Request By:
Walter R. Butt, III, Esq.
835 West Jefferson Street
Suite 207
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising numerous questions concerning a fire protection district organized pursuant to KRS Chapter 75. Your first question relates to the discipline of the fire fighters of the fire protection district.
A dispute arose between commanding officers and various volunteer firefighters involving such matters as operation of the district, conditions at firehouses, promotions and training. Several of the firefighters stated they would not respond to fire calls until senior administrators of the fire districts listened to their complaints. Subsequently, without notice of a hearing or of formal charges against them, the secretary of the fire district placed the firemen on "indefinite suspension. " Your first question is as follows:
"Would the suspension or dismissal of a member of a fire district by the Board of Trustees, chief, assistant chief, or other officers, without formal notification of charges against such officer or a hearing or other procedures set forth in KRS 75.130 and 95.450 violate the due process rights of such dismissed or suspended firefighters? "
KRS 75.130, dealing with the discipline of members and employes, provides in part that the board of trustees, when disciplining members and employes of the fire protection district, shall be governed by the same procedures provided for in KRS 95.450 in cases of the discipline of members of the police and fire departments in cities of the second and third classes. KRS 95.450 states in part that except as provided in subsection (5) of the statute, no members of the fire department shall be reprimanded, dismissed, suspended or reduced in pay or grade for any reason except inefficiency, misconduct, insubordination or violation of law or of the rules adopted by the legislative body, and only after charges are preferred and a hearing conducted. Charges must be written and clearly set forth and the persons accused must be notified of the charges and the hearing date at least two days before the hearing is held.
The only disciplinary action that the board of trustees can take against firefighters of the fire protection district is that set forth in KRS 95.450 and it must be done pursuant to the terms and provisions of that particular statute which requires the bringing of charges, informing the person of the charges against him and the holding of a hearing in connection with those charges. See OAG 72-849, copy enclosed, and Abney v. City of Winchester, Ky. App., 558 S.W.2d 622 (1977), holding that after a proper hearing was conducted, striking firefighters could be legally discharged for misconduct. Other cases dealing with the application of KRS 95.450 include Reed v. City of Richmond, Ky. App., 582 S.W.2d 651 (1979); City of Richmond v. Howell, Ky., 448 S.W.2d 662 (1969) and City of Glasgow v. Duncan, Ky., 437 S.W.2d 199 (1969).
You next present a series of questions concerning the financial records of a fire district. You refer to KRS 424.220 (publication of financial statements) and KRS 75.255 (annual audit and audit report) . You ask whether KRS 424.220 applies to a fire protection district established pursuant to KRS Chapter 75.
KRS 424.220 applies to fire protection districts organized pursuant to KRS Chapter 75. KRS 75.255(5) states that the provisions concerning the annual audit and audit report shall not relieve any fire protection district from complying with KRS 424.220. The provisions of KRS 424.220 state in part:
". . . every public officer of any school district, city, county, or subdivision or district less than a county, whose duty it is to collect, receive, have the custody, control or disbursement of public funds, and every officer of any board or commission of a city, county or district whose duty it is to collect, receive, have the custody, control or disbursement of funds collected from the public in the form of rates, charges or assessments for services or benefits, shall at the expiration of each fiscal year prepare an itemized, sworn statement of the funds collected, received, held or disbursed by him during the fiscal year just closed. . . ."
You ask whether a statement of cash receipts and cash disbursements prepared by a firm of certified public accountants concerning the fire protection district (your exhibit 7) would satisfy the requirements of KRS 424.220.
KRS 424.220 places the burden for preparing and publishing the required financial statement upon the officer of the district whose duty it is to collect, receive, have custody, control or disbursement of public funds. The officer's responsibility for the financial statement required by KRS 424.220 is a separate and distinct matter from the requirements pertaining to the audit and the audit report. The officer required to prepare and publish the financial statement involved in KRS 424.220 cannot escape his statutory duty by publishing a copy of the C.P.A.'s audit. See OAG 79-103, copy enclosed, at page two.
You next ask whether the failure to properly publish the financial statement required by KRS 424.220 and the failure to comply with the auditing requirements of KRS 75.255 constitute separate violations for computing penalties under KRS 424.990.
