[1994/oagheade.htm]

OAG 94-70

December 1, 1994

Subject: Removal of County Road Engineer or Supervisor.

Written by: Gerard Gerhard

Requested by: Hon. Wade Rasner, Owsley County Attorney

Syllabus: Since the authority to remove a county road engineer or supervisor rests with the county judge/executive, subject to the approval of the fiscal court, the initiation of charges under KRS 179.060 must be done by, or with the concurrence of, the county judge/executive. An actual removal decision rests with the county judge/executive, subject to the approval of the fiscal court.

OAGs cited: 80-175; 81-11; 82-142; 84-205; 82-142.

Statutes construed: KRS 67.710; 67.710(7); 67.710(8); 179.020; 179.020(2); 179.060; 179.060(1); 179.060(2).

OPINION OF THE ATTORNEY GENERAL

The following questions, in substance, have been presented:

1. If a fiscal court resolution states that “all county workers are re-appointed,” does such resolution include the county road supervisor?

2. Given that KRS 179.060 discusses removal of a county road supervisor, who has to initiate charges, the county judge or the fiscal court, whose decision is it after the required hearing (the county judge executive or the fiscal court) and if a majority of the fiscal court feels the road foreman should be removed, can the county judge executive refuse if he feels otherwise?

Effect of Fiscal Court Resolution

Your first question asks:

[I]f the fiscal court minutes in January of this year state: 'all county workers are reappointed', does that include the county road supervisor.

The answer to this question presumably depends upon the intent of the parties, in this case, the county judge/executive and the other members of the fiscal court. We cannot provide a reliable definitive view regarding the specific resolution you cite because of the absence of information regarding the intent of the parties.

KRS 179.020(2) provides, in part:

(2) If the fiscal court does not provide for a county road engineer, the duties of the county road engineer, except insofar as they may be in conflict with the provisions of KRS chapter 322, shall be performed by a county road supervisor, who shall be employed by the county judge/executive with the consent of the fiscal court, and who may be removed in the same manner provided for county road engineers.

(Emphasis added.)

Since KRS 179.020(2) (above) vests the authority to employ a county road supervisor with the county judge/executive, subject to the consent of the fiscal court, if the county judge/executive intended the appointment of the county road supervisor to be included in the general re-appointment resolution of the fiscal court cited in your letter, then such resolution would presumably include the county road supervisor. The general resolution of the fiscal court, reappointing "all county workers," would not, however, supersede the express statutory authority of the county judge/executive to employ a county road supervisor.

Removal of County Road Engineer or County Road Supervisor

Your second question consists of three parts, which are restated, in substance, below.

The key statute involved is KRS 179.060. As noted below, that statute has, in our view, been amended by implication, to provide that an appointment or removal by the county judge/executive is subject to approval by the fiscal court.

KRS 179.060 provides, in part:

(1) The county judge/executive may remove the county engineer, appointed under KRS 179.020, at any time for incompetency, malfeasance or misfeasance in office upon written charges after a hearing of which ten (10) days' notice shall be given by serving a copy of the charges upon the county engineer. The hearing shall be at the courthouse, in the county seat.

(2) If upon the hearing the charges are sustained, the county judge executive shall re- move the county engineer and immediately notify him by mail of his removal. The notice shall state specifically the grounds for removal. The record of the proceedings shall be filed in the office of the county clerk.

(Emphasis added.)

Who has to initiate written charges?

Given that KRS 179.060 provides that the county judge/executive may remove the county (road) engineer (or supervisor for incompetency, malfeasance or misfeasance in office upon written charges after a hearing, etc., you ask, who has to initiate the written charges, the county judge or the fiscal court.

There is no express answer to this question in the statutes. Accordingly we must resort to reasoning based upon what the statutes do say.

KRS 179.060(1), which is specific to the county road engineer or supervisor, clearly vests the authority to remove a county road engineer or supervisor with the county judge/executive.

The unilateral authority granted to a county judge/executive in KRS 179.060(1), to remove a county road engineer or supervisor, has, in our view, been amended by implication by KRS 67.710(8). Under that statute, the removal of one appointed to a county administrative position created by law is at the discretion of the county judge/executive, "with the approval of the fiscal court." It follows that unless the county judge/executive initiates a removal, the fiscal court will not receive a proposed removal to potentially approve.

By way of background, in Fiscal Court Com'rs, Etc., v. Jefferson, Etc., Ky.App., 614 S.W.2d 954, 959, (1981), the Court of Appeals held that KRS 67.710(8) was intended by the legislature to amend by implication all pre-existing statutes which vested the county judge/executive with an unrestricted power to appoint the members of boards and commissions. We believe the reasoning of the court in Fiscal Court Com'rs, in relation to modification of the appointive power of the county judge/executive, applies equally to the power of the county judge/executive in relation to removals.

KRS 67.710, in part pertinent here, provides that the responsibilities of the county judge/executive include, but are not limited to:

(7) Exercise with the approval of the fiscal court the authority to appoint, supervise, suspend, and remove county personnel (unless otherwise provided by state law;

(8) 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.

* * *

We believe KRS 67.710(8), which relates to "designated administrative positions as the . . . law . . . may create," is the subsection most pertinent to the position of county road engineer or supervisor, since such position is clearly a designated administrative position created by law. For reasoning, although related to a county treasurer, see Opinion of the Attorney General (OAG) 80-175; 81-11; and 90-46.

OAG 84-205 is hereby overruled to the extent that it indicates that KRS 67.710(7), rather than KRS 67.710(8), is the subsection of KRS 67.710 that governs the removal of a county road engineer or supervisor.

KRS 179.060, as amended by implication by KRS 67.710(8), vests the authority to remove a county road engineer or supervisor with the county judge/executive "with the approval of the fiscal court." If the county judge/executive does not initiate a removal, as for example by recommending or proposing the removal of a county road engineer or supervisor, the fiscal court will not have a removal to perhaps approve. No authority is given for the fiscal court itself to initiate or carry out the removal of a county road engineer or supervisor.

After the hearing, whose decision is it?

As pointed out above, the authority to remove a county road supervisor (with the approval of the fiscal court) rests with the county judge/executive. It follows that, after a hearing pursuant to KRS 179.060, the decision as to whether or not a county road engineer or supervisor shall be removed, rests with the county judge/executive with the approval of the fiscal court. KRS 179.060, KRS 67.710(8).

May the county judge/executive refuse to remove county road engineer or supervisor?

You ask whether, if a majority of the fiscal court feels the county road engineer (or supervisor or foreman) should be removed, the county judge/executive may simply refuse if he feels otherwise.

Since the authority to remove a county road engineer or supervisor is statutorily vested with the county judge/executive (subject to fiscal court approval), a county judge/executive may refuse to accede to the view of a majority of the fiscal court that the county road engineer (or supervisor) should be removed. No statutory authority is provided, for example, empowering the fiscal court to direct the county judge/executive to remove a county road engineer or supervisor.

Items of possible interest.

Cockriel v. Embry, Ky., 513 S.W.2d 487 (1974), and OAG 82-142, while not addressing the questions you have posed, might be of interest to you in connection with a county road engineer or supervisor. Copies of these items are enclosed for your information.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General