Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
State Capital Building
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A question has arisen in regard to the Model Procurement Code, as affected by two Senate bills enacted in the 1980 session, on which you request our opinion.
Section 9 of S.B. 163 creates a new section in KRS Chapter 45A, which reads:
"Any local public agency may adopt the provisions of KRS 45A.345 through 45A.460. No other statutes governing purchasing shall apply to a local public agency upon adoption of these provisions." (Emphasis added).
The application statute, KRS 45A.350, provides that KRS 45A.345 to 45A.460 of the Model Procurement Code "shall apply" to every local public agency in Kentucky. (Emphasis added). The definition of "local public agency", under KRS 45A.345(8), includes a city, county, urban-county, school district, and other units listed therein. However, Section 19 of S.B. 163 expressly repeals the application statute, KRS 45A.350. Section 9 of S.B. 163 provides in effect that if a local public agency exercises the opinion to go under the above mentioned sections of the Model Procurement Code, no other statutes governing purchasing shall apply. This would mean, for example, that in the latter situation, KRS 424.260 would not apply.
The statement, that "Any local public agency 'may adopt' the provisions of KRS 45A.345 through 45A.460", in Section 9 of S.B. 163, simply means that the adoption is optional. (Emphasis added). Under KRS 446.010(20) the word "may" means "permissive" . See also KRS 45A.345(10), as amended by Sec. 8, S.B. 163.
At this point, as you observe, the Code is made optional for local governments.
However, S.B. 368 was enacted in the same session. Section 1 of the bill amends KRS 45A.350 [the application statute] to read as follows:
"Section 1. KRS 45A.350 is amended to read as follows:
KRS 45A.345 to 45A.460 shall apply to every local public agency in this state, except that a local public agency may purchase goods produced by convict labor from the bureau of corrections without having to comply with the requirements of the Kentucky procurement code. Any legislative body or governing board may adopt any of the other provisions of this code, and may make modifications of such provisions, provided, however, that such modifications shall not be inconsistent with the Kentucky procurement code."
The amendment of KRS 45A.350 by S.B. 368 republishes the former provisions of KRS 45A.350 [application statute], but it adds as new matter an exception that local governments are permitted to purchase convict-made goods from the Bureau of Corrections without having to comply with the requirements of the Kentucky Model Procurement Code.
Senate Bill 368, Section 2, amends KRS 197.210 to require local governments to purchase prison-made goods if economically feasible.
The Legislative Record indicates that both Senate bills were signed by the Governor on April 9, 1980. However, the records in the Governor's Office indicate that Governor Brown signed S.B. 368 one (1) minute after he signed S.B. 163.
Senate Bill 163 became effective on April 9, 1980, by way of the emergency clause. Senate Bill 368 will become effective on July 15, 1980, as ordinary legislation.
You specifically request our opinion in regard to codification of these two bills, and also in regard to whether the code is optional or mandatory for local governments.
Senate Bill 163 unequivocally provides that the code is optional for local public agencies. The republication of KRS 45A.350, however, might suggest to some that the legislature wished to suddenly reverse its well defined, unequivocal, and unambiguous policy as expressed in S.B. 163. That the legislature as a serious deliberative body would be so ambivalent as to completely reverse its policy contained in S.B. 163 in virtually the same legislative breath, however, defies reason.
In
Campbell County Election Commission v. Weber, 240 Ky. 373, 42 S.W.2d 511 (1931) 512, the court observed this rule at the outset:
"Statutes enacted at the same session of the Legislature are presumed to be imbued with the same spirit and actuated by the same policy, and must be construed, if possible, so as to effectuate both acts. If one of the inconsistent acts contains an emergency clause, and the other does not, it is presumed that the General Assembly intended the act with the emergency clause to prevail.
Naylor v. Board of Education, 216 Ky. 766, 288 S.W. 690."
Conceding arguendo that the two bills are on their face inconsistent, the historical fact is that S.B. 163 contained an emergency clause. Senate Bill 368 did not contain such a clause. Therefore, the above rule applies. Thus in applying the rule, we can say that the two bills were presumed to be actuated by the same policy and must be construed so as to effectuate both acts. We so construe it, as will be explained hereinafter. In any event, since S.B. 163 contained an emergency clause, and S.B. 368 did not, it is presumed that the General Assembly intended the act with the emergency clause to prevail.
