Request By:
Martha Belwood
Administrator
State Agency for Social Security
Department for Human Resources
Lewis & Broadway
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You have forwarded the articles of incorporation of the Campbell County Council of Governments. You state that the entity desires social security coverage through your agency on the ground that they (or it) are (is) a political subdivision operating under KRS Chapter 65.
The articles indicate that the Campbell County Kentucky Council of Governments, Inc., is a nonprofit, nonstock corporation (presumably under KRS Chapter 273). Its purpose is to assist those political subdivisions of the State of Kentucky located in part or wholly in Campbell County in performing their municipal functions, specifically to act as purchasing agent for such political division, provide municipal services to said subdivision, among other services.
The membership of the corporation are the municipal corporate entities now or in the future created in Campbell County.
The apparent purpose of the corporation is to perform governmental activity, but that alone will not make that entity a governmental entity. After all, governmental activity can be performed through private agents who contract with a governmental entity.
If the articles of incorporation were intended to comply with the Interlocal Cooperation Act, KRS Chapter 65 (65.210-65.300), the articles do not meet that Act's requirements. It does not fully comply with KRS 65.250 and we are given no indication that it has complied with KRS 65.260 (approval of the Attorney General).
There needs to be something other than the corporate structure for the entity to be considered as complying with KRS Chapter 65. In the absence of such structure and agreement, the corporation is a creature without statutory authority. It has no formal authority that would make it an instrumentality of a political subdivision as defined in KRS 61.420(5) for social security purposes. Without that additional proof of the existence of a formal statutory authority for the entity, it is our opinion that social security should be paid by the corporation directly to the Social Security Administration as any other nonprofit corporation would do.
The payments should not be paid through your office.