Request By:
Hon. Jerry Abramson
General Counsel
Governor's Office
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear
You have requested the Office of the Attorney General to consider the legal implications of House Bill 514 passed by the 1980 General Assembly and subsequently vetoed by Governor John Y. Brown, Jr. You pointed out several possible infirmities, both of a constitutional nature and otherwise.
A question exists regarding the scope of the title to the bill. KRS 45.750(1)(d) defines a "major item of equipment" as movable equipment, costing $50,000 or more, that is not an item of capital construction as defined in paragraph (b) of this subsection." (Emphasis added) The title to the act is "an act relating to capital construction. "
The bill, Section 1, amends KRS 45.750 to provide that "purchase of equipment" shall include equipment acquired under a lease-purchase contract. Thus the new definition is broad enough to cover movable equipment coming under the term "capital construction" and coming under "non-capital construction equipment." Since the title to the bill relates exclusively to "capital construction" , the bill is unconstitutional. No law can relate to more than one subject, which must be expressed in the title. Section 51, Kentucky Constitution. The original enactment [SB 44, Chapter 4, Section 1, 1979 Ex. Sess.] was for the same reason unconstitutional, since it involved more than one subject, i.e., capital construction, and equipment not coming under "capital construction. "
Another very serious constitutional problem exists regarding KRS 45.770(2)(c), as amended, which reads as follows:
"(c) The department of finance may transfer, from the fund to the allotment account of an authorized project, an amount equal to more than fifteen percent (15%) or five hundred thousand dollars ($500,000) [but not more than twenty-five percent (25%)] of the estimated cost of the project. Prior to making a transfer under this subsection, the department of finance shall present the proposed transfer, with an explanation in writing of the reasons a transfer exceeding fifteen percent (15%) or five hundred thousand dollars ($500,000) is necessary, to the committee. Upon approval by the committee, the proposed transfer shall be made [, subject to paragraph (e) of this subsection]."
This same kind of language was added to KRS 45.770(3)(d) regarding the transfer of funds to the allotment account of an authorized major item of equipment. This final approval authority vested in the capital construction and equipment purchase oversight committee violates Sections 27 and 28 of the Kentucky Constitution.
KRS 45.790 (effective July 1, 1980, Senate Bill 44, 1979 Ex. Sess.) created a permanent subcommittee of the Legislative Research Commission to be known as the Capital Construction and Equipment Purchase Oversight Committee. This subcommittee is to be composed of seven members, all of whom are members of the House of Representatives and the Senate. The Legislative Research Commission is to appoint from the membership of the General Assembly the members of the subcommittee for terms of two years.
While the Legislative Research Commission is not the General Assembly, that commission is composed of the leadership of the House and the Senate. See KRS 7.090(1). Also to be noted is KRS 7.090(7) which states that "the Legislative Research Commission shall constitute administrative offices for the General Assembly and the director shall serve as administrative officer for the Assembly when it is not otherwise in session. " In fact, KRS Chapter 7 is codified as part of Title II of the statutes which deals with the legislative branch. The Legislative Research Commission is indeed a working symbol of the General Assembly and really represents the General Assembly for the purpose of making the appointments to the oversight subcommittee. The subcommittee in effect would be a committee of the General Assembly.
KRS 45.770(2)(c) and 3(d) as amended by House Bill 514 authorizes this subcommittee of the General Assembly to make life or death decisions on the transfer of funds. The approval by the subcommittee is absolutely required before the transfers could be made. It is to be noted in contrast that transfers to be effectuated under KRS 45.770(2)(d), (e), as amended, (those required due to an unforeseen decision by a federal or state court or regulatory agency) are to be governed by the provisions of KRS 45.800. Under KRS 45.800, the subcommittee's findings and determinations are transmitted to the Department of Finance but the final decision continues to rest ultimately in the Department of Finance.
Thus, the main problem lies in the fact that the approval of the transfer of funds by the subcommittee will involve a final decision by a committee of the General Assembly at times when the General Assembly is not in session, and therefore violates both Sections 27 and 28 of the Kentucky Constitution. House Bill 514 would result in the obfuscation of and interference with the normal executive functioning of the executive branch of government; a usurpation not contemplated by the constitution.
While not of constitutional dimensions, but certainly of legal importance, is the effect of Sections 7 and 8 of House Bill 514. These two sections are applicable to the recently passed 1980-82 budget, as well as those appropriation act(s) in the future. The muddled ranguage of Section 7 creates enough uncertainty that it may well cause an adverse effect on the sale of bonds in the Commonwealth. As you noted in your letter, this language could jeopardize the Commonwealth's ability to obtain an unqualified bond counsel's opinion for the sale of the bonds to be issued in the upcoming biennium. The spectre additionally exists that these two sections would preclude transfers of funds necessary for local programs where particular projects are dependent and governed by local interests and local participation.
In view of all of the above, it is my opinion that House Bill 514 contains serious constitutional violations and detrimental legal effects.