Call to Order and Roll Call
The fourth meeting of the Interim Joint Committee on State Government was held on Wednesday, October 26, 2016, at 1:00 PM, in Room 154 of the Capitol Annex. Senator Joe Bowen, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Joe Bowen, Co-Chair; Representative Brent Yonts, Co-Chair; Senators Julie Raque Adams, Ralph Alvarado, Stan Humphries, Christian McDaniel, Albert Robinson, and Damon Thayer; Representatives, Kevin Bratcher, Leslie Combs, Joseph Fischer, Jim Gooch Jr., Derrick Graham, Kenny Imes, James Kay, Mary Lou Marzian, David Meade, Reginald Meeks, Phil Moffett, Lewis Nicholls, Sannie Overly, Tom Riner, Steven Rudy, Sal Santoro, Kevin Sinnette, Rita Smart, Diane St. Onge, Tommy Turner, Ken Upchurch, and Jim Wayne.
Guests: Chief Justice John D. Minton, Jr. and Katie Shepherd, Kentucky Supreme Court; Senator John Schickel; Brad Montell, Andy Hightower, and Bridget Papalia, Education and Workforce Development Cabinet; and Ashli Watts, Kentucky Chamber of Commerce; Representative Susan Westrom.
LRC Staff: Judy Fritz, Kevin Devlin, Alisha Miller, Karen Powell, Roberta Kiser, and Peggy Sciantarelli.
The minutes of the September 28 meeting were approved without objection, upon motion by Representative Santoro.
Judicial Redistricting
Guest speakers were Chief Justice John D. Minton, Jr., and Katie Shepherd, Chief of Staff, Kentucky Supreme Court, and Senator John Schickel. They discussed judicial redistricting and the Kentucky Judicial Workload Assessment Interim Report that was presented to the legislature in February 2016. The report was compiled by the National Center for State Courts (NCSC), using data from a 2015 comprehensive judicial workload assessment of circuit, family, and district courts of the Commonwealth of Kentucky. (Copies of the study and Chief Justice Minton’s remarks are on file with LRC staff.)
Chief Justice Minton said that judicial redistricting is controversial and challenging. Judicial circuits and districts have remained largely untouched since the passage of the Judicial Article in 1976. There is no question that the Commonwealth has undergone significant changes in caseload and population. The court system has not always kept up with those changes. He asked the legislature to include in the 2014 judicial branch budget bill a directive to undertake a judicial workload assessment for the purpose of eventually formulating a redistricting plan. The Kentucky Court of Justice and the Administrative Office of the Courts contracted with NCSC to help conduct a weighted caseload study.
Unlike redistricting for legislative boundaries, judicial redistricting cannot be accomplished on the basis of population. The process is more difficult because it impacts commonwealth’s attorneys as well as judges. It is the type of caseload—not population—that ultimately determines the workload of trial court judges. For four weeks in the spring of 2015, circuit, family, and district judges used an online program to log their time regarding the handling of cases and taking care of judicial duties outside of court. This was likely the first judicial time study ever conducted in Kentucky. Despite the burden of recording every minute of every workday for a month, 95 percent of judges participated. The results were formulated to determine implied judicial need for each jurisdiction. Using this data, NCSC compiled a time study report that included case weights and measured workloads for each phase of a case and its jurisdiction. The Judicial Time Study was followed up with site visits to courts in several jurisdictions. This initial process took about 18 months and provided critical information regarding weighted caseloads and implied judicial needs. The data was subsequently evaluated by the Kentucky Judicial Workload Assessment Committee (JWAC), comprised of judges from each level of the court system, circuit court clerks, commonwealth’s attorneys, and legislators from throughout the state. Smaller “Delphi” groups of circuit, family, and district judges also reviewed the data for accuracy. The weighted caseload and implied judicial need data was compiled by NCSC into the January 2016 report that was presented to the legislature. The report was thoroughly vetted by the JWAC members and the Supreme Court.
Chief Justice Minton said some jurisdictions are significantly under-judged or over-judged. He cited as an example the family court for Lincoln, Pulaski and Rockcastle Counties, where caseloads are the highest in the state. Data from the time study determined the implied judicial need for that family court is 2.18, which means that the one family court judge in that circuit is doing the work of 2.18 family court judges—a situation that is not sustainable and must be addressed. In other areas of the state there are two judges where the implied judicial need is less than one.
