Request By:
Mr. Fred B. Creasey
Executive Director
Kentucky Association of Counties
P.O. Box 345
205 Capital Avenue
Frankfort, Kentucky 40602
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your recent letter you present the problem of hiring a county road engineer or road supervisor.
You are especially concerned about KRS 179.020(5) and (6), which states:
"(5) This section shall not be construed to prohibit the supervision of the construction and maintenance of roads, without additional compensation, by the county judge, or by committees of the fiscal court, in counties where the position of road engineer or road supervisor has not been established by the fiscal court.
"(6) Two or more counties, by a contract approved by order of the fiscal court of each of the counties, may authorize the county judges of the contracting counties to employ the same employe as county road engineer or county road supervisor to serve in all counties so contracting, and for the apportionment of the amount of his salary to be paid by each county."
First, the fiscal court has an option as to whether to hire a county road engineer or a county road supervisor. Where a county road engineer is not, for any good reason, hired, the fiscal court must hire a county road supervisor. The statute says ". . . duties of the county road engineer . . . . shall be performed by a county road supervisor. " (Emphasis added). See KRS 446.010(29), stating that "shall" generally means mandatory.
Department of Revenue v. Oldham County, Ky., 415 S.W.2d 386 (1967). When the various powers and duties of the road engineer (and substitutionally the road supervisor) are examined, the mandatory nature of the appointment becomes evident. See, for example, KRS 179.070, 179.150, 179.170, and 179.200.
You specifically ask this question:
"Does this mean that any county can hire (on a part-time basis) an engineer or supervisor that is already employed by another county provided that fiscal court approves?"
The answer to this question, as it applies to the statute as a whole, is "no". Such a plan would encourage a part time situation not envisioned by the statute. In fact, the statute contemplates the appointment of a road engineer or supervisor on a regular full time basis. Note that subsection (7) provides that the period of employment for any county road engineer or county road supervisor shall be two (2) or four (4) years, in the discretion of fiscal court. The point is that the road engineer or road supervisor, regardless of whether he serves only one county, or more than one under subsection (6), is indeed a full-time employee. If the engineer or supervisor works in two or more counties under subsection (6), he is a full-time employee who divides his time among the contracting counties. The nature of the function and the multiplicity of technical duties of the engineer or supervisor support this view. Subsection (4), where no qualified applicant, acceptable to the fiscal court, is available, permits the county judge/executive, with the consent of the fiscal court, to employ a temporary supervisor not qualified under subsection (2) for a period of three months.
Where a qualifying applicant cannot be found or agreed upon, the supervision of the road program is the responsibility of the county judge/executive or a committee of fiscal court, who serve without additional pay. KRS 179.020(5). However, the language in subsection (5) indicates, when read together with the other subsections and with other statutes in Chapter 179 relating to the powers and duties of the county road engineer, that the supervision by the county judge/executive or a fiscal court committee was intended to be a temporary expedient in the emergency mentioned above (no qualifying applicant found or accepted). See
Pendennis Club v. Alcoholic Beverage Control Board, 287 Ky. 49, 151 S.W.2d 438 (1941), pointing out that statutes in pari materia (same subject) should be construed together so that effect may be given to all provisions.
Under subsection (6) of the statute, two or more counties can jointly by contract, approved by each participating fiscal court, authorize the county judge/executive of the contracting counties to employ the same person as county road engineer or supervisor, as the case may be, to serve in all of the contracting counties, his salary to be paid by and work schedule to be apportioned to each contracting county. Under this arrangement, the contracting counties, through their fiscal courts, would have to specifically agree on the weekly work schedule of the engineer or supervisor in each county and the specific amount of pay of the engineer or supervisor, which each county must contribute each month. When such engineer is working in a particular county under the schedule, he would be required to perform any statutory duty required by such county during his work period in that county.
KRS 179.020 does not authorize the mere borrowing of another county's road engineer or supervisor to be used on a consulting basis, the remaining supervisory tasks being assumed by the county judge/executive or fiscal court committee. Where subsection (6) is applied, the county engineer or supervisor is actually shared with other contracting counties, but such an arrangement cannot be properly characterized as a "part-time" consultant. The engineer is full-time (2 year or 4 year appointment) , except that his time is divided among the contracting counties. When the multi-county engineer is not working in a particular contracting county, the county judge/executive must supervise the road program without him. See KRS 67.710 and 67.722. The county judge/executive is the overall executive head over the county road program. But the one thing we cannot forget is that the executive role of the county judge/executive was not intended to take the place of a road engineer or supervisor. Look at the qualifications of the engineer and supervisor in subsections (1) and (2). It is axiomatic that good and economic roads, even on a county level, cannot be constructed or maintained without the know-how of a competent road engineer or supervisor. To ignore the technical side of road building and maintenance would set the stage for a false economy.
The underlying purpose of KRS 179.020 is to provide for the basic continuity of the technical services of a road engineer or supervisor in each county. When that breaks down, the county road program will suffer immeasurably.