Request By:
Honorable Lloyd E. Rogers
Acting Attorney
Harrison County Library
Board of Trustees
P.O. Box 444
Cynthiana, Kentucky 41031
Opinion
Opinion By: Steven L. Beshear, Attorney General; John H. Gray, Assistant Attorney General
Thank you for your letter concerning the situation between the Harrison County Library Board and the City of Cynthiana.
The following answers are provided to your questions:
(1) Can the Harrison County Board keep all library tax money received within 30 days prior to November 22, 1980, date of termination of its contract with the City of Cynthiana Library?
No. According to the law of contracts both sides are obligated to perform their part of the bargain until such time as the contract has terminated.
By the terms of the contract any library tax money received by the treasurer of the Harrison County Library Tax Board prior to the termination of the contract should be delivered to the treasurer of the Cynthiana Library Board within 30 days. This would include any library tax money received within 30 days prior to the termination date of the contract.
On their part the City of Cynthiana is obligated to provide library service to the residents of Harrison County during the last 30-day period prior to the termination of the contract.
(2) Is the Harrison County Library Board vulnerable to a taxpayer's suit?
Yes. OAG 74-95 establishes that public library districts created under KRS 173.450 come within the term "other municipality" of § 165 of the Kentucky Constitution and that members of the Board of Trustees are considered to be municipal officers. Since the Harrison County Library District was created by petition under KRS 173.720, the Board of Trustees could be subject to a taxpayer's suit. To successfully maintain an action the taxpayer(s) would have to show standing to bring such a suit, as well as special or peculiar injury. Also, under KRS 173.520 the district, as a corporate body, could be sued through the Board.
(3) What procedure would the people of Harrison County have to pursue to have the library tax repealed?
As set forth in OAG 67-263 a library district created under KRS 173.20 (petition method) can only be dissolved by petition method (KRS 173.800) and such a district can only procure a change in tax rate by the petition method (KRS 173.790); thus, the method of creation of a library district governs the method of dissolution andtax rate change; such methods must be the same.
KRS 173.790 provides a procedure for decreasing but not repealing a tax levy. Therefore, it may be that the people of Harrison County would have to dissolve the library district by petition in accordance with KRS 173.800. The county clerk would thereupon remove the library tax levy from the tax bills of the property owners of the district. [KRS 173.800(4)].
(4) Could the sheriff be enjoined from paying over the library tax collected to the Harrison County Library Board of Trustees until it is repealed?
Yes. If the Harrison County Library District is no longer providing library services to the people of Harrison County, the sheriff could be enjoined from paying over the library tax collected pending repeal of that tax. Further, deposit with the Board under these circumstances would be unauthorized and illegal. See Padgett v. Sensing, Ky., 438 S.W.2d 501 (1969).
In order to enjoin the sheriff on this matter, those seeking enjoinment would have to show standing to bring such an action as well as special or peculiar injury.
(5) Could the City of Cynthiana Library become a Library District under KRS 173.310 as long as the HarrisonCounty Library District is in existance?
No. The establishment of two library districts in the same county would be contrary to the provisions of KRS 173.460KRS 173.460 speaks in terms of authorization to organize all of the territory in a county into a library district and makes no provisions for more than one library district in the same county. As the Harrison County Library District is already in existence, a second library district in Harrison County would not be authorized. Therefore, the City of Cynthiana Library can only become a District Library upon the disestablishment of the Harrison County Library District in accordance with KRS 173.800.
(6) Under KRS 173.310(1) could we have a joint board with a member appointed from the City for one (1) year and then alternate with a member appointed from the County for one (1) year for the sole purpose of breaking tie votes?
Yes. A joint board could be appointed, but one (1) year terms of office would not be authorized.
By referencing KRS 173.310(1) it is assumed that your question envisions the creation of an independent county library following the expiration of your present service contract with the City of Cynthiana's Library.
Under KRS 173.340(2), the members of a board of trustees of a county library are appointed by the county judge/executive. The only qualification for the job is "fitness of office." 1 A county judge therefore could conceivably appoint a joint board with representation from both the county and the city. KRS 173.340(1) sets the membership of a county board at five (5).
KRS 173.340(2) sets forth the term of office for board members as follows: "two (2) members for two (2) years, one (1) member for three (3) years, and two (2) members for four (4) years. Thereafter trustees of the board are appointed to serve four (4) years." As can be seen no provision is made for one (1) year terms.
(7) Are we obligated to furnish library service to the County if we keep the tax money?
Yes. It is assumed that this question envisions a continuation of the library tax, rather than the repeal of that tax as suggested by questions (3) and (4).
Implicit in the continuation of the library levy is the obligation to provide service. Under KRS 173.715, the only reason the levy of the library tax is allowed in the first place is to provide or contract for library service. As these funds cannot be used for any but library purposes [KRS 173.360(2)] it is not readily apparent what else you would do with the money.
(8) Could we operate the Bookmobile out of our money with our Agreement with the Library Division?
Yes. Although this office does not know the details of the Agreement that you have with the Department of Libraries, KRS 173.310(4) permits the legislative body of any governmental unit to contract on its own initiative to receive service from the State Department of Libraries. This would include an Agreement for a Bookmobile.
It is hoped that these answers prove helpful.
Footnotes
Footnotes
1 See OAG 67-458 which states that no geographical limits apply.