T_ 2 d Government Law News Salmon P. Chase College of Law + Kentucky Department for Local Government + Northern Kentucky University

Volume 1, Issue 2 August 1998

Basic Principles of Annexation br

William Elkins

Annexation Through the passage of time, with population growths

' and decline in agricultural activity, cities have experienced the need to expand into new unincorporated territories to create larger urban areas. The Kentucky General As- sembly has recognized this need to promote social- and economic growth and has provided a vehicle for cities to acquire new land to be included in their boundaries. This vehicle is annexation.

Chapter 81A of the Kentucky Revised Statutes provides for the annexation of unincorporated territories by all cities.

Chapter 81A begins by recognizing that cities are cat- egorized into six classes. Chapter 81A designates these clas- sifications based on population and other demographic factors. KRS 81.010 lists every city in its respective class.

Although annexation of unincorporated territory is simi- lar for all classes and cities, there are some specific differ- ences. Examination of the process of annexation should begin with the following common requirements of valid annexation, which run through each annexing statute: ( I) The boundaries of every city shall remain unchanged

unless enlarged by ordinance. Enlarging the bound- aries of a city is done by annexation and every annex- ation begins with a "proposing ordinance" describing the area to be annexed and the desirability that it be an- nexed'by the city.

(2) Enacting an ordinance that proposes annexation re- quires: two public hearings prior to adoption of the ordinance; describing the territory to be annexed in the "proposed ordinance": and developing. and present-

ing a comprehensive plan for including the territory and providing services to the territory;'

(3) Property owners in the unincorporated territory must be sent notice of the annexation by first class mail. The notice must give the time and date of the next hearing on the matter and include a copy of the ~rd inance .~ The ordinance also must be published by newspaper at least once pursuant to notice requirements in KRS Ch. 424. The notice must provide an accurate descrip tion of the territory sought to be a n n e ~ e d . ~ Publication also must include the time, place, and manner to pro- test the ~rd inance;~

(4) Following publication of the ordinance a waiting pe- riod must be allowed for property owners and resident voters in the affected area to demonstrate their oppo- sition to the anne~ation;~ and

( 5 ) Following the waiting period, if the required opposi- tion is not m-ade, a city may enact an ordinance annex- ing the unincorporated territory. The ordinance must be filed, along with a map and demographic informa- tion of the territory, with the clerk of the county, Secre- tary of State, and the Department for the Department for Local Government.

a r t i c l e s i n t h i s i s s u e : i

cenl

Once a determination is made that the territory is fit . [or annexation, the annexation process may be consid-

ered. As mentioned above, annexation contains a five-step process common to all annexation. However, the differ- ences included within these common steps, must be ex- amined as well. These steps contain differences based on three criteria: (1) whether the city is a first class city;12 (2) whether the city is a first class city, with a cooperating agree- ment with the county, where the city is located; and (3) whether the city is classified as a second through sixth class city. Only two of these criteria are relevant because RR.S. 79.310 requires an agreement between the first class city and its county.13 The examination of the process will con- tain two parts, one for cities of the first class with cooper- ating agreements and another for all other cities.

In the case of a first class city, with a cooperative agree- ment with its county, the city desiring to annex must hold two public hearings on the annexation to be proposed. Notice of the hearings must be published pursuant to K.R.S. Chapter 424.14 A first class city must also prepare a report explaining a comprehensive plan for the in- corporation of the territory and extension of city ser-

, # *s.-.+ *q = - -- a:.-. - - - 7 , . , - , . , 4p4F. . . ; 4 * -J -.q .-!::A . % J -. .# . -

tion results are certified the city must enact an ordinance annexing the territory. If fifty percent or more of the vot- ers oppose annexation, the ordinance fails.

After annexing the unincorporated territory, the citf '

must file with the county clerk a map of the territory a n d ; demographic information. The same information must be1 filed with the Secretary of State and the De~artment for?-

I L, .- Local Governmen t.20 2 - .. Constitutional Taking Claims 9 . * . . *'.' "

' p . ".*. '. ., . Although, not specifically included in the statutes, con-

stitutional taking claims must be considered as a method by which annexations are avoided. When a claim challengd-.a

!.-:a ing the constitutionality of an annexation is brought, it is., brought in the form of a claimed taking of property with- out compensation. The underlying notion is that in ex- - change for the inclusion of a property owner's property within the boundaries of a city, the property owner must receive some benefit. These benefits have been found in^' the form of police and fire protection and reduced insur-. .' ance rates. These are considered compensation for the!*. ' new taxes imposed on the land. Absent some benefit to1 the property owner the annexation may be in~alidated.~' : '