The second phase of the project is to present a comprehensive judicial redistricting plan to the General Assembly in 2017, using the collected data to either redraw circuit and district boundary lines or reallocate judicial resources across the state—or a combination of the two. JWAC members have met three times since May 2016 to discuss and review various redistricting plans. After the last meeting on October 4, the members were asked to vote for one of two plans to be submitted to the Supreme Court. They overwhelmingly voted for what is known as “Plan A,” which the Court will consider in early November.
The plan recommended by JWAC would do the following: make no changes until 2022, when all circuit and district judges are on the ballot; bring family court to all but eight jurisdictions; realign a limited number of boundary lines and reallocate existing resources; combine circuits and districts that are currently different; reduce the number of circuits from 57 to 55; and calculate the appropriate number of judges by using a 1.4 implied judicial need as the cutoff to determine where more than one judge is needed. The plan would not impact every county or jurisdiction or require additional judgeships to be approved and funded. It would not accomplish the goal of statewide family court but would come close.
Chief Justice Minton acknowledged that judges and commonwealth’s attorneys in some legislative districts may be affected by the plan. He encouraged the committee members to keep the big picture in mind, which is a state court system positioned to meet the needs of citizens in every county. He said he looks forward to working with the legislature to agree on a final plan for judicial redistricting in the coming months. The singular goal of redistricting is to ensure that Kentucky’s judicial resources are allocated appropriately. This will require adding resources in jurisdictions with heavy caseloads and reducing resources in jurisdictions with lighter caseloads. The data is based on sound research principles, and best practices were applied when compiling and analyzing the information. The redistricting plan that is ultimately proposed will be solidly rooted in objective research and reflect the input of key stakeholders throughout Kentucky.
Senator Schickel, who introduced judicial redistricting legislation in past legislative sessions, acknowledged that judicial redistricting will be difficult politically. He said he supports the efforts of Chief Justice Minton and is impressed by the NCSC report. It will be easy to allocate additional resources where they are needed; the hard part of the process will be to remove resources from an area. It is important that resources be reallocated properly. The General Assembly should be supportive of the process and be ready to “take some heat” because there will be difficult decisions ahead. Senator Bowen expressed appreciation to Senator Schickel for his role in promoting judicial redistricting.
When asked by Senator Bowen, Chief Justice Minton said he did not know the exact date of the last judicial redistricting, but it was probably at least 40 years before the court system was overhauled in 1976 with passage of the Judicial Article.
When Representative Bratcher asked about legal requirements for redrawing judicial district boundaries, Chief Justice Minton said the one person/one vote principle that governs the size of legislative districts has not been applied generally to judicial redistricting, as referenced in an opinion by former Chief Justice Palmore many years ago. There may be some correlation between population and caseload in an area, but that is not always the case. Areas of light population may have a heavier caseload. It is not a matter of constitutional imbalance but rather the wise use of resources and ensuring that the court of justice as much as possible provides a uniform level of service and delivery of justice across the commonwealth.
Senator Thayer complimented Senator Schickel for his past judicial redistricting legislation, which was a priority of the Senate in the last legislative session. He said the issue will likely be a priority in 2017 and that he is glad to see Chief Justice Minton and Senator Schickel approaching the issue in the same direction. When he asked why the realignment of districts would be delayed until 2022, Chief Justice Minton said that an elected official’s term in office cannot be modified before the term expires, and all circuit and district judgeships will be on the ballot in 2022. In order to avoid disruption in the system as much as possible, that would be the logical turning point for establishing new district boundaries and will likely be the recommended effective date when the redistricting plan is presented. In the meantime, the constitution grants the Chief Justice authority to make temporary changes if necessary. Redistricting will require a lot of adjustments. Commonwealth’s attorneys, who have six-year terms and are on a different election cycle, will also be impacted. They have been involved in discussions throughout the process, and minimal disruption is anticipated for commonwealth’s attorneys.
