Request By:
Richard H. Jett, Lt. Col, Ky ANG
Executive Support Staff Officer
Office of the Adjutant General
Boone Center
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Reid C. James, Assistant Attorney General
This is in response to your request for an opinion of this office regarding KRS 38.500, establishing the Kentucky National Guard Educational Encouragement Fund, and 106 KAR 1:010(5)(e), requiring personnel participating in the fund to have a minimum of one (1) year remaining in the Guard from the end of the academic period for which fund monies are received. You have related a situation in which a former Air National Guardsman participated in the fund but was discharged, at his request, prior to the completion of the minimum one year of service. He has refused, upon demand, to repay a proportionate portion of the funds, claiming that the administrative regulation, 106 KAR 1:010(5)(e), is ultra vires, and that he met and fulfilled the qualifications established by KRS 38.500 to participate in the fund. You seek our opinion as to whether the regulatory requirement of one year's service following the end of the period for which funds were received is proper and enforceable.
KRS 38.500(3), as it existed prior to July 15, 1980, provides that for one to be eligible to receive benefits from the fund, "a person must be a member in good standing of the active Kentucky national guard at the beginning of and throughout the entire semester for which benefits are payable." The adjutant general, who is authorized to make payments from the fund under KRS 38.500(2), is also charged by subsection 4 to "make rules and regulations necessary for the administration of the fund." This is in keeping with the statutory duties of the adjutant general. KRS 36.040(15).
The power to adopt administrative regulations necessary to the proper execution of an agency function is clearly established by statute, and generally such agencies are permitted to exercise a great deal of discretion in this regard. KRS 13.081. Naturally, however, there are limits to be observed. Citing favorably 42 Am. Jur., Public Administrative Law, Sec. 100, the Kentucky Supreme Court noted, "rules and regulations must be reasonably adopted to secure the end in view, and are invalid if shown to bear no reasonable relation to the purpose for which they are authorized to be made."
Portwood v. Falls City Brewing Company, Ky., 318 S.W.2d 535, 536 (1958). The Court went on to note:
Administrative rules and regulations, to be valid, must be within the authority conferred upon the administrative agency. The power to make regulations is not the power to legislate in the true sense, and under the guise of regulation legislation may not be enacted. The statute which is being administered may not be altered or added to by the exercise of a power to make regulations thereunder. A rule which is broader than the statute empowering the making of rules cannot be sustained. Administrative authorities must strictly adhere to the standards, policies, and limitations provided in the statutes vesting power in them. Regulations are valid only as subordinate rules and when found to be within the framework of the policy which the legislature has sufficiently defined. (318 S.W.2d at 537).
Is then 106 KAR 1:010(5)(e) violative of this policy?
The plain purpose of the Educational Encouragement Fund is 1) to improve the educational level of the Guard, and 2) to encourage the retention of its members. It is our opinion that the adjutant general acted properly, in good faith, and in furtherance of the legislative intent of this statute by the enactment of 106 KAR 1:010(5)(e). The requirement that a guardsman have a minimum of one year service remaining from the end of the academic period for which fund monies are provided supports the two-fold purpose of KRS 38.500 and is not ultra vires.
This stance is supported by the amendment of KRS 38.500 by the 1980 Kentucky General Assembly. Subsection 3 of this statute provides as of July 15, 1980:
To be eligible to receive benefits from the fund, a person must be a member in good standing of the active Kentucky national guard and who commits himself to service in the Kentucky national guard for at least one (1) year beyond the end of the term for which benefits are payable. (Emphasis added).
Generally, the legislature is presumed to be aware of established administrative practice and to enact its laws with this in mind. As stated in 2 Am. Jur.2d, Administrative Law, ss. 252, p. 82-84,
Acts of the legislature after a statute has been administratively construed are of particular importance, since . . . if such acts expressly or impliedly approve such construction there is not only an administrative construction but also a legislative construction which is of greater weight. . . .
An administrative construction of a statute may be approved and confirmed by subsequent legislation. The courts will not repudiate an administrative interpretation of a statute which the legislature has refused to repurdiate . . .
An amendment which employs language of a statutory provision, theretofore brought to the attention of the legislature, which is the basis for an administrative regulation, is to be regarded as accepting the construction embodied in such regulation . . .
Legislative appropriations may constitute confirmation and ratification of powers construed by an administrative agency to have been bestowed upon it.
The 1980 amendment of KRS 38.500, more than any other factor, demonstrates the legislature's acceptance and ratification of 106 KAR 1:010(5)(e), and its original legislative intent to encourage retention of Guard personnel. The adjutant general did not act ultra vires.
It is also worthy to note that one participating in the fund is presumed to be aware of both the statutes and regulations governing the fund. This being so, the guardsman at issue cannot claim a lack of knowledge of the provisions of 106 KAR 1:010.
Participation in the fund also requires a contractual obligation evidenced by an "Application for Education Assistance", appearing as Appendix B to 106 KAR 1:010. That "application" includes an affirmation by a guardsman's unit commander that he has at least one year of service remaining beyond the end of the academic term applied for, and a statement by the guardsman himself that he is obligated for such a term by participating in the fund.
In summary, it is our opinion that 106 KAR 1:010(5)(e), requiring a minimum of one (1) year's service beyond the end of the academic period for which education fund assistance is provided, is not ultra vires, and is a proper and enforceable regulation applicable to KRS 38.500.