Request By:
Steve Riley
State Representative
23rd District
Opinion
Opinion By: ANDY BESHEAR,ATTORNEY GENERAL;Taylor Payne,Assistant Attorney General
Opinion of the Attorney General
Steve Riley, State Representative, 23rd District, has requested an opinion from this office to address whether the Glasgow Electric Plant Board ("Plant Board") is subject to the Model Procurement Code. We advise that the Plant Board is subject to the Model Procurement Code only if it has adopted the provisions of KRS 45A.345 to KRS 45A.460, pursuant to its permissive authority under KRS 45A.343.
In OAG 80-63, this office opined that the Kentucky Model Procurement Code applied "to the purchasing procedures of a municipally owned electric distribution system[.]" To reach that conclusion, this office relied on KRS 45A.350, which stated that beginning January 1, 1980, the Kentucky Model Procurement Code mandatorily applied to every "local public agency" in the state. Id. This office then determined that the Plant Board was a local public agency as defined by KRS 45A.345(8). However, KRS 45A.350 has since been repealed. Thus, this office's analysis relying on KRS 45A.350 is no longer applicable. 1
On April 9, 1980, a little over two months after that decision, KRS 45A.343 became law. That statute states "Any local public agency may adopt the provisions of KRS 45A.345 through 45A.460." KRS 45A.343(1). Under KRS 446.010(26), when used in statutes the word "may" means "permissive." No reason exists to depart from our holding in OAG 80-63 that the Plant Board is a "local public agency" as defined under the Model Procurement Code. Therefore, we advise that the Plant Board now has the option to adopt the provisions of KRS 45A.345 through 45A.460. KRS 45A.343. See also Board of Educ. of Woodford Cnty. v. D.W. Wilburn, Inc. , Nos. 2008-CA-2422, 2009-CA-50, 2010 WL 2010760, at *8 (Ky. App. May 21, 2010); OAG 13-006; OAG 80-279. Accordingly, the Plant Board is only subject to the Model Procurement Code if it has adopted the provisions of the Code. See OAG 82-8 (advising that the Model Procurement Code must only be followed by a local public agency if adopted by the agency). The Plant Board and the City Council should determine whether the Plant Board has adopted the Model Procurement Code, and if not, other appropriate procedures for procurement should be adopted.
Footnotes
Footnotes