KY OAG 22-06 2022-10-12

Can a Kentucky county pay to build and maintain pedestrian swinging bridges with public money?

Short answer: Yes, with one limit. The Attorney General concluded that a fiscal court may spend public funds to build and maintain pedestrian swinging bridges within the county, because KRS 67.083 lets counties fund recreational, cultural, and tourism-promoting projects, and swinging bridges qualify. The one restriction: the money cannot come from a special tax levied for a different purpose, such as county road taxes, since the Kentucky Constitution bars spending an earmarked tax on something else. General-fund dollars consistent with the approved budget are fine.

Disclaimer: This is an official Kentucky Attorney General opinion. AG opinions are persuasive authority in Kentucky courts but are not binding precedent like a court ruling. This summary is for informational purposes only and is not legal advice. Consult a licensed Kentucky attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

Swinging bridges are a fixture of eastern Kentucky (Clay County calls itself the Land of Swinging Bridges, and Pike County is building one billed as the longest in the country), and they have become tourism attractions. Senate President Robert Stivers asked the Attorney General whether a county fiscal court can spend public money to build and maintain pedestrian swinging bridges.

The opinion said yes, as a general matter. KRS 67.083 lets a fiscal court appropriate funds for public functions, including recreational and cultural facilities (subsection (3)(f)) and the promotion of economic development and tourism (subsection (3)(x)). Because swinging bridges draw tourists and are enjoyed by the public for recreation, a fiscal court has authority to spend on them.

There is an important limitation, drawn from an older opinion, OAG 83-267. Section 180 of the Kentucky Constitution and KRS 68.100 say a county cannot levy a tax for one purpose and spend it on another. The earlier opinion concluded that a standalone pedestrian swinging bridge is not a "county road" or a "public bridge" connected to a highway, so county road tax money (a special tax earmarked for roads and bridges) cannot be used on swinging bridges. But that limitation is about the source of the money, not about swinging bridges as such. The opinion explained that a fiscal court does not have to levy a special tax at all: it can pay for swinging bridges out of general-fund dollars, as long as the spending is consistent with its approved budget. So the answer is yes, with the caveat that the funds must not come from a special tax levied for a different purpose.

What this means for you

County officials and fiscal court members

Under this opinion, a fiscal court has general authority under KRS 67.083 to spend public funds building and maintaining pedestrian swinging bridges as recreational and tourism projects, provided the money is not drawn from a special tax levied for a different purpose.

County attorneys

The opinion distinguishes the source of funds: general-fund money consistent with the approved budget may be used, but special county road tax money may not, because (per OAG 83-267, Section 180, and KRS 68.100) an earmarked tax cannot be diverted to another purpose, and a standalone pedestrian swinging bridge is not a county road or highway-connected public bridge.

Tourism and local government finance officers

For those planning bridge projects as tourism draws, the opinion treats swinging bridges as falling within the tourism and recreation functions in KRS 67.083(3)(f) and (x).

Common questions

Q: Can a Kentucky county spend public money on pedestrian swinging bridges?
A: Yes, according to this opinion, under the fiscal court's authority in KRS 67.083 to fund recreational, cultural, and tourism projects, as long as the funds are not from a special tax levied for another purpose.

Q: Why can't the county use road tax money for swinging bridges?
A: The opinion explains that Section 180 of the Kentucky Constitution and KRS 68.100 bar spending an earmarked tax on a different purpose, and a standalone pedestrian swinging bridge is not a "county road" or a highway-connected "public bridge," so road taxes do not fit.

Q: Does the county have to levy a special tax for the bridges?
A: No. The opinion says a fiscal court may use general-fund dollars for swinging bridges if the spending is consistent with its approved budget.

Background and statutory framework

KRS 67.083(3) lists public functions a fiscal court may fund, including recreational and cultural facilities (subsection (f)) and economic development and tourism promotion (subsection (x)). A swinging bridge devoted solely to pedestrian traffic is not a "bridge" within the road-related function in KRS 67.083(3)(t). Section 180 of the Kentucky Constitution and KRS 68.100(1) require that a tax be spent only for the purpose levied. Relying on OAG 83-267, the opinion concluded that road-tax money cannot fund standalone swinging bridges, because they are not "county roads" (KRS 178.010(1)(b)) or highway-connected "public bridges" under cases like Muncey and State Highway Commission. Citing Nichols v. Henry, the opinion noted that levying a general-fund tax per the approved budget satisfies Section 180, so general-fund dollars may be used.

Citations and references

Statutes and constitution:
- KRS 67.083(3)(f), (x), (t) (county public functions)
- Ky. Const. § 180; KRS 68.100(1) (earmarked taxes spent only for their purpose)
- KRS 178.210 (special road-and-bridge tax); KRS 178.010(1)(b) (county roads); KRS 189.010 (highway)
- KRS 171.396 (historic structures)

Cases:
- Nichols v. Henry, 191 S.W.2d 930 (Ky. 1945)
- Louisville & N.R. Co. v. Muncey, 229 Ky. 538, 17 S.W.2d 422 (1929)
- State Highway Commission v. County Board of Education, 264 Ky. 95, 94 S.W.2d 302 (1936)

Source

Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2022-06.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
October 12, 2022
OAG 22-06
Subject: Whether a Fiscal Court may expend public funds on the construction and maintenance of pedestrian swinging bridges located within the Fiscal Court's jurisdictional boundaries.
Requested by: Robert Stivers, President of the Senate
Written by: Carmine G. Iaccarino, Chief of Staff & General Counsel; Jeremy J. Sylvester, Assistant Attorney General
Syllabus: Under the circumstances described, a Fiscal Court may expend public funds on the construction and maintenance of pedestrian swinging bridges located within the Fiscal Court's jurisdictional boundaries, so long as those funds are not derived from special taxes levied for a different purpose.

