Request By:
Honorable Daisy Thaler
State Senator, 34th District
5804 Lovers Lane
Louisville, Kentucky 40299
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising numerous questions concerning KRS Chapter 75 (Fire Protection Districts).
In regard to the composition of the board of trustees of a fire protection district we direct your attention to KRS 75.031(1) as amended in 1976 (effective June 19, 1976), which states in part as follows:
"Upon creation of a fire protection district or a volunteer fire prevention district as provided in KRS 75.010, the affairs of the district shall be conducted by the board of trustees consisting of seven (7) members, four (4) to be elected by the members of the district as hereinafter set out and three (3) to be appointed by the county judge. Two (2) members of the board of trustees shall be elected by the members of the volunteer fire fighters of the district and shall be members thereof. Two (2) members of the board of trustees shall be property owners who own and reside in the property in the district who are not active volunteer fire fighters and shall be elected by such property owners. The county judge of the county in which the greater part of the district is located shall appoint three (3) members of the board of trustees. In counties containing a city of the first class trustees appointed by the county judge to serve in volunteer fire prevention districts shall reside within the boundaries of that fire district . . . ."
You ask about the duties and responsibilities of the members of the board of trustees. As previously indicated, KRS 75.031(1) provides that the affairs of the district are conducted by the board of trustees. Since your question does not ask about a specific duty or responsibility, we can only suggest some of the statutory provisions which you may wish to examine. KRS 75.040(1) provides in part that the trustees are authorized to establish and operate a fire department in the district and to levy a tax upon the property in the district provided that said property is subject to county tax, and not exceeding ten cents per $100 of valuation as assessed for county taxes. See also KRS 75.080 concerning the erection of fire hydrants and attachments to the water pipes in the public ways; KRS 75.110 pertaining to the appointment of special firemen; KRS 75.120 relating to the control of fire department equipment and property and the appointment of the fire chief and members of the fire department, and KRS 75.130 concerning the discipline of members and employes.
As to your question concerning the authority of the board of trustees to contract with a fire department within its district, see KRS 75.050. This statute in part authorizes a fire protection district organized pursuant to KRS Chapter 75 to contract with any other fire protection district, fire prevention district, municipal corporation, volunteer fire department, volunteer fire department, volunteer fire prevention unit or volunteer fire protection unit, either within the same county or within an adjoining county in an area adjacent to the boundary line between the counties, for the furnishing or receiving of fire protection services where such fire protection is not otherwise provided by some division of government.
You ask about the liability of the members of the board of trustees. KRS 75.070 attempts to render a municipal fire department, a fire protection district fire department, and a volunteer fire department and the personnel of each immune from tort liability due to negligence in performing fire fighting and other authorized emergency services. We have discussed this provision in OAG's 76-582 and 71-82, copies enclosed, and concluded that it is probably unconstitutional. A volunteer fire department and a fire protection district, and their personnel may be liable in ordinary tort for negligence (resulting in injuries to person or property or in death) in performing their authorized activities and as they may affect various individuals.
In regard to the duties of the fire chief in a fire district organized pursuant to KRS Chapter 75, see KRS 75.180. See also KRS 75.160 concerning the attendance of the chief of the fire department at board meetings.
Your question concerning the removal of a member of the board of trustees before his term expires is rather general. A regulation applicable to this office, 40 KAR 1:020, precludes us from rendering opinions in response to hypothetical or abstract questions. If you have a current factual situation to present, we will attempt to answer your question. Without exhausting the possibilities we would point out that, as an example, a trustee who is subject to a residential qualification would subject himself to removal if he moves away from the area or district within which he is required to reside.
In response to your question as to what happens if all the volunteer firemen quit, all we can say is that if replacements cannot be obtained, the organization, from a practical standpoint, cannot function.