Request By:
Mr. William Wiley
Legislative Research Commission
Capitol Building
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 80-556 we concluded that we find no statutes authorizing the dissolution or discontinuance of an airboard created by a county pursuant to KRS 183.132.
In OAG 80-67, we advised that the county judge/executive, with approval of the fiscal court as a body, could dissolve an agricultural extension district under KRS 67.715(2), provided that certain enumerated constitutional requirements are met. An agricultural extension district, however, is a separate taxing district under § 157 of the Kentucky Constitution.
Your question reads:
"Could a county judge/executive use KRS 67.715(2) as his authority for dissolving a county air board, assuming he followed the precautions you have advised in OAG 80-67?"
KRS 67.715, primarily relating to the reorganization powers of the county judge/executive and the fiscal court, reads:
"(1) The county judge/executive may create, abolish, or combine any county department or agency or transfer a function from one (1) department or agency to another, provided that he shall first submit plans for such reorganization to the fiscal court. If not disapproved within sixty (60) days, the plans shall become effective.
"(2) The county judge/executive or county judges/executive of multi-county districts may, with approval of the fiscal court or fiscal courts, create, any special district or abolish or combine any special district, provided such district was created solely by one or more such fiscal courts.
"(3) The county judge/executive shall assure the representation of the county on all boards, commissions, special districts, and multi-county programs in which county participation is called for."
Subsection (1) of the statute relates only to county departments and agencies which are an integral part of the central county government and which are under the direct operative control of the fiscal court and county judge/executive. An air board created by the county is, notwithstanding such creative origin, a body politic and corporate. It is an independent corporate entity. It is a separate political entity from the creating unit of government, the county. Thus subsection (1) of KRS 67.715 does not authorize the abolishing of an air board created by the county.
Subsection (2) of KRS 67.715 authorizes the county judge/executive and the fiscal court as a body to create and abolish any "special district. " The key phrase is "special district" . (Emphasis added). The term is not defined by the statute or any related statute. Moreover, there are no guidelines as to what specific type of district is intended, nor are there any guidelines as to conditions for any abolishing of such special districts. As we said in OAG 80-67, the courts might hold that KRS 67.715(2) is unconstitutional for lack of constitutional guidelines, especially as relates to the satisfaction of all liabilities and contractual obligations of such districts.
These sections of the Kentucky Constitution mention special taxing districts and other municipalities: 157, 158, 159, 162, 164, 165, 180, and 181. The court, in Rash v. Louisville & Jefferson County Met. S. Dist., 309 Ky. 442, 217 S.W.2d 232 (1949) 236, defined the nontaxing Metropolitan Sewer District as a "separate entity acting for its own purposes and possessing defined, though limited, powers of a municipal community." Thus the legislature may enact enabling legislation making it possible to create taxing or nontaxing special districts.
An air board, created under KRS 183.132, is, as we said, a body politic and corporate. It is a legislative body for the purposes of issuing revenue bonds (for an airport). Gray v. Central Bank & Trust Co., Ky. App., 562 S.W.2d 656 (1978) 658. The court, in Bowling Green-Warren Co. Air Bd. v. Bridges A.S. & S., Ky., 460 S.W.2d 18 (1970) 19, characterized the air board as a municipal corporation, in effect a political subdivision.
The framers of the 1891 Kentucky Constitution intended to recognize only three levels of government: the state and its agencies, municipalities and other units of local government, and school districts. The term "units of local government" would include counties and special taxing and nontaxing districts. See §§ 157 and 179 of the Kentucky Constitution.
The matter of governmental air boards has been pre-empted by the General Assembly in KRS Chapter 183. A "special district" outside of districts specifically authorized by the General Assembly to be created, including special taxing and nontaxing districts, has no practical meaning.
CONCLUSION
We conclude that: (1) An air board created under KRS Chapter 183 is not a district nor a special district specifically authorized by the General Assembly to be created (including special taxing and nontaxing districts). (2) KRS Chapter 183 preempts the matter of governmental air boards. (3) KRS 67.715(2), relating to "special districts", has no practical meaning. The courts might hold that the statute constitutes, because of its vague and skeletal nature, an unlawful delegation of legislative power. See Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974) 471, holding that the legislature may delegate discretion, provided that sufficient standards controlling the exercise of that discretion are found in the act. (4) KRS 67.715(2) is no valid authority for dissolving a county air board.