Request By:
Representative Attica Scott
Kentucky House District 41Representative George A. Brown, Jr.
Kentucky House District 77 1
Opinion
Opinion By: ANDY BESHEAR,ATTORNEY GENERAL;Laura C. Tipton,Assistant Attorney General
Opinion of the Attorney General
State Representatives Attica Scott and George A. Brown, Jr., joined by 27 of their colleagues in the Kentucky General Assembly, have requested an opinion of this office regarding the process by which rules and policies for public access to the State Capitol building may be implemented or altered. The opinion request relates to events involving the Kentucky Poor People's Campaign on June 4, 2018. For the reasons detailed in this opinion, we conclude that the Kentucky Finance and Administration Cabinet and the Kentucky State Police violated KRS Chapter 13A by enforcing a policy against the Poor People's Campaign that they did not promulgate in an administrative regulation.
Before rendering this opinion, the office requested input, including all pertinent documents or records, from all relevant parties, as follows: the Justice and Public Safety Cabinet's Department of Kentucky State Police ("KSP"); the Finance and Administration Cabinet ("Finance Cabinet"); the Historic Properties Advisory Commission; and the Poor People's Campaign. We received responses from the KSP and the Poor People's Campaign. A response from the Finance Cabinet, on behalf of both itself and the Historic Properties Advisory Commission, advised that the Finance parties would provide no legal analysis regarding issues raised by the opinion request based on its perceived threat of litigation by the Poor People's Campaign. 2
A review of the KSP and Poor People's Campaign responses reveals certain undisputed facts. Among these are the following: The Poor People's Campaign applied for and received approval from the Finance Cabinet to use the Capitol grounds for rallies on four dates in May and June 2018, May 21, May 29, June 4, and June 11. The Campaign, which described its purpose as "advocating with and for people who are most affected by systemic racism, systemic poverty, the war economy, and ecological devastation," anticipated that 125-300 people would attend each rally lasting from 1:30 p.m. to 3:00 p.m. The Campaign did not seek a permit to rally inside the Capitol building. Following the rally on May 21, a subset of Campaign demonstrators entered the Capitol, remained after regular business hours, and actually spent the night inside the building. On June 4, when members of the Poor People's Campaign once again sought entry into the Capitol following their rally outdoors, they were advised of a new "policy" whereby members of the group could only enter the building two at a time. Additionally, Capitol security required members of the group entering the building to relinquish any food and beverages.
KSP has since indicated that it implemented the new policy or protocol as a security measure in direct response to the Poor People's Campaign's conduct in allegedly blocking traffic around the Capitol building on May 14, remaining in the Capitol after closing on May 21, and entering a restricted area surrounding the Governor's Mansion on May 29. The policy, however, is not reflected in an administrative regulation nor does it otherwise appear in any writing produced to this office. Nevertheless, the unwritten policy continued to be enforced against the Poor People's Campaign on June 11 and June 18.
Numerous arguments concerning the policy have been provided to this Office asserting constitutional or other theories. We do not reach these questions because, based on our review of the undisputed facts and relevant law, we conclude that any rules and policies regarding the public's access to and use of the Capitol building must be promulgated in administrative regulations pursuant to KRS Chapter 13A. As such, the Finance Cabinet and the KSP have violated KRS Chapter 13A by implementing and enforcing policies regarding entry to the Capitol building that are not contained in properly adopted administrative regulations.
Kentucky Revised Statute 13A.100 sets forth matters that must be prescribed by administrative regulation. In relevant part, the statute provides:
[A]ny administrative body that is empowered to promulgate administrative regulations shall, by administrative regulation, prescribe, consistent with applicable statutes:
(1) Each statement of general applicability, policy, procedure, memorandum, or other form of action that implements; interprets; prescribes law or policy; describes the organization, procedure, or practice requirements of any administrative body; or affects private rights or procedures available to the public;
(2) The process for application for license, benefits available or other matters for which an application would be appropriate unless such process is prescribed by a statute[.]
KRS 13A.100(1)-(2). See also KRS 13A.010(2)(a) (defining the term "administrative regulation" to mean "each statement of general applicability promulgated by an administrative body that implements, interprets, or prescribes law or policy" and that does not "concern[] only the internal management of an administrative body . . . not affecting private rights or procedures available to the public"). Thus, KRS 13A.100(1) "require[s] the adoption of a regulation every time an agency desires to give legal effect to its issuance of any 'statement of general applicability' . . that the agency intends to impact any group of individuals other than that agency's own personnel." See
Baker v. Commonwealth, 2007 WL 3037718, at *35 (Ky. App. Oct. 19, 2007) (unpublished).
"The adoption and use of administrative regulations are important tools in the operation of modern government, at all levels." Legislative Research Comm'n by and through
Prather v. Brown, 664 S.W.2d 907, 919 (Ky. 1984) (hereinafter " LRC v. Brown "). In the Commonwealth, KRS Chapter 13A "sets out the requirements which administrative agencies . . . must follow in adopting or modifying administrative regulations [.]"
Revenue Cabinet v. Humana, Inc., 998 S.W.2d 494, 495-96 (Ky. App. 1998). The Chapter also "sets limits upon the discretionary interpretive powers of agencies by forbidding certain actions by internal policy or memorandum. " Id. at 496. In this way, the statutes of KRS Chapter 13A "were designed to prevent administrative agencies from abusing their authority." Baker, 2007 WL 3037718, at *35. They "establish preventive safeguards." Id. (emphasis in original).
