Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
You have reported to our office that some state agencies have expressed concern in regard to the enactment of their regulations as statutes pursuant to KRS 13A.345, since these agencies must change their regulations periodically in order to meet federal requirements to qualify for certain funds. In light of the provisions of KRS 13A.345, enacted by the 1986 Regular Session of the General Assembly, you have posed the following question: Whether an administrative agency may repromulgate an administrative regulation which has expired pursuant to KRS 13A.345 because the regulation was not enacted into law by the regular session of the General Assembly following its adoption.
Your question arises as a result of the requirements of KRS 13A.345, which provides:
"(1) All administrative regulations in effect on July 15, 1986, shall be effective only until the effective date for regular Acts of the 1988 regular session of the general assembly, on which date they shall expire unless enacted into statute by the 1988 regular session of the general assembly.
"(2) After July 15, 1986, any administrative body may adopt administrative regulations in accordance with the provisions of KRS Chapter 13A; however, such regulations shall be in effect only until the effective date for regular Acts of the next succeeding regular session of the general assembly on which date they shall expire, unless enacted into statute by the regular session of the general assembly following their adoption.
"(3) Each administrative body which seeks to continue the effective date of any administrative regulation beyond the date on which it shall expire pursuant to the provisions of subsection (1) of this section shall prepare legislation proposing the enactment of such administrative regulations into statute by the next regular session of the general assembly. Such legislation may be introduced by any member of the general assembly, but shall be submitted to the interim committee of the legislative research commission of appropriate jurisdiction for its review and recommendation at least one hundred eighty (180) days prior to the convening of the next regular session of the general assembly. "
Based upon Kentucky Constitution Sections 27, 28, 69, and 81, as well as Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984), we conclude that, subject to certain restrictions, an administrative agency may repromulgate an administrative regulation in the situation suggested by your question. A discussion of the bases for this conclusion follows.
In L.R.C. v. Brown, supra, the Kentucky Supreme Court discussed at length the separation of powers doctrine and the authority to adopt administrative regulations. Because the dicta and rulings in that case are significantly instructive in responding to your question, it seems helpful to quote the following passages from L.R.C. v. Brown:
". . . Our present constitution contains explicit provisions which, on the one hand, mandate separation among the three branches of government, and on the other hand, specifically prohibit incursion of one branch of government into the powers and functions of the others. . . ." (p. 912).
". . . Moreover, it has been our view, in interpreting Sections 27 and 28 [of the Kentucky Constitution], that the separation of powers doctrine is fundamental to Kentucky's tripartite system of government and must be 'strictly construed.'" (Citations omitted) (p. 912).
"Under Kentucky's Constitution, the executive powers and responsibilities of the Commonwealth lie within the province of the Governor. Ky. Const. Sec. 69. Under Section 81 the Governor has the positive duty to go forward and 'take care that the laws be faithfully executed'. Ky. Const. Sec. 81. . . .
". . . The adoption and use of administrative regulations are important tools in the operation of modern government, at all levels. The purpose is to enable the Governor to successfully carry out the constitutionally mandated executive and administrative duties bestowed upon that office. [Citations omitted]. There is no constitutional authority, however, whereby the governor can add, directly or indirectly, to the content of a statute by means of an administrative regulation and, a fortiori, no administrative regulation can be adopted unless it is necessary and is related to the content of the legislative act and to its effective administration." (pp. 919-920).
The Court in L.R.C. v. Brown, supra, concluded that a provision within KRS 13.092(3), which could have prohibited the executive branch from issuing regulations, was an unconstitutional limit and interference with the executive branch's mandated duties. See L.R.C. v. Brown, supra, at p. 920.
Based upon L.R.C. v. Brown, supra, and Kentucky Constitution Sections 27, 28, 69, and 81, upon which that opinion is based, we must conclude that under the executive branch's constitutional duty to execute the laws, an administrative agency may repromulgate an administrative regulation which has expired because it was not enacted into law by the regular session of the General Assembly following its adoption. However, some restrictions on this conclusion must be noted. These restrictions have been described in "The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown," 73 K.L.J. 175 (1984-85), on pp. 224-225 as follows:
"This is not to contend that the executive branch has unbridled power to issue regulations. There are many statutes that are self-executing and others that can be implemented without regulations. Furthermore, future General Assemblies can restrict the power to issue regulations by amending the underlying statutes. However, there are some statutes that cannot properly be executed without statements by the executive branch clarifying its enforcement policy. Whether these announcements are called interpretive bulletins, rules, regulations, or whatever, it is unconstitutional for the General Assembly to totally prohibit the executive branch from issuing them."
Therefore, with the restrictions quoted above in mind, we make the following conclusion: If a statute cannot properly be executed without a regulation promulgated by the executive branch clarifying its enforcement policy, then an administrative agency may repromulgate the administrative regulation which has expired because it was not enacted into law by the regular session of the General Assembly following its adoption. On the other hand, if the General Assembly amends a particular underlying statute and thus effectively restricts the power of the administrative agency to issue a regulation thereunder because the statute is then self-executing or can be implemented without regulation, then an administrative agency may not repromulgate the administrative regulation which had been adopted prior to the amendment of the underlying statute and which has expired due to the fact that it was not enacted into law by the regular session of the General Assembly following its adoption.