Call to Order and Roll Call
The 541st meeting of the Legislative Research Commission was held on Wednesday, November 6, 2013, at 1:30 PM, 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, Jerry P. Rhoads, Dan "Malano" Seum, Brandon Smith, Katie Stine, Damon Thayer, and Johnny Ray Turner; Representatives Rocky Adkins, John Carney, Larry Clark, Bob M. DeWeese, Sannie Overly, and Tommy Thompson.
Guests: Lyle Hanna and Linda Haft, Hanna Resources Group; Brian Weberg and Karl Kurtz, National Conference of State Legislatures.
LRC Staff: Marcia Seiler and Christy Glass.
There being a quorum present, President Robert Stivers called for a motion to approve the minutes of the October 2, 2013, meeting; accept and refer as indicated items A. through E. under Staff and Committee Reports; refer prefiled bills as indicated and approve items B. through J. under New Business; and accept and refer as indicated items 1. through 33. under Communications. A motion was made by Representative Clark and seconded by Representative Stumbo. A roll call vote was taken, and the motion passed unanimously. The following items were approved, accepted, or referred.
The minutes of the October 2, 2013, meeting were approved.
Staff and Committee Reports
A. Information requests for October 2013.
B. Committee Activity Reports for October 2013.
C. Report of the Administrative Regulation Review Subcommittee meeting of October 8, 2013.
D. Committee review of administrative regulations by the Interim Joint Committee on Local Government during its meetings of September 25 and October 23, 2013.
E. Committee review of administrative regulations by the Interim Joint Committee on Health and Welfare during its meeting of October 16, 2013.
New Business
A. Referral of prefiled bills to the following committees: BR 43 (relating to legislative procedures for state fiscal measures), BR 152 (relating to tax credits for noise abatement), BR 222 (relating to tolls), and BR 292 (relating to tax credits for hiring legally blind or severely disabled individuals) to Appropriations and Revenue; BR 174 (relating to school funding) to Education; BR 129 (relating to eminent domain), BR 198 (relating to eminent domain and declaring an emergency), BR 230 (relating to cable television), BR 250 (relating to the Public Service Commission) to Energy; BR 45 (relating to school notification of persons authorized to contact or remove a child) to Health and Welfare; BR 11 (relating to domestic violence), BR 44 (relating to foreign law), BR 194 (joint resolution directing the Kentucky Law Enforcement Council to study current and needed post-traumatic stress disorder training, policies, and resources for peace officers), BR 211 (proposing an amendment to Section 145 of the Constitution of Kentucky relating to persons entitled to vote) to Judiciary; BR 155 (relating to electrical inspections) to Licensing and Occupations; BR 46 (proposing an amendment to Section 42 of the Constitution of Kentucky relating to compensation for members of the General Assembly), BR 189 (relating to commercial vehicle enforcement officers), and BR 219 (relating to anti-bullying), to State Government; BR 217 (relating to disabled parking placards) to Transportation.
B. Referral of the administrative regulations to the following committees for secondary review pursuant to KRS 13A.290(6) and 158.6471(6): 13 KAR 1:020 (Private college licensing); 16 KAR 3:080 (Career and technical education school principals); and 16 KAR 9:080 (University-based alternative certification program) to Education; 201 KAR 6:020 (Other requirements for licensure); 201 KAR 6:030 (Temporary permits); 201 KAR 6:040 (Renewal, reinstatement, and reactivation of license); 201 KAR 6:050 (Licensure by endorsement); 201 KAR 6:060 (Fees); 201 KAR 6:070 (Continuing education requirements); 201 KAR 6:080 (Code of ethics); 201 KAR 6:090 (Complaint process); 900 KAR 10:010 & E (Exchange participation requirements and certification of qualified health plans and qualified dental plans); 900 KAR 10:020 & E (Kentucky Health Benefit Exchange Small Business Health Options Program); 900 KAR 10:050 & E (Individual Agent or Business Entity Participation with the Kentucky Health Benefit Exchange); and 906 KAR 1:190 (Kentucky Applicant Registry and Employment Screening Program) to Health and Welfare; 501 KAR 6:110 (Roederer Correctional Complex) and 503 KAR 1:180 (Firearms qualification for certified peace officers) to Judiciary; 201 KAR 12:020 (Examination); 201 KAR 12:040 (Apprentices; ratio to operators); 201 KAR 12:045 (Apprentice, nail technician, esthetician, and instructor's licensing); 201 KAR 12:050 (Reciprocity for valid licensee); 201 KAR 12:060 (Inspections); 201 KAR 12:065 (New, relocated and change of owner salons); 201 KAR 12:082 (School's course of instruction); 201 KAR 12:083 (Educational requirements); 201 KAR 12:088 (Esthetic course of instruction); 201 KAR 12:100 (Sanitation standards); 201 KAR 12:101 (Equipment sanitation); 201 KAR 12:120 (School faculty); 201 KAR 12:125 (Schools' student administrative regulations); 201 KAR 12:150 (School records); 201 KAR 12:176 ( Repeal of 201 KAR 12:175, 201 KAR 12:200, and 201 KAR 12:210); 201 KAR 12:180 (Hearing procedures); 201 KAR 12:190 (Investigations and complaints); 201 KAR 12:260 (License fees, examination fees, renewal fees, restoration fees and miscellaneous fees); 201 KAR 12:270 (Threading practice); 201 KAR 30:040 (Standards of practice); 811 KAR 1:215 (Kentucky Standardbred Development Fund and Kentucky Standardbred Breeders' Incentive Fund); and 811 KAR 1:220 (Harness racing at county fairs) to Licensing and Occupations; 301 KAR 1:132 (Sale of live bait); 301 KAR 1:152 (Asian Carp and Scaled Rough Fish Harvest Program); 301 KAR 2:049 (Small game and furbearer hunting and trapping on public areas); 301 KAR 2:225 & E (Dove, wood duck, teal, and other migratory game bird hunting); 405 KAR 8:010 (General provisions for permits); 405 KAR 10:001 & E (Definitions for 405 KAR Chapter 10); 405 KAR 10:015 (General bonding provisions); 405 KAR 10:070 & E (Kentucky reclamation guaranty fund); 405 KAR 10:080 & E (Full-cost bonding); 405 KAR 10:090 & E (Production fees); and 405 KAR 10:201E. (Repeal of 405 KAR 10:200) to Natural Resources and Environment; and 601 KAR 9:200 (Registration and titling of rebuilt or salvage motor vehicle) to Transportation.