. - . . 3 . vices. The report must be and available at the City Liability , . b " --'-*-". ' . : * - . a , , . * & L ..- r . I . - L . ,.JL;.*i above mentioned hearings*15 The city may then Propose Beyond the consideration of what territory may be an- an ordinance that accurately describes the area to be an- nexed, and how annexation is accomplished or avoided, nexed and give notice of its intent to annex the territ0ry.I6 city administrators must consider the impact of the an- The mayor must deliver a COPY of the ordinance t~ the nexation on the city's liability. clerk of the county who will have the questions, "Are A annexing unincorporated territory assumes all you in favor of being annexed to the city of ........ '" tax liability and indebtedness of the territory, distributing placed On the next general election following the SeC- the burden to be absorbed by all inhabitants.22 and Tuesday in August that comes after delivery of the The city must extend to the new territory all major ser- ordinance to the clerk." If more than fifty Percent of the vices provided throughout the city. This should include at voters approve the annexation, the city then enact a minimum police and fire protection. In most instances, an ordinance annexing the territory to the city. If less it is likely that water, sewer, trash and utilities already exist than fifty Percent approve, the ~ ~ d ~ ~ a ~ c e proposed an- in the new territory. In the case of these services, except nexation fails. utilities, the city may allow the entities rendering service

For all other classifications of cities, second through to ,,,tinue or may implement the city's services. Ifexisting . . DLAth, the following process applies. The city must hold services remain the city shall no tax for these services. The: two hearings proposing that an zinnexation ordinance be statutes and the courts provide that existing utilities such~l: enacted.18 The hearings must be published according to as electricity should remain with the existing providers.23 . ,? K.R.S. Chapter 424. The city must then enact a proposing Once a city has annexed unincorporated territory it

b , ordinance.lg The ordinance describing the unincorpo- in exchange for services, tax the territory in a manner gen-$ rated territory to be annexed must be published. The prop erally applicable to the city at large." ,+- . - - -7 erty owners must be sent notice individually by first class 'c.. 5 - - w mail. The city must then wait sixty days for any protest. t- ,._ - Protests must be presented, in the form of a petition, to As a result, when a city is experiencing a need to annex the mayor of the city. In order for the protest to be of new unincorporated territories it must first consider the consequence, fifty percent of the property owners and fitness of the temtory under applicable law. If the unin- resident voters must petitiori the mayor. If an adequate corporated territory is fit, the city may begin the process protest is made, the may, must present a certified copy of of annexation. Once the proposed annexation survives any the ordinance to the clerk of the county, who shall place protest and any constitutional challenges the unincorpo- the question, "Are you in favor of being annexed to the rated territory will become a part of the city. The city mayp'#

$ city of ..... ?", on the ballot at the next regular election. If then tax the newly annexed territory in an amount less than fifty-five percent of the voters oppose the annex- mensurate with the remainder of the city, but it must pro-, ' ation the territory becomes part of the city. After the elec- vide all major services it offers at large.

3

Note: New Legislation , a , During the 1998 Legislation Session, the Kentucky Gen-

~ r a l Assembly amended KRS Chapter 81A. The following statutes became effective on July 15,1998:

,.,.(I) HB 610: This Act relates to third, fourth, fifth, and sixth i.: . class cities. This Act creates a new section of KRS 81A .in . to allow third through f i class cities to annex adjoin- K'. ing sixth class cities, rather than to requiring a merger $" of the two cities. Third through fifth class cities may r;' , " , , annex sixth class cities if the legislative bodies of both

KRS 81A.420 which requires that opposition must be demonstrated by fifty percent of the property owners and resident voters of the temtory.

'See KRS 81A.410 %See KRS 81A.520 allowing fifth class cities to annex impoundment of

water for their use. gSee Stephens v. Felton, 35 S.W. 11 16 (Ky.1892). l0See KRS 81A.410, requiring suitability for development without unrea-

sonable delay and C&O Railyard Co. v. City of Silver Grove, 249 S. W.2d 520 (Ky.1952). Where the court found that the railroad com- pany has no foreseeable development due to the railroads intended us of the property for extended future periods of time.

"See KRS 81A.510. s identical ordinances regarding the

e public must approve the annex- ation through petition or at the election polls. Upon

: approval of the annexation, the sixth class city dissolves into the larger annexing city, and the local option status of the annexing city applies to the dissolved sixth class

2) HB 624: This Act amends KRS 79.310 relating to coop erative compacts between cities of the first class and their counties. This Act also amends KRS 81A.005 as it

nexation powers of a city of the first class with a cooperative compact. Pursuant to this Act,

amend annexation ordinances tion to annex after this act be-

rior to September 30, 1998. The rmits these proposed areas to be an- er city, and sets forth other provisions.

See KRS 81A.480, which applies KRS 81A. 050,81A.050,81A.070, and 81A.470 to all annexation.

2See KRS Chapter 424. %ee 83A.060 and 424.130 'See Merritt v. City of Campbellsville, 678 S.W.2d 788 (Ky.App. 1984).

the case of a first class city with a cooperating agreement with its county, the city, must wait for election results as a vote is automatic.

