Request By:
Honorable N. Scott Lilly
First Assistant
Jefferson County Attorney's Office
1001 Fiscal Court Building
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General you ask the following question:
"Does the county judge/executive, pursuant to his power set forth in KRS 67.710(7), have exclusive authority to submit for fiscal court approval a proposed personal services contract for professional services to be rendered to the fiscal court or its members, or, may any member of the fiscal court do so?"
KRS 67.710(7) states that the county judge/executive shall "[e]xercise with the approval of the fiscal court the authority to appoint, supervise, suspend, and remove county personnel (unless otherwise provided by state law)." You contend that the reference to personnel in the statute includes personal service contracts.
In our opinion, the term "personnel" refers to employees. In Websters' Third New International Dictionary, "personnel" is defined as "a body of persons employed in some service." This appears to be the ordinary and everyday meaning of the word. See, e.g.,
State v. Hernandez, 556 P.2d 1174 (N.M., 1976). Words of a statute are to be given their usual, ordinary and everyday meaning.
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1961).
There is a difference between a personal service contract and an employer-employee relationship. See
Ratliff v Redmon, Ky., 396 S.W.2d 320 (1965). Consequently, we do not believe that KRS 67.710(7) applies to personal service contracts.
County governmental structure in Kentucky differs in one significant aspect from that of the state government. In state government there are three clearly defined and separate branches of government -- the legislative, executive and judicial. County government no longer involves the judicial branch. However, legislative and executive functions are not as clearly delineated as in state government. The county judge/executive is a full, participating member of the fiscal court. He has neither more nor less powers, as such, than any other fiscal court member, with certain limited statutory exceptions not applicable here (see KRS 67.040(3)). The fiscal court is the legislative body for the county. See KRS 67.080 and 67.083, and has all necessary legislative powers.
On the other hand, the county judge/executive has an additional role as the chief executive officer of the county and "shall have all the powers and perform all the duties of an executive and administrative nature . . . ." KRS 67.710. The fiscal court, as a body, is specifically prohibited from exercising any executive authority except as specifically assigned by statute. KRS 67.080(3).
In 16 C.J.S. Constitutional Law § 215 it is stated:
"Acts which are to be deemed of administration, and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved on it by the organic law of its existence."
The Kentucky Supreme Court has also adopted this reasoning in differentiating an executive function from a legislative one. In
Brown v. Barkley, Ky., 628 S.W.2d 616, 622 (1982), the Court held that the Governor could not transfer various functions from the Department of Agriculture to another agency "without legislative sanction unless it is necessary in order for him to carry out a law or laws that the legislature has created without prescribing in sufficient detail how they are to be executed."
In
Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907, 919 (1984), the Court held that adoption of administrative regulations is an executive function since the purpose is to implement and carry out legislative enactments.
It is our opinion that the issue of personal service contracts must be bifurcated to resolve the matter consistent with the above-cited reasoning. The decision to seek a personal service contract for whatever reason is, we believe, a legislative function. It is setting a policy for the county. On the other hand, the actual letting of the contract, that is, seeking a contractor, is an executive function. It is the implementation of the legislature's enactment.
Thus, it is within the power of the fiscal court to require the county judge/executive to seek a personal service contract for a certain type of service and to bring to the fiscal court for approval a specific contractor.
If the county judge/executive refuses to comply with the order of the fiscal court, a mandamus action may be instituted in the circuit court to require the judge to comply. See OAG 82-142 and 82-176.
The procedure outlined herein is analogous to and consistent with the statutes dealing with personal service contracts on the state level. KRS 45.700 to 45.720. The executive branch, through a particular agency, will seek a personal service contract with a particular individual or firm, oftentimes to implement a legislative enactment dealing with that agency. The contract must be reviewed by the personal services contract review subcommittee.
The procedure we outline herein is also analogous to and consistent with the procedure which counties must follow to hire employees. The fiscal court, either directly or through its enactment of the budget ordinance, creates all county employee positions. OAG 84-203. The county judge/executive then nominates individuals to fill those positions, which nominations must be approved or disapproved by the fiscal court. KRS 67.710(7).
It is also analogous to the bidding procedures. The fiscal court must authorize a specific bidding project. The county judge/executive prepares and advertises the bid and the fiscal court makes the award. OAG 84-194.
In summary, it is our opinion that it is within the legislative power of the fiscal court to mandate the obtaining of a personal service contract, and it is within the executive function of the county judge/executive to seek a contractor to fulfill the contract.