Request By:
Mr. Arnold Guess, Director
Kentucky School Building Authority
Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth Assistant Attorney General
As the Director of the Kentucky School Building Authority and on behalf of that body you have asked the Attorney General, who is a member of the Authority, to prepare an official advisory opinion regarding possible conflicting language between the 1978 Biennial Appropriations Bill (H.B. 229) and KRS 157.810(2). Basically, the Appropriations Bill provides that unexpended year-end balances in the Foundation Program appropriations revert to the general fund. In comparison, KRS 157.810(2) reads as follows:
"The authority is empowered to receive and hold in trust for use for the purposes expressly covered in KRS 157.800 to 157.895: grants and appropriations from the federal government; appropriations from the state from the general fund; any portion of the state share of federal revenue sharing funds allocated to it; state rvenue sharing funds; unexpended year end balances remaining in the foundation program appropriation; rental payments from local school districts but only for application as provided in agreements with said districts; and any and all funds which it may derive from grants or bequests from private agencies."
You have asked this office which of the above provisions control the disposal of unexpended Foundation Program appropriations. It is our opinion the language in the 1978 Biennial Appropriations Bill must prevail.
In support of our conclusion, we note first that the Appropriations Bill (H.B. 229) was approved after, March 29, 1978, the Kentucky School Building Authority bill (H.B. 627), March 28, 1978. More importantly, the critical language in KRS 157.810(2) is that the Authority is "empowered to receive." The statute does not say that the Authority is "required" or "shall" receive. The subsection goes on to list potential sources of revenue, one of which is unexpended year-end balances remaining in the Foundation Program appropriations. If the General Assembly desired to provide that at the end of a biennium any unexpended Minimum Foundation funds would go to the Authority, the General Assembly could do so and the Authority is empowered to receive those funds. Thus, we do not believe KRS 157.810(2) can be read to be actually in conflict with the 1978 Appropriations Bill. KRS 157.810(2) simply lets the Authority be ready to receive whatever funds the General Assembly may see fit to give, including unexpended year-end balances remaining in the Foundation Program appropriations.