Request By:
Ms. Carolynn P. Horn
Martin Circuit Court Clerk
Box 466
Inez, Kentucky 41224
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have several questions relating to county government.
Question No. 1:
"If a County Fiscal Court of a population less than 30,000 were to pass an occupational tax, do the citizens of that county have any remedy to stop the enactment of the tax?"
The answer is "no". Such fiscal court's authority to enact the occupational tax is found in KRS 67.083. There are no provisions in that statute for submission to the voters. In counties of 30,000 or more the tax, to be valid, must be submitted to the voters. KRS 68.197.
Question No. 2:
"If the Fiscal Court were to pass the occupational tax at a special meeting and proper notice had not been given to news media who had requested by certified mail (Sunshine Law) that they be notified of all meetings, would the tax be legal?"
KRS 61.825 requires that notice of such special meeting be delivered personally or by mail to the news media at least 24 hours prior to the meeting as specified in the notice. Where time does not permit giving 24 hour notice, then notice that is reasonable under existing circumstances and is calculated to inform the public shall be given to the news media and the public. Here proper notice was not given. Therefore the meeting's proceedings shall be voidable by a court of competent jurisdiction under KRS 61.830. In other words, the ordinance providing for an occupational tax could be set aside by a court of competent jurisdiction where it is shown that the ordinance was passed without substantial compliance with KRS 61.825.
Jefferson Cty. Bd. of Ed. v. Courier-Journal, Ky., App., 551 S.W.2d 25 (1977) 29.
Question No. 3:
"If this tax was passed, what part of the budget would the funds go into?"
The revenue from the tax may be spent on any statutorily authorized county purpose. See KRS 68.240. The ordinance may provide that the occupational tax levied and collected shall be paid into the general revenue funds of the county; and that would be sufficient compliance with § 180 of the
Kentucky Constitution. Planters Bank & Trust Co. v. City of Hopkinsville, 289 Ky. 451, 159 S.W.2d 25 (1942) 28. Then the county budget can reflect the precise budget fund or funds under which this revenue can be expended.
Question No. 4:
"Does an ordinance enacting an occupational tax have to be read at two Fiscal Court meetings or would one reading be sufficient?"
No county ordinance shall be passed until it has been read on two (2) separate days, but ordinances may be read by title and summary only. KRS 67.077(1).
Question No. 5:
"If this occupational tax were passed on businesses, would the county have the right to inspect that business' books?"
The express power to levy the occupation tax under KRS 67.083 carries with it at least the implied power to require the filing of a return, showing net profit or gross salary as the case may be, and the enforcement of that requirement by means of a penalty as necessary incident to the exercise of the express power.
City of Louisville v. Fischer Packing Company, Ky., 520 S.W.2d 744 (1975). See also
City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248 (1948) 251, in which the court tacitly approved the ordinance requirement that the net income from a business shall be the same as reported for federal income tax purposes. "A license or permit fee or tax imposed by ordinance must be definite in amount or dependent on an established, definite and legal measure . . ." 9 McQuillin, Municipal Corporations, § 26.32a, p. 66. Under this practical analysis we see no need to go into the complex question of the right of the tax authority to audit the books of a business. Apparently the City of Louisville deems the tax reporting method adequate. Of course, the constitution would require that an occupational tax be established covering all occupations and businesses.
City of Lexington v. Motel Developers, Inc., Ky., 465 S.W.2d 253 (1971) 257.
Question No. 6:
"If the occupational tax were passed on payroll, what about people who draw their salaries from outside the county (like W.Va., Ohio or Oklahoma) and live in a Kentucky county?"
County occupational taxes are privilege taxes covering the privilege of doing work or engaging in a business within the geographical confines of the county government. See
Commissioners of Sinking Fund v. Howard, Ky., 248 S.W.2d 340 (1952). Thus the occupational ta 340 (1952). Thus the occupational tax could not apply to income earned outside of Kentucky.
Question No. 7:
"Is it possible for the public to get a complete audit of a county's books, not just total salaries lumped together, but individual checks, expense funds received, etc.? Not a statement audit acceptable, but a complete record?"
KRS 424.220, relating to the publishing of a financial statement of county business (inter alia), expressly provides that only the total of amounts paid to each individual as salary or commission need be shown. The question of who can procure an audit depends upon statute. The fiscal court can procure a county audit. KRS 67.080(1)(d). The state auditor audits county officers. KRS 43.050 and 43.070. We know of no statute giving the public generally the right to procure such audits.
Question No. 8:
"Are there any provisions for a monthly statement to be published in a local newspaper about financial conditions of the county?"
KRS 68.360 provides for a monthly statement of the county treasurer to be filed with the county judge/executive and the fiscal court, showing the balance of county funds available for governmental expenditure. It also provides for the county judge/executive's filing similar quarterly reports as to status of county funds, showing receipts and expenditures of county funds. Such records are public records, as defined in KRS 61.870, and are subject to inspection by any person under the conditions of KRS 61.872. In addition, KRS 424.230 provides that any officer required to publish financial statements may elect to prepare and publish monthly or quarterly statements.
Question No. 9:
"Must all bills paid by a Fiscal Court have to be read at court meetings?"
Under KRS 67.080 and 67.083, the fiscal court must pass on all claims against the county treasury. In passing on the claims, it is only necessary that the county judge/executive indicate to the fiscal court the claimant, basic nature of the claim, and the amount.