May 22, 1992
Secretary of State and Chairman of the State Board of Elections
Suite 150, State Capitol
Frankfort, Kentucky 40601-3493
Dear Mr. Babbage:
You have requested an opinion on the following matter:
The specific question is to what extent can a state agency, such as the Office of Secretary of State and/or the State Board of Elections, provide support (i.e. staff support, letters, information and staff travel) to assist a private foundation, specifically, Democracy Incorporated of Kentucky, with the development and implementation of programs such as increasing voter education, participation and registration.
You state that Democracy Incorporated is a nonprofit corporation established to implement nonpartisan programs to increase voter education, registration, and participation. The corporation is funded by contributions from individuals, companies, and other foundations.
Your question implicates section 177 of the state constitution, which provides:
The credit of the Commonwealth shall not be given, pledged or loaned to any individual, company, corporation or association, municipality, or political subdivision of the State; nor shall the Commonwealth become an owner or stockholder in, nor make donation to, any company, association or corporation; nor shall the Commonwealth construct a railroad or other highway.
Since section 177 prohibits the state from making a donation to any corporation, whether profit or nonprofit, a straightforward reading of the section would seem to prohibit the state from donating employee time and support to Democracy Incorporated. The Supreme Court of Kentucky, however, has interpreted section 177 to contain no barrier to such donation that furthers a valid public purpose. In Hayes v. State Property and Buildings Commission, Ky., 731 S.W.2d 797 (1987), the court said:
Section 177 of the Constitution wisely prohibits the giving of the credit of the Commonwealth or the making of a donation to any private corporation or individual. However, as long as the expenditure of public money has as its purpose, the effectuation of a valid public purpose, Section 177 is not offended even in situations where the conveyance occurs without consideration.
Id. at 799. The court went on to note, The important point is whether the purpose is public and not whether the agency through which it is dispensed is public. The appropriation is not made for the agency or company but for the public purpose or object which is to be served. Id. at 801.
We have no hesitation in concluding that increasing voter education, participation, and registration represent a valid public purpose. This conclusion may be gleaned from the following statutes:
KRS 116.045(4)(d), which allows registration drives by voluntary interested groups;
KRS 116.046, which establishes a system for registering high school students and which requires the state board of elections to implement programs of public education regarding elections, voting procedures, and election fraud;
KRS 117.030, which requires the state board of elections to publish and broadcast announcements throughout the state regarding the importance of voting in a free and conscientious manner, procedures for registering to vote and voting, general election laws, and penalties for vote buying and selling; and
KRS 117.235(6), which authorizes the state board of elections to establish a program that will instill in schoolchildren a respect for the democratic principles of voting by conducting a mock election.
We find ample authority for the state board of elections to conduct programs designed to increase voter education, registration, and participation. Whether these programs are conducted solely by the board or in conjunction with a nonprofit corporation is immaterial since the programs pursue a valid public purpose.
You also ask what type of support Democracy Incorporated may provide to the state agencies with which it participates. As long as the corporation and the agencies are engaged in pursuing the valid public purposes we have described above, we find no barrier to a cooperative sharing of support.
Ross T. Carter
Assistant Attorney General