Request By:
Honorable Carol Kunk Butt
General Counsel
Office of the Governor
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear
On behalf of Governor John Y. Brown, Jr. you have requested a formal opinion from this office as to the constitutionality of House Bill 345, an Act relating to the organization of state government. We shall deal only with those facets of the bill which present constitutional questions.
Section 2 of the bill, involving a new section in KRS Chapter 12, provides that the Governor may propose to the General Assembly, for its approval, changes in state government organizational structure, which may include the creation, alteration, or abolition of any organizational unit or administrative body and the transfer of functions, personnel, funds, equipment, etc., from one organizational unit or administrative body to another. "Organizational unit" is defined in Section 1 of the bill to mean any unit of organization in the executive branch of state government (not an administrative body) , including but not limited to any agency, department, bureau, division, etc. "Administrative body" is defined in Section 1 of the bill to mean any multimember body in the executive branch of state government, including but not limited to any board, council, commission, committee, authority or corporation.
KRS 12.025, which provides powers to the Governor to effect reorganization between legislative sessions, is repealed in Section 12 of the bill. However, Section 2(2) of the bill introduces an innovation by expressly conditioning the Governor's reorganizational action between legislative sessions upon the approval of a reorganization plan by the Legislative Research Commission after review by the Interim Joint Legislative Committee with appropriate jurisdiction. If the Legislative Research Commission finds that increased economy or efficiency or improved administration can be expected from implementation of the plan, it shall approve the plan; otherwise, it shall not approve the plan. The Legislative Research Commission must act on a plan within sixty (60) days after it is filed with the Legislative Research Commission. A temporary reorganization effected by the Governor under the above provisions is terminated ninety (90) days after sine die adjournment of the next regular session of the General Assembly unless it is ratified by the General Assembly or unless otherwise specified by that body. Where the General Assembly fails to approve a temporary plan of the Governor or to enact some alternative plan, the state organizational structure reverts to that which was in existence before the temporary plan was implemented.
It is the official opinion of this office that House Bill 345 as presently drafted violates the separation of powers doctrine embodied in Sections 27 and 28 of the Kentucky Constitution and also the constitutional prohibition found in Section 36 of the Kentucky Constitution against the General Assembly's acting when not in session. It is evident from these short constitutional sections that each branch of government may exercise only that power which is properly vested in it by the Kentucky Constitution. Moreover, the legislative power is further limited to being exercised only when the General Assembly is formally in session. There is and can be no room for role reversal or for the quasi-exercise by one branch of state government of the powers limited to another of the three branches of state government.
As we read House Bill 345, the General Assembly is in part attempting to rule from the grave. That is, it is setting up a scheme whereby although not in session, its self-appointed statutory agent, the Legislative Research Commission, will be given the authority to approve or disapprove the Governor's reorganization plans between legislative sessions. Under the Kentucky Constitution, the General Assembly and the Legislative Research Commission have no authority to carry out a legislative function except when the General Assembly is in regular or special session. The Kentucky General Assembly is not a continuing body. See the proposed amendment of Section 36 (which failed in 1969) that would have attempted to make it a "continuing body. " See also Sections 29 (Legislative Power in the General Assembly), 36 (Time and Place of Meetings of General Assembly), 37 (Quorum Necessary for Business), 46 (Manner of Passing Bills), and 80 (Governor May Call Special Sessions) of the Kentucky Constitution.
Although House Bill 345 does not propose to have the General Assembly itself or even an interim committee take final legislative action in approving or disapproving the Governor's proposed reorganization plan, this legislative authority would be placed with the Legislative Research Commission as noted above. However, the Legislative Research Commission is a Commission composed of members of the General Assembly. Its sole reason for existence is to serve the General Assembly and cannot under the present statutory makeup be passed off as a part of the Executive Branch of government. Under the Kentucky Constitutional separation of powers provisions, the General Assembly cannot act outside the confines of formal enactment procedures, and it is legally unable to create an entity to approve, on its behalf and in between General Assembly sessions, an act done by the Executive Branch of state government.
In support of the above conclusion, we find highly persuasive authority in a recent decision of the Supreme Court of Appeals of West Virginia rendered June 15, 1981, styled
State ex rel. Barker v. Manchin, W.Va., 279 S.E.2d 622 (1981). Under consideration in that case was the constitutionality of a Legislative Rule-Making Review Committee that had been given the authority to approve or disapprove administrative regulations promulgated by West Virginia state agencies. This committee was composed of six members of the Senate and six members of the House of Delegates, appointed by the President of the Senate and the Speaker of the House of Delegates, respectively, who also acted as ex officio non-voting members. 279 S.W.2d at 626. The Court construed the authority of this committee to be a statutory scheme of legislative veto power over a properly delegated executive function and determined such power to be inconsistent with that state's constitutional doctrine of separation of powers. The West Virginia Court in reaching its decision stated:
"Where one branch of our state government seeks to exercise or to impinge upon the powers conferred upon another branch, we are compelled by this mandate to restrain such action, absent a specific constitutional provision permitting such interference." 279 S.E.2d at 630.
