Request By:
Mr. Wilburn J. Pratt
Commissioner
Department for Local Government
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Money in the Coal Severance Economic Aid Fund can only be used for capital projects. In that connection, KRS 42.330(2)(f) reads in part:
"No money shall be expended out of the fund, directly or indirectly, to pay . . . . for the acquisition, construction, reconstruction, renovation or maintenance . . . . of any road, street, highway or bridge."
One of the projects proposed is the purchase of a rock crusher. You write that "Apparently some of the rock crushed by this equipment is intended for use on county roads although some of it may be used for recreational areas and industrial parks." (Emphasis added). Your statement is apparently based upon newspaper stories, which we shall mention hereinafter.
Your question:
"Does the purchase of equipment to crush rock conform to the requirements of KRS 42.330?"
You have furnished some supplemental material for our consideration in dealing with this problem, which material includes a copy of the Martin County application for the use of Coal Severance Economic Aid Fund money and newspaper clippings. The title to the project is the "Martin County Rock Crusher" . The amount of money requested from the fund: $144,000. The beneficiary agency is Martin County Fiscal Court. The application indicates that the rock crusher will crush stone for use in several community development projects such as developing county parks and recreational facilities, the county swimming pool, the development of certain Section 8 housing, the area at the county dump, and industrial development property.
Under "assurances" made by the fiscal court, it assures the Finance Department that it will abide by all applicable laws and regulations in connection with the project, the Secretary of Finance relying on these assurances, subject to KRS 523.100.
Newspaper items in a local paper suggest that the fiscal court might be contemplating a rock crusher to produce gravel for county roads.
The answer to your first question is that KRS 42.330(2)(f) expressly prohibits the use of such fund on county roads. This is the literal expression of the General Assembly, and we must construe that literally.
Barrett v. Stephany, Ky., 510 S.W.2d 524 (1974).
Another question which you have raised in our telephone and other discussions of this problem is whether, for purposes of intent of the fiscal court as to the use of the money, your office can rely upon the representations made in the formal application.
The answer is "yes". State government in this kind of situation is not required to launch an investigation as to the intent of fiscal court to keep the vows expressed in the "assurances" . You are authorized to accept in good faith the assurances of fiscal court that it will abide by all applicable laws and regulations in using the coal severance money. Thus the statements made in the newspaper articles are not to be construed as a part of the application or bearing on the application in any way.
Now, when the application is acted upon, and the money is transferred to such rock crusher project, what the fiscal court does with that equipment is entirely another matter.
Should the fiscal court decide to break its vow of abiding by the law under its application, by using the crusher for county roads, there are ample remedies. A taxpayers' suit in circuit court could be filed to enjoin any illegal use of the equipment, if such occasion arises. In addition, any illegal use of the equipment by way of using the crusher for county roads could be the framework of an indictment under KRS 61.170, involving misfeasance or failure to perform duty etc. In addition, a use for county roads could subject the members of fiscal court to a prosecution under KRS 523.100 [unsworn falsification to authorities].
The Department of Finance is not required to anticipate that an applicant for the fund will break the law subsequently in connection with the use of the fund. Government must operate on faith until that faith is actually breached.