Request By:
Senator Nick Kafoglis, Majority Caucus Chairman
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Diane S. Fleming, Assistant Attorney General
Opinion of the Attorney General
The Office of the Attorney General is asked by Senator Kafoglis to render an opinion on the constitutionality of provisions contained in Senate Bill 243, Committee Substitute 7. The Attorney General provides this opinion on a public question of law submitted by a member of the legislature. KRS 15.025(2).
Senate Bill 243, Committee Substitute 7 is a comprehensive proposal relating to education assessment and accountability in the Commonwealth of Kentucky. Included among its many provisions are amendments to current laws which delegate additional powers and responsibilities to the Office of Education Accountability. Senator Kafoglis asks our office to review the following language to determine whether or not it is a constitutional delegation of power:
"The Kentucky Board of Education, after the Department of Education has received approval from the Office of Education Accountability, shall be responsible for creating and implementing a statewide assessment program to ensure school accountability for student achievement of the goals set forth in KRS 158.645 and KRS 158.6451 that shall be known as the Commonwealth Assessment and Accountability Program." Section 4, Subsection 1;
"The Department of Education shall gather information to establish the validity of the assessment and accountability program. It shall develop a biennial plan for validation studies that shall include, but not be limited to, the relationship between the state assessment results and other indicators of improved academic achievement by students and evidence that a school's classification under the accountability system is accurate. The plan shall be submitted to the Office of Education Accountability by July 1 and upon its approval presented to the Interim Joint Committee on Education the first year of each biennium. Quarterly reports shall be submitted to the Office of Education Accountability for response, and a summary of the findings shall be submitted by September 1 of the second year of the biennium. " Section 4, Subsection 5; and
Language in several sections requires the Kentucky Board of Education to obtain approval from the Office of Education Accountability prior to promulgating administrative regulations. For example, Section 4, Subsection 7 states in part, "The Kentucky Board of Education, after the Department of Education has received approval from the Office of Education Accountability, shall promulgate an administrative regulation under KRS Chapter 13A to establish the components of a school report card that clearly communicates with parents and the public about school performance." See also, Section 5, Subsections 1, 2, 3 and 4; and Section 7.
I. The Delegation of Powers by the Legislature
The Supreme Court's decision in Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984), is the definitive case concerning the delegation of powers by the legislature. In Brown, a number of legislative enactments were before the Court, which conferred specific powers upon the Legislative Research Commission, many of which were to be exercised while the General Assembly was adjourned.
In reaching its decision, the Court engaged in an historical review of the separation of powers doctrine. It noted that the framers of Kentucky's Constitution included an express provision for the separation of powers. In fact, the language in these provisions is consistent with the desire of the public, at the time of the drafting of the Constitution, to curb the power of the General Assembly. Our present constitution also contains explicit provisions mandating separation of power among the three branches of government, and prohibiting the incursion of one branch of government into the powers and functions of the others. The Court concluded that the separation of powers doctrine is absolutely fundamental to Kentucky's tripartite system of government and therefore must be "strictly construed." Id. at 912. See also, Arnett v. Meredith, Ky., 275 Ky. 223, 121 S.W.2d 36, 38 (1938).
The separation of powers mandate is located in Section 27 of the Kentucky Constitution and 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 executive, to another; and those which are judicial, to another.
The provision prohibiting the incursion of powers of one branch into the powers of another is found in Section 28 of the Kentucky Constitution and reads as follows:
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.
Therefore, when analyzing Senate Bill 243, we must strictly construe the language to ensure that the separation of powers doctrine is not violated.
Having completed its analysis of the historical basis for a separation of powers, the Court in Brown addressed the issue of the delegation of power from the General Assembly to the LRC. First, the Court looked to Section 29 of the Kentucky Constitution which states:
The legislative power shall be vested in a House of Representatives and a Senate, which, together, shall be styled the "General Assembly of the Commonwealth of Kentucky."
Next, the Court cited Section 60 of the Kentucky Constitution which provides in part, "No law . . . shall be enacted to take effect upon the approval of any other authority than the General Assembly . . . ." Drawing upon its previous analysis of these sections, the Court reiterated that the legislature cannot "deputize" its power to others. Brown at 915, quoting Bloemer v. Turner, Ky., 281 Ky. 832, 137 S.W.2d 387, 391 (1940). In summary, the "General Assembly cannot delegate its power to make a law. It can, however, establish standards for administration and delegate authority to implement a law." Id.
