Request By:
Mr. John S. Hager
President, Editor
Messenger-Inquirer
P.O. Box 1480
Owensboro, Kentucky 42301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You enclosed in your letter a news article in the Messenger-Inquirer indicating that the Daviess Fiscal Court had arranged for the county road department to perform jobs for certain private organizations. The article says that the commissioners say that the private organizations always bear the cost of such work. According to the article, the latest example was the resurfacing of about one-half mile of private drive leading from Chestnut Grove Road to the Daviess County Fish and Game Association recreation area.
You ask whether the above described use of county road equipment, men, and materials is legal.
The news article states that the commissioners favored helping the Daviess County Fish and Game Association because it provides a valuable recreation facility for county residents who are members.
The appellate court held, in
Industrial Develop. Auth. v. Eastern Ky. Reg. Pl. Com'n, Ky., 332 S.W.2d 274 (1960) 276, that the legislature has the primary duty of determining public purpose, which determination is not disturbed by the courts so long as it has a reasonable basis. The fiscal court in KRS 67.083 [Home Rule law] has been delegated the legislative authority to declare public purpose for local use, provided that no constitutional or statutory section is in conflict therewith.
Thus the Daviess Fiscal Court can utilize the Home Rule statute in declaring in a particular situation that a certain county project is a public purpose (see § 171, Constitution). However, whether the Daviess Fiscal Court acted within its proper boundary of legislative or administrative action in this situation is for the courts, since the factual element is compounded with aspects of both private and public purpose.
You referred to OAG 68-86, in which we concluded that county road equipment cannot be used to improve private roads with or without compensation. In that opinion we had the simple fact of a private road or driveway owned by an individual. The law is definite there. In
Scott v. Massachusetts Bonding & Insurance Company, Ky., 273 S.W.2d 350 (1954) 352, the court held that "a county is unauthorized to improve the private property of its citizens." However, here the critical facts are not so simple. For in declaring a public purpose the legislature can use any agency or corporation it desires (even a private one) and even though the private agency may be benefited monetarily. The test is in the end, not in the means. The test is in the object which the project serves.
Industrial Develop. Auth. v. Eastern Ky. Reg. Pl. Com'n, Ky., 332 S.W.2d 274 (1960). Thus only the courts can assess this mix of private and public purpose to determine the legality of the project. The Articles of Incorporation of the Daviess County Fish & Game, Inc., indicate that it is a nonstock, nonprofit corporation whose purpose is to promote all forms of fishing and hunting of game fish and wild life and to improve conservation of natural resources, streams, game and fish in Daviess County. So the problem is not a simple one at all. In this Solomonic situation the determination of the constitutional question can only be resolved by the courts.
If you and other citizens want to raise your contention of private purpose, it could be done by filing a taxpayer's suit in circuit court.
Estill County v. Noland, 301 Ky. 204, 191 S.W.2d 223 (1945).
Your second question is whether there would be any conflict of interest as concerns the county attorney in defending members of fiscal court charged with law violation or prosecuting them in connection with the matter. We see no ethical problem. Under KRS 69.210 the county attorney is required to prosecute crime falling within the jurisdiction of quarterly court, generally, regardless of who the defendant may be. He has no obligation to defend members of fiscal court on criminal charges. Further, he has no duty to civilly defend the members of fiscal court if he deems their conduct outside the law. The county attorney is the legal representative of the county; and his duty to promote and facilitate the lawful operations of county government transcend any other considerations. KRS 69.210 etches in clear relief his duties in the tablet stone of legislative policy. And he must oppose any illegal use of county funds and property, regardless of who the individuals responsible for such illegal diversion or conversion may be.