., .? . - ,+*.I - . . - 7 - . _ ' . .

I2See KRS 79.310 requires all cities of the first class to enter into a coop erative agreement with the countvwithin one hundred and twentv davs , , ofJuly lg, 1986. Louisville is cu&ently

I3See Footnote 1 1. '*See KRS 81A.060 ''See KRS 81k050 which is not a provision included in KRS 81A.005,

however, under rules of construction, to the extent there is no con- flict both may be applicable, any conflicts should be resolved in the last statute enacted, in this case 81A.005.

16See KRS 81A.005 17KRS 81A.005 announces no duty to publish the proposing ordinance,

but KRS 83 A.060 places a duty on a city to publish all ordinances for the ordinance to be effective. KRS 81A.425 also requires publi- cation, specifically for annexation. Under this statute individual notice is required. See also KRS 81A.060, which requires cities of the first class to hold two public hearings on proposed annexation before enacting a proposing ordinance. The statute also requires publication of the hearings. See also KRS 81A.480 requiring all an- nexations to hold hearings under 81A.070.

18Although, KRS 81A.420 does not prescribe the hearings, KRS 81A.480 applies KRS 81A.060, which requires the hearings to all annexations.

lgSee KRS 81k420. %ee KRS 81A.470 and KRS 818.475. %ee C&0 Railyard Co. v. City of Silver Grove, 249 S.W. 2d 520 (Ky.

1952). %ee KRS 81A.450. "See KRS 81A.490, expressly reserving the rights of utility companies.

See also City of Florence v. Owen Electric Cooperative, Inc., 833 S.W.2d 876 (Ky. 1992).

24See KRS 81A.070 and KRS 81A.480 applying 81A.070 to all annexations.

I -

Kentucky sUP~c'kie Court Rules Judges' Wives on Payroll :: 7 - . .. Permissible Under Judicial Ethics Code y * ' I \ s:

The Kentucky Supreme Court ruled in May, 1998 that opinion pointed out that the ethics code provision in dis- three judges, whose wives are their legal secretaries and pute does not prohibit hiring relatives, but states that on the state payroll, are not violating the Judicial Ethics judges should avoid nepotism and favoritism. Justice Code. The five-judge majority opinion, written by Justice Graves stated that "favoritism based upon relationship is William Graves, ruled that the judges did not violate the evil to be eliminated through anti-nepotism provisions. It ethics code because the wives were hired as legal secretar- is the motivation and reasons for hiring which determine ies before the judges were appointed to the bench, and all whether nepotism is involved, not merely the employment three wives were qualified. of a relative."

District CourtJudge Stephen Bates, Carroll, Grant, and The majority opinion held that the ethics rules allow a Owen counties; Circuit Court Judge Eddie Lovelace, judge to employ a relative qualified to perform the job. Clinton, Russell, and Wayne counties; and Circuit Court However, ChiefJustice Robert Stephens, in a separate opin- Judge Danny Caudill, Floyd County, all employ their wives ion joined by Justice Joseph Lambert, held that although as legal secretaries. the judges did not violate the rule, the anti-nepotism pro-

Although the Judicial Ethics Commission issued an visions do not turn on qualifications and are meant to com- opinion thatjudges should not hire spouses, Justice Graves' bat the appearance of impropriety.

,. - 4

Local Government Clinical Pro-gram I .. , Successfully Concludes Summer p;ogram - The Chase Local Government Law Center successfully

completed its first summer clinical program on August 5. The Local Government Clinical Program placed seven Chase College of Law students in internships with local officials across the Commonwealth.

The second and third year law students worked w' ' the following local officials: Don Buring, Kenton Commonwealth's Attorney's Office; Bill Kuster, Harrison County Attorney's Office; Robert Russell, Madison County Attorney's Office; Darrell Herald and Lynn Herald, Commonwealth's Attorney's Office for Breathitt, Powell, and Wolfe Counties; and Randy Strauss and Susan Gormley ~ i ~ t o n , Administrative Hearings Branch, Cabinet for Fami-

ited licenses and the opportunities available through the internships enhanced the students' practical legal skills, and increased their confidence in trial skills. The agencies also benefited from the additional legal assistance.

As part of the clinical program, the students attended an accompanying classroom component. This summer, the classroom component focused on criminal law. The stu- dents learned about victims' services, Emergency Protec- tive Orders, and Domestic Violence Orders from repre- sentatives of the Northern Kentucky Women's Crisis Cen- ter, Northern Kentucky Child Advocacy Center, and the Family Nurturing Center. Jack Porter, Assistant Common- wealth Attorney, Campbell County discussed effective open-

lies and Children. One student interned with Kelly Malone, Cincinnati Legal Aid Society.

