While both City Manager Nate Pagan and DCPS Superintendent Matt Robbins said negotiations are ongoing, there is no indication that an agreement will be reached by Tuesday’s City Commission meeting.
Board of Education attorney Sean Land said if the two parties do not arrive at a compromise and the commission approves annexation, the board of education is prepared to litigate the matter.
“The board can simply not support annexation at the expense of its employees,” Land said.
Robbins said, while a lawsuit with the City is not desirable, the board is committed to protecting its employees from the increased occupational tax.
“Without question, it’s not something we are excited about,” he said. “But if it becomes a reality for us, we are willing to deal with that financially to the best of our ability.”
City of Owensboro Attorney Steve Lynn said that the City based their decision to annex nine Daviess County Public Schools facilities — six schools and three departments — at least in part, on a similar case out of Mayfield, Ky.
In that case, the City of Mayfield sent a letter to the Graves County Board of Education notifying them of their intent to annex three tracts of land of the school’s property.
The board of education responded with a letter objecting the annexation and requesting a petition for election, citing KRS 81A.420. That law states that if 50 percent of the resident voters or owners of real property within the proposed annexation oppose the proposal, the decision must go on the ballot of the next regular election.
The City of Mayfield cited KRS 65.102, which states that if someone petitions for a referendum (or election), they must provide a year of birth and must live within the district affected by the election.
Graves County Circuit Judge Tim Stark directed the matter be placed on the ballot for the general election. However, the case made its way to the Kentucky Court of Appeals, where two of three judges on the decision-making panel reversed the circuit court’s decision and opted to side with the newer of the two statutes, finding in favor of the City of Mayfield. The Graves County Board of Education did petition the Kentucky Supreme Court to hear the case but was declined.
The court of appeals decision only dealt with the referendum and voting issue of the Graves County Board of Education and did not deal with the non-consensual annexation itself.
The two judges that voted in favor of the City of Mayfield were from Louisville, a merged city-county government, while Daviess County resident Judge Jeff Taylor was the dissenting vote.
“I, frankly, find such a ruling to be unconstitutional,” he said in his unpublished opinion. “The majority has effectively held that corporations and other legal entities that own property but are not natural persons have no legal right to oppose an annexation due to the restrictive language of KRS 65.012. This does not comport with legislative intent or common sense. Additionally, the illogical effect of the majority’s ruling would restrict a non-resident voter who owns property in the area to be annexed from opposing the annexation.”
The 2016 court of appeals decision was an unreported judgment or a decision of the court of appeals that was not published. An unreported case may be cited as an authority, but it is less persuasive than a reported decision, according to local legal professionals Owensboro Times consulted.
According to Land, this means the Graves County decision does not serve as a precedent and cannot be cited as authority.
However, Lynn said unreported judgments have persuasive authority.
“Even though it is an unreported case, it does give us the idea that this is how the court ruled and it gives us a good outline of what decision they might make in the future cases along similar lines,” Lynn said.
Since that 2016 court of appeals decision, KRS 81A.482 was enacted in July 2018, stating that when a proposes to annex a property where an individual does not reside, any person who pursues litigation against the annexation shall have standing in a court of law if they own property in the area of the annexation.
While KRS 81A.482 gives the board of education standing in a court of law, Land said KRS 81A.410 provides specifications of when a city can annex property. According to Land, that statute says the property has to be contiguous or adjacent to already annexed property and must be urban in character. He argues that the six schools and three department facilities proposed for annexation does not meet the criteria.
Lynn believes that the Kentucky Supreme Court’s decision not to hear the Graves County case and the court of appeals siding with the City of Mayfield gives the City of Owensboro the legal precedence needed to pursue annexation.
“We feel very strongly that the set of facts that we have here are very much in our favor,” Lynn said. “We have taken a good hard look at it and we feel as though those properties should be a part of the City of Owensboro. We’ve made the decision, regardless of what it may ultimately cost, we’ve made the determination, it’s worthy of taking this up and going forward.”