Responding to Representative St. Onge, Chief Justice Minton confirmed that additional judges would not be required and that no judges would be removed. He said he did not have the numbers with him regarding which districts have excessive caseloads. In districts with more judges than the implied need dictates, judges would perhaps become available for reassignment to areas with greater need. The primary reason for going through the difficult and challenging redistricting process would be to maintain a court system that best serves the commonwealth.
Responding to Representative Yonts, Chief Justice Minton said he did not know where the reduction in circuits would occur. Ms. Shepherd said there would be two fewer circuits, but about 6-8 circuit judges may be reallocated to family courts. The NCSC research study showed that there are too many district and circuit judges but not enough family court judges.
Representative Yonts asked whether the plan would impact the distance citizens travel to reach court. Chief Justice Minton said that because there are courthouses in every county, citizens would still use their local courthouse.
Representative Nicholls said that when he was a judge he served two counties. He asked whether the caseload study had considered judges’ travel time. Chief Justice Minton responded affirmatively. He said there are several multi-courthouse circuits that require significant travel time by judges. Travel was considered important and was a factor in determining judges’ workload.
Representative Graham said he knows that redistricting will be difficult politically. He has been thinking about an approach used in some states—that is, to form a commission that would have direct input in the redistricting process. It could include legislators, commonwealth’s attorneys, members of the judicial branch, and others who work in the legal system. The purpose would be to remove politics from the process while ensuring that the right thing is done for the judicial branch. Chief Justice Minton said he appreciates that thought. He said there is a great emphasis to resist change and leave things as they are. It was felt that it would be easier to accomplish change through use of objective data. The workload study has attempted to do that. There were site visits to courts, and Delphi “think tank” groups were created to look at the data and determine whether the numbers made sense. Subsequently, JWAC, which included stakeholders from across the state, vetted the information, and he is confident that the numbers arrived at are fair.
When asked by Senator Humphries, Chief Justice Minton said he believes the process has included input and good representation from all areas of the state. The far eastern and western areas were expected to be especially impacted by any analysis because they have suffered the greatest population loss of probably any place in the Commonwealth. JWAC included a larger representation from regions that would be impacted the most, which gave them a strong voice in shaping the NCSC report. He said that since he has served as chief justice, there has not been enough money to expand the state court system. He feels a great obligation to more effectively allocate resources and increase the number of family courts. This could not happen with the existing complement of judges.
Senator Humphries, based on concerns he has heard in some of the counties he represents, asked whether the redistricting plan could allow communities to “opt out” if they did not wish to go through the process of having a family court in their counties. Chief Justice Minton said he had not thought about local options for family court as a possibility but that there is an obligation to try to configure any system as much as possible to meet the needs of communities. The primary obligation is to ensure that the citizenry is appropriately serviced and that every citizen in the Commonwealth has equal access to the courts. Answering another question from Senator Humphries, he said that factors such as potential growth and decreases in population were considered when establishing 1.4 implied judicial need as the cutoff for determining the appropriate number of judges.
Representative Overly said that judicial redistricting is desperately needed and that a data driven approach was the fairest way to approach the task. She appreciates the fact that JWAC included members of the legislature and also spoke of her desire that family court will ultimately be available to all Kentuckians. Chief Justice Minton said he hopes there will be sentiment in the General Assembly to make that happen. He noted that Representative Nicholls and Senator Whitney Westerfield had participated in JWAC.
Senator Robinson suggested that the misdemeanor/felony crime classifications should be reexamined; that administrative and staffing changes are needed in the court system; and that the caseload imbalance could be improved through policy change and statutory or administrative regulation amendment. Chief Justice Minton and Senator Robinson agreed that they could meet later to discuss these matters, and Senator Bowen thanked Senator Robinson for his input on the issues.
Senator Bowen asked about the potential for bringing family court to Daviess County, his home county. Chief Justice Minton said the redistricting plan that is proposed would try to accomplish expansion of family court to meet the implied need for family court in as many counties as possible, including Daviess County.
Senator Bowen thanked Chief Justice Minton and Senator Schickel for their testimony and for the work they have done.
Workforce Investment Transparency
Guest speakers were Brad Montell, Deputy Secretary; Bridget Papalia, General Counsel; and Andy Hightower, Senior Policy Advisor - Education and Workforce Development Cabinet; and Ashli Watts, Vice President of Public Affairs, Kentucky Chamber of Commerce.