One law student, Karlyn Schnapp, Ph.D., interned with the Law Center and drafted model ordinances regarding hazardous material emergency response procedures. Dr. Schnapp's project was coordinated with Pat Connelly of the Kentucky Disaster and Emergency Services. These model ordinances will assist cities and counties throughout the Com- monwealth comply with federal and state laws, relating to emergency response procedures. These model hazardous material ordinances are available from the Law Center.

The law students interning with local agencies and offi- ' cials focused on practical legal skills and criminal trial tech-

ing and closing statements in criminal trials. Prof. Kathleen Gormley Hughes discussed ethics and the duties of pros- ecutors and public defenders.

Several guest lecturers focused on children and the criminal justice system, and criminal investigations. Hugh Convery, Department for Public Advocacy, Morehead Di- vision, lectured on the legal representation of juveniles facing h e death penalty. Susan Blake, Special Assistant Attorney General discussed interviewing the child witness in a child sexual abuse case, and handling child abuse cases. The students also toured the facilities of the Kentucky Medi- cal Examiner's Office and the State Police Central Crime Laboratory in Frankfort. They learned the role of coro-

niques. They also gained insight into how government ners and local police, and how local authorities and state agencies and local officials operate. The student placed agencies cooperate in criminal investigations. with the Cabinet for Families and Children interned un- The clinical program is part of the Law Center's ex- der administrative law judges. He learned about the ad- panded mission to assist city and county governments, while ministrative appeals process for businesses that must com- providing a legal education to law students, and legal in- ply with state regulations, and the legal reasoning behind formation to local government officials and attorneys. The administrative judicial decisions. Law Center appreciates the time and efforts of the field

Several students qualified for their limited licensl- -0 instructors and guest lecturers involved in this program. practice law, pursuant to Supreme Court Rule 2.540. These Without their support and dedication, the would temporary intern licenses permitted the students to argue not succeed. The clinical program operates during the fall/ ' . in court, participate in trials, and consult with clients, while and spring semesters, and the summer session. For more : under the supervision of a practicing attorney. The lim- information, please contact Prof. Hughes.

Local ~egislatd?; Abkolutelv unmune from ~ iag i l i t~ in Enacting ordinances

The Unitea mites Supreme Court unanimously ruled, face, and the local legislators acted within thelr aiscretion- in a decision written by Justice Clarence Thomas, that lo- ary powers, they cannot be sued for passing the ordinance. cal oficials cannot be sued for the laws they pass. The Su- This absolute immunity applies even if the local officials' .

a. preme Court held on March 3,1998 in Bogan v. Scott-Har- motives behind the ordinance intentionally violate the civil

, - B L I - m . ris, that "[l]ocal legislators are entitled to absolute immu- rights or liberties of other~;':~~F:::. \:: . - * . :.' ''. - " " . . * . _ . - " I ' from liability for their legislative activities." The Su- Specifically, the Supreme Court overturned a $231,000 :;

preme Court held that if a local ordinance is proper on its verdict Janet ~cot t -~arr i s , an African-American woman:: -

won after being subjected to racial slurs by an employee ' , -?The First U.S. Circuit Court of Appeals upheld the dis- serving temporarily under her, and then had herjob elimi-'-,'.trict court with regard to the claims against Bogan and nated by the city council after she complained. Ms. ~cott--?:?oderick, and rejected the argument that Mayor Bogan Harris, worked for the small Department of immunity. The Court of Human Services in Fall River, Massachusetts as actions were administrative, not istrator. She was the first African-American to work for city. Beginning in 1990, Ms. Scott-Hams became Court reversed the Circuit Court and re- that an employee temporarily serving under her, between administrative and legisla- Biltcliffe, made repeated racial and ethnic slurs about tive action. Also, the Supreme Court held that the issue is other co-workers. Ms. Scott-Harris began termination pro- not whether the motives behind an ordinance were proper, ceedings against Ms. Bil tcliffe. but whether their acts were legislative. The Supreme Court

Ms. Biltcliffe used her political connections with state held that the mayor and city council member had abso- and local officials to handle the situation. These political lute legislative immunity in enacting an ordinance elimi- connections included Marilyn Roderick, vice president of---nating the government office, because local lawmakers the Fall River City Council. LLhave absolute immunity for everything that comes within

The city council held hearings and suspended Ms.! ' :*''the sphere of legitimate legislative activity." Biltcliffe for 60 days without pay. However, the mayor of4 . :The Supreme Court held that introducing, voting on, - * Fall River, Daniel Bogan, later substantially reduced the and signing an ordinance are legislative activities. Although penalty and called for the dismantling of the Department the intent and motive behind the ordinance may not have for Health and Human Services, of which Ms. Scott-Har- been proper, the council's legislative action was within their ris was the sole employee. Mayor Bogan rationalized thataiscretionary power. Ms. Roderick's voting on an ordinance a possible reduction in state aid would require freezingk as a legislative act. Mayor Bogan's introduction of a bud- other city employees' salaries and eliminate jobs. g e t and signing of the ordinance was a legislative act, al-

