be observed, except where the General Assembly provides otherwise. So far, the state legislature has provided no exception to KRS 67.710(8) and KRS 74.020(1)(b).
Your letter contains this final question:
Furthermore, in the event it is determined that the Lexington-South Elkhorn Water District should be reduced down to just the Jessamine County territory with Fayette County being eliminated from the district, should this be handled by the Fayette County Judge Executive or by the Mayor?
The elimination of the Fayette territory could be effected through KRS 74.110. Under that statute the water commission can file a petition with you, as county judge executive, describing the Fayette territory to be stricken from the district, and giving the reasons therefor. Upon a hearing with notice, if you find it reasonably necessary, you would enter an executive order striking off the Fayette territory from the water district. If you find the proposed change is unnecessary, you would dismiss the petition. see Valla v. Preston Street Road Water Dist. #1, Ky., 395 S.W.2d 772 (1965), concerning KRS 74.110 as a valid method of reducing a water district to zero. Cf. KRS 74.367, relating to dissolution of a water district. Remember KRS 74.110 is a governmental power vested in the county judge executive. See Holsclaw v. Stephens, above.