[1997/oagheade.htm]

OAG 97-13

May 9, 1997

Subject: Whether Revenues Collected Pursuant to KRS 65.760, To Establish and Operate 911 Emergency Telephone Service, may be Lawfully Expended to Purchase Street Signs Which Display 911 Street Names.

Written by: Gerard R. Gerhard

Requested by: Clyde Combs, Jr., Assistant County Attorney On Behalf of Floyd County Fiscal Court

Syllabus: Street signs are not within the scope of a "911 emergency telephone service," as defined in KRS 65.750, for purposes of KRS 65.760, and thus cannot be lawfully purchased with funds collected pursuant to KRS 65.760(3).

OAGs cited: None.

Constitutional Provisions Construed: Constitution of Kentucky 180

Statutes Construed: KRS 65.750; 65.760; 65.760(3); 68.100; 68.110; 68.990(3)

Opinion of the Attorney General

The following question has been presented:

May the revenues collected pursuant to KRS 65.760 be expended to purchase street signs which display 911 street names?

In our view the answer is no. "Street signs" are not within the scope of a "911 emergency telephone service," as defined in KRS 65.750, for purposes of KRS 65.760. Accordingly, street signs cannot be lawfully purchased with funds collected pursuant to KRS 65.760(3). Discussion follows.

Requestor's contention that expenditure is justified

The request to this office indicates the cost of street signs may be lawfully paid from funds collected pursuant to KRS 65.760(3) "because the signs are reasonably necessary to the efficient operation of 911 emergency telephone service in Floyd County." It is pointed out that many residences in Floyd County previously had no formal street address, and that with the assignment of addresses to enable operation of 911 emergency telephone service, emergency personnel will not be able to locate many residences without the aid of street signs bearing the new names assigned for 911 purposes.

KRS 65.760(3) limits expenditure of funds

The purposes for which funds collected pursuant to KRS 65.760(3) may lawfully be expended are determined by the terms of that statute, and the definitions applicable to it, rather than by the general consideration of whether an expenditure is reasonably necessary to the efficient operation of 911 emergency telephone service.

KRS 65.760(3) authorizes imposition of a special tax, license, or fee to "establish and operate a 911 emergency telephone service." It provides:

The funds required by a city, county, or urban-county government to establish and operate 911 emergency telephone service, or to participate in joint service with other local governments, may be obtained through the levy of any special tax, license, or fee not in conflict with the Constitution and statutes of this state. The special tax, license or fee may include a charge to be collected from local exchange telephone subscribers in the area to be served by 911 service on an individual exchange line basis limited to a maximum of twenty-five (25) exchange lines per account. All revenues from a tax or fee expressly levied to fund 911 emergency services shall be expended solely for this purpose. The governing body may apply for and accept federal moneys, and may accept contributions and donations from any source for the purpose of funding 911 emergency telephone service.

(Emphasis added.)

The first sentence of the statutory provision quoted above authorizes imposition of a special tax, license, or fee to establish and operate 911 emergency telephone service.

"911 emergency telephone service," as used in KRS 65.760, is defined in KRS 65.750, in the following terms:

As used in KRS 65.755 and 65.760, "911 Emergency Telephone Service" means a telephone service which provides the user of the public telephone system the ability to reach local emergency service agencies on a twenty-four hour basis, by dialing the digits 9-1-1. Such a service is capable, at a minimum, of transmitting requests for law enforcement, firefighting, and emergency medical and ambulance services to a public safety agency or other provider that provides the requested service where the call originates.

(Emphasis added.)

A careful reading of KRS 65.750 indicates that, for purposes of KRS 65.760, a 911 emergency telephone service consists of the equipment, facilities, and personnel necessary to receive and dispatch calls for emergency services. Street signs, in our view, do not fall within that purview. The test of the lawfulness of expenditure of funds collected to establish and operate a 911 emergency telephone service is not, as suggested by the request for this opinion, whether a given expenditure is "reasonably necessary to the efficient operation" of 911 emergency telephone service. Instead, the question is whether a given expense is for a purpose that falls within the statutory limitation imposed upon the use of funds collected pursuant to KRS 65.760(3).

