Request By:
The Honorable Ward (Butch) Burnette
State Representative, First District
P.O. Box 623
Fulton, Kentucky 42041
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter concerning the utilization of the provisions of the Interlocal Cooperation Act (KRS 65.210 to 65.300). You state that the cities of Fulton, Kentucky (a city of the fourth class) and South Fulton, Tennessee, may desire to jointly exercise some of the powers or privileges relating to the following services, schools, fire protection, waste disposal, landfills, utilities and ambulances. You ask whether, under the provisions of the Interlocal Cooperation Act or under any other statutory or constitutional provisions, the cities may act jointly to do any or all of the above-mentioned activities and functions.
As we said in OAG 79-309, copy enclosed, the Interlocal Cooperation Act envisions that governmental units may exercise certain powers jointly, provided that each unit participating in the joint undertaking has the statutory authority to exercise such powers separately or unilaterally. Thus, an interlocal agreement involving one party which does not have the requisits statutory authority would render the contract null and void.
The Interlocal Cooperation Act permits a city in this state to contract with a city in another state in connection with a joint undertaking (KRS 65.240). If a Kentucky city and a Tennessee city desire to participate in a joint undertaking, the Kentucky city would have to act pursuant to KRS 65.210 to 65.300 as KRS 79.110 et seq. (political subdivisions may contract for joint governmental services) is restricted to governing bodies of any two or more political subdivisions within the same county. Tennessee has adopted an "Interlocal Cooperation Act" very similar to the Kentucky provisions (Tennessee Code Annotated, Vol. 3A §§ 12-801 to 12-809) but this opinion will be limited to determining what a Kentucky city can do under the Kentucky statutory provisions. Thus, even though we may conclude that a Kentucky city could act in certain situations, an agreement could not be consummated if the Tennessee provisions do not permit a Tennessee city to engage in such an undertaking.
In connection with school and educational matters generally, it would be our opinion that a Kentucky city could not execute an interlocal agreement because cities do not have statutory authority to participate in school matters. In OAG 73-170, copy enclosed, at page two, we said that the general powers attributed to a city do not include the power to participate in school and educational matters.
As to fire protection, KRS 86.160 authorizes cities of the fourth class to establish fire companies and to provide for fire fighters; KRS 95.710 deals with members of fire departments in cities of the fourth class, and KRS 95.830 authorizes any city owning or controlling fire apparatus to take it to extinguish fires in the county containing that city or into another county or state. In OAG 77-632, copy enclosed, we expressed the opinion that under the Interlocal Cooperation Act the cities of Fulton, Kentucky and South Fulton, Tennessee could enter into a valid, mutual aid contract relating to the use of fire fighting staff and equipment. Furthermore, it is our understanding that Fulton and South Fulton as well as other Kentucky and Tennessee cities are presently operating under a cooperative agreement for fire protection services.
In connection with waste disposal and landfills, we direct your attention to KRS 94.280 et seq. dealing with garbage disposal in cities of the second to the sixth class. KRS 94.280 provides in part that cities of the fourth class may acquire suitable lands for dumping garbage. KRS 94.281 to 94.286 authorize a city to operate a garbage disposal system. Furthermore, in OAG 74-706, copy enclosed, at page three, we said that governmental entities could utilize the provisions of the Interlocal Cooperation Act to jointly operate a landfill and a garbage disposal system.
As to ambulance service, we said in OAG 79-104, copy enclosed, that while we cannot find a specific statute authorizing a city to operate directly an ambulance service, the
Court, in Ray v. Owensboro, Ky., 415 S.W.2d 77, 80 (1967), concluded that a city has the right to provide emergency ambulance service to its inhabitants. Furthermore, in that same opinion we also said a city and another unit of government could utilize the provisions of the Interlocal Cooperation Act to provide for the joint operation of an ambulance service.
In connection with various municipal utilities, KRS 94.160 provides in part that a city of the fourth class may operate a sewerage system; KRS 96.190 states in part that a fourth class city may provide the city with water, gas, electric power, light, heat, telephone and telegraph service by contract with any person, or by works and facilities owned or leased by the city and located within or beyond the city boundaries; KRS 96.350 states in part that a fourth class city may maintain and operate a waterworks system. KRS 96.520 provides in part that a fourth class city may maintain and operate electric light, heat and power plants, and KRS 96.542 provides that any city may operate an artifical gas system.
While the above list is not exhaustive as to a city's authority to maintain and operate municipal utility services, it does illustrate that a fourth class city in Kentucky has the authority to operate various utility services. Thus, in theory, a fourth class city could, under the terms and provisions of the Interlocal Cooperation Act, execute a contract with another city to jointly operate such utility services. We cannot recall any instances where such utility services have been jointly managed and operated pursuant to an interlocal agreement. The cities involved would have to carefully evaluate the practicality and feasibility of such an operation and whether it is more economical and more efficient than other methods of operation.