Request By:
Wade A. McNabb, Fayette County Constable, District 1
Opinion
Opinion By: ANDY BESHEAR, ATTORNEY GENERAL; Laura C. Tipton, Assistant Attorney General
Opinion of the Attorney General
Wade A. McNabb, Fayette County Constable, District 1, requests an opinion of this office regarding a mayor's authority under KRS 70.320(2). Specifically, Constable McNabb asks whether the mayor of a consolidated local government has authority under the statute to determine the number of deputy constables a constable may appoint. He further asks whether the mayor of a consolidated local government has authority to determine who a constable may appoint as his or her deputy. Before issuing this opinion, the Office of the Attorney General received input from the requester, the Lexington Mayor's Office, and the Fayette County Attorney's Office.
For the reasons below, we answer both of Constable McNabb's questions in the affirmative. Because a constable in a consolidated local government must obtain the "consent" of the mayor to appoint a deputy or deputies under the relevant statute, the mayor indirectly has authority to control the number of deputy constables appointed and whom the constable may - or, rather, may not - appoint.
Constables in "authorized counties" may appoint deputy constables. 1KRS 70.320(2). The statute permitting the appointment of deputy constables provides, in relevant part, "In authorized counties, each constable may appoint one (1) or more deputies with the consent of the county judge/executive or the mayor, in a consolidated local government , as the case may be." Id. (Emphasis added). The question here is what authority is given to a mayor by requiring his or her "consent" to the appointment of a deputy constable.
"[I]n construing a statute, our goal is to give effect to the intent of the General Assembly."
Abel v. Austin , 411 S.W.3d 728, 738 (Ky. 2013) (citing
Petitioner F v. Brown , 306 S.W.3d 80, 85 (Ky. 2010)); see also KRS 446.080(1). "'To determine legislative intent, we look first to the language of the statute, giving the words their plain and ordinary meaning.'" Abel , 411 S.W.3d at 738 (quoting Petitioner F , 306 S.W.3d at 85); see also KRS 446.080(4). Indeed, we "'have a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion."
Cosby v. Commonwealth , 147 S.W.3d 56, 59 (Ky. 2004) (quoting
Bailey v. Reeves , 662 S.W.2d 832, 834 (Ky. 1984)).
The term "consent" plainly means permission or approval. The Cambridge Dictionary defines consent as "permission or agreement obtained from someone or something having authority or power." 2Thus, under KRS 70.320(2), a deputy constable in a consolidated local government may not appoint any deputy constable without the mayor's permission or approval. The legislative intent of the statute clearly is to provide a check on the constable's power to appoint deputies. Through the veto power provided by the statute, the mayor indirectly is given authority to limit the number of deputy constables a constable may appoint. Further, although the statute does not allow a mayor to dictate who a constable appoints as his or her deputy, it permits the mayor to reject a constable's choice, thus indirectly affecting who the constable may appoint.
This interpretation of KRS 70.320(2) is consistent with a prior opinion of this office. OAG 71-508. Therein, we explained that provisions requiring the county judge's consent to a constable's appointment of his or her deputies "may be found in our statutes as early as 1894." Id. We further stated:
It can be seen that the statute provides a control over the number of deputies simply because of the fact that the county judge can withhold his consent to such appointments where he believes that added appointments would not be to the best interest of the county and Commonwealth. Otherwise, the constable could appoint any number of deputies. We feel that the Legislature intended no such absurdity. . . . We believe that the law contemplates that the constable will not appoint, and that the county judge will not consent to the appointment of, deputy constables that are not necessary in the constable's performance of the duties of his office.
Id. The current version of the statute grants the same control over the number of deputy constables to the mayor of a consolidated local government.
Our interpretation of KRS 70.320(2) is also consistent with
Commonwealth ex rel. Hawkins v. McCrone , 155 S.W. 369 (1913). There, Kentucky's then-highest Court considered a similar statute requiring the fiscal court's consent to a county judge's appointment of a county road engineer. According to the Court:
The appointment of a county road engineer cannot be made by the county judge without the consent of the fiscal court. This is the explicit declaration of the statute. The consent of the fiscal court is as imperatively necessary as is the action of the county judge in nominating or appointing the county road engineer. The statute confers upon the fiscal court the power to approve or reject the appointment of the person named for the office by the county judge, and, in the event of their refusing to consent to his appointment, requires of them the giving of no reasons therefor.
Id. at 370. Similarly, KRS 70.320(2) confers upon the mayor of a consolidated local government the power to approve or reject a constable's appointment of a deputy.
Despite arguments to the contrary, our decision does not conflict with
Milliken v. Harrod , 122 S.W.2d 148 (1938). In Milliken , the Court noted that a predecessor statute to KRS 70.320(2) does not give a county judge the right to appoint deputy constables, but "merely gives the county judge a veto on any appointments made by the constable." Id. at 151. This is an accurate description of a mayor's authority under KRS 70.320(2). Through this "mere" veto power, however, a mayor effectively may limit the number of deputy constables appointed and affect the identity of those ultimately appointed.
Our decision also does not conflict with
Sparks v. Adkins , 200 S.W.2d 307 (Ky. 1947), or OAG 17.025. In Sparks , the Court held that deputy constables must tender their resignations to the constable that appointed them, as, per statute, the constable is the officer required to fill the vacancy. 200 S.W.2d at 308. Similarly, in OAG 17-025, an opinion regarding whether the Lexington-Fayette Urban County Government ("LFUCG") is required to permit constables to participate in the County Employees Retirement System, we stated that "LFUCG does not control who is hired or terminated from the Constable's employ." (citing OAG 90-85). It is true, as stated in Sparks and OAG 17-025, that a constable appoints or hires his own deputies - as noted above, the mayor in a consolidated local government cannot require a constable to appoint a certain person as his or her deputy. A constable, however, must obtain the mayor's consent for any such hiring decision.
Further, the provisions of KRS 64.530 do not compel us to reach a different result. In relevant part, KRS 64.530(3) requires each county fiscal court annually to set the maximum amount a county officer, including a constable, "may expend for deputies and assistants, and allow the officer to determine the number to be hired and the individual compensation of each deputy and assistant." Id. The statute does not conflict with KRS 70.320(2) because, although it provides that a constable may determine the number of deputies to hire, it does not indicate that the constable in a consolidated local government may hire deputies without the mayor's consent. Rather, it simply states that the fiscal court fixes the maximum amount a constable may expend for all of his or her deputies, leaving it to the constable to divide that sum between any deputies lawfully appointed.
Moreover, even assuming KRS 64.530(3) is in conflict with KRS 70.320(2), KRS 70.320(2) controls. "In harmonizing the conflict between two statutes that relate to the same subject, Kentucky follows the rule of statutory construction that the more specific statute controls over the more general statute."
Light v. City of Louisville , 248 S.W.3d 559, 563 (Ky. 2008); see also Abel , 411 S.W.3d at 738 ("The applicable rule of statutory construction where there is both a specific statute and a general statute seemingly applicable to the same subject is that the specific statute controls.") (citation and quotation marks omitted). Here, KRS 64.530 relates generally to county officers and employees, while KRS 70.320 relates specifically to deputy constables in authorized counties. Thus, KRS 70.320 is the more specific statute.
In sum, KRS 70.320(2) requires a constable in a consolidated local government to obtain the mayor's consent to the appointment of any deputy constable. The authority granted by this statute effectively allows the mayor of a consolidated local government to limit the number of deputies a constable may appoint and to determine who may - or, rather, who may not - serve as deputies. 3
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