Request By:
Robert E. Taylor, Esq.
110 West Kentucky Avenue
P.O. Box 366
Franklin, Kentucky 42134
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter written in your capacity as city attorney for the City of Franklin, a city of the fourth class, raising questions concerning the city's utilities. Recent discussions between members of the city council and the Franklin Electric Plant Board have centered upon the possibility of merging the functions of the electric plant board, which was created under and operates pursuant to KRS 96.550 to 96.900, with the city's water and sewer departments, which are presently operated directly by the city. You find no authority for the city to merge its water and sewer departments with the electric plant board.
Your first two questions are as follows:
"(1) Under existing law, can the City of Franklin merge its water and sewer departments with the Franklin Electric Plant Board?
(2) Under existing law, can the City of Franklin form a separate utility board which could then take over the function of the water and sewer departments and the Franklin Electric Plant Board?"
The Franklin Electric Plant Board was created under and operates pursuant to KRS 96.550 to 96.900, the "Kentucky T.V.A. Act, " and, more specifically, KRS 96.740, dealing with the electric plant board. That particular statute provides in part that any city desiring to operate an electric plant pursuant to KRS 96.550 to 96.900 may do so by enacting an ordinance declaring therein the desire and intention of the city to so operate its electric system and by providing in the ordinance that the city accepts and agrees to all of the provisions of KRS 96.550 to 96.900. The ordinance shall further authorize the mayor or chief executive to appoint a board, subject to the approval of the city's governing body.
Thus, where the city operates its electrical system under the "Kentucky T.V.A. Act" (KRS 96.550 to 96.900), a board is created pursuant to KRS 96.740 with specific statutory duties relating to the operation of the electric power system. In OAG 68-228, copy enclosed, we said that these statutory duties cannot be decreased or increased by the city to include the operation of other utilities such as water, gas and sewage. A statute is paramount to a city ordinance,
Franklin County v. Webster, Ky., 400 S.W.2d 693 (1966), and where the two are conflicting or inconsistent the ordinance must yield. While the city is not required to operate under the "Kentucky T.V.A. Act, " where it elects to do so, it is precluded, in our opinion, from altering in any way the duties of the electric plant board to include those duties relating to other utilities or transferring the board's duties to some other utility board or to a utility commission.
Therefore, it is our opinion that the city cannot merge its water and sewer departments with the Franklin Electric Plant Board, created under KRS 96.740, and require the electric plant board to operate those other city utilities. Furthermore, the city cannot create a utility board or a utility commission which would take over the functions of the Franklin Electric Plant Board.
Your third question asks:
"Under existing law, can the City of Franklin form a separate utility board combining their water and sewer departments?"
Franklin, of course, is a city of the fourth class and KRS 96.350 authorizes cities of the fourth class to acquire and operate waterworks and sewer systems jointly. KRS 96.190 authorizes the legislative body of any city of the fourth class to provide the city with utility services, either by contract or by works and facilities owned or leased by the city. While cities of the third class are now authorized by specific legislation to establish a waterworks and sewerage commission (Chapter 192, 1978 Acts, H.B. 657), there are no such specific statutory provisions authorizing the creation of a utility commission to operate such utilities in cities of the fourth class.
The Kentucky Court of Appeals, however, in the case of
Keathley v. Town of Martin, Ky., 246 S.W.2d 152 (1951), concluded that even though there is no statutory provision for the creation of a governing board for utility services, a city has legal authority to set up an administrative board in connection with their operation. See also OAGs 74-83 and 77-674, copies enclosed. At page 155 of its opinion the Court said:
". . . It is true that the Water System Act makes no provision as to the creation of a governing body for the utility, but we are of the opinion that in the acquisition and operation of a water plant, a municipality acts in a proprietary capacity and has full right to set up an administrative board in connection with its operation. . . ."
In addition to the city's authority to set up an administrative board in connection with the operation of its sewer and water services, note also the provisions of KRS 94.070 to 94.150 concerning the board of public works in cities of the fourth class. The establishment of such a board is optional but where it has been created it has exclusive power and control over those utilities relating to water, light, heat and power under KRS 94.110. Where such a board has not been established, or has been abolished, its duties shall be performed by the city council and such employes as the council may elect or designate. The council, however, may delegate the ministerial duties to a utility commission established by ordinance. See OAG 72-206, copy enclosed.
Therefore, where a city of the fourth class has not created a board of public works to handle those utilities relating to water, light, heat and power [KRS 94.070 to 94.150], the city may create by ordinance a commission to operate its combined water and sewer departments.