C. From Senator Paul Hornback and Representative Tom McKee, Co-Chairs of the Interim Joint Committee on Agriculture: Memorandum requesting authorization and approval of the following subcommittee membership reassignments: Rep. James Kay, Rep. Lynn Bechler, and Rep. Derrick Graham from the Rural Issues Subcommittee to the Horse Farming Subcommittee, and Rep. Richard Heath, Rep. Jonathon Shell, and Rep. John Short from the Horse Farming Subcommittee to the Rural Issues Subcommittee.
D. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum authorizing and appointing Representative Fitz Steele to the Interim Joint Committee on Appropriations and Revenue and as Co-Chair (and member) of the Budget Review Subcommittee on Economic Development and Tourism, Natural Resources and Environmental Protection of the Interim Joint Committee on Appropriations and Revenue.
E. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum removing of Senator Julie Denton as a member of the Interim Joint Committee on Economic Development and Tourism and its subcommittee and the Interim Joint Committee on Labor and Industry, and appointing Senator Carroll Gibson to the Interim Joint Committee on Economic Development and Tourism and its subcommittee and the Interim Joint Committee on Labor and Industry.
F. From Senator Joe Bowen and Representative Steve Riggs, Co-Chairs of the Interim Joint Committee on Local Government: Memorandum requesting approval to meet on November 20, rather than the regularly scheduled meeting date of November 28. There are no apparent conflicts
G. From Senate President Robert Stivers and House Speaker Gregory D. Stumbo: Memorandum authorizing and appointing membership to the Public Pension Oversight Board.
H. From Senator Whitney Westerfield and Representative John Tilley, Co-Chairs of the Juvenile Code Task Force: Memorandum requesting approval to meet outside the interim on December 11. There are no apparent conflicts.
I. From Senator Bob Leeper and Representative Rick Rand, Co-Chairs of the Interim Joint Committee on Appropriations and Revenue: Memorandum requesting approval to meet outside the interim on December 19. There are no apparent conflicts.
J. From Senator Julie Denton and Representative Tom Burch, Co-Chairs of the Interim Joint Committee on Health and Welfare: Memorandum requesting approval to meet outside the interim on December 18. There are no apparent conflicts.
Communications
1. From the Office of the Attorney General: Constitutional Challenge Report for the month August 2013.
2. From the Finance and Administration Cabinet: Monthly Investment Income Report for the month of September 2013:
3. From the Cabinet for Economic Development, Office of Compliance and Administrative Services: Loan data sheets for each loan approved as of the quarter ending September 30, 2013.
4. From the Cabinet for Health and Family Services: Report of the Department for Community Based Services Tuition Waiver Program for Youth for the reporting period September 2012-August 2013.
5. From the Cabinet for Health and Family Services: SWIFT Adoption Teams Report for the second quarter of 2013.
6. From the Kentucky Personnel Cabinet: FY 13 Annual Report.
7. From the Public Protection Cabinet, Department of Insurance: FY 13 Kentucky Long-Term Care Partnership Program Annual Report.
8. From the Department of Health and Family Services, Department for Community Based Services: FY 12 Elder Abuse Annual Report.
9. From the Cabinet for Health and Family Services: FY 13 Report of the Operations and Activities of the Cabinet for Health and Family Services Related to Health Data Collection for Hospital Inpatient Discharge and Outpatient Services.
10. From the Kentucky Department of Fish and Wildlife Resources: The Status of Hunting Land Access in Kentucky.
11. From the Education and Workforce Development Cabinet: Unemployment Insurance Report for the third quarter of 2013.
12. From the Personnel Cabinet: Personnel Cabinet Quarterly Report as of September 30, 2013.
13. From the Personnel Cabinet: 2013 Annual Report from the Group Health Insurance Board.
14. From Kentucky Employers’ Mutual Insurance Authority: Statement of Assets, Liabilities, and Policyholder Equity; Statement of Income; and State of Solvency as of June 30, 2013.
15. From Kentucky Employers’ Mutual Insurance Authority: 2014 Annual Budget.
16. From the University of Kentucky: FY 13 Kentucky Interagency Groundwater Monitoring Network Annual Report.
17. From the Labor Cabinet, Division of Workers’ Compensation Funds: Report for Kentucky Coal Workers’ Pneumoconiosis Fund, Quarter Ending September 30, 2013.
18. From Kentucky Higher Education Assistance Authority: FY 13 Annual Actuarial Valuation of the Prepaid Tuition Trust Fund for Kentucky’s Affordable Prepaid Tuition.
19. From the Cabinet for Economic Development, Office of Commercialization and Innovation, and the Kentucky Science and Technology Corporation: FY 13 Annual Report of the Kentucky New Energy Ventures Fund.
