Request By:
Mr. H. Jefferson Herbert, Jr.
Attorney at Law
P.O. Drawer R
Richards Building
Glasgow, Kentucky 42141
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You refer to OAG 79-429, in which we concluded that the bidding statute, KRS 424.260, will apply to cities and counties until January 1, 1980, at which time KRS 45A.385 [small purchases] of the model procurement code will apply to cities and counties. The practical significance of the two statutes is that under KRS 424.260 where the lease or purchase exceeds $5,000, bidding is required. While under KRS 45A.385bidding is required where the purchase exceeds $2500.
Your firm represents the Glasgow Electric Plant Board, which operates under the "Little TVA Act, " KRS 95.550 - .900. You point out that Mr. Cobb's request for the opinion (79-429) made no distinction between the various statutory provisions under which municipally owned power systems operate.
Your question is whether the Model Procurement Act applies to the purchasing procedures of a municipally owned electric distribution system operating under the Little TVA Act? See KRS 96.560(3) and 96.570(11).
These sections, pursuant to KRS 45A.350, of the Kentucky Model Procurement Code, beginning January 1, 1980, mandatorily apply to every "local public agency" in this state: KRS 45A.345 to KRS 45A.460. (Emphasis added). Thus KRS 45A.365, inter alia, will apply. It provides for competitive seal bidding, except as otherwise provided by KRS 45A.370 to 45A.385.
The critical question here is: What constitutes a "local public agency"? KRS 45A.345(8) reads:
"As used in KRS 45A.345 to 45A.460, unless the context indicates otherwise:
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"(8) 'Local public agency' shall mean a city, county, urban-county, school district, special district, or an agency formed by a combination of such agencies under KRS Chapter 79, or any department, board, commission, authority, office or other sub-unit of a political subdivision which shall include the offices of the county clerk, county sheriff, county attorney, coroner and jailer."
The term "local public agency" includes a board which is a sub-unit, instrumentality, or agency of a political subdivison.
The Glasgow Electric Plant Board operates under the "Little TVA Act. " The plant in effect is operated by the city of Glasgow through the plant board. In order for such a board to operate it is necessary for the governing body of the city to elect to come under the "Little TVA Act. " KRS 96.560 authorizes a municipality to acquire, own and operate an electric plant and contract with and acquire from TVA, inter alia, electric power. The city's powers, in this regard, are exercisable through the electric plant board. See KRS 96.570. Although the board has a great degree of autonomy, it really performs for the municipality creating it. KRS 96.740 1; and Monticello Elec. Plant B. v. Department of Revenue, Ky., 392 S.W.2d 440 (1965) 441. While holding membership on the Electric Plant Board is not filling a "municipal office", within the meaning of § 165, Kentucky Constitution [see Kereiakes v. Graham, Ky., 458 S.W.2d 162 (1970) 165], it is at once apparent that the municipal plant board is but an instrumentality, agency, or sub-unit of the city creating it, notwithstanding its autonomous powers.
You note that KRS 96.560(4) provides in effect that it is the legislative intent that KRS 96.550 to 96.900 shall be the "complete law of this state" with respect to municipalities acquiring and operating electric plants after June 1, 1942. (Emphasis added). You suggest by your letter and telephone discussion that the language might be construed to preclude the application of any statutory law extrinsic to the "Little TVA Act. " You specifically mention by telephone the apparent options of purchasing power from TVA or any other governmental agency (KRS 96.560(3)) and certain purchasing restrictions relating to the purchase and sale of electric energy, etc. See KRS 96.570(11).
It is our opinion that, notwithstanding the language of exclusivity of KRS 96.560(4), the Kentucky Model Procurement Act, which became effective for local public agencies as of January 1, 1980, applies to the purchasing procedures of a municipally owned electric distribution system operating under the Little TVA Act. The subject Electric Plant Board is indeed a board of a city as defined in KRS 45A.345(8).
First, the literal language of KRS 96.560 suggests that the Little TVA Act is the exclusive law as relates to legislation enacted up to the time of the enactment of the Little TVA Act. There is no language indicating that the General Assembly intended for the exclusivity to operate indefinitely into the future in such manner as to bar any subsequent and conflicting legislation. Statutes usually operate prospectively, but here, subsequent to the original enactment of the Little TVA Act, the model procurement law was enacted. That procurement law is a lengthy, detailed, and rather complete and specific kind of law. The obvious purpose of that legislation was to provide a detailed and complete procurement code to be applied uniformly to all the major political subdivisions and their boards. No exception is made in the case of municipal electric plant boards, which exception could have so easily been made. While KRS 96.780(5), relating to procurement for electric plant boards, was amended in 1978 some two days after the model procurement code was enacted, it is at once apparent that the procurement procedures under KRS 96.550, et seq., are broad and skeletal. But in contrast, the Model Procurement Code is detailed and specific in nature. It deals with procurement in a very minute way. Thus the minute and specific treatment must control. Morton v. Auburndale Realty Company, Ky., 340 S.W.2d 445 (1960) 446.
Footnotes
Footnotes
1 Also see KRS 96.780.