Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron
Attorney General
Capitol Building, Suite 118
700 Capital Avenue
Frankfort, Kentucky 40601
(502) 696-5300
Fax: (502) 564-2894
October 12, 2022
OAG 22-06
Subject:
Whether a Fiscal Court may expend public funds on the
construction and maintenance of pedestrian swinging bridges
located within the Fiscal Court’s jurisdictional boundaries.
Requested by:
Robert Stivers
President of the Senate
Written by:
Carmine G. Iaccarino, Chief of Staff & General Counsel
Jeremy J. Sylvester, Assistant Attorney General
Syllabus:
Under the circumstances described, a Fiscal Court may expend
public funds on the construction and maintenance of pedestrian
swinging bridges located within the Fiscal Court’s jurisdictional
boundaries, so long as those funds are not derived from special
taxes levied for a different purpose.
Opinion of the Attorney General
Historically, swinging bridges have been used throughout eastern Kentucky
for pedestrian travel; they have since become significant tourism draws. In fact, Clay
County is often referred to as the Land of Swinging Bridges, while Pike County willOpinion of the Attorney General 22-06
October 12, 2022
Page 2
2
soon be home to the longest swinging bridge in the United States.1 Kentucky’s
swinging bridges are, and should remain, a point of pride for the Commonwealth.
At issue here is whether a Fiscal Court has the general statutory authority, if
exercised properly, to construct and maintain pedestrian swinging bridges. Our
analysis starts, as always, with the statutory text. KRS 67.083 empowers a fiscal
court to appropriate funds in furtherance of public functions, including:
(f)
Provision of parks, nature preserves, swimming pools, recreation
areas, libraries, museums, and other recreational and cultural facilities
and programs; [and]
(x) Promotion of economic development of the county, directly or in
cooperation with public or private agencies, including the provision of
access roads, land and buildings, and promotion of tourism and
conventions.
KRS 67.083(3)(f), (x).2 Swinging bridges promote tourism, particularly in Clay
County, and are enjoyed by the public for recreational purposes. Accordingly, a fiscal
court has the general authority to expend funds on those swinging pedestrian bridges
made available for public enjoyment.
This Office previously addressed whether certain type of public funds could be
used to construct and maintain swinging bridges. See Opinion of the Attorney
General 83-267 (OAG 83-267). Specifically, OAG 83-267 addressed whether it was
consistent with KRS 68.100 and § 180 of the Kentucky Constitution for local
governments to use taxes levied for county roads to construct and maintain swinging
bridges. As stated in OAG 83-267, Kentucky law prohibits a local government from
1
See
The
Land
of
Swinging
Bridges,
ClayCountyKentucky.org,
https://www.claycountykentucky.org/swinging-bridges-and-barns; see also Graham Shelby, Promoting
Tourism
in
Clay
County,
KENTUCKY
LIVING
(Jan.
7,
2022),
https://www.kentuckyliving.com/explore/promoting-tourism-in-clay-county; Pike County Plan for
Longest Swinging Bridge in U.S. Gets $358,000 Lift, THE LANE REPORT (May 16, 2022),
https://www.lanereport.com/155817/2022/05/pike-county-plan-for-longest-…-
358000-lift/.
2
KRS 67.083(3)(t) provides that the provision of streets and roads, bridges, tunnels, and related
facilities is a public function. KRS 67.083(3)(t). Consistent with the analysis OAG 83-267, as later
explained, a swinging bridge devoted solely to pedestrian traffic is not a “bridge” as that term is used
in KRS 67.083. In addition, KRS 67.083(3)(y) also allows appropriations for the preservation of historic
structures. Although many of these bridges are historic in a generic sense, “historic structures” are
those structures listed on the National Register of Historic Places or those structures located in a
historic district listed on the National Register of Historic Places and certified as contributing to the
historic significance of the district by the Kentucky Heritage Council. KRS 171.396.Opinion of the Attorney General 22-06
October 12, 2022
Page 3
3
levying a tax for one purpose and spending it for another purpose.3 See generally OAG
83-267.
The conclusion in OAG 83-267 turned on whether Kentucky law considers a
swinging bridge to be a “public bridge” or part of a “county road.”4 If so, the
expenditure of county road money on public bridges or county roads likely would have
been lawful. But the opinion found that a swinging bridge was not a “necessary and
integral part of a county road,” nor could an isolated swinging bridge unconnected to
a public highway be considered a “public bridge” under existing case law. OAG 83-
267.5 Therefore, in OAG 83-267 this Office opined that “KRS 68.100 and § 180,
Kentucky Constitution, would prohibit expenditure of county road money on such
swinging bridges.” OAG 83-267 (emphasis added). Although not explicitly stated,
“county road money” referred to funds levied by special tax and designated for county
roads. See KRS 178.210 (discussing special tax for “construction of the public roads
and bridges of the county”); KRS 178.210 (special tax to retire bonds issued to fund
the building of roads (KRS 178.200).
Consequently, a Fiscal Court does not violate KRS 68.100 or Section 180 by
spending general fund money on swinging bridges, provided that the expenditure is
consistent with the Fiscal Court’s approved budget. As explained by the Kentucky
Court of Appeals:
When, therefore, the Fiscal Court accepts the proposed budget and
levies a tax for general fund purposes in accordance with the budget, the
requirement of section 180 that the ‘resolution passed by any county
levying a tax, shall specify distinctly the purpose for which said tax is
levied,’ is satisfied.
3
Section 180 of the Kentucky Constitution provides that “every ordinance and resolution passed
by any county, city, town or municipal board or local legislative body, levying a tax shall specify
distinctly the purpose for which the tax is levied, and no tax levied and collected for one purpose shall
every be devoted to another purpose.” KY. Const. § 180. KRS 68.100 further explains that “[a]ll county
taxes shall be levied by order or resolution of the fiscal court,” that the “purpose for which each tax is
levied shall be specified in the order or resolution,” and that revenue from the tax “shall be expended
for no other purpose than that for which the tax was levied.” KRS 68.100(1).
4
That statute provides: “‘County roads’ are public roads which have been formally accepted by
the fiscal court of the county as a part of the county road system, or private roads, streets, or highways
which have been acquired by the county pursuant to subsection (3) of this section or KRS 178.405 to
178.425. ‘County roads’ includes necessary bridges, culverts, sluices, drains, ditches, waterways,
embankments or retaining walls.” KRS 178.010(1)(b) (cleaned up).
5
OAG 83-267 stated: “[P]ublic bridges have been defined to be such as form part of the highway,
whether foot or vehicular traffic. 11 C.J.S., Bridges §3, p. 985). See Louisville & N.R. Co. v. Muncey,
229 Ky. 538, 17 S.W.2d 422 (1929); and State Highway Commission v. County Board of Education, 264
Ky. 95, 94 S.W.2d 302 (1936).” See also, KRS 189.010 (defining highway as “any public road, street,
avenue or boulevard, bridge, viaduct, or trestle and the approaches to them.”Opinion of the Attorney General 22-06
October 12, 2022
Page 4
4
Nichols v. Henry, 191 S.W.2d 930, 933 (Ky. 1945). In other words, a Fiscal Court need
not levy a special tax for the construction and maintenance of swinging bridges. It
may use general fund dollars for those expenditures if consistent with its approved
budget.
For these reasons, it is the Attorney General’s opinion that, based on the
conditions set forth above, a Fiscal Court may spend public funds for the construction
and maintenance of swinging bridges.
Daniel Cameron
ATTORNEY GENERAL
Carmine G. Iaccarino
Jeremy J. Sylvester