20. From the Auditor of Public Accounts: FYS 12-13 Report of the Audit of the Kentucky Lottery Corporation.
21. From the Auditor of Public Accounts: FY 13 Report of the Audit of the Kentucky River Authority.
22. From the Auditor of Public Accounts: FYS 12-13 Report of the Audit of the Examination of the Lease Law Compliance.
23. From the Public Protection Cabinet, Department of Insurance: October 2013 Biennial Report on Impact of Mental Health Parity on Health Insurance Cost in Kentucky.
24. From the Department of Military Affairs, Adjutant General Edward W. Tonini: Strategic Plan FY 2014-2018.
25. From the Energy and Environment Cabinet: FY 13 Annual Report from the Center for Renewable Energy Research and Environmental Stewardship.
26. From the Cabinet for Economic Development: FY 13 Annual Report of the Kentucky Cabinet for Economic Development, Office of Entrepreneurship.
27. From the Cabinet for Economic Development: FY 13 Annual Report of the Bluegrass State Skills Corporation.
28. From the Cabinet for Economic Development: Incentives for Energy Independence Act Annual Report, October 2013.
29. From the Cabinet for Economic Development: FY 13 Annual Report of the Kentucky Investment Fund Act (KIFA).
30. From the Cabinet for Economic Development: FY 13 Annual Report of the Kentucky Enterprise Initiative Act.
31. From the Cabinet for Health and Family Services: 2012 Kentucky Colon Cancer Screen Advisory Committee Annual Report.
32. From the Auditor of Public Accounts: Examination of Certain Policies, Procedures, Controls, and Financial Activity of the Martin County School District.
33. From the University of Kentucky, College of Agriculture: Kentucky Tobacco Research and Development Center, Quarterly Report for the period July 1 through September 30, 2013.
The next order of business was discussion of a performance audit of the LRC. It was previously agreed by the President and Speaker that there would be a presentations NCSL and Hanna Resources Group. The presentations were made to allow members to hear the proposals, discuss them, and come back for a decision at the December meeting.
Senator Stivers advised the Commission that the Council on State of Governments had been contacted but opted not to submit a proposal.
Hanna Resource Group representatives made the first presentation. Lyle Hanna, president of the Hanna Resource Group (HRG), gave a background of his company. Hanna Resource Group is based in Lexington, Kentucky, and does human resource and organizational-related work around Kentucky and throughout the United States. He introduced Linda Haft.
Ms. Haft said she is Director of Human Capital Services and has been with HRG since the beginning of this year.
Mr. Hanna said he would start the study by identifying risks and then reducing them. HRG would perform an HR assessment, which takes six to eight weeks. He knew LRC had a sexual harassment challenge, compensation and classification issues, and some role clarity, particularly around the partisan and non-partisan employees. HRG knows that the policies and procedures have not been updated in many years, and that there are lots of holes.
Ms. Haft said HRG is thorough and would ask to see as many documents as possible within the organization. This would include randomly selected employee files, policies and procedures, employee handbooks, and those kinds of things. HRG would spend three to four days on site talking to selected individuals, and would prepare a summary statement. HRG would highlight priorities that need to be worked on soon, and then would focus on other items needing to be updated.
Ms. Haft directed members to a page on the handout that had a sampling of the things HRG would review and discussed several priority items.
Mr. Hanna said HRG was prepared to begin immediately, but would probably not be able to finish before session. At the end of the evaluation, LRC would be given a score card indicating things to be done, things that ought to be done, and then other things that would make LRC more efficient and effective. He said HRG could complete the study for $15,000.
Mr. Hanna directed the Commission to page nine of the handout and discussed some things that need to be changed. He said a compensation study had not been done in many years, job descriptions needed to be updated, and basic management training was needed for EEOC and Kentucky regulations.
Mr. Hanna discussed the Fair Labor Standards Act. He also said HRG was qualified to recruit and would help find a new director.
Mr. Hanna asked the Commission how it envisioned LRC’s future. He thought the members should be proud of LRC and want it to attract great people.
Senator Stivers asked if anyone had questions and recognized Representative Stumbo.
Representative Stumbo said that he assumed these types of studies are labor intensive, and he hoped HRG would schedule time with employees. He said this could be difficult during a session, which might make some staff unavailable. Representative Stumbo expressed his appreciation to Mr. Hanna.
Senator Thayer pointed out that LRC is not covered by the Fair Labor Standards Act. Mr. Hanna said he was aware there were some things that would not apply. Senator Thayer said that it would not need to be a part of a study.
Senator Stivers asked if there were any more questions. Seeing none, he thanked Mr. Hanna and Ms. Haft for their presentation, and he asked the NCSL representatives proceed.
Brian Weberg, Director of the Legislative Management Program at the National Conference of State Legislatures (NCSL), and Karl Kurtz, Director of the Trust for Representative Democracy at NCSL, testified. Mr. Weberg said this is his 41st year working in the area of strengthening and improving legislatures around the country and different parts of the world, and he said he looked forward to an opportunity to work with LRC to improve an already strong legislative staff organization.
Mr. Weberg said he and Mr. Kurtz were at LRC a few weeks prior and spoke with many staff and legislators. Based on those conversations and their experience, they developed a menu of ideas about how NCSL might be able to assist LRC.
He said NCSL is about strong legislatures and knows that strong staff means strong legislatures. Mr. Weberg said the first part of the proposal was a performance audit or performance review of the legislative staff of LRC. The map he handed out indicated the states in which NCSL had performed similar projects. The second part would be NCSL’s assistance with hiring and recruitment for a new director. The last part would involved compensation and classification. Members have indicated that that is an area where LRC probably needs some assistance to develop a more structured compensation and classification system. NCSL has done those kinds of projects in about eighteen (18) states, and has returned many times to update those states.
Mr. Weberg said NCSL would spend a week with LRC interviewing broad cross-section of staff and members to get opinions about what needs to be done and get an idea of the strengths and opportunities among staff operations. In addition to those structured interviews, NCSL would also survey all legislators to get opinions about service. NCSL would survey all staff to get their opinions on various issues.
