Call to Order and Roll Call
The 539th meeting of the Legislative Research Commission was held on Wednesday, September 4, 2013, at 10:00 AM, in Room 125 of the Capitol Annex. Senator Robert Stivers II, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Robert Stivers II, Co-Chair; Representative Greg Stumbo, Co-Chair; Senators R.J. Palmer II, Dan "Malano" Seum, Brandon Smith, Katie Stine, Damon Thayer, and Johnny Ray Turner; Representatives Rocky Adkins, John Carney, Larry Clark, Bob M. DeWeese, Jeff Hoover, Sannie Overly, and Tommy Thompson.
Guests: Cheryl Lewis.
LRC Staff: Bobby Sherman, Christy Glass, Roy Collins, Robert Jenkins, and Laura Hendrix.
There being a quorum present, President Stivers called for a motion to approve the minutes of June 26, 2013; accept as indicated items A. through F. under Staff and Committee Reports; refer prefiled bills and administrative regulations as indicated and approve items C. through U. under New Business; and accept and refer as indicated items 1. through 53. under Communications. A motion was made by Representative Stumbo and seconded by Representative Clark. A roll call vote was taken, and the motion passed unanimously. The following items were approved, accepted, or referred.
The minutes of the June 26, 2013, meeting were approved.
Staff and Committee Reports
A. Information requests from June through August 2013.
B. Committee Activity Reports for June through August 2013.
C. Reports of the Administrative Regulation Review Subcommittee meetings of June 11, July 9, and August 5, 2013.
D. Committee review of administrative regulations by the Interim Joint Committee on Health and Welfare during its meeting of July 17 and August 21, 2013.
E. Committee review of Executive Reorganization Order 2013-389 by the Interim Joint Committee on Education during its meeting of July 8, 2013.
F. Committee review of Executive Reorganization Order 2013-418 by the Interim Joint Committee on Health and Welfare during its meeting of August 21, 2013.
New Business
A. Referral of prefiled bills to the following committees: BR 42 (relating to the collection of delinquent taxes), BR 64 (relating to coal severance revenues and declaring and emergency), BR 78 (relating to the promotion of organ and tissue donation), BR 99 (relating to motor fuels taxes), BR 116 (relating to sales and use tax holidays and declaring an emergency), BR 118 (relating to sales and use tax holidays and declaring an emergency), and BR 138 (relating to TVA in-lieu-of-tax payments, making an appropriation therefor, and declaring an emergency) to Appropriations and Revenue; BR 23 (relating to reporting on economic incentive programs) to Economic Development and Tourism; BR 117 (relating to the employment of public school teachers) to Education; BR 40 (relating to driving under the influence), BR 102 (relating to weapons), and BR 119 (relating to dextromethorphan abuse) to Judiciary; BR 140 (relating to firefighters) to Labor and Industry; BR 72 (relating to the reorganization of the Department of Fish and Wildlife Resources and the Department of Fish and Wildlife Resources Commission) to Natural Resources and Environment.
B. Referral of the administrative regulations to the following committees for secondary review pursuant to KRS 13A.290(6) and 158.6471(6): 11 KAR 3:100 (Administrative wage garnishment); 11 KAR 5:001 (Definitions pertaining to 11 KAR Chapter 5); 11 KAR 5:140; (KTG award determination procedure); 11 KAR 5:145 (CAP grant award determination procedure); 11 KAR 8:030 (Teacher scholarships); 11 KAR 15:040 (Kentucky Educational Excellence Scholarship award determination procedure); 11 KAR 15:090 (Kentucky Educational Excellence Scholarship (KEES) program); 11 KAR 16:001 (Definitions for 11 KAR Chapter 16); 11 KAR 16:010 (Early Childhood Development Scholarship Program applicant selection process); 11 KAR 16:040 (Early Childhood Development Scholarship Program recordkeeping requirements); 11 KAR 16:050 (Early Childhood Development Scholarship Program costs), and 11 KAR 16:060 (Early Childhood Development Scholarship Program system of monetary incentives) to Education; 201 KAR 22:045 (Continued competency requirements and procedures); 201 KAR 22:055E (Interim standards for supervision for physical therapists); 201 KAR 22:130 (Per diem of board members); 900 KAR 6:030 (Certificate of Need expenditure minimums); 900 KAR 6:120 (Certificate of Need angioplasty two (2) year trial program); 900 KAR 6:125 (Certificate of Need annual surveys, and registration requirements for new Magnetic Resonance Imaging units); 906 KAR 1:200 (Use of Civil Money Penalty Funds collected from certified long-term care facilities); 922 KAR 1:130 & E (Kinship Care Program); 922 KAR 1:140 & E (Foster care and adoption permanency services); 922 KAR 1:320 & E (Service appeals); 922 KAR 1:400 & E (Supportive services); 922 KAR 2:020 (Child Care Assistance Program (CCAP) improper payments, claims, and penalties); 922 KAR 2:090 & E (Child-care center licensure); 922 KAR 2:100 (Certification of family child-care homes); 922 KAR 2:110 (Child-care center provider requirements); 922 KAR 2:120 (Child-care center health and safety standards); 922 KAR 2:160 & E (Child Care Assistance Program), and 922 KAR 2:180 (Requirements for registered child care providers in the Child Care Assistance Program) to Health and Welfare; 803 KAR 2:300 (General); 803 KAR 2:307 (Hazardous materials); 803 KAR 2:308 (Personal protective equipment); 803 KAR 2:314 (Machinery and machine guarding); 803 KAR 2:320 (Toxic and hazardous substances); 803 KAR 2:400 (Adoption of 29 C.F.R. 1926.1-6); 803 KAR 2:403 (Occupational health and environmental controls); 803 KAR 2:404 (Personal protective and lifesaving equipment); 803 KAR 2:407 (Adoption of 29 C.F.R. Part 1926.250-252); 803 KAR 2:411 (Scaffolds); 803 KAR 2:418 (Underground construction, caissons, cofferdams, and compressed air); 803 KAR 2:419 (Adoption of 29 C.F.R. Part 1926.850-860); 803 KAR 2:425 (Toxic and hazardous substances); and 803 KAR 2:500 (Maritime employment) to Labor and Industry; 201 KAR 30:120 (Temporary appraisal licenses and certificates); 201 KAR 30:125 (Continuing education for appraisers); 201 KAR 30:150 (Education provider approval); 201 KAR 30:200 (Reciprocity requirements for applicants licensed or certified in another state); 201 KAR 31:010 (Fees); 201 KAR 31:020 (Compensation of board members); 201 KAR 31:040 (Applications and examinations); 201 KAR 31:050 (Renewals); 201 KAR 31:060 (Code of professional conduct); 201 KAR 31:080 (Geologist-in-training); 201 KAR 31:090 (Complaint management process); 201 KAR 43:010 (Application procedures for licensure); 804 KAR 4:031 (Repeal of 804 KAR 4:020, 804 KAR 4:030, 804 KAR 4:130, 804 KAR 4:140, 804 KAR 4:160, 804 KAR 4:170, 804 KAR 4:180, 804 KAR 4:200, 804 KAR 4:220, and 804 KAR 4:260); 804 KAR 4:250 (Special temporary licenses); 804 KAR 4:390 & E (License renewals); 804 KAR 4:430E (Issuance of licenses); 804 KAR 8:011 (Repeal of 804 KAR 8:010, 804 KAR 8:020, and 804 KAR 8:030), and 804 KAR 9:010 (Quota retail license limits) to Licensing and Occupations; 815 KAR 7:125 (Kentucky Residential Code) to Local Government; 301 KAR 2:251 (Hunting and trapping seasons and limits for furbearers) to Natural Resources and Environment; and 601 KAR 1:147 (Auditing of U-drive-it permit holders) to Transportation.
C. From Senator John Schickel and Representative Dennis Keene, Co-Chairs of the Interim Joint Committee on Licensing and Occupations: Memorandum requesting approval to meet on September 16 in Lexington, rather than the regularly scheduled meeting date of September 13. There are no apparent conflicts.
D. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum appointing memberships to Interim Joint Committee on Appropriations and Revenue (and subcommittee), Interim Joint Committee on Education, Interim Joint Committee on Agriculture, and Interim Joint Committee on State Government.
E. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum authorizing the Amendment of Legislator Mailing Policy (Postage Allowance).
F. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum authorizing the suspension of August Interim Meetings.
G. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum appointing Senator Mike Wilson and Representative Derrick Graham to the Education Commission of the States.
H. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum appointing Trent Lovett, Keith Davis, Tim Bobrowski, and Nannette Johnston to the Local Superintendents Advisory Council.
I. From Senator Paul Hornback and Representative Wilson Stone, Co-Chairs of the Tobacco Settlement Agreement Fund Oversight Committee: Memorandum requesting approval to meet on October 30 in Bowling Green, in addition to the regular meeting date of October 2. There are no apparent conflicts.
J. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum authorizing the Director of the Legislative Research Commission to contact the Director of the Southern Legislative Conference for the purpose of offering the Commonwealth of Kentucky and the city of Lexington as the host state and city for the 2016 Annual Meeting of the Southern Legislative Conference.
K. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum approving the Final Report of the Subcommittee on 2014-2016 Budget Preparation and Submission.
L. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum authorizing and appointing membership to the 2013 Military and Overseas Voting Assistance Task Force.
M. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum authorizing the reappointment of membership of the National Technical Advisory Panel on Assessment and Accountability (NTAPAA).
N. From Senator Alice Forgy Kerr and Representative Keith Hall, Co-Chairs of the Interim Joint Committee on Economic Development and Tourism: Memorandum requesting approval to meet on September 30 at Breaks Interstate Park, rather than the regularly scheduled meeting date of September 19. There are no apparent conflicts.
O. From Senator Mike Wilson and Representative Derrick Graham, Co-Chairs of the Interim Joint Committee on Education: Memorandum requesting appointment of Representative Joni Jenkins to the Subcommittee on Postsecondary Education and Representative James Kay to the Subcommittee on Elementary and Secondary Education.
P. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum appointing James Fowler, Chief Information Officer of the Commonwealth Office of Technology, to the 2013 Military and Overseas Voting Assistance Task Force (replacing Steve Rucker).
Q. From Senator Whitney Westerfield and Representative John Tilley, Co-Chairs of the Unified Juvenile Code Task Force: Memorandum requesting approval for additional meetings in the months of September, October, and November, as well as an additional and final meeting, outside of the interim, on December 4. There are no apparent conflicts.
R. From Senator Stan Humphries and Representative Terry Mills, Co-Chairs of the Capital Planning Advisory Board: Memorandum requesting approval to hold an additional meeting on September 24. There is one potential conflict.
S. From Senator Paul Hornback and Representative Tom McKee, Co-Chairs of the Interim Joint Committee on Agriculture: Memorandum requesting authorization and the appointment of members to the Subcommittee on Rural Issues and the Subcommittee on Horse Farming of the Interim Joint Committee on Agriculture.
T. From Bobby Sherman: Memorandum requesting approval of the 2014 Regular Session calendar.
U. From Bobby Sherman: Memorandum requesting approval of prefiling deadlines for the 2014 Regular Session.
Communications
1. From Senator Christian McDaniel and Representative Fitz Steele, Co-Chairs, Program Review and Investigations Committee: Memorandum regarding opportunity for appointment of ex officio members for particular studies.
2. From the Auditor of Public Accounts: Report of the Audit of the Powell County Clerk for the year ended December 31, 2011.
3. From the Office of the Attorney General: Constitutional Challenge Reports for the months of April, May, and June 2013.
4. From the Cabinet for Economic Development, Department of Financial Incentives: Loan data sheets for each loan approved as of the quarter ending June 30, 2013.
5. From the Finance and Administration Cabinet: Monthly Investment Income Report for the months of June and July 2013.
6. From the Finance and Administration Cabinet, Office of the Controller: Surtax Receipts Statements for the Law Enforcement and Professional Firefighters Foundation Fund Programs for the months of June and July 2013; and year-to-date activity for FY 2013; and activity for accounting period 1, FY 2014.
7. From the Auditor of Public Accounts: Review of the Pike County School District Examination.
8. From the Auditor of Public Accounts: Review of the Ashland Independent School District.
9. From the Auditor of Public Accounts: FY 2012 Review of the expenditures of the Kentucky Health Care Improvement Fund.
10. From the Auditor of Public Accounts: FY 2012 Review of the expenditures of the Lung Cancer Research Fund.
11. From the Auditor of Public Accounts: FY 2012 Review of the expenditures of the Rural Development Fund.
12. From the Auditor of Public Accounts: Examination of the Metcalfe County Board of Education for the period July 1, 2012, through April 30, 2013.
13. From the Cabinet for Health and Family Services: FY 2012 Traumatic Brain Injury Trust Fund Program Annual Report.
14. From the Cabinet for Health and Family Services: SWIFT Adoption Teams Report for the first quarter of 2013.
15. From the Education and Workforce Development Cabinet: 2013 Second Quarter Unemployment Insurance Report.
16. From the Kentucky Commission on the Deaf and Hard of Hearing: Telecommunications Access Program (TAP) Annual Report FY 2012-2013.
17. From the Department of Parks: House Bill 166 Annual Report.
18. From the Cabinet for Health and Family Services: FY 2012 Annual Report for the Domestic Violence Batterer Intervention Provider Program.
19. From the Governor’s Office of Early Childhood: Bi-Annual Report of the Early Childhood Advisory Council in accordance with 2013 HB 184.
20. From the Cabinet for Health and Family Services, Department for Aging and Independent Living: FY 2013 Summary of Statement of Non-compliance Findings from Assisted Living Community Certification.
21. From the Kentucky Legislative Ethics Commission: Recommended changes to the Legislative Code of Ethics 2013.
22. From the Personnel Cabinet: Personnel Cabinet Quarterly Reports as of June 30, 2013.
23. From the Auditor of Public Accounts: Examination of Certain Policies, Procedures, Controls, and Financial Activity of HealthFirst Bluegrass, Inc.
24. From the Labor Cabinet, Division of Workers’ Compensation Funds: Report for Kentucky Coal Workers’ Pneumoconiosis Fund, Quarter Ending June 30, 2013.
25. From the Cabinet for Health and Family Services: 2013 Kentucky Stroke Encounter Quality Improvement Project Stroke Registry Data Summary.
26. From the Tourism, Arts and Heritage Cabinet: 1% Statewide Lodging Tax Progress Report for FY 2013.
27. From the Auditor of Public Accounts: Examination of Kentucky Emergency Management.
28. From the Auditor of Public Accounts: Review of the Fayette County School District.
29. From the Auditor of Public Accounts: Review of the Menifee County School District.
30. From the Kentucky Judicial Form Retirement System: Operating Statements of the Judicial Retirement Fund and the Legislators Retirement Fund for FY 2012-13; List of investments held by the Fund as of June 30, 2013; and Portfolio Valuations of the Fund as of June 30, 2013.
31. From the Auditor of Public Accounts: Special Report of Certain Policies, Procedures, Controls, and Financial Activity Regarding Medicaid Managed Care.
32. From the Kentucky Assistive Technology Loan Corporation: FY 2012-2013 Annual Report.
33. From Kentucky Employers’ Mutual Insurance Authority: Quarterly Statement for the period ending June 30, 2013.
34. From Kentucky Employers’ Mutual Insurance Authority: Statements indicating financial status for the period ending June 30, 2013.
35. From the Auditor of Public Accounts: Report of the Audit of the Marshall County Circuit Court Clerk for FY 2012.
36. From the Auditor of Public Accounts: Report of the Audit of the Floyd County Sheriff’s Settlement – 2011 Gas and Oil Taxes for the period May 16, 2011, through May 15, 2012.
37. From the Auditor of Public Accounts: Report of the Auditor of Public Accounts Agreed-Upon Procedures Engagement of the Former Bath County Property Valuation Administrator for the Period July 1, 2012, through May 31, 2013.
38. From the Auditor of Public Accounts: Report of the Auditor of Public Accounts Agreed-Upon Procedures Engagement for the period July 1, 2011, through June 30, 2012, of the following Property Evaluation Administrators: Barren, Boyle, Breathitt, Christian, Elliott, Fayette, Gallatin, Henry, Hopkins, Jackson, Johnson, Kenton, Letcher, Logan, Marshall, Nelson, Wolfe, and Washington.
39. From the Auditor of Public Accounts: Report of the Audit of the Sherriff’s Settlement – 2011 Unmined Coal Taxes for the Period July 16, 2011, through August 15, 2012, for the following counties: Floyd, Letcher, and Perry.
40. From the Auditor of Public Accounts: Report of the Audit of the Sheriff’s Settlement – 2011 Taxes for the period of April 16, 2011, through April 16, 2012, for the following counties: Boone, Boyle, Crittenden, Floyd, Letcher, and McCracken.
