Representative Patti Minter, Kentucky House District 20
AGO OAG19-1
No. OAG19-001
Kentucky Attorney General Opinion
Commonwealth of Kentucky Office of the Attorney General
February 7, 2019
Subject:
Whether the Finance and Administration Cabinet violated KRS
Chapter 13A in promulgating emergency administrative
regulation 200 KAR 3:020E, which restricts access to all
state-owned facilities and grounds, including the Kentucky
State Capitol Building Annex Capitol.
Requested
by: Representative Patti Minter, Kentucky House District
20
Written
by: Laura Tipton and Sam Flynn, Assistant Attorneys
General
Syllabus:
The Finance and Administration Cabinet promulgated 200 KAR
3:020E in violation of KRS 13A.100 and 13A.190.
Statutes
construed: KRS 13A.100; KRS 13A.190; KRS 13A.270; KRS
13A.280; KRS 13A.290
OAGs
cited: OAG 18-09
OPINION OF THE ATTORNEY GENERAL
State
Representative Patti Minter has requested an opinion of this
office as to whether 200 KAR 3:020E/ the emergency
regulation filed by the Finance and Administration Cabinet,
which restricts access to all state-owned facilities and
grounds, is valid. For the reasons set forth below, we find
that the emergency regulation is not valid because the
Finance and Administration Cabinet violated KRS
13A.100(l)-(2) and KRS 13A.190 in promulgating it. Further,
we note that the language of 200 KAR 3:020E may lead to
violations of the Kentucky Open Meetings Act and is also
vulnerable to as-applied constitutional challenges.
Background
On
January 4, 2019, William Landrum III, Secretary of the
Finance and Administration Cabinet, and Robert Burnside,
Commissioner of the Cabinet's Department for Facilities
and Support Services (collectively, "the Cabinet"),
filed with the Legislative Research Commission
("LRC") 200 KAR 3:020E, an emergency administrative
regulation titled "Use of state-owned facilities and
grounds." The language of 200 KAR 3:020E places
restrictions on public use of and activities that may be
conducted at all state-owned facilities and grounds,
including the current State Capitol building and Capitol
Annex.
Notably,
prior to this opinion request, on June 4, 2018, members of
the Kentucky Poor People's Campaign sought entry into the
State Capitol building following an outdoor rally. OAG 18-09.
At that time, they were advised of a new "policy"
whereby, among other things, members of the group could only
enter the building two at a time. Id. Although the
policy was not reflected in an administrative regulation or
other writing, it was nevertheless enforced on two subsequent
occasions. As a result, 32 members of the Kentucky General
Assembly asked this Office to opine on the process by which
rules and policies for public access to the State Capitol
building may be implemented or altered. Id.
On July
2, 2018, this Office issued an opinion finding that the
Cabinet and the Kentucky State Police violated KRS Chapter
13A by implementing and enforcing policies regarding entry to
the Capitol building that were not contained in properly
adopted administrative regulations. Id. Based on
this opinion, the new "policy" restrictions were
lifted.
The
Cabinet took no immediate action in response to OAG 18-09,
nor did it begin the regulatory process during the next six
months. Then, late in the day on January 4, 2019, less than
two business days before the start of the General
Assembly's 2019 Regular Session, the Cabinet promulgated
200 KAR 3:020E. The Cabinet included a "Statement of
Emergency," claiming that the purpose of the emergency
administrative regulation is to "protect the health,
safety, and welfare of visiting members of the public, as
well as staff at state-owned facilities and grounds."
The Cabinet states that 200 KAR 3:020E "is necessary ...
to provide clear and comprehensive guidelines in regard to
items and activities that pose a threat to public health,
safety, and welfare at state-owned facilities and
grounds."
Significantly,
the Cabinet admits that it was aware of public interest in
and a "steady...
