Request By:
J. Scott Preston
Johnson County Attorney
Courthouse Annex
Paintsville, Kentucky 41240
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You seek an opinion of this Office as to whether the Johnson County Housing Authority is exempted from the payment of prevailing wages under the 1982 statutory amendment as a subdivision of the county. You state the Kentucky Department of Labor has advised you that such amendments do not exclude the Housing Authority from the prevailing wage law.
The Prevailing Wage Law was amended in 1982 by H.B. 299, Chapter 59, 1982 Kentucky Acts. KRS 337.010(3)(e) amended the term "Public Works" in part as follows:
"However the provisions of this section shall not apply to construction conducted by a city, county, urban county government or school district unless such construction is financed with fifty percent (50%) or more of state funds."
The question then arises as to whether a county housing authority is merely a department or agency of the county or a separate public body. If it is the former, it would fall within the exemption and if it is a separate entity, it would not, unless such an entity itself were exempted.
Thus, we need to look at the nature of a county housing authority. Such is authorized in KRS 80.310 - 80.610.
A county housing authority, hereafter authority, is created by resolution of a county (KRS 80.320(1)). Such an authority can be created for one or several counties or combinations of both into a region.
A single county authority shall have a governing body of five persons appointed by the fiscal court (KRS 80.420).
KRS 80.410 provides that in any such involving a contract of the authority, "the authority shall be conclusively deemed to have become created as a public body corporate and politic . . . ."
KRS 80.440(2) forbids an authority member from being an officer or employee of a county for which the authority is created.
KRS 80.500 provides, in part:
"An authority shall constitute a public body corporate and politic, exercising public and essential governmental functions . . . ."
Subsection 3 of that statute authorizes the authority to arrange a contract for the furtnishing of services, privileges, works or facilities for, or in connection with, a housing project,
"and (notwithstanding anything to the contrary contained in KRS 80.310 to 80.610 or in any other provision of law) to include in any contract let in connection with a project, stipulations requiring that the contractor and any subcontractors comply with requirements as to minimum wages and maximum hours of labor, and comply with any conditions which the federal government may have attached to its financial aid of the project." (Emphasis supplied.)
Further, the authority has the power of condemnation (KRS 80.540) and can issue its own bonds (KRS 80.550).
From these recitations of statutory powers, it appears that although such an authority is set in motion and created by the county (or other initiating government(s)), once created, it becomes a separate governing entity. Further, when H.B. 299 was enacted, KRS 80.500(3) was not revised or eliminated. That section still requires such an authority to require set minimum wages and hours in contracts.
CONCLUSION
A County Housing Authority is a separate governmental entity, not a part of a county itself and not exempted under KRS 337.010(3)(e) as amended in H.B. 299, 1982 General Assembly. Further KRS 80.500 still requires the payment of minimum wages in contracts.
Therefore, Johnson County Housing Authority is still subject to the prevailing wage law for all construction fairly estimated to cost more than $250,000 as adjusted annually each July 1st according to the change in the consumer price index (KRS 337.010(3)(a).