41. From the Auditor of Public Accounts: Report of the Audit of the following Sheriffs for the Year Ended December 31, 2011: Boone, Boyle, Crittenden, Knott, Breathitt, and Perry.
42. From the Auditor of Public Accounts: Report of the Audit of the following Sheriffs for the Year Ended December 31, 2012: Anderson, Boyd, Bullitt, Carter, Clark, Clay, Estill, Fleming, Harrison, Hopkins, Knott, Lawrence, McLean, Meade, Mercer, Ohio, Owen, Pendleton, Rowan, Shelby, Union, Wayne, and Webster.
43. From the Auditor of Public Accounts: Report of the Audit of the Anderson County Fiscal Court, for the Year Ended June 30, 2011.
44. From the Auditor of Public Accounts: Report of the Audit of the Fiscal Court for the Fiscal Year ended June 30, 2012, for the following counties: Bourbon, Boyle, Campbell, Christian, Clinton, Estill, Fleming, Fulton, Gallatin, Green, Hancock, Harrison, Jessamine, Knox, Larue, Logan, Magoffin, McCracken, McCreary, McLean, Montgomery, Owen, Owsley, Pendleton, Powell, Rockcastle, Simpson, Warren, Washington, Wayne, and Webster.
45. From the Auditor of Public Accounts: Report of the Audit of the following former County Clerks for the Year Ended December 31, 2012: Calloway, Carlisle, and Clinton.
46. From the Auditor of Public Accounts: Report of the Audit of the following County Clerks for the year ended December 31, 2012: Anderson, Boyd, Bullitt, Butler, Caldwell, Carter, Clay, Crittenden, Cumberland, Fleming, Fulton, Graves, Grayson, Harrison, Hart, Henry, Hickman, Hopkins, Knott, Knox, Laurel, Lawrence, Leslie, Letcher, Logan, Lyon, Marion, McCreary, McLean, Meade, Mercer, Morgan, Muhlenberg, Nelson, Ohio, Owen, Pendleton, Pike, Pulaski, Robertson, Russell, Shelby, Spencer, Todd, Union, Washington, Wayne, and Webster.
47. From Department of Military Affairs, Office of Adjutant General: FY 2013 Annual Report of Military Family Assistance Trust Fund Board.
48. From the Collaborative Center for Literacy Development: 2013 Annual Report.
49. From the Auditor of Public Accounts: Independent Accountant’s Report on Applying Agreed-Upon Procedures to the Kentucky Department of Education for FY 2012.
50. From the Cabinet for Health and Family Services, Office of the Secretary: Child Abuse and Neglect 2012 Annual Report of Fatalities and Near Fatalities.
51. From the Cabinet for Economic Development, Commission on Small Business Advocacy: 2012-2013 Annual Report.
52. From the Cabinet for Economic Development: Annual Report for the Kentucky Investment Capital Network for FY 2013.
53. From the Cabinet for Economic Development: Linked Deposit Loan Investment Program FY 2013 Annual Report.
Senator Stivers addressed to the Committee the issue that certain items have been brought to the attention of members in the past couple of weeks. He asked Director Bobby Sherman to give a status report as to whether or not any complaints have been filed related to personnel actions with him or any other members that he is aware of. Senator Stivers asked for complaints only, not the substance.
Mr. Sherman: “Obviously, there is a complaint or two complaints that have been filed and reported in the press.”
Senator Stivers: “I’m talking about personnel complaints, ethics complaints related to anything in the way of sexual harassment or hostile workplace environment.”
Mr. Sherman: “There are two that we are aware of. At least, we’ve heard of two complaints filed with the Legislative Ethics Commission. I will tell you we are aware because we have obtained a copy, but not through any official process. My understanding is the Ethics Commission, pursuant to their statutory framework, can’t comment on those or even acknowledge that any complaints are in existence. We have three complaints.”
Senator Stivers: “That have been filed with the LRC?”
Mr. Sherman: “Three complaints that have been lodged with our personnel office.”
Senator Stivers: “Would you consider these to be personnel matters?”
Mr. Sherman: “Yes.”
Senator Stivers: “The next question I have is, have there been any discussions or negotiations through any other individuals, either at your personal contact or at your direction, concerning possible litigation or threats of litigation?”
Mr. Sherman: “In terms of the scope of my answers right now—and this is going to not get into the content of investigations in any way.”
Senator Stivers: “I’m not asking that it get into the content. I’m just saying, have there been discussions?”
Mr. Sherman: “Let me say this, though, first: Two of these complaints—the most publicized complaints—I want to give you, in terms of a status report; the staff worked on those complaints in terms of investigation, and action is essentially complete. However, the status is also that notification is still necessary in regard to all parties involved in that, as to the completed stance of it, in order to get conclusion on it. So we have to be very careful in a public setting, before they are properly advised, from revealing anything much about specifics, which you haven’t asked. Even the question as to potential litigation, I’ve got to be careful even there, because it gets into the question of ‘how was that received, by whom, and in what capacity?’ So while I can tell you that I have heard the possibility of litigation discussed, and I do think that is a real possibility, I need to be careful about getting into that kind of communication and how it happened, because the case itself is not concluded yet, but soon will be.”
Senator Stivers: “It is my understanding that you wish to speak with the counsel of the LRC to be able to advise us as to what has taken place in conformity with the personnel policies of the LRC?”
Mr. Sherman: “Yes, and to be careful that we don’t violate, as we’re talking about this now, a standard that would give rise to further liability of the agency due to the current status of investigations. I need to know, as I’m talking to a couple of my staff people, there are some things that I can obviously tell you about how we do these things. I can talk to you about our investigative team. I can talk to you about the general status of the complaint, which we refer to as a couple of the major complaints. I need to talk to you about confidentiality and how that is an overriding factor in what we do in these cases and how important that is, and how that, in and of itself, affects who may know about an ongoing complaint and who may not. I know, President Stivers, you have mentioned that before, and that would be something we should talk about. Then, in terms if you need to know, or we need to know, how far do you want to get into—and we need to discuss privately, our staff, how we can fulfill that. What do you need to know about the timeline of certain investigations? I can probably give you timeline, I think. I want to talk to counsel. Which I think is a good thing, in terms of what started when, what pretty much ended when. If you get much beyond that in a public setting, so it might appear that we are trying to tell these folks, before we tell complaining folks, and if it looks like our goal here is trying to make ourselves look good when it’s a serious matter, and everybody takes it as such, I want to avoid that perception that that is the intent here, because it’s not. So if we’re in a public setting, there are just some things we have to be careful of. If you can tell me if that kind of sounds reasonable, those kinds of discussion topics, along with a general timeline, my staff here could retire briefly and just kind of go over some of my notes here already to make sure they’re appropriate. It wouldn’t take long, maybe ten (10) minutes. It wouldn’t involve you all at all, so we don’t have any open meetings or a problem.”
Senator Stivers: “Well, I think it’s going to be the position of the Chair that you meet with your staff, briefly, come back, and give us an explanation of what you feel comfortable with at the point in time. Then we will make a decision, and I may seek a Motion to go into executive session, and I may not. We would like to—because of the seriousness, the privacy, and the lack of knowledge by many members of what has occurred or taken place—we want to make sure we are not, in any way, infringing on those individuals. And our ultimate objective is to get to the truth of the matters that have been brought before us. So we will take about a ten (10) minute recess and give you an opportunity to prepare.”
Mr. Sherman: “Okay, that’s fine.”
At that time, a ten (10) minute recess was taken.
Senator Stivers then called the Commission back to order.
Senator Stivers: “The next order of business is the issue that we have continued to talk about regarding potential litigation, potential investigations, potential complaints that have been filed on various things, and we will do this so that people can know who people are, so would you state your name and explain to the public who you are.”
Mr. Sherman: “I’m Bobby Sherman. I am the Director of the Legislative Research Commission. I’ll introduce the rest of my folks here. These folks are part of an investigative team we’ve been using. This is Laura Hendrix, our general counsel. This is Robert Jenkins, our Deputy Director for Committee and Staff Coordination. Roy, where are you? Roy Collins, our assistant Director for Human Resources.”
Senator Stivers: “Why don’t you bring Mr. Collins to the table.”
Mr. Sherman: “By the way, Cheryl Lewis is here from Hyden, and we’ll tell you about that as we get to it.”
