Request By:
Mr. Arthur Hatterick, Jr.
Executive Director
Kentucky Personnel Board
Capital Annex, Room 372
Frankfort, KY 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; George Geoghegan, III, Assistant Deputy Attorney General
In a letter to this office you inquired whether portions of House Bill 334 conflict with various provisions of KRS 18A.005 to 18A.200.
The courts have held repeatedly that statutory provisions must be construed as harmonious if at all possible. In Bischoff v. Hennessey, Ky., 251 S.W.2d 582, 583, the Court said:
"It is a familiar rule of construction which requires courts to harmonize inconsistent statutory provisions whenever possible. 'Hence, when two constructions of a statute are possible, by one of which the entire act may be made harmonious while the other will create discord between different provisions, the former should be adopted.' 50 Am.Jur., Statutes, Section 346, page 369. . . ."
You point out that Section 12(3) of House Bill 334 provides that "[n]o administrative body, other that the court of justice shall issue rules." You also point out that this appears to conflict with KRS 18A.075 and 18A.165 which repeatedly refer to "rules" and "regulations" of the Personnel Board. You also point out that if Section 12(3) of House Bill amounted to a prohibition against adoption of administrative regulations, it would be violative of Section 51 of the Kentucky Constitution.
Section 12(3) of House Bill 334 must be construed harmoniously with the Kentucky Constitution and with KRS 18A.005 to 18A.200, if at all possible. Accordingly, the only legal affect of Section 12(3) is to prohibit all administrative bodies other than the Court of Justice from denominating their policies, procedures, and regulations as "rules."
You also point out that Section 12(1)(b) of House Bill 334 prohibits an administrative body from promulgating regulations unless there is statutory authority providing therefor. This is not a new requirement. You inquire whether this would prohibit the board from promulgating regulations.
The legislature is authorized under our Constitution to delegate power to administrative agencies. The power delegated may be as broad as that of the legislature itself with respect to some specific subject area so long as the legislature retains the power to revoke the delegation. Commonwealth v. Associated Industies of Kentucky, Ky., 370 S.W.2d 584 (1963); and U.S. v. Rock Royal Corporation, 307 U.S. 533 (1938). This includes the power to promulgate regulations. However, the regulations must come within the authority conferred on the administrative agency. "* * * Administrative authorities must strictly adhere to the standards, policies, and limitations provided in the statutes vesting power in them. . . ." Henry v. Parrish, 307 Ky. 559, 211 S.W.2d 418, 422 (1948).
You indicate in your letter that you have not been able to find any express statutory authority authorizing the Personnel Board to adopt regulations. After reviewing KRS 18A.005 to 18A.200, we reach a different conclusion. KRS 18A.030(2) states that the Commissioner of the Department of Personnel is to recommend to the board rules and regulations to carry out the provisions of KRS 18A.005 to 18A.200. This implies that the Personnel Board is promulgator of the rules and regulations. KRS 18A.075(1) specifically authorizes the board to adopt comprehensive rules consistent with KRS 18A.005 to 18A.200. KRS 18A.075(4) specifically authorizes the board to adopt procedural rules pertaining to employee appeals from dismissals, demotions, suspensions, or other penalties. KRS 18A.110 instructs the Commissioner to submit to the board proposed rules for classified service.
KRS 18A.030 provides that the Commissioner is to act as an advisor to the board on matters pertaining to the personnel system. The Commissioner acts as an information gathering officer for the board. He is to make recommendations to the board as to regulations pertaining to the personnel system. It is clear, however, from the foregoing statutes, that the Commissioner's role in the classified service regulation promulgating process is solely that of an advisor. The Personnel Board appears to have the exclusive authority to adopt regulations pertaining to classified service.
On the other hand, under KRS 18A.075(2) the Governor has the sole authority to adopt classification and compensation plans. KRS 18A.075(2) provides that the Commissioner and the board are to recommend said plans to the Governor after making a thorough survey. This area of regulation should naturally fall to the Governor since it relates directly to the budget. The Governor likewise has the exclusive authority under KRS 18A.155(1) to promulgate rules for unclassified positions.
In summary, the word "rule" as used in KRS 18A.005 to 18A.200 means "administrative regulation. " The Personnel Board has the exclusive authority to adopt regulations pertaining to classified service and appeals of sanctions imposed against classified employees. The Governor appears to have the exclusive authority to promulgate classification and compensation plans and regulations pertaining to unclassified employees. The Commissioner appears to be relegated to a strictly advisory capacity when dealing with regulations adopted to carry out the provisions of KRS 18A.005 to 18A.200.