Request By:
Mr. Harry M. Snyder
Executive Director
Council on Higher Education
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
As the Executive Director of the Council on Higher Education you have asked the Office of the Attorney General to provide assistance in clarifying the status of the Council and State Board of Education memberships in light of legislation passed by the 1982 General Assembly. You presented the questions as follows:
Two related questions are at issue, the membership status of the Executive Director of the Council on Higher Education on the State Board of Education and the membership status of a member of the State Board of Education on the Council on Higher Education. In relation to the Executive Director's membership status, the Governor promulgated Executive Order 80-624 on July 30, 1980. The executive order listed fourteen appointees to the State Board of Education, including seven supreme court district appointees, six at large appointees and the Executive Director of the Council on Higher Education as an ex officio appointee. Section 2, subsection (2) of Senate Bill 173 passed and signed by the Governor, was amended to reference Executive Order 80-624 in lieu of specific language relating to the inclusion of the Executive Director or the terms of office of the State Board members. The central question is does the reference to Executive Order 80-624 in Senate Bill 173, section 2, subsection (2), continue the ex officio membership of the Executive Director of the Council on Higher Education on the State Board of Education? The second question relates to the membership status of a State Board of Education member on the Council of Higher Education. Senate Bill 168, section 3, as passed specifically deletes membership of a State Board member on the Council. However, Senate Bill 173, section 2, subsection (4), as passed and signed by the Governor contains language directing the State Board to elect one of its membership as an ex officio member of the Council.
It is the opinion of the Office of the Attorney General that you as Executive Director of the Council on Higher Education should continue to serve as an ex officio member on the State Board of Education. It is further the opinion of this office that there is no seat to be filled on the Council by a member of the State Board of Education.
In support of our conclusion regarding your continued status as an ex officio member on the State Board of Education, we turn to Senate Bill 173 passed by the Regular Session of the 1982 General Assembly. that bill related to various state agencies and in Section 2 created a new section of KRS Chapter 156, now codified as KRS 156.031. KRS 156.031(1) reads as follows:
"(1) There is hereby established within the department of education a state board of education which shall consist of fourteen (14) members. Seven (7) members shall be appointed, one (1) from each Supreme Court district, as established by KRS 21A.010 and six (6) members from the state at large, by the governor to serve for terms of four (4) years, except that the original appointments shall be for the terms set out in Executive Order 80-624.
KRS 156.031 becomes effective July 15, 1982. Senate Bill 173 repealed KRS 156.030 which previously spelled out the composition of the State Board of Education. It is to be noted that the Executive Director of the Council was not included within the language of KRS 156.030. From this it can be seen that the Executive Director of the Council serving on the State Board of Education is not rooted in the prior statutory law. Rather the fact that you have been serving as a member on the State Board of Education had its genesis in an Executive Order action taken by the Governor.
Central to our position that under new KRS 156.031 the Executive Director of the Council continues as an ex officio member of the State Board is simply that the provision clearly provide that the State Board is to consist of fourteen members and without the Executive Director of the Council, there would only be thirteen members. General rules of construction lead us to an interpretation which will reconcile ambiguity with other clearly expressed provisions of a statute. See
George v. Scent, Ky., 346 S.W.2d 784 (1961). It is clear from the new statute that the State Board of Education is to consist of fourteen members. It is furthermore clear how only thirteen members are to be selected. We believe the General Assembly intended that the fourteenth member was to be identified by referring to Executive Order 80-624. The cases say that contemporaneous facts and circumstances that throw intelligible light on the intentions of the General Assembly are to be considered. See
Brown v. Hoblitzell, Ky., 307 S.W.2d 739 (1958) and also
Board of Education v. Mescher, 310 Ky. 453, 220 S.W.2d 1016 (1949). Executive Order 80-624, which is explicitly referred to in KRS 156.031, itself specifically refers to Executive Order 80-528. This latter Executive Order, a reorganizational order, established the fourteen member State Board of Education and contained substantial language identical to that found in newly enacted KRS 156.031. Executive Order 80-528 further provides:
"There shall be one (1) ex officio, nonvoting member who shall be the Executive Director of the Council on Higher Education. "
Thus, we are of the opinion the intent of the General Assembly was that the Executive Director of the Council on Higher Education was to continue to be the fourteenth member on the State Board of Education with ex officio, nonvoting status.
