Request By:
Mr. J. Michael Foster
Christian County Attorney
Planters Bank Building
Hopkinsville, Kentucky 42240
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Fiscal Court of Christian County has recently considered the adoption of an administrative code after the county judge executive presented same for consideration pursuant to KRS 67.710(2), KRS 67.080(2)(c), and KRS 68.005. KRS 67.710(2) expressly mentions "an administrative code incorporating the details of administrative procedure for the operation of the county. . ."
KRS 68.005 reads:
The fiscal court shall adopt a county administrative code which includes, but is not limited to, procedures and designation of responsibility for:
(1) General administration of the office of county judge/executive, county administrative agencies, and public authorities;
(2) Administration of county fiscal affairs, including budget formulation, receipt and disbursement of county funds and preparation of records required for the county audit, and the filing of claims against the county;
(3) Personnel administration, including description and classification of nonelected positions, selection, assignment, supervision and discipline of employes, employe complaints and the county affirmative action program;
(4) County purchasing and award of contracts;
(5) Delivery of county services.
The first question deals with the authority of the fiscal court to amend the administrative code once it has been adopted after presentation by the county judge executive. There is a provision in the proposed code that would specifically give the fiscal court the authority to initiate amendments or changes in the code following its initial adoption.
KRS 67.710 lists the duties of the county judge executive as the chief executive of the county. KRS 67.710(2) provides that the county judge executive must prepare and submit to the fiscal court for approval an administrative code for the operation of the county. It specifically provides that the county judge executive shall review such code and suggest revisions periodically or at the request of the fiscal court.
We concluded in OAG 79-153, copy enclosed, as we conclude here, that the wording of KRS 67.710(2), 67.080(2)(c) and 68.005, is such that the chief executive officer is the logical officer to actually formulate the code and any revisions thereto, subject to the approval or disapproval of the fiscal court as a body. As we said, the county judge executive is the person who should have an administrative perspective calculated to recognize, define, and deal with needed administrative procedures. Any other system might induce chaos and endless controversy. This is especially true, since the fiscal court can in no way, in approving the code or amendments thereto, approve any provision which would be in conflict with existing or future constitutional and statutory law.
Thus it is our opinion that the fiscal court has no authority on its own initiative to amend or change the code. As we said, the county judge executive has the sole power to offer a code and suggest revisions thereto, subject to the approval or disapproval of the fiscal court as a body in adopting a code or revisions thereof.
As we said before, the administrative code cannot be relied upon to alter in any respect the statutory power alignment. That can only come from the General Assembly of Kentucky. Courtney v. Island Creek Coal Company (U.S.C.A. -6, 1973) 474 F.2d 468, 472.
Secondly, several magistrates want to know whether the fiscal court has the authority to repeal the administrative code, once it has been adopted, either in part of in its entirety.
We have already answered the last question in terms of an amended code. Now for the matter of considering the power of fiscal court to repeal the code in its entirety.
KRS 67.080(2)(c) provides that "the fiscal court shall adopt an administrative code. " (Emphasis added). KRS 446. 010(29) defines the term "shall" as usually meaning that it is mandatory. KRS 67.710(2) places a positive duty on the county judge executive to prepare an administrative code. KRS 68.005 provides in part that the fiscal court "shall adopt" a county administrative code. Thus the adoption of such code is mandatory. Once it is adopted the fiscal court has no power to repeal it in toto. An adopted code may be amended, as treated above, but it cannot be repealed in toto.