Senator Stivers: “Mr. Sherman, the Chair wants to explain kind of where my position is and my colleagues that have contacted me. We have absolutely no knowledge of the things that have been reported in the press and that were spoken of during the Special Session in the House Chamber. We understand you have concerns about this, based on press reports and things of that nature. There have been instances that have either occurred or been reported or not reported, but occurred, that culminated in the filing of complaints, but we again, have no knowledge of this.
Based on your conversations, you have some concerns about violating certain principles and policies related to individuals’ privacy and what has been adopted as the policy manual related to employment for various individuals. I think, at this time, it would be appropriate for you, based on what you have before you, and that you feel comfortable with, just basically starting from the beginning.”
Mr. Sherman: “Well, let’s talk about some initial thoughts, then we can get into this a little with some concerns that remain for us, and then you can tell us what else you want us to do.
You know this team here, and they’ve worked hard on this. I want you to know that I welcome—we consider you all, because it’s true, to be the ultimate employers for this agency—so we appreciate the ability and your interest in what’s going on. Just basically, and we’ll get into this a little more, in terms of the status of the complaint—and when we’re talking about complaints, let’s get a little bit clearer. I’ve got two complaints that were filed at the same time on February 19.”
Senator Stivers: “February 19 of this year?”
Mr. Sherman: “February 19 of this year. We still have to write the report and communicate with people, but the final actions were taken on August 27 of this year.
Just to reiterate, this stands as something that still is open. So we have to be very careful with, and be protective of, the rights of the parties, principals, and the witnesses.
Now, let’s go to that issue you talked about in regard to the issue of confidentiality to the extent as it’s expressed on page 35 of the personnel manual, which says, ‘all complaints and reports will be investigated promptly and thoroughly and will be treated confidentially to the extent consistent with a thorough investigation’ and open records law and supervisory structure, etc. I can’t overstate how important that is. It’s important because 1) people that use our policy rely upon it. I’ve been told by Cheryl that they may logically and reasonably expect to have a quasi contractual right to it. So, once stated, and I think this is a typical sort of confidentiality policy in a workplace harassment overall policy, but it’s something that has to mean something. We take it that way. When we open a file, an investigation, we only talk to people that have a need to know, a right to know, need to know, and of course, it says ‘confidential to the extent consistent with a thorough investigation.’ To further illustrate how important this is, it’s not like there are thousands of these claims, there are not hundreds, not ten (10) over the years. In fact, we’re dealing with complaints of non-partisan staff about non-partisan staff. We’ve got 400 employees, so things come up. People aren’t happy with each other at times, so we have to deal with it, but it’s not unheard of for a complainant to come to us that’s a little bit nervous about details that they are going to give; details against somebody else. Even though the details are against somebody else, and they want to tell us. They don’t want the details that they give to be related to them or perhaps their relatives or something like that, because it’s embarrassing to them, whether it should be embarrassing or not, but they may find it that way. They don’t want, for example, if something that they relay to us that may be embarrassing to them, they don’t necessarily want the next door neighbor of the person they’re complaining against to be able to use open records to get it to use it against them or to make fun of them over it. So this whole issue of confidentiality, if it’s not treated right, then what you do is you stifle complainants, and they won’t come. When people come and say, ‘Well, are you going to tell everyone about this?’ Or, ‘I want to keep this confidential. I’ll tell you about it, but I don’t….’ Even then, see then we have to say, ‘Well, we’ll try to,’ but even that is consistent with a thorough investigation, but other than that part, we keep it confidential.
In most cases, nobody on the Commission is going to know anything about it. Unless it is a situation where what we try to do doesn’t work. If it doesn’t work, then we may have to come to the Speaker or President and say, ‘Look I’ve got a real problem.’ And heck, we might not even do it then if I had to call the cops and fire somebody—that kind of thing. So the confidentiality issue is a real big one.
How does it apply to this case? In this instance, and for the first time, the parties involve somebody in the General Assembly, in terms of an alleged offense against that person; and for the first time, the complainants are leadership staff. We’ve never had that before. Now, the deal is if the complainant had been a non-partisan, if [it] was two non-partisan staff against each other, or say someone saying something about a legislator, you might not have heard about it all, if it would have worked okay, particularly, if a legislator is involved. Again, for folks to think that that is a rampant thing would be absolutely wrong. If I’ve got a staff person that wants to say something about a legislator—my staff people aren’t politicians. Some of them, rightfully or wrongfully, are nervous of politicians. If something is going to immediately be communicated to them, they wonder where that information is going to go. I’m not saying that it would go anywhere, but they worry about it. So there you go. In this case, we’ve got a leadership staff person, two, that are complaining.
My deal is I don’t supervise leadership staff people. I supervise non-partisan staff people. The personnel manual itself says that is written for, and applies to, non-partisan staff. Although, certainly we welcome, and will use this to help leadership staff if that’s the way it’s going to go. So in that situation and in that case, these complainants happen to be House leadership staff folks. We’ll get, as we go into a timeline, [to] the fact that the very basic difference of why would House leadership know and Senate leadership not know, is because I don’t supervise House leadership staff. And as we’re beginning to apply a personnel policy that is in the manual that is written for non-partisan staff, we’ll certainly use with leadership staff, but we need to inform the folks that do supervise the leadership staff people that that’s what we’re going to do, and is that what they think is appropriate to do. That is as far as I’m going to take it there, in that instance, because that’s all I need to do to keep things confidential, but I do need to get that piece of information. I can go through a little time line for you later, I think.”
Senator Stivers: “Could I interrupt you just a minute? I think it’s clear, because even we’ve had this discussion, that the staff that is hired in the Senate President’s office and Senator Palmer’s office, are through the Senate President and are considered partisan staff and under that group’s supervision?”
Mr. Sherman: “That is correct.”
Senator Stivers: “Likewise, the same is applied to the House in both staffs, and you have no authority to hire, fire or discipline those individuals, because it’s under the direct per view of the Speaker or the Senate President’s office?”
Mr. Sherman: “I’ve been associated with the Commission for thirty (30) years, and that’s the way it works. The division of staff is probably about seventy percent (70%) non-partisan, thereabouts, or maybe eighty percent (80%), and then a much smaller number of the partisan staff work for the eight (8) leaders of the Senate and the eight (8) leaders of the House. I don’t select those people. I don’t fire those people. I don’t set their salary. I don’t adjust their salary. I don’t tell them what to do. That’s not me.”
Senator Stivers: “So you’re saying the complaints you received were from the definitional partisan staff, not non-partisan staff?”
Mr. Sherman: “That is correct. We need to make sure, since I don’t supervise those people, that there is a consistency of understanding that we are going to proceed and investigate it. There was that understanding, which by the way, I think is appropriate. We have probably some experience doing that. Not like every day, but we have done it before.”
Senator Stivers: “Understanding about what? That you’re going to investigate it?”
Mr. Sherman: “That we are going to do that. I mean, if I don’t supervise people, it could be that maybe there is another plan that somebody wanted to use. If there is another supervisor of employees, and they were to say, ‘We’ll investigate it, and we’ll do it.’ They could do that. I don’t think that would be the best choice because we have done it before, but I at least need to check and make sure that we’re doing, and people know that we’re doing, what we think we ought to do. We got that understanding, and in fact, I’ll tell you this much—”
Senator Stivers: “Who is this understanding with?”
Mr. Sherman: “I’m going to tell you.”
Laura Hendrix: “I think it’s important to realize, for purposes of talking about anything that goes to the substance of any particular complaint, as Bobby pointed out, there are confidentiality concerns. From my perspective, since I’m the general counsel for the Legislative Research Commission, this is for purposes of giving you all legal advice too. Talking about this at all in a public session may give rise to liability concerns about any of this. You all just need to realize that. Again, as Bobby has said, there may be anticipated litigation on this. I wouldn’t be doing my job if I didn’t let you know that. That’s why they have it in the Open Meetings Law that public bodies can go into closed session to discuss these things. That is completely up to you all.”
Mr. Sherman: “That’s the concern. We want you to know everything you want to know. I’m just saying that in open session, it’s a slippery slope from one question to another, and it’s dangerous. Cheryl, do you have anything you wanted to add on that?”