In Campbell County Election Commission v. Weber, above, the two acts passed in the same session related to who must count votes after an election. One act said the duty belonged to the precinct election officers, the other put the duty on the County Board of Election Commissioners. Thus the court invoked the rule that where the two acts are destructively repugnant, the law last enacted will govern. However, the distinguishing fact in Campbell County Election Commission, above, was that the court noted on page 511 of the opinion that: "Neither act contained in emergency clause and both became effective, in so far as they were valid, ninety days after the adjournment of the General Assembly. Constitution Sec. 55." (Emphasis added). Further, it is evident in Campbell County, above, that the two acts were destructively repugnant and could not possibly be reconciled, since one said the precinct officers had the counting duty, the other said the County Board of Election Commissioners. That produced a polarity that would tax Solomonic wisdom. Thus the court had to resolve the dilemma by using the rule relating to the law last enacted.
The controlling rule in Campbell as to the law last enacted has no application here, since S.B. 163 had an emergency clause, and S.B. 368 did not. Since S.B. 163 became effective on April 9, 1980, it is somewhat absurd to reason that the optional feature of S.B. 163 can be followed until S.B. 368 becomes effective on July 15, 1980. We believe the courts would not assume the legislature intended such an absurd and unsettling result.
For a reiteration of the rule of Campbell as to the inconsistent act containing the emergency clause, see
State Property & Buildings Commission v. Hays, Ky., 346 S.W.2d 3 (1961).
It can be seen that S.B. 163 is a rather lengthy act, dealing solely with public procurement, of specificity and considerable detail. Many sections of the Model Procurement Code were amended, and the nature and format of the act clearly evidence a legislative intent to overhaul, modify, and amend various sections of the procurement code, originally enacted in 1978, to modernize state purchasing law. The term "and its local public agencies" was deleted from the purpose statement in Section 2. On the other hand, S.B. 368 is a short bill dealing with procurement of prison-made goods. Thus the distinguishing rule in
City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969), that as between general legislation and specific legislation the specific controls, would mean that S.B. 163 should control since it deals minutely with specific and detailed legislation, as contrasted with the general and broad brush policy expressed in S.B. 368 about prison made goods.
It is our opinion that S.B. 163 should control for the reasons given above. Thus the adoption of KRS 45A.345 through 45A.460 by any local public agency is optional.
In addition, in invoking the rule that conflicting acts should be harmonized, it is our opinion that the two acts can be harmonized without departing from reason and logic.
As Judge Palmore wrote in state Property & Buildings Commission v. Hays, above, "Statutes enacted at the same session are presumed to be imbued with the same spirit and actuated by the same policy, and must be construed, if possible, so as to effectuate both acts." This broad principle is bottomed on the judicial reasoning that the courts assume that acts passed in the same session are intended to be consistent, rejecting the notion that the General Assembly in the same legislative breath could, even with all of its detailed deliberations, have a cataclysmic and dramatic change of mind. To the contrary, the judiciary assumes that the General Assembly has a basic consistency in dealing with a single subject in a single session, and will countenance no assumption of an infidelity to the expression of the majority will.
The two bills are reconciled on the following basis: Senate Bill 163 has made it clear, beyond any doubt, that any local public agency has an option as to coming under the specific sections of the code mentioned above. Senate Bill 368 means that if any local public agency has opted to come under the pertinent code sections, such agency may, notwithstanding the permissive adoption of the code, purchase goods produced by convict labor from the Bureau of Corrections without having to comply with the applicable adopted code provisions. In this manner, the intent of Section 9 of S.B. 163 and Section 1 of S.B. 368 can both be effectuated and harmonized without doing any violence to reason. It does defy reason to believe that under the guise of promoting the procurement of prison-made goods the General Assembly surreptitiously decided to undo what it had done in Senate Bill 163 in making the code optional for local public agencies.
Moreover, the court, in
Oates v. Simpson, 295 Ky. 433, 174 S.W.2d 505 (1943) 507, observed that "Literal language contained in some parts of it [statute], in apparent conflict with the general scheme should surrender to the general purpose and intent of the legislature as gathered from all parts of the statute." In S.B. 368 it is evident from the title that the general purpose of the legislation is to encourage the procurement of prison-made goods. The general purpose is not to reinstate the mandatory provisions of the procurement code. Thus the literal language of Section 1 of S.B. 368 must give way to the general purpose. So construed, this means that if the code applies to a particular local public agency, such agency may procure prison-made goods without having to comply with the code. The inadvertent republication of KRS 45A.350 in its original mandatory form was merely a device to create a provision establishing that the purchase of prison-made goods could be effected without having to comply with the procurement code.
Under this analysis and these authorities, it is our opinion that the Statute Reviser has a basis for codifying Section 9 of S.B. 163 and Section 1 of S.B. 368; and we believe both should stand, with the reconciliation, as we have dealt with above.
In summary, it is our opinion that: (1) The application of code sections KRS 45A.345 through 45A.460 is optional with local public agencies. (2) The Kentucky Statute Reviser has the legal basis for codifying both Section 9 of S.B. 163 and Section 1 of S.B. 368.