Request By:
Dennis Franklin Janes, Esq., Segal, Stewart, Cutler, Lindsay, Janes & Berry, PLLC
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Herrick, Assistant Attorney General
Opinion of the Attorney General
Chapter 121 of the Kentucky Revised Statutes establishes the comprehensive regulation of campaign finance. Among the restrictions imposed by that chapter, KRS 121.150 places certain limits upon contributions to political campaigns by permanent committees or contributing organizations. "Permanent committee" is defined by KRS 121.015(3)(c) as:
a group of individuals, including an association, committee or organization, other than a campaign committee, political issues committee, inaugural committee, or party executive committee, which is established as, or intended to be, a permanent organization having as a primary purpose expressly advocating the election or defeat of one (1) or more clearly identified candidates, slates of candidates, or political parties, which functions on a regular basis throughout the year.
"Contributing organization" is defined by KRS 121.015(4) as:
a group which merely contributes to candidates, campaign committees, or executive committees from time to time from funds derived solely from within the group, and which does not solicit or receive funds from sources outside the group itself.
KRS 121.150 states, in pertinent part, as follows:
(6) No candidate, campaign committee, political issues committee, nor anyone acting on their behalf, shall accept a contribution of more than one thousand dollars ($ 1,000) from any person, permanent committee, or contributing organization in any one (1) election; except that no candidate for school board, his campaign committee, nor anyone acting on their behalf shall accept a contribution of more than one hundred dollars ($ 100) from any person or more than two hundred dollars ($ 200) from any permanent committee or contributing organization in any one (1) election. No person, permanent committee, or contributing organization shall contribute more than one thousand dollars ($ 1,000) to any one (1) candidate, campaign committee, political issues committee, nor anyone acting on their behalf, in any one (1) election; except that no person shall contribute more than two hundred dollars ($ 200) to any one (1) school board candidate, his campaign committee, nor anyone acting on their behalf, in any one (1) election. Limits on contributions for slates of candidates for Governor and Lieutenant Governor which may be made or received in any one (1) election shall be governed by the provisions of KRS 121A.050.
(7) Permanent committees or contributing organizations affiliated by bylaw structure or by registration, as determined by the Registry of Election Finance, shall be considered as one (1) committee for purposes of applying the contribution limits of subsection (6) of this section.
(8) No permanent committee shall contribute funds to another permanent committee for the purpose of circumventing contribution limits of subsection (6) of this section.
(9) No person shall contribute funds to a permanent committee, political issues committee, or contributing organization for the purpose of circumventing the contribution limits of subsection (6) of this section.
(Emphasis added.)
The term "affiliated" is not defined in KRS Chapter 121. There are, however, numerous definitions of "affiliate" or "affiliated" located elsewhere in the Kentucky Revised Statutes, including KRS 131.600(2), 154.20-254(1), 154.22-010(2), 164A.550(3), 238.505(21), 271B.12-200(1), 278.010(18), 294.010(1), 304.7-012(6), 304.36-050(1), 304.37-010(4), 304.49-010(1), and 367.380(2). By far the most commonly appearing of these definitions is the one typified by KRS 304.37-010(4):
An "affiliate, " or person "affiliated" with a specific person, is a person that directly, or indirectly through one (1) or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.
Variations on the above definition comprise almost all of the definitions of "affiliate" found in Kentucky's statutes. Appearing once is the following definition of "affiliated company" in KRS 304.49-010:
"Affiliated company" means any company in the same corporate system as a parent, an industrial insured, or a member organization by virtue of common ownership, control, operation, or management.
(Emphasis added.) Also, KRS 164A.550(3) contains the following:
"Affiliated corporation" means a corporate entity which is not a public agency and which is organized pursuant to the provisions of KRS Chapter 273 over which an institution exercises effective control, by means of appointments to its board of directors, and which could not exist or effectively operate in the absence of substantial assistance from an institution.
