OFFICIAL OPINION No. 8

OFFICIAL OPINION No. 8 State colleges and miiversities-Memberships in learned societies and pro- fessional organizations-Adininistrative Code--:--Records Management Pro- gram-Purchases of filing and record-keeping iterns I. The approval of the Governor is not requir~d. for a State col_Iege or uni- versity to become a member of learned soc1t1es and professional organ- izations. 2. State colleges and universites must comply with Administrative Direc- tive No. 78 of October 6, 1970, concerning purchases of filing and record- keeping items. Honorable John C. Pittenger Secretary Department of Education Harrisburg, Pennsylvania Dear Mr. Pittenger: Harrisburg, Pa. January 16, 1973 You have inquired as to two apparent conflicts between the Administrative Code of 1929, P.L. 177, as amended ( 71 P.S. §§51, et seq.) and Act 13 of February 17, 1970, P .L. 24 (24 P.S. §§20- 2001, et seq.). I. The first apparent conflict presented in your inquiry con- cerned a conflict between Section 6 ( 15) of Act 13 and Section 507 (c) (5) of the Administrative Code. Section 507 ( c) ( 5) of the Administrative Code provides that any department, board, or commission may " .. _ . take member- ship in independent organizations or societies having related functions, but all such memberships shall be approved by the Governor." 71 P.S. §187. Section 6 of Act 13 states that: "Subject to the stated authority of the board of State College and University Directors and the boards of trustees, the president of each of the several State Col- leges and State Universities shall administer the insti- tution. Each president shall have the power and his duty shall be: ' ( 15) To determine institutional mem- berships in learned societies and professional organi- zations which will have significance to the welfare of the institution within the limits established by the Board of State Colleges and University Directors.'" 24 P.S. §20-2004.l (15). Taking the commonly-accepted meaning of the words "to de- termine"-i.e., to fix conclusively or authoritatively, it is clear that the purpose of Section 6 ( 15) is to leave the decision as to "'.'hether or ~ot .a college should ?eco~e ~ member of a profes- s10nal orgamzat10n or learned society w1thm the discretion of the President of each State college, within the limits set by the Board of State College and University Directors. It would appear there- OPINIONS OF THE ATTORNEY GENERAL 17 fore that Section 6 ( 15) of Act 13 is in conflict with the Admin- istrative Code provisions which require the approval of the Gov- ernor of institutional memberships of state agencies. However, this conflict, under well settled law of statutory con- struction, is easily resolved. The Statutory Construction Act of 1937, May 28, P.L. 1019 §63 ( 46 P.S. §563), provides that whenever a general provision in a law is in conflict with a special provision in a later enacted law the " .... special provision shall prevail and shall be con- strued as an execption to the general provision."* Since Section 6 ( 15) of Act 13 dealing specifically with state colleges, was en- acted after Section 507 ( c) ( 5) of the Administrative Code deal- ing with state agencies generally, Section 6 ( 15) of Act 13 pre- vails over and acts as an exception to Section 507 ( c) ( 5). It follows, therefore, that the approval of the Governor is not re- quired for State college memberships in learned societies and professional organizations. II. Your second question concerns an apparent conflict between Section 6 ( 6) of Act 13 and Administrative Directive No. 78 of October 6, 1970. Directive No. 78 was issued to "establish pol- icies and procedures for the selection, purchase and utilization of filing equipment by all agencies, headquarters and field under the jurisdiction of the Governor." The statutory basis for this records management program is in Section 527 of the Adminis- trative Code. Section 527 of the Administrative Code states that: "The Governor shall, from time to time, cause studies to be made of the accumulations of files of correspond- ence, reports, r ecords and other papers in possession of departments, boards or commissions, and may direct said departments, boards and commissions to comply with the provisions of Sections 524 and 5~5 of this act. The requisitions, warrants, cancelled checks, books, rec- ords, correspondence, and files of the department of the Auditor General, and the Treasury Department, which date back a period of four years or more, shall be expressly covered by the provisions of this section." 71 P.S. §207. Section 6 of Act 13 states that: "Each president shall have the power and his duty shall be: ' ( 6) To purchase instructional materials, educational, technical, administrative, custodial, and m aintenance equipment and supplies not in excess of a .cost of one thousand five hundred dollars ( $1,500 ) without com- petitive bidding with the approva l of the Board of * Statutory Construction Act of 1972, 1 Pa. S. §1933. 18 OPINIONS OF THE ATTORNEY GENERAL Trustees after notice to the Secretary of Property and Supplies' except that such i~~ms shall not be b~mght in series to avoid the dollar ce1lmg, nor shall any items be included for which the Department of Property and Supplies has contracts, current or proposed." 24 P.S. §20-2004.1 ( 6). It was not the intention of the Legislature in enacting Section 6 ( 6) of Act 13 to give the colleges or universities powers over the purchase of filing and record-keeping items without regard to Section 527 of the Administrative Code. Instead, our analysis of the two sections indicates that the legislature was concerned with an altogether different question when it enacted that sec- tion. Previous to the enactment of Section 6 ( 6) of Act 13, the State colleges could not directly purchase supplies, equipment or other materials because Section 507 of the Administrative Code prohibits the purchase of these items by departments, boards or commissions other than Property and Supplies unless there is a law authorizing the department, board or commission to purcha"e such materials and supplies or unless the Depart- ment of Property and Supplies authorizes in writing a depart- ment, board or commis<:ion to make purchases in the field, up to a specified amount. 71 P.S. §187 (a), (c). The intent of the Lo.gislature in enacting Section 6 ( 6) of Act 13 wa!'l to give th<=> colleges a limited degree of fiscal autonomy, whkh wa" deemed desirable for the better operation of the State colleg-es. Th0 purpo<:e of Section 6 ( 6) was to allow the colleges to make !>mall purchases withont having to go through the pro- c0dure of comp0 t:itive binding. The LeqisLative Histon.t, see 1969 (Pennsylvania House of Representatives) at pa.ge 997, indicates that since the colleges are scattered throughout the State, it was tho•1crht tn ho moro ('0l1V0 ni0nt for the S+ato colJPP"P<: to be able to mak0 nurchases directly, without competitive bidding. The ahove analvsic:: indicates. therPfore. that effect can be rriu0 ..,. to ho+h Se<>+ion 527 of th 0 Admini<:trative Code and Section fi ( R) nf Ac+. 13 witho11t a conflict arising. Section fl3 of the "Stat- u+orv Co..,"truction Act". gnnra. provi0P<: that "whenever a izen- ernl nrovi"ion in a law "hall he in conflict wi+h a special provi- sio.., ;.., th<=> c::::im0 nr ano+h 0 r law. thP two shaJl be construed, if possible. so that effect may be given both." Therefore. pffect must be giv<=>n to both provic::ions. and you :l'l'.'0 accornhJ!}V adVl"Pn that thP polidec; and procedUrf~<: ~et fnr+h ;.., A.-lmhi"traHv0 Din~ctive No. 78. bac::ed on SPction 5?.7 of th 0 Ar1minidr::i.tive Code, are not in any way affected by Section 6 ( 6) of Act 13. Sincerely yours, LILLIAN B. GASKIN Deputy Attorney General r~ttA1'L PAcK~L Attorney General OPINIONS OF THE ATTORNEY GENERAL 19