Ms. Watts said that over the past few years, members of the Kentucky Chamber have expressed growing concern about transparency and accountability relating to the expenditure of public funds for workforce programs. Some of those concerns have focused on the distribution of funds by Kentucky’s area development districts (ADDs). Transparency and accountability are key to ensuring that nearly $175 million of ADD funds are distributed correctly and effectively. Many ADDs do an excellent job handling these public funds, but there are well documented concerns with some of these entities. Passage of legislation to ensure that all ADDs operate properly will not only help restore public trust but also help improve workforce training programs that are urgently needed in Kentucky. She said that in 2016, legislation sponsored by Representative Susan Westrom (introduced as HB 438) passed both the House and Senate but died the last night of session. The Chamber is committed to advocating for this important legislation again in the upcoming session. The issue has been vetted and has support across party lines.
Ms. Watts said the Chamber looks forward to working on this effort with Deputy Secretary Montell, the State Government Committee, leaders of the employer community, the area development districts, workforce training providers, and others to ensure that Kentucky has strong and effective programs that will be made even better with increased transparency and accountability.
Mr. Montell said the Cabinet appreciates the efforts of Ms. Watts and the Chamber and members of the General Assembly for their leadership and efforts in this important issue. The Cabinet has been working diligently to address the concerns and to develop appropriate guidelines for oversight and compliance of ADDs so that they will be able to provide much needed services with the available funding and build strong workforces in Kentucky communities.
He said there was public outcry after then Auditor of Public Accounts Adam Edelen released a scathing examination of one of the state’s ADDs in March 2014. That report found that the ADD engaged in activities that were beyond its statutory authority and/or activities that appeared to create conflicts of interest. The ADD did not report possible criminal violations, violated procurement policies, and did not have internal controls in place to prevent excessive and unnecessary expenditures, including travel and business reimbursement. Significant noncompliance was identified relating to management of federal grants. Bonuses were paid to employees with grant funds. The ADD utilized an outdated accounting system, leading to a lack of internal controls over the system.
The report was not an indictment of all ADDs. The Cabinet appreciates the partnership it shares with the ADDs and acknowledges the vital work they are doing. Many are doing an outstanding job. Since issuance of the Auditor’s report the Cabinet has established an 18-month corrective action plan with the ADD, the local workforce investment board, and the chief local elected officials. As part of that corrective action plan the Office of Employment and Training (OET) conducted outside monitoring and analysis of documentation to determine whether funds were improperly expended or inadequately documented. A final determination was issued by the Cabinet earlier in 2016 that included multiple findings and demanded repayment of approximately $900,000 in funds for which proper documentation could be found. The final determination has been challenged by the ADD and is currently before an administrative hearing officer. The Cabinet has also instituted new drawdown procedures in its interaction with all ADDs across the state. It now requires that all supporting documentation be provided to the Cabinet for review and in advance of any distribution of funds. The Cabinet is in the process of determining what regulatory changes can be made and intends to introduce those changes. Subsequent to issuance of the report, activities of another ADD are now making headlines. It is undeniable that these issues need to be addressed both statutorily and through administrative regulation to safeguard against activities like those in question. The Cabinet joins with the Chamber in calling for increased transparency and will seek statutory language to clarify conflicts of interest between board members, boards, fiscal agents, and service providers. The language should also clarify federal and state procurement expectations and additional reporting measures that will increase accountability. The Cabinet looks forward to working with the State Government Committee and with individual members in the House and Senate to draft the needed legislation.
Senator Bowen said that as society becomes more complex, and as the services provided and their funding become more complex, there is no question that taxpayers are demanding more transparency in government and all its subdivisions.
Representative Yonts asked whether there is any evidence of criminal activity in the investigations that have occurred and, if so, what is being done about it. Ms. Papalia said the Cabinet internally has been looking at whether there have been criminal violations, and questions have been referred to the Office of the Attorney General. At this time she is not able to comment on the investigations. Responding to further questions from Representative Yonts, Ms. Papalia said it is fair to say that investigation of the ADDs is ongoing. However, inappropriate behavior at additional ADDs has not been specifically identified at this point. The Cabinet is continuing to monitor ADDs across the state. A program implemented on July 1, 2016, requires submission in advance of receipts, invoices and reimbursement requests, and the documentation is being closely reviewed by cabinet personnel before funds are distributed.
