Request By:
Mr. Phillip Powers
President
The Pioneer Publishers, Inc.
P.O. Box 515
Brandenburg, Kentucky 40108
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise a question concerning the publication of county budgets. KRS 68.260(1) reads:
"(1) The proposed county budget tentatively approved by the fiscal court and approved by the state local finance officer as to form and classification shall be submitted to the fiscal court for adoption not later than July 1 of each year or within ten (10) days after receipt of the certified assessment from the department of revenue, as provided in KRS 133.180, whichever shall be later. The county judge/executive shall cause a copy of the proposed budget to be posted in a conspicuous place in the courthouse near the front door, and be published pursuant to KRS chapter 424, at least ten (10) days before final adoption by the fiscal court." (Emphasis added).
The statute literally requires that the county budget, inter alia, be "published pursuant to KRS chapter 424", at least ten (10) days prior to the final adoption of the budget by the fiscal court. (Emphasis added). Under subsection (2) of the statute, any taxpayer or group of taxpayers may petition the fiscal court in respect to the budget or any part thereof before final adoption.
You write that the Meade County Fiscal Court published a summary of the budget in your newspaper. Your question is: What is meant by the requirement in KRS 68.260 that the county budget be published pursuant to KRS Chapter 424? In other words, should the county budget be published in full or is the publication of the budget by way of a summary sufficient compliance with KRS 68.260? The proposed budget summary published in your newspaper contained a showing of all major funds, showing a specific breakdown under each major fund by specific amount of money, with a total amount for each major fund. The major funds shown in the summary were: General Fund, Road Fund, Revenue Sharing Fund, and Local Government Economic Assistance Fund.
You refer to OAG 65-131, in which we concluded the statute requires that the county budget, under KRS 68.260, be published in full. We cited in support KRS 424.130(1)(a), KRS 424.190, and
Mahon v. Beuchel Sewer Construction District No. 1, Ky., 355 S.W.2d 683 (1962).
Under the literal and explicit provisions of KRS 68.260, the publication of the budget simply means publication in full, since there is no language in the statute imposing any limitation on the word "published". This meaning will have to stand, unless there is a statute or judicial holding to the contrary.
Justice Perry, in H.O. Hurley Co. v. Martin, 267 Ky. 182, 161 S.W.2d 657 (1937) 660, wrote that "resort to rules of construction may be waived where we find the legislative intent clearly evidenced by the plain and precise words and provisions used by it in enacting the statute, and we are bound by the plain and fair meaning of the language used by it." (Emphasis added).
In addition, the reference to KRS Chapter 424 in KRS 68.260 does not disclose any statute in that chapter providing a definition for "published" other than that suggested in KRS 68.260.
The basic content of a county budget is contained in KRS 68.240. The budget, although the form and classifications of county budgets is under the supervision of the State Local Finance Officer pursuant to KRS 68.250, must contain the budget classification units as covered in KRS 68.240(2) and the amount of funds under each unit actually needed for general and special purposes. In addition, the budget must reflect an estimated statement of receipts to be anticipated for the fiscal year from local, state and federal sources. Under subsection (3) of KRS 68.240, the county budget shall have a fund known as the "sinking fund principal account" and a fund known as the "sinking fund interest account." There shall be allocated annually to the sinking fund principal account a sum equal to the proportional yearly amount necessary to retire each bond issue of the county at maturity, and to the sinking fund interest account a sum equal to the interest on bonded indebtedness payable during the current year. The budget shall include such budget units as may be required by the activities of the county.
Thus any county budget not reflecting the essentials required in KRS 68.240 is simply not a legal budget. In addition, the publication of a county budget not reflecting all of the requirements of KRS 68.240 is simply not a legal publication. The taxpayers under KRS 68.260 have a right to be fully informed about the proposed county revenues and expenditures, including information as to the bonded indebtedness of the county. This means full publication of the budget.
