[1995/oagheade.htm]

OAG 95-18

May 17, 1995

Subject: Whether a commission to study adoption of a charter county form of government or consolidation of certain functions of cities and the county may find that no change should occur, thus obviating the need for a vote.

Written by: Gerard Gerhard

Requested by: Hon. Clyde Middleton, Kenton County Judge/Executive

Syllabus: The legislature did not authorize a commission, appointed pursuant to KRS 67.830(3) to study the question of adoption of a charter county form of government or consolidation of certain functions of government, to return a finding that no change should occur. Such commission is mandated by KRS 67.830(4) to develop a comprehensive plan for submission to the voters.

OAGs cited: None.

Statutes construed: KRS 67.830(1), (2), (3), (4), and (5).

Opinion of the Attorney General

The following question, in substance, has been presented:

Whether a commission appointed pursuant to KRS 67.830(3), to study the question of the adoption of a charter county form of government, or the consolidation of any agency, subdivision, department, or subdistrict providing any services or performing any functions for a city or county, may return a finding that such form of government or consolidation is not needed, rather than develop a comprehensive plan pursuant to KRS 67.830(4), such that a vote pursuant to KRS 67.830(5) would not be required.

In our view, based upon a reading of KRS 67.830, a commission formed pursuant to KRS 67.830(3), to "study the question" of adoption of a charter county form of government or consolidation of certain functions, is mandated by KRS 67.830(4) to develop a comprehensive plan, either for a charter county form of government, or consolidation of certain functions of cities and the county. The statute does not provide for such commission to return a finding that a charter county form of government or consolidation of certain functions is not needed. The commission, pursuant to the language of KRS 67.830(4), is required to develop a comprehensive plan for submission to the voters in accordance with KRS 67.830(5). Discussion follows.

KRS 67.830, in part pertinent to the question here provides:

(1) The fiscal court in any county, except in a county containing a city of the first class or an urban-county government, and a majority of all cities within the county may adopt an ordinance to study the question of merging the county government with all other units of local government within the county to form a charter county form of government, or consolidating any agency, subdivision, department, or subdistrict providing any services or performing any functions for a city or county.

(2) In lieu of the adoption of an ordinance pursuant to subsection (1) of this section, a petition may be filed with the county clerk requesting a referendum be held on the question of the adoption of a charter county form of government or the consolidation of any agency, subdivision, department, or subdistrict providing any services or performing any functions for a city or county. The petition shall be signed by a number of registered voters equal to at least twenty percent (20%) of the number of county residents voting in the preceding regular election.

(3) Within sixty (60) days of the adoption of an ordinance pursuant to subsection (1) of this section, or within sixty (60) days of a petition being filed with the county clerk pursuant to subsection (2) of this section, the fiscal court and the city legislative body of each city within the county shall jointly appoint a commission to study the question of the adoption of a charter county form of government or the consolidation of any agency, subdivision, department, or subdistrict providing any services or performing any functions for a city or county.

* * *

(4) The commission shall be funded by the fiscal court and each city within the county in proportion to its ratio of membership on the commission and shall be responsible for developing a comprehensive plan for the consolidation of services and functions of cities and the county, or the formation of a charter county government that shall include, but not be limited to, the following provisions:

(a) A description of the form, structure, functions, powers, and name of the proposed charter county government;

(b) A description of the officers and their powers and duties of the proposed charter county government; and

(c) The procedures by which the original comprehensive plan may be amended.

(5) The comprehensive plan shall be consistent with the provisions of the Constitution of Kentucky and shall be advertised at least ninety (90) days before a regular election at which the voters will be asked to approve or disapprove the adoption of the comprehensive plan.

(Emphasis added.)

It will be observed from the emphasized language of KRS 67.830(4) (above), that a commission formed pursuant to KRS 67.830(3) is mandated to develop a proposed comprehensive plan for approval or disapproval by the voters in accordance with KRS 67.830(5), and that there is no statutory language authorizing the commission to return a finding that no change is needed. It follows that a commission appointed pursuant to KRS 67.830(3) must develop a "comprehensive plan" as directed by KRS 67.030(4), and that such plan must be submitted to the voters for approval or disapproval in accordance with KRS 67.030(5).

We note also that the failure of the commission to develop a comprehensive plan as provided by KRS 67.830(4) (above), would frustrate the will of the people, through their elected representatives upon the fiscal court, or directly (in the event the study is undertaken pursuant to a petition), if a comprehensive plan is not developed for voter approval or disapproval. The statute involved does not provide for an exercise in futility.

If there is a problem with KRS 67.830, in providing for study of a question on one hand, and a comprehensive plan on the other, the problem is one for the legislature to correct.

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General