February 27, 2003

ATTORNEY GENERAL OPINION NO. 2003- 5

The Honorable Karin Brownlee

State Senator, 23rd District

State Capitol, Room 136-N

Topeka, Kansas 66612-1504

Re:	State Departments; Public Officers and Employees--Department of Administration; Division of the Budget--Governor's Budget Report; Contents; Whether Ending Balance Requirement of K.S.A. 75-6702 Applies to Budget Plan for Current Fiscal Year

Synopsis:	K.S.A. 75-3721 and 75-6702 require recognition of a 7½% ending balance in the governor's budget report only in the portion dealing with the ensuing fiscal year; there is no requirement in these statutes that the portion of the governor's report dealing with the current fiscal year maintain a 7½% ending balance. Cited herein: K.S.A. 75-3721; 75-6702.

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Dear Senator Brownlee:

You request our opinion regarding whether K.S.A. 75-3721 requires the governor's budget report to include a recommended budget for the current fiscal year that complies with the state general fund ending balance requirement found in K.S.A. 75-6702.

K.S.A. 75-6702 provides in part as follows:

"The maximum amount of expenditures and demand transfers from the state general fund that may be authorized by act of the legislature . . . is hereby fixed so that there will be an ending balance in the state general fund for the ensuing fiscal year that is equal to 7½% or more of the total amount authorized to be expended or transferred by demand transfer from the state general fund in such fiscal year."1

Clearly this provision, operating alone, applies only to "act[s] of the legislature" (as opposed to the governor's budget report) authorizing expenditures and demand transfers from the state general fund, and only to the budget being set for the "ensuing fiscal year."

K.S.A. 75-3721 is the statute prescribing the content of the governor's budget report. It requires that the report be set up in three parts: A budget message expressing the governor's fiscal policy recommendations for both the current and ensuing fiscal years; detailed budget estimates for each of the fiscal years included in the budget report; and a draft legislative measure or measures reflecting the governor's budget for each of the fiscal years included in the report. It is the first part of the report that appears to be implicated by your question. With regard to part one, K.S.A. 75-3721 provides in part as follows:

"Part one shall consist of a budget message by such governor, including the governor's recommendations with reference to the fiscal policy of the state government for the current fiscal year and the ensuing fiscal year, describing the important features of the budget plan for each of the fiscal years included, embracing a general budget summary setting forth the aggregate figures of the budget so as to show the balanced relation between the total proposed expenditures and the total anticipated income for the current fiscal year and the ensuing fiscal year, with the basis and factors upon which the estimates were made, and the means of financing the budget plan for the [sic] each of the fiscal years included, compared with the corresponding figures for at least the last completed fiscal year, and the director of the budget shall prepare the figures for the governor for such comparisons.

"(A) The budget plan shall not include (i) any proposed expenditures of anticipated income attributable to proposed legislation that would provide additional revenues from either current or new sources of revenue, or (ii) any proposed expenditures of moneys in the ending balance in the state general fund required by K.S.A. 75-6702, and amendments thereto. . . ."2

The introductory portion of K.S.A. 75-3721(b)(1) requires inclusion of certain information for both the current fiscal year and the ensuing fiscal year, and specifically requires a general budget summary "setting forth the aggregate figures of the budget so as to show the balanced relation between the total proposed expenditures and the total anticipated income for the current fiscal year." However, this provision does not require reference to or inclusion of the ending balance requirement of K.S.A. 75-6702. Subparagraph (1)(A)(ii) specifically references K.S.A. 75-6702, but it does not indicate that the restriction applies to the portion of the budget report dealing with the current fiscal year. Because K.S.A. 75-
3721(a)(1)(A)(ii) requires only that the budget plan not include any proposed expenditures of state general fund moneys in the ending balance "required by K.S.A. 75-6702," it is our opinion that this restriction only applies to the portion of the budget dealing with the ensuing fiscal year, as the ensuing fiscal year is the only year covered by K.S.A. 75-
6702(b).

The language in question in K.S.A. 75-3721(b)(1)(B) was added to the statute in 1992.3 Prior to that time, the language was a part of K.S.A. 75-3721a.4 K.S.A. 75-3721a was repealed when K.S.A. 75-3721 was amended in 1992.5 The legislative history of the 1990 amendment to K.S.A. 75-3721a adding this language reflects that its intent was to require "that the Governor's budget recommendations adhere to the same targeted General Fund balances that would apply to the legislative appropriations process."6 The "targeted General Fund balances applying to the legislative appropriations process" were for subsequent, ie. ensuing, fiscal years.7 Further, we are advised by the Division of the Budget that this provision and K.S.A. 75-6702 have never been applied to the current fiscal year portion of the governor's budget report.

In conclusion, K.S.A. 75-3721 and 75-6702 require recognition of a 7½% ending balance in the governor's budget report only in the portion dealing with the ensuing fiscal year; there is no requirement in these statutes that the portion of the governor's report dealing with the current fiscal year maintain a 7½% ending balance.

Very truly yours,

Phill Kline

Attorney General of Kansas

Julene L. Miller

Deputy Attorney General

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