Request By:
Sandra Mendez-Dawahare
Landrum, Shouse & Patterson
200 Security Trust Building
Short & Mill Streets
Lexington, Kentucky 40507
Opinion
Opinion By: David L. Armstrong, Attorney General; Martin Glazer, Assistant Attorney General
This is in reply to your letter of October 10, 1986, seeking an Opinion of this office as to whether the Lexington-Fayette County Airport Board is subject to the Prevailing Wage Law and must pay such wages on construction projects or whether it is a subagency of the Lexington-Fayette Urban County Government and, as such, exempted from such requirement.
You advise that the Labor Cabinet has concluded that the terminal addition construction to the Blue Grass Airport was subject to such wages but you believe that it is not so subject.
The Kentucky Prevailing Wage Law is codified in KRS 337.010(3) and (4), KRS 337.505 to 337.550 and certain penalties found in KRS 337.990(7), (8), and (9), and requires the payment of certain specified minimum wages on public construction.
In the last several years, the law has been reduced in scope, excluding the necessity for the payment of such wages in certain local construction projects.
For example, KRS 337.010(3)(e) defines "public works" as including:
. . . all buildings, roads, streets, alleys, sewers, ditches, sewage disposal plants, waterworks and all other structurea or works except for buildings constructed as institutions of learning constructed under contract with any public authority. However, the provisions of this section shall not apply to construction conducted by a city, county, urban-county government or school district unless such construction is financed with fifty percent (50%) or more of state funds. (Emphasis supplied.)
So, the issue is, "What is the Lexington-Fayette Urban County Airport Board? Is it a subagency of Lexington-Fayette Urban County Government, or is it an independent local governmental entity? Is it a county or a city?" If it is a county, city, or urban county government, the exclusion of KRS 337.010(3)(e) applies. If it is not, prevailing wages must be paid on the project.
You cite, in support of your position, a recent decision of the Kentucky Supreme Court, styled Bernard v. Russell County Airport Board, 85-SC-500-DG, decided September 25, 1986, 33 KLS 21.
The Labor Cabinet has depended upon
Louisville Water Company v. John Calhoun Wells, Commissioner of Labor, Ky., 664 S.W.2d 515 (1984), in support of its position.
We have researched additional resources, to wit:
Gray v. Central Bank & Trust Company, Ky.App., 562 S.W.2d 656 (1978);
INCO LTD v. Lexington-Fayette Urban County, Ky.App., 705 S.W.2d 933 (1986); OAG 80-333; OAG 80-117.
The case cited by you, Bernard v. Russell County Airport Board is not final. Some of the parties have petitioned for modification of the Opinion and such is still pending at the time of the writing of this Opinion. But, assuming that the Opinion is not modified at all, we have some questions as to whether it can answer the basic issue here posed.
In Bernard, the Court was concerned with whether the Russell County Air Board had authority to condemn land and whether it was a legally constituted organization. The Court determined "No" in both instances.
As dictum, the Court stated, "The Russell County Air Board is not independent, but is an agency of the Russell County Government, which must comply with the procedures for condemnation set out in KRS 416.560." (Slip Opinion, page 6). So, there the Court was not interpreting the Prevailing Wage Law, but dealing with specific statutes concerning the power to condemn.
In
Louisville Water Company v. Wells, supra, the Court stated, "We agree with the Louisville Water Company that it is an agency of the city of Louisville, but we cannot agree that it is a 'city' within the meaning of KRS 337.010(3)(e). Therefore, it is not entitled to the exemption. "
In OAG 80-117, this office determined that an air board organized pursuant to KRS 183.132 was required to comply with the Kentucky Model Procurement Code dealing with procurement by a local public agency and stated, "An air board is a body politic and corporate with the usual corporate attributes. It is an independent corporate entity and a public or governmental board."
