Kentucky Advisory Opinions November 18, 2019: OAG 19-021 (November 18, 2019)

Advisory Opinion Text

Subjects: Whether a county judge/executive may invoke the emergency powers of KRS Chapters 39A-39F to fill the position of County Road Supervisor in the absence of action by the Fiscal Court. Whether funds derived from a county’s general fund may be used to pay for purchases made and contracts entered into as a result of the proper invocation of such emergency powers.

Requested by: Jeff Noble, Breathitt County Judge/Executive

Written by: Laura C. Tipton

Syllabus: A vacancy in the position of County Road Supervisor is not an “emergency” contemplated by KRS Chapters 39A-39F. A county may transfer funds from its general fund to its emergency fund with fiscal court approval.

Statutes construed: KRS 39A.010; KRS 39A.020(12); KRS 39A.100(2)(d); KRS 179.020; KRS 39B.010; KRS 68.240(2); KRS 68.290

OAGs cited: OAG 80-541; OAG 80-542; OAG 82-142

OPINION OF THE ATTORNEY GENERAL

Breathitt County Judge/Executive Jeff Noble requests an opinion of this office regarding the emergency powers of KRS Chapters 39A-39F. Specifically, Judge/Executive Noble asks whether a county judge/executive may invoke the emergency powers of KRS Chapters 39A-39F to fill a vacancy in the position of County Road Supervisor. He further asks whether funds derived from a county’s general fund may be used to pay for purchases made and contracts entered into as a result of the proper invocation of such emergency powers. Breathitt County Attorney Brendon D. Miller provided input on the legal questions raised in Judge/Executive Noble’s request, which has been considered in the drafting of this opinion.

For the reasons below, as to Judge/Executive Noble’s first question, the answer is no; a vacancy in the position of County Road Supervisor is not an “emergency” contemplated by KRS Chapters 39A-39F. As to Judge/Executive Noble’s second question, the answer is a qualified yes; a county may transfer funds from its general fund to its emergency fund with fiscal court approval.

1. Whether a vacancy in the position of County Road Supervisor is an “emergency” under KRS Chapter 39A-39F.

In KRS 39A.010, the General Assembly enunciated its intent is enacting KRS Chapters 39A-39F as follows, in relevant part:

It is the intent of the General Assembly to establish and to support a statewide comprehensive emergency management program for the Commonwealth, and through it an integrated emergency management system, in order to provide for adequate assessment and mitigation of, preparation for, response to, and recovery from, the threats to public safety and the harmful effects or destruction resulting from all major hazards, including but not limited to: flood, flash flood, tornado, blizzard, ice storm, snow storm, wind storm, hail storm, or other severe storms; droughts, extremes of temperature, earthquake, landslides, or other natural hazards; fire, forest fire, or other conflagration; enemy attack, threats to public safety and health involving nuclear, chemical, or biological agents or weapons; sabotage, riot, civil disorder or acts of terrorism, and other domestic or national security emergencies; explosion, power failure or energy shortages, major utility system failure, dam failure, building collapse, other infrastructure failures; transportation-related emergencies on, over, or through the highways, railways, air, land, and waters in the Commonwealth; emergencies caused by spill or release of hazardous materials or substances; mass-casualty or mass-fatality emergencies; other technological, biological, etiological, radiological, environmental, industrial, or agricultural hazards; or other disaster or emergency occurrences . . . .

Although this statute does include the catchall “other disaster or emergency occurrences,” we do not believe a vacancy in the position of County Road Supervisor—occasioned here, it appears, by a conflict between the county judge/executive and the fiscal court—constitutes the type of “major hazard” contemplated by the statutory scheme.

Further, under KRS 39A.020(12), an “emergency” is defined to mean “any incident or situation which poses a major threat to public safety so as to cause, or threaten to cause, loss of life, serious injury, significant damage to property, or major harm to public health or the environment and which a local emergency response agency determines is beyond its capabilities.” Certainly, regardless of whether one assumes a vacancy in the position of County Road Supervisor poses a major threat to public safety, it is not a circumstance that a local emergency response agency would determine to be beyond its capabilities. Thus, it is the opinion of this Office that a vacancy in the position of County Road Supervisor is not an “emergency” under KRS Chapters 39A-39F.

Lending further support to this opinion, KRS 179.020 provides that a county road engineer or a county road supervisor is to be employed by the county judge/executive “with the consent of the fiscal court.” See KRS 179.020(1) and (2). The statute further provides:

When no qualified applicant who is acceptable to the fiscal court is available for employment, the county judge/executive, with the consent of the fiscal court, may employ a temporary supervisor not qualified under subsection (2) of this section for a period of three (3) months, but in no event shall a temporary supervisor be used for more than three (3) months during any one (1) term of a county judge/executive.

KRS 179.020(4). Accordingly, KRS 179.020 contemplates a situation in which there is no county road supervisor acceptable to the fiscal court, and its prescribed remedy is the employment for up to three (3) months of a temporary supervisor—not invocation of KRS Chapters 39A-39F.

Further, KRS 179.020(5) provides that, “[t]his section shall not be construed to prohibit the supervision of the construction and maintenance of roads, without additional compensation, by the county judge/executive, or by committees of the fiscal court, in counties where the position of road engineer or road supervisor has not been established by the fiscal court.” In OAG 80-541, we found that KRS 179.020(5) “was designed as a temporary expedient or emergency measure.” Accordingly, the fiscal court could not legally substitute a committee for the appointment of a road engineer or road supervisor on a “permanent or indefinite basis[.]” But the statute does provide a mechanism for filling the position on a temporary or emergency basis.

