County Government Under Early Kentucky Constitutions
Kentucky’s first two constitutions provided for the appointment of justices of the peace. These constitutions did not specify the duties of this office, nor did they establish a body for the administration of county business.
The 1850 Constitution established a court of claims in each county, composed of the county judge and the justices of the peace and became the primary governing body of the county, levying taxes, making appropriations, and otherwise controlling county affairs. This body is the forerunner of our the current fiscal court.
The 1850 Constitution did not specify the number of justices of the peace a county should have. The Constitution only provided that the county was to be divided into election precincts, with each precinct entitled to elect two justices of the peace. Without a constitutional limit, the number of justices per county gradually increased, and it has been estimated that by 1889 there were around 2,000 justices statewide, an average of nearly 17 per county.
At the 1890 Constitutional Convention there was considerable sentiment in favor of establishing the commission form of government for all the counties of the state. The determination of the structure of county government was delegated to the Committee on County Courts, which was reluctant to completely abolish the court of claims, but it did provide that the county governing body should be titled the “fiscal court.”
FISCAL COURT FORMATION
As finally adopted, Section 144 of the Constitution requires that a county have a fiscal court made up of either the county judge and from three to eight justices of the peace or the county judge and three county commissioners. Daviess County has a commissioner form of government, which it approved in 1916 by a vote of 1,979-1,572. The important difference in the two types of fiscal courts is the manner of election of their members: justices of the peace or magistrates, as they are sometimes called, are elected from districts in the general election, while commissioners are elected from the county at large in general elections. KRS 67.060 put into place procedures for allowing the voters of a county to choose their form of fiscal court.
Most Kentucky counties are governed by fiscal courts composed of the justices of the peace and the judge/executive. Of Kentucky’s 120 counties, over 100 have this type of governing body. However, the few counties with the commissioner form include most of the Commonwealth’s most populous counties, so nearly half of all Kentuckians actually live in counties with a county commissioner type of fiscal court.
FISCAL COURT COMPOSITION
By virtue of Section 144 of the Constitution, the county judge/executive is a member and the presiding officer of the fiscal court. Over the years court rulings have established the judge/executive’s powers as a fiscal court member. In fiscal court meetings the judge/executive is on equal footing with other fiscal court members. The courts have held that as a member of the fiscal court, the judge/executive has the same powers as any other member of the fiscal court, including the power to vote on all matters coming before the court. In addition to duties related to the fiscal court, the judge/executive has extensive executive and administrative duties. Other fiscal court members, the justices of the peace or county commissioners, possess official power only as members of the court. When the fiscal court is adjourned, magistrates and commissioners do not have administrative or executive power in relation to county government (OAG 78-402).
County commissioners are elected only in counties where the voters have adopted a commissioner form of fiscal court. In general elections commissioners are elected from the county at large. Other details concerning the manner of election of commissioners vary by county. In primary elections in most counties, candidates for the nomination of a major political party run only in the district in which they reside and which they seek to represent. In counties containing a city of the second or third class but not a city of the first class, candidates for county commissioner are nominated by a different method. The voters of the entire county select the nominees from each district (KRS 67.060).
THE FISCAL COURT TODAY
The Constitution is silent about the exact powers and duties of the fiscal court. The job of shaping and defining the fiscal court’s powers and duties was left to the General Assembly. Traditionally, any appraisal of the power of the county fiscal court in Kentucky began with the idea that all power exercised by the court must be expressly delegated by law. Implied powers of the fiscal court were limited and confined to the authority to carry out expressed powers. To determine the fiscal court’s powers and the way it could exercise its powers, it was necessary to search the statutes for specific authority and direction.
GENERAL POWERS AND RESPONSIBILITIES
A basic source for the powers and duties of the fiscal court is KRS 67.080. Under this statute the fiscal court is permitted to appropriate county funds for lawful purposes, buy and sell county property, supervise the fiscal affairs of the county and county officers, maintain accurate fiscal records, and exercise all other corporate powers of the county. Further, the fiscal court may investigate all activities of county government and establish appointive offices and define their duties (KRS 67.080).
This statute also mandates certain fiscal court duties. The fiscal court must appropriate county funds for various purposes required by law. The fiscal court is also required to provide for the construction, operation, and maintenance of county buildings, roads, and other property, and for the incarceration of persons arrested in the county. Finally, the fiscal court is directed to adopt an administrative code for the county (KRS 67.080). KRS 67.080(3) also limits the executive power of the fiscal court, prohibiting its
exercise of executive authority except as specifically assigned by statute. Scattered throughout the Kentucky Revised Statutes are other laws that delegate certain powers or assign duties to the fiscal court.
The information above is from “County Government In Kentucky” (Revised 2003) published by the Kentucky Legislative Research Commission.