Opinion No. 28-74

Topics:

STATE UNIVERSITY.
DEPARTMENT OF EDUCATION.
OFFICE OF ADMINISTRATION.
COMMISSIONER OF ADMINISTRATION.
DIVISION OF DESIGN AND CONSTRUCTION.

Summary conclusion

The Department of Education must obtain formal approval of the Commissioner of Administration before letting contracts for repair, rehabilitation, or construction of facilities. It need not obtain formal approval before obtaining architectural documents, supervising construction, or performing inspection and maintenance, provided its procedures in carrying out these activities conform to the procedures the Commissioner of Administration has outlined pursuant to his rule-making authority under Section 8.320. The state universities, including the University of Missouri, have the power and authority to obtain architectural documents, let contracts for repair, rehabilitation or new construction of facilities, supervise construction, and perform inspection and maintenance of facilities without the approval of the Commissioner of Administration, once the necessary funds have been appropriated by the legislature for the performance of such activities. These institutions, however, are subject to the provisions of Section 8.320.

May 28, 1974

Honorable Christopher S. Bond
Governor of Missouri
Executive Offices
State Capitol Building
Jefferson City, Missouri 65101

Dear Governor Bond:

 This opinion is given in response to your recent request for an official opinion on the question of whether the Department of Education and the state universities, including the University of Missouri, have the power and authority to obtain architectural documents, contracts for repair, rehabilitation, or new construction of facilities, supervise construction, and perform inspec tion and maintenance of the facilities without the approval of the Commissioner of Administration.

 Your question necessarily requires an examination of several state statutory provisions.

 Section 8.310, RSMo 1969, provides:

 Section 8.320, RSMo 1969, is also applicable. It provides:

 On August 8, 1972, the amendment of Article IV, Section 12 of Missouri's Constitution authorized the creation of the Office of the Commissioner of Administration. The function of the Commissioner of Administration is outlined by Section 26.300, RSMo Supp. 1971. Paragraph 3 of Section 26.300 provides as follows:

 As we recently pointed out in Opinion No. 25, issued to you on March 7, 1974, neither the constitutional amendment authorizing the creation of the Office of the Commissioner of Administration nor the language of Section 26.300 in any way expands or restricts the scope or application of Sections 8.310 and 8.320. Their only effect is to provide that whatever duties or obligations the director of the Division of Planning and Construction had prior to January 15, 1973 (the effective date of Section 26.300), now have become the responsibility of the Commissioner of Administration.

 The answer to your question, then, hinges on the issue of whether the provisions of Sections 8.310 and 8.320 irreconcilably conflict with any state constitutional or statutory provisions relating to the Department of Education, the state colleges, or the University of Missouri.

 I

 Addressing ourselves to this issue insofar as it relates to the Department of Education, we are led to the conclusion that the department is subject to the requirements of Sections 8.310 and 8.320. To begin with, it should be noted that Section 161.012, RSMo 1969, provides that the Department of Education shall include the State Board of Education, the Division of Public Schools, the Division of Registration and Examination, and the agencies assigned to the department.

 As we understand it, your question, insofar as it deals with the Department of Education, has specific reference to the Mis souri School for the Blind at St. Louis and the Missouri School for the Deaf at Fulton, which are governed by the State Board of Education, pursuant to Section 178.010, RSMo 1969, and the state training centers for mentally retarded children established by the State Board of Education pursuant to Section 178.200, RSMo 1969. Section 178.050, RSMo 1969, provides that the State Board of Education shall have care and control of all property owned by the state schools for the blind and the deaf. Section 178.210, RSMo 1969, grants similar powers to the State Board of Education with respect to the training centers for mentally retarded children. However, there is nothing in those sections which even remotely suggests that the State Board of Education, in controlling such property, is exempt from the requirements of Sections 8.310 and 8.320.

 Nor does the language of the constitutional provisions dealing with the State Board of Education require such a conclusion. Article IX, Section 2(a) of Missouri's Constitution directs that:

 To our knowledge there has never been a suggestion that this phrase in any way places the Board outside the scope of. the General Assembly's power to legislate. Article IX, Section 2(b), dealing with the qualification and duties of the Commissioner of Education, specifically provides that the Board shall have . such other powers and duties as may be prescribed by law." (Emphasis added). There could be no clearer indication that the framers of the Constitution intended for the legislature to operate in this sphere.

 To hold that the Department of Education is subject to the provisions of Sections 8.310 and 8.320 is not completely determinative of the question before us. Your question is whether the Department of Education must obtain the approval of the Commissioner of Administration before

 A close reading of Section 8.310 discloses that formal approval of the commissioner is required only as to the second enumerated function. Although Section 8.310 requires that the " Commissioner of Administration serve as "advisor and consultant to department heads in obtaining architectural plans, supervising construction, and inspection and maintenance, it does not require him to formally approve these functions.

 Thus, we are of the opinion that formal approval by the Commissioner is not required for the performance of these particular functions. However, in performing such activities, the Department of Education must comply with any reasonable conditions or procedures that have been codified by the commissioner with respect to these activities pursuant to his rule-making authority under Sec tion 8.320.

