Request By:
Mrs. Pat Freibert
State Representative
659 Tateswood Drive
Lexington, Kentucky 40502
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request a formal opinion of this office concerning your recent appointment to the Governor's State Child Support Commission.
You have indicated that federal legislation requires the membership of these commissions to include representatives of the state's legislative branch. While you are eager to serve on this commission, yet you hope your appointment is not in conflict with the judgment handed down in Legislative Research Com'n v. Brown, Ky., 664 S.W.2d 907 (1984).
Governor Collins, by Executive Order 85-12, dated January 8, 1985, created the "Governor's State Child Support Commission." The Executive Order, in developing the reason for the creation of such commission, cited the Federal P.L. 98-378 as requiring the establishing of such commission in each state. The Executive Order also states that compliance with that federal mandate is a condition for federal payments under Part A or D of Title IV of the Social Security Act. The Order recites that the advisory commission is to examine, study, and investigate the Child Support System in Kentucky, which is calculated to improve the quality of services provided dependent children and single parents in the Commonwealth of Kentucky. The Commission, as established, consists of twenty-four (24) members representing all aspects of the child Support System, including custodial and non-custodial parents, the agency or organizational unit administering the State's plan under Part D of Title IV of the Social Security Act, the State Judiciary, the executive and legislative branches of the State Government, Child Welfare and Social Services Agencies, and others. The appointed members of the Commission shall serve until the expiration of the Commission on October 1, 1985. The duties of the Commission were detailed in the Order as follows:
"The Governor's State Child Support Commission shall examine, investigate, and study the operation of the State's child support system for the primary purpose of determining the extent to which such system has been successful in securing support and parental involvement, both for children who are eligible for aid under a State plan approved under Part A of Title IV of such Act, and for children who are not eligible for such aid, giving particular attention to such specific problems (among others) as visitation, the establishment of appropriate objective standards for support, the enforcement of interstate obligations, the availability, cost and effectiveness of services both to children who are eligible for such aid and to children who are not, and the need for additional State or Federal legislation to obtain support for all children."
The Commission is required to submit to the Governor of Kentucky and make available to the public, no later than October 1, 1985, a full and complete report of its findings and recommendations resulting from the examination, investigation, and study of the State's Child Support System.
Section 15 of P.L. 98-378 treats the matter of State Commissions on Child Support. It reads in part:
"The Governor of each State is required to appoint a State Commission on Child Support. The Commission must include representation from all aspects of the child support system including custodial and non-custodial parents, the IV-D agency, the judiciary, the governor, the legislature, child welfare and social services agencies, and others.
"Each State commission is to examine the functioning of the State child support system with regard to securing support and parental involvement for both AFDC and non-AFDC children, including but not limited to such specific problems as: (1) visitation; (2) establishment of appropriate objective standards for support; (3) enforcement of interstate obligations; and (4) additional Federal and State legislation needed to obtain support for all children.
"The commission shall submit to the Governor and make available to the public, reports on their findings and recommendations no later than October 1, 1985.
"Costs of operating the commissions will be eligible for Federal matching only in the case of costs for transportation within the State and such other costs as are specifically allowed by the Secretary in regulations.
"The Secretary may waive the requirement for a commission at the request of a State if he determines that the State has in place objective standards for child support obligations, has had a commission or council within the last five years, or is making satisfactory progress toward fully effective child support enforcement."
From reading the Executive Order and P.L. 98-378, it is clear that the Commission has an advisory function, and it necessarily has a short life. It has no authority to take any executive or administrative effective and binding action, as such.
It is true that Sections 27 and 28 of the Kentucky Constitution establish the principle that persons of one branch of government cannot exercise any power properly belonging to either of the others, except in permitted instances. 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). The court observed, in Legislative Research Com'n v. Brown, supra, that the separation of powers doctrine is fundamental to Kentucky's tripartite system of government and must be strictly construed. The General Assembly, as the legislative branch, has all powers which are solely and exclusively legislative in nature. The legislature may perform all legislative acts not expressly or by necessary implication withheld from it, but it may not perform or undertake to perform executive or judicial acts, except in such instances as may be expressly or by necessary implication directed or permitted by the constitution of the particular state.
From the standpoint of legislating, the General Assembly ceases to exist at the moment of its adjournment. L.R.C. v. Brown makes it clear that the executive powers lie within the province of the Governor. Further, the court rejected the notion that the General Assembly in between sessions, and through its committees or the L.R.C., could veto executive action.
In the earlier cases of Meagher v. Howell, 171 Ky. 238, 188 S.W. 373 (1916) 374, the old Court of Appeals of Kentucky held specifically that, considering §§ 27 and 28, Kentucky Constitution, the office of state banking commissioner and that of state senator are clearly incompatible. The court wrote that "A senator belongs to the legislative department of the state; the state banking commissioner is appointed by the Governor, and performs executive duties." (Emphasis added). Thus the court concluded tat the two functions were inherently inconsistent and repugnant.
CONCLUSION
It is our opinion that your appointment is not in conflict with the holdings of the Supreme Court in L.R.C. v. Brown, relative to the separation of powers. Your serving on that Commission is of an advisory nature. It in no way involves an exercise of executive or other power. It will in no way involve you in attempted executive action that would be of a binding or controlling nature. The Commission was established by executive order only and is of short duration. In simple language, as a member of the Commission, you have no decisional role. You have no executive powers, in constitutional terms. Your appointment is in compliance with the federal law requiring broad representation on the commission, which includes the legislative branch.