Request By:
Ms. Helen P. Kendall
Fayette County Board of Elections
136 N. Martin Luther King Boulevard
Lexington, Kentucky 40507
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; David H. Ashley, Assistant Attorney General
You have requested of this office an opinion concerning recent actions of the Fayette County Board of Elections. Our opinion is based upon the facts as presented to us and the applicable law thereon.
Your first question deals with action taken by the board requesting the Lexington Fayette Urban County Government, Department of Law, to be the official legal advisor and counsel to the board.
We must first bear in mind that an urban county government is neither a municipality or a county, but of course is subject to the statutory limitations of both cities and counties.
Jacobs v. Lexington-Fayette Urban County Government, Ky., 560 S.W.2d 10 (1977), KRS 67A.050, 67A.060. KRS 69.210(3) provides as follows:
The county attorney shall give legal advice to the fiscal court and the several county officers in all matters concerning any county business within their jurisdiction. He shall oppose all unjust or illegally presented claims.
Generally, the county attorney in each county is the legal advisor to the county board of elections. However, this office, in OAG 60-135 opined that members of county boards of registration are state officers rather than county officers. This might give rise to the conclusion that, that being the case, the Attorney General is the proper legal advisor to county boards of election. However, as stated above, the county attorney in most counties acts as legal counsel to the county board of elections, and this has been the practice for years and years. OAG 60-135 dealt with an incompatibility of office question, and of course did not deal with the question as to who is the proper legal advisor to a county board of election.
KRS 117.035(5) provides:
In counties containing cities of the first and second class, the board shall employ, on a bipartisan basis, a staff sufficient to carry out the duties assigned to the board.
The Fayette County Board has done this for a number of years, in accordance with the statutory provisions. This, however, of course does not address specifically the question as to whether or not the board operating in a county which has adopted the urban county form of government may essentially request what was the former City Department of Law prior to merger, to act as legal advisor. KRS 117.187(3) requires, in effect, the county attorney to attend the training sessions for election officers, and to assist in explaining the duties and penalties for failure to perform. This function the county attorney will be required to do regardless of which office acts as legal advisor to the board.
Given the nature of the urban county form of government, and the particular circumstances involved with regard to the Fayette County Board of Elections, since there is no longer any distinct city or county government within the county, it is our opinion that the Fayette County Board of Elections is acting within its legal authority when it requests legal services to be rendered by the Urban County Government, Department of Law. Assuming of course, that the Urban County Government, Department of Law, is willing to assume this function we can find no legal reason why the request is not proper.
We do, however, take an entirely different position with regard to your second question. You state to us that the board adopted as a part of the same motion at the same meeting the following:
That Don Blevins be authorized by this board to be the chief administrative officer of this board with authority to do all things administratively necessary to carry out the statutory duties and operations of this board, including, but not limited to the following: authority to hire and terminate employees, authority to direct the day to day operations of this board and its staff, the authority to purchase any necessary supplies and equipment, and to act as the principal spokesperson of this board and its staff.
We believe this action to be a delegation of responsibility which the board may not legally make. County boards of elections are purely creatures of the legislation so establishing them, and, as such, are restricted solely to the statutory duties and responsibilities and authority imposed thereby. KRS 117.035 creates the county board of elections, and sets forth therein the number of members on the board, political representation, the method of filling vacancies, the manner of appointment, duties and responsibilities, minimum compensation, meeting requirements and most importantly in subsection 5 thereof the following:
In counties containing cities of the first and second class, the board shall employ, on a bipartisan basis, a staff sufficient to carry out the duties assigned to the board. [Emphasis added.]
We are first required by KRS 446.080(4) to construe the statutes according to the plain meaning thereof using common and approved usage of language.
Singleton v. Commonwealth, Ky., 175 S.W. 372 (1915). Subsection 5 of KRS 117.035 clearly states that the board shall employ the staff. We must assume that, had the legislature intended that the county clerk have the responsibility for hiring staff, the statute would so read. Mr. Walter Herdman has previously written in OAG 64-632 that, in effect, former county election commissions were restricted to the employment of clerical assistance only as permitted by statute. Generally speaking, various boards and commissions created by statute are restricted to the duties and responsibilities and jurisdiction established by the statutes creating them and may not properly delegate those responsibilities or increase their area of responsibility or jurisdiction. See generally, 56 Am. Jur.2d Municipal Corporations, Counties, and Other Political Subdivisions , Sec. 189-194. See also
Russell v. Rhea, Ky., 106 S.W.2d 148 (1937).
Based upon the foregoing, it is our opinion that item four of the January 10, 1990 motion, as set forth above, is an impermissible delegation of responsibility and that the responsibility for the employment of personnel is the responsibility of the entire board. KRS 117.035(3) provides, in effect, that the county clerk shall serve as chairman of the meetings and may vote. This section of the statute does not authorize the clerk to assume any other responsibilities for the operations of county boards of election other than to serve as chairman of the meetings. Therefore, the additional functions contained in that part of the motion would also remain the responsibility of the board as a whole.
We trust the foregoing is responsive to your question. Should you have need for additional information, please do not hesitate to call upon us.