Request By:
Mr. Richard Tanner, Executive Director Kentucky Magistrates and Commissioners Association.
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Gerard R. Gerhard, Assistant Attorney General
OPINION OF THE ATTORNEY GENERAL
The following question, in substance, has been presented:
What are the exact and only duties required of the Department of Local Government by House Bill 238 (Acts, 1994, ch. 16 § 1), now codified as KRS 65.003, which requires the governing body of each city and county, including urban and charter counties, to adopt, not later than January 1, 1995, a code of ethics as specified in the legislation?
In our view, as discussed below, the Department of Local Government has certain specific duties in relation to local ethics codes, such as to receive and hold as public records, copies of local ethics ordinances. It also has a "general" duty to determine compliance of a local ordinance with the "basic requirements" of KRS 65.003.
KRS 65.003 provides:
(1) No later than January 1, 1995, the governing body of each city and county, including urban-counties and charter counties, shall adopt, by ordinance, a code of ethics which shall apply to all elected officials and employees of the city or county government as specified in the code of ethics. The elected officials of a city or county to which a code of ethics shall apply include the mayor, county judge/executive, members of the governing body, county clerk, county attorney, sheriff, jailer, coroner, surveyor, and constable but do not include members of any school board.
(2) Any city or county may enter into an agreement with one (1) or more other cities or counties, pursuant to the provisions of the Interlocal Cooperation Act, KRS 65.210 to 65.300, for joint adoption of a code of ethics which shall apply to all elected officials of the cities or counties, and to appointed officials and employees as specified by each of the cities or counties which enters into the agreement.
(3) Each code of ethics adopted pursuant to subsection (1) or (2) of this section shall include, but not be limited to, provisions which set forth:
(4) The code of ethics ordinance adopted by a city or county may be amended but shall not be repealed.
(5) (a) Within twenty-one (21) days of the adoption of the code of ethics required by this section, each city and county shall deliver a copy of the ordinance by which the code was adopted and proof of publication pursuant to KRS 424 to the Department of Local Government. The department shall maintain the ordinances as public records and shall maintain a list of city and county governments which have adopted a code of ethics and a list of those which have not adopted a code of ethics.
(6) If a city or county government fails to comply with the requirements of this section, the Department of Local Government shall notify all state agencies, including area development districts, which deliver services or payments of money from the Commonwealth to the city or county government. Those agencies shall suspend delivery of all services or payments to the city or county government which fails to comply with the requirements of this section. The Department of Local Government shall immediately notify those same agencies when the city or county government is in compliance with the requirements of this section, and those agencies shall reinstate the delivery of services or payments to the city or county government.
(Emphasis added.)
Specific Duties
First, it is clear, under the plain language of KRS 65.003(5)(a) and (b) and 65.003(6) (above), that the Department of Local Government has the specific duty to:
(1) Receive a copy of ordinances adopting a local code of ethics together with proof of publication of such ordinances pursuant to KRS chapter 424;
(2) Maintain copies of ordinances it receives pursuant to KRS 65.003(5)(a) as public records;
(3) Maintain a list of city and county governments which have adopted a code of ethics, and a list of those which have not adopted a code of ethics;
(4) Receive and file with copies it maintains of ordinances adopting a local ethics code, a copy of ordinances amending a code of ethics, together with proof of publication of such ordinances as required by KRS chapter 424;
(5) Notify all state agencies, including area development districts, which deliver services or payments of money from the Commonwealth of the failure of a city or county to comply with the requirements of "this section," and notify those same agencies when the city or county government is in compliance with the requirements of "this section."
General Duty
In addition to the "specific" duties indicated above in connection with local ethics codes, the Department of Local Government is saddled with what might be termed a "general duty" to determine "compliance" with the basic requirements of KRS 65.003.
The "general duty" to determine "compliance" with KRS 65.003 as a whole arises from the language of KRS 65.003(6) (see above), which states, in part pertinent here:
If a city or county government fails to comply with the requirements of this section the Department of Local Government shall notify all state agencies, including area development districts, which deliver services or payments of money from the Commonwealth to the city or county government.
The phrase "this section," as used in KRS 65.003(6), can only refer to KRS 65.003 as a whole, as there is no other section within KRS 65.003 for the phrase to address. KRS 65.003 consists of only one "section."
It follows that the Department of Local Government must determine if a city or county has "complied" with KRS 65.003. In our view this means the Department must determine whether the basic requirements of KRS 65.003 have apparently been met, and that there is not an obvious infirmity in an ordinance offered to the Department that would make the ordinance invalid.
We believe the Department should review ordinances tendered to it to determine if essential requirements of an ordinance are present. For city ordinances this means reviewing an ordinance in relation to KRS 83A.060, and for counties, reviewing an ordinance in relation to KRS 67.076 et. seq.
The Department must also determine whether an ordinance tendered to it under KRS 65.003 addresses those topics that are required to be addressed as provided in KRS 65.003. Among the "compliance" items the Department should look for in a tendered ordinance are: (1) Standards of conduct for elected and appointed officials and employees (KRS 65.003(3)(a)); (2) requirements for creation of financial
disclosure statements to be filed annually (KRS 65.003(3)(b); a policy on the employment of members of the families of officials or employees of the city or county government (KRS 65.003(3)(c)), and (4) designation of a person or group responsible for enforcement of the code of ethics, etc., (KRS 65.003(3)(d)).
While the Department of Local Government can comment on matters it believes are of concern in relation to local ethics ordinances, it should find a failure to comply with KRS 65.003 only where basic elements required by KRS 65.003 are not present.