Request By:
Honorable E. Preston Young
Attorney at Law
722 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
In your capacity as legal counsel for the Jefferson County Board of Education you have asked the Office of the Attorney General for an advisory opinion regarding the leasing of school board property. You stated liability questions have developed due to requests having been made by youth groups who desire to use a school gym after school hours. You continue that the board's concerns center around (1) payment of rental charges for such use; (2) making certain that the use of school facilities by the neighborhood or other groups is properly supervised, and (3) protection of the board of education in the event of a claim by the board for property damage and/or claim for personal injury resulting from the use of school property by the youth group.
You noted that in relation to rental charges the staff of the school system has determined that with respect to certain school properties, the cost of supplying a qualified employee to be in charge of the property while in use by nonschool groups, along with the cost of fuel, lighting, etc., would average approximately $85 per day. You continued that realistically, this amount would probably be beyond the capability of many groups to afford and actually result in exclusion of use by such groups. You stated that the board, in making such a charge for the use, would not be attempting to make a profit on the rental but feels that it must set an amount that will compensate the board for the actual cost of the operation of the building.
You have asked this office to render an advisory opinion or a suggested policy for the board of education to adopt regarding this entire matter. In order to put the issues you have presented in proper perspective, we believe a brief review of the pertinent statutory provisions is in order. KRS 160.290 provides, as a part of the general duties and powers of a local board of education, that the board is to "have control and management of . . . all public school property of its district . . . ." The board is required to adopt rules and regulations on the "management of the public schools and school property of the district . . . ." KRS 160.290(2).
A local board of education is also directed specifically to adopt various policies, part of which are to address the "limits or restraints on use of school facilities." KRS 160.340(2)(c).
The last provision is KRS 162.050 which reads as follows:
"The board of education of any school district may permit the use of the schoolhouse, while school is not in session, by any lawful public assembly of educational, religious, agricultural, political, civic or social bodies under rules and regulations which the board deems proper."
Thus, it is clear, as you noted in your letter, a local board of education has the lawful authority and duty to prescribe the manner in which school buildings and facilities may be used by groups during nonschool hours.
The Kentucky Court of Appeals, in Hall v. Shelby County Board of Education, 472 S.W.2d 489, 490 (1971), stated on this issue as follows:
"The use of a school building by civic organizations at such time as the building is not needed for school purposes is a matter that addresses itself to the Board of Education and is a use authorized by KRS 162.050. School buildings are constructed with public funds and are dedicated to public use, but there appears no sound reason why, when such buildings are not needed for school purposes, the Board of Education might not permit their use for other purposes, provided the Board of Education deemed it to be the best interest of the community to do so. The school board had such authority. As to the wide authority of school boards see
Brown v. Bailey, 238 Ky. 287, 37 S.W.2d 58."
One of the concerns of the board of education you expressed in your letter was the need for rental charges for the use of a school facility, such as a gymnasium. While the terms "rental" or "leasing" of the school facilities are not legally incorrect, we believe under the circumstances of the use of school property by outside groups during nonschool hours, we are really simply talking about the charging of a "use fee." This office has always advised school systems of the necessity of charging fair market value in the leasing of real property. See, for example, OAG 76-610 and OAG 73-177, copies attached. However, the leasing of school property under consideration in those opinions was for surplus school property not being used for school purposes. This was also the situation reviewed in
Hall v. Shelby County Board of Education, supra.
We have found no advisory opinion of this office wherein it was concluded that a board of education was required to charge a "use fee" for the use of school facilities. In 1955 OAG 35,619, copy attached, we stated: "The use of the building by this type of organization would not constitute the renting of same as the term is generally construed, although the board by proper regulation would be able to charge a fee covering the cost of lights, etc." (Emphasis added.) We also concluded, admittedly with other factors involved, in OAG 76-592, copy attached, that the expenses attendant to opening schools to serve as a voting place was so small and incidental as to not be proscribed by the education sections of the Kentucky Constitution, 180, 184 and 186. We do not believe it is a prerogative of this office to suggest to a local board of education whether a satisfactory policy may be developed which will afford the desired supervision, the granting to another other than a school employee, the authority to open and close a school building, or any other aspect which contributes to the estimated cost involved in permitting groups to use a school building during nonschool hours. We would hope such a policy could be promulgated so that there may realistically, from an affordability perspective, and also legally, continue to be a use of school property for public purposes as envisioned by the law in KRS 162.050, supra.
In considering your last issue of protection of the board of education if groups do use school facilities, we obviously presuppose the problems discussed above can be worked out. You noted in this regard that the real question here is whether permission to use the school property after school hours would likely be considered by a court as a governmental use in the event of personal injury or property damage occurring while the property is being used by such a group. We considered this question in OAG 62-850, copy attached. Although we acknowledge in that opinion that there has been no Kentucky decision to support the conclusion, we stated: "It is the general rule that a board of education, in permitting a third person or association to use school premises, when not needed for school purposes, for public lectures, concerts, or related events, is engaged in a governmental function, because such use is not out of harmony with school purposes generally, but actually stimulates interest in the school and school programs, and in the absence of statute, the school board is immune from liability for injuries sustained by a member of the public while attending said function or event." See also, generally, 37 ALR3d 712, "Tort Liability of Public Schools and Institutions of Higher Learning for Accidents Occurring During the Use of Premises and Equipment for Other Than School Purposes." We do believe the added factor for consideration which did not exist when OAG 62-850 was written is the enabling language in KRS 160.160 for "expend(ing) funds necessary for liability insurance premiums and for the defense of any civil action brought against an individual board member in his official or individual capacity, or both, on account of an act made in the scope and course of his performance of legal duties as a board member. . . ." This liability insurance is to cover the board members individually as is necessary in view of the fact that a local board of education is protected by the doctrine of sovereign immunity from any liability. See
Knott County Bd. of Ed. v. Mullins, Ky. App., 553 S.W.2d 852 (1977).
We also bring to your attention in passing that school systems which have been involved in agreements for the development and maintenance of school property for recreational facilities for school and community purposes, KRS 160.293, have been routinely putting language in these agreements that the lessee (the fiscal court or municipality) would assume all liability for injury to persons or property by reason of its use of the leased premises and that the lessee would indemnify and save harmless the lessor (board of education) from any loss or damage thereby.
We recognize our responses to your quite legitimate questions have not definitively answered all of the problems that exist on this matter. We do trust some of the information and references will be of help to you in advising and working with the Jefferson County Board of Education toward permitting the use of school property when being used for other than school programs during nonschool hours.