Request By:
Mr. Rudy C. Bryant
Attorney at Law
125 First Street
Farm Credit Building
Henderson, Kentucky 42420
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As attorney for the Henderson County Riverport Authority, you were directed to seek a review of OAG 78-541. That opinion held that the Riverport Authority does not fall within any of the covered categories of local governmental units mentioned in KRS 424.260.
The present issue: "Would this opinion still be applicable to the Henderson County Riverport Authority on June, 1979. Also, would there be a different opinion under the new Kentucky Model Procurement Code?"
It is our opinion that as of June 1979, and up to January 1, 1980, the conclusion in OAG 78-541 that KRS 424.260 [the bidding statute] has no application to a riverport authority still holds.
As we have said before, a riverport authority is a body politic and corporate and is a public or governmental agency. KRS 65.520. But, as we said in OAG 78-541, and we so conclude now, the riverport authority does not come under the language of KRS 424.260: "City, county or district, or board or commission of a city or county." (Emphasis added). The literal wording of KRS 424.260 strongly suggests that a riverport authority was not intended to come within the covered categories of political subdivisions or their boards or commissions, although a riverport authority may be created and funded by a city or county. A compelling reason is that the riverport authority has a basic autonomy and is, for practical legal purposes, its own independent person. Under this literalism, the ordinary meaning of the language, "City, county or district, or board or commission of a city or county", must control here, since no contrary intent is set forth in the statute.
Old Lewis Hunter Distillery Co. v. Kentucky Tax Commission, 302 Ky. 68, 193 S.W.2d 464 (1946).
The second part of your question relates to whether, as of January 1, 1980, the Kentucky Model Procurement Code applies to riverport authorities created under KRS 65.510 et seq.
This bloc of statutes, KRS 45A.345 to 45A.460, of the Model Procurement Code, effective January 1, 1980, shall apply to every "local public agency" in this state. KRS 45A.350. These statutes relate to the circumstances under which procurement can be legally effected for those affected agencies. KRS 45A.345(8) defines "local public agency" as follows:
"As used in KRS 45A.345 to 45A.460, unless the context indicates otherwise:
"(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." (Emphasis added).
It is our opinion that the term "authority", as used in KRS 45A.345(8), includes a riverport authority.
Here again we are construing the statute literally.
The courts have assigned themselves the task of construing statutes literally where it is reasonably possible to do so. Here it is reasonably possible to do so.
Barrett v. Stephany, Ky., 510 S.W.2d 524 (1974). Subsection 8 of KRS 45A.345 is speaking of a governmental "authority". That is precisely what you have in a riverport authority. Sands, Sutherland Statutory Construction (4th ed.), Vol. 2A, Sec. 46.01 contains this quotation: "There is no safer nor better settled canon of interpretation than that when language is clear and unambiguous it must be held to mean what it plainly expresses." Elsewhere in Sutherland Statutory Construction, Sec. 46.03, p. 53, this is written: "The argument is that the courts owe fidelity to the will of the legislature and that what a legislature said in the text of a statute is the best evidence of the legislative intent or will. The courts are therefore bound to give effect to the expressed intent of the legislature."
As of January 1, 1980, riverport authorities must look to the applicable provisions of the Kentucky Model Procurement Code in connection with their procurement programs.