Request By:
Mr. Robert B. Ison
Administrative Assistant
Center for Aging Services
Department for Human Resources
275 East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You seek our opinion as to the following question:
"May a County Judge and his Fiscal Court enter into commitments, contracts, or agreements beyond the term of their office?"
Of course, the authority to make contracts on behalf of the county is vested solely in the fiscal court.
Todd County Fiscal Court v. Frey, Ky., 285 S.W.2d 499 (1956). While we can find no Kentucky case precisely on this point, many of the outside jurisdictions have adopted the general principle concerning the distinction between legislative or governmental and business or proprietary powers. Concerning contracts that relate to the legislative or governmental powers of the fiscal court, no action taken by the fiscal court in that regard would be binding upon its successors; whereas, if the contract arises out of the business or proprietary powers of the fiscal court, such contract or agreement could be binding upon the successors of the fiscal court. 10 McQuillin, Municipal Corporations, § 29.101.
This general principle is described in 56 Am.Jur.2d, Municipal Corporations, Etc., pages 206-207:
"Thus, where the contract involved relates to governmental or legislative functions of the council, or involves a matter of discretion to be exercised by the council unless the statute conferring power to contract clearly authorizes the council to make a contract extending beyond its own term, no power of the council so to do exists, since the power conferred upon municipal councils to exercise legislative or governmental functions is conferred to be exercised as often as may be found needful or politic, and the council presently holding such powers is vested with no discretion to circumscribe or limit or diminish their efficiency, but must transmit them unimpaired to their successors. But in the exercise of the business powers of a municipal corporation, the municipality and its officers are controlled by no such rule, and they may lawfully exercise these powers in the same way, and in their exercise the municipality will be governed by the same rules which control a private individual or a business corporation under like circumstances."
In general the answer to your general question would depend upon which category of powers the subject contract would fall into, as described above.
There is one basic exception to this general principle of classification of powers. It is that if a particular statute conferring the power to contract clearly authorizes the fiscal court to make a contract extending beyond its own term, the statute would govern, even though a legislative or governmental function is involved. See
City of Riviera Beach v. Witt, Fla. App., 286 So.2d 574 (1973). See also
State v. State Board of Education, Mont., 33 P.2d 516 (1934) 523.
The power conferred upon municipalities to exercise legislative or governmental functions is conferred to be exercised as often as may be found needful or politic, and an incumbent city council or fiscal court presently holding such powers is vested with no discretion to circumscribe or limit or diminish their efficiency, but must transmit them unimpaired to their successors. But in the exercise of the business powers of a municipal corporation, the municipality and its officers are controlled by no such rule, and they may lawfully exercise these powers in the same way, and in their exercise the municipality will be governed by the same rules which control a private individual or a business corporation under like circumstances. Under this distinction, it is generally held that a municipal council may contract for water supply, street lighting, gas supply, etc., and bind subsequent boards, such contracts being made in the exercise of the city's business or proprietary powers, although a contract of this kind must be reasonable in the length of time for which it is to extend. See City of Riviera Beach, above. Also see
Karpark Corp. v. Town of Graham (US Dist. Ct. N.C., 1951) 99 F.Supp. 124, in which the court held that a city contract for delivery and installation of parking meters was a contract that was binding on the successors of members of the city board. The court said a statute authorized the contract.
Under the business category, it has been held that a municipality may lease its property for a term extending beyond the term of the council.
Biddeford v. Yates, 104 Me. 506, 72 A. 335.
There is a common law principle, apart from statute, which provides that a public officer cannot give an appointee a tenure of office beyond his own.
Duggan v. City of Taunton, Mass., 277 N.E.2d 268 (1971) 271. Thus the tenure of county employees generally, in the absence of a civil service system, cannot extend beyond the tenure of the members of the fiscal court which appoints them. See KRS 67.710(7). Where a city or county legislative body exercises a supervisory control over employees, together with the power of appointment and removal, such employment contract has been held to be in the exercise of a governmental function, and such contracts cannot extend beyond the life of the board. 10 McQuillin, Municipal Corporations, § 29.101. See the powers of fiscal courts in KRS 67.080 and 67.083, as amended by H.B. 152 [Chapter 118, 1978 Acts]. As an additional example of a statute's permitting a contract to be binding on the successor board of county commissioners, in
Yovetich v. McClintoch, Mont., 526 P.2d 999 (1974) 1002, the court, where a statute gave the county board the power to erect a recreation center, ruled that the board could enter into construction contracts that extend beyond the terms of office of the individual members of the board. A contrary rule, the court said, would not provide for long-term construction contracts to erect public buildings.
The Supreme Court of Idaho, in H.J. McNeel, Inc. v. Canyon County, Idaho, 277 P.2d 554 (1954), ruled that the express statutory power to build the jail carries with it the power to pay all necessary costs, regardless of when they accrue. In this regard see KRS 67.080(2)(a) and (b), as amended by H.B. 152 (Ch. 118, 1978 Acts, Section 2), which provides that a fiscal court shall cause the construction, operation and maintenance of all county buildings and other structures, grounds, roads and other property.
As relates to the business or corporate powers of a county, the