Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
Capitol Building
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
On behalf of the Budget Review Subcommittee of the Interim Joint Committee on Appropriations and Revenue, you have asked the Office of the Attorney General to consider one of the provisions of House Bill 295, 1982 Kentucky Acts, the Appropriations Bill. As you noted, before addressing the question, it is necessary to review some of the background on the provision in question. In this regard you wrote as follows:
"During the 1982 Regular Session of the General Assembly, the Senate amended HB 295 to provide that:
"'Beginning with the school year 1983-84, the allotment of basic classroom units shall be made on the previous year average daily attendance for the seven and one-fourth (7 1/4) school months selected by the superintendents of local school districts.'
"The funds necessary to implement this provision were included in the 1983-84 school were included in the 1983-84 School Foundation Program appropriation. The House had not made any changes regarding the calculation of average daily attendance (ADA). During the Conference Committee deliberations, the House conferees agreed to the Senate provision relating to the use of the best 7 1/4 months attendance in calculating ADA and to the inclusion of the necessary funds.
"The Conference Report was prepared in the form of amendments to the House Committee Substitute for HB 295. The language provision agreed to from the Senate Committee Substitute was inadvertently omitted from the report. However, the School Foundation Program appropriation figure did include the funds required to implement it. Thus, the specific language relating to the use of the 7 1/4 months did not appear in the enacted copy of HB 295, although the funds are included in the appropriation figure.
"Various workpapers, including a comparative summary of actions taken by the Conference Committee, reflect the agreement concerning the 7 1/4 months provision. This summary (excerpt attached) was distributed on both the House and Senate floors prior to the votes of the Conference Report. Additionally the final Executive Budget Document prepared by the Office for Policy and Management of the Department of Finance explains that:
"'Beginning in 1983-84, the calculation of average daily attendance (ADA) will be based on the ADA in the best seven and one quarter (7 1/4) months of the previous school year. The ADA in the calculation of allotments in 1982-83 will be the ADA at the end of the previous year. '"
In light of the above background information you have asked:
"'May the Department of Education implement the 7 1/4 months ADA provision in light of the above? Is the Department required to do so?'"
It is the formal opinion of this office that the Department of Education may not legally implement the 7 1/4 month ADA proffered language.
You pointed out in the background information provided that the 7 1/4 month ADA language does not appear in the enacted copy of House Bill 295. Actually, whether it does or does not appear in the budget bill is without legal significance. The reason for this conclusion is our belief that the General Assembly may not constitutionally revise, restrict or modify the provisions of existing substantive statutory law or create new substantive law by language contained in the appropriations act. Thus, even had the inadvertently omitted "7 1/4 ADA" language agreed to from the Senate Committee Substitute been inserted in House Bill 295, we do not believe the Department of Education could have legally implemented it.
The reason for our conclusion lies squarely with Kentucky Constitution § 51. This constitutional provision reads:
"No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length."
The purpose of Section 51 of Kentucky's Constitution has been said to be to prevent "surreptitious" legislation.
Dawson v. Com., Dept. of Transp., Ky., 622 S.W.2d 212, 213 (1981). Statements and other language such as that relating to the use of ADA for the allotment of basic classroom units under the Foundation Program appearing in the appropriations bill would not be merely incidental to the amount of money appropriated, but would in fact be an effort to substantively amend existing law. KRS 157.360(2) would have still appeared on the books and that subsection provision requires that "the allotments of classroom units in this subsection shall be made on the average daily attendance for the end of the previous school year in public school grades one (1) through twelve (12) after the following deductions: . . ." The reader of the statutory law would be totally lead astray if inconsistent substantive provisions would lawfully be enacted as a part of the biennial appropriations act. This undesirable effect is especially acute due to the fact the appropriations bill is not codified as such and is therefore unavailable to most who would want to discover the substantive law. One should not be required to, carefully read every sentence in the biennial appropriations act in order to ascertain whether a substantive statutory provision is still "good law." We believe Section 51 supports this assessment. Interested parties should not have to be surprised by some surreptitious language appearing in the appropriations act that fails to square with existing statutory language.
Thus, it is our opinion that if the General Assembly desires to change the ADA used for allotment of classroom units for Foundation Program Fund purposes from the previous school year figure as required by KRS 157.360, it would have to amend that provision and not attempt to reach that result with language in an appropriations bill. Even if such language did appear in the budget bill, we believe the langugage would have to be disregarded as not being a constitutional part of the appropriations act. As we stated in OAG 82-322, copy attached, relative to substantive statements made in the 1982 budget bill, such "language transcends that language appropriate to identify state budget appropriations. " We concluded that the budget bill to that extent relates to a subject other than the budget and must be deemed in violation of § 51 of the Kentucky Constitution.
Therefore, we believe the statutorily required "ADA for the previous school year" must be followed for the 1983-84 school year and thereafter unless KRS 157.360 is substantively amended. Of course, if the General Assembly so desired, it could accomplish this change during the upcoming session beginning in January, 1984. Modification of this calculation through language in the appropriations act would be unconstitutional under § 51.