The Court went on later in the Opinion to state:
"The power of a small number of Committee members to approve or to disapprove otherwise validly promulgated administrative regulations, and of the entire legislative body to sustain or to reverse such actions either by concurrent resolution or by inertia, constitutes a legislative veto power comparable to the authority vested in the Governor, as head of the Executive Department, by W. Va. Const. art. VII, sec. 14, and reverses the constitutional concept of government whereby the Legislature enacts the law subject to the approval or the veto of the Governor." 279 S.E.2d at 632.
The Court stated in regard to the legislative approval authority:
"Such a mechanism for legislative review of executive action may properly be called an 'extra-legislative control device' for it permits the Legislature to act as something other than a legislative body to control the actions of the other branches. This is in direct conflict with our constitutional requirement of separation of powers. The power of the Legislature in checking the other branches of government is to legislate.
State v. Harden, 62 W.Va. 313, 58 S.E. 715 (1907). While the Legislature has the power to void or to amend administrative rules and regulations, when it exercises that power it must act as a legislature through its collective wisdom and will, within the confines of the enactment procedures mandated by our constitution. It cannot invest itself with the power to act as an administrative agency in order to avoid those requirements." 279 S.E.2d at 633.
The similarity of the legislative approval by the Legislative Research Commission of the reorganization action of the Governor envisioned in House Bill 345 with the actions of the West Virginia Legislative Rule-Making Review Committee strongly bolsters our conclusion of the unconstitutionality of House Bill 345.
In further support of our conclusion on this matter, it will be helpful to discuss the method for organizing and reorganizing state government in Kentucky. As a basic postulate, reduced to its simplest terms, the Legislature makes the law, the Executive executes the law, and the Judiciary construes the law.
Wayman v. Southard, 23 U.S. 1 (1825). In considering this constitutional design of things, it is helpful to review the recent decision of the Supreme Court of Kentucky,
John Y. Brown, Jr. v. Barkley, S.W.2d (1982), not as yet a final decision. On page 13 of the decision, written by Chief Justice Palmore, the Court stated:
"It is axiomatic that under our Constitution the General Assembly has all powers not denied to it or vested elsewhere by the Constitution."
Clearly it is a proper function of the General Assembly to create agencies and administrative bodies to carry out the executive business of the Commonwealth, to organize state government and to prescribe the areas of responsibility for each. In that the General Assembly itself or any entity created to do its bidding may not act in a legislative capacity in between sessions, the General Assembly has historically found it necessary and wise to grant executive authority to the Governor, under KRS 12.025, to reorganize state government when the General Assembly is not in session. The Barkley decision at page 13 in this respect states:
". . . the executive branch exists principally to do its bidding. The real power of the executive branch springs directly from the long periods between legislative sessions, during which interims the legislature is powerless to function and must, perforce, leave broad discretionary powers to the chief executive."
The present law, KRS 12.025, gives to the Governor the ability to transfer functions of state government which already have been created by the General Assembly. The law has not given the Governor power to create functions of state government, as such granting of power itself would be in violation of the separation of powers doctrine. The Legislature enacts, the Executive implements.
The next issue becomes to whom may the General Assembly grant executive reorganization authority. It goes almost without saying that the reorganization authority must be granted to the Executive Branch of state government and to the Chief Executive Officer, the Governor. We are firmly convinced that under our Kentucky Constitution, the General Assembly cannot create a state executive agency and grant executive reorganization authority to such an agency. The reason for this is that Kentucky Constitution Section 69 provides:
"The supreme executive power of the Commonwealth shall be vested in a Chief Magistrate, who shall be styled the 'Governor of the Commonwealth of Kentucky.'" (Emphasis ours)
The Kentucky Supreme Court summed up this point quite well in the Barkley decision at page 11 saying:
"As the Governor is the 'supreme executive power,' it is not possible for the General Assembly to create another executive officer or officers who will not be subject to that supremacy, . . ." (Emphasis ours)
Therefore, based upon the above, it is our official opinion that House Bill 345 is unconstitutional. The General Assembly's granting of reorganization authority to the Governor may not be subject to the approval of the Legislative Research Commission. The Legislative Research Commission's exercise of such veto/ approval authority would be tantamount to the General Assembly's acting when not in session, which is prohibited by the separation of powers doctrine, Sections 27 and 28 and also 36 of the Kentucky Constitution. And, even if an attempt is made to establish the Legislative Research Commission as an executive agency, the General Assembly is prohibited by Section 69 of the Kentucky Constitution from granting reorganization authority to such agency or any other created state executive agency if that authority is superior to that of the Governor.