The city council ordinance committee, chaired by M~.~-gthough he is an executive official. Executive officials are Roderick, drafted the ordinance eliminating Ms. Scott-Har-,:%jentitled to legislative immunity when they perform a leg- ris'job. The city council passed the ordinance, and ~ a ~ o r B s l a t i v e act. Most important, Justice Thomas wrote, the ac- Bogan signed the ordinance. tual piece of legislation "bore all the hallmarks of tradi-

Ms. Scott-Hams sued the city, Ms. Roderick, and Mayor tional legislation", because it reflected a policymaking de- Bogan, pursuant to 42 U.S.C. § 1983, claiming the job elimi- cision on the city's services and budget. , \ -a 4 - : 1 nation was retaliation for her exercising her First Amend- The-Supreme Court ruled in the past, that state and ment rights when she filed a complaint against Ms. Biltc1iEe. regional legislators have absolute immunity, and cannot The U.S. District Court denied Mayor Bogan's and Ms. be sued for the laws they pass. The ruling in Bocan v. Scott- Roderick's claim of legislative immunity, and a jury ruled Harris extends this protection to local legislators. Justice in favor of Ms. Scott-Hams, finding her protected speech Thomas wrote, " [r] egardless of the level of government, was the motivating factor behind the ordinance eliminat- the exercise of legislative discretion should not be inhib ing her job. ited . . . bv a fear of ~ersonal liability."

-i. :- 9 .: .f::*: , -. 1 998 General Assembly, Regular Session: % A Legislative Update

' - + . - i h - F - 2 ' < , t .. . - * :.;-(' .

= . , .L ; .c.)-.- ." .C' , - .. :-:a*

I'he ~entucky ~ e n e r a l Ais&&bly enacted s2;;ral pieces SB 45: Local govermnent budge& and escrow of legislation relating to local governments. These statutes accounts; Amends KRS 68.260 and KRS became effective July 15, 1998. Following is a brief over- ,::,LrztJ 371.160 view of selected statutes:

. . . - . - . . , . l a , . :

election on the fiscal court structure is either 1,200 voters or a number equal to 15% of the county voters who par- ticipated in the preceding presidential election, whichever I' is less. Previously, the statute required signatures from 100 legal voters.

SB 114: Community foundations; Creates a new section of KRS Ch. 65

Defines a "community foundation" as a "charitable non- profit community foundation established to accept assets, owned, given, or bequeathed to a local government for

HB 168: Cellular telecomkunications facilities; Creates new sections of KRS Ch. 100

HB 168 is a lengthy and detailed Act that permits local planning units that have adopted planning and zoning -regulations pursuant to KRS Ch.lOO to control the siting of cellular antenna towers in their area. The statute explic- itlv exemDts anv countv containing a first class citv from all

I I I J- o r c - . A

sections of this billti.,? .:'?t,- - 13 7 - - :. -. :* .\.: : . . a * .-'. I f - + - : . , , - . . . . ..

HB 20 1 : Joint sewer agencies; Creates a new :, - - - section of KRS Ch. 76 . -

the of meeting charitable objectives for the citi- Allows third through sixth class cities to establish a sewer zens of the community". The Act also permits local gov- with the fiscal court or a sanitation district. ernments to donate proceeds to a community foundation . . . . . , -- .. ,;:.: , .

- + . . .', . ,,? t" _ - . --, , ,.- . .( -.". '-.a u . i and clarifies when the foundation must return donations HB 230: paf 011 deducdons forjocal goverin- ! -1 - to a local government. ments; Amends KRS 65.158 Pi-"" '

SB 269: Municipal utilities; Amends -3 96.530g~' Authorizes local governments to establish payroll deduc- and KRS 95.520 L ': tion plans upon the written request of a minimum of thirty

percent (30%) -9f ip e_mployees. Provides that city may give pay raise to utility commis- , .- . . -J ' , , k , . + . J . , .- . - -: fLf, +; ;. - * I : . sion members. Also, authorizes second through sixth class

- : OAG Opinions 'I 1 , , . . 1 - - . - ' . '

I . % - , March-June 1998' . - r . . . -L .. . - . . . :' , !@ ,. +.. - . . . . . ' 1 . L . . I 0.' .

opinions' gf the Attorney General are legal opinions thai legislative and executive branch the Attorney General's Office provides to public officials. fore, the Mayor (executive branch) may not intervene in :- These opinions clarify Kentucky law for public officials, the disciplinary actions of the Board of Aldermen (legis-

. _ . * > - . and represent the official position of the Attorney General's lative branch). - g -.. - _ . office: Although these opinions do not have the force of

