Request By:
Mr. Theron Kessinger
Ohio County Judge/Executive
Courthouse
Hartford, Kentucky 42347
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to whether or not money from the "Coal Producing County Development Fund", as established in KRS 42.300, can be legally allocated to Ohio County to provide financing for improving a landfill site used by county and city residents. The landfill is actually administered by a KRS Chapter 273 nonprofit corporation created by the county and certain cities within the county. This site is not in compliance with KRS Chapter 224. It is the only landfill site in Ohio County.
KRS 42.300(2) provides in part that the "moneys in the fund shall be used for public improvement projects; which includes but is not limited to construction, reconstruction and maintenance of roads and bridges, sewer and water projects, construction or renovation of public facilities, parks, industrial development projects in the coal producing counties." (Emphasis added).
We assume that there is still available balances in this old fund for allocation. See OAG 76-184, copy enclosed.
As we said, we assume the landfill corporation was established by the cities and county for strictly governmental purposes. KRS 273.167. Judge O'Rear, for the court, wrote, in Hager v. Kentucky Children's Home Soc., 119 Ky. 235, 83 S.W. 605 (1904), that the "vital point in all such [state] appropriations is whether the purpose is public; and that, if it is, it does not matter whether the agency through which it is dispensed is public or is not; that the appropriation is not made for the agency, but for the object which it serves; that the test is in the end, not in the means." (Emphasis added).
The answer to question no. 1 is that an allocation for the county landfill improvement would be a legitimate expenditure of the fund's money, the project being a public improvement. This project would include the necessary road work, personnel shelter, toilet facilities, etc., as enumerated in the project narrative. The landfill is open to the entire public of Ohio County.
As for question no. 2, you want to know whether the county can bid on the two landfill site roads, described in project narrative, by way of a force account [county road department labor and equipment]. You say that the award on the roads would, if the county got the award, reimburse the county for its cost in constructing the site roads. It would also save the landfill corporation $2,000.
The answer is yes. We see no reason why the fiscal court cannot use the county labor and equipment on what amounts to county public road segments, though the land title is held by the corporation. Public road purposes are involved. See § 157a, Kentucky Constitution and KRS Chapter 178. The public and county road system will tie onto the proposed landfill site roads. As a practical matter, no county road funds would be finally spent without reimbursement under the bid award.