Request By:
Mr. Henry J. Potter, Jr.
Warren County Attorney
948 Elm Street
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question is whether the Fiscal Court of Warren County can hire a person to administer the affirmative action plan [relating to employment practices] adopted by the county. See KRS 344.040 and KRS 344.230.
See the power of the Federal Equal Employment Opportunity Commission to enforce the nondiscrimination features of the Federal Civil Rights legislation at 42 U.S.C.A. § 2000 e-5. Specific provisions are made for the federal commission's allowing a state or political subdivision to take affirmative action under appropriate state legislation in connection with a claimed discrimination prior to the federal commission's taking affirmative action.
This is one of a multitudinous number of cases involving federal laws imposing obligations on state and local governments or extending financial benefits to state or local governments, but which, if the federal laws are to be properly meshed with state and local governments, require implementing state statutes.
KRS 344.300 authorizes counties to adopt and enforce ordinances, orders, and resolutions prohibiting all forms of discrimination. However, under the recent decision of the Supreme Court of Kentucky, Fiscal Court of Jefferson County v. City of Louisville, etc. (76-604) [decided September 16, 1977], this statute would probably be held by the courts to be unconstitutional since it is essentially a delegation of legislative power to fiscal courts. The Supreme Court held that fiscal courts are not legislative bodies. Under KRS 344.300 the fiscal court would have the implied power to establish a position involving the administering of the affirmative action plan. However, for the foregoing reason, the statute, as it relates to counties, would probably be held invalid.
We are of the opinion that there is no valid statute authorizing the fiscal court to create this job involving the administering of the affirmative action plan.