[1994/oagheade.htm]

OAG 94-40

June 7, 1994

Jill LeMaster

Executive Director, Executive Branch Ethics Commission

Capitol Annex

Frankfort, Kentucky 40601

Re: KRS 11A.990(6)

Dear Ms. LeMaster:

You have asked how to construe KRS 11A.990(6), which says:

Any legislative agent or employer who fails to file the initial registration statement or updated registration statement required by KRS 11A.211 or 11A.216, or who fails to remedy a deficiency in any filing in a timely manner, may be fined by the [Executive Ethics] commission an amount not to exceed one hundred dollars ($100) per day, up to a maximum total fine of one thousand dollars ($1000).

You point out that the term "legislative agent" is an obvious error, and that the proper term should have been "executive agency lobbyist." There is not the slightest doubt that you are correct in this supposition, based on these facts:

Obviously the drafter of section 55 of the 1992 act mistakenly used the term "legislative agent," a term used profusely in sections 1 through 44 of the act, instead of "executive agency lobbyist," which is what section 55 is about. We note that even where section 55 gets the branch of government right, it uses the wrong term: section 55 refers to "executive lobbyist" instead of "executive agency lobbyist," the term that is otherwise used consistently throughout the act.

The general rule on the substitution of one word for another in a statute is:

Courts have permitted the substitution of one word for another where it is necessary to make the act harmonious or to avoid repugnancy or inconsistency, where the word to be substituted can be gathered from the context of the act, . . . where it is obvious that the word used in the act is the result of a clerical error, where the substitution will make the act sensible, give it force and effect, or make it rational, where the word to be substituted can be collected from extrinsic evidence, or where there will be beneficial results by the substitution.

2A Sutherland Statutory Construction � 47.36 (4th ed.). A Kentucky rule has expressed the rule this way:

Not the literal language but the true intention or will of the Legislature is the law. That is what the courts endeavor to ascertain and declare and what the executive departments must obey. All rules of statutory construction have that in view. Since words are used to express an idea, if that idea is manifest, although inaptly or obscurely expressed, no usurpation is committed by declaring the legislative intent and no violence done by supplying, deleting or changing words or their arrangement in clarification. The general intent is the key to each part of an act. Often its purpose and its entire tenor disclose the inadvertent or careless misuse or omission of a word or phrase, and the courts are justified in correcting or supplying the proper language.

Asher v. Stacy, 299 Ky. 476, 185 S.W.2d 958, 959 (1945). Our courts have used this rule to substitute "tenth ward" for "eleventh and twelfth wards," Neutzel v. Ryans, 184 Ky. 292, 211 S.W. 852 (1919), and to change a statutory reference from 118.450(7) to 118.450(6), State Property & Buildings Commission v. Hays, Ky., 346 S.W.2d 3 (1961).

The incongruity presented by the interjection of "legislative agent" in the middle of a statute dealing with executive agency lobbyists supplies a perfect context for application of the rule that the right word may be substituted for the wrong word when there is no doubt what the legislature meant to say. Therefore KRS 11A.990(6) must be read to say "executive agency lobbyist" instead of "legislative agent." While we are on this subject we might as well point out that "executive lobbyist" in KRS 11A.990 should be read as "executive agency lobbyist."

You have pointed out that an amendment that would have repaired the statute was proposed in the 1994 legislative session but died in committee. This does not affect our opinion. Legislative inaction is a "weak reed upon which to lean" in construing statutes. 2A Sutherland Statutory Construction � 49.10. It is sometimes difficult enough to determine what the legislature meant in enacting a measure; it is almost impossible to determine what it meant by not enacting the measure. The legislative path is so fraught with trips and turns that we cannot ascribe any particular significance to the fact that a proposal expired en route.

We have also considered the fact that KRS 11A.990 is a penal statute, and that penal statutes are construed in favor of lenity. Commonwealth v. Colonial Stores, Inc., 350 S.W.2d 465 (1961). However even penal statutes are subject to fundamental principles of statutory construction and must not be construed so strictly that they are stripped of all meaning. Barrett v. United States, 423 U.S. 212, 46 L.Ed.2d 450, 96 S.Ct. 498 (1976). When a legislative mistake is as palpable as the one in KRS 11A.990(6), the mistake must be rectified even though the statute is penal in nature.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General