Request By:
Honorable Ed W. Hancock
Deputy Secretary for
Legal Affairs
Department of Transportation
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question reads as follows:
"KRS 177.330 provides that the Bureau of Highways shall consult with fiscal courts in regard to the selection of secondary and rural roads to be worked on during the coming fiscal year, KRS 179.420 requires the Bureau of Highways to agree with fiscal courts in planning the county roads to be worked on during the coming fiscal year and KRS 177.367 requires consultation with the chief executive officer and legislative body of 'incorporated areas' and with the county judge and fiscal court in 'unincorporated urban places' in regard to the Municipal Aid Program. Since Fayette County now has an Urban-County form of government under KRS Chapter 67A, the question has arisen as to whether the Bureau of Highways should consult with the Fayette County Fiscal Court (including the County Judge/Executive) of the Lexington-Fayette County Urban Council, concerning the county road program."
You say the present practice of the Bureau of Highways is to consult with the Fayette County Fiscal Court on the county road program under KRS 179.420 and with the Lexington-Fayette Urban County Council on the Secondary and Rural Road program under KRS 177.360 and the municipal aid program under KRS 177.367. In the case of Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974) 474, in a footnote to a decision upholding the charter of the Lexington-Fayette Urban County Government, the court stated that the fiscal court of Fayette County under the plan of merger retains its powers under KRS 179.420 to advise the Kentucky Department of Highways (now Bureau of Highways) concerning the construction and maintenance of roads to be funded under the State Rural Secondary Highway Fund.
Section 11.02(c) of the charter expressly provides that the fiscal court shall retain its powers, among others enumerated therein, under KRS 179.420 to advise the Kentucky Department of Highways (Bureau of Highways) concerning the construction and maintenance of roads to be funded under the " State Rural Secondary Highway Fund and the State Rural Highway Fund. (Emphasis added). The charter, by expressly referring to KRS 179.420, apparently refers to the "county road program", as distinguished from the "rural and secondary" road program mentioned in KRS 177.330 and 177.360.
It is our opinion that the footnote in holsclaw v. Stephens, in referring to KRS 179.420 as dealing with the Rural Secondary Highway Fund, merely perpetuated the error contained in Section 11.02 of the charter, as mentioned above. As Judge Cullen, in Jefferson County v. King, Ky., 479 S.W.2d 880 (1972) 880, 881, pointed out, KRS 177.360 deals with the Rural Secondary Road Fund, while KRS 179.410 relates to the "County Road Fund", which latter fund is allocated among the counties according to the same formula set out in KRS 177.360 [Rural Secondary Fund]. [Emphasis added]. Judge Cullen also points out that the "County Road Fund" consists of such portion of the State Road Fund as is appropriated biennially for the construction, reconstruction, improvement and maintenance of county roads and bridges. See KRS 177.380, 179.410 to 179.430. He said that "secondary and rural roads", under KRS 177.360, are such as lie outside of cities, towns and urban areas having a population of 2,500 or more [not including state or federal highways]. Judge Cullen wrote that "county roads and bridges" , for the purpose of distributing the County Road Fund, are all public roads and bridges outside of incorporated cities, except primary roads and federal parkways and bridges thereon [KRS 179.010].
Section 11.02 of the Urban County Government Charter inadvertently mislabeled precisely the road fund actually covered by KRS 179.420 [it actually relates to the County Road Fund, not Rural Secondary Road Fund, as the charter drafters put it]. Holsclaw v. Stephens, above, apparently recognizes the retention of fiscal court powers as relates to KRS 179.420 (whatever that statute actually provides for). Therefore, and as borne out by the meticulously careful distinction made between the Rural Secondary Road Fund and the County Road Fund in Jefferson County v. King, above, it is our opinion that the Bureau of Highways should consult the Fiscal Court of Fayette County in connection with the construction of county roads as spelled out in KRS 179.420. It is also our opinion that the Bureau of Highways should consult with the Lexington-Fayette Urban County Council on the Secondary and Rural Road Program as set out in KRS 177.360, and should consult with the Urban County Council on the municipal aid program under KRS 177.367. Thus we agree with you that the current practice is the correct practice under the statutes, the charter, and applicable case decisions.
As you pointed out, the power statute of Urban County Government, KRS 67A.060, does not negate the residual powers retained by fiscal court as relates to KRS 179.420.