[1994/oagheade.htm]

OAG 94-27

April 21, 1994

Hon. Reed D. Anderson

Assistant County Attorney

Pike County Kentucky

P.O. Box 280

Pikeville, Kentucky 41502

Re: Legality of County Judge Executive's Appointment, Pursuant to Provision of County Administrative Code, of Temporary Employees, and Whether Their Payment Would be Authorized by Law.

Dear Mr. Anderson:

By letter of December 23, 1992, you asked that this office:

[P]lease advise as to the legality of appointments of temporary employees by the Judge/Executive to positions not established by the Fiscal Court in view of the Administrative Code provision and the pertinent statutes and as to whether payments to individuals so appointed but rejected by the Fiscal Court would be authorized under the law.

In our view an administrative code provision purporting to authorize the county judge executive to appoint temporary employees, without fiscal court approval, is in conflict with state statutory provisions, and is thus void. Further, in our view, payments would not be authorized by law from county funds to persons in relation to their employment under such provision. Discussion follows.

County Administrative Code Cannot Conflict With Statutes

Counties, pursuant to KRS 67.080(2)(c), 67.710(2), and 68.005, are to enact an administrative code.

The administrative code of Pike County, as we understand it from your letter, contains a provision, stating:

The Judge/Executive may temporarily employ persons to fill positions vacated for any reason and may temporarily employ persons for new positions when a clear and present need exists and when a delay until the next regularly scheduled court meeting would not be in the best interest of Pike County. Any person so hired by the Judge/Executive must be confirmed as a temporary employee of the Court at its next regularly scheduled meeting. Any person so employed and not approved as a temporary employee by the Court shall be compensated for work already performed as contract labor. The person shall be immediately terminated upon rejection by the Court.

Several provisions of the statutes regarding the appointment of county employees make it clear that, subject to certain specific exceptions that do not appear to apply to appointments you have described, the county judge executive may only appoint county employees with fiscal court approval.

KRS 67.080(1)(c) provides that the fiscal court shall regulate and control the fiscal affairs of the county, and KRS 67.080(1)(f) provides that the fiscal court shall "Establish all appointive offices, set the duties of those offices, and approve all appointments to those offices[.]" KRS 67.710(7) provides that the county judge/executive shall "Exercise with the approval of the fiscal court the authority to appoint, supervise, suspend and remove county personnel (unless otherwise provided by state law)[.]" KRS 67.710(8) provides, in part, that the county judge/executive shall "With the approval of the fiscal court, make appointments to or remove members from such boards, commissions, and designated administrative positions as the fiscal court, charter, law or ordinance may create."

From these provisions it can be seen that, except with respect to appointments the county judge is specifically authorized to make unilaterally (see, for example, KRS 39.416, disaster and emergency response powers of counties, and KRS 67.711, certain employees of the county judge/executive's office), the county judge/executive may only make appointments with the approval of the fiscal court. Fiscal Court Com'rs, Etc. v. Jefferson, Etc., Ky.App., 614 S.W.2d 954 (1981).

In Opinion of the Attorney General (OAG) 78-467 (copy enclosed), this office indicated:

There is a fundamental rule that a political subdivision [such as a county or city], in the exercise of its legislative powers, cannot enact an ordinance violative of the federal or state constitution or the statutory law of the state. City of Owensboro v. Board of Trustees, 301 Ky. 113, 190 S.W.2d 1005 (1945) 1008.

In OAG 79-153 (copy enclosed), in response to the question regarding whether the required adoption of an administrative code superseded any general permissive authority in the area of fiscal affairs personnel and purchasing, this office indicated:

It is our opinion that the administrative code of the county can in no way be worded such as to supersede any statutory authority to act in those areas named.

The administrative code provision you have asked about delegates to the county judge/executive the authority to make temporary appointments of personnel without fiscal court approval. Such authority is inconsistent with the provisions indicated above which provide that personnel appointments are to be made with the approval of the fiscal court. Accordingly, the administrative code provision in question is unlawful and void. See Fiscal Court Comr's, Etc., supra, and OAG 78-467, 79-153. It follows that the appointment of temporary employees by the county/judge executive, as described in your letter, was not lawful. OAG 81-29 (copy enclosed). See also, OAG 66-144 and 76-25.

Payments Under Invalid Administrative Code Provision

We believe payments from county funds to individuals, appointed to certain purported county positions by the county/judge executive, pursuant to an invalid county administrative code provision, would not be authorized under the law.

As indicated above, the Administrative Code provision you have asked about, is, in our view, invalid. It thus does not provide a "lawful purpose" for which county funds may be appropriated. KRS 67.080(1)(a) provides, in part, that the fiscal court may appropriate county funds for "lawful purposes." It follows that the fiscal court would not be authorized to make payments to individuals appointed under an invalid county administrative code provision. Such payments would not be for a "lawful purpose."

Should it be said that the persons who were employed were not at fault and were entitled to rely on their hiring based upon the Administrative Code provision in question, we note that it has been said that one dealing with a public official is charged with knowledge of any limitation upon the official's power to act. See Calvert v. Allen County Fiscal Court, 252 Ky. 450, 67 S.W.2d 701, 703 (1934), and see, Ewing v. Hays, 257 Ky. 259, 77 S.W.2d 946, 949, 950 (1935).

Under the circumstances described in your letter, the purported positions to which appointments were made were not minor "positions" (Secretary of Transportation and Public Works, Secretary of Finance, etc.). Persons who were purportedly appointed to positions of such nature would reasonably be expected to have sufficient sophistication about governmental actions so as to be on notice as to the questionable legal status of the "positions" to which they were appointed. The positions, your letter indicated, had not been created by the fiscal court. The county/judge executive made the appointments to the positions without fiscal court approval, and the appointments were not subsequently approved.

Under the circumstances noted, we believe payments to individuals whose appointment to county service has not been approved by the fiscal court would not be "authorized under the law." KRS 67.080(1)(a).

Sincerely,

Chris Gorman

Attorney General

Gerard R. Gerhard

Assistant Attorney General