Request By:
State Senator Nelson Robert Allen
507 Bellefonte - Princess Road
Route #5, Greenup County
Ashland, Kentucky 41101
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
By letter dated September 18, you have requested an opinion of our office regarding House Bill 6, which is the education package passed by the General Assembly in the 1985 Extraordinary Session. Specifically, your inquiry is concerned with the educational programs contained within House Bill 6 for which there are no effective dates specifically stated and for which no funding is provided in the school year. You ask whether those programs must be implemented upon the effective date of the bill, October 18, 1985, or whether implementation may be delayed until the 1986-87 school year.
As you correctly point out, the ordinary legislation adopted during the 1985 Special Session of the Kentucky General Assembly will become effective October 18, 1985. See, OAG 85-113. Many of the provisions of H.B. 6 do not expressly state an effective date, and therefore the effective date of those provisions is October 18, 1985.
Of course, many of the programs, e.g., teacher salary increases and class size reductions, will require funding to effectively implement. As to the source of that funding, guidance is provided by House Concurrent Resolution 5, enacted by the General Assembly during the 1985 Extraordinary Session. H.R. 5 is "A CONCURRENT RESOLUTION relating to the Governor's Education Improvement Program and the financing thereof." Within H.R. 5, the General Assembly states: "WHEREAS, that action requires appropriations of public funds that can only be made by the General Assembly in its 1986 Regular Session; . . ." Then, within H.R. 5 the General Assembly proceeds to advise the governor to include in the draft appropriations bill to be submitted to the 1986 General Assembly recommendations for appropriations from the General Fund to be made by the General Assembly for an Education Improvement Program, in amounts specifically set out within H.R. 5. Therefore, by adoption of H.R. 5 it appears that with the exception of four items (Career Ladder Pilot, Commission on Vocational/Technical Education, School Facility Construction, and Transportation Increase) for which the General Assembly recommends current fiscal year 1985-86 appropriations, the General Assembly intended that state funds not be appropriated for these new education programs until beginning with fiscal year 1986-87, despite the fact that most of the bill's provisions become effective October 18, 1985.
However, knowing the intent of the General Assembly does not completely resolve your question, as we must also look at the legal requirements of the statutes and the case law. For example, KRS 45.244 states:
"Except as expressly authorized in this chapter, no person shall incur, or order or vote to incur, any obligation against the Commonwealth in excess of, or any expenditure not authorized by, an appropriation of the general assembly and an allotment of funds provided by KRS Chapter 48. Any such obligation so incurred shall not be binding against the Commonwealth, and shall be void and incapable of ratification by any administrative authority of the Commonwealth."
In accordance with KRS 45.244, an obligation against the Commonwealth shall not be incurred if it is not authorized by appropriation of the General Assembly and an allotment of funds provided by KRS Chapter 48. Along these same lines, we point out KRS 45. 251(1), which provides: "Expenditures shall be limited to the amounts and purposes for which appropriations are made. . . ." These two provisions, taken together, indicate that there shall be no expenditure of state funds unless authorized by an appropriation of the General Assembly, and even then the expenditure shall be limited to the amounts and purposes for which the appropriations have been made. As a result, KRS 45.244 and 45.251 are consistent with the conclusion to be reached from H.R. 5, i.e., that H.B. 6 will be effectively implemented only upon appropriation of state funds for those purposes by the 1986 General Assembly.
Turning to the relevant case law, we note Miller v. Quertermous, 304 Ky. 733, 202 S.W.2d 389 (1947). This was an action by the Commissioner of Welfare against the Commissioner of Finance and the State Treasurer for a writ of mandamus directing the defendants to issue checks for payment of the necessary and ordinary expenses of feeding. Clothing, and housing the prisoners or wards of the state. The case arose right after World War II, during which the price control system was in effect. After the war, the price control system was lifted, resulting in a significant rise in the cost of living in the fiscal year 1946-47. There was insufficient money in the Governor's emergency fund to resolve this problem, but there was a $15,000,000 unappropriated surplus in the general fund. The Court in Miller found the presence of an unexpected and unanticipated emergency justifying the use of the general fund surplus. The Court appeared to recognize this as an important and necessary governmental function.
One other relevant case is Jones v. Commonwealth, Ky., 457 S.W.2d 627 (1970), which involved the payment of attorneys' fees for serving as court-appointed counsel. The court found that because the state is required by both the federal and state constitutions to provide indigent criminal defendants with court-appointed counsel, this constituted an essential governmental expense. As a result, the court found that a lack of an appropriation by the General Assembly for this purpose was not a bar to a judicial order for payment out of the state treasury.
