Opinion
Opinion By: Chris Gorman, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of November 2, 1992, you ask:
If the school system requests a bus turn-around for their use and benefit only, may they help pay and furnish rock to the County for the placement on the aforesaid turn-around according to the attached intergovernmental agreement?
Your letter was accompanied by an uncompleted form for an easement agreement. The agreement calls for, in substance, the named county to maintain the turn around by placing rock on the property involved, for the convenience of the named county's school bus, and, for the named board of education to "pay and furnish" rock to the named county for placement on the turn around.
For the reasons indicated below, we believe a board of education may not lawfully contribute school funds, or materials acquired with school funds, for construction or maintenance of a school bus turn around. Discussion follows.
Mindful of the financial pressures that perhaps every county in Kentucky faces, because the question you have raised has been informally presented on several occasions, and because the question you have presented in substance has not been addressed in a formal opinion for some years now, we reviewed our prior expressions on this subject, the legal authorities upon which they were based, and also conducted a search for any changes in the statutes or case law that might support a view different than that previously expressed by this office on this topic.
Section 180 of Kentucky's Constitution provides, in part, that ". . . no tax levied and collected for one purpose shall ever be devoted to another purpose."
Section 184 of the Constitution of Kentucky provides, in part, that ". . . any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose."
Section 186 of the Constitution of Kentucky provides, in part, "All funds accruing to the school fund shall be used for the maintenance of the public schools of the Commonwealth, and for no other purpose."
In
City of Louisville v. Leatherman, 99 Ky. 213, 35 S.W. 625, 626 (1896), Kentucky's then highest court upheld a ruling that found, in substance, that a school system could not be required to pay the cost of street improvements for streets abutting school property. The court noted that:
[I]t would seem that the appropriations of any part of . . . taxes which have been devoted to the purposes of the common school system, to the payment either of general taxation for the support of state government, or of special assessments to pay the cost of street improvements, would be an appropriation thereof to another purpose than that of the school system, and therefore forbidden by section 184 of the constitution. [Citations omitted.]
In
Wilson v. Board of Education, 226 Ky. 476, 11 S.W.2d 143 (1928), the Court reversed a lower court ruling to the extent it adjudged that the school board had authority, pursuant to statute, to agree to pay its share of the cost of street improvements. The Court noted that:
Manifestly, if the Constitution forbids the use of the common school fund for the purpose of paying street improvement assessments, the Legislature is without authority to authorize such use.
( Id., 144.)
In Opinion of the Attorney General (OAG) 68-473 (copy enclosed) , this office, citing
Board of Education v. Spencer County, Etc., 313 Ky. 8, 230 S.W.2d 81 (1950), which indicated that the Board of Education could not be required to pay an assessment to help build a flood wall, said that the expenditure of school funds to provide turn arounds where bridges had been condemned or had weight restrictions placed upon them, would offend Sections 180 and 184 of the Constitution of Kentucky.
Some twelve years later, in OAG 80-390 (copy enclosed) we indicated that "For the school board to spend monies for such turn-arounds would amount to a payment for public improvements and thus would be in violation of Kentucky Constitution § 186." We referred readers of that opinion to Spencer County, supra, and, to
City of Louisville v. Leatherman, 99 Ky. 213, 35 S.W. 625 (1896).
In a March 27, 1991, miscellaneous letter (not a formal opinion) to Mr. Howard Wallace, assistant superintendent of the Boyd County Public Schools, and in a March 24, 1992, miscellaneous letter to the Hon. Walter Patrick, of Lawrenceburg, (copies of both enclosed) this office expressed views in keeping with the opinions noted above.
We have not located any case in which Kentucky's courts have addressed the propriety of the use of school funds for construction or maintenance of school bus turn arounds.
From the perspective of statutory authorization, while there is a statute specifically authorizing the fiscal court to build and maintain suitable areas for the safe turning around of school buses (KRS 178.290(2)), there is no statute authorizing school boards to make expenditures of school funds for such purpose. KRS 158.110, for example, the general statute authorizing boards of education to provide "transportation" for certain pupils, does not contain an authorization to use school funds to pay for school bus turn around construction or maintenance. At the same time, KRS 158.115 expressly authorizes counties to supplement the school bus transportation system from their general funds.
