Request By:
Mr. Lloyd K. Rogers
Campbell County Judge/Executive
24 S. 4th Street
P.O. Box 340
Newport, Kentucky 41072
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your letter you refer to OAG 81-431, relating to the hiring and dismissal of county employees. See KRS 67.710.(7). The opinion deals with the nominating by the county judge/executive of persons to be hired. The nominations, to be effective, require a majority vote of consent of the fiscal court as a body. See Barrett v. Stephany, Ky., 510 S.W.2d 524 (1974). Also in that opinion we pointed out that existing county employment, in the absence of a county merit system, ends automatically at the end of the regular terms of the members of fiscal court. On that day, new appointments must be made under KRS 67.710(7) if there are to be county employees.
You mailed us a copy of your Administrative Code for Campbell County. Under the Code, Section 321.01, county employees must undergo a probationary period of county employment for six months. During that period such an employee may be dismissed at any time without right to appeal.
Under Section 324.02 of the Code, an employee may be demoted for certain legal reasons enumerated.
Section 324.03 of the Code provides for suspension of county employees for legal causes enumerated. Likewise, Section 324.04 provides for dismissal of county employees for certain legal causes stated therein.
Therefore we conclude that your county has a basic merit system as to tenure. Once a county employee passes the probationary period, he or she holds his or her employment as a county employee indefinitely, subject to demotion, suspension, or dismissal for legal cause, as above mentioned. Thus the opinion, OAG 81-431, as relates to non-merit system counties, does not apply to your county, concerning the termination of employment of county employees generally.
Question No. 1:
"Does this opinion (OAG 81-431) pertain to counties with over 75,000 in population?"
KRS 67.710(7) establishes the appointment power in the county judge/executive, with the approval of the fiscal court, unless otherwise provided by state law.
The answer to question 1 is generally "yes". This is subject to any statute making an exception to that general procedure. For example, in OAG 78-551, copy enclosed, we pointed out that the procedure in KRS 67B.050 for employing employees in the Metropolitan Correctional Services Department in Jefferson County is an established deviation from the general procedure of KRS 67.710(7). See Fiscal Court Com'rs v. Jefferson, Ky. App., 614 S.W.2d 954 (1981), which dealt specifically with the appointment of members to boards and commissions, i.e., KRS 67.710(8). However, the court said nothing detracting from the view that KRS 67.710(7) and (8) apply generally in all counties in Kentucky. Since your county does not have urban county government, there is no need to consider any deviational pattern in that category.
The Administrative Code, Section 130 and Section 315, deal with appointments of county personnel. To the extent of any conflict, KRS 67.710(7) and (8) will control. The latter sections also govern in connection with the suspension and removal of county personnel.
Question No. 2:
"What is the binding power of an administrative code that is passed by ordinance by a previous administration?"
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." (Emphasis added).
Subsection (2) suggests strongly periodical review and revision of such administrative code. Thus it is our opinion that the administrative code, where properly drawn and not in conflict with existing statutory law, will continue to be effective from one administration to another, subject to revisions at any time. It should be noted that in Fiscal Court Com'rs v. Jefferson, Etc., Ky. App., 614 S.W.2d 954 (1981), the court ruled that the existence of an administrative code is not a condition precedent to the fiscal court's right to exercise its governmental powers.
The subject Administrative Code was first adopted on February 5, 1979, by fiscal court resolution. Subsequent amendments to the Code were adopted by fiscal court resolution. The Code specifically provides that changes to the Code shall be by resolution of fiscal court. Neither KRS 67.080 (2)(c) nor KRS 67.710(2) expressly requires an ordinance for approval of the Code. KRS 67.076(1) provides that unless a statute requires the ordinance format, such action may be taken by resolution, order or motion. While KRS 67.083(6)(c) provides that a county government may adopt ordinances which incorporate by reference state statutes and administrative regulations in areas in which a county government is authorized to act, that provision, standing alone, does not appear to mandate the approval of an Administrative Code by way of an ordinance. However, "county ordinance" is defined in KRS 67.075(1), as an official written act of fiscal court which is general and lasting in nature. Since that action description fits precisely the Administrative Code, it is our opinion that the Administrative Code should be adopted by ordinance. KRS 67.076(1) provides that no action embraced in the term "county ordinance" may be taken except by passage of a county ordinance. However, we believe the fiscal court can ratify the Code by simply enacting it in the form of an ordinance and make it retroactive to the date of the original Code, subject to subsequent changes made.
Question No. 3:
"Does a previous administration have the lawful right to pass an administrative code binding a future administration to their way of operating the county government? "
We have answered that under Question No. 2. The succeeding administration may at any time revise the administrative code. Further, the new fiscal court may exercise its statutory powers, even if there is no code.
Question No. 4:
"What effect do resolutions of a previous administration have on a new administration?"
The key element here is the nature of the power being exercised by fiscal court and the attendant subject matter. For example, the power of appointment of employees generally is vested in the county judge/executive and fiscal court of a particular administration. KRS 67.710. Thus the resolutions relating to employees in one administration (one regular term) are not binding on the successive administration, McQuillin, Municipal Corporations, Vol. 3 (3rd. ed. rev.) § 12.83, except where statutory law cited or adopted in resolutions is involved.
A county ordinance is an official written act of a fiscal court, the effect of which is general and lasting in nature. KRS 67.075. An ordinance is generally county legislation. A resolution, however, is ordinarily ministerial and temporary in character, while an ordinance prescribes a permanent rule of conduct and is the mode of expressing the legislative acts of the municipality or fiscal court. City of Owensboro v. Board of Trustees, 301 Ky. 113, 190 S.W.2d 1005 (1945) 1008
When the fiscal court, by resolution, acts in an administrative or executive capacity, its orders or resolutions may be set aside, generally, by a subsequent body, provided that vested, constitutional, contract or property rights are not impaired. Sandy Hook Bank's Trustee v. Elliott Co. Fiscal Court, 248 Ky. 498, 58 S.W.2d 637 (1933) 638. See also McQuillin, Municipal Corporations, Vol. 6 (3rd ed. rev.) §§ 12.15 and 21.07.