Request By:
Mr. John R. Cox
Rowan County Attorney
P.O. Box 9
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Apparently the Rowan Fiscal Court entered orders approving of a loan for the construction or renovation of a new county facility and courthouse, and directing the county judge/executive to execute the necessary documents on behalf of the county. We are not aware of the details of the loan arrangement. Under the facts given, we must assume that there is no substantial constitutional or statutory question relating strictly to the loan arrangement itself. you indicated that the loan and renovation documents had a deadline of August 12, 1980, in order to procure funding for the project. You also indicated that the county judge/executive, on being made aware of the necessity for his signing the documents, had failed or refused to sign the documents on behalf of the fiscal court under the deadline.
Based upon our informal advice that under the situation the other members of fiscal court could execute the documents, they did so sign the documents. The attorney for the investors has required that the money of the investors be escrowed until receipt of a formal opinion of this office confirming the magistrates' authority to sign the documents on behalf of the county. You say the opinion is urgent if the county is to proceed with this important project.
Your question is whether, under these peculiar circumstances, the members of the fiscal court, other than the county judge/executive, had legal authority to sign the documents on behalf of the county.
It is true that KRS 67.080(3) provides that the fiscal court shall not exercise executive authority except as specifically assigned by statute. It is also true that generally the magistrates or commissioners on fiscal courts have no specific executive role in county government. The county judge/executive has been given the role of chief executive of the county. KRS 67.710 provides that he shall have all powers and perform all the duties of an executive and administrative nature vested in, or imposed upon, the county or 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." (Emphasis added). Subsection (1) of the statute states that the county judge/executive's duties shall include the executing of all contracts entered into by the fiscal court.
Under the above statutory references, the county judge/executive has the "normal" responsibility of executing all contracts entered into by the fiscal court. But the situation you have described is not a normal situation. The courts have held that either mandamus or injunction will lie to compel a public officer to perform a ministerial duty imposed by law.
Young v. Jefferson County Election Commission, 304 Ky. 81, 200 S.W.2d 111 (1947) 114. However, under the facts given, a mandamus or injunction action would not suffice as a practical remedy, since such suit would proceed to judgment long after the deadline for signing has arrived and gone. The remaining question is whether the county must sit idly by or engage in an academic suit of mandamus or injunction, or whether there is any other way out of this perplexing problem.
Judge Drury, for the court, wrote in
Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821, that "The law will not force any one to do a vain and useless thing." That maxim applies here, since, as we pointed out, the mandamus action would come to a judicial result only after the deadline had long passed.
Furthermore, in this situation, if the fiscal court's only remedy is mandamus or injunction, then if the fiscal court members (other than the judge/executive) did not effectively sign the documents, the county judge/executive indeed could be said to hold an effective veto power over the affirmative legislative actions of the fiscal court as a body. We do not believe that the courts would so hold that the county judge/executive has such extraordinary powers. The fiscal court is a body that exists for the people of Rowan County, not for the county judge/executive.
The fiscal court regulates and controls the fiscal affairs of the county, not the county judge/executive. KRS 67.080(1)(c). The fiscal court has the affirmative duty, under KRS 67.080(2)(b) to cause the construction of any necessary county building. Here the renovated building will house the county officials and the local court system. We understand the building is sorely needed as a necessary part of constitutional government. See also the authority of the fiscal court in enacting ordinances relating to providing public buildings. KRS 67.083(3)(p). The powers of the fiscal court are those powers expressly conferred by statute, which we have just mentioned, and those powers implied and which are reasonably necessary to execute the express powers.
Bruner v. Jefferson County Fiscal Court, 239 Ky. 613, 40 S.W.2d 271 (1931) 273.
Even though the power of fiscal court magistrates to sign such documents is not expressly spelled out in the statutes, it is our opinion that under the peculiar circumstances of this situation, the members of the fiscal court, other than the county judge/executive who would not sign, had the authority to sign the documents in order to carry out its express power of constructing a necessary county building, and thus in order to effectuate its positive legislative action authorizing such construction. To not so hold would obviously give the county judge/executive veto power over the fiscal court, which he does not have, and would otherwise permit the blocking of the will of the majority of the fiscal court. We do not envision county government on such latter terms.
Moreover, in spite of the literal wording of KRS 67.080(3), the fiscal court, under its implied powers contained in KRS 67.080 and 67.083, pointed out above, can exercise such an executive or administrative function as signing documents it has legislatively authorized, where the county judge/executive fails or refuses to carry out his mere ministerial duty of signing. This construction of the statutes is wholly compatible with the court's historical holdings that a fiscal court, in a sense, is an executive board with both legislative and ministerial powers.
Farmer v. Marr, 238 Ky. 417, 38 S.W.2d 209 (1931) 211. The view that the county judge/executive now, as a matter of absolutism, has all executive powers is too broad and sweeping. It is myopic and misleading, as can be seen from the above analysis.
There is nothing in the statutes relating to the powers of the fiscal court and the county judge/executive which suggests that a fiscal court can be marooned on the sand bar of governmental paralysis by the mere failure of the county judge/executive to carry out his ministerial role of signing documents authorized by majority action of the fiscal court.
In summary, we are of the opinion that the signatures of the subject courthouse construction documents by a majority of the fiscal court were validly executed.