[1995/oagheade.htm]

OAG 95-26

June 19, 1995

Subject: As between the fiscal court and the county judge/executive, who has authority to fix the beginning time of regular term meetings of the fiscal court.

Written by: Gerard Gerhard

Requested by: William F. Ivers, Jr., Henry County Attorney

Syllabus: The fiscal court as a body, if it specifies a time convenient to the public in conformity with KRS 61.820, has the final authority to fix the beginning time of "regular term" meetings of the fiscal court.

OAGs cited: 60-623; 65-872; 66-152; 75-44; 75-280; 78-252; 93-22

OMDs cited: 92-OMD-1728; 93-OMD-20

Statutes construed: KRS 61.820; 67.040(1); 67.078(1); 67.080; 67.080(1)(e); 67.080(6); 67.090; 67.090(2); 67.090(3); 67.710(1)

Constitutional provisions cited: � 144

OPINION OF THE ATTORNEY GENERAL

The following question, in substance, has been presented:

As between the county judge/executive and the fiscal court, who has the final say in fixing the beginning time of regular meetings of the fiscal court?

In our view, since the meeting in question is that of the fiscal court as a body, and since there is no statute providing the county judge/executive with unilateral authority to fix the beginning time of regular meetings of that body, it is the fiscal court as a body that has the ultimate authority to designate the beginning time of its regular meetings. The fiscal court's designation of the beginning time of its regular meetings is, of course, subject to the requirement that the time shall be "convenient to the public," in conformity with KRS 61.820. Discussion follows.

OAGs 60-623, 75-44, 75-280, and 78-252, Overruled

In several previous opinions, which are here overruled, this office has indicated that the power to fix the date of a meeting includes the power to fix a reasonable hour for the meeting to begin.

In Opinion of the Attorney General (OAG) 60-623, this office observed, in response to the question of whether the fiscal court could lawfully meet in the evening at 7:00 or 7:30 P.M.:

We have examined the statutes and find no provision either authorizing or prohibiting such meetings. KRS 67.090 relates to terms and place of meetings. It gives the county judge power to fix the dates of regular terms . . . . It is a fair interpretation to say that the power to fix a date includes the power to fix a reasonable hour on the date chosen.

(Emphasis added.)

No legal authority was cited for the observation that "It is a fair interpretation to say that the power to fix a date includes the power to fix a reasonable hour on the date chosen." We substantially reiterated such view in OAGs 75-44, 75-280, and 78-252.

We here overrule the views expressed in OAGs 60-623, 75-44, 75-280, and 78-252, to the extent that those opinions indicate that the power to fix the dates for the commencement of the regular terms of the fiscal court includes the power to fix a reasonable hour for the beginning of regular meetings of the fiscal court.

First, the "regular meetings" in question here are those of the fiscal court as a body, not meetings of the county judge/executive individually.

Second, the county judge/executive is a member of and has the same powers as other members of the fiscal court. See, for example, Constitution of Kentucky � 144, KRS 67.040(1), and Breathitt County v. Hagins, 211 Ky. 391, 277 S.W. 469 (1925).

Third, there is no statute expressly providing the county judge/executive with the authority to fix the beginning time of regular meetings of the fiscal court.

Fourth, OAG 60-623 did not address the question of who, as between the county judge/executive and the fiscal court as a body, had final authority to fix the beginning time of regular meetings of the fiscal court, and, accordingly, should not be taken as authority for resolution of that question.

Fifth, we do not find a reasonable basis for concluding that the county judge/executive's individual preference for the beginning time of regular meetings of the fiscal court should control over the majority view of the fiscal court acting as a body.

Analysis

KRS 67.090, the most specific statute related to the holding of fiscal court meetings, addresses the place where fiscal court meetings may be held, and authorizes the county judge/executive to fix the dates for commencement of regular terms of the fiscal court. The statute does not specify the authority to fix the beginning time of regular meetings of the fiscal court.

KRS 67.090(2) provides:

The fiscal court shall hold a regular term each month, which shall continue until the business of the court is completed. The county judge/executive may, by an order of record, fix the dates for the commencement of the regular terms.

(Emphasis added.)

