Request By:
Mr. Frederick G. Neikirk
Pulaski County Attorney
104 West Columbia Street
Somerset, Kentucky 42501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Pulaski County is receiving approximately $500,000 from the Economic Assistance Fund from the coal severance and mineral taxes. We assume you refer to KRS 42.450 et seq. You ask whether or not the county can make expenditures from this fund for donations to a non-profit private organization such as "Little League Baseball."
The Supreme Court of Kentucky, in interpreting KRS 67.083 [Home Rule county power statute] prior to the 1978 amendment, in Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977), ruled that all power exercised by the fiscal court in Kentucky must be expressly delegated to it by statute. KRS 42.455(2) expressly indicates that local government economic assistance program funds may be expended by a county for purposes of "recreation" within the priority quidelines established therein. In addition, KRS 67.083(3)(f) provides that the fiscal court may appropriate county funds for "provision of parks, nature preserves, swimming pools, recreation areas, libraries, museums and other recreational and cultural facilities and programs; . . . ." (Emphasis added). Thus KRS 67.083 is explicit enough for the proposed purpose.
A residual question concerns Section 179, Kentucky Constitution, which provides in part that the General Assembly shall not authorize any county to "appropriate money for . . . . any corporation, . . ., except for the purpose of constructing or maintaining bridges, turnpike roads, or gravel roads . . ." (Emphasis added).
An examination of the Constitutional Debates indicates the view that "The people should not be made partners in railroads or other corporations, nor should money raised by taxation be used for the benefit of any particular individual or corporation." Kentucky Constitutional Debates (1890) Vol. 2, p. 2385. Some of the delegates believed that local governmental money should not be used to subsidize turnpikes, though turnpikes were finally included as an exception to the prohibition. Ibid., p.p. 2783 and 2786.
Some 74 years after the Constitutional Convention, in O'Bryan v. City of Louisville, Ky., 382 S.W.2d 386 (1964), the James Graham Brown Foundation, Inc., and the City of Louisville agreed to form a non-profit corporation pursuant to KRS Chapter 273 for the purpose of establishing and managing a zoo. In the arrangement, the city gave a corporation license and its funds to the Chapter 273 corporation to operate the city zoo, subject to the city's advice and approval. The court, in approving the transaction and overruling the objection that Section 179 of the Constitution was violated, ruled that the funds of the city were not being appropriated for the benefit of a private corporation. On the contrary, the funds were to be used for the city's purpose in operating the zoo. The court noted that the zoo commission, "subject always to the advice, approval and direction of the city," was to supervise the expenditure of the city's funds on behalf of the city. The court underscored the point that a municipal corporation has the power to use others in the performance of administrative and ministerial duties.
Thus we conclude that, since the "Little League Baseball" program is really not a county operation or function, and since it would not be under the basic operative control or management of the fiscal court, the proposed appropriation would violate Section 179, Kentucky Constitution.
Your next question concerns whether a magistrate can, at the same time, serve as a county road supervisor. See KRS 179.020.
The answer is "no". In Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917), the court wrote that offices are incompatible, as a matter of common law, when they cannot be executed with care and ability, or when, their being subordinate and interfering with each other, it induces a presumption that they cannot be executed with impartiality and honesty.
The fiscal court controls and establishes the county road program. Thus the magistrate cannot sit on the fiscal court and participate in directing what he is going to do as a county road supervisor. He simply cannot be employer and employee at the same time.
The final question is whether the magistrates on fiscal court can effect a pay raise for the coming year.
The answer is "yes", as a salary adjustment subject to the maximum compensation permitted under the rubber dollar principle. See Section 246, Kentucky Constitution and KRS 64.527. This is also subject to the restriction that the salary must be reasonable in terms of the amount of work they perform for the county.