1 , OAG 98-7: Retirement benefits for hazardous law, they are persuasive and may be cited in court. , #; . . OAGs are called formal opinions. The Attorney duty employees who are members of CERS and I # +

KERS - ,; 1' +;.: . General's Office may also issue letters to public officials a .- I. - -a . 4 , . , , . . . providing informal advice or information. These letters do Issue: HB 250, enacted in the 1998 Regular Session, ex- not receive the same review as OAGs, and are not consid- tends retirement benefits for hazardous duty employees ered legal authority. Therefore& thi9 newsletter will not pub who are members of the County Employees Retirement lish informal opinion letters.; *+A ' ' w.'~ - . * System (CERS), and for members of the Kentucky Em-

Following is an overview of selected formal OAGs issued ployees Retirement System (KERS) . since March 1, 1998 to June 30, 1998, which discuss local Requested by: William P. Hanes, Deputy Commissioner af government issues. Services, Kentucky Retirema&Svskw- -f . .

. ! , . . . the OAGs. If you May 6,1998 please contact our office. - , .*. , , Synopsis: HB 250 -~mputes a retirement benefit for haz-

ardous duty employees who are members of CERS, State OAG 984: and KERS based on the highest salary during three state employees '- ;- retirement benefit for all other employees is based Issue: Whether the Pension Board is required to provide a on five years. The bill also increases the contribution rate

minimum level of health care benefits to retirees. - for hazardous duty employees who are members of CERS Requested by: Mike Kurtsinger, Kentucky Professional and State Police from 7% to 8%. The contribution rate Firefighters for hazardous duty employees who are members of KERS

Date: March 9, 1998 .' remains at 7%. HB 250 did not set forth a basis for the Synopsis: The courts have not addressed this issue, and difference in the contribution rates. ,. . -

thestatute may be interpreted differently than in the , v

OAG's o~inion. Pursuant to KRS 18A.225(2). the Ken- OAG 988: Liability for reintroduced wildlife "

, ,, tucky ~eiirement Systems offer retired state employees '- Issue: The Department of Fish and Wildlife incurs no li- health insurance benefits with ''the same benefits as pro- ability for damage done by reintroduced wildlife.

-vided under Kentucky Kare Standard as of ~ a n u a b 1, * .

< . . 11994." - The definition of "state employee" includes an elected public official of a municipal, urban-county, or

' county government whose legislative body participates in

- .:the state health insurance program. Although "benefits" must be provided, this statute does not require a particu-

;: lar form of health insurance coverage, or guarantee that . . .the state will provide funds for a particular plan. How

courts will define "benefits" remains unclear.

Requested by: C. Thomas Bennett, Commissioner of the Kentucky Department of Fish and Wildlife Resources

Date: May 21, 1998 Synopsis: Pursuant to KRS 150.015, the Kentucky Depart-

ment of Fish and Wildlife began reintroducing elk. They - asked whether this would impose liability on KDFWR for damage caused by the elk. The answer is no. The Gen- eral Assembly did not waive immunity from wildlife dam- age. Also, as stated in OAG 90-70, because the KDFWR

' has no proprietary ownership interest in the wild elk, it OAG 986: The Of the President of the - cannot contiol the actions of the wildlife. Therefore, it . Board Of to board members has no duty to prohibit damage from the elk. The KDFWR . Issue: President of the Board of Alderman has no statu- merely oversees and manages the wildlife, and serves as a .

'- tory authority to unilaterally discipline any member of trustee for the public. For these reasons, the KDFWR may . the board , -. not be liable under a negligence theory. . ' - . ' ' 4 . Requested by: Reverend Louis Coleman . .

:, * - . Date: May 1, 1998 . J - . - - . Executive Branch Ethics CommissionAdvisory - -,. t -*-- %.a -.- '.Opinion : .* : ' . . . - . . . . - Synopsis: KRS 83.470 gives exclusive power to discipline a .Ki-- d L . - . . , L .- . i - -

member of the ~ o a r d of Aldermen for disorderly con- ne Commission issued the following opinion on its own - .

duct to the full Board. The President has no authority to initiative: > . L - : *.-'

unilaterally discipline a member. A first class city clearly Issue: The definition of a "tangible @fi2"-which a public Y - T . \ s * . , -

has a strict standard of separation of powers between the servant may receive. w - - . -.# , -. a

