Could a Kentucky county judge use emergency powers to fill a vacant road supervisor job without fiscal court consent?

Plain-English summary

Breathitt County's judge/executive asked whether he could invoke emergency powers to fill a vacant county road supervisor position when the fiscal court had not acted. The Attorney General said the vacancy was not the kind of major public-safety hazard covered by KRS Chapters 39A-39F. The opinion pointed instead to KRS 179.020, which provided for a temporary supervisor with fiscal court consent and also addressed supervision where the position had not been established.

The AG separately addressed county spending during a proper emergency. It said money could be transferred from the general fund to another budget fund, including the emergency management agency fund, under KRS 68.290 with fiscal court approval. The opinion distinguished that budget authority from using an emergency declaration to bypass the road supervisor appointment process.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Was an unfilled road supervisor job a statutory emergency?

No. The AG read the emergency management provisions as addressing major threats to public safety and concluded that the vacancy did not fit their definition.

Did the AG identify a temporary way to fill the position?

Yes. It cited KRS 179.020's provision for a temporary supervisor when an acceptable qualified applicant was unavailable, with the fiscal court's consent and a limited term. It also discussed the statute's provision for supervision by the judge/executive or a fiscal court committee in the circumstances the statute specified.

Could the county move general-fund money into an emergency fund?

The AG said yes, under KRS 68.290's transfer procedure and with fiscal court approval. This answered the funding question for a properly invoked emergency.

What if the fiscal court arbitrarily withheld consent to an appointment?

The opinion cited an earlier AG opinion recognizing mandamus as a possible remedy for an arbitrary refusal. It did not treat an emergency declaration as the appointment mechanism.

Background and statutory framework

The AG compared the definition of emergency in KRS 39A.020(12) with the appointment procedure in KRS 179.020. For funding, it cited the county emergency management agency fund under KRS 39B.010 and transfers between budget funds under KRS 68.290. It also quoted KRS 39A.100(2)(d), which addressed essential purchases and contracts while a state of emergency existed.

Citations

• KRS 39A.020(12) (emergency definition).
• KRS 179.020 (road supervisor appointment and temporary arrangements).
• KRS 39B.010 (local emergency management agency fund).
• KRS 68.290 (fiscal court fund transfer).
• KRS 39A.100(2)(d) (emergency contracting authority).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Pages/Opinions.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2019-021.pdf

Original opinion text

OAG 19-021

November 18, 2019

Subjects: Whether a county judge/executive may invoke the emer-
gency powers of KRS Chapters 39A-39F to fill the position of County Road Supervisor in the absence of action by the Fis- cal 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 emer- gency 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 coun- ty’s general fund may be used to pay for purchases made and contracts entered

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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 man- agement 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 re- sulting 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 tempera- ture, 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 oth- er domestic or national security emergencies; explosion, power failure or energy shortages, major utility system failure, dam fail- ure, 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, etio-

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logical, radiological, environmental, industrial, or agricultural haz- ards; 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.1

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.

1
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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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 pre- scribed 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 con- strued to prohibit the supervision of the construction and maintenance of roads, without additional compensation, by the county judge/executive, or by commit- tees 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 emergen- cy measure.” Accordingly, the fiscal court could not legally substitute a commit- tee 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 con- sent.” 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 vacan- cy 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

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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 emer- gency 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 pro- vides 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 main- tain 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 cre- ated.

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 des- ignated and included in the city, county, and urban-county or char- ter county budget ledgers, and all financial matters of a local emer- gency management agency, involving funds provided through the Division of Emergency Management, shall be handled through the

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county, urban-county, or charter county treasury and financial sys- tem.

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 emer- gency 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 coun- ty’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

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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 Chap- ters 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