NCSL would then look at the documentation, personnel manuals, management practices, compensation practices and measure them against benchmarks in the field. Based on that assessment, NCSL would develop recommendations. Mr. Weberg stressed that throughout this process, NCSL would consult with leadership and senior staff and constantly provide updates on progress.
Mr. Weberg said the second piece of the proposal would be to assist LRC in the recruitment and hiring process for a new Executive Director.
Mr. Kurtz directed the members to page seven of the proposal to a description of services that NCSL would provide at no cost, as part of LRC’s membership in NCSL. NCSL would help write a job description for a new Executive Director or edit and review a draft that LRC might prepare, and then help market the position. NCSL staff travel to Kentucky would be the only extra cost associated with this.
Mr. Weberg said the final piece of the proposal is the compensation and classification option. This would be a very intensive study conducted at LRC to help develop a more structured pay plan. Although it is intensive, he believes it is very beneficial to any organization. Mr. Weberg said NCSL would be look for two things: to create a system that promotes internal equity among all of LRC’s employees, so that here is equal pay for equal value; and to build a system that promotes competitiveness with this particular market place. During this process, LRC would analyze job content and ask all employees complete a detailed survey describing their jobs. NCSL would follow the survey with interviews of staff in the kinds of positions that are unique and specialized. NCSL would compare data with other state legislatures about those kinds of job titles.
Mr. Weberg discussed the cost to LRC. The budget was in the handout, and it indicated that NCSL would essentially split the costs with LRC. The performance review is about an $82,000 project, of which LRC would pay $46,000. NCSL was asking LRC to pay half of the salaries of NCSL staff involved with the study, and all of the staff travel. The formula was the same for the other two options and is the standard way NCSL gives estimates for its studies. LRC’s dues to NCSL explain why NCSL absorbs one half of the cost.
Mr. Weberg said that NCSL is right for this undertaking because it knows legislatures. NCSL can mobilize a lot of comparative data and a network of experts around the country to help work through these projects. NCSL has been doing this for decades.
Senator Stivers thanked NCSL for its presentation and asked for questions.
Representative Clark asked if NCSL could share which states NCSL had worked with that are similar to Kentucky. Mr. Weberg said Tennessee and Arkansas have very similar staff structures, and to some degree, Florida. LRC had performed a recent study in South Dakota, which is much smaller but has a very centralized, nonpartisan structure. Maine is a good example and might be the closest to LRC because of its nonpartisan staff and small caucus staff.
Representative Adkins asked about the time period was to finish the Maine study. Mr. Weberg said he thought it was about six months.
Representative Adkins asked about Tennessee. Mr. Weberg said he did not participate in that study, but he thought it was a four to five month project.
Senator Stivers asked about the cost. He said he understands that whatever the cost is, because of LRC’s membership with NCSL, that would be borne equally between the two groups. He wanted to clarify that option one did not include that which is option two, and option two did not include what is option three. Mr. Weberg said that Senator Stivers was correct. The options are three distinct and separate undertakings. He said the cumulative cost to LRC of all three options is about $90,000.
Mr. Kurtz said that part two of the director selection could actually go on simultaneously with part one, and could be absorbed into most of it. He said there might be a small additional cost, if any.
Senator Stine asked if there was an option where NCSL could simply do an analysis that would compare the best choice of the various ways that things are handled in other states. She asked if that was included in one of these items.
Mr. Weberg said that could be done. He said NCSL has a set of benchmarks and best practices and could provide LRC with those, and then LRC could make its own judgments. Senator Stine asked about that cost, and Mr. Weberg said there might not be any cost associated with that.
Senator Stine then asked, theoretically, for NCSL to do an in-depth study and compare that to what is done elsewhere. Mr. Weberg said that, if NCSL does a performance review, it will select a group of state legislatures, which will present a fair amount of comparative data.
Representative Thompson asked Mr. Weberg and Mr. Kurtz if they personally would be involved in the study. Mr. Weberg said they would be the lead staff on the project and they would have two or three other senior staff from NCSL assist them.
Representative Thompson asked if the other members of the team only concentrate on these types of audits and perform this kind of work or whether they have other duties within NCSL. Mr. Weberg stated that they all have other duties but are all very experienced staff. Natalie O’Donnell Wood is one of the senior staff with NCSL’s ethics center, and she trains throughout the country. Todd Haggerty is a member of the fiscal affairs project, and is a specialist in budget and budget staff and fiscal operations. Mr. Kurtz said this team would assist with part one or the performance review. The salary and classification project might be a different team of people, based on what is learned in part one and the availability of staff. He Mr. Weberg would be involved in that, but they might not be the lead staff in the salary and classification.
Representative Overly stated that she would like to have a little more clarification of the performance review. She understands NCSL wants to interview members and staff, and presumably tell them how LRC performs. She said she does not have a problem with that aspect of LRC, and that LRC has exceptional staff, both partisan and nonpartisan, staffing committees and suites. She said she does not want to pay up to $100,000 for information that she feels LRC has a good handle on. She feels LRC’s problem is that it has a human resources system that is antiquated and broken. She would like to make sure that state resources are spent on the real problem. She asked if she was misunderstanding.
Mr. Weberg said he did not think she was misunderstanding. The interviews are performed to make sure the study is on target and hitting the most important issues. Using that information, NCSL can focus on issues like human resources.
Senator Thayer followed up on Representative Overly’s question and asked Mr. Weberg to clarify the menu in the presentation document. He asked if LRC had to accept the entire proposal. Mr. Weberg said that was not the case. He said this was a draft and standard procedure to begin the conversation. The end result might be slightly different than the original proposal. The document was for the basis of discussion to give LRC some ideas of the scope of NCSL’s skills, and where it thinks LRC needs to be headed. NCSL would listen to and be responsive to what LRC wants.
