Request By:
Mr. Charlie Sutton
Kentucky State Horse Park Board Member
Scott County Courthouse
Georgetown, Kentucky 40324
Opinion
Opinion By: Steven L. Beshear, Attorney General; Elizabeth E. Blackford, Assistant Attorney General
You have written on behalf of the Kentucky State Horse Park Board to ask a series of questions which will be answered seriatim. Hereinafter the Kentucky State Horse Park Board shall be referred to as the KSHPB, or, in light of the Governor's executive order of June 30, 1980 renaming the KSHPB the State Horse Park Advisory Board, as the Advisory Board.
1. When does the Kentucky State Horse Park come under the exclusive control of the KSHPB?
Pursuant to executive order of June 30, 1980 the Park will not be placed under the exclusive control of the KSHPB. Rather, control of the Park whall be transferred at due speed from the Department of Parks to the Horse Park Management Board.
Originally, the legislature placed the control of the Park in the Department of Parks. KRS 148.250; Acts 1970, Chap. 179, § 3. During the 1979 Extraordinary Session the legislature passed an act, now codified as KRS 148.260 through 148.320, which created the KSHPB and authorized the KSHPB to take control of the Park. The Act became effective July 1, 1979. The wording of the Act indicates that control of the Park was to be transferred to the KSHPB as soon as the members of that body had been appointed and the body was in functioning order.
Pursuant to the reorganization accomplished by executive order of June 30, 1980 the managerial and administrative functions of the KSHPB have been transferred to the Kentucky Horse Park Management Board. Control of the Park has been transferred to the Management Board as a function of the transfer of all statutory management authority originally placed with the KSHPB pursuant to KRS Chap. 148 by the executive order. Accordingly, once the Management Board members have been appointed and that Board is in functioning order, control of the Park is to be transferred to that Board.
2. What authority or control, if any, does the KSHPB have in respect to the State Department of Parks personnel employed at the Kentucky Horse Park?
Pursuant to the executive order of June 30, 1980 the KSHPB, now the Advisory Board, has no authority or control over the State Department of Parks personnel employed at the Park. All authority over Park employees has been transferred to the Management Board.
3. Can a governor's executive order supersede enacted state law? If so, under what circumstances?
Pursuant to KRS 12.025, the Governor's executive order may supersede state law in matters relating to reorganization of agencies, departments, administrative bodies, etc., where such reorganization is necessary to promote greater economy, efficiency, and improved administration in establishing more effective organizational patterns. Accordingly, the Governor may:
"Establish, abolish or alter the organization of any agency or statutory administrative department, including changing the name of a department to explain more clearly the functions performed by it. Also included in this authority shall be permission to transfer functions, personnel, funds, equipment, facilities and records from one (1) department to another. Reorganization made under this section shall be set forth in an executive order signed by the governor and filed in the office of the secretary of state, which shall explain the changes made and designate the functions, personnel, funds, equipment, facilities and records, as applicable, to be transferred. The governor shall recommend legislation to the next following session of the general assembly to confirm reorganizations effected under the provisions of this section." KRS 12.025(1).
4. Can the KSHPB which is mandated by state law be abolished by Executive Order of the Governor?
In the executive order of June 30, 1980 the Governor transferred the statutory managerial and administrative functions of the KSHPB to the Management Board while retaining the KSHPB as an advisory board. This action falls within the authority vested in the Governor pursuant to KRS 12.025 if the Governor bears the burden of proving the reorganization is necessary to promote greater efficiency, economy and improved administration. The Governor does have the power to abolish the KSHPB as such so long as the statutory functions vested in that body are retained and transferred to another body by way of a reorganization to promote greater efficiency, economy and improved administration. KRS 12.025;
Martin v. Chandler, Ky., 318 S.W.2d 40 (1958).
5. Can members of the KSHPB be dismissed or terminated without cause?
Pursuant to KRS 148.260(6) the members of the KSHPB may be dismissed only for cause after being given a copy of the charges against them and an opportunity to be heard publicly, with counsel on the charges against them. There is authority to indicate that where a reorganization has transferred the functions of the Board so that the Board as such has no further functions, termination of the board members would be "for cause" if the Governor bears the burden of proving the reorganization which results in the board member's termination is valid and necessary. See
Thompson v. Heucker, Ky.App. 559 S.W.2d 488 (1977) wherein the Court held that where a reorganization has been proven to be valid, and where the assigned functions of a merit employee who was subject to discharge "for cause" only were all transferred elsewhere under the reorganization so the merit employee's position was left with no assigned function, and where the merit employee was then discharged, the discharge was valid because the cessation of the function of the position under a legitimate reorganization plan amounts to cause for discharging the person who held that position.
6. What obligation does the State of Kentucky have in relation to financial support of the Kentucky State Horse Park?
The short answer to your question is that the legislature has intended for the Park to be independent and self-sufficient. KRS 148.230. Beyond that, the only obligation the state would have for the support of the Park is that which the legislature, as the controller of the state's purse strings, deems appropriate. The specific details of financial aid for the Park may be worked out within the context of concrete action by the executive and legislative branches of the state.