(Emphasis added.) KRS 154.22-010, meanwhile, contains a multipart definition of "affiliate" based primarily on the ownership and control of more than fifty percent of the voting stock of a corporation. The consistent theme in all the statutory definitions of "affiliation" is unity of control. This understanding of "affiliation" is consonant with the evil sought to be remedied by KRS 121.150(7).
Dennis Franklin Janes, representing the Jefferson County Teachers Association Political Education Committee ("JCTAPEC"), has requested an opinion as to the application of KRS 121.150(7) to JCTAPEC and to the Kentucky Educators Political Action Committee ("KEPAC"). Both JCTAPEC and KEPAC are "permanent committees" within the meaning of KRS 121.015(3)(c). JCTAPEC is established by the Jefferson County Teachers Association ("JCTA") and KEPAC by the Kentucky Education Association ("KEA"). Both JCTA and KEA are labor unions, and JCTA is described as a local affiliate of KEA.
Mr. Janes poses the following questions:
1. Are KEPAC and JCTAPEC affiliated committees under the provisions of KRS 121.150(7)?
2. If KEPAC and JCTAPEC are affiliated, will KEPAC and JCTAPEC be regarded as one committee for the purpose of applying all of the contributions limits established in KRS 121.150, or does the affiliation standard created in KRS 121.150(7) apply only to the contribution limits established in KRS 121.150(6)?
3. Does 32 KAR 2:190 comply with KRS 13A.120 in interpreting and enforcing KRS 121.150(7)?
There are no published cases or Attorney General's opinions on point. Since the answers to the first and second questions depend upon the answer to the third, we turn initially to the analysis of 32 KAR 2:190.
Compliance of 32 KAR 2:190 with KRS 13A.120
32 KAR 2:190 is an administrative regulation promulgated in 1994 by the Kentucky Registry of Election Finance ("Registry" ) to establish guidelines for determining whether permanent committees are affiliated within the meaning of KRS 121.150(7). The preamble to the regulation states in part: "KRS 121.150(7) provides that permanent committees affiliated by bylaws, structure, or registration, as determined by the registry, shall be considered one (1) committee for purposes of the contribution limitations contained in KRS 121.150." Since the issue at hand is the compliance of 32 KAR 2:190 with KRS 13A.120, the substantive portion of this regulation is set out below at length:
Section 1. (1) For purposes of applying the contribution limits contained in KRS 121.150, permanent committees shall be considered affiliated committees if they are established, financed, maintained, or controlled by or in common control with:
(a) A single corporation or its subsidiaries;
(b) A single national or international union or its state and local unions or subordinate organizations; and
(c) A membership organization, other than a political party committee, including a trade or professional association or group.
(2) The registry may examine the relationship between organizations that sponsor committees, between the committees themselves, or between one (1) sponsoring organization and a committee established by another organization to determine whether the committees are affiliated. In determining whether committees not otherwise covered by this administrative regulation are affiliated for purposes of contribution limitations, the registry may consider the circumstantial factors described in this subsection in the context of the overall relationship between the entities. Such factors include, but shall not be limited to:
(a) Whether a sponsoring organization of one (1) committee owns a controlling interest in the voting stock or securities of the sponsoring organization of another committee;
(b) Whether a sponsoring organization or committee has the authority or ability to direct or participate in the governance of another sponsoring organization or committee through provisions of constitutions, bylaws, contracts, or other rules, or through formal or informal practices or procedures;
(c) Whether a sponsoring organization or committee has the authority or ability to hire, appoint, demote, or otherwise control the officers or other decisionmaking employees or members of another sponsoring organization or committee;
(d) Whether a sponsoring organization or committee has a common or overlapping membership or common contributors with another sponsoring organization or committee which indicates a formal or ongoing relationship between the sponsoring organizations or committees;
(e) Whether a sponsoring organization or committee has any members, officers, or employees who were members, officers, or employees of another sponsoring organization or committee which indicates the creation of an alter ego of the original committee; and
(f) Whether a sponsoring organization or committee provides funds or goods in a significant amount or on an ongoing basis to another sponsoring organization or committee, such as through direct or indirect payments for administrative, fundraising, or other costs.
