Request By:
Karen A. Quinn, Deputy General Counsel
Kentucky Housing Corporation
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Statutes construed: 42 U.S.C. § 1437a(b)(6)(A), KRS 80.020(1), KRS 80.264(3), KRS 80.330, KRS 198A.040
OAG's cited: OAG 79-332, OAG 11-003
Opinion of the Attorney General
Karen Quinn, Deputy General Counsel for the Kentucky Housing Corporation (KHC), has requested an opinion addressing whether the KHC is the only agency with statewide authority under Kentucky law to administer Section 8 rental assistance contracts with the United States Department of Housing and Urban Development (HUD) in Kentucky. The PBCA (performance-based contract administration) Section 8 rental assistance program, created by the Housing and Community Development Act of 1974, enables HUD or its contract administrator to enter into contracts with property owners to subsidize housing units in specific apartment complexes for those in financial need.
The KHC has served as contract administrator for Kentucky since September 1, 2000, overseeing over 22,799 units in 379 properties located in 111 counties. The property owners must establish appropriate tenant selection policies for the units, based on area median income, and take applications for rental assistance. The contract administrator must ensure that all parties adhere to the requirements of the program. The KHC, in its capacity as contract administrator, conducts annual on-site visits to the properties, performs monthly desk reviews, adjusts rents and reviews utility allowances, and provides advice and assistance to tenants and property owners.
Under 42 U.S.C. § 1437a(b)(6)(A), "public housing agency" is defined for purposes of the project-based rental assistance program as "any State, county, municipality, or other governmental entity or public body (or agency or instrumentality thereof) which is authorized to engage in or assist in the development or operation of public housing. " KRS 80.320 authorizes the creation of county and regional housing authorities. KRS 80.020 authorizes cities of all classes to create city housing authorities. City-county housing authorities are authorized by KRS 80.262. All of these entities have some authority under Chapter 80 to engage in or assist in development or operation of public housing. We have also opined that a fiscal court would qualify as a "public housing agency" due to its authority under KRS 67.083(3) to provide assistance to residents of low-income housing. OAG 79-332.
The KHC, however, has the most extensive and explicit authority in this area. The KHC is charged by KRS 198A.035(1) with overseeing the development and implementation of Kentucky's statewide housing policy. The state housing policy is mandated by KRS 198A.025 in order to "[e]ncourage the availability of decent and affordable housing for all Kentucky residents, " to "[i]dentify the basic housing needs of all Kentuckians," to "[c]oordinate housing activities and services among state departments and agencies," to "[e]ncourage and strengthen collaborative planning and partnerships among social service providers, all levels of government, and the public and private sectors, including for-profit and nonprofit organization, in the production of affordable housing, " to "[c]oordinate housing into comprehensive community and economic development strategies at the state and local levels," and to "[d]iscourage housing policies or strategies which concentrate affordable housing in limited sections of metropolitan areas and county jurisdiction."
In fulfilling its statutory purposes, the KHC has the power "to enter into agreements or other transactions with any federal, state, or local governmental agency for the purpose of providing adequate living quarters for [lower- and moderate-income] persons and families in cities and counties where a need has been found for such housing and where no local housing authorities or other organizations exist to fill such need." KRS 198A.040(10). It also has the power "[t]o provide technical and advisory services to sponsors of residential housing and to residents and potential residents thereof," "[t]o promote research and development in scientific methods of constructing low cost residential housing of high durability," and "[t]o encourage community organizations to participate in residential housing development." KRS 198A.040(13)-(15). Furthermore, KRS 198A.040(16) gives the KHC the power "[t]o make, execute, and effectuate any and all agreements or other documents with any governmental agency or any person, corporation, association, partnership, or other organization or entity, necessary to accomplish the purposes of this chapter." As mentioned above, the purposes of Chapter 198A include requiring the KHC to implement the comprehensive statewide housing policy.
Where a comprehensive scheme established by statute places the regulation of a subject under the jurisdiction of a particular agency, regulation of that subject by other entities is preempted. OAG 11-003. The KHC's duty to develop and implement a comprehensive state housing policy presupposes the ability to assess financial conditions and coordinate housing assistance throughout the Commonwealth. Inasmuch as the administration of PBCA contracts in multiple Kentucky locations invokes the same need for comprehensive and coherent statewide oversight contemplated by the legislature for the KHC, we believe that the General Assembly would not have intended for any other entity to fulfill this function on a statewide basis. The KHC is the only statewide public housing agency in Kentucky.
To whatever extent a local or regional housing authority may be empowered to act as a HUD contract administrator, its jurisdiction is necessarily limited to the city, county, or counties where it is established. KRS 80.020(1), KRS 80.264(3), KRS 80.330. The same territorial limitations would obviously apply to a county fiscal court acting as a contract administrator. Given these jurisdictional limits, it is clear that an out-of-state public or private entity (excluding the federal government) would have no power under state law to operate in Kentucky as a public housing authority, or indeed as any type of governmental agency, unless specific statutory or constitutional authority existed. We know of no Kentucky law that would authorize any entity from another state to act as a public housing authority in the Commonwealth of Kentucky.
As a matter of state law, therefore, there is no entity, other than the KHC, which has been given statewide statutory authority to conduct such an activity as administering performance-based rental assistance contracts for a federal agency in the Commonwealth of Kentucky. No out-of-state entity would have any such authority under Kentucky law.