Request By:
Mr. William S. O'Daniel
Commissioner
Department for Local Government
909 Leawood Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Department for Local Government assists counties in the administration of the Coal Producing Counties Development Fund, KRS 42.300.
A recreation project consisting of two outdoor fenced tennis courts and one outdoor basketball court has been selected and approved for approximately $40,000. None of the money has been spent.
The central question is: What, if any, changes can the fiscal court make in an approved project without going through the public hearing process as outlined in the regulations? The changes you refer to involve changing the number of tennis courts, changing to one basketball diamond, changing the location of the project, changing to public building renovation. KRS 42.300(4) provides that the Finance Department shall promulgate regulations governing expenditure of the coal producing county development fund and establish audit guidelines. No allocation of such money shall be made to a county failing to comply with such regulations and guidelines.
The regulations require a fiscal court, in submitting a project for approval, to first hold a public hearing, such that the general public is adequately apprised of the nature and extent of the proposed project.
We consider the public hearing to be a condition precedent to the actual submitting of the project to the Department of Finance for approval. Even though this particular project was approved prior to the public hearing, pursuant to KRS 42.300(3), we do not construe such approval as negating or waiving the public hearing requirement of the regulations. Such requirement was for the benefit of the people of the county. These proposed substantial changes cannot be effected, under the guise of the department's prior approval of the project, until and unless the proposal goes through the machinery of the public hearing. See 200 KAR 4:010, Section 5. The "public hearing" aspect of the subject regulations actually parallels portions of Section 5, 200 KAR 4:010.
Administrative regulations properly adopted and filed have the force and effect of law. KRS 13.082 et seq., and Reitze v. Williams, Ky., 458 S.W.2d 613 (1970). Of course the power of the Department of Finance to adopt regulations in this regard is limited to a direct implementation of administration of the functions and duties assigned to that department by statute. Kentucky Ass'n, Etc. v. Jefferson Cty. Medical Soc., Ky., 549 S.W.2d 817 (1977) 821.
Here the regulation relating to the public hearing is properly an implementation of the department's statutory function.