Section 2. No person, organization, or committee shall establish an entity which would qualify as a contributing organization as defined in KRS 121.015(4) for the purpose of circumventing the contribution limitations contained in KRS 121.150 and the affiliation guidelines established by this administrative regulation.
We note at the outset that the preamble to KRS 32 KAR 2:190 paraphrases the text of the underlying statute in a way that alters its meaning. KRS 121.150(7) authorizes the Registry to determine whether two permanent committees are "affiliated by bylaw structure or by registration. " The regulation, however, is addressed to whether committees are "affiliated by bylaws, structure, or registration " (emphasis added). To the extent this language may attempt to introduce a third category of affiliation not contemplated by the statute; i.e., "structure" unrelated to bylaws; it exceeds the mandate of the statute.
KRS 13A.120 states, in part, as follows:
(2) An administrative body shall not promulgate administrative regulations:
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a. When the administrative body is not authorized by statute to regulate that particular matter;
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a. On any matter which is not clearly within the jurisdiction of the administrative body;
b. On any matter which is beyond the statutory authorization of the administrative body to promulgate administrative regulations or which is not clearly authorized by state; and
c. Which modify or vitiate a statute or its intent.
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(4) Any administrative regulation in violation of this section or the spirit thereof is null, void, and unenforceable.
Insofar as 32 KAR 2:190 purports to establish categories of structural "affiliation" that do not depend on the bylaw structure or registration of the permanent committees, it modifies the intent of KRS 121.150(7) and is unenforceable by the Registry in making its affiliation determinations. It must be determined, however, whether any of the specific provisions of the regulation clearly transgress the statutory categories of affiliation "by bylaw structure" and affiliation "by registration. "
We interpret the statute's reference to affiliation "by registration" to mean an affiliation that can be inferred from the information in the registration documents filed by the permanent committees with the Registry of Election Finance. The Registry's administrative regulation, however, primarily addresses the more complex question of affiliation "by bylaw structure."
Most of the factors listed in 32 KAR 2:190 are relevant to determining the "bylaw structure" of permanent committees, or at least are not so broad on their face as to appear inconsistent with the statute's limited focus on "bylaw structure" and "registration. " It is not unreasonable, in general, for the Registry to look beyond the four corners of a committee's written bylaws to determine if its actual, unofficial "bylaw structure" is that of a mere alter ego controlled by another committee.
Mr. Janes inquires in particular whether the Registry exceeds its statutory authority by considering, among the other factors, the relationship between the "sponsoring organizations" of permanent committees in determining whether the committees are affiliated. The term "sponsoring organization" is not defined in the regulation, but presumably refers to any organization that establishes or maintains a permanent committee.
We cannot agree with the proposition that an inquiry into the sponsoring organizations is wholly irrelevant to ascertaining whether two committees are affiliated by "bylaw structure." In this case, for instance, JCTAPEC's president has advised that JCTAPEC operates under Robert's Rules of Order, but that it "has no independent documents governing how it operates." It would be impracticable to determine whether two committees are affiliated by "bylaw structure" in cases where one or both of the committees might have no bylaws, if the Registry were precluded from examining the bylaws of the sponsoring organizations. By no means, however, should the Registry conclude that two committees are automatically "affiliated" solely on the basis of a non-controlling "affiliation" between their sponsoring organizations. The inquiry must focus primarily on the relationship between the permanent committees.
Subsections 1(2)(d) and (e)
Certain provisions of 32 KAR 2:190 raise particular concerns of potential application outside the bounds of the authorizing statute. Section 1(2)(d) asks whether committees or their sponsoring organizations have "a common or overlapping membership or common contributors" so as to indicate "a formal or ongoing relationship between the sponsoring organizations or committees." This question, as applied to sponsoring organizations, is much broader in scope than is necessary to derive information about the "bylaw structure" relationship between two permanent committees. This is not to say that the Registry may not inquire into the matters of common membership, common contributors, or an ongoing relationship, but that the situations are limited in which these factors are relevant when applied to sponsoring organizations.
