Request By:
Mr. Marion Smith
Magistrate
Route #1
Columbia, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As a magistrate on the Adair County Fiscal Court, you request an opinion of this office relative to filling a hospital district board position.
Adair County established a hospital district, pursuant to KRS 216.317, approximately four years ago. Adair County is the only participating county; and five commissioners were named to the hospital board. One of the commissioners was Ray Wilkerson, and his term as a commissioner has expired.
Question No. 1:
"Would you please state exactly what the duties and powers of the county judge/executive and the quties and powers of the fiscal court are in relation to the appointment of a board member for a hospital district that was organized under KRS Chapter 216? Specifically, we would like to know whether the county judge/executive has any authority to appoint a hospital board member unless that member is actually approved by the fiscal court."
Prior to the 1980 amendment of KRS 216.323(1), the fiscal court as a body was required to make the appointment to hospital district board. The statute, as amended (1980 Acts, Ch. 18, § 21), now provides that such appointments must be made by the county judge/executive, subject to the approval of the fiscal court as a body. The effect of the 1980 amendment is to bring it into harmony with the general procedure of such appointments under KRS 67.710(8).
Thus under KRS 216.323, as it now reads, the county judge/executive must make a nomination to the board member position, and the fiscal court must, as a body, either accept or reject the nomination. See OAG 78-466, copy enclosed. Only the county judge/executive can make the nomination, but he can only submit one person's name at a time for the particular nomination. It is legally impossible for the county judge/executive to appoint a district hospital board member without approval of a majority of the fiscal court.
Question No. 2:
"In the event the fiscal court does not approve the nominations made by the county judge/executive, would the present hospital commissioner continue to operate until a successor is nominated and approved by the fiscal court?"
The district hospital board member position is one created by the General Assembly, not the Constitution (§ 161, Ky., Const., prohibits the extension of a constitutional officer's term beyond the period for which he was appointed) .
Board of Education v. DeWeese, Ky., 343 S.W.2d 598 (1961) 607. However, the explicit language of KRS 216.325 governs here. Subsection (1) of that statute provides in part that "The members (hospital board) shall hold office until their respective successors are appointed and qualified." (Emphasis added).
We must add, however, that the county judge/executive and the other members of fiscal court cannot arbitrarily, by their failure to agree upon a nominee, stretch the situation out such that Mr. Wilkerson, the incumbent under the four year term which has expired, continues to hold office for a substantial length of time. See § 2,
Kentucky Constitution, and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). The statute, KRS 216.323, imposes a strongly implied duty on all members of the fiscal court to reach an agreement on the board appointments, so as not to unnecessarily drag it out for an extended period. Orderly government demands this.
Question No. 3:
"What would be the proper procedure to be followed when a county judge/executive nominates a person as a Hospital Board Commissioner and none of the members of the fiscal court approves of that nomination and no one seconds the nomination?
"What is the correct course of action to be taken in obtaining a vote as to the approval of said nomination at that point?"
The fiscal court is required to respond to such a properly put motion, otherwise, they will be guilty of a failure of duty. The work of the fiscal court cannot be hamstrung by such inaction. The county judge/executive should put his nomination in the form of a motion: "I move, under KRS 216.323, that be appointed as a district hospital board member. " Then a second is required. Roberts Rules of Order, Revised, § 4, page 26, and pages 28-30. If the motion is not seconded, the motion, of course, fails. When the motion is made and seconded, the county judge/executive can then put the question of nomination to a vote by the fiscal court. Then the fiscal court (if a quo um is present) must by a majority vote indicate approval or disapproval as to the nomination.
As relates to question 4, which will follow, some time ago the fiscal court adopted a county administrative code pursuant to KRS 67.080(2)(c). The code includes a provision that gives the county judge/executive the authority to submit the names of qualified persons to serve on various county board. . . Then the fiscal court must act on such nominations within 60 days. If the fiscal court does not act on the nomination within 60 days, the nomination shall be deemed rejected by the fiscal court. If the fiscal court rejects the nominee, the county judge/executive shall submit additional nominees, not to exceed three, for any one position; and if the fiscal court rejects all three, the county judge/executive shall appoint a person to serve on a temporary basis, not to exceed one year.
Question No. 4:
"Is the regulation valid that grants to the county judge/executive the right to appoint a person to serve on a temporary basis not to exceed one year to an administrative position, board or commission without the approval of the fiscal court even if the fiscal court has rejected all nominations that have been submitted by the county judge/executive?"
The answer is "no". The code is in conflict with KRS 216.323 and 67.710(8). The matter of a 60 day period to respond to the nomination is arbitrary and contrary to the implicit requirements, as mentioned above, of the statutes just mentioned. Further, the statutes do not authorize the county judge/executive under any circumstances to appoint any person to fill the position, temporary or otherwise, without the formal approval of the fiscal court. As you mentioned, the administrative code of the county must be in harmony with existing and future constitutional and statutory sections.
Question No. 5:
"Even if the regulation which has been adopted by the fiscal court is valid as referred to above, would this regulation permit the county judge/executive to appoint someone to the position of commissioner on a Hospital Board Commission without the approval of the fiscal court when the fiscal court has rejected all other nominations, in light of KRS 216.323 which specifically provides for the approval of the fiscal court for the appointment of commissionrs and KRS 216.325 which provides that the members shall hold office until their successors are appointed and qualified?"
We have answered this one above. The county code is not valid since the county judge/executive cannot make such appointments without formal approval of the fiscal court.