Representative Yonts said he was told that the largest county in the Barren River had dissolved its connection with the ADD and that some personnel who remained supportive of the ADD were rewarded with trips. Ms. Papalia said that had not been brought to her attention but that she will look into it.
When Representative Smart asked whether outcome data is required of program participants, Ms. Papalia said they are in the process of identifying performance measures for the ADDs, for reporting to the Cabinet on a regular basis. They are currently awaiting federal guidance on how several of the grant funds can be administered under WIOA (Workforce Innovation and Opportunity Act). New regulations were issued earlier in 2016; implementation guidance is expected to be received sometime in November. It should include performance measures required by the federal government, which will be incorporated into those at the state level. Some amount of performance review was previously required under the Workforce Investment Act and WIOA through the monitoring process.
Representative Smart asked Mr. Montell whether his new position in the executive branch will enhance his pension. She said she does not intend this as a personal question but because she knows he has been a champion for transparency in the retirement systems. Mr. Montell said his pension is not being enhanced and that he is glad to explain the reason why. To avoid reciprocity between the two systems, he is postponing receipt of benefits in the legislative plan until age 62. If he began receiving his legislative retirement prior to age 62, the early retirement penalty would reduce his legislative benefit. He said a signed notarized statement is in his personnel file, stating that he will not jointly take retirement from both systems on the same date. This will prevent reciprocity between the two systems. Representative Smart thanked him for the explanation and said she is proud of him. Senator Bowen said he appreciates the good question and the good explanation.
Representative Meeks complimented Mr. Montell for the honest debate and dialogue they had shared as legislators. He went on to say that he was in possession of an October 21 e-mail that states that the OET regional program manager for the northern Kentucky area will be adding the KentuckianaWorks area—which is in Jefferson County—to her area of responsibility. He questioned whether this would be best for governing and regulating activity in Jefferson County. [Note: KentuckianaWorks, an agency of Louisville Metro Government, is the Workforce Development Board for the Greater Louisville region consisting of Jefferson, Bullitt, Henry, Oldham, Spencer, Shelby and Trimble counties. Funding is primarily provided by the U.S. Department of Labor and the WIOA, through the Kentucky Education and Workforce Development Cabinet and Louisville Metro Government.]
Mr. Hightower said that due to the retirement of a state employee and the hiring freeze put in place in early 2015 due to budgetary issues remaining from the previous administration, responsibilities are being shared in order to provide the best service. The operators of KentuckianaWorks will continue to provide direction and choose policy. Control will remain local. In accordance with the Personnel Cabinet organizational chart, duties are being shared in order to provide the right organizational leadership while complying with the hiring freeze. The Cabinet seeks to strengthen local control across the workforce system in Kentucky. To the extent possible, control is in the hands of the Workforce Development Board, which consists of local citizens and local business and labor leaders. Representative Meeks said his concern relates to local management and local supervision. He would appreciate it if Mr. Hightower would provide more information about this matter and share the information with the entire Jefferson County delegation. Mr. Hightower said he would be happy to.
Senator Raque Adams said, as a member of the Jefferson County delegation, she is not aware of the e-mail and would like to receive some clarity on the matter. She and Representative Meeks agreed to meet later to discuss it in person.
When Representative Moffett asked about the amount of funding for the ADDs, Mr. Hightower said approximately $23-$26 million in federal WIOA funds comes through the Cabinet to its local partners. Local partners are not all ADDs.
Senator Thayer defended the role of northern Kentucky as a strong economic engine in the Commonwealth. He said that repeal of legislative/executive retirement reciprocity has been a priority of the Senate for a number of years. He complimented Mr. Montell for his stance on reciprocity and congratulated him on his new position in the executive branch.
Representative Graham also congratulated Mr. Montell and said he had served his constituents well as a legislator.
Senator Bowen reminded the committee of the opportunity to participate in ADD meetings; by doing so, they can better educate themselves on activities and issues relating to the ADDs.
With business concluded, the meeting was adjourned at 2:38 p.m.