Additionally, in OAG 82-142, we explained that “where the duty to hire county personnel, such as a county road supervisor, is not performed by the fiscal court in its consenting capacity, the members of the fiscal court can be compelled by a proper proceeding in mandamus in circuit court to perform the duty . . . .” (Citing OAG 82-63). In particular, we held that, “where the county judge executive makes his appointment of a county road supervisor, or other county personnel, the fiscal court as a body cannot arbitrarily withhold its consent.” Id. If the fiscal court does “for whimsical or arbitrary reasons” refuse to consent to the county judge executive’s appointment of a county road supervisor or other county employee, then the entire fiscal court may be compelled by mandamus to do so. Id. Therefore, OAG 82-142 recognizes another remedy for a situation in which the fiscal court declines to approve a candidate to fill a vacancy in the position of county road supervisor.

Notably, “[t]he appointment of a county road engineer or county road supervisor is mandatory under the statutes when viewed in pari materia.” Id. Indeed, “[t]he nature of his duties in connection with the county road program compel this construction.” Id. (citing statutes); see also OAG 80-542 (“When the various powers and duties of the road engineer (and substitutionally the road supervisor) are examined, the mandatory nature of the appointment becomes evident.”). Where there exists a vacancy in the position, it “should be filled within a reasonable time.” OAG 80-541 (citing Bristow v. Shrout , 264 Ky. 125, 94 S.W.2d 352 (1936)). And, importantly, the county judge/executive’s and fiscal court’s corresponding powers of appointment and consent “are to be used with thoughtfulness, care and reason until they can actually agree on persons to be employed.” See OAG 82-142.

Accordingly, a vacancy in the position of County Road Supervisor is not an “emergency” with the meaning of KRS Chapters 39A-39F. Instead, there are other statutory mechanisms for filling such a vacancy on a temporary or emergency basis. Moreover, if the vacancy results from arbitrary action by the fiscal court, a mandamus action may compel the court to perform its duty.

2. Whether a county may use funds from its general fund to pay for purchases made and contracts entered into as a result of the proper invocation of statutory emergency powers.

Turning to Judge/Executive Noble’s second question, KRS 39B.010 provides for each county to establish a local emergency management agency and related emergency management agency fund. Specifically, the statute provides:

Each city, county, urban-county, charter county government, or counties acting jointly under the provisions of subsection (2)(b) of this section, of this Commonwealth shall create, support, and maintain a local emergency management agency, which shall serve the public safety interest of the local government within the territorial boundaries of the city, county, or counties where the agency is created.

KRS 39B.010(1). The statute continues as follows:

In accordance with the policies of the state-local finance officer, a separate emergency management agency fund account shall be designated and included in the city, county, and urban-county or charter county budget ledgers, and all financial matters of a local emergency management agency, involving funds provided through the Division of Emergency Management, shall be handled through the county, urban-county, or charter county treasury and financial system.

KRS 39B.010(3). Thus, Breathitt County should currently have an emergency management agency fund.

In addition, pursuant to statute, a county’s budget must include the following “budget units”:

(a) General expenses of county government.

(b) Protection to persons and property.

(c) General health and sanitation.

(d) Social services.

(e) Recreation and culture.

(f) Transportation facilities and services.

(g) Debt service.

(h) Administration and miscellaneous.

(i) Jail operations.

KRS 68.240(2). KRS 68.290 then provides:

[t]he fiscal court may transfer money from one (1) budget fund to another to provide for emergencies or increases or decreases in county employment pursuant to KRS 64.530(4). The order of the fiscal court making the transfer shall show the nature of the emergency or personnel increase or decrease and the reason for making the transfer. The fiscal court shall not have any power to transfer money from any sinking fund or special fund raised for a specific purpose until the obligation or purpose for which the fund was raised has been satisfied.

It is therefore the opinion of this office that a county may transfer money from the county’s general fund to any other budget unit or fund, including the county’s emergency management agency fund, under the procedures of KRS 68.290. Significantly, the county judge/executive has the power, during the period in which a state of emergency exists, “[t]o order immediate purchase or rental of, contract for, or otherwise procure, without regard to procurement codes or budget requirements , the goods and services essential for protection of public health and safety or to maintain or to restore essential public services[.]” KRS 39A.100(2)(d).

In sum, it is the opinion of this office that a vacancy in the position of County Road Supervisor does not constitute an “emergency” under KRS Chapters 39A-39F. Further, a county may transfer money from its general fund to any other budget unit fund, including its emergency management agency fund, with the approval of the fiscal court and under the procedures of KRS 68.290.

ANDY BESHEAR, ATTORNEY GENERAL.

Laura C. Tipton, Assistant Attorney General.

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Notes:

Based on documents provided to this office by the Breathitt County Attorney, it appears Judge/Executive Noble may have contracted for the services of a County Road Supervisor on the ground that recent rains and flooding constituted an “emergency” requiring the county to fill the position. As discussed in this opinion, however, there are other mechanisms for filling the position on a temporary or emergency basis. Further, pursuant to KRS 39A.100(2)(d), a county judge/executive may contract for services only for the period when “the state of emergency exists or continues[.]”

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