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.

STATE UNIVERSITY: DEPARTMENT OF EDUCATION: OFFICE OF ADMINISTRATION: COMMISSIONER OF ADMINISTRATION: DIVISION OF DESIGN AND CONSTRUCTION: The Department of Education must obtain formal approval of the Commissioner of Admin- istration before letting con- tracts for repair, rehabili- tation, 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 author- ity 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 faci l ities , supervise construction, and perform inspection and maintenance of facilities without the ap- proval 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. OPINION NO. 28 May 28, 1974 Honorable Christopher s. Bond Governor of Missouri Executive Office State Capitol Building Jefferson City, Missouri 65101 Dear Governor Bond: FI LED ~p 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 construc- tion 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: "The director of the division of plan- ning and construction shall serve as advisor Honorable Christopher s. Bond and consultant to all department heads in obtaining architectural plans, letting con- tracts, supervising construction, purchase of real estate, inspection and maintenance of buildings. No contracts shall be let for repair, rehabilitation or construction with- out approval of the director of the division of planning and construction, and no claim for repair, construction or rehabilitation projects under the contract shall be accept- ed for payment by the state without approval by the director of the division of planning and construction; except that after the need for the construction, repair, maintenance or improvement of any building or facility serv- ing a state institution of higher learning has been determined and the proposed construction or improvement has been approved as a part of the state's building program by the division of planning and construction and has been au- thorized by the general assembly and the gov- ernor through a proper appropriation, the boards of curators of the state university and Lincoln University and the several boards of regents of the state colleges may contract for architectural and engineering services for the design and supervision of the con- struction, repair, maintenance or improvement of educational buildings or institutions and may contract for construction, repair, main- tenance or improvement." (emphasis added) Section 8.320, RSMo 1969, is also applicable. It provides: "The director of the division of planning and construction shall set forth reasonable conditions to be met and procedures to be fol- lowed in the repair, maintenance, operation, construction and administration of state fa- C111t1es. The conditions and procedures shall be codified and filed with the secretary of state in accordance with the provisions of the constitution. No payment shall be made on claims resulting from work performed in vio- lation of these conditions and procedures, as certified by the director of the division of planning and construction." (emphasis added) -2- Honorable Christopher S. Bond 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 Commis- sioner of Administration is outlined by Section 26.300, RSMo Supp. 1971. Paragraph 3 of Section 26.300 provides as follows: "3. The commissioner of administration shall, by virtue of his office, without ad- ditional compensation, head the division of budget and comptroller, the division of pro- curement, the division of planning and con- struction, and the administrative services section which are transferred to the office of administration on January 15, 1973. When- ever provisions of the statutes grant powers, impose duties or make other reference to the comptroller, the director of the budget, the director of the division of planning and con- struction, state purchasing agent, or the di- rector of administrative services, they shall be construed as referring to the commissioner of administration." 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 direc- tor of the Division of Planning and Construction had prior to Jan- uary 15, 1973 (the effective date of Section 26.300), now have be- come 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 re- lating 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 Di- vision of Registration and Examination, and the agencies assigned to the department. · -3- Honorable Christopher s. Bond 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 Edu- cation 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 deal- ing with the State Board of Education require such a conclusion. Article IX, Section 2(a) of Missouri's Constitution directs that: "The supervision of instruction in the public schools shall be vested in a state board of edu- cation, ••• " To our knowledge there has never been a suggestion that this phrase in any way places the Board outside the scope of the General Assem- bly's power to legislate. Article IX, Section 2(b), dealing with the qualification and duties of the Commissioner of Education, spe- cifically provides that the Board shall have " ••• such other pow- ers and duties as rna~ be prescribed by law." (Emphasis added). There could be no clearer 1ndication 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 deter- minative of the question before us. Your question is whether the Department of Education must obtain the approval of the Commis- sioner of Administration before (1) Obtaining architectural documents; (2) Letting contracts for repair, rehabili- tation, or new construction of facilities; (3) Supervising construction; and (4) Performing inspection and maintenance of facilities. -4- Honorable Christopher S. Bond A close reading of Section 8 . 310 discloses that formal ap- proval of the commissioner is required only as to the second en- umerated function. Although Section 8.310 requires that the Corn- missioner 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 Corn- missioner is not required for the performance of these particular functions. However, in performing such activities, the Department of Education must comply with any reasonable conditi ons or proce- dures 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 of- fice concerning the same subject . For example, in Opinion No. 25, we held that the Department of Conservation was subject to the pro- visions 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 provi- sions 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 Assembl y, First Extraordinary Session) . However, the operation and control of the afor ementioned state institutions, which are to be transferred to the newly created Department of Elementary and Secondary Educa- tion, 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 ef- fects 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 appli- cability of Sections 8.310 and 8.320 with respect to the state uni- versities including the University of Missouri. Section 8.310 , of course, contains a specific reference to these institutions . The pertinent part of that section provides: -5- Honorable Christopher s. Bond " .•. except that after the need for the con- struction, repair, maintenance or improvement of any building or facility serving a state institution of higher learning has been deter- mined and the proposed construction or im- provement has been approved as a part of the state's building program by the division of planning and construction and has been autho- rized by the general assembly and the governor through a proper appropriation, the boards of curators of the state university and Lincoln University and the several boards of regents of the state colleges may contract for archi- tectural and engineering services for the design and supervision of the construction, repair, maintenance or improvement of educa- tional buildings or institutions and may con- tract for construction, repair, maintenance or improvement." 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 fa- cility. It does not, however, indicate who is to make this deter- mination. 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 "ap- proved" or "approval" when used in a statute requiring that a cer- tain act meet with some designated approval, often may merely con- template 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 approv- al 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 ap- proval by appropriating the necessary funds for the specific pro- ject, further approval by the Commissioner of Administration is not required. Thus, we are of the opinion that the state universities , in- cluding the University of Missouri, may obtain architectural doc- -6- Honorable Christopher S . Bond uments, let contracts for repair, rehabilitation, or new construc- tion of facilities, supervise construction, and perform inspection and maintenance of facilities without the approval of the Commis- sioner of Administration once the necessary funds have been appro- priated 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 Sec- tion 8.310 does not exempt these institutions from the require- ments of Section 8 . 320, which authorizes the Commissioner of Ad- ministration to set forth reasonable conditions to be met and pro- cedures to be followed in the repair, maintenance, operation, con- struction, 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 Mis- souri, 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 uni- versities, 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 aforemen- tioned 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 As- sembly 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. Bane 1947). CONCLUSION It is our opinion that the Department of Education must ob- tain 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 procedur es the Commissioner of Administration has outlined pursuant to his rule-making au- thority under Section 8.320. - 7- - - Honorable Christopher s. Bond It is also our opinion that the state universities, includ- ing the University of Missouri , have the power and authority to obtain architectural documents, let contracts for repair , reha- bilitation or new construction of facilities, supervise construc- tion, and perform inspection and maintenance of facilities with- out 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 h e reby approve , was prepared by my assi stant Philip M. Koppe . ~r:3~~ JOHN C. DANFORTH Attorney General - 8-