Request By:
Hon. John P. Kirkham, Counsel
Christian County Board of Education
1404 South Virginia Street
Hopkinsville, Kentucky 42241
Opinion
Opinion By: Chris Gorman, Attorney General; Anne E. Keating, Assistant Attorney General
You have requested clarification on the legality of the expenditure of school funds by a school board for the services of school crossing guards on certain streets in Hopkinsville. Effective October 1, 1991, the City Council ordered the Hopkinsville Police Department to discontinue providing officers to assist students in crossing a particular intersection, and indicated that it would become the responsibility of the school system to provide that service. It is your position that, based on OAGs 79-107, 76-239, 75-614, and 69-488, the local board of education may not expend common school funds for that purpose. Your particular questions are:
Is it still the opinion of the Attorney General's Office that OAG 79-107 represents the law of Kentucky and the interpretation of sections 182 and 184 of the Kentucky Constitution, and that the expenditure of funds for school guard crossings is prohibited constitutionally?
Is it still the opinion of the Office of the Attorney General that, as stated in OAG 79-107, a city other than the first class has exclusive control of its streets?
Is it still the opinion of the [O]ffice of the Attorney General that the city 'clearly has the authority to employ school crossing guards for purposes of regulation of traffic and traffic control devices' and that no other entity may regulate traffic and/or traffic control devices?
Is it, thus, still the opinion of the Attorney General as stated in OAG 79-107 that the city school board does not have the authority to regulate traffic, the city having the exclusive control over traffic and traffic control devices?
Last, but not least, in terms of importance by any means, is the Christian County Board of Education precluded from expending funds for school crossing guards and is it bound by the Attorney General's opinions with respect to such expenditures until either the Constitution be changed, a court interpret the law differently, or a change be made in the line of opinions previously issued by the Attorney General on this subject?
In answer to your first question, it remains the opinion of the Attorney General's Office that OAG 79-107 correctly states the law of Kentucky in interpreting section 184 of the Kentucky Constitution. In part, Section 184 states:
'any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose.'
Accordingly, this Office concluded that a city ordinance placing police women school crossing guards, who previously had been employed by the city, under the employment of the city school board, was unconstitutional. Section 184 of the Kentucky Constitution. OAG 79-107. It remains true that:
[t]he test is, what constitutes an educational purpose within the meaning of Section 184 of the Constitution, rather than whether an activity might be beneficial to education.
Board of Education of Spencer County v. Spencer County, 313 Ky. 8, 230 S.W.2d 81, 83 (1950).
In OAG 79-107, we stated, "[t]he employment of school crossing guards is not an 'educational purpose' for which school funds may be expended." OAG 79-107, at p. 1, citing OAG 76-239 and 69-488. Section 180, rather than Section 182, of the Kentucky Constitution also prohibits the expenditure of a tax collected for one purpose to be applied to another purpose.
In answer to your second question, it remains the opinion of the Attorney General's Office that cities have jurisdiction over city streets. OAG 83-321, citing KRS 82.081, 82 082, and
Graves County v. City of Mayfield, 305 Ky. 374, 204 S.W.2d 369 (1947). Just as this Office found, in that opinion, that a city of the 5th class had no statutory authority allowing the city of Hopkinsville to abdicate its responsibility and jurisdiction over existing city streets for the purpose of expending money for construction and improvements, we find no statutory authority allowing the city to abdicate its responsibility and jurisdiction over existing city streets for the purpose of expending money for safety of citizens. In fact, KRS 189.336(2) expressly authorizes a city, by ordinance, to install, at city expense, school flasher lights in school zones, as necessary.
In answer to your third question, it remains the opinion of the Office of the Attorney General that the city has authority to employ school crossing guards to regulate traffic, while the local school board does not. OAG 83-321, KRS 82.081, 82.082, and 189.336(2). Due to the city's exclusive control over its streets, no other governmental entity has similar control. OAG 83-321, at p. 3.
In answer to your fourth question, it is still the opinion of the Attorney General that the city school board does not have the authority to regulate traffic, as the city has exclusive control over traffic and traffic control devices. OAG 83-321, KRS 82.081, 82.082, and 189.336(2).
In answer to your fifth question, all opinions of the Attorney General, with the exception of Open Records Opinions which have the force of law, are advisory. Nevertheless, this Office makes every effort to provide an accurate, impartial interpretation to guide the requester in his decisions. Ultimately, the questions that you raise are for a court to decide.