Request By:
Mr. John W. Garner
Pulaski County Judge/Executive
P.O. Box 712
Somerset, Kentucky 12501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
KRS 67.045, relating to reapportionment of justices of the peace districts, was amended in 1982 (Ch. 29, § 1, effective July 15, 1982).
KRS 67.045(4) provides in part that "To initiate a reapportionment proceeding, the fiscal court shall publish notice of the planned reapportionment in accordance with KRS Chapter 424 and appoint three (3) competent citizens of the county over twenty-one (21) years of age, and residing in different districts, and the county clerk as a non-voting member as commissioners to reapportion the county . . . ." (Emphasis added).
KRS 67.040(3) provides in part that "when there is a tie vote in the fiscal court in the selection of any officer or employe to be selected by the fiscal court, and a deadlock results and continues for fifteen (15) days or longer, the county judge executive shall cause to be entered upon the minutes of the fiscal court an order reciting the facts as to the deadlock, and the question upon which it has occurred and exists, and thereupon, the county judge executive shall make such appointment. " (Emphasis added).
Your question is whether the repportionment commissioners to be selected by fiscal court under KRS 67.045(4) are "officers or employees", as the term is used in KRS 67.040(3)?
As to whether the reapportionment commissioner is an "officer", the case of
Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817, lays down the following five elements which are indispensable in any position of public employment in order to make it a public office:
"(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be periormed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional."
Without going further with the whole five elements, the reapportionment commissioner position has no permanency and continuity. They are simply appointed for the "one shot" purpose of reapportioning the county into magisterial districts. When that one appointment is finished by them, then their position as "commissioner" is at an end. Thus the reapportionment commissioner does not qualify under element no. 5, above, in Howard v. Saylor.
The "commissioner" role at least involves a public employment of a kind, though statutorily appointive in nature and not contractual, especially since KRS 67.045(4) provides that the commissioners shall receive out of the county treasury a reasonable compensation for their services, fixed by the fiscal court. See
City of Lexington v. Thompson, 250 Ky. 96, 61 S.W.2d 1092 (1933).
Under the particular circumstances of this special county employment and appointment of "county reapportionment commissioner", it is our opinion that such "commissioner" is not an "officer or employe", as mentioned in KRS 67.040(3). The latter statute envisions county officers, in the fullest technical sense as defined in Howard v. Saylor, above, and regularly hired county employees selected by fiscal court.
In addition, the enactment of KRS 67.710(7) and (8) at the 1976 Extraordinary session, requiring the county judge executive to initiate hiring and firing of officers and employees, with the approval of the fiscal court, has relegated KRS 67.040(3) to a position of questionable significance, since, under KRS 67.710(7) and (8), the fiscal court alone does not determine appointments of county officers and employees.
Finally, KRS 67.045(4) is autonomous in connection with providing for appointment by the fiscal court of reapportionment commissioners. It has no linkage with KRS 67.040(3). Further, the specific statute, KRS 67.045(4), must prevail over the general statute, KRS 67.040(3).