Request By:
Mr. Challen P. McCoy
Nelson County Attorney
113 W. Stephen Foster Ave.
Bardstown, Kentucky 40004
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion concerning the establishing of district health departments pursuant to KRS 212.810, et seq. The question is as follows:
"As an 'incentive' to join a district health department, the state is withholding 25% of its funding in counties that do not plan to join district. Nelson County has not chosen to join a district at this point in time. The legality of the state's action in withholding 25% of unrestricted funds was questioned and discussed at the meeting also. Therefore the board is requesting that you, as our legal representative, request an Attorney General's Opinion on the legality of withholding state appropriations as an incentive to go into regions."
The establishment of district health departments is covered in KRS 212.850. Although the Department for Human Resources is required annually to allot to each such district health department a "just and equitable share" of state appropriations available for such districts, subsection (3) of the statute states explicitly that "the legislative intent being hereby declared to be that districts shall provide, from local sources of revenue that are available to them, financial support of district health departments to the extent of their respective abilities."
However, your question relates to Nelson County, which does not at this time desire to join in the establishing of a district health department, but which desires to retain its county health department, as described in KRS 212.040. That statute requires the county to maintain the county health department with funds of the county, even if a special ad valorem tax becomes necessary. We refer to a special tax legally permissible under the county's tax levying maximum authority in § 157 of the Constitution and the tax rate restrictions in the statutes (see KRS Chapter 132 and City of Ashland v. Webb, Ky., 470 S.W.2d 604 (1971).
KRS 212.120(2) provides in part that where the D.H.R. finds that a county health department has been established in accordance with the provisions of KRS Chapter 212 and is being maintained and operated in accordance with standards prescribed by the D.H.R., that department shall allot annually to such county health department a "just and equitable share" of state appropriations available for such county health departments, provided, however, that no such county health department allotment shall be less than two thousand five hundred dollars ($2,500).
It is our opinion that, where a county wishes to retain a county health department and does not wish to join a district health department, the allotment of state appropriations to that county health department must be made strictly under the guidelines expressed in KRS 212.120. Thus the minimum of $2500 must be observed; however, the main thrust of KRS 212.120 is that such county allotment must be effected as "a just and equitable share" of such available appropriations. (Emphasis added). If the blanket D.H.R. policy is to withhold 25% of what a county might otherwise get for its single county health department, and that policy is applied to your situation, that would be in violation of the express provisions of KRS 212.120(2), since the 25% withholding of funds would be a non sequitur and would not be validly related to the concept of a "just and equitable share". In addition, the 25% withholding policy would be arbitrary in terms of § 2 of the Kentucky Constitution. The term "arbitrariness" was defined by the court, in Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1964) 258, as a concept broad enough to embrace both due process and equal protection of the laws, both fundamental fairness and impartiality.
Although the "25% withholding" policy may be well intentioned in terms of some public advantages accruing from a multi-county district operation and pooling of resources, the D.H.R. has no statutory or constitutional authority to depart from the explicitly laid out guidelines and legislative policy enunciated in KRS 212.120(2) relating to county health departments.