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
Your question, about which you request our opinion, reads:
"As State Local Finance Officer, I have encountered a problem in the budget of a particular county. Fiscal Court proposes to use money in the road fund to pay part or all of the salary and expenses of the judge/executive.
"In order to properly approve the budget, I need an official opinion of the Attorney General stating whether or not these expenses can be paid from the road fund moneys."
Pursuant to KRS 68.250, the State Local Finance Officer has the authority to approve county budgets in connection with the form and classifications of such budgets. Under subsection (4) he may disapprove the budget where the "proposed budget fails to comply with any requirements of law."
Section 230 of the Kentucky Constitution reads in part:
"No money derived from excise or license taxation relating to gasoline and other motor fuels, and no moneys derived from fees, excise or license taxation relating to registration, operation, or use of vehicles on public highways shall be expended for other than the cost of administration, statutory refunds and adjustments, payment of highway obligations, costs for construction, reconstruction, rights of way, maintenance and repair of public highways and bridges, and expense of enforcing state traffic and motor vehicle laws."
Counties receive county road aid through state excise fuels taxes [see KRS 138.220, 138.565, 138.660 and 234.320]. See also KRS 177.320(2) and 179.410.
In addition, Section 180 of the Kentucky Constitution provides in part that "no tax levied and collected for one purpose shall ever be devoted to another purpose." (Emphasis added).
Any county tax revenue going into the county road fund can only be expended for county road purposes. See KRS 68.100 and 68.110. Cf. the road tax levied under Section 157a of the Constitution, which must be spent on the sinking fund. Bird v. Asher, 170 Ky. 726, 186 S.W. 663 (1916).
KRS 67.722 provides:
"The county judge/executive shall receive an annual expense allowance of three thousand six hundred dollars ($3,600) for performing his duties and fulfilling his responsibilities in the administration of the local county road program. Payment shall be made quarterly in the amount of nine hundred dollars ($900) per quarter, the first such payment to be made for the quarter ending March 31, 1978."
In interpreting the anti-diversion amendment of Section 230 of the Constitution, the court wrote this in Keck v. Manning, 313 Ky. 433, 231 S.W.2d 604 (1950) at page 606:
"The purpose of the 1944 amendment, often referred to as the 'anti diversion amendment', was not to curtail the road program but to make secure the funds with which to continue it. Through excise taxes on gasoline and license taxes on motor vehicles tremendous sums are brought into the state treasury. In some states part of this money has been used for education, welfare or social security programs and other governmental expenses. The amendment was supported by the motor vehicle interests to prevent this fund, raised by special taxes levied against them, from being put to uses having no connection with the construction, maintenance and administration of the highway system."
Elsewhere in Keck the court added:
"An examination of Section 230 of our Constitution reveals that its framers made no attempt to specify for just what the road fund may be expended. On the contrary, they used the broadest terms, such as 'the cost of administration * * * construction, reconstruction, rights-of-way, maintenance * * * and expense of enforcing state traffic and motor vehicles laws.'
"In Grauman v. Department of Highways, 286 Ky. 850, 151 S.W.2d 1061, 1062, there was before us the question of whether a traffic light furnished the department by Jefferson County came within the term 'construction and maintenance', and we held the term broad enough to include everything appropriately connected with safety and convenience of traffic and incidental to the construction and maintenance of an efficient highway system."
It is our opinion that the $3600 expense allowance provided the county judge/executive in KRS 67.722 may be constitutionally funded from the county road fund [exclusive of any Section 157a revenue], since such "administration of the local county road program" relates directly to the "cost of administration" of the county road program, as the terms "cost of administration" and "public highways" are used in Section 230 of the Constitution and as envisioned in KRS 68.100, 68.110, and Section 180 of the Constitution. The payment of such expense allowance of the county judge/executive, or any portion thereof, has a direct connection with construction, maintenance and administration of the county road system, as interpreted in Keck v. Manning, above.
Under the same reasoning, if it can be reasonably determined as to what percentage of his work schedule the county judge/executive is engaged in administrative work relating to the county road program of construction, maintenance, and repair, that percentage factor may be applied to his salary to determine that precise part of his salary which may be funded out of the county road fund. However, there must be a clear documentation of that precise percentage of his time devoted to the road and bridge program in order to fund a part of his salary out of road money. Any deviation from this strict requirement would be unconstitutional.