Opinion of the Attorney General

Historically, swinging bridges have been used throughout eastern Kentucky for pedestrian travel; they have since become significant tourism draws. In fact, Clay County is often referred to as the Land of Swinging Bridges, while Pike County will soon be home to the longest swinging bridge in the United States. Kentucky's swinging bridges are, and should remain, a point of pride for the Commonwealth.

At issue here is whether a Fiscal Court has the general statutory authority, if exercised properly, to construct and maintain pedestrian swinging bridges. Our analysis starts, as always, with the statutory text. KRS 67.083 empowers a fiscal court to appropriate funds in furtherance of public functions, including:

(f) Provision of parks, nature preserves, swimming pools, recreation areas, libraries, museums, and other recreational and cultural facilities and programs; [and]
(x) Promotion of economic development of the county, directly or in cooperation with public or private agencies, including the provision of access roads, land and buildings, and promotion of tourism and conventions.

KRS 67.083(3)(f), (x). [KRS 67.083(3)(t) provides that the provision of streets and roads, bridges, tunnels, and related facilities is a public function. KRS 67.083(3)(t). Consistent with the analysis OAG 83-267, as later explained, a swinging bridge devoted solely to pedestrian traffic is not a "bridge" as that term is used in KRS 67.083. In addition, KRS 67.083(3)(y) also allows appropriations for the preservation of historic structures. Although many of these bridges are historic in a generic sense, "historic structures" are those structures listed on the National Register of Historic Places or those structures located in a historic district listed on the National Register of Historic Places and certified as contributing to the historic significance of the district by the Kentucky Heritage Council. KRS 171.396.] Swinging bridges promote tourism, particularly in Clay County, and are enjoyed by the public for recreational purposes. Accordingly, a fiscal court has the general authority to expend funds on those swinging pedestrian bridges made available for public enjoyment.

This Office previously addressed whether certain type of public funds could be used to construct and maintain swinging bridges. See Opinion of the Attorney General 83-267 (OAG 83-267). Specifically, OAG 83-267 addressed whether it was consistent with KRS 68.100 and § 180 of the Kentucky Constitution for local governments to use taxes levied for county roads to construct and maintain swinging bridges. As stated in OAG 83-267, Kentucky law prohibits a local government from levying a tax for one purpose and spending it for another purpose. [Section 180 of the Kentucky Constitution provides that "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 the tax is levied, and no tax levied and collected for one purpose shall every be devoted to another purpose." KY. Const. § 180. KRS 68.100 further explains that "[a]ll county taxes shall be levied by order or resolution of the fiscal court," that the "purpose for which each tax is levied shall be specified in the order or resolution," and that revenue from the tax "shall be expended for no other purpose than that for which the tax was levied." KRS 68.100(1).] See generally OAG 83-267.

The conclusion in OAG 83-267 turned on whether Kentucky law considers a swinging bridge to be a "public bridge" or part of a "county road." [That statute provides: "'County roads' are public roads which have been formally accepted by the fiscal court of the county as a part of the county road system, or private roads, streets, or highways which have been acquired by the county pursuant to subsection (3) of this section or KRS 178.405 to 178.425. 'County roads' includes necessary bridges, culverts, sluices, drains, ditches, waterways, embankments or retaining walls." KRS 178.010(1)(b) (cleaned up).] If so, the expenditure of county road money on public bridges or county roads likely would have been lawful. But the opinion found that a swinging bridge was not a "necessary and integral part of a county road," nor could an isolated swinging bridge unconnected to a public highway be considered a "public bridge" under existing case law. OAG 83-267. [OAG 83-267 stated: "[P]ublic bridges have been defined to be such as form part of the highway, whether foot or vehicular traffic. 11 C.J.S., Bridges §3, p. 985). See Louisville & N.R. Co. v. Muncey, 229 Ky. 538, 17 S.W.2d 422 (1929); and State Highway Commission v. County Board of Education, 264 Ky. 95, 94 S.W.2d 302 (1936)." See also, KRS 189.010 (defining highway as "any public road, street, avenue or boulevard, bridge, viaduct, or trestle and the approaches to them.")] Therefore, in OAG 83-267 this Office opined that "KRS 68.100 and § 180, Kentucky Constitution, would prohibit expenditure of county road money on such swinging bridges." OAG 83-267 (emphasis added). Although not explicitly stated, "county road money" referred to funds levied by special tax and designated for county roads. See KRS 178.210 (discussing special tax for "construction of the public roads and bridges of the county"); KRS 178.210 (special tax to retire bonds issued to fund the building of roads (KRS 178.200).

Consequently, a Fiscal Court does not violate KRS 68.100 or Section 180 by spending general fund money on swinging bridges, provided that the expenditure is consistent with the Fiscal Court's approved budget. As explained by the Kentucky Court of Appeals:

When, therefore, the Fiscal Court accepts the proposed budget and levies a tax for general fund purposes in accordance with the budget, the requirement of section 180 that the 'resolution passed by any county levying a tax, shall specify distinctly the purpose for which said tax is levied,' is satisfied.

Nichols v. Henry, 191 S.W.2d 930, 933 (Ky. 1945). In other words, a Fiscal Court need not levy a special tax for the construction and maintenance of swinging bridges. It may use general fund dollars for those expenditures if consistent with its approved budget.

For these reasons, it is the Attorney General's opinion that, based on the conditions set forth above, a Fiscal Court may spend public funds for the construction and maintenance of swinging bridges.

Daniel Cameron
ATTORNEY GENERAL
Carmine G. Iaccarino
Jeremy J. Sylvester