Two sponsoring organizations are capable of having somewhat overlapping memberships or contributors, yet still sponsoring permanent committees that have no affiliation whatsoever in their bylaw structures. Unless the commonality of membership or contributors exists in the committees themselves, or is so substantial in the sponsoring organizations as to place one organization in effective control of the other, there is no reason for supposing one committee to be a mere alter ego of the other. Only in those limited circumstances should 1(2)(d) be applied to sponsoring organizations as a factor in determining the affiliation of the sponsored committees.
For similar reasons, Section 1(2)(e) should be construed so as to limit the consideration of common membership in sponsoring organizations to situations in which there is some genuine indication that one committee has been created as an "alter ego" of another. The final clause of that subsection, i.e., "which indicates the creation of an alter ego of the original committee," should not be read so as to imply that creation of an alter ego is invariably indicated by the presence of any common "members, officers, or employees" of sponsoring organizations. Rather, it should be treated as a restrictive clause specifying that these commonalities of personnel are only relevant considerations when the circumstances actually suggest an identity between the two committees.
Subsection 1(2)(f)
Likewise, Section 1(2)(f) addresses whether "a sponsoring organization or committee provides funds or goods in a significant amount or on an ongoing basis to another sponsoring organization or committee," including "direct or indirect payments for administrative, fundraising, or other costs." As applied to sponsoring organizations, this inquiry is broader than the statute clearly warrants. Funding of one sponsoring organization by another, or the provision of goods, insofar as it is not directly related to the permanent committees themselves, is simply too far afield from the statute's purpose of examining the committees' "bylaw structure."
The powers exercised by an administrative body must be clearly warranted by the language of its enabling statute.
Dept. for Natural Resources and Environmental Protection v. Stearns Coal and Lumber Co., Ky., 563 S.W.2d 471 (1978). We conclude, therefore, that subsections (2)(d) and (2)(f) of 32 KAR 2:190, Section 1, are partially inconsistent with the limits on administrative regulations imposed by KRS 13A.120. To the extent those subsections might be applied so as to consider two committees affiliated solely on the basis of a non-controlling commonality in membership or contributors of their sponsoring organizations, or provision of funds or goods between the sponsoring organizations not specifically related to the committees, they are null, void, and unenforceable. KRS 13A.120(4).
Subsection 1(1)(b)
A separate but related concern is raised by 32 KAR 2:190, Section 1(1)(b), which automatically concludes that two permanent committees are affiliated "if they are established, financed, maintained, or controlled by or in common control with [a] single national or international union or its state and local unions or subordinate organizations." (Emphasis added.) It is not necessarily the case with state and local unions, as with corporate subsidiaries under 32 KAR 2:190, Section 1(1)(a), that they are entirely owned or controlled by the national or international union with which they affiliate. "Subsidiary" is defined in KRS 271B.12-200(12) as "any corporation of which voting stock having a majority of the votes entitled to be cast is owned, directly or indirectly, by the [other] corporation." This ownership implies the kind of effective control described in the definition of a corporate "affiliate" in KRS 154.22-010.
By contrast, the relationship of control between affiliated local, state, national, and international unions may vary greatly in different cases. The concept of "affiliation, " as expressed in union bylaws, need not imply the degree of control found in Kentucky's various statutory definitions. For example, a leading dictionary gives the following definition and usage example for the intransitive verb "affiliate" : "To become closely connected or associated: The two unions voted to affiliate. " American Heritage Dictionary of the English Language, 4th ed. (2000) (online edition) (emphasis in original). The same dictionary defines the transitive verb "affiliate" as "to adopt or accept as a member, subordinate associate, or branch," or "to associate (oneself) as a subordinate, subsidiary, employee, or member." The sense of control as an integral part of "affiliation" that represents the mind of the General Assembly is absent from these definitions. Unions that consider themselves "affiliated" may accordingly intend a different meaning of the word from that generally used in the Kentucky Revised Statutes; furthermore, the relationships among unions need not imply the degree of control held by a corporation over its subsidiary.
