Request By:
Mr. Sherman Dean, Jr.
Jessamine County Judge/Executive
Courthouse
Nicholasville, Kentucky 40356
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
There are in Jessamine County three water districts. One of those districts is the Lexington-South Elkhorn Water District, which was initially created in Fayette County. Later its territory was expanded into Jessamine County. See KRS 74.115. The Fayette part of that district was deleted from the district, except for a small piece of land extending some 500 feet across the Fayette-Jessamine boundary line into Fayette County, involving not more than two water customers living in that narrow slice of land, along U.S. Highway No. 68. The Kentucky American Water Company took over the deleted Fayette territory under a service contract with Fayette County.
At the present time there are two (2) water board commissioners from Jessamine County serving the district. There are also two (2) commissioners serving as Fayette County representatives, although they do not live in the district. There now exists a vacancy on the board of commissioners of the water district, since the statute provides for five (5) commissioners.
Controversy has arisen as to who would make the appointment for this vacancy, since there appears no interested or sufficient number of appointees in Fayette County. There are persons in Jessamine who would be interested in the appointment. Your question is: Who has the power to appoint a water commissioner to fill the vacancy?
As we said in OAG 81-65, we assume the diminution of the water district was effected pursuant to KRS 74.110, and with the assent of Fayette County. Under KRS 74.020(1)(b) the board of commissioners has three (3) members from the original district and two (2) members from the extended portion of the district. Thus three (3) commissioners must serve for the Fayette County territory in the district and two (2) commissioners must serve for the Jessamine territory of the district. As we pointed out in OAG 81-65, this result is under the literal words of the statute, though only two customers live in the Fayette sector.
Old Lewis Hunter Distillery Co. v. Kentucky Tax Commission, 302 Ky. 68, 193 S.W.2d 464 (1946). We suggested in the opinion referred to, OAG 81-65, that the practical reality suggests reducing the district territory down to just the Jessamine territory, pursuant to KRS 74.110, with the assent of Fayette County. Then, after the Fayette territory is eliminated from the district, the commissioner membership would be three residents of Jessmine County, pursuant to KRS 74.020(1)(a).
Since three members must serve on the board of commissioners from the original district in Fayette County, the vacancy you mention must be filled, if at all, by the appointment of a person living in the original district in Fayette County. If that is impossible, then that vacancy cannot be filled by appointing a person from the Jessamine portion of the district. Under the literal wording of KRS 74.020(1)(b), the appointment to fill the vacancy would be by the county judge/executive of Fayette County, with the approval of the Fayette County Fiscal Court.
The second question is whether the existing two (2) commissioners who live outside of the Fayette territory of subject water district are qualified to serve their unexpired terms. The answer is "no". The literal language of the statute requires that they reside in the Fayette County portion of this water district. We are bound here by the plain meaning of the language of KRS 74.020.
H.O. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657 (1937).
As we said earlier herein, and in OAG 81-65, the reality here clearly suggests reducing the water district territory down to just the Jessamine territory.