Cheryl Lewis: “I’m an attorney, and I’ve been practicing in employment law for twenty-six (26) years. What the concerns are, quite frankly, is that if there is an anticipation of litigation, you have work product privileges. If you have an attorney/client privilege, and if you have this in open session, you may be inadvertently waiving the attorney/client privilege as the ultimate employer. In addition, the complainants have certain rights. Not only do they have confidentiality rights, they have protection status, either as having brought this type of complaint, or they may have whistle- blower status. They may have civil rights protections. They might have a number of different protections that, by having this in open session, could give rise to them or their attorney making additional complaints. In addition, the accused in this situation also has rights. I don’t believe that he is here, and by these individuals providing information to you in open session, it could give rise to liability for LRC and to them, for things like defamation, invasion of privacy, false light kinds of claims. I know that some of you are probably lawyers, and what I’ve said, you may have already thought of. But it is my position, as a consultant for LRC—and you are the ultimate employers— that there is significant liability, not only for yourself, but for the individuals talking, as well as for the complainants sitting here today, and the accused, that would give rise to at least a motion to have this in closed session. That would be all I have, unless somebody has questions.”
Laura Hendrix: “Additionally, what we’re always concerned about is protecting staff, to the extent that retaliation, of course, is against the law. We want to protect staff, and we want to encourage them to come forward with any complaint, even if it’s not an actionable complaint, in anything, we want them to come forward. To the extent that it would chill anyone’s ability to do that or willingness to do that, to talk to us, because I think as it is now, it’s a very good process. I think I can say that without reservation.”
Mr. Sherman: “You’re just talking about the process.”
Laura Hendrix: “About the process. So those would be my concerns.”
Senator Stivers: “Then let me suggest this, Mr. Sherman. Based on what you all have discussed with Ms. Lewis and Ms. Hendrix, go through what you feel comfortable explaining to us.”
Mr. Sherman: “Of course, we’d feel most comfortable if we didn’t go through much of it all, and if you needed to get details that you’d be in closed session, if that’s what you need. That’s the overriding notion. Some of this is not going to be much, but the timelines help, I think. I noticed you all wrote down the date that it started.
On February 19, 2013, during the session, a workplace harassment complaint was brought to Roy Collins, who is with the Director’s Office, by two individuals who are on leadership staff, okay? On that same day we thought, okay we now have a complaint, so we need to act upon it. And I know the Speaker won’t mind me mentioning his name here because he did exactly the right thing. We got with him, we met, we told him that we had two complaints, and that we thought the best thing to do was for us to go ahead and do the investigation. He agreed wholeheartedly and suggested that we do that in accordance with our policies and applicable law. I thought that was a good choice. But that was when it was necessary because the supervision of these employees comes from leadership in the House, they had to know about it, and we had to be on the same page that it was okay for us to do it. That was the appropriate choice, so we did.
Both of those things happened on the same day. Complaint is filed, that information given, so this is both on the 19th. We are immediately trying to do something.”
Representative Hoover: “I’m just concerned. We have counsel for the LRC, who’s giving us advice. We have an attorney who is well respected in this area who is giving us advice. Both of them are strongly suggesting that we, as a governing body, as a public body, go into executive session to disclose these matters, and nobody seems to be paying attention to that advice. I mean, I think we ought to listen to our attorneys. I recognize that we’re not here today to discuss the content or the validity of the complaints that have been filed alleging sexual harassment. That’s not our job. As the governing body of the Legislative Branch of government, it is our duty and it’s our responsibility to, I think, fully understand what actions were taken by our employees, specifically the Director and his staff, when those allegations were reported. It’s my opinion that having an open discussion or an open meeting on these matters, with our Director, with our attorney, and with other staff members would have a chilling effect on their ability to fully explain their actions. It would have a chilling effect on our ability to ask the questions that need to be asked and answered by us as the ultimate employer of them. Therefore, I’m going to follow the advice of these attorneys that we have hired, and I move, Mr. President, pursuant to KRS 61.810(c)(f), which talks about personnel matters and the threat or pending litigation, I move pursuant to those statutes that the LRC go into executive or closed session.”
Senator Stivers: “We have motion by Representative Hoover, do we have any discussion concerning the Motion? Mr. Speaker?”
Representative Stumbo: “Point of order, Mr. Speaker. Representative Hoover cites two exceptions to the open meetings law, and having been a former Attorney General, and having dealt with these matters, literally on a daily basis, I’m quite familiar with the exceptions. We took the position in that office that unless a meeting fell specifically under the exceptions, that the meeting should be open. Now, the first question that one has to ask, and it’s been alluded to here today, but I’ve not heard anybody tell me that there is a substantial threat of litigation to the LRC, that there is a direct suggestion of litigation, condition on the occurrence or non-occurrence of a specific event. That’s what the Carter v. Smith case says, and as far as the personnel matters go, quoting from the statute that Representative Hoover spoke of, as far as relying upon forgoing into special session, it says ‘hearings which might lead to the appointment, discipline or dismissal of an individual employee.’ I haven’t heard any testimony here that leads me to believe that either one of those exceptions clearly fall within what’s been talked about here today. So I can’t support going into a closed meeting. I believe the public has a right to know these things. I understand the confidentiality concerns Mr. Director, and I appreciate that. You’re exactly right on that point, but I think you can discuss the policy and the procedures that were followed or are being followed without being alluded—we’re not here to determine, as far as I know, if the allegations are true or correct. There are other bodies that are examining those and will examine those allegations and take testimony and move forward on those particular issues. We’re not prepared to do that today. We’re not here to do that today. We are simply here 1) to make sure that our employees are protected, and to make sure that the policies that we have, I think, are sound in the event that these type of allegations would come forward again. I know I understood what you said that it was a first time allegation involving a legislator and an LRC leadership staff employee. So I think that’s good. The public knows that. There’s been some speculation in the press as being more rampant than that, and I appreciate your comment to the extent that, obviously, that’s not true. But, talking about things that you don’t have any knowledge about or facts about in this town are pretty common. I appreciate your relying upon the facts. We, as politicians, often get in these political battles. When you’re talking about due process of law, and you’re talking about the rights of people, I agree with you, counsel. We have to be very specific and very careful, and that’s why I don’t want us to go into a meeting, which I’m not saying it’s not well-intended. I’m not saying, gentleman from Russell, that the advice is not well-intended. I’m simply saying that I believe the public has a right to know. I believe that this committee has a right to know as much as you can share, given the allegations that have been made. I certainly want to make sure that that happens, but I don’t want to be accused of doing something which might be perceived as being violative of the open meetings law.”
Senator Stivers then acknowledged Representative Hoover.
Representative Hoover: “Thank you Mr. President. I’ll just respond very briefly. I think we all recognize, and it’s been reported in the press, that litigation will be forthcoming, and is being contemplated and discussed as we speak. We know that the complainants are here. They are here with their attorney, who’s spoken on their behalf in the press, in the past few weeks. So, to argue that there is not litigation proposed or being discussed, which is what the Open Records exceptions require, is just not true. It’s interesting to me that the my good friend, the Speaker, would say that there needs to be an open meeting, when just three days ago his position was there didn’t need to be a meeting at all. I just think we ought to follow the advice of our attorneys since it does involve personnel, and it does involve what I think we all recognize as potential or proposed litigation, and that we should go into executive session.”
Representative Stumbo asked to respond.
Representative Stumbo: “Representative Hoover, I haven’t heard any testimony, and perhaps you know more than I do, about any alleged litigation involving the Legislative Research Commission. I’ve not seen the LRC’s name mentioned as doing something that was violative of anybody’s rights that would lead to litigation. Nobody’s told me that. If someone has told you that, maybe you need to share that with us.”
Representative Hoover: “Mr. Speaker, if I may Mr. President, I’m just responding to the—”
Senator Stivers: “Let’s kind of keep some order, Representative Hoover.”
Representative Hoover: “I just want to respond that the thing I was basing my statement on is the Speaker was quoted in the paper as saying he was not in favor, after he initially said he was in favor, of an LRC meeting. That he was not in favor of an LRC meeting, because to do so would subject the LRC and the members of the LRC to potential liability and a lawsuit. That’s what I was basing it on, and he was quoted in the press as saying that.”
Representative Stumbo asked to respond.
Representative Stumbo: “Being misquoted in the press—”
Senator Stivers: “Mr. Speaker, we’re going to back through the chair in appropriate decorum, and I’ll recognize people as it becomes appropriate, but I think here is what we have discussed. I think Mr. Sherman can explain to us certain procedures and protocols of what have taken place without being something that would violate anybody’s due process, privacy rights, anything of that nature, which would not subject us to further litigation. Upon completion of that, then I think it will be the Chair’s position that we will then discuss whether we need to go in to an executive session because of what counsel has said related to the privacy issues and potential liability. I think he feels comfortable to a certain extent, and at that extent then we’ll make the decision or entertain the Motion that you have Representative Hoover, to go into an executive session. Mr. Sherman, proceed.”
