Request By:
Dr. William C. Wesley, Superintendent
Garrard County Schools
322 West Maple Avenue
Lancaster, Kentucky 40444-1046
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
You have requested an opinion from this Office concerning the legality of the Office of Education Accountability (OEA) and its activities. The questions arose in the context of an investigation, first, by the Department of Education, then by the OEA. The wife of a high school principal, reportedly, was employed in the principal's school in violation of KRS 160.380 (2)(g). In your response to the Department of Education, you indicated that there was no other position available in which the principal's wife could serve. One month later, you received a request for information from the OEA concerning the same allegations. As a result, you raise the following specific questions:
(1) What legal standing does the Office of Education Accountability have?
(2) What constitutional standing does this same Office have?
(3) Does this Office have the right to perform the regulatory and supervisory functions over the day to day operations of school districts?
(4) Do the executive branch type activities of the Office violate the separation of powers clauses of our constitutions?
(5) If no, why not?
(6) What legal recourse do Superintendents and Boards have when they are professionally accosted or harassed by state legislative agencies?
(7) Do I have the right to confront my accusers or at least see and contest the allegations prior to being assumed guilty and having to prove myself innocent?
(8) Do Superintendents have to respond to these "requests[?"]
(9) If so, why and under which statutes?
In answer to question one, the OEA was created by the General Assembly through the enactment of KRS 7.410. The Office is under the supervision and control of the Legislative Research Commission which shall appoint a deputy director. KRS 7.410 (2)(a) and (b). The Office has responsibility to enforce the provisions of the Kentucky Education Reform Act, enacted in 1990, whether carried out by the state boards of education, by the chief state school officer, by the Department of Education, or by local school districts. KRS 7.410 (2)(c)1. The Office shall establish a division to review finance of education in Kentucky, shall verify accuracy of reports from the various entities listed above, shall investigate improprieties, shall carry out an efficiency study of the system of common schools, and shall make reports on implementation of the Education Reform Act. KRS 7.410 (2)(c)2.-7.
The authority to investigate is comprehensive. KRS 7.410 (2)(c) states:
The Office of Education Accountability shall have the following duties and responsibilities:
* * *
4. Investigate allegations of wrongdoing of any person or agency, including, but not limited to, waste, duplication, mismanagement, political influence, and illegal activity at the state, regional, or school district level which have not been resolved or satisfactorily explained by the local superintendent, local board of education, the chief state school officer, or the State Board for Elementary and Secondary Education, and make recommendations for action to the Legislative Research Commission.
In answer to question two on constitutional standing of the OEA, Section 183 of the Kentucky Constitution states:
The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State.
This section has been interpreted "to promote public education as a duty of the state, making it mandatory upon the General Assembly to provide an efficient system." Commonwealth v. Burnett, 237 Ky. 473, 35 S.W.2d 857, 858 ((1931). The Kentucky Supreme court reiterated this position, more recently, when it stated:
First, it is the obligation, the sole obligation, of the General Assembly to provide for a system of common schools in Kentucky. The obligation to so provide is clear and unequivocal and is, in effect, a constitutional mandate. Next, the school system must be provided throughout the entire state, with no area (or its children) being omitted. The creation, implementation and maintenance of the school system must be achieved by appropriate legislation. Finally, the system must be an efficient one.
Rose v. Council for Better Education, Inc., Ky., 790 S.W.2d 186, 205 (1989). Based on the language of Section 183 of the Kentucky Constitution, and on case law interpreting that section of the Kentucky Constitution, the General Assembly has authorization to create the OEA.
In answer to question three, while the OEA does not have the right to perform the executive functions of regulating and supervising administration of the day to day operations of school districts, the Office may study and monitor the implementation of the Kentucky Education Reform Act for reasons explained below in response to questions four and five.
In answer to questions four and five, it is the opinion of this Office that the activities of the OEA do not violate the separation of powers sections of the Kentucky Constitution set forth in Sections 27 and 28. Section 27 states:
The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.