The mere establishment of two committees by two "affiliated" unions, therefore, does not reveal anything conclusive about the operative "bylaw structure" of the two committees as it bears on their affiliation under KRS 121.150(7) . A more extensive factual inquiry is needed to prevent the development of a regulatory definition of affiliated committees that sweeps more broadly than the statutory intent. "The statute which is being administered may not be altered or added to by the exercise of a power to make regulations thereunder." OAG 91-3 (internal quotation omitted) (quoting
Portwood v. Falls City Brewing Co., Ky., 318 S.W.2d 535, 537 (1958)). "Regulations are valid only as subordinate rules and when found to be within the framework of the policy which the legislature has sufficiently defined." Id. Therefore, to the extent that Section 1(1)(b) concludes that permanent committees "established" by state and local unions affiliated with a single national or international union are automatically affiliated committees, regardless of how they are "financed, maintained, or controlled," it goes beyond the clear mandate of KRS 121.150(7) and cannot be enforced in that manner.
Application of KRS 121.150(7) to other subsections of KRS 121.150
By its express terms, KRS 121.150(7) only mentions "the contribution limits of subsection (6) of this section" as being affected by the affiliation of two permanent committees or contributing organizations. The same is true of subsections (8) and (9), which refer only to the contribution limits imposed by subsection (6). Under the principle "expressio unius est exclusio alterius, meaning the expression of one thing is the exclusion of another,"
Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325 (1943), it is clear that contribution limits set out in subsections of KRS 121.150 other than subsection (6) are not affected by the "affiliation" rule in subsection (7).
Throughout its text, 32 KAR 2:190 refers to "the contribution limitations contained in KRS 121.150," rather than specifying KRS 121.150(6). Whether the failure to specify subsection (6) is a mere oversight or an attempt to broaden the "affiliation" rule's application beyond subsection (6), it cannot be given effect in such a way as to modify the intent of KRS 121.150(7). KRS 13A.120 would prevent such a result. Therefore, notwithstanding the apparently more inclusive reference in 32 KAR 2:190, a finding of "affiliation" by the Registry under KRS 121.150(7) does not affect any contribution limits other than those contained in KRS 121.150(6).
Affiliation of JCTAPEC and KEPAC
Based on an examination of the Permanent Committee Update forms most recently filed with the Registry by JCTAPEC and KEPAC, it does not appear to us that the two committees are affiliated by registration. The form contains a blank for "Name of any Connected Organization or Affiliated Committee," but neither JCTAPEC nor KEPAC lists the other committee as affiliated. None of the chairmen, treasurers, and custodians listed for the two committees are the same individuals. The mailing addresses are also different. The only similarities are that both committees list their major interest as "education" and both list the same bank as their "primary depository." This alone could not amount to an affiliation by registration under KRS 121.150(7).
The question remains whether JCTAPEC and KEPAC are affiliated by "bylaw structure." JCTA and KEA, the sponsoring organizations, consider themselves "affiliated" through their bylaws, as Mr. Janes freely acknowledges. This fact, however, cannot conclude the inquiry. When only the sponsoring organizations, not the committees themselves, are affiliated by their bylaw structure, it is necessary to determine the actual degree of control exercised by one committee over the other, or common control exercised over both committees, or control by one sponsoring organization over the activities of the other organization as it affects its permanent committee. Conversely, the degree of actual independence with which each committee operates must be considered.
