Request By:
Mr. James S. Secrest
Allen County Attorney
Box 35
210 W. Main Street
Scottsville, Kentucky 42164
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise, concerning hiring county employees, these questions:
"(1) Should the county judge/executive nominate and the fiscal court fail or refuse to approve that nomination, is the nomination a nullity?
"(2) If the fiscal court suggests a nomination but the county judge/executive fails or refuses to make the nomination, is the action of the fiscal court a nullity?
"(3) If the county judge/executive and the fiscal court reach a stand-off with reference to either the removal of existing personnel and/or the appointment of new personnel, do not the existing employees continue in their respective jobs or appointments until such time as the county judge/executive and fiscal court come to some accommodation as to replacements or appointments of new personnel? "
The answer to No. 1 is "yes".
Where the nomination is made pursuant to KRS 67.710(7), and the majority of fiscal court does not consent to the appointment, the nomination is a nullity. The literal language of KRS 67.710(7) clearly spells out the county judge/executive's role in the appointment of county employees. See Barrett v. Stephany, Ky., 510 S.W.2d 524 (1974).
The answer to Question No. 2 is that the fiscal court has no authority to make the nomination. They can suggest a nominee to the county judge/executive, but if the does not nominate that person, the machinery of KRS 67.710(7) does not begin to operate.
As to Question No. 3, existing county employees' employment, in the absence of a county merit system, ends automatically prior to January 4, 1982. On that day, new appointments must be made under KRS 67.710(7) if there are to be county employees. If the fiscal court does not go along with the county judge/executive's nominations, then the county judge/executive cannot fill such employee positions.
KRS 70.540 is apparently an exception to the general procedure of hiring county personnel under KRS 67.710(7). In KRS 70.540, the county judge/executive makes the county police appointments, and nothing is said about the concurrence of fiscal court. We note that KRS 67.710(7) was intended to be a general law relating to the hiring of county employees. The Court of Appeals, in Fiscal Court Com'rs Etc. v. Jefferson Etc., Ky., App., 614 S.W.2d 954 (1981), construed the companion KRS 67.710(8) to amend by implication all statutes reserving exclusive authority to the county judge/executive to appoint members of county boards and commissions by engrafting to those statutes a requirement that any appointment made be approved by fiscal court. However, the court held that in the event of conflicting statutes, and where reconciliation is not possible, the later statute controls. Here KRS 67.710(7) was enacted in 1976 (Ch. 20, § 3, eff. January 2, 1978). KRS 70.540 was last amended in 1980 (Ch. 188, § 50, eff. July 15, 1980). Since KRS 67.710(7) cannot be reconciled with KRS 70.540 (no mention is made of fiscal court approval of appointments of policemen), the later legislation governs.
In any event, since KRS 67.710(7) contains the expression "unless otherwise provided by state law", it is our view that the subsection must give way to a statute which makes specific provisions to the contrary. That is the case of KRS 70.540. Thus as between general legislation (KRS 67.710(7)) and specific legislation (KRS 70.540), the specific controls. City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969).