Request By:
Representative Susan Westrom
79th District
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Statutes construed: KRS 100.111(17), KRS 100.361(2), KRS 147A.021(3)(k), KRS 147A.080
OAG's cited: OAG 73-318, OAG 72-366, OAG 73-579, OAG 78-534, OAG 80-472, OAG 80-502, OAG 81-185, OAG 83-460
Opinion of the Attorney General
KRS 147A.050 establishes fifteen (15) area development districts in the Commonwealth, each including multiple counties, to provide assistance to local governments within their geographic areas. Representative Susan Westrom, House District 79, has asked the following questions regarding the authority of an Area Development District:
1. May the Bluegrass Area Development District (Bluegrass ADD) avoid compliance with the land use and zoning laws of the City of Lexington in purchasing, developing and operating an offender re-entry program by claiming to be an "exempted state agency" ?
2. If Bluegrass ADD is a state entity, what information must it provide to the City of Lexington [under KRS 100.361]?
3. Does the Bluegrass ADD have the authority to operate such an offender re-entry program?
We begin with the first question, which requires an interpretation of KRS 100.361.
Relationship of an ADD to local planning units
KRS 100.361(2), which governs construction of planning and zoning laws, provides in part:
Nothing in this chapter shall impair the sovereignty of the Commonwealth of Kentucky over its political subdivisions. Any proposal affecting land use by any department, commission, board, authority, agency, or instrumentality of state government shall not require approval of the local planning unit. However, adequate information concerning the proposals shall be furnished to the planning commission by the department, commission, board, authority, agency, or instrumentality of state government.
The relevant question is whether an area development district ("ADD") is considered a "department, commission, board, authority, agency, or instrumentality of state government" for purposes of this statute.
In our view, the express rationale for the exemption of state agencies from local planning and zoning requirements is that the Commonwealth is sovereign, and thus, when an agency of state government acts, it is the Commonwealth of Kentucky acting. Our analysis, therefore, must focus on whether an ADD is, or is not, the direct instrumentality or alter ego of the Commonwealth.
Our opinions have at times referred to ADD's as being "agencies of state government" for certain purposes. For example, in OAG 72-366 we opined that ADD's were protected by sovereign immunity. At the same time, however, we noted that an ADD "is an independent and autonomous public corporation exercising a function of state government and is not under the day-to-day control of the Central State Government nor operating on funds drawn from the State Treasury. " Id.
We have more frequently described an ADD as "a political subdivision of the state." 1 OAG 73-318; OAG 78-534. Although they exist by authority of state law, "they are at the same time units of local government similar in many respects to municipalities by performing local functions as an arm of the state government. " OAG 73-579.
In OAG 78-534, in the context of incompatible offices, we stated the following:
Under KRS 147A.080, each board of directors of an area development district represents a somewhat independent and autonomous unit of government. ?
?
Thus the area development district is not, strictly speaking, an agency of the state; but it is a political subdivision and a unit of local government. ? An area development district performs a purely local function as an arm of state government, but not as a state agency in the narrow technical sense envisioned in KRS Chapter 12 [administrative organization of state government] . In Hogan v. Glasscock, Ky., 324 S.W.2d 815 (1959) 816, the court wrote that "Chapter 12 of the statutes deals with the administrative organization of state government. The departments and agencies governed by Chapter 12 are specified in KRS 12.020. They are integral parts of the executive branch of the state government created by the Constitution or statute to exercise executive and administrative functions on a state-at-large level.["]
?
[An ADD] is a hybrid and does not fit any of those categories envisioned by our constitution.
(Emphasis added.)
Area development districts are regional by nature, in their territorial boundaries, their interests, and their scope of activity, as well as their nomenclature. Since they function as political subdivisions, and not as agencies of the Commonwealth "on a state-at-large level,"
Hogan v. Glasscock, supra, it is our opinion that an ADD should not be viewed as a "department, commission, board, authority, agency, or instrumentality of state government" for purposes of KRS 100.361(2), and thus is not exempt from the authority of local planning units.
