Request By:
Mr. William S. O'Daniel
Commissioner
Department for Local Government
909 Leawood Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise certain questions relating to fiscal court, the county judge/executive, and an administrative code.
Question No. 1:
"Does the specific requirement that fiscal court adopt an administrative code on procedures in the areas of fiscal affairs, personnel and purchasing supersede any general permissive authority to act in these areas?"
It is our opinion that the administrative code of the county can in no way be worded such as to supersede any statutory authority to act in those areas named.
The fiscal court in all counties must "adopt" a county administrative code. KRS 68.005 and 67.710(2). This includes procedures relating to the office of the county judge/executive, administration of county fiscal affairs [including budget, treasury, records, filing of claims], personnel administration, and county purchasing. KRS 68.005.
KRS 67.710 states generally that the county judge/executive shall have all the powers and perform all the duties of an executive and administrative nature. However, the statute specifically enumerates the powers and duties of the county judge/executive, including the responsibility to prepare and submit to fiscal court for approval an administrative code. KRS 67.083 gives fiscal court the power to enact ordinances, issue regulations, levy taxes, issue bonds, appropriate funds and employ personnel in performance of county functions thereafter specifically enumerated. The county judge/executive, under KRS 67.083(4), has the executive powers pursuant to the foregoing section. KRS 67.080 gives fiscal court certain specific powers. Under subsection (3) the fiscal court cannot exercise executive authority except as specifically assigned by statute.
It is our view that while the fiscal court has a primary legislative role and the county judge/executive the primary executive role, the General Assembly has not etched out in stone and sharp delineation or demarcation the specific branch of tripartite government allocated to the fiscal court and the county judge/executive. There is no suggestion in the Kentucky Constitution that county government is to be a microcosm of state government. Cf. § 27, Kentucky Constitution (distribution of powers of state government) . Historically the courts have declared that fiscal court has a mixture of the governmental powers. The court pointed out in Shelton v. Smith, 284 Ky. 236, 144 S.W.2d 500 (1940) 501, that fiscal court exercises legislative and ministerial powers as well as powers in their nature quasi-judicial. It is also evident that the county judge/executive is the chief executive officer of the county and performs executive and administrative tasks. But he sits as a member of the county legislative body.
This central premise emerges from the existing and new legislation relating to county government: It is that to determine the precise powers of the county judge/executive and the fiscal court, we must look to those power statutes containing expressly delegated authority. Fiscal Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977) 481. The court wrote that the granting of such powers, if the grant is to be constitutional, must be accomplished with the "precision of a rifle shot and not with the casualness of a shotgun blast." (Emphasis added). Under this strict doctrine, it cannot be reasonably seen that the General Assembly could delegate to fiscal court, through the enacting of an administrative code, an incredibly flexible and unlimited authority to realign, modify, and innovate on the statutory law dealing with the administration of county government. To the contrary, we come inevitably to the proposition that the fiscal court can in no way, in approving such code, approve any provision which would be in conflict with existing or future constitutional and statutory law.
Question No. 2:
"Is the fiscal court required to put in the administrative code all procedures for approval of claims, personnel appointments and other actions, and contracts which the fiscal court desires to impose on the county judge/executive?"
The code, under KRS 68.005, should merely provide administrative procedures: (1) which would facilitate the carrying out of the statutory administrative functions of county officers and fiscal court purely within the framework of the pertinent power statutes; (2) which would not be in conflict with existing or future constitutional statutory law. An administrative code must be simply viewed as a device to promote sound and efficient administrative management of county government, but not at the expense of impinging upon the statutory law of county government powers. See Courtney v. Island Creek Coal Company, (U.S.C.A. -6, 1973) 474 F.2d 468, 472, wherein the court pointed out that a state administrative regulation is limited to an implementation of administration of statutory functions assigned to the issuing agency, but they can in no way change the statutory law. See also Rietze v. Williams, Ky., 458 S.W.2d 613 (1970), relating to the legal status of state administrative regulations properly adopted and filed.
Unless this concept is understood at the local level, much confusion and waste of time may come about. The point is that counties have operated from time immemorial without such a code. It can operate now with a code of modest proportions, but which will accomplish the legislative purpose as mentioned above. The code should not be conceived as a "catalog" designed to cover everything which the human imagination can conjure up.
Question No. 3:
"Does the authority to adopt an administrative code permit fiscal court to change any provisions of the code prepared by the county judge/executive?"
KRS 67.710(2) reads:
"The county judge/executive shall be the chief executive of the county and shall have all the powers and perform all the duties of an executive and administrative nature vested in, or imposed upon, the county or its fiscal court by law, or by agreement with any municipality or other subdivision of government, and such additional powers as are granted by the fiscal court. The county judge/executive shall be responsible for the proper administration of the affairs of the county placed in his charge. His responsibilities shall include, but are not limited to, the following:
* * *
"(2) Prepare and submit to the fiscal court for approval an administrative code incorporating the details of administrative procedure for the operation of the county and review such code and suggest revisions periodically or at the request of the fiscal court;"
KRS 68.005 requires fiscal court to adopt a county administrative code.
It is our opinion that the fiscal court has no authority on its own initiative to amend or change the code. The county judge/executive has the sole power to offer a code and suggest revisions thereto, subject to the approval or disapproval of fiscal court as a body in adopting a code or revisions thereof. The word "adopt", as used in KRS 68.005, clearly suggests the approval of something already formulated. And clearly KRS 67.710(2) vests in the county judge/executive the sole authority to "prepare and submit" for fiscal court "approval" an administrative code. He also has the sole authority to review a code so adopted and suggest revisions on his own or when requested by fiscal court. Here again, the county judge/executive suggests revisions, if any, subject to the approval or disapproval of fiscal court. See Miller v. Union County, Or., 86 P. 3 (1906), holding that "approving" is synonymous with "adopted" under the Oregon statute. The statute, relating to establishing of county roads, required that the county court, on receiving the report of the board of county road viewers under certain conditions, must adopt the report. Black's Law Dictionary, at page 70, defines "adopt" as "to accept, consent to, and put into effective operation; . . . Real v. People, 42 N.Y. 282; . . . City of Albany v. Nix, 21 Ala. App. 164, 106 So. 199, 200." (Emphasis added). The rationale for such legislative intent is reflected in the fact that the chief executive officer is the logical officer to actually formulate the code and any revisions thereto, subject to the approval or disapproval of fiscal court as a body. He is the person who should have a perspective calculated to recognize, define, and deal with needed administrative procedures. Any other system might induce chaos and endless controversy.
Question No. 4:
"Is the county judge/executive authorized to perform all duties for management of county government until an administrative code is adopted by fiscal court?"
Before and after a code is adopted the management of county government, as between the fiscal court and the county judge/executive operating under the spirit of a team, simply boils down to the statutory powers they each have. The present statutes, we think, constitute a sufficient blue print or guide for effective meshing of their governmental actions. If experience dictates that the county judge/executive's functions, for example, need additional statutory treatment, then resort must be made to the legislature. The administrative code cannot be relied upon to alter in any respect the statutory power alignments.