March 2, 1994
Hon. John D. Harper
Bullitt County Kentucky
P. O. Box 397
Shepherdsville, Kentucky 40165
Re: What Funding Mechanism is Available to Support Formation of a County Police Force.
Dear Judge Harper:
By letter of February 22, 1994, you asked for an opinion concerning what funding mechanism(s) can be used to fund formation of a county police force. KRS 70.540 authorizes county judge/executives to establish, appoint, and maintain a county police force.
The only viable funding mechanism that might fully support formation of a county police force is the general tax revenue of a county, via proper budgeting by the fiscal court. Discussion follows.
As pointed out, in substance, by the February 22, 1994, letter of Bullitt County Attorney Walter Sholar, addressed to the members of the Bullitt County Fiscal Court, which accompanied your request for this opinion, because of fiscal and certain other implications of operation of a county police force, and despite the authority vested in the county judge/executive by KRS 70.540, a county police force cannot be unilaterally established by a county judge/executive.
Operation of a county police force obviously has significant fiscal implications for a county. Authority to regulate and control the fiscal affairs of the county is vested with the fiscal court as a body. See KRS 67.080(1)(c).
In at least two prior opinions which we now overrule, OAG 81-420, and OAG 82-347, this office indicated that a fiscal court has a positive duty to fund a county police force. These opinions predated the decision of the Kentucky Supreme Court in Fiscal Court v. Taylor County Police, Ky., 805 S.W.2d 113 (1991) (copy enclosed). In reversing a Court of Appeals decision which had reversed the circuit court's dismissal of a request for a writ of mandamus directing a fiscal court to provide adequate funds for a county police force, the Supreme Court observed:
No matter how far one looks, or how far one stretches the language, the only interpretation that can be made is that the fiscal affairs of the county are to be regulated and controlled by the fiscal court.
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The decision to fund, to any degree, a county police force or any county agency is, arguably, a political one. KRS 68.260 gives credence to this view. It provides for the adoption of a county budget by the fiscal court . . . .
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As much as we may agree with the decision to have a county police force, and or as much as we may disagree with the rendered appropriation which effectively eliminated the force as a viable entity, we cannot substitute our judicial fiat for that of the clear legislative purpose and traditional role of fiscal courts in setting legislative and fiscal policy. See, analogy, Commonwealth ex rel. Armstrong v. Collins, Ky., 709 S.W.2d 437 (1986) and Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984).
Given the observations of the Kentucky Supreme Court as quoted above, it is obvious that a county judge/executive cannot unilaterally impose a county police force on a county. KRS 70.540 should not be read in isolation.
This leads us to your specific question as to what funding mechanism can be used to support the formation of a county police force. In our view, given the substantial cost of a county police force, the only viable funding mechanism for formation of a county police force is that of county general revenues upon proper budgeting by the fiscal court, as provided for by KRS 68.260 and related provisions.
While formation or operation of a county police force might be aided by a grant of some nature, we are not aware of any source of funds, other than county general revenue, that might be available to fully support the formation of a county police force. Further, the likelihood is that any grant or other funds received to support a county police force would have to be applied for by the county, and be received by the county. Such funds would, as county funds upon receipt, be subject to the general purview of the fiscal court. KRS 61.080(1)(c).
To the extent it might be said to be part of the funding mechanism, we note that the formation of a county police force, and the appropriation of money for its operation, with the attendant required approval of the fiscal court, is a matter that must be addressed through a county ordinance. See KRS 67.075 and 67.076.
OAG 81-420 and OAG 82-347 are overruled as contrary to the law as expressed by the Kentucky Supreme Court in Fiscal Court v. Taylor County Police, Ky., 805 S.W.2d 113 (1991).
Gerard R. Gerhard
Assistant Attorney General