Request By:
Mr. Charles R. McCollom, III
Henderson County Attorney
P.O. Box 1316
Henderson, Kentucky 42420
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General you ask several questions about the county budget. You state that at a special meeting a motion was made and seconded to accept the budget as finally prepared. The vote was 3-3.
KRS 68.210 - 68.360 is the county budget law. The procedure set by these statutes is basically as follows:
(1) The county judge/executive prepares a proposed budget and submits it to the fiscal court.
(2) The fiscal court may amend items in that proposed budget.
(3) The state local finance officer must approve the proposed budget as to form and classification and return it to the county judge/executive.
(4) The proposed budget must then be submitted to the fiscal court for final approval.
Section 4 of House Bill 906, which was enacted by the 1988 General Assembly and is presently in effect, amends KRS 68.260(1). That statute now reads as follows:
"The proposed county budget, tentatively approved by the fiscal court and approved by the state local finance officer as to form and classification shall be submitted to the fiscal court for adoption not later than July 1 of each year or within ten (10) days after receipt of the certified assessment from the department of revenue, as provided in KRS 133.180, whichever shall be later. The budget as presented and amended shall be adopted as of July 1. The county judge/executive shall cause a copy of the proposed budget to be posted in a conspicuous place in the courthouse near the front door, and be published pursuant to KRS Chapter 424, at least ten (10) days before final adoption by the fiscal court."
(Underlined language added by House Bill 906.)
As we understand it, this provision was enacted in response to the situation in Magoffin County for the past two years. There, the fiscal court vote ended in a tie on the final adoption of the budget. A tie vote is a defeat of the motion. Consequently, the county did not have a budget by July 1. The legislature wanted to create a statute that would automatically adopt the budget as proposed by the county judge/executive and amended by the fiscal court on July 1 regardless of the vote of the fiscal court on final adoption. However, we do not believe that the legislature accomplished this purpose.
By allowing the language concerning final adoption of the budget by fiscal court to remain in the statute, the legislature has created a situation in which a fiscal court that fails to comply with the mandatory direction of the statute, whether by inaction or a tie vote, must be compelled to act by appropriate litigation. "Automatic" adoption of the budget would make the vote of the fiscal court meaningless, thereby rendering the statute internally inconsistent. There is a principle of statutory construction that the legislature intends an act to be effective as an entirety and that significance and effect must be accorded to every part of the act.
George v. Scent, Ky., 346 S.W.2d 784 (1961). Furthermore, a statute must not be interpreted to bring about an unreasonable result.
George v. Alcoholic Beverage Control Board, Ky., 421 S.W.2d 569 (1967). Also, conflicting parts of a statute must be harmonized if possible.
Commonwealth v. Mullins, 296 Ky. 190, 176 S.W.2d 403 (1944).
The same principles would apply to a tie vote, which is the same as a defeat. OAG 73-394. Thus, in our opinion, the tie vote of the fiscal court defeated the final adoption of the budget which violates the mandatory language contained in House Bill 906. Therefore, the county would be without a budget until one is finally adopted.
The above discussion should be responsive to your first four questions. Your fifth question asks what the county judge/executive must do to declare an emergency and put the budget into effect.
We are unaware of any statutory provisions that would allow the county judge/executive to declare an emergency and put into effect a budget that was defeated by the fiscal court.
Related to your inquiry is the effect that House Bill 906 has on the duties of a fiscal court as they relate to possible sanctions against members of that court for failure to comply with the mandatory language of the statute. KRS 68.990 provides that:
(7) Any county officer who wilfully violates any of the provisions of KRS . . . 68.260 . . . shall be fined not less than fifty dollars ($50) nor more than two hundred dollars ($200).
In addition, KRS 522.030, Official Misconduct in the Second Degree, states:
(1) A public servant is guilty of official misconduct in the second degree when he knowingly: . . .
(b) Refrains from performing a duty imposed upon him by law . . .; or
(c) Violates any statute . . . relating to this office.
Finally, KRS 61.170 Malfeasance or neglect of county officers - Penalty., provides:
(1) County judges/executive, justices of the peace, . . . may be indicted . . . for misfeasance or malfeasance in office for wilfull neglect in the discharge of their official duties, and if convicted they shall be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) and the judgment of conviction shall declare the office held by such person vacant.
On numerous occasions this Office has opined that the failure of a county official to perform an act mandated by statute provides a basis for charges being brought under this statute. See, e.g., OAG 83-245, 80-154, 78-129.
Also, a mandamus action may be brought against the fiscal court members who voted against the budget to ask the circuit court to require the adoption of a budget. The state local finance officer may also sue the county pursuant to KRS 68.350. See