The undersigned located several cases in which the application of school funds was questioned and approved.
In
Board of Education of Kenton County v. Talbott, 286 Ky. 543, 151 S.W.2d 42 (1941), the Court upheld payment of school funds for an excise tax on gasoline. The Court indicated:
What are purposes of common school education is a matter of opinion; and, unless the particular item of expenditure is extreme or clearly otherwise, the legislature has the right to declare it to be such purpose. It has provided for the transportation of children to and from the schools, the cost to be paid out of general school funds, and this legislation has not been questioned as being other than legitimate. Transportation by automobile as is contemplated, obviously requires the purchase of motor fuel, and by failing to exclude the specific excise tax from the amount paid therefor, it may be said that the legislature intended that it shall be included as a part of the cost of the transportation and therefore it should be regarded as an appropriation by the legislature of a portion of the school fund for that purpose.
(Id., 45-46, emphasis added.)
In
Bronaugh v. Murray, 294 Ky. 715, 172 S.W.2d 591 (1943), the Court upheld the use of school funds to pay the cost of liability insurance required by statute of contract school bus operators. In disposing of the contention that such cost would violate section 184 of the Constitution, the Court stated that: "The carrying of liability insurance is an expense incident to a rational program of school transportation. " Id., 592.
In
Bd. of Educ. v. Lexington-Fayette Urban Co. Gov., Ky.App., 691 S.W.2d 218, 220 (1985), the Court of Appeals adopted as its opinion, that of the trial judge, which upheld payment of sewer user charges from school funds. In that opinion it was stated:
'[I]t is the opinion of this Court that the applicability of Sections 180, 184 and 186 to the issue of whether a sewer user charge can be paid from school funds must be determined by a reasonable interpretation of whether the service or commodity provided is necessary for the maintenance of the public schools and is exclusively for the benefit of the public schools. No one could seriously argue that providing electricity, water and other utilities were not necessary. By a system of metering the exact amount used by the school it can be determined, for all practical purposes, the the use is exclusively for the benefit of the school.'
(Emphasis added.)
Upon review of the authorities noted we believe our earlier opinions are correct in the determination that school funds cannot be spent for school bus turn arounds.
First, there are three Constitutional provisions (§ 180, 184, 186) that have been construed as meaning that money collected for the purposes of education in the common school system cannot be spent for any other purpose.
Second, there is no express statutory authorization for a school board to expend school funds for construction or maintenance of school bus turn arounds, while at the same time there is express authority for such expenditures by a fiscal court. Cf., Talbott, supra.
Third, we have not found a decision of Kentucky's highest court, or for that matter the current Court of Appeals, which would support a change in the view expressed in our previous expressions on this subject. In Talbott, and Bronaugh (both above), the payments approved were in connection with statutory requirements, and in the Urban County case, the payment approved was exclusively related to the operation of the school facilities themselves. To paraphrase the
Court in Board of Education of Madison County v. Wagers, Ky., 239 S.W.2d 48, 49 (1951), the history of the Court's decisions indicate it will jealously guard school funds from diversion, even for laudable purposes.
School bus turn arounds, serving as they do as an enhancement to the county roads, are perhaps more closely related to the county road system than they are to the school system. In Spencer County, supra, it was said:
The test is, what constitutes an educational purpose within the meaning of Section 184 of the Constitution, rather than whether an activity might be beneficial to education.
Id., 83.
Unquestionably a school bus turn around may be beneficial to the educational system in aiding the transportation of students to the schools, but the purpose of them is not educational. Further, once a school bus turn around is constructed, it might be used by the general public, and thus might not be "exclusively for the benefit of the public schools. " Cf., Lexington Fayette Urban Co. Govt., supra, and OAG 68-473.
For the reasons indicated, in our view a school board cannot lawfully agree to provide materials paid for with school funds, or provide school funds themselves, whether under an intergovernmental agreement or otherwise, for the construction or maintenance of school bus turn arounds within the meaning of KRS 178.290(2). Constitution of Kentucky §§ 180, 184, 186, OAG 68-473, 80-390.
The Anderson Fiscal Court might want to obtain judicial confirmation of the correctness of our view, by way of a declaratory action, or might want to seek legislative action defining school bus turn arounds as a necessary expense incident to the school bus transportation system.