Request By:
Hon. James B. Allen Jr.
Clark County Judge-Executive
Clark County Courthouse
P.O. Box 5
Winchester, Kentucky 40391
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to your letter which refers to a letter from this office to Rev. Henry E. Baker in which we expressed serious doubts as to the validity of a proposed appropriation by a city to the Kentucky River Foothills Development Council which, among other things, administers a senior citizens program in that city.
You disagree with the position taken in our letter and ask that the matter be reconsidered. We assume you are primarily concerned with whether the county could appropriate funds to the organization in question as it also administers programs in the county. You state that Kentucky River Foothills Development Council is a community action agency funded by federal agencies as well as state and local governments. The organization's board is comprised of state and local officials, representatives of the poor and minority groups and individuals from the private sector.
The brochure which was attached to your letter indicates that Kentucky River Foothills Development Council is a community action agency, established by the Equal Opportunity Act of 1964. The Council operates as a private nonprofit organization, serving the disadvantaged people of Clark, Estill, Madison and Powell Counties. It is involved in various programs, including community services, head start, employment and training, energy conservation, equal opportunity counseling, nutrition, retired senior volunteer program and summer youth employment.
You subsequently advised this office by telephone that the Kentucky River Foothills Development Council is a community action agency pursuant to KRS 273.410 to 273.455. Those statutory provisions deal with a community action corporation which is defined as a "corporation organized for the purpose of alleviating poverty within a community or area by developing employment opportunities; by bettering the conditions under which people live, learn, and work; and by conducting, administering, and coordinating similar programs."
KRS 273.435 provides in part that a community action corporation may be designated as an agent of the county when the legislative authority of the county has determined that the policy of the county is to promote the health, safety, morals and general welfare of its inhabitants and that such policy may be implemented through the designation of a community action corporation as such an agency. Such designation shall be made by the legislative authority of the political subdivision by resolution or ordinance. You have further advised this office by telephone that the county fiscal court has designated the Kentucky River Foothills Development Council as its agent pursuant to the statutes to carry out various public welfare projects.
KRS 67.083, the so-called county "home rule" provision, sets forth numerous activities in which the fiscal courts may engage. Included therein is authority for the county to provide hospitals, ambulance service, programs for the health and welfare of the aging and juveniles, and other public health facilities and services. In addition, a county is authorized to cooperate with other units of government and private agencies for the provision of public services, including but not limited to training, educational services and cooperative extension service programs. See KRS 67.083(3)(d) and (q).
Even though a county through its fiscal court may engage in those programs and activities set forth in KRS 67.083(3), another matter to be considered involves the appropriation of county funds and to whom such funds may be appropriated. Section 179 of the Constitution of Kentucky provides in part that the General Assembly shall not authorize any county to appropriate money to any corporation, association or individual, except for the purpose of constructing or maintaining bridges, turnpike roads or gravel roads.
In addition to the authority set forth in KRS 67.083(3) concerning the county's participation in various programs and projects, KRS 273.430 authorizes a community action corporation to apply for and accept loans, grants and other assistance from any entity, public, or private, including but not limited to the Commonwealth and the United States. Also, a county and a community action corporation may agree that the community action corporation will be designated as the county's agent for the receipt and expenditure of loans, grants and other funds, including, but not limited to general and special revenue sharing funds from the Commonwealth and the United States, for the purpose of alleviating poverty within the county. Note also that a community action corporation must annually submit a report to the Secretary of the Department for Human Resources, together with an audit by a certified public accountant, covering all financial and other transactions of the corporation for the preceding year. KRS 273.445.
In Ezelle v. City of Paducah, Ky., 441 S.W.2d 162 (1969), the Court upheld a donation of public funds by the city to the local chamber of commerce. That situation involved a statute (KRS 102.060 which was subsequently repealed) which specifically authorized the expenditure of city funds for that particular purpose. It did not constitute a blanket delegation of authority and there were adequate safeguards. Under the circumstances there was no violation of Section 179 of the Kentucky Constitution as the governmental body could select a private institution as an instrumentality for the accomplishment of a public purpose.
Thus, assuming that the Kentucky River Foothills Development Council is a community action corporation organized and functioning pursuant to KRS 273.410 to 273.455, and that it has been designated, pursuant to an ordinance or resolution of the fiscal court, as an agent of the county under KRS 273.435 for the implementation of various statutorily authorized public welfare projects, the fiscal court may appropriate public funds to such a community action corporation in connection with the carrying out of such projects.
Note also that under KRS 273.435(b) a city may designate a community action corporation as an agent of the city for the implementation of various statutorily authorized public welfare projects.