Request By:
John H. Golden, Esq.
Bell County Attorney
P.O. Box 220
Pineville, Kentucky 40977
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question as to the potential liability of the county in connection with a garbage district which is operating in the county.
You state that in 1971 the Bell County Fiscal Court organized a garbage district pursuant to the terms and provisions of KRS Chapter 109. Since that date the district has had various boards of directors and managers. It is alleged that a recent manager has absconded with a great deal of the garbage district's money and the district is deeply in debt at this time. The FBI is apparently investigating the allegations made against the former manager.
The immediate problem is that you anticipate the banks and other creditors will attempt to place the liability for these debts upon the county itself. The fiscal court has appropriated various sums of money to the district over the years to pay various debts of the district. You seek the advice of this office relative to the attempts of the garbage district's creditors to hold the fiscal court and the county liable for the debts of the garbage district.
Although the General Assembly substantially amended the provisions of KRS Chapter 109 in 1978 and 1982, there is a provision, KRS 109.190, dealing with the status of existing districts which states:
"Garbage and refuse districts established pursuant to KRS Chapter 109 prior to June 17, 1978, whether de jure or de factor, unless the department finds that such do not comply with the federal resource conservation and recovery act and with the solid waste management plan, shall be deemed waste management districts and shall have all of the powers and duties of waste management districts as set forth in this chapter."
Assuming that the garbage district with which you are concerned has qualified under KRS 109.190 for a continuing status, the district would be governed by its board of directors who have, among other powers, the power to levy taxes and assess service charges. See KRS 109.056, formerly KRS 109.180 as well as OAG 80-172, copy enclosed. In OAG 73-813, copy enclosed, we noted that a garbage district established under KRS Chapter 109 may levy an annual tax which means that such a district is a separate taxing district pursuant to Section 157 of the Kentucky Constitution. At page two of OAG 73-813, we said in part as follows:
". . . There the Court recognized the constitutional permissibility of the legislative creation of separate taxing districts, bearing in mind that legislative power under our constitution is not a matter of grant by the constitution but a question in each instance of whether or not the constitution prohibits particular legislative action. Thus the garbage district, as a separate taxing district, has indeed a certain self-governing aspect or autonomy within its statutory sphere of authority and operation. See McDonald v. University of Kentucky, 225 Ky. 205, 7 S.W.2d 1046 (1928) 1048; and Jefferson County v. Jefferson County Fiscal Court, 274 Ky. 91, 118 S.W.2d 181 (1938) 184."
Not only is the garbage district (or waste management district) a separate and autonomous entity, within its sphere of authority, from the county government, but the county still enjoys sovereign immunity. The county is not liable for the tortious or negligent conduct of its officers and employees and even if the garbage district was part of the county government, the county would not be liable for the acts of the garbage district's officers and employees. See Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967) and George M. Eady Co. v. Jefferson County, Ky., 551 S.W.2d 571 (1977).
While the doctrine of sovereign immunity applies to the county it does not apply to county officers and employees. They may be sued personally for tortious acts committed while holding public office or employment. The general rule as to the personal liability of a public officer or employee is set forth in Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 36 (1962).
". . . It seems to us that in order to impose personal liability there should be some element of personal fault on the part of the officer or agent, such as negligence or deliberate wrongdoing.
The ordinary rule is that a public officer when acting in good faith within the scope of his authority is not personally liable for damages sustained by a member of the public as a result of his action, unless he acted negligently, that is, failed to meet the standard of the ordinarily prudent man. 67 C.J.S. Officers § 125, pp. 417, 418; J.F. Schneider & Son v. Watt, Ky., 252 S.W.2d 898. In our opinion this is a proper rule, and if under a particular set of facts liability would not exist under this rule liability should not be imposed on the officer simply because the government cannot be made to pay."
Apart from the matter of liability for tortious conduct, the county has not incurred any liability under any other theory, at least not under the limited factual situation you have set forth. In Leslie County v. Keith, 227 Ky. 663, 13 S.W.2d 1012 (1929), the Court of Appeals rejected a claim for services rendered on behalf of the county because the services were not rendered under the authority of the fiscal court. The court said in part, at page 1013 of its opinion, "County governments never become indebted by implication, and the county cannot be held responsible for a claim without its first being shown that there was a legal obligation to pay it."
The Court of Appeals, in Farmer v. Marr, 238 Ky. 417, 38 S.W.2d 209, 212 (1931), said in part that a fiscal court only acts as a body when it is in session for the purpose of taking action and it can only speak through its orders. A person must look to the fiscal court's orders as the source of his authority or right. A county government never becomes indebted by implication and it is not liable for expenses incurred in the absence of a showing that there is a statutory authority to incur or a legal obligation to pay, same. See also Bath County v. United Disinfectant Co., 248 Ky. 111, 58 S.W.2d 239, 241 (1933).
In conclusion, a garbage district (or a waste management district) organized and functioning pursuant to KRS Chapter 109 is a separate taxing district operating autonomously within its statutory sphere of authority. The county government, under the doctrine of sovereign immunity, is not liable for the tortious or negligent conduct of its officers and employees or for such conduct on the part of the garbage district's officers and employees. County governments do not become indebted by implication but only when there is statutory authority to incur expenses or a legal obligation to pay such expenses.