Request By:
Mrs. Edith Schwab
Reviser of Statutes
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Interim Joint Committee on Judiciary-Statutes of Kentucky is considering legislation relating to the appointment of commissioners to the National Conference of Commissioners on Uniform State Laws. That organization is composed of commissioners from each of the states, the District of Columbia and Puerto Rico. In thirty-three of these jurisdictions the commissioners are appointed by the chief executive acting under express legislative authority. In other jurisdictions the appointments are made by general executive authority. There are usually three commissioners from each jurisdiction. Kentucky has five, and two associate commissioners. You are an associate commissioner. Because case law in Kentucky requires appointments to boards and commissions to be made by the governor, you drafted legislation in that manner.
Your question is whether legislation could be drafted to provide that Kentucky appointments to the National Conference of Commissioners on Uniform Laws be made by the General Assembly or the Legislative Research Commission, rather than the governor.
In order to analyze properly this question, we must look to the source, purpose, nature, and appointment of this national group within the frame of its constitution.
The commissioners are chosen from the legal profession, being lawyers and judges and lawschool professors. The organization has been operating under a constitution and bylaws since 1891. The object of the National Conference is to promote uniformity in the law among the several states on subjects where uniformity is desirable and practicable. N.C. Const., § 1.2. The members and associate members, i.e., the commissioners and associate commissioners, are appointed by the several states, whose commission's authorize them to confer with commissioners of other states.
The National Conference works through committees. Tentative drafts of acts are discussed in detail at the annual meetings. Each uniform act represents the "experience and judgment of a select body of lawyers chosen from every part of the United States. When finally approved by the National Conference, the uniform acts are recommended for general adoption throughout the jurisdiction of the United States and are submitted to the American Bar Association for its approval." 13 U.L.A. Page IV of "Explanation." In voting on legislation to be recommended to the states, each state at the National Conference has one vote.
The N.C. Constitution, Article 2, provides that the term of a commissioner shall not exceed three years and is subject to prior termination by the executive committee upon notice to the commissioner and the president of the appointing organization. The duties of commissioners are indicated in § 5.1 of the N.C. Constitution. They include reporting to the National Conference of any uniform legislation passed by their state; attending meetings of the conference; trying to secure legislation covering appointment of commissioners and expenses in attending national meetings and expenses of conference by their state; and filing reports to governor or legislature of their state. The commissioners receive no compensation, but the participating states may reimburse them for necessary expenses. Although § 2.1 of the N.C. Constitution provides for a term not to exceed three years, the practice over the years has been for the states to make the appointments for a definite term or for an indefinite period. A fixed term is not mandatory.
The National Conference of Commissioners is not a state body. Kentucky lawyers are merely appointed to serve on the national group organized under a constitution and bylaws. The Kentucky commissioners can file reports with the legislature or governor as to what goes on at the National Conference, but the important and controlling work is the proposed legislation hammered out in the annual meetings of the conference and voted on for recommending to the legislatures of the states. In this factual and legal context, it is our opinion that the commissioners are not "state officers" or public officers in the strict constitutional and case law sense. See
Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817, setting forth five requisites of a public office in Kentucky. Here the commissioner is not created by the Kentucky Constitution, statute, or political subdivision [requisite 1]. The commissioner does not possess a delegation of a portion of the sovereign power of Kentucky government. His basic authority is to vote at the National Conference on recommending legislation. [See requisite No. 2, Howard v. Saylor]. His authority is not defined by Kentucky legislation [see requisite no. 3, Howard v. Saylor]. While the commissioner may serve for a term of up to three years, he is subject to prior termination by the Executive Committee of the National organization. See §§ 2.1, 2.7 and 26.1, N.C. Constitution.
The appellate court has held that appointments to state boards and commissions, being a part of the executive branch, can only be made by the governor, as chief of the executive branch. The filling of a state office is executive in nature and must be filled by an executive officer. Each house of the legislature can, however, perform the executive act of electing its own officers [named in the Constituion]. See §§ 34 and 249,
Kentucky Constitution, and Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136 (1901) 137. Under our tripartite government [§ 27, Const.], no person of one of the three branches of government can exercise any power properly belonging to either of the others, except where permitted by the Constitution [§ 28, Kentucky Const.]. However, as we said above, the National Conference of Commissioners is not a state body, and the commissioner is not a state officer or public officer, and thus these carefully drawn constitutional lines of authority in making the appointments do not apply.
The court pointed out in
Craig v. O'Rear, 199 Ky. 553, 251 S.W. 828 (1923) 830, that the rule that one of the branches of government cannot usurp another was not intended to apply to temporary agents or persons who are not officers. Here a commissioner is at the most merely a temporary agent for the state in promoting uniform legislation. He may have a term of up to three years, if not sooner ended by the National Conference, but he is lacking in several of the requisites for a public office.
It is our opinion that legislation could be drafted by you to provide that such appointments be made by the General Assembly or the Legislative Research Commission, rather than the governor. By such legislation the legislature would not be appointing administrative officers of Kentucky, nor would the legislation be denying the appointive function of the governor. Cf.
Elrod v. Willis, 305 Ky. 225, 203 S.W.2d 18 (1947) 20, dealing with statutes providing that certain organizations submit lists to the governor from which he appoints members to certain boards. Such legislation would conform to the rule that the legislature cannot undertake to perform executive acts, except where expressly or by necessary implication permitted by the constitution. Such temporary appointments as agents may be necessarily implied from the constitution. See
Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455 (1922) 457.
KRS 7.110(4) presently provides that the Legislative Research Commission shall designate persons to represent Kentucky at the National Conference of Commissioners on Uniform State Laws. L.R.C. must report the findings and recommendations of the National Conference to the General Assembly. As we said, we are of the opinion that the L.R.C. has constitutional authority to appoint such agents.
In drafting such legislation, we believe you must scrupulously avoid using language tending to create the commissioner role as a public or state office. The legislation should emphasize that the Kentucky commissioners are actually representatives or agents of the Kentucky General Assembly for the purpose of working on uniform legislation within the National Conference to be recommended to the states' legislatures, including the General Assembly of Kentucky. We also are of the opinion that the appointments be made on an indefinite basis, while observing the N.C. Constitution.