Request By:
William Murphy Howard, Esq.
Harlan County Attorney
P. O. Drawer 980
Harlan, Kentucky 40831
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning a proposed appropriation by the fiscal court on behalf of a volunteer fire department.
You refer to KRS 67.080, setting forth powers of the fiscal court, and specifically subsection (2)(a) thereof providing that the fiscal court shall appropriate county funds according to the provisions of KRS 68.210 through 68.360, for purposes required by law. You next refer to KRS 68.240 which states that in connection with the county budget all expenditures shall be classified into budget units, including "Protection to persons and property."
You state you have a very effective volunteer fire department that has a twenty-year lease on a privately owned building. The building needs several thousand dollars worth of work and improvements to enable it to be used as a volunteer fire station.
Your specific question is whether the fiscal court may expend substantial funds for the repair of the privately owned building leased to the volunteer fire department. In your opinion, such expenditures would be legal if the lease was of such duration and the expenditures of such an amount that a reasonable and prudent man could say that the people had received sufficient use and services to justify such an expenditure as reasonable.
You have not set forth any information concerning the organization and operation of the "volunteer fire department. " However, a volunteer fire department is usually an independent organization disassociated from the city or county that is in some instances established pursuant to the provisions of KRS Chapter 75. It may also be established as a separate corporate entity. See OAG's 75-567 and 74-240, copies enclosed. We assume the volunteer fire department to which you refer is some type of independent organization and disassociated from the county government.
A volunteer fire department is not normally under the jurisdiction of the county or city government except insofar as contractual agreements are concerned. KRS 75.050 provides in part that a volunteer fire department is authorized to contract with a county for fire protection services. There is, however, no authority for a county to simply donate public funds to a private corporation, organization or individual.
Although KRS 67.320, authorizing a county to maintain a fire protection program, has been repealed, KRS 67.083(3)(u) provides that except as otherwise provided by statute or the constitution, the fiscal court may enact ordinances, issue regulations, levy taxes, issue bonds, appropriate funds and employ personnel in connection with police and fire protection. There is no provision, however, under the county "home rule" provisions (KRS 67.083) providing for an appropriation of the type you are proposing. Furthermore, in
Fiscal Court Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977), the Court said that the General Assembly, if it is to constitutionally vest powers of government in counties, through fiscal courts, must do so by statutes expressly delegating such powers.
In addition, as we said in OAG 78-122, copy enclosed, an appropriation of the nature you are proposing would probably be declared invalid under Section 179 of the Kentucky Constitution. That section prohibits the General Assembly from authorizing any county to appropriate money or to loan its credit to any corporation, association or individual, with certain exceptions not applicable in this instance. Public money cannot be appropriated for a nongovernmental use.
Thus, in conclusion, it is our opinion that the fiscal court may not legally appropriate county funds to repair a privately owned building leased to a volunteer fire department, an independent organization disassociated from the county government.