Request By:
Hon. Robert L. Chenoweth
Bryan, Fogle & Chenoweth
School Boards Association Building
Route 3, Box 96-2
Frankfort, Kentucky 40601
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL: Anne E. Keating, Assistant Attorney General
In your recent letter to this office, you requested a formal opinion regarding the following question:
Which items, if any based upon the code number assigned by the Kentucky Department of Education for purposes of reimbursement to a local school district for pupil transportation, would constitute a "peculiar or unusual circumstance," as that phrase is used in the controlling case of
Rawlings v. Butler, Ky., 290 S.W.2d 801, 808 (1956), such that the code item expense should or could be eliminated in the calculation of transportation costs for private or parochial children?You enclosed a listing of the code numbers in question with a brief description of the transportation costs associated with each number.
As you know, Kentucky's highest court held that Nelson County Board of Education could not use taxes raised for school purposes to aid in transportation of children attending parochial or private schools, but, under KRS 158.115, the fiscal court could pay for transportation of children attending schools including parochial or private schools. See
Rawlings v. Butler, Ky., 290 S.W.2d 801, (1956). The Court determined that the appropriate method to calculate the additional cost of transportation for parochial students was "per capita" , in that practically all school funds are distributed upon a "per capita" basis. Therefore, in that case, where Catholic children equaled 19.1 percent of the children transported to school in Nelson County, the additional cost of transportation was 19.1 percent of the total cost of the school bus system of Nelson County.
In dicta, the Court added, "should any peculiar or unusual circumstances exist which show the 'per capita' method would not accurately or fairly reflect this additonal cost of transportation, such circumstance may be taken into consideration in applying the 'per capita' method in arriving at this additional cost."
This possibility presented itself in 1960 in
Board of Education of Jefferson County v. Jefferson County, Ky., 333 S.W.2d 746. The Jefferson County Fiscal Court and the Board of Education could not agree on the formula to apply in determining the cost of transporting pupils of elementary grade attending nonpublic schools who lived beyond a reasonable walking distance to their school and set forth four formulas for computation of the cost, based on different considerations. The Court of Appeals noted that due to constant changes in costs of equipment and services, as well as changes in location of residences and of schools, it would not be possible to compute an absolute cost for transporting nonpublic pupils. Only an estimate would be possible. While ordinarily any one of the formulas might lead to a reasonable estimate of the cost, under the Kentucky Constitution the school district must not expend any funds for transportation of students of nonpublic schools. Consequently, the Court required adherence to the straight "per capita" approach adopted in the Rawlings case.
On review of the cost items set forth in the listing by code number assigned by the Kentucky Department of Education, it is clear that none of the items exemplify "peculiar or unusual circumstances" which would permit an exception to be made to the "per capita" method. In fact, each one appears to describe costs that are part of the whole transportation system. Accordingly, OAG 83-294 and 82-392 are affirmed.