Request By:
Mr. Dennis M. Clare
Attorney at Law
The Hart Block Building
730 West Main Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions concern the effect of the Kentucky Model Procurement Code on purchasing practices of volunteer fire districts.
Specifically, your questions read:
"A. Would Volunteer Fire Districts be covered by the Kentucky Model Procurement Code either as 'local public agencies' (KRS 45A.345(8)) or as statutorily created state agencies (KRS 75.010 et seq) ; and
"B. If Volunteer Fire Districts are covered as local public agencies under KRS 45A.345 et seq. , what is the combined effect of the recent passage of S.B. 163 and S.B. 368 on such coverage."
As relates to question A, above, KRS 45A.345(8) reads:
"As used in KRS 45A.345 to 45A.460, unless the context indicates otherwise:
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"(8) 'Local public agency' shall mean a city, county urban-county, school district, special district, or an agency formed by a combination of such agencies under KRS Chapter 79, or any department, board, commission, authority, office or other sub-unit of a political subdivision which shall include the offices of the county clerk, county sheriff, county attorney, coroner and jailer."
A volunteer fire department district is a political subdivision of the state and a separate taxing district under Section 157 of the Kentucky Constitution. See KRS 75.040. It is our opinion that a volunteer fire protection district, established under KRS Chapter 75, is a "local public agency", as defined in KRS 45A.345(8), above, since it is a "special district" and a "political subdivision" . Thus the volunteer fire department district would come under the Model Procurement Code [see KRS 45A.345 to 45A.460], provided that the district so chooses to come under the code [which answers question B].
We concluded in OAG 80-279, copy enclosed, that the Model Procurement Code is optional with local public agencies. In so ruling, we pointed out that S.P. 163, making it optional, contained an emergency clause and thus controlled over S.B. 368 [1980 session] which contained no emergency clause. Campbell Election Commission v. Weber, 240 Ky. 373, 42 S.W.2d 511 (1931) 512.
However, since the application statute, KRS 45A.350, was repealed by S.B. 163 [1980 session] , the Model Procurement Code would not apply to a volunteer fire district unless the district trustees took positive action in writing to adopt the code.
Where the code does not apply, KRS 424.260 would.