Mr. Sherman: “Okay, the next day after complaints were filed, we move to February 20. Interviews are conducted with the complainants. From February 20 to February 27, 2013, interviews are conducted with relevant witnesses. On February 27, 2013, we interview the accused individual. The next day, February 28, we have by this time, arrived at findings, and the findings are passed along to the accused individual. The same day we pass along our findings to the complainants. March 1, 2013, through August 27, 2013, there is periodic monitoring of the situation.
On or about May 24, consideration is given and eventually to LRC’s, meaning my, employment of an outside counsel, who has an expertise in employment law, just to give us a second set of eyes, and if possible, mediate and facilitate the situation. So that was done, and Cheryl Lewis is hired by me. Her actual hire date is June 11, 2013.
Let’s go back, I’m sorry that is confusing. Somewhere around the end of May, we began to think that it might be beneficial for us to be educated, for one thing. Are we missing something? What could we do better? That sort of thing. So Cheryl Lewis is hired.
Between June 11, 2013, and September 9, 2013, Cheryl reviews staff process. I’m sorry, June 11 and July 9, is that right? Cheryl engages in certain things. Cheryl, would you want to review what you were doing there?”
Senator Hoover then asked Cheryl for process only.
Ms. Lewis: “I understand. I was first contacted toward the last week of May 2013. At that time, I talked with Roy Collins in very general terms about the situation that LRC was dealing with regard to two employees. He and I had a brief conversation. On June 7, I came to Frankfort. On that day, I interviewed Roy Collins and Bobby Sherman. I spoke with Laura Hendrix, and I interviewed Robert Jenkins.
From that point, I then asked for the file. I reviewed the file at length, as you would have expected me to do. There was a determination made that I would interview the complainants. The initial meeting with the complainants was set for July 2, when I had a dental emergency and had to move it back a week. So, on July 9, I came to Frankfort. At that time, I was supposed to interview one complainant at 1:00 and one complainant at 1:45, by myself, with them in an effort to provide a fresh set of eyes to look at what LRC staff had done and to indicate whether the job had been done properly or whether there were other things that needed to happen, and if possible, to mediate or to facilitate a resolution to this issue. There are other things that I could tell you that I am not comfortable in doing in an open session.”
Mr. Sherman: “I agree. I don’t want you to.”
Ms. Lewis: “I went ahead and conducted the interviews because that was part of my job, and everyone agreed that that should go forward. After I finished with the interviews with them, there have been several communications that have taken place since that time, both with regard to the LRC staff that’s in front of you and with regard to the attorney for the complainants. I don’t believe that that is appropriate for me to discuss in open session because it would involve the waiver of the attorney/client privilege, and Mr. President, I don’t believe you all have done that. So that it is where I have been involved. I do have thoughts and conclusions that I can share with this body.”
Mr. Sherman: “I’m going to mention this because don’t want to leave anything out or make it look like anything is slanted. On July 9, which is the same time Cheryl had her meeting she just described, there was an additional allegation concerning a sort of behavior that we then investigated. We did that on July 11, and we made a finding on that and applied an action in regard to that. I just didn’t want leave it out since we talked about the original things.”
Senator Stine: “The action was applied on the 11th, is that what you’re saying?”
Mr. Sherman: “We had a finding, the action was applied and continued to be applied. You’re beginning to do something. I don’t want to get into that right now. In other words, we investigated, made a finding, and made those findings known.
I can understand your question, Senator Stine, about action. What is that? The thing is, though, if I talk about that any more, it then relates back to ‘Well, what was your finding?’ If I talk about that, then ‘What was the complaint?’ It shows outcome, and I think in this setting we have to be very careful about outcome. So I know it’s treading lightly, and I know you’ve got a lot of blanks, but in this setting I think this all we can do.
Anyway, things were done and actions were taken. Like I say, there is contact with the person complained against on August 26, which was Monday of last week, and there was action taken on August 27. Not action, but a communication, which actually was an email communication with complainants on August 27, just advising them of the status where we are. What, if anything, is the person accused of supposed to do. Again, I’m not trying to argue whether it’s a good idea to be in closed session or not closed session, and so that’s up to you all and the law involved, but if we were in closed session, I could give you more detail than that. I don’t know that you want more detail or you do. I don’t know, but I could if I were in closed session.”
Senator Stivers: “Does that complete what you feel you can tell us in this forum and setting?”
Mr. Sherman: “Yes.”
Senator Stivers: “Let me ask a question of the whole group, including Ms. Lewis. Have there been conversations with any of the counsel for the parties that have suggested that litigation would be filed, or have there been any discussions about potential negotiations on settlements?”
Ms. Lewis: “Yes.”
Senator Stivers: “Yes to both?”
Ms. Lewis: “Yes to all.”
Senator Stivers: “Ms. Lewis, I’ll specifically ask this of you? Who directed you or who contracted with you to be employed in this situation?”
Ms. Lewis: “My contact has been with the individuals that are sitting at the table with you. So I was first contacted by Roy Collins. Then I had conversations with Roy and Mr. Sherman.”
Senator Stivers: “Okay. And your background has been many years of practice in personnel law?”
Ms. Lewis: “I probably should have done that from the get go. I’ll be glad to describe my background. I don’t like doing this because to me it seems like there is some sort of bragging about yourself, but I will describe for all of you my background.
I’m from Leslie County, Kentucky, and I graduated from high school in Leslie County in 1980. I went to Centre College, and I graduated there in 1984. I graduated from the University of Kentucky, College of Law in 1987. And I graduated number one in my class, which only gives me the ability to tell you all that or other potential individuals. I don’t know that it did anything to prepare me for the practice of law, but in 1987 I was number one in my class. From there, I went to the United States Court of Appeals for the 6th Circuit. I clerked for one (1) year with a judge up there. At that point, I came back to Lexington, and I worked with Stites and Harbison from 1988 to 2003. I moved back to Leslie County in 1998, and I’ve been there in practice up through the current date. I’ve been on my own as a solo practitioner from 2003 to 2013. I’ve practiced law almost twenty-six (26) years. Twenty-four (24) years of that has been in the employment law area. Kentucky doesn’t certify specialties, so I almost feel like I should say, this is not an advertisement, but I have been practicing employment law for almost twenty-four (24) years. I’ve spoken to the Kentucky Bar Association, the League of Cities, Kentucky Chamber of Commerce and UK CLE. I can even talk a little bit of basketball and football with you, but I am a long-time practitioner in employment law. That’s my background. Mr. President, I have gone from basically one hundred percent (100%) of defendant work to ninety percent (90%) of plaintiff work, ten percent (10%) of my work is consulting and defense work, so I have a very widespread background. I’d be glad to answer any questions about that.”
Senator Stivers: “I have one other question. Based on what you’ve read and your experience, and that which you’ve seen in the employment manuals, do you feel this is an item or matter that is related to the employment and employment status of individuals within the LRC?”
Ms. Lewis: “What I’m telling you is that this is a matter that involves personnel issues of employees within the LRC. That is what it was brought to me for was a potential issue between or complaint between two employees of the LRC, that they had an issue with a legislator. That’s what the issue is. It is my advice, as it has been, with response to the question you asked a moment ago, is that there is a potential threat for litigation, as seen by the withdrawal of the Human Rights Commission Complaints by the attorney representing the complainants.”
Senator Stivers: “Mr. Sherman, I have one question. Who instructed you to hire Ms. Lewis?”
Mr. Sherman: “No one. I decided to hire her.”
Senator Stivers: “We have a couple of questions. Senator Thayer?”
Senator Thayer: “Thank you, Mr. Chairman. Director Sherman, you said yourself you do not supervise partisan leadership staff. You don’t hire them. You don’t fire them. You don’t set their salary or adjust their salary.”
Mr. Sherman: “That’s correct.”
Senator Thayer: “Why then are you responsible for leading an investigation regarding staff that you have, essentially, no control over?”
Mr. Sherman: “Well—”
Senator Thayer: “Why wouldn’t that fall to the supervisors of the complainants in this situation?”
Mr. Sherman: “The organizational structure and practice of the Legislative Research Commission and General Assembly is different. It’s hard for folks to understand sometimes. You’ve got the General Assembly, you’ve got LRC. LRC means different things to different people. Some people think LRC is the staff. Some people think—or know—that what it is is what you all are. People use those terms interchangeably, and actually, in some ways the reality is even confusing, because it is the case that every single employee in this agency, including leadership staff, does work for LRC. The LRC budget, in fact, all the money appropriated to the General Assembly, actually is appropriated to LRC. So even though a leadership staff person like Chris Lilly might be a leadership staff, and I might be non-partisan staff, the fact is that we’re both LRC employees.”