In Opinion of the Attorney General (OAG) 66-152, this office commented upon KRS 67.090(2) as follows:

You will note that the statute authorizes the judge, by proper order to fix the dates for the commencement of the two regular terms. This means, in our opinion, that he is authorized to fix the initial dates for the commencement of each of the regular terms which could, of course, begin on a Saturday rather than a Tuesday. We find nothing in the above statute, however, that authorizes the county judge to set subsequent meeting dates during the regular terms of the court. As a matter of fact, this matter is not covered by the statute. As you know, the Fiscal Court is by law, vested with the management and control of the county's affairs. See Upton v. Whitley County, 310 Ky. 174, 220 S.W. 2d 375 (1949) and KRS 67.080(6). The county judge is, of course, a member of the court and like any other member, has the power to vote, but cannot act singularly without specific authorization from the court unless given authority to do so by statute.

Under the circumstances we believe that the fiscal court, acting as a body, is alone authorized to fix the meeting dates of the court other than an initial date on which the term of the court begins where the judge exercises this privilege by proper order pursuant to KRS 67.090(2).

(Emphasis added. And see, OAG 65-872.)

Although the view that the county judge "cannot act singularly without specific authorization from the court unless given authority to do so by statute" (above) is also expressed without citation to legal authority, we believe it is a legally correct view. This is especially so in relation to a matter that the statutes indicate would be governed by the majority view. See the discussion below.

Designation of the beginning time of regular meetings of the fiscal court is obviously a matter affecting all of the members of the fiscal court as well as the public, and, as such, is a matter to be addressed by official action of the fiscal court.

KRS 67.078(1) provides, in part pertinent here, that:

Unless otherwise provided by statute, a majority of a fiscal court shall constitute a quorum and a majority of a quorum shall be sufficient to take action, except that a majority of the fiscal court shall be required to pass an ordinance.

KRS 67.080(1)(e) provides that the fiscal court may exercise all the corporate powers of the county unless otherwise provided by law. "Corporate powers," in the context of KRS 67.080, in our view, refers to the general powers of the fiscal court as a governing body that are shared by all the members of the fiscal court.

KRS 61.820 establishes general requirements concerning meetings of all public agencies, which obviously would include meetings of the fiscal court. It provides:

All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.

(Emphasis added. See also, Open Meetings Decision (OMD) 92-OMD-1728 and 93-OMD-20.)

The meetings concerned here are those of the fiscal court as a body, which, as a public agency, is responsible for ensuring compliance with KRS 61.820. The fiscal court has the general power to direct compliance with this provision under its authority to exercise all corporate powers of the county pursuant to KRS 67.080(1)(e). The designation of the beginning times of the regular meetings of the fiscal court requires action of the fiscal court which, in turn, requires a majority within the terms of KRS 67.078(1).

As contrasted with the unilateral authority expressly provided to the county judge/executive to fix the dates of commencement of the regular terms of the fiscal court (See KRS 67.090(2) and OAG 93-22), a review of the statutes did not disclose any statute providing the county judge/executive with unilateral authority to designate the beginning time of regular meetings of the fiscal court. At the same time, we note that the county judge/executive is directed by KRS 67.710(1), in part to:

Provide for the execution of all ordinances and resolutions of the fiscal court . . . .

It follows that if the fiscal court properly passes a resolution providing, for example, that the regular term meetings of the fiscal court shall begin at 7:30 p.m., there being no statute to the contrary, it would be the duty of the county judge/executive to ensure the execution of such resolution.

Special Term of the Fiscal Court

By way of clarification, we note that a different view applies with respect to the authority to fix the beginning time of a special term (meeting) of the fiscal court. KRS 67.090(3) provides:

The county judge/executive may call a special term of the fiscal court for the transaction of any business of which that court has jurisdiction. If a special term is necessary and the county judge/executive is unable or refuses to act, a majority of the members of the fiscal court may call the special term.

We believe that the power to call a special term (meeting) of the fiscal court includes the power to designate the time of such meeting. It is incumbent upon the entity (county judge/executive or fiscal court) calling a special term (meeting) of the fiscal court to designate the time such meeting is to begin. See Combs v. Center, 234 Ky. 364, 28 S.W.2d 37, 39 (1930). The reason for the different rule with regard to a "special term" is that, in the case of a specially called session (except one called by the fiscal court itself), there is not an opportunity for the fiscal court to express its view.

OAG's 60-623, 75-44, 75-280 and 78-252 are overruled to the extent they express views inconsistent with this opinion.

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General