Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of June 4, in which you raise a question concerning the effective date of S.B. 152, an Act relating to governmental purchases and declaring an emergency. You further relate that the problem arises from the fact that the reason for the emergency pertains to only Section 3 of the Act though the Act states that it is effective upon its passage and approval by the governor. Your specific question presented is as follows:
"Does only Section 3 become effective on the emergency effective date, which is April 2, 1982, or the entire Act?"
Section 55 of the Constitution requires the reason justifying the emergency to be set out at length in the Act in order for it to be effective. Referring initially to the case of
McIntyre v. Commonwealth, 221 Ky. 16, 297 S.W. 931 (1927) dealing with the question of the effectiveness of emergency legislation, we quote the following:
"It will be observed that the Constitution requires that the reasons for the emergency, that justifies this action, must be set out at length. There could be no possible reason for this provision in the clause limiting the power of the Legislature to make an act take effect upon its approval by the Governor, unless it was intended that an emergency clause should not take effect in violation of the provision. To hold otherwise would be to give no effect to this restriction on the power of the Legislature and to hold in effect that the Legislature can make any act take effect immediately at its will."
* * *
"'The Constitution does not authorize the passage of an emergency statute, except in case an emergency exists making it important, if not absolutely necessary to accomplish the full purpose of its enactment, that it take effect immediately upon its approval, and by plain language requires the expression of what the emergency is in the preamble or body of the act. To say the mere declaration that an emergency exists fulfills the requirement of the Constitution would be a plain disregard of the language that the emergency shall be expressed in the preamble or body of the act. The statement that an emergency exists is not an expression of the emergency. '"
The emergency clause found in S.B. 152 and in Section 5 thereof reads as follows:
"Section 5. Whereas, the attorney general has raised a question about the applicability of KRS 45A.340(5) to citizen members of state boards and commissions; and,
Whereas, it is therefore necessary for the general assembly to promptly clarify the definition of 'officer or employe' as it relates to such board and commission members and to accord equal treatment to them, whether they serve with or without per diem payment of their services;
Now, therefore, an emergency is deemed to exist and this Act shall become effective upon its passage and approval by the governor. "
The emergency Section 5 of the Act relates solely to Section 3 of the Act amending KRS 45A.335 to exclude from the term "officer and employe" as used in the conflict of interest statute, KRS 45A.340(5), members of state boards and commissions. It not only does not relate to the other sections of the bill, which are separable, but it gives no reason to justify that an emergency exists with respect to these sections which we deem essential for their inclusion within the emergency provision.
Thus, in view of the fact the Constitution requires the Act to contain the expression in plain language as to what the emergency is in order for it to be effective and since the reasons for the emergency expressed in Section 5 relate solely to Section 3 as previously mentioned and to none of the other sections of the Act, all of which are unrelated to Section 3 and not dependent thereon, we conclude that only Section 3 becomes effective on April 2, and the remaining sections of the Act become effective as ordinary legislation on July 15. This conclusion is reached in spite of the fact that the Act's concluding language in Section 5 is to the effect that it shall become effective upon passage and approval by the governor.