Senator Thayer: “As are technically legislators.”
Mr. Sherman: “Yeah, that’s a little iffier. You can make that case.”
Senator Thayer: “I just think while we’re in open session this is an important distinction or explanation.”
Mr. Sherman: “You bet.”
Senator Thayer: “It is a bit confusing.”
Mr. Sherman: “It is confusing, and I know you all don’t care about this, but I’ve worked for LRC since 1978, and my parents died about twenty (20) years later. The whole time I worked there they never understood what I did, ever. I could explain it to them over and over, but the place confuses them in terms of the way it’s set up. Having said that, we’re all LRC employees. It is true that I don’t supervise leadership staff, but the thing is, we think we know how to do it, and the thing is we have a policy. I’m not trying to brag either, like Cheryl, but—“
Senator Thayer: “This is Frankfort.”
Mr. Sherman: “Brag away, yeah. We’re not partisan staff, so we don’t do that very much. I am not familiar with, in terms of investigations we’ve done over the past while I’ve been here, that a bad result has occurred. So we have some expertise in doing it, and they were all LRC employees. So the thing is we don’t mind doing it, we think it’s the right choice to do it because we think a good result can occur.”
Ms. Hendrix: “We were requested to do it.”
Mr. Sherman: “Requested to do it. I guess that’s all I have to say about that.”
Senator Thayer: “Can I have a follow-up, please, Mr. President?”
Senator Stivers advised Senator Thayer to proceed.
Senator Thayer: “Thank you, Director Sherman. I felt strongly that that explanation was necessary for the public, so thank you for making it. The next question I have relates to the consulting contract for Ms. Lewis, who by all accounts is an extremely qualified and capable attorney. The question is simple. Did you consult with the LRC or leadership regarding her consulting contract?”
Mr. Sherman: “No, I did not. She does not have a consulting contract. She is, in fact, an LRC employee, as this point.”
Senator Thayer: “So to clarify for the record, she is not a consultant?”
Mr. Sherman: “She is an employee that consults for us. In other words, she tells us things like, Senator Thayer, there is a chance that as an LRC employee, there might be times during the session that I consult with you in regard to issues. She is not on contract. She is a part-time, non-benefited, what we call under a hundred (100) hours a month employee.”
Senator Thayer: “No pension, no benefits?”
Mr. Sherman: “No pension, no benefits, One hundred twenty-five dollars ($125) an hour, no expenses, which is different, by the way, from a contract employee. Whatever the rate is, the fact that it’s a non-expense is a little bit cheaper than a contractual situation.”
Senator Thayer: “The other part of my question, if you will, please. Did you consult with the LRC?”
Mr. Sherman: “I said that going in. No, I did not. I have authority to make hires in that category. I, for example, during regular session, I probably hire twenty (20) folks that are part-time, under a hundred (100) employees or part-time seasonal employees at an hourly rate, with no benefits. If you consider all the employees and whether you all want me to continue to have that authority or not, right now I’m hiring people occasionally, lots of times, and I don’t inform any of you. If you want to be informed, we can announce it, and that sort of thing, but that’s never been something we do.”
Senator Thayer: “Follow-up, Mr. President?”
Senator Stivers director Senator Thayer to proceed.
Senator Thayer: “Thank you, Mr. Chairman. There are sixteen (16) members of the Legislative Research Commission made up of the various leadership bodies in the House and the Senate. Did you consult or inform with any one member of the LRC regarding Ms. Lewis’ employment with the agency?”
Mr. Sherman: “Well, I came to a decision that this would be a good idea to have this kind of help. Again, I’m going to have to be careful here. Why did I decide I wanted it? Well, because a couple of events occurred that, unless we’re in closed session, I don’t want to talk about that.”
Senator Thayer: “I didn’t ask that.”
Mr. Sherman: “Yeah, but it gets to it. It gets to the question. Just in the process of talking to staff, I talked with a member of the Speaker’s staff, and he had experienced a similar, but different issue, and just in the terms of professional talk, I believe that and came to the conclusion that this would be a good idea. It’s my decision. This is a useful thing for my investigation.”
Senator Thayer: “Did you or did you not consult or inform a member of House leadership regarding Ms. Lewis’ employment?”
Mr. Sherman: “No.”
Senator Thayer: “’Til when?”
Mr. Sherman: “Okay, the question is House leadership, is that right?”
Senator Thayer: “Correct.”
Mr. Sherman: “No.”
Senator Thayer: “You said you did at some point.”
Mr. Sherman: “Okay, we’re going to get into this a little bit now.”
Senator Thayer: “It’s just a date; all we need is a date on the calendar.”
Mr. Sherman: “I know, but the thing is that I don’t have a date. It gets into having to explain why certain things happened at a certain time.”
Senator Stivers: “Let me just do this. You did have some discussion at some point in time with somebody in House leadership.”
Mr. Sherman: “Not with a legislator, but the thing is, that in terms of undertaking this deal, and I think I can say this, because the House leadership are the ones who supervise these individuals, they were interested in, at least on one event, an update as to the status of it, which makes sense, because even though we are doing it, a status update makes sense. At that time, if you are giving an update, you can talk about various things that happened that might make it a conversational thing that I think, yeah, I’m going to hire Ms. Lewis. Again, it isn’t something that was any kind of demand or anything else.
Senator Thayer: “I have one more question, Mr. Chairman. I’m not questioning your authority to hire Ms. Lewis. I’m just trying to get at who knew what, when. Did you inform a member of House leadership staff about Ms. Lewis’ employment with the agency, and if so, when?”
Mr. Sherman: “I guess yes, and it was on or about June 11, after that had been accomplished or getting ready to be accomplished, but I don’t recall.”
Senator Thayer: “June 11.”
Mr. Sherman: “June 11 is the hire date.”
Senator Thayer: “And you informed a member of House leadership staff?”
Mr. Sherman: “Yes. It wasn’t like, okay now that we’ve done this I’m informing you. So that wasn’t a prerequisite or a natural reaction.”
Senator Thayer: “I’m not saying it was a prerequisite.”
Mr. Sherman: “What I’m saying is, after it happens and after the hiring occurs, because I want it to occur, and need to have it, then it’s a thing. If I’m talking to someone that has a right or need to know, I will say it’s a thing.”
Senator Thayer: “So we can assume that on June 11, House leadership staff and very likely by extension, House leadership, was informed that Ms. Lewis had been hired by the agency to investigate?”
Mr. Sherman: “I cannot assume that it was on the 11th. I can’t assume it was an exact day. It was probably on or around that time that I did have a conversation with a member of House leadership, which would have, as we’re talking about what’s going on with the case, would have acknowledged that Ms. Lewis was on board. Now, in terms of who was told after that, I don’t have any idea.”
Senator Thayer: “I have no further questions at this time, Mr. Chairman.”
Senator Stivers then recognized Representative Hoover.
Representative Hoover: “Thank you, Mr. Chairman. Just a couple of questions. Director Sherman, why did you wait four (4) months to hire outside counsel?”
Mr. Sherman: “Representative Hoover, if I’m in closed session, I can answer Senator Thayer’s questions pretty precisely, and I can answer that question too, but I don’t feel comfortable in terms of what I can say.”
Representative Hoover: “I respect that. Thank you very much. One final question, Mr. Chairman?”
Senator Stivers recognized Representative Hoover.
Representative Hoover: “You noted on February 28 that your findings of your investigation were passed along to the accused and to the complainants. That was your statement earlier.”
Mr. Sherman: “That is correct.”
Representative Hoover: “Were those findings also passed along to any member of House leadership and why not, if you had consulted them initially, would you not pass along the findings to them?”
Mr. Sherman: “We have been told that they’re awaiting conclusion of this. I have told you that we are very close to that, but not technically there, because of advising the parties. So my understanding from the staff of the Speaker’s office is that they await a conclusion and final notification when we’re done. Again, if we’re in closed session, you’d get a better timeline with a lot more stuff in it. I understand this situation, too.”
Representative Hoover: “May I proceed, Mr. Chairman? Is it correct then, to say that you initially met with the Speaker on February 19 to discuss the complaint that had been received that same day? You felt it appropriate to discuss with him the complaint, but yet when these findings were passed along on February 28 to the accused and the complainant, and you’re telling us that you never passed along those findings to anyone in House leadership?”