While these principles are easy to state, their application is difficult. Recognizing this, the Court repeated its explanation in Holsclaw v. Stephens stating, "when we say that the legislature may not delegate its powers, we mean that it may not delegate the exercise of its discretion as to what the law shall be, but not that it may not confer discretion in the administration of the law itself. . . ." 507 S.W.2d 462, 471 (Ky. 1974). Therefore, for the delegation of legislative power to be lawful, it must not include the exercise of discretion as to what the law shall be. 664 S.W.2d at 915.
The task before us is to determine whether the delegation of power to the Office of Education Accountability is permissible. We begin with a brief overview of OEA.
II. The Office of Education Accountability
The Office of Education Accountability was created by the General Assembly and placed under the direction of the Legislative Research Commission. KRS 7.410(2)(a). By statute, the OEA has been given the responsibility of monitoring the education system and implementation of the provisions of the Kentucky Education Reform Act of 1990, including actions taken by the state boards of education, the chief state school officer, the Department of Education or any local school district. KRS 7.410(2)(c)1. In addition, the office is required to establish a division to review the finances of education in Kentucky, verify the accuracy of reports from each of the entities listed above, investigate improprieties, carry out an efficiency study of the system of common schools and make reports on the implementation of KERA. KRS 7.410(2)(c)2-7.
Shortly after the creation of the OEA, questions were raised concerning the constitutionality of its powers and activities. Our office addressed these issues in OAG 91-222. There, we noted the Supreme Court case of Rose v. Council for Better Education, Inc., which stated that it is the sole obligation of the General Assembly to provide for a system of common schools in Kentucky. 790 S.W.2d 186, 205 (Ky. 1989). The Court's decision in Rose was based in part upon Section 183 of the Kentucky Constitution which states, "The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state." We concluded that the language of Section 183 of the Kentucky Constitution, coupled with the Supreme Court's decision in Rose, gave the General Assembly the constitutional authority to create the Office of Education Accountability.
In OAG 91-222 we also addressed the question of whether the activities of the OEA violate the separation of powers doctrine. Applying the analysis in Brown, we concluded that the Office of Education Accountability, having no authority to take supervisory or corrective action, does not exercise executive branch type functions. Therefore, we concluded that the powers and duties delegated to it by the General Assembly in KRS 7.410 et seq. are constitutional.
III. Senate Bill 243, Committee Substitute 7
Our office has been asked to render an opinion on the constitutionality of provisions contained in Senate Bill 243, Committee Substitute 7. The Office of Education Accountability is an arm of the legislative branch of government. The proposed legislation would require the Kentucky Board of Education and the Department of Education to receive approval from OEA prior to implementing the Commonwealth Assessment and Accountability Program, prior to developing the biennial plan for validation studies, and prior to promulgating administrative regulations. Such a delegation of power is an unconstitutional encroachment into the executive branch of government. LRC v. Brown, Ky., 664 S.W.2d 907, 919 (1984).
In Section 4, Subsection 1 the Kentucky Board of Education, "after the Department of Education has received approval from the Office of Education Accountability" shall be responsible for creating and implementing an assessment program to be known as the Commonwealth Assessment and Accountability Program. (Emphasis added).
Here, the Office of Education Accountability has been granted the authority to pre-approve the Commonwealth Assessment and Accountability Program. In essence, the General Assembly has delegated authority to OEA to exercise its discretion as to what the law shall be. This is a clear violation of the separation of powers doctrine and the principles set forth in LRC v. Brown, Ky., 664 S.W.2d 907 (1984).
The second provision submitted for our review is Section 4, Subsection 5, which orders the Department of Education to gather information to establish the validity of the assessment and accountability program. The Department is required to develop a biennial plan which "shall be submitted to the Office of Education Accountability by July 1 and upon its approval presented to the Interim Joint Committee on Education . . . " (Emphasis added). Once again we see a delegation of authority to the OEA. This section requires them to pre-approve the biennial plan before DOE submits it to the Interim Joint Committee on Education. In effect, it allows them to determine what the law shall be and as such is an unconstitutional delegation of the power to make a law from the legislature to the OEA.
Finally, we have been asked to review a number of sections which require the Kentucky Board of Education to obtain approval from the Office of Education Accountability prior to promulgating administrative regulations. The adoption of administrative regulations is executive in nature and is normally considered to be within the constitutional purview of the executive branch of government. Brown at 919. Therefore, requiring the OEA, an arm of the legislative branch, to approve all proposed regulations is a legislative encroachment into the power of the executive branch. Id.