Request By:
Mr. Willis H. Justice
Superintendent
Clark County Schools
Winchester, Kentucky 40391
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
This is in response to your letter requesting an opinion on the offer by the Clark County Fiscal Court to provide snow clearing service to Clark County Schools in exchange for their providing transportation to students at St. Agatha Academy. You also stated that the Clark County Fiscal Court denied funds to St. Agatha Academy for the busing of students. We believe it will be helpful to you if we explain the law and how the courts of Kentucky apply the law and then give you our opinion on how the law will apply in your particular situation. For a prior advisory opinion of this office on this matter, see OAG 76-529, copy attached.
KRS 158.115 states as follows:
"Each county may furnish transportation from its general funds, and not out of any funds or taxes raised or levied for educational purposes or appropriated in aid of the common schools, to supplement the present school bus transportation system for the aid and benefit of all pupils of elementary grade attending school in compliance with the compulsory school attendance laws of the Commonwealth of Kentucky who do not reside within reasonable walking distance of the school they attend and where there are no sidewalks along the highways they are compelled to travel; and any county may provide transportation from its general funds to supplement the present school bus transportation system for the aid of any pupil of any grade who does not live within reasonable walking distance of the school attended by him in compliance with the compulsory school attendance laws and where there are no sidewalks along the highway he is compelled to travel."
Note that the statute draws a distinction between general funds and those raised specifically for educational purposes. In Rawlings v. Butler, Ky., 290 S.W.2d 801 (1956), the Court held that school funds, as opposed to county general funds, may not be used to transport parochial students. The use of school funds to transport parochial students would be a violation of KRS 158.115 and the Kentucky Constitution. Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963 (1942). The language in KRS 158.115 was strictly interpreted in Board of Education of Jefferson County v. Jefferson County, Ky., 333 S.W.2d 746 (1960). In that case the Court of Appeals, in deciding the formula to be used in calculating the cost of transporting parochial students, chose the formula that "best assures that none of the expense of transporting nonpublic pupils will come from school funds." (Emphasis in the original.) 333 S.W.2d at 748. The Court chose a straight per capita method. This case indicates that the Court will strictly adhere to the requirement that no school funds be used to transport nonpublic pupils.
There is no reason to believe that the county could not render services to the county school, in lieu of general funds, in their effort to furnish transportation for parochial school students. To require that funds be paid would merely force the school to pay the county for such services and the county in turn pay the school for the transporting of the students. The exchange of checks would seem to follow more closely the letter of the law in that there would be tangible evidence of monies coming from general funds, but the spirit of the law would not be broken by the exchange of services as long as no school funds were used in transporting nonpublic students.
We do perceive some complications with the rendering of services, especially snow-clearing services, in lieu of general funds in the exchange for the transporting of nonpublic students. The local "going rate" for snow clearing will have to be quantified and offset againt the cost of transporting the students. According to the Jefferson County case, last noted above, the cost formula for transporting nonpublic students is a straight per capita approach, i.e., the percentage of nonpublic students applied to the total transportation expense. The calculation of the going rate for snow removal service by the county would, it must be remembered, be subject to the strict scrutiny of an appropriate court in an effort to insure that no school funds are being used for the transportation of nonpublic students.
It is our understanding that the fiscal court would also like to use the monetary figure it expends for school bus turn-arounds as an offset figure in calculating how much the fiscal court owes the county school system for transporting nonpublic school students. KRS 178.290(2) gives the fiscal court the authority to build and maintain suitable areas for the safe turning around of school buses. This statutory provision is clearly permissive rather than mandatory. See OAG 72-134, copy attached. We also know of no obligation placed on a local board of education to maintain school bus turn-arounds. For the school board to spend monies for such turn-arounds would amount to a payment for public improvements and thus would be in violation of Kentucky Constitution § 186. See Bd. of Edc. v. Spencer Co., 313 Ky. 8, 230 S.W.2d 81 (1950) and City of Louisville v. Leatherman, 99 Ky. 213, 35 S.W. 625 (1896). Therefore, we believe the school system could not legally permit the cost of providing the turn-arounds by the fiscal court to be offset against the transportation cost. Such a practice would suffer double constitutional infirmities.
It is most likely that the cost of transportation will exceed the value of the snow removal service rendered by the county, such snow removal being recognized as a reasonable and necessary operational expense for the school system to stay open for school. In such an event some provision will have to be made for the county school to be paid the balance. You have indicated that the fiscal court has refused to pay the transportation cost from general funds. We assume that should a balance be owed to the school system, the county will complete the payment with other services actually and necessarily required to be procured from some source by the school system, or St. Agatha Academy will pay the balance. Should a year come when no snow removal is necessary, or if the school system becomes able to handle the snow removal problem with its own equipment and personnel, as we understand the circumstances may already be, it is clear that the entire cost of transporting the nonpublic students would have to be paid to the school system.
The county board of education must also be aware that should the cost of snow removal exceed $5,000, contracting for such a service would be subject to the Model Procurement Code, if the school board has chosen to follow it; see Senate Bill 163 and OAG 80-279, copy attached, and if not, then KRS 424.260.
Based on the analysis above, it is our opinion that the Clark County Fiscal Court may provide snow removal service in exchange for the transporting of nonpublic school students, provided that the value of such service is fairly and accurately determined, provisions are made for the payment to the Clark County School System of any balance due, and appropriate procurement laws are followed where applicable. It is our further opinion that the best method for handling any legitimate exchange of services as outlined above would be for the Clark County School System to pay for the service and for the county fiscal court to pay that amount back to the county school system for the transporting of nonpublic school students. As mentioned earlier, this would be in strict, literal compliance with KRS 158.115, which states that payments are to be made from general funds.