Request By:
Mr. H. Foster Pettit
Secretary
Cabinet for Public Protection
and Regulation
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Governor John Y. Brown, Jr., has requested that you seek an opinion from this office on the question as to whether or not the Governor, under his powers of reorganization as set forth in KRS 12.025, can legally effect a merger of the Energy Regulatory Commission and the Utility Regulatory Commission in order to improve the services rendered in that regulatory field.
Under KRS 278.040(1), the Energy Regulatory Commission must regulate energy utilities as defined in KRS 278.010(4) and enforce the provisions of KRS Chapter 278 with respect to such energy utilities. The Utility Regulatory Commission is required by the statute to regulate nonenergy utilities as defined in KRS 278.010(5), and enforce the provisions of Chapter 278 with respect to such nonenergy utilities. Under KRS 278.040(2), the Energy Regulatory Commission (ERC) shall have exclusive jurisdiction over the regulation of rates and service of all energy utilities; and the Utility Regulatory Commission (URC) shall have exclusive jurisdiction over the regulation of rates and service of all nonenergy utilities.
You have written that the present situation of a full-time and a part-time commission sharing one professional supporting staff has not worked well according to all knowledgeable persons.
THE GOVERNOR'S POWER OF REORGANIZATION
KRS 12.025(1) reads:
"Recognizing the necessity for grouping certain related functions of departments and administrative bodies in order to promote greater economy, efficiency and improved administration in establishing more effective organizational patterns and also recognizing the fact that such groupings and revisions in the general organizational structure need to be made as rapidly as possible when administrative functions change and the needs of government dictate, the governor may:
"(1) Establish, abolish or alter the organization of any agency or statutory administrative department, including changing the name of a department to explain more clearly the functions performed by it. Also included in this authority shall be permission to transfer functions, personnel, funds, equipment, facilities and records from one (1) department to another. Reorganization made under this section shall be set forth in an executive order, signed by the governor and filed in the office of the secretary of state, which shall explain the changes made and designate the functions, personnel, funds, equipment, facilities and records, as applicable, to be transferred. The governor shall recommend legislation to the next following session of the general assembly to confirm reorganizations effected under the provisions of this section." (Emphasis added).
THE REGULATORY COMMISSIONS AS STATE AGENCIES UNDER CHAPTER 12
The present commissions (ERC and URC) are listed in KRS 12.265 III G., as a part of your cabinet for public protection and regulation. Also see the listings in KRS 12.020 II, Item 33. Thus the subject commissions are "administrative bodies" as that term is defined in KRS 12.010(1)(c). Under the statutes just cited we believe that the two commissions are "administrative bodies" or synonymously "administrative agencies." In Hogan v. Glasscock, Ky., 324 S.W.2d 815 (1959) 816, the court wrote that:
"The departments and agencies governed by Chapter 12 are specified in KRS 12.020. They are integral parts of the executive branch of the state government created by the constitution or statute to exercise executive and administrative functions on a state-at-large level."
As we noted above, such agencies as the two commissions are listed in KRS 12.020 and 12.265.
Under the governor's reorganization powers established in KRS 12.025, he may "alter the organization of any agency" or statutory administrative department. (Emphasis added). At the beginning of the statute it contains this language: "Recognizing the necessity for grouping certain related functions of departments and administrative bodies in order to promote greater economy, efficiency and improved administration. . . ." (Emphasis added). Thus when the whole statute is read and considered, it is obvious that the reorganization powers of the governor apply to the "administrative bodies" or "agencies" that are listed in KRS Chapter 12 as being governed by Chapter 12. As we said, the subject commissions may be characterized, under Chapter 12, as "administrative bodies" or "agencies" of central state government. Judge Thomas, in May v. Clay-Gentry Graves Tobacco Warehouse Co., 284 Ky. 502, 145 S.W.2d 84 (1940) 85, 86, wrote that the "statute under consideration as a whole should be looked to", in order to unravel any ambiguity.
DOCTRINE OF PARI MATERIA APPLIED
Under the doctrine of pari materia (legislation relating to the same subject matter), such statutes should be construed together. Indiana Truck Corporation of Kentucky v. Hurry Up Broadway Co., 222 Ky. 521, I S.W.2d 990 (1928). Thus KRS 150.018, prior to the 1976 session, specifically exempted the Department of Fish and Wildlife from KRS 12.025. KRS 12.020, as amended by 1980 (Ch. 295, § 2) exempts departments and administrative bodies from KRS 12.025 where such organization is headed by a constitutional officer. However, there is no express statutory exemption relating to the subject commissions. Thus under the application of the doctrine of pari materia, there is no intended exemption of the commissions from KRS 12.025.
CONCLUSION
It is our opinion that under the terms and conditions of KRS 12.025, in order to promote greater economy, efficiency and improved administration, Governor Brown may, by an executive order clearly designating the order as being one relating to reorganization (see KRS 12.027), merge the two commissions (ERC and URC) into one commission.
The governor is required, by KRS 12.025(1), to recommend legislation to the next following session of the General Assembly to confirm the reorganization so effected. The court held in Martin v. Chandler, Ky., 318 S.W.2d 40 (1958) 45, that the General Assembly may confirm a governor's reorganization order either by specific legislation or by appropriations definitely identifying the agency or department reorganized.
Of course, Martin v. Chandler, above, makes it clear that a governor, by his reorganization order, has no authority to create a function which is not already in statutory existence.
No constitutional issue about delegation of powers to a governor was raised in Martin v. Chandler. Especially because this executive power of reorganization requires formal legislative confirmation, we see no constitutional problem here in terms of §§ 27 and 28, Kentucky Constitution. The governor, under this power, is merely rearranging, reorganizing or reallocating people, who are charged with performing a preexisting statutory function. The court wrote, in speaking of legislative power, in Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W.2d 584 (1963) 588, that "Experience has demonstrated some of the power must be invested in other bodies so that the government may function in a world that progressively is becoming more complex. There is nothing wrong with this so long as the delegating authority retains the right to revoke the power." That is precisely the case in the enactment of KRS 12.025. It contains the express power of the General Assembly to confirm the reorganizational effort of the governor or disaffirm it. Additionally the statute contains adequate guidelines. Thus the statute, KRS 12.025, contains an express delegation of legislative authority and makes it expressly revocable. See Fiscal Court, Etc. v. City of Louisville, Ky., 539 S.W.2d 478 (1977) 481.
Under the express terms of the statute the fact that the legislature has established a particular organizational pattern is no preemption or bar to a subsequent executive order of reorganization, otherwise the statute would have no practical meaning. The court, in County Board of Education v. Fiscal Court, 221 Ky. 106, 298 S.W. 185 (1927) 187, wrote that "It will not be presumed that the legislature did a vain or foolish thing."