Senator Thayer stated that he has a lot of confidence in NCSL. What he likes about NCSL is its legislative experience; there will not be a learning curve in understanding how LRC operates. He said both presentations were good, and he hopes everyone will take the time to review them. He said there are problems at LRC that need to be corrected, and having an outside, nonpartisan expert that has experience dealing with legislative bodies in other states over the last several decades would benefit LRC.
Representative Stumbo asked how many audits NCSL has conducted in the past ten (10) years. Mr. Weberg said, recognizing that there was a lull during the recession, NCSL has completed ten (10) to fifteen (15) in the last decade.
Representative Stumbo said the Tennessee study was many years ago. Mr. Weberg concurred, and said the most recent was the South Dakota study. He said there were compensation studies in Connecticut, but most of them happened prior to the recession.
Senator Stivers asked if NCSL expected a problem getting data from other states. Mr. Weberg said there would not be a problem because NCSL has developed tremendous contacts in all state legislatures.
Sen. Rhoads asked if the total cost would be the combination of the three. Mr. Weberg said this was correct.
Senator Stivers thanked NCSL and called for the next order of business, which was legislative districts and the constituent services. He asked Ms. Seiler to explain the concerns and problems that have been brought to her attention concerning the districts and constituent services and the maps.
Senator Stivers welcomed Ms. Seiler to her first LRC meeting, and expressed his appreciation to her stepping up to take the position as the interim LRC Director.
Ms. Seiler stated that the maps issue is one of the issues that was being discussed before she started twenty-four (24) days ago. The issue relates to the new redistricting maps and how those maps will be utilized within the LRC for different services that LRC provides. LRC staff needs to update the website and print a booklet of legislators with district numbers, so she needs direction from the Commission on those maps and whether to use the new maps or old ones. She stressed that there are many different services within LRC that are impacted by the use of these maps.
Representative Clark said he thinks the simplest way is to put the maps as they were 2002, and the proposed maps for 2014.
Senator Thayer said he thinks using the old maps, which have been ruled unconstitutional by courts, would be confusing to the 4.3 million people who live in Kentucky and are represented by the one hundred thirty-eight (138) members of the legislature. He said there are two special elections in December that are going to be conducted under the new lines. He said they should have begun dealing with constituent communications under the new maps after Governor Beshear signed the new law on the last day of the special session.
Senator Thayer moved that LRC conform all internal functions, including the legislative district maps, to the recently enacted redistricting legislation and provide legislators with green slips and all other constituent communications from their new legislative districts as passed during the special session in August. Senator Seum seconded the motion.
Representative Stumbo asked Senator Thayer to offer an explanation of what a constituent is under Senator Thayer’s motion. He asked if that was the person who voted for him or had the chance to vote for him, or one of his opponents, or whether it was someone else. Senator Thayer stated that a constituent would be someone who lives in the districts that were passed by the General Assembly in August.
Representative Stumbo said the bill that passed used the words, “shall be effective for all elections held after the date of the enactment of this Act.” He expressed concern that Senator Thayer is really asking the LRC to perhaps use state funds to reach out to potential constituents who would reside in a district in the next election cycle. He said they all know that they can communicate with the constituents who elected them.
Representative Stumbo asked Senator Thayer if is proper to reach out to people who did not elect legislators in their prior election. He said this is all confusing, and he thinks a lot of the confusion is about the so called green slips that legislators get. He said that the administrative way is to allow legislators to contact the people who voted for them, but he thinks there might be a problem with potential constituents. He said he believes that, because this is political in nature, they are prohibited from spending state money to advance a legislator’s political ambitions for the next office.
Senator Stivers responded by saying he thinks legislators’ districts are defined more by the district number, and as they have seen in the past, such as with the districts of Senator Mongiardo and Representative Ackerson, who were moved to districts and counties. If these elections go forward, and he believes they will in December, under Representative Stumbo’s scenario, there would be parts of Fayette County that would have two Senators and parts of Fayette County that would have no Senator. He said they should use the new maps, and thus nobody would be lacking of representation.
Senator Stivers mentioned that there was an Attorney General’s Opinion to that same effect that stated, in 1982, the people would be of the new district in which he or she is placed following the effective date of the redistricting act. This was issued by then-Attorney General and now Governor Steve Beshear. Senator Stivers said he thinks that has been the law and the consideration of the courts. This interpretation would prevent problems that could occur in December of this year, when there will be people who would be basically taken away or taken out of having any representation or having duel representation.
Senator Thayer responded by saying that the Senate did not move any numbers around, so this is not as much of an issue as it is in the House. He said, for example, Representative Jonathon Shell lives in Central Kentucky, but his district number has been moved to Jefferson County. Representative Shell has told him that he is working to serve those constituents in Jefferson County, and he probably would like those green slips, but he is not going to run in that district. Senator Thayer said his guess is that Representative Shell is going to file to run in the district in which he resides, which is a different number. He said Representative Shell would not be doing anything to further his political career, but he is serving the constituents that the House map adopted by the General Assembly requires him to do. Senator Thayer said he does not see any problem spending state resources in making sure they are in contact that with the constituents that this General Assembly voted in a nearly unanimous manner back in August. He thinks it is confusing to the constituents who legislators represent to do anything different.
