OAG 93-48


June 29, 1993


Hon. John C. Price

Fleming County Attorney

Fleming County Courthouse

Flemingsburg, Kentucky 41041

RE: Whether County May Maintain Roads that Are "County Roads"

But Are Not Shown on County Road Aid Map (County Road

Series Map). AGO Corr. No. 93-(O)-238.

Dear Mr. Price:

By letter of February 12, 1993, you ask, in substance, whether roads that are county roads, but are not shown on the county road aid map, may be maintained with county general fund or other monies.

Although a county may, subject to proper budgetary allocation, expend county general fund or other unrestricted county funds on road maintenance, in our view, a county cannot maintain a road not shown on a county road aid map (County Road Series Map) adopted by the fiscal court, unless such road was entitled to acceptance as a part of the county road system, and has been so accepted by the fiscal court. Discussion follows.

You explain that the Commonwealth, through its employees, is in the process of updating county road aid fund system maps designating county roads which county road aid funds may be used to maintain. You indicate that there appear to be certain other roads which are county roads, but which are not included in the county road aid map. The fiscal court wants to know if county general fund or other monies (other than county road aid monies) can be used to maintain such roads.

First, we will provide some background about what are sometimes called "county road aid maps," which are known officially as "County Road Series Maps."

Pursuant to KRS 177.320(2) and (3), certain funds, known commonly as "county road aid funds," are "allocated" to the counties for " . . . construction, reconstruction, and maintenance of county roads and bridges . . . ." "County roads and bridges," as used in KRS 177.320, are those as defined in KRS 178.010(1)(b), pursuant to KRS 179.410 and 179.010(1).

In order to facilitate monitoring of the application of these funds, and in connection with its responsibilities concerning state maintained secondary and rural roads within the counties (e.g., KRS 177.320, 177.330, 177.350), the Kentucky Transportation Cabinet's Department of Rural and Municipal Aid is developing maps known as County Road Series Maps. The maps are presented to the fiscal court of a county for adoption, together with a proposed resolution typically indicating that the map reflects those roads within a county which have been accepted by the fiscal court as county roads.

Presumably a fiscal court would want such map to show every lawfully accepted county road within the county, in order to provide documentation that a given road is eligible for expenditure of state funds made available pursuant to KRS 177.320. We believe this circumstance gives rise to a rebuttable presumption that a road not shown on a County Road Series Map that has been formally adopted for a county, is not a "county road" within the meaning of KRS 178.010(1)(b). Such a presumption may be rebutted by various circumstances. For example, a road that is not shown on such map, but which has in fact been accepted by the fiscal court as a county road, may not have been included on the map through inadvertence, or because it was accepted after the map was prepared. It might be noted as well, that the fact that a road appears on such map is not absolutely conclusive regarding whether or not a given road is a "county road," as a road may have been depicted through error, or may have been discontinued through formal action of the fiscal court, but the map has not bee updated to reflect such discontinuance.

As indicated in previous opinions of this office, unless a road has been validly and formally accepted as a county road by the fiscal court (KRS 178.010(1)(b)0, public monies (e.g., county general fund or other monies) cannot be spent to maintain it. See Opinion of the Attorney General (OAG) 82-136, and OAG 88-59, copies enclosed. We note in this connection that not just any road can be accepted as a county road by a fiscal court. In addition to any other requirements, a road, in order to be accepted by a fiscal court as a "county road," must serve a bona fide public purpose. See § 171 of the constitution of Kentucky; Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979); and OAG 92-74, and OAG 93-10 (copies enclosed).

For the reasons indicated, county funds may only be expended on a road that, irrespective of whether it is shown on the County Road Series Map or not, has been properly accepted as a county road in keeping with KRS 178.010(1)(b), and § 171 of the constitution of Kentucky. Additionally, of course, a given expenditure must be in keeping with the county budget. KRS 68.260, KRS 68.300.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL



Gerard R. Gerhard

Assistant Attorney General

(502) 564-7600

Enclosure