Section 28 states:
No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
The Supreme Court of Kentucky interpreted these sections when the General Assembly delegated certain powers to the Legislative Research Commission (LRC), which now includes the Office of Education Accountability). Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984). Unlike the United States Constitution, the Kentucky Constitution expressly references separation of powers. Id. at 911-912. The Court noted that the separation of powers doctrine must be "strictly construed." Id. at 912.
While the Court found no impropriety in LRC's serving as a general support agency and carrying out research and fact-finding on behalf of the legislature, the areas of responsibility are not unlimited. Id. at 917. The General Assembly may neither delegate authority to legislate to LRC, nor may it legislate through LRC while in adjournment. Id. at 915. LRC is neither an independent agency, nor fourth branch of government. Id. at 916-917. LRC may not make or confirm executive appointments, Id. at 923-924, reject administrative regulations, Id. at 918-919, or, generally, exercise supervision over the executive and judicial branches of government during the adjournment of the General Assembly. Id. at 916. Accordingly, the LRC legislative subcommittee could not veto regulations or delay implementation, or make quasi-judicial determinations of statutory compliance. Id. at 919. Neither may the General Assembly authorize the Speaker of the House or President Pro Tem of the Senate to make appointments; direct the Governor to make appointments from lists furnished by LRC; nor require advice and consent of LRC of an interim legislative committee on appointments. Id. at 923-924. Neither may LRC veto the Governor's reorganization plans. Id. at 930.
Nevertheless, in the area of supervision of the budgetary process, the court determine that the General Assembly could require that executive agencies file budget requests on certain forms, providing particular information to LRC. This requirement involved no delegation of legislative control to LRC, only that each executive agency comply with the statutes enacted and report to LRC.
Based on the analysis supplied by the Kentucky Supreme Court, it is clear that the OEA does not exercise executive branch type functions prohibited in LRC v. Brown , supra . Under KRS 7.410, the OEA has responsibility to monitor the education system and implementation of the Kentucky Education Reform Act of 1990, to review the finance system, to verify reports, to investigate allegations of wrongdoing which have not been resolved or satisfactorily explained, to conduct studies, to make reports, and to make recommendations for action to LRC. Nevertheless, the OEA has no authority to take supervisory or corrective action. That remains the responsibility of executive agencies such as the Department of Education, the State Board of Elementary and Secondary Education, and the Office of the Attorney General.
In answer to question six, superintendents and boards are subject to investigation by legislative agencies, but those agencies, in this case OEA, may not take enforcement action against them. Superintendents and boards are advised to seek advice of counsel on how best to participate and cooperate in the investigation, to answer questions, and to show compliance with statutes.
The discovery powers set forth in KRS 7.410(2)(d) are broad. However, they relate to the ability of the arm of the legislature to study the implementation of the Reform Act, and to insure that the General Assembly is successful in creating an "efficient system of common schools," as mandated by Section 183 of the Kentucky Constitution.
We note, in passing, that LRC has had similar powers, for many years, to engage in program review and investigation. KRS 6.905-935. KRS 6.910 authorizes the legislative program review and investigation committee, inter alia , to make performance reviews concerning operations of state agencies to determine that state funds are expended appropriately, to evaluate the efficiency of practices and duties of state agencies, and to conduct investigations. Under KRS 6.930, the committee reports inadequacies and deficiencies to the head of the state agency or program concerned for appropriate action. The committee also files reports and recommendations, as needed, with the General Assembly. This activity is a necessary aspect of determining whether legislation is accurate in its conceptualization of problems as well as effective in designing solutions.
In answer to questions seven, eight, and nine, the concepts that you mention refer to prosecution under criminal law, and do not apply to civil investigations. Administrative agencies, very commonly, must rely on anonymous information to ascertain where problems lie. Nevertheless, you may wish to consult with counsel to determine the best way of obtaining complete information concerning allegations of improprieties in order to be able to address them in a meaningful way. The authority under which superintendents and boards must respond to questions raised in the course of investigation is found in KRS 7.410, and KRS 6.905-935.