Mr. Sherman: “There was an update that Roy Collins gave to House leadership staff based upon a need that they had. Again, I can’t talk about, because we’re in this situation. Toward the end of February, there was an update given for a specific reason. Then, the further instructions suggested to us that they await information as to conclusion.”
Representative Hoover: “Would that have been on or around February 28, the same day you passed along your findings to the complainants and the accused?”
Mr. Sherman: “No, I don’t think that is right. Bear with us just a second, all right? Actually, there were a couple of instances, now that we think about it. All right, rather than drag this out again—if we were going through the file, it would be more clear, but in certain of the actions that Senator Stine was asking about, which would mean what in result to our findings, okay? Without getting into them—what kind of things would you do in terms of the environment and that sort of thing. Well, there were a couple of updates and communications with the Speaker’s office and leadership offices in order to effectuate those things. You have to do that in order to make it work. If I were listening to this, and I’m sure it’s true, I wouldn’t have any idea what I’m talking about because it doesn’t make hardly any sense to me.
There was in an incident in May that was based upon something else, not an incident, but in early May, as a reaction to something else happening from the outside. Roy Collins updated two of the Speaker’s staff in regard to where we stand now. That’s a different kind of update, but that’s an update. It was an update, and after that we were advised in that folks would await conclusion of the investigation and be notified as such.
These communications are when needed and for different reasons and without knowing any of the underlying stuff, it’s hard to explain it to you.”
President Stivers recognized Senator Stine.
Senator Stine: “Thank you, Mr. Chairman. I’m just trying to follow the timeline, and I know you can’t always believe everything you read in the paper, but I did see the Courier-Journal’s account, and it said ‘one of the three women alleges her problems with Mr. Arnold began as early as 2008 or 2009.’ Were you aware of any sorts of allegations of sexual harassment prior to this date that you mention of February 19, 2013?”
Ms. Hendrix: “You know, that gets into the substance.”
Mr. Sherman: “It does. All I can tell you is they came to us on the 19th. In terms of what their allegations are, they could be different dates, and I’m not going to get into those right now.”
Senator Stine: “I also see a timeline that was distributed by Brian Wilkerson, indicating that on Thursday, April 14, 2011, the Speaker’s general counsel directs the LRC Director any violations of harassment policy be resolved. That date is prior to this February 19, if I’m not mistaken. How is that related?”
Mr. Sherman: “Could you read it to me again?”
Senator Stine: “There was an email distributed by Brian Wilkerson, who is a communications director for the House. It says, ‘Timeline of Speaker’s actions in establishing effective harassment procedures. Thursday, April 14, 2011. Speaker’s general counsel directs LRC Director that any violation of harassment policy be resolved in accordance with American Bar Association’ and goes on and sets out standards.”
Mr. Sherman: “So your question is, what does that refer to?”
Senator Stine: “It goes on into May. Is that related to this, or was it just serendipitous?”
Mr. Sherman: “The Bar standards are one thing in terms of the investigation referred to. It’s not related to this.”
Representative Stumbo: “I think the gist of her question may be that, does this relate to the complaints that were filed, particularly the one that goes back a couple or three (3) years, and that answer is no. Our meeting in August was really, as I recall it, was just to talk about procedures and talk about updating the policies and making sure we had an effective policy in place. It didn’t relate to these issues, these complaints.”
Senator Stine: “So, regarding the ’08-09 allegations, you had not heard anything about that?”
Mr. Sherman: “’08-09? Of these complainants? Again, that’s part of the investigation. We heard from them on February 19, and they could have had allegations involving different times of things, but I’m not going to get into that.”
Senator Stivers acknowledged Senator Smith.
Senator Smith: “I’m not an attorney, and I’m actually really proud of that right now. It seems like this thing keeps folding over top of itself. You’re exactly right, Bobby. It’s hard, I can imagine trying to answer questions and the wake keeps folding over top of itself and tip toeing around.”
Mr. Sherman: “I have to leave holes out.”
Senator Smith: “It’s frustrating. I came in here today, and I have a list of questions I know I can’t ask because they apparently can’t be answered. There are people here who have had something happen to them, significantly. Obviously, that’s a lot to carry. It affects them and it affects their family and it affects every one of us, and it challenges the credibility of this institution. Yet, we sit here today and we’ve got all these questions that we want to have answered, and we can’t answer them because in doing so, it obviously creates some other legal liability or something like that. I think it does a disservice to these women for us to skirt around them. I’ve got questions here today that I’m not leaving until we get answered. I don’t care if we’re here until midnight. I think they deserve that. I think the people in my district deserve to know what’s going on down here. I can tell you that you can walk through any place, any barber shop, and they’re all going to be wondering what we’re doing down here. This story of this rampant abuse and stuff like that, and that’s not true. We’ve got some hours here, and we’ve got some tough work cut out ahead of us that we can get done today. I can get my questions answered. I don’t know why we’re not going into executive session. I don’t know if there’s a strategy about keeping the lid on this thing or whatever. Look, if there are ways we can get this thing answered and that’s what we have to do in order to get it done, I’m okay with that, but I’m not okay with us spending the next two hours asking you questions you can’t answer, knowing there’s information out there that each and every one of us would like to know about. Yet, there’s some sort of gamesmanship at foot that nobody gave me the memo on, and I think it’s foolish. I think it’s disrespectful. So I’d like to say, let’s have a break if we could, Mr. Chairman, and let us get our heads together and see what we can do to answer these questions, because it’s foolish for us to sit in here and play this charade about asking questions and you not being able to answer them. It’s not fair to you, it’s certainly not fair to us, and it’s not fair to all the parties involved, either the accused or the people who have something perpetrated against them.
So, I would like to make the Motion that we take a ten (10) minute break and let’s get our heads together and let’s get our work done. That’s my motion.”
Senator Stivers: “There was a prior Motion made that is still on and there is discussion. We now have a second motion for a recess. I know the Speaker and I may have a little bit different opinion. He’s practiced a little longer than I have. He’s been the Attorney General. I can say I’ve been the Judiciary Chair for ten (10) years, but I do believe there has been, based on Ms. Lewis and what other counsel has said, an issue of policy related to personnel and potential litigation. Representative Hoover had made a Motion to go into executive session, and there was not a second on that. That Motion is still on the table. Is there a second to go into executive session?”
A second was made by Representative Carney. There being no discussion, a roll call vote was taken.
At this time, Representative Overly asked to explain her vote.
Representative Overly: “I understand from the testimony of Ms. Lewis that she believes that there may be pending litigation. However, having said that, my reading of the Carter vs. Smith decision and the specific requirement that there must be a direct suggestion of litigation conditioned on the occurrence or non-occurrence of a specific event, concerns me that perhaps that that statement does not meet the standard outline in Carter vs. Smith. It is not my intention to prevent a discussion between this body and the LRC on these issues. However, I do think we are required to follow the law, and specifically the letter of the law that the state Supreme Court outlined as recently as May 24, 2012. So, for that reason, I vote no.”
At this time, Senator Stivers asked to explain his vote.
Senator Stivers: “I will vote yes, and I do believe there is, because there has been discussions and conveyances to respective parties about settlement and litigation. Plus, personnel issues that have been set out to us by counsel that has been hired by the LRC and retained on an outside basis for this. I believe that is 10 (ten) votes.”
At this time, Speaker Stumbo asked to explain his vote.
Speaker Stumbo: “I’m going to vote no for the same reasons that Representative Overly addressed. The way that the Director has proceeded, as he’s explained, is designed to protect the employees. That’s what he was supposed to do. It is an ongoing investigation, as I understand it. As I understand it, there are no formal demands to be made for settlement that we would consider. Is that correct Ms. Lewis? You don’t have a formal demand that you wish to discuss?”
Ms. Lewis: “I do not.”
Speaker Stumbo: “Therefore, I do not believe that it meets the standard required for a closed session under the open meetings law. So, Mr. President, I will have to vote no.”
The motion passed 10-5.
Senator Stivers then asked for a recess and that the closed session be recorded, as requested by the Representative Stumbo, so there would be no concerns.
Senator Stivers made a motion that the tape be held until released by Court order or upon release or directed by the LRC.
Speaker Stumbo indicated he had no problem with that, but that he would not be participating in a meeting he considered to be illegal.
At that time a ten (10) minute recess was taken.
At 12:00 p.m. the Legislative Research Commission went into executive session.
At 4:10 p.m., LRC went back into open session, and President Stivers advised that no action was taken during the executive session.
Adjournment
There being no further business, the meeting was thereby adjourned at 4:14 p.m.