Request By:
Mr. Larry C. Ethridge
Nold, Mosley, Clare, Hubbard & Rogers
730 West Main Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of August 27 in which you raise several questions concerning the proper application of KRS 83A.120 as it relates to an enclosed Resolution approved by the city commission of the city of Brownsboro, a city of the sixth class. These questions are as follows:
"1. Can the enclosed Resolution proposed by the Commission of the City of Brownsboro Farm, whereby the residents of the city would be asked to assume the revenue bond indebtedness of the city's Recreational Facilities Corporation, be submitted to the voters of the city as a 'public question authorized by statute' pursuant to the provisions of KRS 83A.120?
2. Can the 90-day limit for receipt of said Resolution by the County Clerk established at KRS 83A.120(6) be waived where all property owners of the city will be notified of the Resolution well in advance of the election, and prior to the distribution of the Sample Ballot as required by the publication provisions of that subsection?"
To begin with KRS 83A.120 which sets forth a procedure for any city to hold a referendum on a public question specifically requires as pointed out in OAG 80-564 that such public question be specifically authorized by statute before such submission in conformance with 83A.120 can be utilized. In addition we are enclosing a copy of 78-629 setting forth the general case law to the effect that unless a particular question is specifically authorized by the constitution or a statute it cannot be placed on the ballot for the vote of the people.
The resolution that you enclosed, calling for a referendum whereby the residents of the city would be asked to assume the revenue bond indebtedness of the city's Recreational Facilities Corporation does not cite any specific statute upon which the referendum can be held. It does refer the public question authorized by statute, to wit: KRS Chapter 58 which deals with bond issues for public projects and KRS Chapter 97 relating to the establishment of parks, playgrounds, and recreational facilities. However, neither of these acts in their context contain any authorization whatsoever for a referendum on any phase of establishing either public projects generally or parks and recreational projects. The case of McKinney v. City of Owensboro, 203 S.W.2d (1924) cited by you merely held that a swimming pool fell within the definition of a "public project" and there was no mention of a possible referendum for any phase of such a project. As a consequence we are of the opinion that the resolution is legally ineffective in view of a lack of statutory authority to present the question to a vote of the people.
Your second question concerning the possible waiver of the 90 day restriction for placing the public question on a November ballot thus becomes moot. However, to be frank we do not believe such a deadline can be waived or altered. The general rule is that election deadlines are mandatory. See