[1992/oagheade.htm]

OAG 92-21

February 11, 1992

Senator Tim Shaughnessy

Legislative Research Commission

State Capitol

Frankfort, Kentucky 40601

Dear Mr. Shaughnessy:

You have presented three questions to the Attorney General relating to the applicability of Executive Order 91-2, which established a code of ethics for state employees, to David McAnelly, an administrative law judge for the workers' compensation board.

Executive Order 91-2 states that its purpose is to insure that “a public official or employee shall not use public office to obtain private benefits” and to assure public “confidence in the integrity of its government and public officials and employees.” The salient provisions of the order are:

Financial disclosure by officers. Officers, which the order defines as essentially non-merit employees appointed by the Governor, must file a financial disclosure statement with the Governor's office each year. An officer who fails to file the statement “shall immediately forfeit her office.” The order describes the contents of the statement, including such items as sources of income, property interests, gifts received, and creditors.

Prohibition against using state employment to further private interests of employees. Employees, which the order defines as any employee in the executive branch of government, are subject to the following prohibitions:

• disclosing confidential information;

• participating in the transaction of business between the employee's agency and any business or firm in which the employee or his immediate family holds an interest;

• undertaking or holding for the employee's benefit any contract, agreement, lease, sale, or purchase awarded by any state agency;

• accepting any unofficial compensation for the performance of the employee's duties;

•soliciting personal gifts or gratuities from any entity that does or seeks to do business with the state, or accepting such a gift or gratuity valued at over $200 without reporting to the Governor's general counsel;

• accepting compensation from any person or firm that does business with the state in matters in which the employee was involved, for a period of six months following termination of state employment.

Preparation of legislation. The Governor's general counsel is to prepare legislation implementing the order. He is also to “provide advice, as needed, to officers and employees concerning compliance with and interpretation of this Executive Order.”

Before we address your specific questions, it may be helpful to consider the nature of this, or any other, executive order. An executive order is not law; the power to make laws is vested exclusively in the General Assembly under sections 27 and 29 of the state constitution. An executive order is, by its own terms, an action implementing the executive power. The principal executive power is to “take care that the laws be faithfully executed.” Const. �81. In other words, it is up to the legislature to make a law and it is up to the Governor “to carry it out and . . . to choose the means by which to do it” when the legislation does not specify the manner in which it is to be carried out. Brown v. Barkley, Ky., 628 S.W.2d 616, 623 (1982). An executive order is merely a statement or a directive to members of the executive branch establishing the Governor's policy on the manner in which a law is to be administered.

Your first question is:

(1) As an employee of the Department of Workers' Claims, is Mr. McAnelly subject to Executive Order 91-2?

The order states that it applies to all employees of the executive branch. Certainly an administrative law judge is such an employee, and the order would therefore apply. We will discuss what effect the order may have on Mr. McAnelly in response to your third question.

Your second question is:

(2) If Mr. McAnelly is subject to Executive Order 91-2, in holding two leases with the Commonwealth of Kentucky while serving as an employee of the Department of Workers' Claims, has Mr. McAnelly violated Section 4(3) of Executive Order 91-2?

The cited section of the order reads:

No employee shall knowingly, herself or through any entity or person, undertake or hold for her benefit any contract, agreement, lease, sale or purchase made or awarded by any state agency.

You state that Mr. McAnelly “was awarded two leases with the Commonwealth of Kentucky. The leases continue to the present.” If indeed Mr. McAnelly holds leases awarded by a state agency, we do not see how the order can be construed in any way other than to prohibit his employment in the executive branch. However, as we stated above this executive order is not law, and the Attorney General provides only interpretations of the law. The order places the responsibility for providing interpretations of its provisions on the Governor's general counsel. Thus an “official” interpretation can only be obtained from the Governor's office.

Your third question is:

(3) If Mr. McAnelly has violated Section 4(3), does the penalty established in Section 6 apply to Mr. McAnelly?

The penalty section of the order states:

Any person who violates the provisions of Section 4 of this Executive Order shall immediately forfeit his office or employment with the state. Merit employees shall enjoy the full protection of the merit system.

It is axiomatic that a Governor cannot, by issuing an executive order, confer a power on himself that he does not otherwise possess. In the context of your question, the Governor cannot order that an employee forfeit his office for violation of the order unless the Governor already possesses the power to remove the employee.

Administrative law judges are not employees in the classified service. KRS 342.230(1). Nevertheless, the Governor does not have unbridled authority over their hiring or firing. Hiring is done by the workers' compensation board with the consent of the state senate. KRS 342.230(3). Removal of an administrative law judge is provided for in KRS 342.230(4), which says:

The board may remove any administrative law judge for violation of the code of judicial ethics.

We construe this provision as vesting exclusive authority to remove an administrative law judge in the workers' compensation board. The authority is discretionary and may be exercised only when the administrative law judge is found to have violated the code of judicial ethics. This statute therefore precludes the Governor from removing an administrative law judge for any reason, including violation of Executive Order 91-2.

Our answer to your third question is that while the penalty section of the order by its terms applies to Mr. McAnelly, the penalty is unenforceable because the Governor does not have the authority to remove Mr. McAnelly.

To review our conclusions, we find that:

1. Mr. McAnelly, as an employee of the executive branch, is subject to Executive Order 91-2.

2. While Mr. McAnelly's holding of state leases appears to violate the order, such a determination can only be made by the Governor's general counsel.

3. The penalty section of the order is unenforceable with respect to Mr. McAnelly.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General