In
Estill County v. Noland, 295 Ky. 753, 175 S.W.2d 341 (1943), the Court of Appeals held that the so called publishing of the county budget in summary was sufficient under KRS 68.260. However, the budget in question contained a showing of estimated receipts and general sources or categories; and it also reflected estimated expenditures under detailed budget classifications. The court said this at page 346:
"The thought running through all the uses of the words 'publish' and 'publication' in such connections is an advising of the public or the making known of something to the public for a purpose and the act is deemed sufficient if it gives notice to the public of any matter desired to be brought to its attention. 50 C.J. 870. Compare
Nichols v. Rogers, 292 Ky. 428, 166 S.W.2d 867. Considering the volume of such budgets we do not think the statute was intended to require that the entire detailed budget be published in a newspaper. It was posted in the court house so that any interested person had the opportunity of examining the details. We think the publication was sufficient."
The interesting and significant point as to the decision in Estill County v. Noland is that the budget published was so nearly complete as to suggest that anything omitted from the publication was philosophical in nature only. It was not a legal omission under the facts of that case, as we see it. Thus the court's saying that only a "summary" of the budget was published does not seem to adequately characterize the basic content of that budget in terms of its mandated content under KRS 68.240. In addition, KRS Chapter 424 legislation was first enacted in 1958, some 15 years after the Estill County case referred to above. KRS Chapter 424 is rather preemptive in nature as concerns legal notices. That chapter contains no limitations on the phrase "published pursuant to KRS Chapter 424", as the phrase appears in KRS 68.260.
CONCLUSIONS
It is our opinion as follows:
(1) The safe procedure is for the county to procure the full publication of the county budget. In that way no vital part of the budget, as mandated in KRS 68.240, will be omitted from publication. The Estill County case is so close to the "budget in full" that we are unable to determine what vital part of the budget, as set forth in KRS 68.240, was omitted from publication in that case. In addition, until the legislature provides by statute for a publication of the county budget by way of a summary (and the statute should set forth explicitly what a summary publication entails), the conservative practice would be to publish the county budget in full. See
City of St. Matthews v. Beha, Ky.App., 549 S.W.2d 842 (1977), in which the court interprets the language "The ordinance shall be published pursuant to KRS Ch. 424." The court held that the publication of notice of passage of the ordinance pursuant to KRS 424.130(1)(a) was sufficient. The court wrote in
Cole v. Stephens, Ky.App., 582 S.W.2d 657 (1979), that the failure to file a proper notice under KRS 424.140(1) is jurisdictional. Also see KRS 424.140(4).
(2) The court noted in effect in the Estill County case that it was not intended that the entire budget be published, especially since the budget was required to be posted in the courthouse such that any interested person had the opportunity of examining the details. However, that line of reasoning fails to note the language of the statute: A copy of the budget to be posted in the courthouse, "and to be published pursuant to KRS Chapter 424." (Emphasis added). The court's reasoning suggests that courthouse posting is a substitute for publication of the complete budget. The clear language of KRS 68.260 suggests otherwise.
(3) KRS Chapter 424 is generally preemptive in the area of legal notices, it being first enacted some 15 years after the Estill County case. Even if the court in Estill County v. Noland believed that KRS 68.260 suggested an alternative as between posting and publication of a county budget, KRS 424.190 expressly abolished any statute deemed to provide such an alternative. The statute says that advertisement shall be made by newspaper publication in accordance with the provisions of this chapter. Nowhere in Chapter 424 are there any provisions permitting publication of a county budget by summary. Finally, note that KRS 424.240 permits the publication of a city (other than a first class city) budget by way of summary. However, KRS 424.250 requires a school district budget to be published in full (publishing a copy of the budget) .
(4) The Kentucky Press Association is correct in construing KRS 68.260 to provide for full publication of a county budget.
(5) KRS 68.260 clearly requires the entire or full budget to be posted in a conspicuous place in the courthouse near the front door. The statutes says: "A copy of the proposed budget to be posted . . ." That can only mean a copy of the budget in full. The court, in Estill County v. Noland, above, so construed the posting to involve the entire budget.