Request By:
Honorable Jerry E. Abramson
General Counsel
Office of the Governor
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
On behalf of Governor John Y. Brown, Jr., you have requested a formal advisory opinion from the Office of the Attorney General regarding the following issue:
"Do the powers granted the Governor of Kentucky, pursuant to KRS 12.025, enable him to reorganize, by Executive Order, the Department of Agriculture presently administered by a Constitutional Officer? "
It is the opinion of this office the answer to this question is in the affirmative, subject to the limitation indicated and discussed below.
The Governor's power of reorganization is provided for in KRS 12.025 as follows:
"Recognizing the necessity for grouping certain related functions of departments and administrative bodies in order to promote greater economy, efficiency and improved administration in establishing more effective organizational patterns and also recognizing the fact that such groupings and revisions in the general organizational structure need to be made as rapidly as possible when administrative functions change and the needs of government dictate, the governor may:
(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 reorganization effected under the provisions of this section."
This statutory provision was placed on the books in substantially the same form it is presently in by the 1960 General Assembly.
Besides KRS 12.025, it is important to note KRS 12.010, which defines for the purposes of Chapter 12 the word "department" at subsection (1)(a) as "that basic unit of administrative organization of state government, by whatever name called, designated by statute or by appropriate executive action as a 'department'." KRS 12.020 is a nonexclusive enumeration of administrative bodies. That latter statute is broken down to those departments headed by elected officers, including the Department of Agriculture (KRS 12.020, I, Item 6), and those departments headed by appointed officers. While KRS 12.020 was amended by the 1980 General Assembly, we believe the thrust of the added proviso was to make it clear that although a department is to be attached to a program cabinet, that attachment would not give the cabinet officer any authority over the functions, personnel, funds, equipment, facilities, or records, if the department or administrative body in issue was headed by a constitutionally elected officer. See KRS 12.265, which indicates the Department of Agriculture is to be a department within the Cabinet for Development. We do not see this amendment of KRS 12.020 as having any bearing on the matter under consideration in this opinion.
Thus, under the above-referenced statutes, we believe the Department of Agriculture, even though headed by a constitutionally elected officer, is clearly a department for general Chapter 12 purposes. In
Hogan v. Glasscock, Ky, 324 S.W.2d 815, 816 (1959), the Court of Appeals wrote:
"The departments and agencies governed by Chapter 12 are specified in KRS 12.020. They are integral parts of the executive branch of the state government created by the Constitution or statute to exercise executive and administrative functions on a state-at-large level."
The question you ask is whether a department headed by a statewide elected constitutional officer is subject to the powers of the Governor provided for in KRS 12.025. Importantly, we believe, is the fact that the General Assembly has not specifically exempted a department headed by an elected official from the KRS 12.025 reorganization powers of the Governor. This has been done, for example, in KRS 150.018, which prior to the 1976 session of the General Assembly, specifically exempted the Department of Fish and Wildlife from KRS 12.025.
Next we note that in Sections 91 and 93 of the Kentucky Constitution it is provided that the duties and responsibilities of the Treasurer, Auditor of Public Accounts, Secretary of State, Commissioner of Agriculture, Labor and Statistics, Attorney General, Superintendent of Public Instruction and Register of the Land Office are to be "prescribed by law." The Court of Appeals stated in
Ferguson v. Chandler, 266 Ky. 694, 99 S.W.2d 732, 736 (1936) with regard to the Commissioner of Agriculture:
"It is plain that whilst the Commissioner (of Agriculture) is a constitutional officer, the Constitution neither defines nor prescribes his powers and duties. It expressly provides that they 'shall be such as may be prescribed by law.'"
The fact that the powers and duties of the Commissioner of Agriculture are to be prescribed by the General Assembly ties in closely to what we deem to be the net effect of giving reorganization power to the Governor and of that power, including the reorganization of any department of state government, whether or not headed by an elected officer. This office, in OAG 69-51, copy attached, referring to the requirement that the Governor recommend confirming legislation to the General Assembly of those reorganizations affected under KRS 12.025 concluded:
"The manifest purpose of requiring that the Governor recommend confirming legislation to the General Assembly is to prevent the usurpation of Legislative power by the Executive branch of State government. By reserving the right to approve or reject reorganization orders the General Assembly avoids an unconstitutional total surrender of its legislative power and limits the Executive function to interim authority under an express delegation of that power."
The General Assembly, we believe, clearly intended the Governor to be able to do by reorganization executive order when the General Assembly is not in session what it may do through its legislative power when in session. It is just as possible and likely that "administrative functions change" or "the needs of government" regarding a department headed by an elected officer may dictate the Governor needing to take reorganizational steps until the General Assembly will meet as may be prompted with respect to a department headed by an appointed officer.
We do strongly believe a caveat needs to be added. The Governor, under KRS 12.025, as respects the reorganization of duties and functions of any department, should be mindful of the language of the
Court of Appeals in Johnson v. Commonwealth, 291 Ky. 829, 165 S.W.2d 820 (1942). The Court, at page 829, stated in that case the General Assembly, in assigning powers and duties to constitutional officers, is "subject to the limitation that the office may not be stripped of all duties and rights so as to leave it an empty shell, for, obviously, as the legislature cannot abolish the office directly, it cannot do so indirectly by depriving the incumbent of all his substantial prerogatives or by practically preventing him from discharging the substantial things appertaining to the office."
Therefore, we are of the added opinion that the Governor, by reorganization power under KRS 12.025, may not strip a constitutional officer of all duties and leave an empty shell department for the constitutional officer to administer any more than may the General Assembly. It is our belief that although the changes of functions contemplated by the Governor through reorganization order relative to the Department of Agriculture are significant, those changes are not of such a magnitude as to violate the limitation discussed in