Requested by: Commission's own initiative 98-ORD-89 Date: June 25,1998 In re: David M. Cross/Office of the Clinton County Judge/ Synopsis: In HB 275, the 1998 General Assembly amended Ekecutive f KRS 1 lA.045 to prohibit a public servant, his/her spouse, Date: May 13, 1998 or dependent child from knowingly accepting "tangible Issue: Whether the Judge/Executive's Office violated the gifts" or gratuities valued Over twenv9five dollars ($2519 Open Records Act by not permitting Mr. Cross to inspect travel expenses, meals, alcoholic beverages, lodging or Federal Emergency Management Agency (FEMA) honoraria of any value. The Commission defined "tan- records. gible gifts" as items that can be touched he., flowers, Synopsis: The Judge/Executive9s Office denied inspection candy, and country ham). Non-tangible items "include claiming disclosure resulted in an unwarranted invasion monetary gifts, agreements to Pay, forgiveness of debt, of privacy, and that disclosure was prohibited by federal reimbursement for expenses, . . . and tickets to events." law or regulation. However, the judge/executive failed Tickets are not considered tangible because the gift is to state why the agencyss pivacy interests ourneighed the the attendance to the events. public's interest in inspection, and failed to provide the

Open Meeting Decisions and Open Records federal law that prohibited disclosure. The CountyAttor- Decisions ney asserted that the records contained information ob-

tained for individual assistance. The Attorney General The Office of the Attorney General issues opinions on ruled mat thejudge/executive failed to meet the statu-

open meeting complaints and open records complaints. tory burden of proof for denial of inspection. These opinions review citizens' complaints that a public agency improperly denied review of public documents or 98-OMD-96

F . access to an open meeting. These opinions are legally bind- In re: Richard E. Moore II/City of Madisonville a - ing. Pursuant to KRS 61.880, if these opinions are not a p Date: June 9, 1998 pealed within thirty (30) days, the opinions have the effect Issue: Whether a city committee created to review sign or- and force of law. . . ; . ,- dinances is a public agency subject to the requirement . ( . - . . - .- . . 98-OMD-44 . . * .. of the Open Meetings Act

I * Synopsis: The City of Madisonville created a committee tc In re: Christie ArlinghausQem/City of Crescent Springs review sign ordinances and make recommen~ations~ The ) Date: April 1, 1998 City claimed the committee was an informal working Issue: Whether a city may require persons attending a city group and not a public agency, because city council did

council meeting to state their city of per- not appoint members by formal action, and the commit- mit city residents to view council meetings from inside tee had no to act on behalf of the City. chambers, and exclude nonresidents from chambers. The Attorney General stated that the committee is a

Synopsis: to KRS 6l.840, no person is required public agency because the sign committee "play[ed] a enti- to identify himself in order to attend a council meeting. cal role in the formation of public policy.n ~ l ~ ~ , the If the council chambers cannot hold all those in atten- ,ittee was appointed by a public agency. statutes do not dance, the council need only provide an overflow room require the to make appoinments hrough formal with a television monitor. 940MD-87. However, because ,tions. B~~~~~~ the committee was appointed by a the city made an effort to allow city residents an opportu- action, and made formal recommen~ations, it was a pub nity to attend and participate while avoiding disruption, . ._ . lit agency subject to the open Meetings any violation is mitigated. , -

A -7 -_. - . r ; . . 5 ' - , . .' .* 98-OMD-105 98-OMD-64 , ' ' A ,-. - - - ' - In re: The Bourbon TiwJBourbon County Fiscal Court In re: Robert Kemper, Jr./Louisville and Jefferson County D ~ ~ ~ : J ~ ~ ~ 23, 1998 -. . .. .

Metropolitan Sewer District . ' . . . -. .-, I , . . b *.-A .>& - ' Issue: Whether Fiscal Court violated the Open Meetings Date: April 14, 1998 Act by improperly conducting a closed session to discuss Issue: Whether the Sewer District violated the Open Meet- potential litigation ings Act when it held an informational gathering. Synopsis: The newspaper claimed the Fiscal Court improp-

S~"psk the MSD did the procedural erly conducted a closed session because, although the requirements in KRS 61.846, it did not violate the Act. road was embarassing, at no time was there a The MSD an gathering but did threat of litigation. The Fiscal Court contended that the

persons rent propertywithin the affected area county was threatened with potential litigation. The the gathering was a 'publie meeting" be- county was unable to describe the general nature of tht

cause a quorum of the members of MSD's governing proposed litigation or the immediacy of the threat of l i ~ was present Therefore, the Open Act was p i o n . Therefore, the possibility of litigation w a too re not triggered. mote to justdy a closed session.

9

98ORD-95 Synopsis: The judge/executive responded that the gen- In re: Sue Schumacher/Breckinridge .Cp,upty FiscaJ C ~ w t erators were located in the county garage and the county

* - -. Date: June 8, 1998 -: i !+: .% , r . . : . . ... . did not write funds to the CMS Coke Fund. Mr. Osborne, I ~ ~ ~ ~ : mether lqscal court may require prepayment of claimed this response was insufficient because it did not 1

copying charges prior to mailing open records; defini- mention the status of the generators, and did not men- tion of excessive copying charges tion the electric bill for the machine.

