Request By:
Ms. Laleah B. Logan
League of Women Voters of Kentucky
3400 Stillwater Road
Lexington, Kentucky 40503
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As Chairperson for Human Resources for the League of Women Voters of Kentucky, you raise the specific question as to whether the fiscal court of a county can levy the health tax mentioned in KRS 212.720 - 212.920, if it is proposed by the Board of Health, without a referendum.
ELECTION FOR CREATION OF PUBLIC HEALTH TAXING DISTRICT.
KRS 212.720 through 212.760 relates to Public Health Taxing Districts. The question of establishing such district, having authority to impose a special ad valorem tax for the maintenance of the local county or city health department and providing that such tax shall not exceed (amount must be inserted on the ballot question) cents on each one hundred dollars ($100) of the assessed valuation of all property in the district, must be submitted to the voters of the county, pursuant to KRS 212.720. If a majority voting on the question votes yes, the Public Health Taxing District shall be so established and shall constitute a taxing district within the meaning of § 157, Kentucky Constitution. The members of the county or city county board of health shall, by virtue of their office, constitute and be the governing body of the public health taxing district, in addition to their duties as members of the county or city-county board of health. Under KRS 212.725, after the health district is created, and if, in the opinion of the county or city-county board of health, the city and county do not appropriate sufficient funds to meet the public health needs of the county or city-county health department or to meet the health standards prescribed by the Cabinet for Human Resources, the local board of health, as the governing body of the health taxing district, shall, with the approval of the Cabinet for Human Resources, impose by resolution a special ad valorem public health tax in any necessary amount, not to exceed the maximum amount approved by the electorate under KRS 212.720. The fiscal court shall, upon receipt of a certified copy of such local health board resolution, include in the next county ad valorem tax levy said special public health tax imposed by the local health board, which shall be in addition to all other county ad valorem taxes.
It must be understood that the special health tax is not constitutionally speaking a part of the county's tax limitation under § 157, Kentucky Constitution and certain statutes.
PUBLIC HEALTH TAXING DISTRICT CREATED BY OPERATION OF LAW IN COUNTIES NOT ELECTING TO CREATE SAME.
In the event an election to create a health taxing district under KRS 212.720 is not held, KRS 212.750 and 212.755 create a public health taxing district by operation of law in every county of the Commonwealth that has not created heretofore such a district (except in Jefferson County). Thus in all counties where a county or city-county health department has been created (except in Jefferson County), and a health taxing district has not been established under KRS 212.720 to 212.740 (election on question), a public health taxing district was created by operation of law upon June 13, 1968. There again the members of the local health board are the governing body of the health taxing district.
Under KRS 212.755, the governing body of the health district shall, under conditions outlined therein, request the fiscal court to impose by resolution a special ad valorem public health tax in such amount as it deems sufficient, but not in excess of four cents (4 ) per one hundred dollars ($100) of full value assessed valuation. The fiscal court may upon receipt of a certified copy of the resolution include such health tax in the next county ad valorem tax levy. Here again, this health tax is not a part of the county's tax limitation under § 157, Kentucky Constitution, since the health district is a separate taxing district.
Note that KRS 212.750 and 212.755 contain no provisions for a vote of the people on the tax.
THE LAW OF ELECTIONS
It is well to keep in mind that the general rule in Kentucky is that elections, including voting on questions such as establishing a health district, cannot be legally held without an affirmative constitutional or statutory authority. Kimbley v. City of Owensboro, 176 Ky. 532, 195 S.W. 1087 (1917) 1989; Jacober v. Bd. of Com'rs of City of Covington, Ky.App., 607 S.W.2d 126 (1980) 127; and Davis v. Water-Sewer and San. Com'n (U.S. Dist. Ct. W.D. Ky. - 1963) 223 F.Supp. 902, 904.
DISTRICT HEALTH DEPARTMENTS
District Health Departments are created, under KRS 212.810 to 212.930, by resolutions of the fiscal courts of the counties desiring to participate in such regional organization. See KRS 212.820, 212.840, and 212.850. When a district department of health is created, all powers and duties of the county boards of health, except as otherwise provided in KRS 212.920, under existing statutes are transferred to the district board of health. KRS 212.850.
The cost of creating, establishing, maintaining and operating such a district health department must be borne by the participating counties on an equitable basis (See KRS 212.840(2)) in proportion to the amount of taxable property in each county, as shown by the respective county assessments. The district health department is the recipient of allotment of funds coming through the Cabinet for Human Resources. KRS 212.850(2) (3) and (4).
It must be noted that a district health department has no power to levy a tax for its operations. See KRS 212.880 and 212.890. KRS 212.920 merely provides that moneys derived from a county public health tax as provided in KRS 212.720 to 212.755 may be expended for the operation and maintenance of a district health department. We are speaking of the public health taxing district moneys arising from such tax.
CONCLUSION
(1) The establishing of a public health district and the special ad valorem public health tax, pursuant to KRS 212.720 and 212.725, requires a vote of the people.
(2) A public health taxing district created by operation of law pursuant to KRS 212.750 and 212.755 and the imposing of a district tax do not require a vote of the people.
(3) A district health department established pursuant to KRS 212.810 to 212.930 has no taxing power, although funds arising out of public health taxing districts' special health tax may be turned over to such district health department.
(4) The voting on governmental questions by the people requires constitutional or statutory authority.