In OAG 80-333, this office was called upon to determine whether the Lexington-Fayette Urban County Airport Board was subject to Sections 157 and 158 of the Constitution of Kentucky dealing with indebtedness and maxiumum tax rates for cities, towns, counties, taxing districts, and "other municipalities" and, in doing so, examined the legal nature of your airport board.
We stated, in part:
The Lexington-Fayette Urban County Airport Board is a public or municipal corporation and an instrumentality of the Commonwealth. . . . As a municipal corporation it possesses only such powers as the Constitution and the General Assembly has expressly or impliedly granted.
In
Gray v. Central Bank & Trust Company, supra, suit was brought against the members of the Lexington-Fayette Urban County Airport Board because of statements made by one member and contesting of the awarding of a contract to another bidder.
The Court noted that legislative status has been granted to city-county air boards by KRS 183.132, to wit:
(1) Any city or county acting jointly, or in any combination of two or more cities and/or counties may establish a nonpartisan airboard composed of six members.
(2) The board shall be a body politic and corporate with the usual corporate attributes, and in its corporate name may sue and be sued, contract and be contracted with, and do all things reasonable or necessary to effectively carry out the duties prescribed by statute. The board shall constitute a legislative body for the purposes of KRS 183.630 to 183.740. (Emphasis, the Court's),
Since the Board had legislative status, its members had absolute legislative immunity from suit. "Thus, it is the opinion of this Court that the air board is a legislative body and as such its members are granted absolute immunity for statements made while acting within the scope of the duties imposed upon them by statute." (562 S.W.2d 658).
In
INCO, LTD v. Lexington-Fayette Urban County Airport Board, supra, the question arose as to whether the Board was immune from suit under sovereign immunity. If it was a city, sovereign immunity did not exist. The Court determined that the Board was a county agency and, thus, was cloaked with sovereign immunity.
In that case, Judge Wilhoit concurred in the result, to wit:
. . . I cannot agree with the majority opinion insofar as it holds that the Lexington-Fayette Urban County Airport Board is a unit of the urban county government. By virtue of KRS 183.132(2) the appellee air board is a "body politic and corporate with the usual corporate attributes." As a "body politic and corporate," the board is plainly not a unit of urban county government, but an independent entity which performs designated governmental functions including limited legislative functions."
In his view, the entity "constitutes a quasi-municipal corporation." (705 S.W.2d 935).
The aforecited case law is inconsistent in determining what this Board is. The courts have made their decisions based on the narrow question to be decided and except for the Louisville Water Company case were not concerned with Prevailing Wage Law.
If the airport board is not a separate entity and is just a mere subagency of the Lexington-Fayette Urban County Gobernment and at the same time is a "legislative body, " then the Lexington-Fayette Urban County Government has two legislative bodies -- the urban county government's council and the airport board.
Such an interpretation can only reach an untenable and ridiculous result.
The general rule of statutory construction is that enumeration of particular things excludes other items which are not specifically mentioned.
Louisville Water Company v. Wells, Ky.App., 664 S.W.2d 525 (1984).
Another statutory construction rule is that exemption provisions should be strictly construed.
Walling v. Howe Loose Leaf Tobacco Warehouse Company, 51 F. Supp. 914 (D.C. Ky., 1943).
In the Louisville Water Company case, the Court agreed that the Louisville Water Company was an agency of the city of Louisville, but being such did not exempt it from prevailing wages, since it was not a city within the meaning of KRS 337.010(3)(e). "Therefore it is not entitled to the exemption. " (664 S.W.2d 526).
Whether the Board is a subagency of urban county government or a separate local governmental entity, it, itself, is not a city, not a county, and not an urban county government. (While a city is a municipal corporation, not all municipal corporations are cities.)
Therefore, considering all the aforesaid, it is the opinion of this office that, for purposes of the Prevailing Wage Law, the Lexington-Fayette Urban County Airport Board is not excluded or exempted from the payment of prevailing wages pursuant to KRS 337.010(3)(e). It is not a city, not a county, not an urban county government. It is not exempted under the statute.