Representative Stumbo addressed Senator Thayer saying the case of Anggelis v. Land, Ky. 371 SW2d 857, decided by the court in 1963, is exactly on this point. He said it involved a change of the geographic boundaries to the 12th Senatorial district. The court said it clearly established that an elected official cannot be legislated out of office, even though by virtue of the change in a congressional district line, he no longer resides in the district. He said the General Assembly can put him in a number, if it chooses, but he is still elected to the term by the people who elected him. He is not against being able to administratively solve whatever the problem might be. He said they all agree that they need to be in touch with constituents, but Jonathan Shell does not represent the people in that district number, he represents the people who voted him into office. Representative Stumbo said that whoever wins the next election will represent those people in the new districts, but the old districts are the districts they were elected to, and nobody can take that away. He said he did not want to be accused of violating an ethical standard that they are not meaning to violate. He agrees with the suggestion that Representative Clark made to administratively put up the two maps. He does not see anything wrong with that because this is what the district is now. This is the district that will be selecting its Representatives and Senators in the next election cycle.
Senator Thayer asked what would happen if, in the hypothetical case of Representative Shell, he were appointed to a state job, and the seat were vacant. There would be a special election held where his House district was moved to in Louisville. So, there would be a special election in Jefferson County for a new Representative, and those people who elected Representative Shell would then be unrepresented until January of 2015. Senator Thayer said he was sticking by his motion, but they could make it voluntary if someone wanted to continue to receive the green slips from the district they were elected. He said they can request that they get every green slip statewide if they want. He thinks for the sake of the people of Kentucky, and legislators’ ability to serve them, that LRC should make available to the members the green slips in constituent communications from the districts that were voted on by this body and signed into law by the Governor in August.
Senator Smith said the 84th District was Perry and Leslie County when he was elected. In 2001, a year later, he was redistricted. He picked up Perry, Leslie, and Harlan counties, and there was no issue of any trouble at that time. All of his green slips came to him from the people of Harlan County. A lot of people do not understand it, but they know when legislators or staff do not return their phone calls. He said that any cost for green slips is minimal because of the importance of the calls. People should be able to contact their legislators. When he learned about his new district, he started receiving the green slips and began scheduling meetings in the new territory. With this new transition, he is losing Harlan County picking up new counties, but he is working with the member who has picked up that county to make sure that they know what he was working on. He is helping that member meet the key players. The only thing that matters is that the green slips get answered. Senator Smith added that the members have always worked together on these transitions, and he suspects that 95 percent of them would continue to do that.
Representative Stumbo said the court did not declare the districts unconstitutional. If it did, it would have thrown out the elections and would have ordered new ones. The court indicated that, going forward, there could not be new elections in old districts, which stopped short of saying that the whole process was unconstitutional. Representative Stumbo agreed that Senator Thayer was right in that there could be a situation with a special district, and that is the fallacy of the court decision.
Representative Stumbo gave the scenario of Representative Collins. He said Representative Collins represents Martin County, and the calls that come in have his name on them for that district. If Representative Hall, who will take Martin County under the new plan, would like to see those green slips, Representative Stumbo does not have a problem with him that. His judgment is that Representative Hall would decide whether he should call those people back to tell them he will be running in their districts and would like to help them. The question is whether he does that under state time or personal time. He must decide, if he gets correspondence from all the teachers in Martin County, whether he responds to them. If it is something that is coming up in this session, he will have to use his own judgment.
Representative Stumbo says he has no problem with that type of thing, and he trusts that the legislators can share that information and decide whether they want to use their private cell phone or their state phone to return those calls, but he thinks they are going down a slippery slope when they say, “this is your new district even though you have not been elected to it.” Keith Hall was never elected by the people in Martin County to represent them, but Representative Stumbo said he does not mind Representative Hall seeing what their concerns are. He can decide how he wants to address that. Representative Hall may want to work with Representative Collins. There may be an easy administrative fix, rather than saying “these are the new districts.” He said his fear in saying that is that it sounds like an official act, and it invites a court challenge by somebody who wants to say that Representative Adkins does not live in a district that is a newly created district and that there must be a special election. This would result in a return to court and the spending of state money and wasting state resources.
Representative Clark suggested to Senator Thayer that, instead of making a decision today, there could be a motion that the President of the Senate and the Speaker of the House meet with the Interim LRC Director to address each situation and bring it back to the Commission for the December meeting for action at that time. He said he is concerned about taking any kind of vote when the issue is still in court.
Senator Rhoads agreed and said he was getting ready to make that suggestion, because they are dealing with different administrative issues--phone calls and how they interpret Attorney General Opinions and court decisions--and he would not want them to guess how this should be resolved at this time. He said there is something to be said on both sides, and he believes they are dealing with essentially an administrative issue that can be resolved between the leaders. He said they do not need to make this hard judgment on which interpretation is right or wrong, and that they are just trying to work out some administrative issues and serve their constituents. He knows those constituents who are in their old districts are going to continue to think they are still being represented by that Senator or that House member, so it is confusing. He thinks Representative Clark’s suggestion is a good one, and he hopes they proceed that way.
Senator Thayer says he is afraid they are trying to re-create the wheel. He has been informed that what was proposed in his motion was the way LRC has always done it. Every ten years, after redistricting, green slips and constituent communications are made available to the members of the General Assembly. He said what has been occurring lately is that some House members have not been allowed to received green slips from the constituents in their new districts, and this has been occurring at the direction of House leadership. Senator Thayer said that has never been done before, and he does not understand why it is difficult to just give the green slips and communications to the members in the districts that were signed into law in August.
Representative Stumbo that House leadership never told anyone not to give the green slips to someone who wanted them. He said he assumes that if somebody wants the green slips from Martin County, that person is entitled to them. He said that his point is that, if Martin County teachers or state employees send a big petition, and it goes to Hubie Collins and Keith Hall, there may be concern about the expenditure of state funds to communicate with people who are really not constituents of Keith Hall. It may be that, if he wants to communicate with them, he must go to his campaign fund and write them a letter saying, “I’ve looked at your concerns. I’ve worked with Representative Collins, and I’m going to vote….” Representative Stumbo said that is the whole issue for them. He said he has never seen it done that way. He said he does not know the administrative procedure, but he has never seen it done where state resources are used as campaign funds. He said if that was the case, then if he wanted to run for another statewide office, he could get all of the green slips from all of the communications and then respond through LRC to all of the constituents who wrote everybody.
