Request By:
Zachary D. Brien, Benton City Attorney
Opinion
Opinion By: ANDY BESHEAR,ATTORNEY GENERAL;Taylor Payne,Assistant Attorney General
Opinion of the Attorney General
Zachary D. Brien, City Attorney, City of Benton, Kentucky, requests an opinion from this office to address questions regarding appointments to and membership on a waste management district ("District"). The questions seek interpretation of KRS 109.115 and KRS 65.008.
The goal of statutory interpretation is to give effect to the intent of the legislature.
Jefferson Cty. Bd. of Educ. v. Fell , 391 S.W.3d 713, 718 (Ky. 2012) (citation omitted). Courts accomplish this by assigning words used by the legislature their literal meaning, unless doing so would lead to an absurd result.
Univ. of Louisville v. Rothstein , 532 S.W.3d 644, 648 (Ky. 2017) (citation omitted). In other words, courts "look first to the plain language of a statute[.]" Id. (citation omitted). If the legislature's intent can be ascertained by the plain language, the court's inquiry ends without resort to any other method or source. Id. (citation omitted).
The first five questions concern interpretation of KRS 109.115. That statute provides:
(1) A single county, or two (2) or more counties may create a waste management district in accordance with the procedures of KRS 65.182. Waste management districts shall have all powers and authority set forth in KRS 109.041.
(2) The waste management district shall be controlled by a board of directors.
(3) The fiscal court in a county not containing a consolidated local government shall determine the composition of the board of directors in one (1) of the following ways:
(4) In a county containing a consolidated local government, the mayor of the consolidated local government, with the approval of the legislative body of the consolidated local government, shall appoint the following seven (7) persons to constitute the board of directors:
(5) A member of the board of directors may be removed from office pursuant to KRS 65.007.
(6) Except for the initial board appointed pursuant to this section, each director shall serve a two (2) year term, and shall serve no more than three (3) consecutive terms. The initial board appointed pursuant to this section shall consist of three (3) directors appointed for one (1) year and four (4) directors appointed for two (2) years.
The first question raised is whether KRS 109.115(3)(a) applies to a solid waste management district containing only one county. The plain language of KRS 109.115(3) contemplates that a fiscal court in a county not containing a consolidated local government has two options to appoint the board of a waste management district. It does not confine that option to a waste management district existing in only one county. Thus, KRS 109.115(3)(a) also applies to a solid waste district containing only one county. If a fiscal court chooses the first option - under KRS 109.115(3)(a) - it appoints the county/judge executive and the mayor of the most populous city, as well as a third member from the county.
The second question is whether a mayor's delegate to the board of a waste management district under KRS 109.115(3)(a) would require fiscal court approval. The answer is no, as the language of KRS 109.115 does not require such approval.
The third question is who the appointing authority is for the third member of the board appointed pursuant to KRS 109.115(3)(a). The answer is the fiscal court, as KRS 109.115(3)(a) contemplates the fiscal court as the only appointing authority.
The fourth and final issue related to KRS 109.115(3) is whether the mayor may delegate a representative under KRS 109.115(3)(b). The answer is no. The plain language of KRS 109.115(3)(b) does not contemplate a mayor's authority to delegate a representative. This is in stark contrast to KRS 109.115(3)(a), which expressly permits a mayor to delegate a representative. A rule of statutory construction is that the express mention of one thing implies the exclusion of another. See
Fox v. Grayson , 317 S.W.3d 1, 8 (Ky. 2010). Thus, because the legislature clearly expressed a mayor's delegation authority in KRS 109.115(3)(a), it must be assumed it intentionally withheld such authority from the mayor by omission in KRS 109.115(3)(b).
The fifth question is whether KRS 109.115(6) applies only to waste management districts of consolidated local governments. The answer is yes. During the 2017 Regular Session, the General Assembly passed House Bill (HB) 246, which amended KRS 109.115 by excepting counties containing consolidated local governments from subsection (3) and adding subsections (4) and (6). 2017 Ky. Acts Ch. 105 § 2. By its plain language, KRS 109.115(4) sets forth the seven members that shall be appointed to the board of a waste management district created by a county with a consolidated local government. Thus, the amendments to subsections (3) and (4) pertain exclusively to counties containing consolidated local governments. While subsection (6) does not by its express language limit its application to counties containing consolidated local governments, its enactment in HB 246 suggests it also only applies to such counties. Moreover, reading it to apply to other counties would lead to an absurd result. Neither KRS 109.115(3)(a) nor (b) require a board to contain seven members. In fact, KRS 109.115(3)(a) contemplates a board with only three members in a one county waste management district, and KRS 109.115(3)(b) states that a board appointed under its guidelines shall not consist of fewer than three members. Furthermore, KRS 109.115(3)(a) directs that the county judge/executive and mayor are board members. Their terms as county judge/executive and mayor would not align with the initial board appointments contemplated in KRS 109.115(6). This would be an impermissible interpretation. See
Osborne v. Commonwealth , 185 S.W.3d 645, 649 (Ky. 2006) (statutes should be read to give meaning to all sections). Therefore, we read KRS 109.115(6) to only apply to the board of a waste management district created by a consolidated local government.
The sixth question relates to KRS 65.008, which governs the expiration of terms of appointed members to governing boards such as the board of a waste management district. KRS 65.008 provides:
(1) At least sixty (60) days before the expiration of the term of office of an appointed member of a district's governing body, the district shall notify the appointing authority of the forthcoming expiration of the term of the appointed member of the district's governing body.
(2) Unless otherwise provided by law, appointed members of district governing bodies shall serve until their successors are appointed and qualified. The failure of an appointing authority to appoint a successor or, if the appointing authority's appointment is subject to the approval of a legislative body, to nominate a successor within sixty (60) days of the expiration of the term of office of a member of a district governing body shall constitute the reappointment of that member for another term of office.
The requester asks if the fiscal court approved a member of the waste management district board, but the board does not give notice of that member's term expiring, would KRS 65.008(2) allow the fiscal court to appoint a successor at any time, or would the prior approval serve as constructive notice to initiate the sixty (60) day period to nominate a successor.
We assume the situation referenced is occurring under KRS 109.115(3)(a), because that is the only manner in which a fiscal court has any appointing authority to a waste management district board. KRS 65.008(2) does not place a restraint on when the fiscal court may appoint a successor, except that after 60 days of the expiration of the members' term, the fiscal court would lose its authority to appoint a successor because the members would be reappointed by operation of law. Thus, a fiscal court may appoint a successor at any time until 60 days after the expiration of the term. However, the successor cannot take office until the prior member's term has expired.