Request By:
Ronnie Day
Executive Director
Kentucky Fire Commission
Opinion
Opinion By: Andy Beshear,Attorney General;Taylor Payne,Assistant Attorney General
Opinion of the Attorney General
Ronnie Day, Executive Director, Kentucky Fire Commission, requested an opinion of this office on three issues: 1) whether a volunteer fire department is entitled to receive legal representation of the county attorney representing the county in which the volunteer fire department is located; 2) whether a county judge/executive has the authority to shut down a volunteer fire department established pursuant to KRS Chapter 273; and 3) whether a county judge/executive has authority over the operation of a volunteer fire department, including the authority to merge volunteer fire departments within a county. We advise that a county attorney's responsibilities to a volunteer fire department and a county/judge executive's authority over a volunteer fire department each depend on the manner in which the volunteer fire department was established.
A volunteer fire department is a "a fire department with a minimum of twelve (12) members and a chief, at least one (1) operational fire apparatus or one (1) on order, with fewer than fifty percent (50%) of its firefighters being full-time paid firefighters. " KRS 75.400(5). A volunteer fire department can be created to serve a city pursuant to KRS Chapter 95, to serve a fire protection district organized pursuant to KRS Chapter 75, to serve a county pursuant to KRS 67.083, or as a nonprofit corporation pursuant to KRS Chapter 273. See KRS 95A.510(1); 739 KAR 2:100. Other than creating its own volunteer fire department pursuant to KRS 67.083, a county may enter into a contract with an established volunteer fire department for fire protection services. See OAG 81-247.
Turning to the first issue, with respect to fire protection districts established pursuant to KRS Chapter 75, KRS 75.250(2) requires "the county attorney in the county in which the fire protect district lies shall advise and represent the board in all matters and on the occasions chosen by the board whenever the board so requests." However, no other statute specifically directs the county attorney to represent a volunteer fire department formed by other means.
KRS 69.210 sets forth the general duties of a county attorney. Of relevance here, KRS 69.210(3) provides: "The county attorney shall give legal advice to the fiscal court or consolidated local government and the several county or consolidated local government officials in all matters concerning any county or consolidated local government business within their jurisdiction." In OAG 83-380, this office interpreted that subsection with respect to the issue of whether a jailer was entitled to the representation of the county attorney. We stated:
Under KRS 69.210, the county attorney is just what the constitutional office implies, i.e., he is the attorney for the county as a political subdivision of the state in civil matters. His primary role concerns the fiscal court, as relates to the rights or interests of the county, including litigation for or against the county.
Under subsection (3) of that statute, he is required to give legal advice to the fiscal court members and "the several county officers," which latter group would include the jailer, in all matters concerning any county business within their jurisdiction. Where there is any conflict between advising a particular county officer and advising the county in its collective governmental sense, the county attorney must advise the county.
However, the county attorney is not automatically the attorney for the jailer in a strict and legal sense. He is always the attorney for the county. See Commonwealth v. Sizemore, 269 Ky. 722, 108 S.W.2d 733 (1937) 735. In a particular civil case brought against the jailer, the county attorney should defend the jailer, when so directed by the fiscal court, provided the county has a substantial interest in the litigation.
Id.
Applying that analysis here, if the volunteer fire department is a nonprofit corporation organized solely under KRS Chapter 273, or a fire department established by a city under KRS Chapter 95, neither is entitled to representation by a county attorney, because cities and counties are distinct and independent governmental units, see KY. CONST. §§ 144, 156A and a volunteer fire department established under KRS Chapter 273 is "an independent organization disassociated from the county . . . [and] is not under the jurisdiction of the county government except insofar as contractual agreements are concerned." OAG 81-247. Representation of either volunteer fire department would not involve a county interest.