Senator Stivers said that, if it is a legislator’s intent to run for a statewide office, or to run in something else, he thinks it is inappropriate to use state funds for that purpose. He said they have set a new tone in reaching out. However, Governor Beshear actually wrote the Attorney General opinion on this issue, and he cites the Anggelis case, which says the answer to the question is, “legislators basically represent all of the people of the state.” If it is under the auspices of an electoral process, then individuals have problems, but he does not think it is necessary to seek another Attorney General’s opinion because that would require the asking for a new Attorney General’s Opinion if someone does not like a previous opinion. He said the Attorney General opinion already says the new districts are the places that are of the effective date of the Redistricting Act. He thus believes Senator Thayer’s motion is appropriate, that they conform to that which is contained within the Anggelis case, and the Opinion from the then-Attorney General, and that is what they have done through redistricting. He said he has not been here as long as some others, but he has experienced similar issues after redistricting, and the interpretation from Anggelis and the Attorney General opinion stops any confusion there may be.
Senator Thayer said he has been here almost 11 years, and he has received green slips from people outside of his district because they may have contacted him because he is a member of a regional caucus. Everyone in the Northern Kentucky Caucus might receive a green slip. Or, he may get a green slip because he is a member of the Licensing and Occupations Committee, so he may get green slips from Paducah and Hopkinsville. He has at times responded to theme, and nobody told him that wrong. He said he thinks members may contact anybody in Kentucky, and that it is just a matter of fairness that members of the House who have not had access to their new constituents should in fact have that access. Senator Thayer said that Senator Palmer should have access to the 40,000 people in Fayette County who are now in his district. He also thinks Senator Rhoads should have the green slips and constituent communications from people who live in Butler County. He said this is the right thing to do. He said he is not a lawyer and has not read all of the Supreme Court cases, but just as a matter of fairness, and the right thing to do, he thinks this is what their constituents would want them to do.
Representative Overly said she will not weigh in with yet another legal opinion, but in listening to the conversation back and forth, she believes there is a misunderstanding about what instructions have been given to LRC to distribute green slips. She said what she hears Senator Thayer saying is that he has heard that the House has told LRC staff not to distribute green slips in some manner, and she would say that that is not accurate from the conversation that is going on where she is. She said nobody is saying that those instructions have been given. She said, like Representative Clark, she is concerned that if they make a decision or take a vote, that it could have legal implications. She thinks the agency is involved in enough litigation without inviting more, and if this is simply a matter of an administrative clarification, that Senator Thayer has already stated that any member is entitled to any green slip that they would want to request. Agreeing with Senator Thayer, she feels Representative Clark’s suggestion is a good one, and that is that the President and the Speaker sit down with the Interim Director and work through this very simple administrative issue, and that they not take action that could be deemed to have legal implication, particularly where they have House districts that now have overlap.
Representative Overly said it is clear they are in a year of flux, and it happens every ten 10 years, and it will all be resolved by next year, but she also thinks they can work together to get through the next few months on something as simple as green slip distribution.
Senator Stine said she also thinks that makes great sense, and this vote is exactly that, a clarification to make it clear to LRC staff what they are supposed to do. She said that is their job as legislators to advise LRC staff, and she called the question.
Senator Stivers called for the matter before the Commission, the motion by Senator Thayer and second. On roll call, the motion failed.
Senator Palmer moved that they direct the LRC Director to send the appropriate green slips to the appropriate legislators and that they resolve the map issue by giving the President and the Speaker the ability to decide how they are going to move forward with it. He said he cannot believe they have spent 45 minutes talking about it.
Senator Thayer said he thinks that was the motion he made.
Senator Palmer responded that he likes to have a little exercise and walk up and down the steps, but he is going to have to have more than the time between 1:00 and 1:30 to decide the conflicts between the President and the Speaker. He said he is happy to do it, and he likes to be involved in it, but they are going to have to have more time to fix some of these problems. He said it seems like a very simple administrative fix, but he trusts his colleague, who is an attorney, who says that this may have unintended consequences. He moved that they direct Marcia Seiler to send the green slips to the appropriate legislator under the districts as passed in August and leave the website as is, until the Speaker and the President determine a solution to that issue.
Representative Clark said he thinks what Senator Palmer is saying is that the only green slips he would get would be from his new district. He said he lost 9,000 voters that he goes to church with, sees at the store, and they are going ask why he did not get back with them. He said the motion should be to allow the President and the Speaker to work with the Interim Director to solve it, and then come back to the full LRC leadership. He said Senator Palmer’s motion is limiting them to what they can do.
Senator Stivers said they now have a motion from Senator Palmer and a second by Senator Smith, but under the Speaker’s interpretation, nobody should write their new constituents. He does not think that is necessarily accurate since there is an Attorney General’s Opinion that says differently. He does not think another motion is necessary because they already have the authority to discuss the issue with the Interim Director.
Representative Adkins asked if he is correct that, if he wants to call the Director of LRC and ask her to send him green slips from whatever county it may be, that those green slips would come to his office. He said a lot of times people call and ask that messages go to all members. He said he has received these kinds of communications for 26 years. He further stated that if he asks for green slips from some other county, he assumes that he would received them.
Anita Muckelroy said that LRC would forward a member any green slips. She said that most of the time the green slips are intended for specific legislators.