 This holding is consistent with previous opinions of this office concerning the same subject. For example, in Opinion No. 25, we held that the Department of Conservation was subject to the provisions of Sections 8.310 and 8.320. Likewise, in Opinion Letters No. 26 and 27 issued to you on March 19, 1974, we ruled that the Division of Employment Security and the Missouri State Park Board, respectively, also were subject to the requirements of these sections.

 It should be noted that the Department of Education will be abolished effective July 1, 1974, in accordance with the provisions of Section 5(2) of the Omnibus State Reorganization Act of 1974 (C.C.S.H.C.S.S.C.S.S.B. No. 1, 77th General Assembly, First Extraordinary Session). However, the operation and control of the aforementioned state institutions, which are to be transferred to the newly created Department of Elementary and Secondary Education, will remain vested in the State Board of Education. Section 5(1) of the Omnibus State Reorganization Act of 1974 provides that the Department of Elementary and Secondary Education shall be headed by the State Board of Education. It should be emphasized that such transfer will in no way alter or limit the operative effects of Sections 8.310 and 8.320 on the State Board of Education, with respect to the state schools for the blind and deaf and the state training centers for the mentally retarded.

 II

 The second half of your question seeks to determine the applicability of Sections 8.310 and 8.320 with respect to the state universities including the University of Missouri. Section 8.310, of course, contains a specific reference to these institutions. The pertinent part of that section provides:

 We note that the above-quoted part of Section 8.310 contains reference to a determination of need for the proposed construction, repair, maintenance, or improvement of a particular building or facility. It does not, however, indicate who is to make this determination. The section also contains a requirement that the proposed construction or improvement be "approved" as a part of the State's building program by the Division of Planning and Construction, but does not state what this approval is to consist of. The words "approved" or "approval" when used in a statute requiring that a certain act meet with some designated approval, often may merely contemplate the doing of a purely ministerial act. Baynes v. Bank of of Caruthersville, 118 S.W.2d 1051 (Spr.Ct.App. 1938).

 However, we believe that a determination of such questions is unnecessary, in view of the requirement of Section 8.310 that a proper appropriation exist in order for the exception to operate. The existence of a specific appropriation will necessarily mean that the other two preconditions, i.e., determination of need and approval as part of the State's building program, will aready have been met. Obviously, the legislature's decision in this regard will be conclusive. Therefore, the latter part of Section 8.310 must be interpreted to mean that once the legislature has given its approval by appropriating the necessary funds for the specific project, further approval by the Commissioner of Administration is not required.

 Thus, we are of the opinion that the state universities, including the University of Missouri, may obtain architectural documents, let contracts for repair, rehabilitation, or new construction of facilities, supervise construction, and perform inspection and maintenance of facilities without the approval of the Commissioner of Administration once the necessary funds have been appropriated by the legislature for such purposes.

 It is also our opinion, however, that the exception granted to the state colleges and universities by the latter part of Section 8.310 does not exempt these institutions from the requirements of Section 8.320, which authorizes the Commissioner of Administration to set forth reasonable conditions to be met and procedures to be followed in the repair, maintenance, operation, construction, and administration of state facilities.

 We are aware, of course, that Article IX, Section 9(a) of the Constitution of Missouri, which deals with the University of Missouri, provides that "The government of the State University shall be vested in a board of curators . . . ." Similar powers are granted by statute to the boards of regents of the other state universities, or, as in the case of Lincoln University, to its board of curators. See Section 174.120, RSMo 1969; Section 175.040, RSMo 1969.

 However, it is our view that Section 8.320 does not in any way conflict with Article IX, Section 9(a) or either of the aforementioned statutes. It does not inhibit or interfere with the power of the governing bodies to control or manage the operation of their respective universities. Rather, Section 8.320 only authorizes the promulgation of reasonable rules relating to the exercise of such control. We reject any suggestions that Article IX, Section 9(a) somehow immunizes the University of Missouri from the operation of Section 8.320; it has long been established that the General Assembly has the power to enact legislation regulating the exercise of a constitutional right. State. ex rel. Randolph County v. Walden, 206 S.W.2d 979 (Mo. Banc 1947).

CONCLUSION

 It is our opinion that the Department of Education must obtain formal approval of the Commissioner of Administration before letting contracts for repair, rehabilitation, or construction of facilities. It need not obtain formal approval before obtaining architectural documents, supervising construction, or performing inspection and maintenance, provided its procedures in carrying out these activities conform to the procedures the Commissioner of Administration has outlined pursuant to his rule-making authority under Section 8.320.

 It is also our opinion that the state universities, including the University of Missouri, have the power and authority to obtain architectural documents, let contracts for repair, rehabilitation or new construction of facilities, supervise construction, and perform inspection and maintenance of facilities without the approval of the Commissioner of Administration, once the necessary funds have been appropriated by the legislature for the performance of such activities. These institutions, however, are subject to the provisions of Section 8.320.

 The foregoing opinion, which I hereby approve, was prepared by my assistant Philip M. Koppe.

Very truly yours,

John C. Danforth
Attorney General