Request By:
Hon. Homer Lee Jackson
Knox County Judge-Executive
P.O. Box 173
Barbourville, Kentucky 40906
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the Knox County Urban Renewal and Community Development Agency which was created in 1979 pursuant to KRS 99.350. The then County Judge-Executive, with the approval of the fiscal court, appointed himself and four Knox County magistrates as the five members of the agency. At the present time the former county judge-executive and the four magistrates are administering and handling the affairs of the agency.
Your primary question concerns the legality of those appointments and whether the former county judge-executive, with the fiscal court's approval, could legally appoint himself and four magistrates as members of the Knox County Urban Renewal and Community Development Agency.
KRS 99.350(1) states that if the fiscal court of any county finds and declares that slum areas or blighted areas exist, that there is a need for the exercise of the powers, functions and duties conferred by KRS 99.330 to 99.510, and an agency created pursuant to those provisions would be more efficient and in the public interest than the exercise of such powers, functions and duties by the county or the housing commission of the county pursuant to KRS 99.490, an agency to be known as the urban renewal and community development agency of the county shall thereupon exist for the county with the powers, duties and functions provided in KRS 99.330 to 99.510. KRS 99.490 provides in part that if the fiscal court determines that it would be more efficient and in the public interest for the powers, functions and duties of an urban renewal and community development agency to be exercised by the county or the housing authority of the county, such an entity shall have all the powers, functions, rights and duties (subject to specific enumerated limitations) of the agency. However, once an independent public and separate corporate agency has been established, the county may not dissolve the agency in the absence of legislative authority to do so and it may not place the duties of the agency in either itself or a county housing commission. See OAG 82-75, copy enclosed, at page three.
In OAG 82-94, copy enclosed, we concluded that a mayor could not appoint himself to the board which controls an urban renewal and community development agency established pursuant to KRS 99.350. KRS 99.350(2) provides that the mayor (which by definition also includes the county judge-executive) shall appoint with the approval of the fiscal court, five resident electors of the community as members of the agency. This provision, as we said in OAG 82-94, at page two, would appear to require that the appointments come from individuals in the private sector who are duly registered and qualified voters of the county, thus excluding the appointment of any county officials. There is no statutory provision for county officials to serve on the board of an urban renewal and community development agency.
In McQuillin, Municipal Corp. (3rd Ed.), Vol. 3, § 12.75, the following appears:
"Officers who have the appointing power are usually disqualified for appointment to office to which they may appoint. Such exercise of the appointive power is against public policy, and is void on its face. . . ."
The rule is stated in 63 Am.Jur.2d, Public Officers and Employees, § 96, as follows:
"An officer entrusted with the power of appointment should exercise it with disinterested skill and in a manner primarily for the benefit of the public, for it is the policy of the law to secure the utmost freedom from personal interest in such appointments. So, it is contrary to public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members."
The Court, in State v. McDaniel, 52 Del. 304, 157 A.2d 463 (1960), in concluding that the filling of the vacancies was illegal and void, said in part:
". . . Both the common law and the statute demand that the power of appointment be exercised fairly and impartially. In order to attain this purpose it is important that the deliberations of the appointing body not only be free from wrongdoing but free from suspicion of wrong as well. Meglemery v. Weissinger, 140 Ky. 353, 131 SW 40, 31 LRA, NS, 575; Parrish v. Town of Adel, 144 Ga. 242, 86 SE 1095; Wood v. Town of Whitehall, 120 Misc. 124, 197 NYS 789. For this reason the general law has been laid down - reinforced in many instances by appropriate statutes - that it is contrary to public policy to permit a Board to exercise its power of appointment by designating some one from its own body. . . ."
We next direct your attention to two sections of the Court's opinion in Meglemery v. Weissinger, 140 Ky. 353, 131 S.W. 40, 41 (1910):
"As Meglemery was on December 31, 1909, a member of the body that appointed him to fill this place, the appointment was void for reasons of public policy that are both sound and sufficient. And so we have held that in cases like this the fiscal court cannot appoint one of its members to a place that carries with it duties and compensation. . . ."
* * *
. . . But, if his appointment was void, the mere recognition by the succeeding court did not have the effect of imparting validity to it. A void appointment cannot be validated by either recognition or ratification. Mechem on Public Officers, § 531. There must be a new appointment. It may be conceded that, so far as the rights of the public are concerned, Meglemery would be treated as an officer de facto, and that his acts as such would be binding. . . ."
See also Lemon v. Fiscal Court of Casey County, Ky., 291 S.W.2d 572 (1956); State v. Thompson, 193 Tenn. 395, 246 S.W.2d 59 (1952); Hetrich v. County Com'rs of Anne Arundel County, 222 Md. 304, 159 A.2d 642 (1960).
Thus, the appointments by a county judge-executive of himself and fiscal court magistrates to an urban renewal and community development agency established pursuant to KRS 99.350 are void as they are in violation of KRS 99.350 (2) and they violate public policy which prohibits those who have the appointing power from appointing themselves to public offices or positions.
In response to other questions you have raised, KRS 99.350 does not authorize the mayor or county judge-executive to serve as an ex-officio member of an urban renewal and community development agency. Once an urban renewal and community development agency has been established pursuant to KRS 99.350, the fiscal court may not place the duties of the agency in either itself or a county housing commission. An urban renewal and community development agency established pursuant to KRS 99.350 is an independent agency and a separate corporate body from that of the county.