According to the information provided by Mr. Janes, JCTAPEC and KEPAC are funded virtually entirely by payroll deductions from individual JCTA and KEA members. Therefore, particularly if the payroll deductions are voluntary, JCTA and KEA should not be considered "contributing organizations" within the meaning of KRS 121.015(3)(c) so long as those organizations do not make campaign contributions themselves, either through their respective permanent committees or directly to candidates. Furthermore, to whatever extent a "sponsoring organization" under 32 KAR 2:190 is presumed to be a contributing organization, the regulatory provisions referring to "sponsoring organizations" would not apply to JCTA and KEA if they only "sponsor" JCTAPEC and KEPAC in a non-contributing manner.
Mr. Janes also provides the following information:
Only educators who work in the Jefferson County Public Schools are eligible for JCTA membership. JCTA does not represent the interests of teachers in any other school district. The members of JCTA are also members of KEA. JCTA members comprise about one-sixth of KEA's membership. JCTA members sit on KEA's governing bodies, but never constitute a majority of any of KEA's governing bodies. All of the members of JCTA's governing bodies are KEA members because every JCTA member is also a member of KEA. JCTA established the Jefferson County Teachers Association Political Education Committee ("JCTAPEC").
KEPAC and JCTAPEC have independent governing boards. No JCTA member sits on KEPAC's governing board. All of the members of JCTAPEC's governing board are JCTA members. No KEA member who is not also a JCTA member sits on JCTAPEC's governing board.
No educator who is a member of the Jefferson County Teachers Association currently makes contributions to KEPAC by payroll deduction. No Kentucky educator who works in a public school district other than the Jefferson County Public Schools ever makes a contribution to JCTAPEC by payroll deduction.
KEA does not direct the affairs of JCTA in any way. JCTA does not direct the affairs of KEA in any way. KEPAC has no voice in directing the affairs of JCTAPEC. JCTAPEC has no voice in directing the affairs of KEPAC. KEPAC and JCTAPEC are not affiliated by bylaw structure or by registration, or in any other formal or informal way.
...KEPAC does not control or influence the operations of JCTAPEC. JCTAPEC does not control or influence the operations of KEPAC.
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JCTA is affiliated with both KEA and the National Education Association ("NEA"). However, neither KEA [n]or NEA established, finances, maintains, or controls JCTAPEC. JCTA did not establish KEPAC and does not currently finance, maintain, or control KEPAC. Although JCTAPEC confers with JCTA's officers and employees from time to time regarding matters of mutual concern, the officers and governing bodies of JCTA do not finance or control JCTAPEC.
Mr. Janes further addresses the specific factors listed in 32 KAR 2:190, Section 1(2), as follows:
a. KEPAC has no controlling interest in JCTA or JCTAPEC. JCTA has no controlling interest in KEA or KEPAC. Neither KEA nor JCTA has issued stock or securities.
b. The officers, employees, and governing bodies of KEA have no authority or ability to direct or participate in the governance of JCTA or JCTAPEC. The officers, employees, and governing bodies of JCTA have no authority or ability to direct or participate in the governance of KEA or KEPAC. However, JCTA's members have elected representatives who serve on KEA's governing bodies.
c. KEA does not have the authority or ability to hire, appoint, demote, or otherwise control the officers or other decisionmaking employees or members of JCTA or JCTAPEC. KEA may only censure, suspend, or expel its members for violation of the Code of Ethics of the Education Profession. JCTA does not have the authority or ability to hire, appoint, demote or otherwise control the officers or other decisionmaking employees or members of KEA or KEPAC. The representatives who have been elected by JCTA's members to serve on KEA's governing bodies never constitute a majority of those governing bodies.
d. As noted previously, all JCTA members are also members of KEA. However, most KEA members are not members of JCTA. JCTA's members comprise only about one-sixth of KEA's membership. There is certainly a formal and ongoing relationship between KEA and JCTA. However, there is no formal and ongoing relationship between KEA and JCTAPEC or between JCTA and KEPAC.
