Request By:
Mr. Herman Brockman, Coordinator
Jackson County Fiscal Court
McKee, Kentucky 40447
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 18 in which you initially raise the question as to whether or not a petition may be filed to establish a "nontaxing" volunteer fire department under the provisions of KRS 75.010.
KRS 75.010 authorizes the establishment of either a fire protection department or a volunteer fire department district. Neither district can be established as "nontaxing" for several reasons: The first being that KRS 75.010 does not permit this; and secondly, KRS 75.040 specifically provides that upon the creation of a volunteer fire department district as provided in KRS 75.010 to KRS 75.031, the trustees of such districts are thereby authorized to levy a tax on the property in said district.
Though we do not believe that a so-called nontaxing volunteer fire department district can be established as such, the authority to levy the tax specifically given to the board of trustees of the department under KRS 75.040 is permissive and not mandatory, which would give the trustees the right not to levy any tax whatsoever. This position is further supported by your reference to KRS 75.255(4) which provides that a volunteer fire department district not exercising its taxing authority pursuant to KRS 75.040 shall be exempt from the provisions of this section which involves an annual audit.
You also raise the question as to whether or not a conflict exists between the provisions of KRS 75.010 and KRS 75.025 authorizing the establishment of a county fire protection district.
Our response to your second question would be in the negative as held in OAG 73-509, a copy of which we are enclosing.