There is no question that street signs which uniquely identify streets are reasonably necessary to the efficient operation of 911 emergency telephone service. Such signs may enhance the ability of callers to identify the location where 911 emergency services are needed, and, at the same time, facilitate dispatch of emergency services, as well as enhancing the ability of a responding agency to identify a given street, so that emergency services may be delivered. In our view, however, street signs are a part of the road system, rather than of the 911 emergency telephone service, as defined in KRS 65.750 for purposes of KRS 65.760(3). While information from a street sign may be utilized in connection with receiving a call for emergency assistance, such sign is not a part of the equipment utilized to actually receive and dispatch a call for emergency services.

The request for this opinion, in support of the position that funds collected to establish and operate a 911 emergency telephone service may be expended to pay the cost of street signs, quotes a letter issued by this office in 1992 as indicating:

That telephone equipment will not be able to deliver the required level of service unless a system has been developed and installed which enables the county to deliver the service by properly utilizing its equipment.

The letter cited does not address the lawfulness of purchase of street signs from funds collected pursuant to KRS 65.760(3), and, in any event, cannot provide proper justification for expenditures that would be inconsistent with restrictions imposed by that statute.

Tax revenues not to be diverted from purpose for which they were collected

KRS 65.760(3) authorizes the imposition of a special tax, license, or fee to establish and operate 911 emergency telephone service. Floyd County is understood to have imposed a 911 "fee," by Ordinance 95-002, passed in 1995. Whether termed a tax, license, or fee, as a revenue raising measure (to raise revenue to generally establish and support 911 emergency telephone service) the charge is, from a legal perspective, a tax.

Several provisions of Kentucky law ban the diversion of tax revenue from the purpose for which it is collected.

Section 180 of the Constitution of Kentucky provides:

Every act enacted by the General Assembly, and every ordinance and resolution passed by any county, city, town, or municipal board or local legislative body, levying a tax, shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose.

(Emphasis added.)

Implementing Section 180 of the Constitution of Kentucky is KRS 68.100, which provides:

(1) All county taxes shall be levied by order or resolution of the fiscal court. The purpose for which each tax is levied shall be specified in the order or resolution, and the revenue therefrom shall be expended for no other purpose than that for which the tax was levied. Failure to specify the purpose of the tax shall render the order or resolution invalid.

(2) If any county tax revenue is expended for another purpose than that for which the tax was levied, each officer, agent or employee who, by refusal to act, could have prevented the expenditure, and each member of the fiscal court who voted for the expenditure, shall be jointly and severally liable to the county for the amount of county tax revenue so expended. The county attorney shall prosecute to recovery all such actions, and if he fails to do so for six (6) months after the money is expended any taxpayer may prosecute such action for the use and benefit of the county.

(3) A recovery under this section does not bar a criminal prosecution under subsection (3) of KRS 68.990.

(4) Any indebtedness contracted in violation of this section or of KRS 68.110 shall be void, and the contract shall not be enforceable by the person with whom made; nor shall such county ever be authorized to assume the same, and money paid under any such contract may be recovered by the county.

(Emphasis added.)

The diversion of tax revenues from the purpose for which they were collected is also addressed in KRS 68.110, which provides:

(1) The fiscal court shall not in any year expend any money in excess of the amount annually levied and collected for that year or levied, collected or appropriated for any special purpose.

(2) The fiscal court shall not expend, or permit or authorize to be expended, any county revenue raised by taxes levied for one (one) purpose, for any other purpose than that specified in the order or resolution levying the tax.

(3) No member of the fiscal court shall knowingly vote for any appropriation or contract in violation of this section or KRS 68.100, and no county officer shall knowingly do any act to impose upon the county any pecuniary liability in excess of the limitations of this section, KRS 68.090 and 68.100.

(Emphasis added.)

It should be noted, in connection with subsection (1) of KRS 68.100, and subsection (2) of KRS 68.110, that a provision of a local tax ordinance or resolution purporting to permit expenditures other than in keeping with a statute authorizing such ordinance or resolution, would, to the extent it was not in keeping with the statute, be a nullity. See, for example, 20 C.J.S., Counties, 87.

KRS 68.990(3) provides:

Any county officer or member of a fiscal court who violates any of the provisions of KRS 68.110(3) shall be fined not less than one hundred ($100) nor more than five hundred dollars ($500), or imprisoned in the county jail for not less than one (1) month nor more than twelve (12) months, or both.

(Emphasis added.)

We believe the restrictions imposed by KRS 65.760(3), coupled with the several provisions of law listed immediately above, operate together to ban the purchase of street signs with funds collected pursuant to KRS 65.760(3).

ALBERT B. CHANDLER III

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General