Request By:
Mr. W. C. Flannery
Rowan County Judge-Executive
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking what statute and what procedure is to be used in removing a board member from a board such as an air board or any other county-appointed board.
We assume that the air board to which you refer is a local air board created pursuant to KRS 183.132, originally enacted in 1960 and last amended in 1964. KRS 183.132(3) deals with the appointment of board members and it provides in part that if the air board is established by a county, such members shall be appointed by the county judge. Furthermore, if the air board is established as a joint city-county air board, the members shall be appointed jointly by the mayor of the city and the county judge. KRS 183.132(10), dealing with the removal of air board members, states as follows:
"A board member may be replaced by the appointing authority upon a showing to such authority of misconduct as a board member or upon conviction of a felony. No board member shall hold any official office with the appointing authority. "
KRS 67.710(8), enacted by the 1976 Extraordinary Session of the General Assembly (S.B. 18, Chap. 20, Section 3, effective January 2, 1978), provides as follows in connection with the powers and duties of the county judge-executive:
"With the approval of the fiscal court, make appointments to or remove members from such boards, commissions, and designated administrative positions as the fiscal court, charter, law or ordinance may create. The requirement of fiscal court approval must be designated as such in the county administrative code or the county charter."
In the same 1976 enactment creating KRS 67.710, there is a section 6 providing that wherever the words "county judge" appear in previously existing statutes, the language shall be changed by the Revisor of Statutes to read "county judge/executive."
As you can see, there is an irreconcilable conflict between those sections of KRS 183.132 dealing with the appointment and removal of air board members and KRS 67.710(8), a general statute dealing with the appointment and removal of members of various boards and commissions. Under KRS 183.132, the county judge-executive is the appointing authority and, as the appointing authority, he may remove persons for the specific reasons set forth in the statute. Pursuant to KRS 67.710(8), the county judge-executive, with the approval of fiscal court, may make appointments to and remove members from various boards and commissions.
In OAG 78-746, copy enclosed, in connection with the appointment of members to a county air board, we said that any appointment to an air board, created pursuant to KRS 183.132, must be made by way of nomination made by the county judge-executive, subject to the approval or disapproval of the nomination by the members of the fiscal court acting as a body. "It is an elementary rule of statutory interpretation that whenever in the statutes on any particular subject there are apparent conflicts which cannot be reconciled, the later statute prevails. " Furthermore, "a general statute is not to be construed as repealing a previous particular act unless there is some express reference to the previous legislation on the subject or unless the two acts are necessarily inconsistent." See Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398, 400 (1949) and City of Eddyville v. City of Kuttawa, Ky., 343 S.W.2d 404, 406 (1961).
Since KRS 183.132(10) and KRS 67.710(8) are in conflict as to who removes a member of the air board, KRS 67.710(8), as the later enactment, prevails and a member of a county air board is removed by the county judge-executive with the approval of the fiscal court. The statutes are not in conflict as to the reasons for removal, however, and a member of a county air board can only be removed by the county judge-executive and the fiscal court for those specific reasons set forth in KRS 183.132(10).