Opinion Number

Dear Mr. Busby:

On behalf of the Sabine Parish Police Jury, at your request, District Attorney Don Burkett has sought the opinion of this office regarding the Parish Transportation Fund, R.S.48:751, et seq. (the "Act"). In particular, the Police Jury is interested in determining: (1) Whether the `capital improvement program' referred to in R.S. 48:751, et seq. must include roads to be repaired with non-Act funds, such as individual road district funds; (2) Whether the words "The capital improvement program shall include all projects . . . based on parishwide needs inclusive of parish roads within municipalities and shall include overlay projects" [R.S. 48:755B(1)] are meant to include road repairs made with gravel or rock and patching done with hot mix by the Jury with Jury employees; and (3) exactly what must be done to a road in order to require the inclusion of the work in the `capital improvement program'.

In response to your first question, it is the opinion of this office that R.S. 48:755, which requires parishes to adopt a `system of administration' that includes a `capital improvement program', is mandatory substantive law which must be complied with regardless of the source of funding for a particular road project. Pertinently, R.S. 48:755 requires each parish to adopt ". . . a parishwide system of administration . . . which shall include the development of a capital improvement program on a selective basis . . ." and which must provide for centralized purchasing and accounting, as well as ". . . selective maintenance and construction." (Emphasis added). Thus, all road projects should be included in the `capital improvement program', even if funding for the repair of those roads will come from parish or road district funds, and not from Act funds. In accord: Atty. Gen. Ops. Nos. 92-328, 89-229, 89-229(A), 89-494. Of course, restrictions on the use of Act funds (R.S. 48:753) for only certain types of projects would not apply to projects that are funded with purely parish funds, even though such projects must be included within the `system of administration'. In accord: Atty. Gen. Op. No. 89-494.

In response to your second and third questions, it is the opinion of this office that all parish road construction, repair and replacement projects should be included within the `capital improvement program', including repairs made with gravel and rock and patching done with hot mix by parish employees. In our opinion, such projects, if they are relatively small, could be included within the `parishwide selective maintenance program' of the `capital improvement program'. In accordance with R.S. 48:755C, the parishwide selective maintenance program shall provide for a weekly schedule of repairs to be prepared and administered by the `parish road manager'. We do note, however, that maintenance work that is not contained within the weekly schedule can be authorized "upon constructive notice of the defect" when the parish road manager considers the defect to constitute a "hazard to public safety".

We trust the foregoing to be responsive to your concerns.

Yours very truly,

RICHARD P. IEYOUB Attorney General

BY: JEANNE-MARIE ZERINGUE BARHAM Assistant Attorney General

RPI:JMZB:jv cc: Hon. Don Burkett, District Attorney