Request By:
Mr. Mark A. Fitzgerald
Representative
Sixty-Second District
P.O. Box 313
Cynthiana, Kentucky 41031
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You mention two opinions of this office, relating to the executive function of the fiscal court, which you believe may be in conflict.
In OAG 79-238 we said in part that "The fiscal court, acting as a body, determines what roads are to be repaired, the nature and extent of the repair, the time of repair and method of such improvements . . . They [the fiscal court] have no executive authority when they get outside of fiscal court meetings. See KRS 67.080(3)."
In OAG 78-621 we wrote that "The fiscal court has no executive authority except as specifically assigned by statute." Elsewhere in that opinion we said "The county judge/executive exercises the chief executive power relating to county matters and specifically as relating to county roads. KRS 67.710(1) and 67.083(3)(t) and (4)."
You ask us to resolve the "apparent conflict", as you put it, between the two opinions as to executive authority. You say you know of no statute which assigns to fiscal court, as a body, any executive authority over road programs.
You seem to suggest that a fiscal court no longer has an executive function, sitting as a body. Indeed that view seems to suggest that county government now follows precisely the constitutional division of powers as applied to state government: the judicial [courts of law], the legislative [fiscal court], the executive [primarily the county judge/executive]. We do not agree with such view.
To the contrary, the present statutory law points up the continuation of a historic principle applied to fiscal courts. The principle is that under its powers given by the legislature the "fiscal court, in a sense, is an executive board with both legislative and ministerial powers." (Emphasis added).
Farmer v. Marr, 238 Ky. 417, 38 S.W.2d 209 (1931) 211. "At the same time it is invested with powers in their nature quasi-judicial. " Ibid., p. 211. See also on this point
Shelton v. Smith, 284 Ky. 236, 144 S.W.2d 500 (1940) 501, saying that "the fiscal court exercises legislative and ministerial powers as well as powers in their nature quasi-judicial. " Because of this mix of governmental authority the courts have said that "it is sometimes difficult to determine when its acts are judicial and when administrative, and no hard and fast rule for determining that can be set out."
Knott County v. Michael, 264 Ky. 36, 94 S.W.2d 44 (1936) 45.
Thus we are unable to find any statutory basis for the premise that the ancient mix of function on the part of fiscal court has been eliminated. There is nothing in KRS 67.710 to suggest that the county judge/executive can take over all executive authority in connection with county roads. In fact, KRS 67.080(2)(b) and 67.083(3)(t) explicitly and expressly suggest that the fiscal court, as a body, has the sole jurisdiction to determine, both by legislative and executive or administrative action, the county road programs. In order to intelligently and wisely determine the expenditure of county road money, it is inherently and implicitly necessary that the fiscal court determine exactly what roads are to be constructed, reconstructed or repaired, the nature and extent of such construction or repair, the method of such improvements and the basic time scheduling of the improvements. Once that road program is hammered out by the fiscal court, as a body, the county judge/executive has the authority to carry out or execute such program. See KRS 67.710 and 67.083 (4). Note that KRS 67.710(1) provides that the county judge/executive shall provide for the execution of all orders and resolutions of the fiscal court.
Even if KRS 67.710 were construed as taking away all executive or administrative functions of fiscal court and giving them to the county judge/executive [and we do not so construe], such construction would be wholly in conflict and unworkable with the overarching and transcendent principle that a fiscal court possesses those powers expressly granted and those essential to the accomplishment of its declared objectives and purposes.
City of Bowling Green v. Gasoline Marketers, Ky., 539 S.W.2d 281 (1976) 284; and Fiscal
Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977). As we said, implied executive or administrative powers of fiscal court in establishing a county road program are necessary for it to carry out effectively its express duty. Otherwise, its orders or ordinances would constitute a mere shell, abstraction, or generality to be fleshed out by the county judge/executive. Such latter methodology would be wholly unworkable, and we do not believe the courts would countenance it. In reading KRS 67.710 and KRS 67.080 and 67.083 together, the language must be given a practical construction in order that fiscal court may carry out its assigned duties.
Nuetzel v. Will, 210 Ky. 453, 276 S.W. 137 (1925) 138. Further, these statutes, which are in pari materia [same general subject matter], must be construed together such that effect may be given to all of the provisions of each, if fairly and reasonably such construction is possible.
Pendennis Club v. Alcoholic Beverage Control Board, 287 Ky. 49, 151 S.W.2d 438 (1941) 440. Here we believe our construction gives effect to all three statutes, and the construction is fairly and reasonably possible. It makes possible orderly government and a fair distribution of work responsibility.
We appreciate your concern about this delicate and vital issue. However, we do not see, for reasons given above, any basic conflict in the two opinions relating to executive or administrative powers.