The second question you presented is even more difficult to sort out the answer to. As indicated above, we have concluded there is no seat on the Council on Higher Education to be filled by a member of the State Board of Education. Senate Bill 168 passed by the Regular Session of the 1982 General Session amended KRS 146.010 to read as follows:
There shall be a council on higher education in Kentucky, to be composed of the superintendent of public instruction and seventeen (17) lay members appointed by the governor, one (1) from each congressional district, eight (8) from the state at large which shall include a student member, who shall be enrolled as a full-time student at a state public institution of higher education, shall be a resident of the Commonwealth as determined by the residency guidelines of the council, and shall be elected annually in the following manner: not later than July 1 of each year the president of the student body of each four-year state public institution of higher education shall submit to the governor one (1) nominee; from this list of nominees, the governor shall appoint a student member, one (1) from a list of two (2) nominated by the president pro tem of the senate, and one (1) from a list of two (2) nominated by the speaker of the house of representatives. Among the lay members, there shall be at least one (1) undergraduate degree recipient from each of the state universities to be appointed by the governor. The lay members shall constitute the voting membership of the council. The lay members shall be appointed for regular terms of four (4) years except for the student member who shall serve a one (1) year term, with the initial appointment of four (4) members for one (1) year, four (4) members for two (2) years, four (4) members for three (3) years and four (4) members for four (4) years. Whenever a lay member's term expires after July 15, 1982, the member appointed by the governor to fill the vacancy shall be appointed for a four (4) year term in the same manner as the initial appointment. Any person, other than the superintendent of public instruction, holding either an elective or appointive state office or who is a member of the governing board of any state university in Kentucky shall be ineligible for membership or appointment on the council during his membership or term of office. When the council meets to consider curricula for teacher education, three (3) persons who are from accredited institutions of higher learning, and who have been appointed by the executive committee of the Kentucky association of colleges, secondary and elementary schools, shall be invited to meet with the council in an advisory capacity."
This law became effective, without the Governor's signature, pursuant to an emergency clause, on April 9, 1982.
Deleted from the language of KRS 164.010 was the reference to one member of the State Board of Education being a member of the Council. There would no problem on this point if it were not for the fact that in Senate Bill 173, supra, which in part created KRS 156.031, at subsection (4), provides that:
"(4) At the first regular meeting of the board in each fiscal year, a chairperson shall be elected from its voting membership and a voting member shall be elected to serve as the ex officio member of the council on higher education. "
Thus, we have clearly irreconcilable, repugnant provisions. KRS 156.031 directs the State Board of Education to elect one of its own to serve as an ex officio member of the Council and KRS 164.010 as amended has not only deleted the reference to the State Board member on the Council but also provides that the Council is to be composed of the State Superintendent of Public Instruction and seventeen lay members appointed by the Governor thus leaving no seat on the Council to be occupied by a State Board of Education member. We are certainly mindful that every effort is to be made to harmonize inconsistent statutory provisions whenever possible. See
Bischoff v. Hennessy, Ky., 252 S.W.2d 582 (1952). However, we know of no way to harmonize the two statutes herein under consideration.
In view of the situation as described above, we turn to other rules of statutory construction. We believe the rule set out in
State Property and Bldgs. Commission v. Hays, Ky., 346 S.W.2d 3 (1961) is most applicable so as to be fully supportive of our conclusion on this matter. The former Court of Appeals, through Judge Palmore, stated at page 6 of the Hays decision:
"In event of irreconcilable conflict between two acts passed at the same session the law last enacted, being the later expression of the legislative will, must prevail. However, statutes enacted at the same session 'are presumed to be imbued with the same spirit and actuated by the same policy, and must be construed, if possible, so as to effectuate both acts. If one of the inconsistent acts contains an emergency clause, and the other does not, it is presumed that the General Assembly intended the act with the emergency clause to prevail. '
Campbelll County Election Commission v. Weber, 1931, 240 Ky. 373, 43 S.W.2d 511, 512. And 'repeals by implication are never favored and will be sanctioned only when there is such a conflict between the two that effect can not be given to both.'
Sumpter v. Burchett, 1947, 304 Ky. 858, 202 S.W.2d 735, 736."
As we have noted above, Senate Bill 168 amending KRS 164.010 became operative on April 9, 1982, and Senate Bill 173 creating KRS 156.031 will not become effective until July 15, 1982. We believe the language in KRS 164.010 prevails such that no member of the State Board of Education will be entitled to sit on the Council of Higher Education.