Request By:
Mr. William Wiley
Legislative Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your recent letter you present the following question:
"Opinions 81-123 and 81-61 appear to be in conflict concerning the extent of fiscal court control over personnel matters relating to deputy jailers. Could you please review these opinions and inform me if you decide that any revisions are necessary?"
In OAG 81-61, an opinion to the jailer in Clark County, a county of less than 75,000 population, we concluded that the fiscal court of that county has no authority, in its enactment of an administrative code, to provide for vacation on sick leave for a jailer's deputies. The conclusion there was that the fiscal court has no power to enact such ordinance provisions.
In OAG 81-123, we pointed out that pursuant to KRS 67A.060, 67.080 and 67.083, the urban county council, and the fiscal courts in other counties of 75,000 in population or more, may enact reasonable ordinances providing for leave time for the deputies of constitutional officers.
The question specifically is whether there is any distinction between counties of less than 75,000 population and counties of 75,000 population or more as relates to the authority of the fiscal court to establish vacation and sick leave for county constitutional officers' deputies. The answer is "no".
Under KRS 67.080(2)(c), the fiscal court has the authority to adopt an "administrative code for the county." No distinction is made between deputies of county constitutional officeers and county employees, i.e., employees directly hired or apointed by the fiscal court. Thus the administrative code ordinance can embrace necessary administrative matters, such as county employees' and constitutional officers deputies' vacation and sick leave, so long as it is not in conflict with any state statute or constitutional section. See KRS 67.083(6), providing that "If a county is authorized to regulate an area which the state also regulates, the county government may regulate the area only by enacting ordinances which are consistent with the state law or administrative regulation."
In addition, KRS 67.710(2) provides that the county judge/executive shall "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."
In
Plageman v. Board of Commissioners, Ky. App., 569 S.W.2d 191 (1978), the definition of "administrative" was given at page 193:
"The rule in this Commonwealth for determining the nature of an ordinance is 'if the power to be exercised prescribes a new policy or plan it is legislative, whereas if it merely pursues a plan already adopted by the legislative body or some power superior thereto it is administrative.
City of Newport v. Gugel, Ky., 342 S.W.2d 517, 519 (1960). Another form of the rule, as stated in City of Newport, supra, at page 519, is:
. . . . [A]n ordinance originating or enacting a permanent law or laying down a rule of conduct or course of policy for the guidance of citizens or their officers or agents is legislative, while an ordinance which simply puts into execution previously declared policies or previously enacted laws is administrative."
Elsewhere in Plageman, above, the court wrote this:
"In City of Newport, supra, the ordinance in question fixed minimum salaries for police and fire department personnel, regulated working hours, vacations and days off without pay, and provided for the filling of certain minimum personnel in various positions, along with provisions for filling certain positions with police department personnel. That ordinance was held to be administrative in nature and the court in City of Newport, supra, at page 520, states:
. . . . While an overall, comprehensive plan or policy for personnel administration of the city government, giving consideration to such factors as the money resources available, the tax potential and its limitations, and the requirements of a unified budget, would be legislative in character, the same cannot be said of an ordinance that deals only with a segregated portion of the administrative personnel and with a part of the administrative problems, and merely prescribes details within the framework of a previously adopted general plan. Personnel administration is primarily an administrative matter, at least as far as concerns the details of management."
Clearly the administrative code for a county may properly encompass provisions for vacation and sick leave for all county employees, including deputies of county constitutional officers, using state statutes and state administrative regulations as a background, so long as such treatment is not in conflict with constitutional or statutory sections.
KRS 71.060 in no way can be construed to negate the authority of the fiscal court to treat the subject of vacation and sick leave in the administrative code ordinance as would embrace the jailer's deputies along with county employees generally.
Moreover, the jailer himself has no authority as the appointing officer to prescribe rules relating to vacation and sick leave for his deputies. If this were true, there would be a government within a government. The statutes and the concept of uniformity require otherwise. Powers of officers are limited to those conferred expressly by statute or which exist by necessary and fair implication.