Miller and Jones, both supra, seem to instruct that if the General Assembly has not made an appropriation for the particular purpose in question, then only in those rare instances when it is determined that the particular item constitutes an essential or necessary governmental function or expense will the court consider a judicial order for payment from state funds. In Jones, supra, the essential governmental function was found to be a basic obligation of the state under the federal and state constitutions. In Miller, supra, the essential governmental function was found to be continuation of funding so that the state could meet its basic obligations to the wards of the state.
The present situation involves creation by H.B. 6 of new education improvement programs. Applying the standards of Jones and Miller, both supra, and considering that creation of these education improvement programs has not been determined to be constitutionally mandated and the General Assembly has not yet appropriated funds for these programs, we are of the opinion that it is not required that the state general fund presently be utilized to implement these programs.
In sum as to the state's obligations, it is our opinion that if a bill directs that something be done which does not involve a constitutional obligation of the state, and although the nature of the bill requires funding but no appropriation is made for implementation of the bill, then the enacted bill is not required to, and pursuant to KRS 45.244 and 45.251 cannot, be implemented by the state until money for its implementation is appropriated by the General Assembly. In other words, despite the fact that most of the provisions of H.B. 6 have an effective date of October 18, 1985, those H.B. 6 education improvement programs for which no funding is provided in the current fiscal year are not required to be, and cannot be, implemented by the state until an appropriation is made for them by the General Assembly.
Finally, we need to address the issue of the timing of the local school districts' duty to implement the H.B. 6 education improvement programs contained in those provisions of the bill that become effective October 18, 1985. Included within the scope of your inquiry is whether these programs in question, for which no state funding is provided in the current fiscal year, must be implemented by the local school districts on October 18, 1985, or whether implementation may be delayed until the 1986-87 school year.
The programs in question within H.B. 6 which do not necessarily first require state action, e.g., an appropriation of state funds or promulgation of a regulation by the state board of education, include the duty-free lunch period and the class size limitations in grades 1-8. Unfortunately, as to these provisions of H.B. 6 the General Assembly did not include a delayed effective date, which would have avoided the resulting confusion and uncertainty. In determining when the local school districts must implement these programs, we look to the relevant statutory and case law.
While the effective date of the provisions of H.B. 6 in question may be October 18, 1985, there are statutory restrictions on local school districts' ability to use local school funds for new programs not provided for in their budgets for this school year. For example, KRS 160.530 states:
"The money collected by taxation under the provisions of KRS 160.460 to 160.520 [relating to school district finances] and other school money shall be expended by the board of education in accordance with the recommendations contained in the budget submitted to the state board for elementary and secondary education."
Also relevant is KRS 160.550(1), which provides:
"No superintendent shall recommend and no board member shall knowingly vote for an expenditure in excess of the income and revenue of any year, as shown by the budget adopted by the board and approved by the state board of education, except for a purpose for which bonds have been voted or in case of an emergency declared by the state board of education. "
702 KRS 3:050 indicates that declaration of an emergency as referred to in KRS 160.550(1) refers to an emergency where the health and safety of the pupils is placed in jeopardy of where a school program is disrupted. Therefore, this emergency exception does not appear applicable to the present situation.
The budget of each local school district for this school year, for which the fiscal year began July 1, 1985, has of course previously been prepared, approved by the local board of education and by the state board of education, and is the present operating budget. Obviously, these present budgets do not include items for implementation of the H.B. 6 education improvement programs in question. As a result, KRS 160.530 and KRS 160.550(1), as quoted above, restrict the ability of local school districts to now expend money for these purposes during this school year.
As an additional point, some of the practicalities of this situation should be recognized. The local school districts are well into the 1985-86 school year, and to require them to implement the programs with which this opinion is concerned on October 18, would be impractical and unreasonable for most, if not all, local school districts. For example, providing duty-free lunch periods on October 18, would involve re-arrangement of the daily schedules of most teachers in each school system, the hiring of non-instructional teacher aides by most school districts, etc. In addition, as to the class-size limitation provisions, implementation on October 18, would involve hiring of additional teachers and taking some students out of their present classrooms and putting them into other classrooms. It is a maxim of law that it is presumed that the legislature did not intend to reach an absurd result. Peewee Valley, Etc. v. So. Oldham Fire, Etc., Ky.App., 570 S.W.2d 290, 292 (1978).
In conclusion, because the General Assembly failed to include a delayed effective date for the H.B. 6 provisions regarding the duty-free lunch period and class-size limitations in grades 1-8, the effective date of these provisions is October 18, 1985. However, given the restrictions of KRS 160.530 and 160.550(1), as well as the impracticalities of implementation on October 18 that most, if not all, local school districts face, it is doubtful that any local school district in the Commonwealth could be expected to implement these programs on October 18. Therefore, for the reasons set out above, it is our opinion that, except where otherwise expressly indicated in a particular H.B. 6 provision, the education improvement programs as to which the local school districts have a duty to implement must be implemented by the local school districts beginning with the 1986-87 school year.
We trust this information is helpful to you in addressing this matter.