Synopsis: The Fiscal Court partially violated the Act. Ms. The pursuant to 97-0RD-6, pub schumacher sent identical requests to thejudge/execu- lic agencies are not required to compile information, but

tive and the fiscal court for eleven types of county dog are required to make available documents which may yield warden and dog pound documents. only the judge/ex- the information sought. If such documents exist, the

ecutive replied. He stated the records were available for judge/executive should affirmatively state. ~ l s o , there is a, inspection, or they could be mailed, but payment of a close connection between the Coke fund and public ac- -'

deposit on copying was required before mailing tivities because funds generated from the machine are. .' the documents. Copying charges were 25 cents per page. for public purposes (-9 League) .' M ~ . schumacher claimed the deposit and excessive charge Therefore, any checks written in connection with the Coke ' . are a de facto denial of request. fund are subject to public inspection.

KRS 61.872 and KRS 61.874 allow for prepayment of 9&ORD-109 - - copying costs prior to mailing documents. However, pur- ~n rr: ~~~d~ L. ti^^ cabinet suant to OAG 82-396, a public agency may not charge more Date: June 25, 1998 than the of the above &Iis Issue: Whether the Cabinet must turn over driving his-- amount is excessive. tory records for a nine year period; whether the Cabinet 980RD-99 may charge $3.00 for the ricords In re: Don Mahan/Office of the Whitley County Judge/ Synopsis: Pursuant to KRS 186.018, the Cabinet maintaind

Executive records only for five years. Also, KRS 186.018 requires

Date: June 16, 1998 the Cabinet to assess the $3.00 charge for driving history ' Issue: Whether the Whitley County Judge/Executive's Of- records. Therefore, "the Cabinet's legal position is

fice violated the Open Records Act by not responding to sound."

requests for documents on the salaries and employees of 980RD-110 the County Clerk's Office. In re: Jerry Wayne Welsh, Jr./Daviess Circuit Court Clerk

Synopsis: The judge/executive's action was inconsistent D ~ ~ ~ : J ~ ~ ~ 29,1998 with the Open Records Act. Thejudge/executive claimed Issue: Whether the Circuit Clerk violated the open'- he was the custodian of the payroll The Records Act by not releasing records of Mr. Wa1sh.s ar- a clerk's office handled payroll. However, the judge/ex- rest and conviction ecutive had records of matching Social Security and synopsis: N ~ . pursuant to 9 & 0 ~ ~ - 6 , the circuit court

retirement rep0rts. He denied the request be Clerk is not subject to the Open Records Act. Mr. Walshi, cause the records contain personal information (eg, appeal his grievance through the courts. names, addresses, social security number, and retirement amount). 98-ORD-111 The Attorney General held that the judge/executive In re: Robert Barker/Nicholas County Water District

should provide the name and location of the official cus- Date: June 29,1998 todian of records. If the judge/executive has some of the Issue: Whether a public agency may orally respond to an,; requested material, pursuant to KRS 61.878 (4) he should Open Records request; whether a public agency musc' * redact the confidential information, and provide the pub- justify denial of a request lic records. Synopsis: The Open Records Act procedural requirements?:

#

98-ORD-101 are part of an essential process, not mere formalities., Pursuant to KRS 61.880(1), the Water District, a public '?: In re: Paul Osborne/Ofice of the Russell CountyJudge/ agency must respond to requests in writing. The Attor-,?

Executive ney General relies on these writings to resolve disputes. -' Date: June 18, 1998 The Water District's failure to do so, was a proceduralkr !?' Issue: Whether the judge/executive improperly denied violation. hd

Mr. Osborne's request for records on the status and loca- ~ l ~ ~ , a public agency must justify denying an openkl tion of generators purchased from the Diva of Surplus Records request. It must record in writing the appropri--4 Property, and copies of checks written from gov- ate exception that applies to the document. Because the( ernment to the "Charles M. Smith Coca Cola Fund", a Water District did not respond in writing, this was a viola- machine located in the courthouse. tion of KRS 61.880(1). P

10 1 1

9 I 4

I Local Government Law News .

ir ,- f. - '. - .- ,-c'[ -r . , - - b . 1 . 3 1 . -- - .- -7, .- - - .. - . "' -.,,',' - . I . . - .. .,;, .--; . .: ;.- q-- . . # - - - .. - - , _ L . . ' , . I ' .. . . .-;, . ..L" ... . .. . - - I ! ' - , ' . - 6 . . r . , ' .. _ I . a" , -*. .. , ' I ' .* , !, -7: ,:.;- ..'- - b- I I .. I - 4. -. . ,- A ji ?I * d . - A A . . - b: . .Gw . ..... . - - ,, , , *..- -. c*.~,~FA*;.% & ; :-::-;6: 1

The Chase d - . - I Local Government Law 11

Center Telephone (606) 572-6313 I

I FAX (606) 572-6302 11 E-mail: clglc@nku.edu I