Request By:
Honorable Gene Huff
State Senator, 21st District
Legislative Research Commission
Room 319
State Capitol
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of July 25 in which you relate that the Financial Disclosure Review Commission was established by the 1978 General Assembly, however, at the 1980 Session the funding of said Commission was seriously cutback and it is rumored that the Commission would be transferred to the Registry of Election Finance. Under the circumstances, you raise the following questions on behalf of the Commission.
"(1) Can such a transfer be activated since this is a statutory commission in its own right?
"(2) Can the Executive Branch perform such a transfer without action by the General Assembly?
"(3) Since the Commission has been underfunded, what is their status and alternative as far as performance of their statutory function is concerned?"
In response to Questions (1) and (2), the Financial Disclosure Review Commission was established as an independent agency of state government pursuant to KRS 61.782 to 61.790. Under the governor's reorganizational powers detailed in KRS 12.025 and 12.027, the governor is authorized to transfer the functions of any state agency from one department to another, which we believe would include another independent agency such as the Registry of Election Finance created pursuant to KRS 121.110 and enumerated under KRS 12.020. For your information KRS 12.025 (1), relating to the governor's reorganizational powers, provides as follows:
"(1) 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."
The only way a department or agency can be excluded from the reorganizational powers of the governor would be by a specific statutory exception such as in the case of the Department of Fish and Wildlife Resources as pointed out in the case of
Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1964).
You will note from the above quoted provisions of KRS 12.025 that such reorganization as the governor may implement may be accomplished without initial legislative sanction, however, such reorganization must be approved by the General Assembly at the following session upon the governor's recommendation, in order for it to legally continue.
In response to your third question it is noted that the Commission's funding has been cut from $50,000 to $25,000 for each year of the coming biennium. Of course the Commission's present status remains unchanged until such time as it is altered by the governor's reorganization order issued pursuant to KRS 12.027 or until it is abolished by the legislature. As a consequence, it must continue to function within the financial resources at its disposal.