Request By:
Mr. Donnie Watson
Estill County Judge Executive
Courthouse
Irvine, Kentucky 40336
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have made several attempts to appoint new persons as water commissioners to Estill County Water District, number 1. To date, you have not been able to get a motion out of the magistrates on the question of consent.
You add the following factual information and question:
"The present acting commissioners' terms have all expired. The following is a list of the names, dates of appointment, and the expiration dates. Mr. Archie McIntoshJan. 12/77 - Jan. 11/81Mr. Claude D. RoseJan. 12/76 - Jan. 11/80Mr. James W. SonsSept. 9/75 - Sept. 8/79
Please advise me as what to do, and if any business transactions on the part of the acting commissioners would be valid."
KRS 67.710(8) reads:
The county judge/executive shall be the chief executive of the county and shall have all the powers and perform all the duties of an executive and administrative nature vested in, or imposed upon, the county or its fiscal court by law, or by agreement with any municipality or other subdivision of government, and such additional powers as are granted by the fiscal court. The county judge/executive shall be responsible for the proper administration of the affairs of the county placed in his charge. His responsibilities shall include, but are not limited to the following:
* * *
(8) With the approval of the fiscal court, make appointments to or remove members from such boards, commissions, and designated administrative positions as the fiscal court, charter, law or ordinance may create. The requirement of fiscal court approval must be designated as such in the county administrative code or the county charter.
KRS 74.020(1)(a) governs in connection with the appointment of the water district board of commissioners:
(1) A water district shall be administered by a board of commissioners which shall control and manage the affairs of the district. The term of each commissioner is four (4) years, except as provided in this section:
(a) If a district lies wholly within a single county, or operates as a single-county district as provided in paragraph (c) of this subsection, the board of commissioners shall consist of three (3) residents of the district, or of any incorporated or unincorporated area served by the district in the county in which the district was originally established, who shall be appointed by the county judge/executive with the approval of the fiscal court. Initial appointments shall be for terms of two (2), three (3) and four (4) years, as designated by the court. Commissioners serving under appointments June 16, 1966 shall continue to serve until the end of their respective terms.
The appointment procedure of KRS 74.020(1)(a) is the same as that of KRS 67.710(8), in that the appointments to the water district board of commissioners are made by the county judge executive, with the approval of the fiscal court.
The fiscal court, once you have made the appointments, is required to either approve or disapprove of the appointments. However, the fiscal court cannot disapprove of such appointment on whimsical, unreasonable, or arbitrary grounds. If they disapprove, there must be some rational or sound reason for the disapproval. See § 2, Kentucky Constitution. Section 2 of the Constitution prohibits the exercise of absolute and arbitrary power.
Lamar v. Board of Education of Hancock Co. Sch. Dist., Ky., 467 S.W.2d 143 (1971) 148.
Should you feel that the fiscal court has acted arbitrarily in withholding its approval of an appointment to the water district board, you could seek approval through a mandamus action in your circuit court. In
Morgan v. Champion, 150 Ky. 396, 150 S.W. 517 (1912) 519, the court wrote that the statute governing the appointment of a county road engineer made it imperative upon the county judge, with the consent of the fiscal court, to make the appointment. The court added that "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 whimisical or arbitrary reasons to avoid the operation of the statute." Thus mandamus is the proper remedy in such cases.
Your second question relates to the validity of business being conducted by the Water District Board of Commissioners who have continued in office, although their appointments have expired.
Under various constitutional sections (31, 73, 91, 93, 97, 99, 101, 115, 120, 129), all state, county, city and town officers, except members of the Legislature and of the city councils, may hold over after their fixed term has expired and until their successors are elected and qualified.