Additionally, the process for rulemaking set forth in KRS Chapter 13A allows a state agency to "develop[] coherent and rational codes of conduct so those concerned may know in advance all the rules of the game, so to speak, and may act with reasonable assurance[.]"
General Assembly v. Byrne, 90 N.J. 376, 386, 448 A.2d 438 (1982) (citation and internal quotation marks omitted) (cited favorably in
LRC v. Brown, 664 S.W.2d at 919).
Following the law and promulgating regulations affecting private rights and procedures available to the public further provides an opportunity for questions regarding fairness and constitutionality to be vetted in an open and transparent manner, where public comment is specifically incorporated as a way to ensure good governance and a voice for those affected. See KRS 13A.270 and 13A.280. Through the rulemaking process of KRS Chapter 13A, agencies are required to explain the reasons and statutory authority for their proposed regulations. See KRS 13A.220(4)(e) and (f). In addition, a committee of the legislature must review and hear the regulations in a public forum. See KRS 13A.290. In other words, the regulation process allows for what was entirely missing in the formulation of the unwritten policy at issue here -- a chance for the people of Kentucky to participate in determining the rules related to entry into their seat of government.
Here, the Finance Cabinet and the KSP Commissioner constitute administrative bodies under KRS 13A.010. That statute defines the term "administrative body" to mean "each state board, bureau, cabinet , commission, department, authority, officer , or other entity, except the General Assembly and the Court of Justice, authorized by law to promulgate administrative regulations [.]" KRS 13A.010(1) (emphasis added). The Finance Cabinet is authorized to promulgate administrative regulations by KRS 56.463, which both grants the Finance Cabinet the power and duty to "[t]o control the use of any real property owned or otherwise held by the Commonwealth," KRS 56.463(4)(a), and authorizes it "[t]o adopt rules and promulgate administrative regulations as may be necessary to govern" such control, KRS 56.463(8). The KSP Commissioner is likewise authorized to promulgate administrative regulations relating to the security of state facilities by KRS 16.065(1) and 16.080(1). Kentucky Revised Statute 16.065(1) lists "[s]ecurity of state facilities located in Frankfort" among the KSP's duties. Kentucky Revised Statute 16.080(1) then provides that "[t]he commissioner . . . may promulgate administrative regulations for the governing and operation of the department as appear to him or her reasonably necessary to carry out the provisions of KRS 16.010 to 16.170."
Policies regarding access and entry by the public to the Capitol building clearly affect public rights and procedures. Accordingly, pursuant to KRS 13A.100(1), such policies must be promulgated and adopted by administrative regulation.
Currently, it does not appear that any of the rules and policies for use of the Capitol and its grounds enunciated and incorporated in the Finance Cabinet's "Application to Use Commonwealth Facilities" have gone through the KRS Chapter 13A process. These also must be promulgated in an administrative regulation, as must the process for application and the application form itself. See KRS 13A.100(2); KRS 13A.110. Notably, the Finance Cabinet has a regulation for parking with respect to state-owned buildings and grounds that includes rules for public or visitor parking. See 200 KAR 3:010. Thus, it should come as no surprise that a regulation similarly is required for public access to and use of state-owned buildings and grounds.
Again, we do not reach First Amendment analysis or other constitutional analysis because we have determined that the Finance Cabinet and the KSP violated KRS Chapter 13A by enforcing a policy for entrance into the Capitol and an application for such that has not been promulgated in administrative regulations. Any regulation passed in the future concerning entry to the Capitol will certainly have to comply with constitutional requirements.
Although we recognize that the KSP and the Finance Cabinet must have the flexibility and discretion to respond to imminent threats to the security and welfare of persons working or otherwise using state-owned buildings, this is not a case involving such an imminent threat that the promulgation of administrative regulations was impossible. The Poor People's Campaign scheduled its events on the Capitol grounds a week apart. Therefore, there was ample time for the Finance Cabinet and/or the KSP to avail themselves of the procedures for emergency administrative regulations. See KRS 13A.190.
Footnotes
Footnotes
1 The following members of the General Assembly have joined in the opinion request: Representative Kelly Flood, Representative Mary Lou Marzian, Representative Rocky Adkins, Representative Dennis Keene, Representative Wilson Stone, Representative Arnold Simpson, Representative Angie Hatton, Representative John Sims Jr., Representative Chris Harris, Representative Rick Rand, Representative Susan Westrom, Representative Linda Belcher, Representative Ruth Aim Palumbo, Representative Jeff Donohue, Representative Tom Burch, Representative McKenzie Cantrell, Representative Al Gentry, Representative Joni Jenkins, Representative Reginald Meeks, Representative Charles Miller, Representative Darryl T. Owens, Representative Jim Wayne, Senator Perry Clark, Senator Denise Harper. Angel, Senator Morgan McGarvey, Senator Gerald Neal, and Senator Dennis Parrett.
2 The response further indicated that the Finance parties needed until July 13, 2018, to collect and provide the requested documents. The office responded to the Finance parties by email on June 22, allowing them to provide the requested documents by noon on June 25. As of the date of this opinion, the office has not received the documents. Because of the great public importance of the opinion request and the need for an expedited resolution, and in light of the undisputed facts, no further delay is warranted.