e. A minority of KEA's members are also members of JCTA. As KEA members, JCTA members are represented by the elected members of KEA's governing bodies. However, JCTA and KEA have no common officers. The interests of JCTA and its members often diverge from those of KEA and the KEA members who work outside of Jefferson County. JCTA is certainly not an alter ego of KEA.
f. As KEA members, JCTA's members pay membership dues to KEA. KEA is based in Frankfort, but has branch offices throughout Kentucky, including two branch offices that are located in Metro Louisville. KEA employees work in both of these branch offices. KEA permits JCTA to use one of the two branch offices that are located in Metro Louisville as JCTA's headquarters. JCTA's officers and employees work in the offices provided to JCTA by KEA. Supervisory employees of JCTA direct the daily activities of both the KEA employees and the JCTA employees who work in the KEA offices that are located on Bishop Lane in Metro Louisville. KEA does not direct the activities of any of JCTA's officers or employees.
Nearly all of this information is relevant to a proper determination of whether two permanent committees are affiliated by bylaw structure where there is no indication of affiliation in the bylaws of the committees, or where there are no committee bylaws, but where the sponsoring organizations are in some sense "affiliated. " Except for the matters in subsections (2)(d) and (2)(f) which we have already stated are not germane to the determination, this information attempts to describe the actual functioning of the two committees in the context of the bylaw structure governing the two sponsoring organizations.
It is not sufficient to use a non-controlling affiliation between "sponsoring organizations" as a shortcut to reach an automatic conclusion that the permanent committees established by them are affiliated by bylaw structure under KRS 121.150(7), if the sponsoring organizations do not qualify as "contributing organizations" under KRS 121.015(4). A more thorough analysis is required to ascertain how the bylaw structure of the sponsoring organizations affects the control and independent functioning of the committees, "in the context of the overall relationship between the entities. " 32 KAR 2:190, Section 1(2).
Ultimately, it is not possible under KRS 121.150(7) for this office to make a final and binding determination as to whether JCTAPEC and KEPAC are "affiliated by bylaw structure or by registration" for purposes of that statute. That decision has been expressly reserved to the Registry by the General Assembly, which has specified that such affiliation shall be "as determined by the Registry of Election Finance." Nevertheless, by virtue of KRS 15.020, the present opinion is issued with the full authority of the Attorney General as "the chief law officer of the Commonwealth of Kentucky and all of its departments, commissions, [and] agencies[,] and the legal adviser of all state officers, departments, commissions, and agencies." In that capacity, this opinion is intended to provide authoritative guidance to the Registry of Election Finance regarding the interpretation and application of KRS 121.150 and 32 KAR 2:190.
Conclusion
The provisions of 32 KAR 2:190, Section 1(1)(b), cannot be used to conclude, from the mere establishment of two permanent political committees by two state or local unions affiliated with the same national or international union, that the two committees are automatically "affiliated" for purposes of KRS 121.150(7). Nor, if committees' sponsoring organizations are not "contributing organizations," can Section 1(2)(d)-(f) of the same regulation properly be applied to use a mere overlap in sponsoring organizations' membership or contributors, or a general provision of funds or goods between sponsoring organizations, that does not affect the control or independent functioning of the permanent committees, as an indication that the committees sponsored by those organizations are affiliated by bylaw structure. To the extent the regulation is so applied, it violates KRS 13A.120 "or the spirit thereof."
Furthermore, when two permanent committees have no express affiliation in their own bylaws, an affiliation "by bylaw structure" must be based on the overall relationship of control existing between the two committees, and not merely on an affiliation between non-contributing sponsoring organizations except as their affiliation affects that control relationship. The bylaw structure of non-contributing sponsoring organizations, in short, is not necessarily identical with the bylaw structure of the sponsored committees.
Finally, the only contribution limits implicated by a determination of affiliation pursuant to KRS 121.150(7) are those imposed by KRS 121.150(6). Limits under other subsections of KRS 121.150 are not affected.