Request By:
Mr. David H. Bland, E.D.
Kentucky Jailers Association
McCowans Ferry Road
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter, and question, reads:
H.B. 440 Section 12(2) established an allocation of $300.00/month to each jailer who satisfactorily completes jailer training. In making the first payment, the Department of Finance has determined that the first monthly payment was for the month of August rather than July.
In preparing the legislation an emergency was declared which made this legislation effective July 1, 1982. It was our understanding that by using the phrase "Beginning in August, 1982," the first training allowance payment would be made in early August for the month of July. The interpretation of the Department of Finance will result in a jailer only receiving eleven (11) installments of his Training-Travel Allowance for 1982-83.
Is the Department of Finance correct in their interpretation of this section?
KRS 441.017 (H.B. 440) reads:
(1) For the purpose of raising the level of competence of jailers and jail personnel, the cabinet shall maintain a local corrections training program to provide training for jailers and jail personnel consistent with the standards promulgated pursuant to KRS 441.011 and shall keep records of jailers and jail personnel who satisfactorily complete basic and annual continuing education. A curriculum advisory committee composed of jailers, their representatives and recognized professionals in the field of jail administration shall advise the cabinet concerning the training needs of jailers and jail personnel.
(2) Beginning in August, 1982, each jailer shall receive an expense allowance to help defray the costs of his and his staffs participation in the local corrections training program. The expense allowance shall be in the amount of three hundred dollars ($300) per month payable out of the state treasury, provided, however, that such payments shall be discontinued if the jailer fails to complete basic training within one (1) year of taking office. Thereafter, expense allowance payments shall be discontinued if the jailer fails to satisfactorily complete annual continuing training. Expense allowance payments shall be resumed following a discontinuance for failure to satisfactorily complete basic or annual training only upon the jailer's satisfactory completion of such training.
(3) The allowance authorized in subsection (2) of this section shall be considered as operating expenses of the jailer's office and shall not be considered as part of his compensation. Jailers shall not be required to keep records verifying the expenditures from the allowance provided by the state.
Under KRS 441.017(2), and in connection with the Local Corrections Training program, "beginning in August, 1982 each jailer shall receive an expense allowance to help defray the costs of his and his staff's participation in the local corrections training program. " (Emphasis added). The expense added). The expense allowance shall be three hundred ($300) per month payable out of the state treasury, unless the jailer fails to satisfactorily complete basic training within one (1) year of taking office.
As you said, the Department of Finance, in making the first payment, determined that the first monthly payment was for the month of August, rather than July.
It is our opinion that the first payment was correctly stated to be for the month of August, 1982. First, we must construe the statute literally. That is precisely what it says: "Beginning in August, 1982."
Department of Revenue v. Greyhound Corp., Ky., 321 S.W.2d 60 (1959). That case recites the rule that the statute must be construed literally unless such construction would lead to an absurdity. We can see no absurdity arising from a literal interpretation.
Next, the payments are on a monthly basis, not an annual basis. Thus the monthly basis fits comfortably into the language of "beginning in August, 1982."
Section 53 of H.B. 440, an emergency section relating to funding and administering jails, declares that section 12 [KRS 441.017] shall become effective July 1, 1982.
Even though section 12 [KRS 441.017] became effective on July 1, 1982, that in no way interferes with the operative effect of the specific provision that the payments will begin in August, 1982.
The court, in
Commonwealth v. Hemingray's Ex'r, 185 Ky. 393, 215 S.W. 69 (1919), dealt with the question as to whether an emergency clause in a piece of legislation would prevent the operative effect of a subsequent date line in the legislation relating to the bringing of actions to assess omitted property that was listed as of that later date. The court answered that by ruling as follows:
"There is no merit in the contention that sections 55 and 58 of the Constitution deprived the Legislature of the power to fix September 1, 1917, as the time after which no action should be brought to assess omitted property that was listed as of that date. These constitutional provisions merely prescribe when and under what circumstances an act of the Legislature becomes a law. They do not take away from the Legislature the power to provide in an act that a particular thing may or may not be done from and after a time subsequent to the time the act itself becomes a law. Were the rule otherwise, the Legislature would not have the power to prescribe in an act which had become a law prior to that time that all property should be assessed as of September 1st of each year, or that all taxes should be payable on a certain day thereafter.
Thus the specific provision in KRS 441.017 must be given operative effect under the doctrine set forth in Commonwealth v. Hemingray's Ex'r, above. Moreover, the specific provision must prevail over the general.
City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969) 247.
In addition, absent an emergency clause, the legislation in question would have become law within ninety (90) days after adjournment, pursuant to § 55, Kentucky Constitution. In such event it would have become law on July 15, 1982, still in advance of this specific provision, "Beginning in August, 1982."