Representative Adkins said that it seems that any problem has been solved. He said that that the easiest fix is for individual legislators to specify the counties and green slips that they want.
Anita Muckelroy said the problem that could arise is that, if a legislator wants all green slips from Lewis County, the person who represents Lewis County might not receive them or might duplicate efforts.
Representative Adkins said that if they requested that they wanted the green slips, then he would assume that they would get the green slips. He said it is important to him because, for instance, he is losing Lawrence County, but he wants to continue to get green slips so he can communicate with those constituents. He wants to do this because he was elected to represent them through next year. If the legislator that is taking Lawrence County also would like to have them, that legislator should be entitled to them.
Senator Thayer told Representative Overly that she is right. He said he has heard from numerous members of the House Minority that they have been refused access to green slips from their new districts that were passed and signed into law by the Governor in August. He said he has heard it multiple times, and that is what he is trying to do—to make sure that immediately, all 138 members of this General Assembly have access to the constituents in the districts that were passed and signed by law by the Governor in August. He said if she wants green slips from her constituents in her district that elected her in the last election, then she can ask for them. He said he thought that was the motion that he had made that was previously defeated.
Senator Stivers specifically asked Anita Muckelroy what questions and problems have been caused by the lack of official direction. Anita Muckelroy stated that she has not been given official direction, and she was not aware of any problems from a lack of official direction.
Marcia Seiler said the problem is more about going forward and preparation for session work. She was told to use the old maps for the House and the new maps for the Senate. The issue is how this would impact various services. She said the members have devoted a lot of time talking about the green slips, but there are multiple services that the agency provides involving the maps they use, and she is concerned with all of these services.
She said issue involves the road plan, the green slips, and the website where LRC indicates a member’s district and county. All of these areas fall under the issue being discussed. Other related services include the printout of the booklet with members’ names, districts, and counties they represent. These are the types of things that staff must get ready for session. She said the green slips are just one of the multiple LRC services impacted by the decision of which maps to use. She understands that they can put all four maps online, the new and the old for both the House and the Senate, but the problem is which ones to use to connect to the services that LRC provides.
Ms. Seiler stated that, whether it is something the members want to discuss further or want to vote on, she needs specific direction. LRC needs to start printing booklets and updating the website.
Senator Smith said he would gladly, as a gesture of good faith, give anyone his green slips.
Senator Thayer mentioned that Deputy Director Jenkins had given him useful information, and if it is appropriate, he requested that Senator Stivers would call on Mr. Jenkins to talk about the technology involved in getting ready for the next session.
Robert Jenkins said, because Senator Thayer was asking about the other services that would potentially be affected besides green slips, the services include things such as “Who’s My Legislator,” which is tied into data that is pulled out of a database linked to certain counties. Mr. Jenkins said if someone calls LRC the day before the next election and asks for the name of their legislators, staff would then need to ask that person which maps the person was talking about, the 2002 or the 2013 maps. He said after the special elections in December, LRC would be overlaying maps from the new election, the 2013 maps, onto the 2002 maps. He said the data from these different sources does not really mix. People would potentially be represented by multiple legislators. LRC staff needs to be able to tell people who their legislators are.
Mr. Jenkins said that, when legislators ask for information by district on the road plans, LRC needs to know whether to use the 2002 or 2013 maps. He said he does not know of a way to plug in the data for the two special elections in December, overlay that into the 2002 maps, and then tell people who their legislator is. He said staff needs some additional direction from leadership on how to proceed.
Senator Stivers said that the Speaker mentioned that this will all catch up next year, but Senator Stivers says that is not really accurate. He said Senator Smith will be elected—or whoever his opponent may be—to represent Magoffin County. Senator Stivers said he himself was elected last year to represent Magoffin County, and he will not seek reelection for three more years, so under that scenario, he would still be representing Magoffin County, as well as Senator Smith. He said that is part of the information problem that is created. He asked Mr. Jenkins if that is what he is talking about. Mr. Jenkins replied that he was correct. He further stated that LRC’s GIS employees are able to tell people, based on whichever maps are used, the names of their legislators.
Senator Stivers asked for any further questions or discussions, and mentioned that there is a motion on the table, seconded by Senator Smith.
Representative Stumbo said that he does not know of anyone who had instructed anyone not to give green slips. He asked Ms. Seiler if she was told this. Ms. Seiler said that that was not the issue that came to her. She said the issue that came to her was which maps to use for these various services that LRC provides. The green slips are just one of those services.
Representative Stumbo said he recognizes that the House and Senate are different because the Senate’s terms are staggered. He thinks it might be, given the discussion, that they could get some direction for the next meeting, rather than continue the debate.
Senator Stivers agreed that it would be appropriate, and he asked Senator Palmer to withdraw his motion. Senator Palmer withdrew the motion.
Senator Stivers said the next order of business was an update from the Interim Director, Marcia Seiler.
Marcia Seiler introduced herself and gave a brief history of her background with LRC, where she has worked 15 years. She has been the Director of OEA for ten of those years, and an investigator for OEA before that. Before coming to LRC, she was at the Department of Education.
Ms. Seiler said she was working with great staff to update her, and she has taken every opportunity to meet with all LRC staff and managers, including CSAs and others. Ms. Seiler said she has made it clear that she has open door policy, and she appreciates staff coming to talk to her about anything. She said her main goal in the next two months is to get ready for the 2014 session. She is working with staff to make sure that staffing needs are met, working on hiring and training good session staff, and making sure everyone is working together to get everything ready for session.
She said in the next two weeks she would be holding a roundtable with key process staff who know how the agency runs during session. She will be getting up to speed on that process herself and identifying additional staffing needs or training for those people. She thanked the Commission for having faith in her that she could do the job, and she was looking forward to working with the members.
There being no further business, the meeting was adjourned.