Request By:
Hal C. Harned, Esq.
P.O. Box 231
52 East Broadway
Madisonville, Kentucky 42431
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Joseph L. Famularo, Deputy Attorney General
This is in reply to your letter in which you in your capacity as city attorney for the city of Dawson Springs raise several questions relating to municipal government.
You state that the local Community Center Board, an independent agency not associated with city government, is interested in constructing and operating a swimming pool in the city. The city has land available in the municipal park for such a project but does not want to take on the responsibility or possible liability involved in operating and maintaining a swimming pool.
The city recently applied for a federal grant with the understanding that the Community Center Board would be the agency responsible for the operation and maintenance of the pool and all liabilities connected with the project. While the grant has been awarded you have been examining KRS Chapter 97 and OAG 68-36 and OAG 62-634 and questions have arisen relative to the legality of the proposed undertaking.
You ask, with reference to KRS Chapter 97, whether an agency not related to city government may construct, operate and maintain a swimming pool on property within a municipal park, using funds received by the city from a federal grant. You ask whether the answer would be different if the site on which the pool is to be built were to be sold to the independent agency. You further ask if there is any way that a public swimming pool may be constructed, operated and maintained by an agency unrelated to the city government with the city having no liability from the operation of the swimming pool.
We are of the opinion a viable legal relationship may be had between the city and the Community Center Board regarding the construction, maintenance and operation of a swimming pool. However, we must caution that the legal roles for each, which we will discuss below, must be carefully and closely adhered to. Failure to do so would in all likelihood bring about both statutory and constitutional problems.
It is our understanding that the proposed site of the swimming pool is on land owned by the city of Dawson Springs. In presumed anticipation that any problems would be worked out, the city applied for and now is in line to receive federal funding for a recreational project. This federal grant is administered by the Kentucky Department of Local Government. In a discussion with personnel from that office, it was learned that this federal grant must be expended by the city on a public nondiscriminatory recreational project and that all applicable state laws must be complied with.
Perhaps as important as what we believe can be done by the city in this regard is what we believe would be prohibited. In that the federal grant money will become for legal purposes municipal funds, then section 179 of the Kentucky Constitution must be considered. This constitutional provision prohibits in part any city from appropriating money for any corporation, association or individual with certain exceptions not applicable here. In several prior opinions of this office we have considered Section 179 against matters stemming from the relationship between a city and a nonprofit corporation or association interested with public recreation. For example, in OAG 62-634, copy enclosed, one of the opinions mentioned in your letter, we concluded the city of Marion, in Crittenden County, could not make an appropriation to a nonprofit corporation for the purpose of erecting a recreation building and facilities. The land upon which the Crittenden recreation project was to be constructed was owned by the nonprofit recreation corporation. Also, again in OAG 75-366, copy enclosed, we concluded the city of Pineville, Bell County, could not legally due to Kentucky Constitution's Section 179, donate general fund money to a nonprofit community center corporation relative to an intended recreational program. The money from the city of Pineville would have been used by the community center group to purchase land to be used for a recreation facility.
Aside from the matter of the appropriation of public funds, another question to be resolved concerns the operation of the municipal parks system. While it is true that cities through municipal home rule have gained more power to handle local matters, KRS 82.082 provides in part that a municipal power or function is in conflict with a statute if it is expressly prohibited by a statute or if there is a comprehensive scheme of legislation on the same general subject set forth in the statutes. In connection with the operation of municipal parks there is a comprehensive scheme of legislation on the subject, KRS Chapter 97.
KRS Chapter 97 authorizes cities to construct and maintain recreational facilities and the maintenance of such facilities as a governmental function. When a city establishes a park or recreational area the maintenance of same is a governmental function. See Baker v. City of Lexington, Ky., 310 S.W.2d 555 (1958) and Kentucky Lake Vacation Land, Inc. v. State Property and Building Commission, Ky., 333 S.W.2d 779 (1960). The recreational area must be available equally to all citizens, and of course, as indicated earlier, this is also required as a condition to receiving the federal money.
With the above legal requirements and prohibitions in mind, we will now attempt to lay out the legally permissible relationship between the City of Dawson Springs and the Community Center Board.
First, we believe the city will have to construct the swimming pool on its property using the federal grant funds, other general fund revenues, and donations as needed. Once the swimming pool facility has been constructed, the city may enter into an operations and maintenance type of agreement with the Community Center Board regarding the pool if it wishes. We do not believe the city, through such an agreement, may totally abdicate its ultimate control and responsibility pertaining to its property and the recreational improvements to the property. However, there would be nothing wrong with the City of Dawson Springs entering into an operations agreement with the Community Center Board whereby the Community Board would agree to purchase liability insurance covering the activities at the pool and further would agree to hold the city harmless regarding the use of the pool. The agreement would specify that the expense of general maintenance of the pool would be handled by the Community Board. An agreement of this type can, we believe, be drawn to avoid various legal impediments such as those discussed in OAG 68-36 and OAG 74-213, copies of each enclosed.
Thus, it is our opinion that while the City of Dawson Springs may not give the property or use of it to the Community Center Board, nor donate money to a nonprofit corporation, we do believe basic responsibility for the operation and maintenance of the pool may be contracted for by the city with the Community Board.
We trust the above will be of assistance to you concerning this matter. If we may be of further assistance, please contact us.