Request By:
Hon. David L. Harrington
Calloway County Attorney
Courthouse Building
101 South 5th Street
Murray, Kentucky 42071
Opinion
Opinion By: Chris Gorman, Attorney General; Gerard R. Gerhard, Assistant Attorney General
Re: Murray-Calloway County Public Hospital Corporation - Procedure Governing Appointment of Calloway County's "Discretionary" Representative on Hospital Corporation Board. AGO Corr. No. 92-(0)-755.
By letter of May 8, 1992 you ask, in substance, what procedure governs the appointment of Calloway County's discretionary representative (the person filling the board membership other than that filled by the County Judge/Executive, and that filled by a member of the fiscal court) on the board of the Murray-Calloway County Public Hospital Corporation. Is it the procedure specified in KRS 67.710(8), or alternatively, some other procedure, for example, that specified by the hospital corporation's by-laws?
In our view, KRS 67.710(8), which establishes the authority of a county judge/executive to make appointments to an entity created by the fiscal court, charter, law, or ordinance, does not control the procedure for appointments to the board of the Murray-Calloway County Public Hospital Corporation, because the Corporation was not created by such means. Appointments to the Hospital Corporation's board, under the facts involved here, are governed by the by-laws of the corporation. Discussion follows.
KRS 67.710(8) is one of the provisions specifying the powers and duties of the county judge/executive. It provides, in that part pertinent here, that the county judge/executive shall:
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.
* * *
(Emphasis added.)
As we understand it, the Murray-Calloway County Public Hospital Corporation was not created by the Calloway County Fiscal Court, by charter, by law, or by ordinance. The corporation was created by its incorporators. KRS 67.710(8), by its express terms, applies to appointments or removals from boards, commissions or designated administrative positions created by the fiscal court, charter, law, or ordinance. Since the Murray-Calloway County Public Hospital Corporation was not created by one of the means set forth in KRS 67.710(8), the provisions of that statutory subsection are not applicable to appointments or removals from the corporation's board.
As understood by the undersigned, Calloway County became a formal participant in the Murray-Calloway County Public Hospital Corporation on or about October 5, 1962, as reflected in the minutes of the Calloway County Fiscal Court for that date (Calloway County Fiscal Court Claims Order Book No. 12, pp. 483-489). In view of such participation, the Calloway County Fiscal Court, and Calloway County's County Judge/Executive, in connection with the making of a discretionary appointment to the hospital board, as provided by the by-laws of the hospital corporation, are bound by the procedures established in the by-laws of that corporation. See the reasoning set forth in OAG 80-268 (copy enclosed), which we follow here.
Under Subsection 3 of Section 3 of Article II, of what we understand to be the current by-laws of the Murray-Calloway County Public Hospital Corporation (which were furnished with your request to this office), a "Hospital Board Nominating Committee," in accordance with considerations specified in the by-laws, is to provide to the county judge/executive " the names of not less than three persons " who meet specified criteria " for selection and appointment by the fiscal court. "
The language of the by-laws cited above does not permit submission to the fiscal court, for possible selection and appointment, of other than the entire list of names provided to the county judge/executive by the Hospital Board Nominating Committee. It follows that upon receipt of a listing of three or more nominees from the Hospital Board Nominating Committee, the county judge/executive should submit such list, in its entirety, for possible selection by the fiscal court of one of the persons named on such list.
If the fiscal court refuses to make a selection from the list initially provided to the fiscal court, the by-laws of the corporation provide for the fiscal court to request, and for the Hospital Board Nominating Committee to furnish, additional nominees (By-laws, Murray-Calloway County Public Hospital Corporation, Article II, Section 4).