Request By:
Mr. William G. Clouse, Jr.
Madison County Attorney
P.O. Box 961
Richmond, Kentucky 40475
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The question you raise is whether the county judge executive has the authority to make appointments to boards or commissions created by statute where the statute is silent as to the fiscal court's approval. You write: "If KRS 67.710(8) does not apply in these situations, when does it apply?"
Your letter reads in part:
"There is confusion as to when the county judge executive can make appointments of members to boards created by law without requesting approval of the fiscal court pursuant to KRS 67.710(8). Our particular case in point involves the appointment of members to the County Board of Assessment Appeals (KRS 133.020) without the approval of the fiscal court. Of course, this question is not limited to appointments under KRS 133.020 but includes any appointments to boards, commissions, and administrative positions created by law but are silent as to approval powers of fiscal court. It should be noted that in KRS 133.020, as in many other statutes, there is no clause circumventing the fiscal court's right of approval, similar to clause in KRS 67.711 that clearly indicates the county judge executive can make an appointment without approval of fiscal court. It would seem that in light of Fiscal Court of Jefferson County v. McConnell, Ky.App., 614 S.W.2d 954, the county judge executive would need approval of fiscal court for all appointments unless the statute specifically states otherwise."
In dealing with the powers and duties of the county judge executive, subsection (8) reads:
"(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."
Your question relates narrowly to appointments to boards or commissions created by law, i.e., by statute. The Court of Appeals, in Fiscal Court Com'rs, Etc. v. Jefferson, Etc., Ky.App., 614 S.W.2d 954 (1981) 959, specifically held as follows:
"Therefore, we hold that KRS 67.710(8) was intended by the legislature to amend by implication all pre-existing statutes which vested the county judge executive with an unrestricted power to appoint the members of boards and commissions and to definitively set forth the precise nature, extent, and scope of that power for the future. If we have erred in our interpretation of the legislature's intent, that body may correct our error by remedial legislation."
Your particular case in point involves the County Board of Assessment Appeals under KRS 133.020. Subsection (1) of that statute reads:
"The county board of assessment appeals and any panel thereof shall be composed of reputable real property owners residing in the county at least five (5) years, to be appointed by the county judge executive for four (4) year terms."
Since KRS 133.020(1) vests the county judge executive with an unrestricted power to appoint the regular board, it is our opinion that, under the ruling of Fiscal Court of Jefferson County v. Jefferson, KRS 67.710(8) amended by implication KRS 133.020(1) and thus governs such appointments. This simply means that the county judge executive's appointments to such board are subject to the approval of the fiscal court.
Thus, concerning any existing statute which gives the county judge executive the sole authority to appoint members of boards or commissions, but which does not mention the approval of fiscal court, KRS 67.710(8) is deemed to amend by implication such statutes and thus governs such appointments.
In the factual frame of such statutes, the appointments by the county judge executive require the approval of the fiscal court, pursuant to the literal terms of KRS 67.710(8).