Kentucky’s Attorney General has reversed a previous Opinion of the Attorney General issued during his father’s term in that office.
The Anderson County Fire Protection District, a county fire protection district, sought to increase its tax rates. The increase, however, exceeded the threshold for which special purpose governmental entities are subject to recall.
When this issue arose during former Governor Steve Beshear’s tenure as Kentucky’s Attorney General, his office issued Opinion of the Attorney General (“OAG”) 82-323. OAG 82-323 concluded that the state provision allowing for recall applied “whenever an already established rate [for fire protection districts] is increased.”
Fast forward a quarter of a century later and this opinion has been withdrawn by an opinion issued by the office of Kentucky’s current Attorney General, Andy Beshear, the former Governor and Attorney General’s son.
In OAG 17-020, the Office of the Attorney General has ruled that tax rate increases by fire protection districts are not subject to recall for several reasons.
First, the enabling statute for fire protection districts explicitly excludes fire protection district taxes from the recall provisions of KRS 132.023.
Second, an unpublished 2016 decision by the Court of Appeals ruled just that: that fire protection district tax rates were excluded from the recall provisions of KRS 132.023 by “the unambiguous language” of the enabling statute for fire protection districts.
And, third, also in 2016, the Kentucky General Assembly amended the law defining “‘special purpose governmental entities” to exclude “[a]ny fire protection district or volunteer fire department district operating under KRS Chapter 75.” Special purpose governmental entities setting of tax rates are subject to the recall provisions of KRS 132.023; with this explicit exclusion of fire departments, their rates, therefore, are not subject to recall under KRS 132.023.
I doubt that this overturning of former Governor Beshear’s opinion when he was Attorney General by his son who is now Kentucky’s Attorney General will cause much angst at family dinners. But, the new opinion will make it clear for Fire Districts that their setting of tax rates are not subject to the recall provisions of KRS 132.023.