KRS 424.990 sets forth the penalties for violations of KRS Chapter 424 which, of course, includes KRS 424.220. KRS 424.990, however, does not set forth penalties for violations of KRS 75.255. We cannot find any provision in KRS Chapter 75 or in KRS 75.255 itself providing penalties for those who do not comply with the auditing requirements. As we said in OAG 77-550, copy enclosed, at page two, "A mandamus action in circuit court is also an 'appropriate remedy to compel a recalcitrant officer to perform a merely ministerial duty which the law requires at his hands.'"
You next refer to KRS 75.255(2) which requires in part that a copy of the audit report be posted for not less than thirty days. You ask where the copy should be posted to comply with the statutory requirements.
The statute does not specifically state where the copy of the audit report should be posted. However, in our opinion, since a copy of the audit is being sent to each county clerk within the fire protection district for the purpose of having it as part of the public records which shall be open for inspection, it would be sufficient to post the copy of the audit report on the bulletin board in the county courthouse. In further support of our conclusion we direct your attention to McQuillin Mun.Corp. (3rd Ed.), Vol. 10, § 29.59 (Posting Notices) where the following appears:
"Sometimes the advertisement is required to be posted as well as published in a newspaper. If the publication in a newspaper and by posting notices is required, a failure to post the notices invalidates subsequent proceedings. Bulletin boards in the courthouse and city hall and at the corner of public streets constitute public places within the meaning of a charter provision relating to posting of notices. "
Finally, in Tinsely v. Majorana, Ky., 240 S.W.2d 539 (1951), the Court said the word "post" when used with reference to a notice, means to attach to a post, a wall, or other usual place of affixing public notices to bring the matter to the attention of the public.
Your next question concerns the compensation of the board of trustees of the fire protection district. You cite KRS 75.260 (1) which states:
"The board may fix the respective salaries of its members on a per meeting basis not to exceed twenty-five dollars ($25.00) per meeting and not to exceed one (1) meeting per month."
You maintain that the board of trustees of a particular fire district provides certain trustees with free gasoline, free use of automobiles and all-expenses paid trips for trustees and spouses from funds the fire district obtained from property taxes levied in the district. The question you ask is whether providing such benefits constitutes "compensation" in excess of the amount authorized by statute.
In connection with compensation over and above the fixed per-meeting salaries, we direct your attention to OAG 76-506, copy enclosed. The statute deals only with salaries and no expenses are mentioned. However, in our opinion, board members may recover their actual and necessary expenses in carrying out their statutory duties. This could include gasoline and oil reimbursement or a reasonable mileage factor, where a private car is used, and the cost of meals. Official expenses of board members can be legitimate expenses of the fire district but such actually incurred expenses should be documented in a proper manner as set forth in the authorities listed in the above-mentioned earlier opinion of this office.
Your last question concerns KRS 75.260(2) which states:
"The board shall meet at least once a month at a time and place designated by the board and all meetings, except executive meetings, shall be open to the public."
You ask whether a fire protection district is a "public agency" within the meaning of the provisions dealing with "Open Meetings of Public Agencies" and, therefore, subject to the provisions of KRS 61.805 et seq. despite the wording of KRS 75.260(2).
By definition an executive session or meeting is a closed session or meeting of a legislative or other body (Webster's Third New International Dictionary, 1963). Thus, KRS 75.260(2), in reality, is saying that all meetings of the board, except closed meetings, are open meetings. Under the above-mentioned statute, there are no restrictions at all on the types of meetings that can be conducted in private and the board, merely by calling a meeting an executive meeting, can conduct a secret meeting. The statute, if literally construed, leads to an unsound conclusion. See Pewee Valley Fire Protection District v. South Oldham Fire Protection District, Ky. App., 570 S.W.2d 290, 292 (1978).
In our opinion a fire protection district, which has been described as "a type of municipal corporation," Kelley v. Dailey, Ky., 366 S.W.2d 181 (1963), is a "public agency" within the meaning of KRS 61.805(2). The meetings of the board of trustees of a fire protection district organized under KRS Chapter 75 are public meetings, open to the public at all times, unless the particular meeting comes within one of the exceptions to the open meetings provisions as set forth in KRS 61.810.