Request By:
Mr. Charles H. Hall, Superintendent
Pulaski County Schools
Somerset, Kentucky 42501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Cheneweth, Assistant Attorney General
You have asked the Office of the Attorney General for an advisory opinion on the procedure to be followed concerning increasing the local ad valorem tax rate for school purposes. Your question relates to the language of KRS 157.565 as amended by House Bill 567 of the 1978 General Assembly. The procedure used by the Pulaski County Board of Education was that on April 26, 1978, at a regularly scheduled meeting, the board levied, by adoption of a resolution, an ad valorem tax of ten cents for the school year beginning on July 1, 1978. As a part of that resolution, notice of a public hearing to be held on May 11 was to be advertised. A hearing was held on that date. Your specific question is when this levied ad valorem school tax may go into effect.
To answer your question, we must turn to the source of the problem which is the somewhat confusing language of the 1978 amendment. KRS 157.565 was amended to read in pertinent part as follows:
"(1) Notwithstanding any statutory provisions to the contrary, the board of education of any district in any year in which the total school tax rate, less any special voted building fund tax rate and any sinking fund tax rate, is less than the maximum rate supported by the district power equalization program in that or the next subsequent school year, as provided for in KRS 157.555 and 157.560, shall have the authority to raise the maximum permissible local ad valorem tax rate as provided in KRS 160.470 to an amount not to exceed ten cents ($ .10) for the school year beginning on July 1, 1978, and a rate not to exceed fifteen cents ($ .15) for the school year beginning July 1, 1979 after compliance with the following:
(a) The district board of education shall give notice of the proposed rate increase. Notice shall be given by causing to be published at least one (1) time in a newspaper of general circulation in the district, or in any other good faith manner if there is no such newspaper, the fact that such rate is being levied. Such advertisement shall state that the district board of education will meet at a place and on a date fixed in the advertisement, not earlier than one (1) week and not later than two (2) weeks from the date of the advertisement, for the purpose of hearing comments and complaints regarding the proposed increase and explaining the reasons for such proposal.
(b) The order of resolution levying the school tax designated heretofore in this section shall go into effect not less than thirty (30) days nor more than one hundred twenty (120) days after its passage. If during the thirty (30) days immediately following the passage of the order or resolution a petition signed by a number of registered and qualified voters equal to twenty-five (25%) of the votes case in the school district or combined taxing district levying the tax for the office receiving the greatest total vote at the last preceding presidential election is presented to the school board protesting against passage of the order or resolution, the order or resolution shall be suspended from going into effect for that district until after the election provided for in subsection (c) of this section. Each sheet of the petition shall contain the names and addresses of voters in but one (1) voting precinet and each sheet shall state the name, number, or designation of the precinet and, where applicable, the name, number or designation of the district or ward wherein the precinet is situated. Each voter shall sign his name in the same manner as he signed the current registration form described in KRS 116.155 or subsection (2) of KRS 116.045, as the case may be. If the signature is difficult to read, the voter shall, on the same line legibly write or print his name in the same fashion as he signed it. One or more persons shall verify by affidavit the signatures and addresses of the signers of the petition. The board or boards of registration in the county shall provide necessary and appropriate aid to the school board or boards so that the latter may make the determination of whether the petition contains enough signatures of qualified voters to suspend the effect of the order or resolution.
(c) Thereupon, if it has been determined that the petition contains enough valid signatures to suspend the effect of the order or resolution, the county board of elections shall submit to the voters of the school district in which a valid recall petition has been filed pursuant to subsection (b) of this section at the next regular May or November election the question as to whether the tax shall be levied. The question shall be so framed that the voter may by his vote answer, 'for' or 'against.' If a majority of the votes cast in a district upon the question oppose its passage, the order or resolution shall not go into effect in that district. If a majority of the votes cast in a district upon the question favor its passage, the order or resolution shall go into effect in that district. In the event that the election is to be held in more than one (1) school district within a county the votes shall be counted separately."
It is clear that the levy is accomplished by the passage of an order or resolution. What is not clear is when the public meeting must be held. The Pulaski County Board passed the resolution and then scheduled and held the public hearing. In this respect, we believe the Board was in error. It is the opinion of this office that the public hearing must be held before the passage of an order or resolution levying the school tax.
In support of our conclusion we refer to the close parallelism between the amended language to KRS 157.565 and that regarding the permissive school taxes, occupational, excise or utility gross receipts. KRS 160.593(1) provides that:
"Any board of education of a school district may, after compliance with the public hearing requirement contained in KRS 160.603, levy one (1) of the school taxes authorized by KRS 160.593 to 160.597, 160.601 to 160.633, and 160.635 to 160.648 shall be limited to the territory of the school district except as provided in subsection (2) of this section."
KRS 160.603(1), (2) states:
"(1) The school district board of education desiring to levy any one of these taxes shall give notice of any proposed levy of one (1) of the school taxes. Notwithstanding any statutory provisions to the contrary, notice shall be given by causing to be published, at least one (1) time in a newspaper of general circulation published in the county or by posting at the courthouse door if there be no such newspaper, the fact that such levy is being proposed. The advertisement shall state that the district board of education will meet at a place and on a day fixed in the advertisement, not earlier than one (1) week and not later than two (2) weeks from the date of the advertisement, for the purpose of hearing comments and complaints regarding the proposed increase and explaining the reasons for such proposal.
(2) The school district board of education shall conduct a public hearing at the place and on the date advertised for the purpose of hearing comments and complaints regarding the proposed levy and explaining the reasons for such proposal."
Thus, a local board may not levy any permissive tax without first having complied with the public hearing requirement. To be noted also is the permissive tax recall procedure for counties other than one containing a city of the first class, KRS 160.597 (1), (2). This language is virtually identical to that of KRS 157.565 (1)(b) and (c).
Therefore, we believe that concerning the possible ad valorem tax increase up to and including ten cents for school purposes requires compliance with the public hearing procedure first and then consideration of a passage of an order or resolution levying this school tax. Any other conclusion would serve to make a mockery of the public hearing procedure.
It is our understanding that after the public hearing of May 11, 1978, the Pulaski County Board of Education again adopted or ratified the resolution previously passed on April 26. This being the case, we are of the opinion the earliest date the resolution could go into effect would be thirty days following May 11.