Since our answer to the first inquiry is in the negative, the second question is moot. We therefore turn to the third question, whether an ADD has statutory authority to operate an offender re-entry program.
Authority of an ADD to operate a program
The powers of an Area Development District's board of directors are set forth in KRS 147A.080:
Each board of directors shall have the power and authority to:
(1) Adopt and have a common seal and alter the same at pleasure;
(2) Sue and be sued;
(3) Adopt bylaws and make rules and regulations for the conduct of its business;
(4) Make and enter into all contracts or agreements necessary or incidental to the performance of its duties;
(5) Provide upon request basic administrative, research, and planning services for any planning and development body located within the district;
(6) Accept, receive, and administer loans, grants, or other funds or gifts from public and private agencies including the Commonwealth and the federal government for the purpose of carrying out the functions of the district;
(7) Expend such funds as may be considered by it to be advisable or necessary in the performance of its duties;
(8) Acquire, hold as may be necessary and convenient, encumber, or dispose of real and personal property, except that no board shall have the power of eminent domain;
(9) Charge fees, rents, and otherwise charge for services provided by the board, except that no board shall have any power to levy taxes;
(10) Enter into interlocal agreements or interstate compacts to the extent authorized by laws of the Commonwealth. An area development district organization shall be deemed a "public agency" as defined by the Interlocal Cooperation Act in KRS Chapter 65; 2
(11) Promote, organize, and advise special districts or other authorities in accordance with laws of the Commonwealth and act as the regional clearinghouse for such programs and projects as prescribed by federal regulation;
(12) Perform such other and further acts as may be necessary to carry out the duties and responsibilities created by KRS 147A.050 to 147A.120.
As a general rule, a political subdivision may not exercise powers that are not expressly granted to it by statute.
Pewee Valley Fire Protection Dist. v. South Oldham Fire Protection Dist., Ky. App., 570 S.W.2d 290, 292 (1978). For this reason, we opined that an ADD lacked authorization to manage local government funds for investment purposes, OAG 80-472, or to enact ordinances, OAG 80-502. Similarly, in
Northern Kentucky Emergency Medical Services, Inc. v. Christ Hospital Corporation, 875 S.W.2d 896 (Ky. App. 1993), the Court of Appeals concluded that an ADD could not act as a "legislative body" in support of a license application to provide ambulance services.
In OAG 81-185, this office was asked whether an ADD had the authority to "develop, administer, manage and/or directly operate programs designed specifically to provide direct service delivery to citizens of the Commonwealth." We stated that the provisions of KRS 147A.080 and 147A.090
only empower the ADDs to engage in the work of program development through administrative, research and planning effort, as described in KRS 147A.080(5). We can find nothing in KRS Chapter 147A that would authorize ADDs to administer, manage, implement or directly operate such programs once developed. Such powers would require new legislation.
Thus, we concluded that an ADD lacks the authority to operate a program providing direct services to citizens.
Subsequently, a 1982 enactment, now codified as KRS 147A.021(3)(k), made reference to "memorandums of agreement with the area development districts to provide management assistance to local governments." We therefore revisited the powers of an ADD and concluded that this new provision "would encompass a local government requesting administrative services from an area development district," so that the ADD could indeed "provide management assistance to local governments" pursuant to a memorandum of agreement. OAG 83-460.
Providing management services at the request of a local government, however, is entirely different from independently operating an offender re-entry program. Accordingly, it is our opinion that the conclusions of OAG 81-185 would still apply to this situation, while KRS 147A.021(3)(k) would not. An area development district would therefore lack statutory authority to operate such a program, on its own or on behalf of any other entity, except on behalf of a local government which had requested its assistance through a memorandum of agreement.
Footnotes
Footnotes
1 An ADD obviously would not, however, qualify as a "political subdivision" under the definition in KRS 100.111(17), which limits the meaning of that term to "any city, county, or consolidated local government." Our characterization of the districts as "political subdivisions" in this opinion, therefore, should not be understood as referring to this narrow definition.
2 The definition of "public agency" in KRS 65.320, in harmony with KRS 147A.080(10), includes "any political subdivision" such as an ADD.