Request By:
Mr. Larry VanHoose
Executive Director
The Republican Party of Kentucky
Capitol Avenue at Third Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General
This is in response to your letter of April 25, 1978.
At the outset we note that your letter was written on the letterhead of The Republican Party of Kentucky and was signed by you as the Executive Director of that political party. You have directed your correspondence to the Chief Legal Officer of the Commonwealth; however, the form of your question is clearly that of political rhetoric. We further note that your question and the interpretation that certain members of your particular political party have already placed upon the question have been widely circulated to the press, considerably prior to it even being submitted to this office.
Before we reply, we direct you to KRS 15.025, which sets forth the conditions for furnishing opinions of the Attorney General. It should be quickly apparent that the Office of the Attorney General has no obligation to respond to questions presented by other than those persons mentioned in these statutory sections. Since you have, however, chosen to entangle this office in what is, otherwise, a political quarrel between you and the other major party in this state, we have chosen to exercise the limited discretion provided the Attorney General in KRS 15.025(4). The simple reason is that the legal question raised is of general public interest. We are thus responding to your inquiry on the basis of the single legal question presented.
Political rhetoric aside, your question is:
"Are there any Kentucky statutes or any regulations which prohibit the use of state owned aircraft by the state's Chief Executive for vacation purposes?"
Please note at the outset that we are addressing only the purely legal question as to whether or not there is anything under the Kentucky law that would prohibit the use of state owned aircraft by the Governor under the circumstances involved here. We make it clear that we are in no way addressing the question of the overall legislative policy matter or the general moral propriety in terms of whether or not the Governor's use of such planes presents an unjust burden on the taxpayers, who pay the expenses of this government. We decline to be dragged into the vortex of the political controversy and political storm generated by these questions. The constitution and the statutes dealing with the function of the Attorney General do not envision an incursion into that area of political life. The Attorney General has no authority to make any policy judgment involving the use of state planes by the Governor.
While the Governor is not above or beyond the reach of the law when its authority has been rightfully invoked, he is more than a mere agent. "In the performance of his official duties he speaks for and represents the whole people of the state, and when he acts within the bounds of the discretionary powers reponsed in him, he is responsible only to the people whose servant he is. He has no principal whose advice or instruction he must obey." (Emphasis added).
Gordon v. Morrow, 186 Ky. 713, 218 S.W. 258, 262, 264, 265 (1920). The Governor is the "supreme executive power of the Commonwealth." Section 69, Kentucky Constitution. "He has only such powers as the constitution and statutes, enacted pursuant thereto, vest in him, and those powers must be exercised in the manner and within the limitations therein prescribed." (Emphasis added).
Royster v. Brock, 258 Ky. 146, 79 S.W.2d 707, 709 (1935).
There is a clear responsibility of the legislature to spell out, in implementing statutes, the various powers of the governor. It is obvious that general legislation, as contrasted with specific and guideline legislation, can set the stage for the Governor's exercise of power within a wide range.
To begin, Section 230 of the Kentucky Constitution and KRS 41.110 expressly require that any money moved out of the state treasury must be provided for by statute or appropriations of the General Assembly. You may ask where is the appropriation here? The answer to that is found in the general operating budget of the Governor's Office.
It must be carefully noted that this appropriation establishes few guidelines in connection with the precise circumstances under which the governor can exercise his vast discretion as the Chief Executive Officer of this Commonwealth, particularly in the area of travel expense.
Although the General Assembly has unfortunately failed to establish guidelines in dealing with the Governor's use of state owned planes for vacation or otherwise, this office does not make laws and thus we, as well as the courts, have to look at the situation of law as it is, and not in terms of what it should be. Like the old song, it is "Just as I am without one plea." If there is any failure to be assessed here, it would seem that it must be laid principally on the doorstep of the General Assembly.
In addition, the Executive Branch has failed to implement the legislative policy established in connection with KRS 183.024. Under that statute The Department of Aeronautics (now the Department of Transportation) has the administrative responsibility and authority to prescribe regulations in connection with aircraft and in connection with the acquiring of aircraft by purchase, lease or otherwise, necessary for the performance of the functions of the department and state government. However, notwithstanding this legislative policy, which is clearly broad enough to encompass administrative regulations designed to regulate the use of state owned planes by the Governor and other state officials, all recent Governors beginning with Governor Clements in 1947 and continuing with each successive Governor including Governors Wetherby, Chandler, Combs, Breathitt, Nunn, Ford, and Carroll, have failed to provide administrative regulations relating to the use and control of state owned aircrafts.
The purpose of Section 230 of the Constitution and KRS 41.110 was simply to prevent the expenditure of the state's money without the consent of the
Legislature. Fergusen v. Oates, Ky., 314 S.W.2d 518 (1958). Unfortunately, the legislature's consent, in connection with appropriations mentioned above, is general is nature and is clothed in the hazy cloud of the governor's discretion.
It is elementary to note that Sections 3 and 171 of the Kentucky Constitution require that the taxes collected from the people must be spent in consideration of a public service and must be spent for a public purpose. See
Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930 (1946). You might ask: Who is to determine public purpose? The answer is that the General Assembly is given this primary duty. "The determination of what constitutes a public purpose is primarily a matter for legislative discretion which is not disturbed by the courts so long as it has a reasonable basis."
Industrial Develop. Auth. v. Eastern Ky. Reg. Pl. Comn., Ky., 332 S.W.2d 274 (1960).
Under this state of affairs, it would ultimately be up to the courts to determine whether any part of the cost of these trips, as relate to the Governor, his staff, his immediate family, and security personnel, would be a proper expenditure of state funds. However, it is our opinion, that as relates to the Governor and those persons, we are unable to conclude that his use of the state planes was illegal. Further, it would be up to the courts, if the issue were raised, to determine the benefit the people of this Commonwealth would reap from these trips, as measured in terms of Sections 3 and 171 of our constitution.
Barnes v. Adams, Ky., 305 S.W.2d 754 (1957). The total facts are such that only the courts have the machinery to ultimately determine the issue.
As concerns any trip involving persons other than his family, staff, and security personnel who may have accompanied the Governor on these trips, we are unable to draw a similar conclusion as to apparent legality. As relates to Sections 3 and 171 of the Constitution, we conclude that no public purpose could possibly have been involved, and thus any expenditure of state funds which might be allocable to such outside persons would not be constitutional.
It is our understanding that this unregulated use of state planes by governors of this state has gone on unabated over a long period of years.
Judge Sims, in Grantz v. Grauman, Ky., 302 S.W.2d 364, 367 (1957), wrote that "practical construction of an ambiguous law by administrative officers continued without interruption for a very long period is entitled to controlling weight." (Emphasis added).
In summary, we are unable to find any statutes or regulations which prohibit the use of state owned aircraft by the Governor, his family, his staff, and required security personnel. The General Assembly has passed up all opportunity to enact regulatory statutes, and we cannot find any action by a Governor promulgating appropriate regulations, even though authority for such action is, and has been, clearly available.
I trust this satisfactorily answers your inquiry of April 25th.