If the county establishes a volunteer fire department pursuant to KRS 67.083, a county attorney may be obligated to provide the chief of that department with legal advice if the chief is a local county officer. See OAG 78-86 (detailing how the chief of a fire department in a fourth class city may be a local city officer). While the chief of a volunteer fire department is not mentioned among the county officers in Section 99 of the Kentucky Constitution, under certain circumstances a fiscal court may establish the position as a county office. See City of Lexington v. Thompson, 61 S.W.2d 1092, 1093 (Ky. 1933). To be an office:
(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. In addition, in this state, an officer must take and file an official oath, hold a commission or other written authority, and give an official bond, if the latter be required by proper authority.
Id. (citation omitted). If the chief of a volunteer county fire department can be considered a county officer based on the guidelines above, the chief is entitled to "legal advice" from the county attorney, and may be entitled to further representation, if directed by the fiscal court and a determination is made the county has a substantial interest in the matter requiring representation.
With respect to the second issue, as stated above, a volunteer fire department formed as a nonprofit corporation pursuant to KRS Chapter 273, rather than by the county, is "an independent organization disassociated from the county . . . [and] is not under the jurisdiction of the county government except insofar as contractual agreements are concerned." OAG 81-247. A county judge/executive can abolish "county departments" and "special districts" in certain circumstances. KRS 67.715. However, since a nonprofit corporation organized solely under KRS Chapter 273 would not be a county department and is not a special district, a county judge/executive would not have the authority to abolish it absent a contractual agreement giving him or her such authority.
With respect to the third and final issue, a county judge/executive's authority over a volunteer fire department also depends on the manner in which the fire department was organized. A county judge/executive is the chief executive of the county and performs the duties of an executive vested in the county. KRS 67.710. Among other executive functions, a county judge/executive is responsible for execution of all ordinances and resolutions of the fiscal court, enforcement of the budget adopted by the fiscal court and, with fiscal court approval, appointment, supervision, suspension and removal of county personnel. KRS 67.710(1), (5), (7). A county judge/executive is also empowered to "create, abolish, or combine any county department or agency or transfer a function from one department or agency to another, provided that he shall first submit plans for such reorganization to the fiscal court" and no statute is violated in the process. KRS 67.715(1). See OAG 80-309. This includes the creation of, the abolishment of, or the combination of a special district if the county/judge executive solely created the district. KRS 67.715(2)(a).
For the reasons stated above, absent a contractual agreement to the contrary, this authority does not extend to city volunteer fire departments established under KRS Chapter 95 or those established as nonprofit corporations solely under KRS Chapter 273. Neither department established in such a manner is subject to any county control.
A volunteer fire department established as a special district pursuant to KRS Chapter 75 is also considered an "independent organization disassociated from the . . . county. . . ." OAG 79-198. Because they are independent organizations, a county judge-executive has no authority over the operations unless a contract exists to the contrary. The one exception is where the county judge/executive solely established the special fire protection district. In that case, the county judge/executive would have authority to abolish or potentially combine the volunteer fire department district with another district solely created by the county judge/executive pursuant to KRS 67.715(2).
A volunteer fire department established pursuant to KRS 67.083 would be subject to the authority of the county judge/executive as set forth above because it would be established by the county as a county department. This would include enforcing budgetary constraints, appointing, supervising, suspending or removing personnel, with fiscal court approval, and enforcing relevant ordinances enacted by the fiscal court governing the volunteer fire department. Additionally, the county judge/executive could abolish or combine a county volunteer fire department or transfer a function from it to another department, if he first submits the plan for such reorganization to the fiscal court.
In sum, as to the first issue, a county attorney in the county that a fire protection district lies is required to advise and represent the board of the district. No other volunteer fire department is entitled to representation by the county attorney. But a chief of a volunteer fire department may be entitled to the advice of the county attorney if local ordinances establish the chief as a county officer. As to the second issue, a county judge/executive may not abolish a volunteer fire department established solely pursuant to KRS Chapter 273 absent a contract to the contrary. Finally, as to the third issue, a county judge/executive may abolish or merge a volunteer fire department established pursuant to KRS 67.083, and may also abolish or merge a fire protection district if the county judge/executive solely established the district pursuant to KRS 67.715. The remaining statutory authority of a county judge/executive only extends to volunteer fire departments established pursuant to KRS 67.083.