Request By:
William Kelley
Mayor, City of Middlesboro
Opinion
Opinion By: JACK CONWAY, ATTORNEY GENERAL; Matt James, Assistant Attorney General
Statutes construed: KRS 65.240; KRS 82.082; KRS 178.010(1)(b)
OAGs cited: OAG 80-642; OAG 83-340
Opinion of the Attorney General
William Kelley, Mayor of Middlesboro, has requested an opinion from this office on whether a third class city in Kentucky may expend significant funds to maintain that portion of a waterway that continues beyond its corporate boundaries. Mayor Kelley informs us that the Army Corps of Engineers had previously completed a flood control project in the Yellow Creek area, beginning from the south limits of Middlesboro and continuing to a point approximately five miles north of the city limits. Middlesboro had entered into a contract with the Army Corps of Engineers to provide funds for the portion of the project within its boundaries, but not for the entire project. The Inspection of Completed Works program, a subdivision of the Army Corps of Engineers, is now requiring Middlesboro to bear the costs of maintaining the entire area covered by the project, including the area outside its city limits. Failure to do so may result in an unacceptable rating, which could result in removing Middlesboro from the federal Inspection of Completed Works program. We advise that a city may not unilaterally expend funds to maintain an area not within its boundaries, although it may join with another public subdivision with jurisdiction over the area in expending funds to maintain the area. Accordingly, a federal agency may not require a city to maintain a waterway that is not within the city's boundaries, and may only require the state political subdivision with jurisdiction over the waterway to maintain it, provided the federal agency has the authority to do so.
"A municipal corporation possesses no powers except those expressly granted or those essential to the accomplishment of its declared objectives and purposes."
City of City of Bowling Green v. Gasoline Marketers, Inc., 539 S.W.2d 281, 284 (Ky. 1976). The primary grant of authority to cities is the "home-rule" provision of KRS 82.082, which provides that "A city may exercise any power and perform any function within its boundaries? that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute." There is no grant of authority for a city to perform any function outside of its boundaries, so a city may not perform any function outside of its boundaries without express statutory authorization. However, KRS 65.240 provides that "Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state." So if some state agency may validly exercise a power, another state agency may exercise that power jointly with it.
In OAG 80-642 and OAG 83-340, we addressed the issue of whether a county may expend funds to maintain a bridge that is located entirely in another county. In both opinions, we advised that a county may not unilaterally spend money to maintain a bridge in another county, but the two counties could enact an interlocal agreement to jointly expend funds to maintain the bridge. Although those opinions dealt with the authority of counties over bridges, and not cities over waterways, OAG 83-340 applied the definition of county roads in KRS 178.010(1)(b), which provides that "'county roads' includes necessary bridges, culverts, sluices, drains, ditches, waterways, embankments or retaining walls. While there are no parallel provision for cities, KRS 178.010(1)(b) indicates that waterways are to be treated as other public roads, and the reasoning of OAG 80-642 and OAG 83-340 that a county may not unilaterally expend funds to maintain roads in other counties should similarly apply to cities. Therefore, a city may not unilaterally expend funds to maintain waterways outside its boundaries without express statutory authorization; the obligation to maintain an area of a waterway must fall on the public agency that contains the area within its boundaries. However, a city may enter into an interlocal agreement with the public agency that contains the waterway within its boundaries to expend funds for the maintenance of the waterway.
Since a city cannot make a unilateral expenditure of funds to maintain a waterway outside its boundaries, federal authorities may not compel a city to do so because the action would be ultra vires. "How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself."
Highland Farms Dairy v. Agnew, 300 U.S. 608, 612 (1937). It is a state's prerogative to determine the jurisdiction of its political subdivisions. "Unless a statute expressly provides otherwise, the exercise of a police power by a municipality is limited to its territorial boundaries."
Smeltzer v. Messer, 225 S.W.2d 96, 97 (Ky. 1949). Federal agencies acting under valid authority may compel state agencies to perform actions within their jurisdiction, but they cannot compel a state agency to perform an ultra vires action in the absence of statutory authority to do so. We are not aware of any statute or regulation allowing the Army Corps of Engineers to order a municipality to pay the cost of maintaining territory that is not within its borders. Assuming the federal agency has valid authority, it may compel the state political subdivision that contains the waterway within its boundaries to perform the maintenance of the waterway, but it may not compel not state political subdivisions that do not have jurisdiction over the waterway to do so.
In sum, a city may not unilaterally expend funds for the maintenance of a waterway that is not within its boundaries, although it may enter into an interlocal agreement with the political subdivision that has the waterway within its boundaries to maintain the waterway. A federal agency seeking to compel maintenance of the waterway under valid authority must compel the political subdivision that has jurisdiction over the waterway.