Request By:
Mr. Roger Wm. Perry
Attorney at Law
908 Poplar Street
P.O. Box 352
Benton, Kentucky 42025
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As Attorney for the Marshall County Hospital District, established under KRS 216.310 to 216.360, you raise questions concerning the use of hospital district funds and the terms of membership of the Hospital District Board.
First, the District has entered into recruitment contracts with physicians in order to attract them to your county. The contracts provide essentially that in exchange for the physician's agreeing to come to Marshall County and practice, to maintain regular office hours, to be on the medical staff of the hospital (operated by the District) and to comply with the medical by-laws of the hospital, and to do certain other things pertaining to the physician's practicing in Marshall County, the District agrees to guarantee a certain minimum income to the physician or to provide office space or to provide various other kinds of financial assistance.
The powers of the Hospital District Board are collected in KRS 216.335. Subsection (9) authorizes the Board to make contracts and employ professional people as the District may require. In conjunction with that, subsection (1) authorizes the Board to acquire and operate hospital facilities. Subsection (6) permits the Board to enter into agreements with any person affecting the affairs of the District. Subsection (12) authorizes the Board to establish by-laws covering the hospital operation and to conduct in a proper manner the professional and business affairs of the District.
In looking at KRS 216.335 as a whole, and especially the subsections referred to above, it is our opinion that the Board is authorized to engage in reasonable contracts with physicians and surgeons, relative to their hospital practice, which contracts are calculated to promote the district hospital program and which would subserve the purpose of the Hospital District's law as explicitly stated in KRS 216.310. It has been written that a statute should be considered as a whole in attempting to arrive at its legislative purpose.
Department of Motor Transp. v. City Bus Co., Ky., 252 S.W.2d 46 (1952). Under these assumptions, we encounter no difficulty with your "recruitment contract."
The second question concerns the terms of the District Board. KRS 216.325(1) provides in part that no member of the Board shall serve more than two (2) successive four-year terms. The same subsection deals with staggered terms. In connection with the persons first appointed to the Board, one third (1/3) of the members shall serve for a term of two (2) years, one third (1/3) for a term of three (3) years, and one third (1/3) for a term of four (4) years. This would require at least a Board of six (6) members in order to provide such human divisibility. However, KRS 216.325(1) provides in effect that where the Board consists of five (5) members, as is your case, the next higher number divisible by three (3) is six (6). Thus one third (1/3) of six (6) is two (2), who serve for two (2) years, one third (1/3) of six (6), is two, who serve for three (3) years, and the remaining and actual one (1) member serves for four (4) years.
After the first Board, successors shall be appointed for four (4) year terms. No member of the Board shall serve more than two (2) successive four-year terms. KRS 216.325(1).
You present the factual situation in which a Board member has served a portion of his predecessor's four-year term, and then he is appointed to serve his own four-year term. Your question is: Does his service of any portion of a prior four-year term court toward his two (2) successive four-year terms?
Under the literal wording of KRS 216.325, no member of the Board can serve more than two (2) "successive" four-year terms. (Emphasis added). Thus for the one (1) member of the first constituted Board appointed for a four-year term, such four-year term counts, since the statute says "successive four-year terms." Such member can serve only one additional four-year term which is successive to the first four-year term.
Where a person is appointed as a Board member to fill out a four-year term of a predecessor and then immediately after that term ends he is appointed to a regular or full four-year term, it is our opinion, under the literal wording of the statute, that the filling out of a predecessor's four-year term does not count in applying the rule prohibiting more than two (2) successive four-year terms. The "two (2) successive four-year terms" refers clearly to an appointment of the same person to fill two (2) successive regular four-year terms. Under this line of reasoning the precise number of years the person is appointed to fill out as to the four-year term of a predecessor is of no statutory significance. Here, it seems, the statute is clear and unambiguous, in expressing legislative intent, and there is no room for construction. The statute must be accepted as it is written.
Manning v. Kentucky Bd. of Denistry, Ky.App., 657 S.W.2d 584 (1983) 587.
Where the terms of any of the members of the initial board have expired, under the clear terms of KRS 216.325, the appointment of the successors shall be to terms of four-years. Thus the appointments of persons to immediately succeed any of the initial Board terms were improper where such successors were appointed for less than four (4) years. However, it is believed that the courts would uphold such appointments under the doctrine that the intent was to appoint them to regular terms under the statute, although the appointing authority did not correctly define "regular term." We do not believe under the circumstances that the work and actions of such Board would be declared illegal or a nullity by the courts, since public policy would dictate otherwise. In addition, the overriding factor is that the legislature fixed the term of the board members in KRS 216.325, as to the successive boards, and the mere failure of the appointing authority to note the proper number of years of four (4) in making the appointments will not suffice to change the statute. If they are appointed at all, the appointments will have to be in terms of a four-year term. 63 Am.Jur.2d, Public Officers and Employes, § 146, page 718 and 719. The appointing authority has no authority to legislate, i.e., they cannot shorten or change in any way the four-year terms provided by statute. It is written that "It has been declared that the public interest requires all possible certainty in the election of officers and in the beginning and expiration of their terms of office." See
Caldwell v. Lyon, 168 Tenn. 607, 80 S.W.2d 80, 100 ALR 1152. The local appointing authority has no authority to change the terms of such board members. A "term" is a fixed and definite period.
Cawood v. Hensley, Ky., 247 S.W.2d 27 (1952).
We are enclosing a copy of OAG 81-29, relating to Hospital District Boards, which you requested.