FRANKFORT — A bill that open government advocates warn would introduce loopholes into Kentucky’s open records law could make its way to Democratic Gov. Andy Beshear’s desk when lawmakers return to Frankfort later this week.
The final two days of the 60-day regular session — Friday and Monday — are set aside to consider gubernatorial vetoes of bills that both chambers have passed. The Republican supermajority can easily reach the simple majority of votes needed to override vetoes.
Legislation that has yet to make it through both chambers also could come up in the final two days, including a bill to end the certificate of need requirement for freestanding birth centers and a maternal health bill that ran aground in the Senate after a late amendment was added in committee.
- RELATED: Commentary: HB 509 would destroy Kentucky’s long tradition of openness. And Beshear knows it.
The Senate is expected to consider confirming Robbie Fletcher as the state education commissioner, along with appointments to other positions. Thanks to a law enacted last year, it will be the first time the education commissioner has required Senate confirmation.
Any bill that lawmakers pass would be subject to a successful veto by Beshear because the legislature would have no chance to override it.
‘Bad actors’
Beshear has voiced support for the controversial changes to the open records law proposed in House Bill 509. During his weekly news conference last week he said he needs to see the bill’s final form before deciding what action to take on the bill. “We’ll review it when it gets to me.”
The House passed the bill, but the Senate did not give it a floor vote ahead of the veto period. The Senate could give final passage to the bill when both chambers reconvene Friday and Monday.
HB 509 would require state and local government agencies to provide email accounts to public officials on which to conduct official business. However, the bill doesn’t address what happens to public records created on private devices.
Beshear told reporters he thinks the bill would be more effective than current law in deterring officials from conducting public business on their personal devices or email accounts. He traced the controversy to the Kentucky Department of Fish and Wildlife Resources (KDFWR), which has waged a so far unsuccessful court fight to block release of commissioners’ text messages. The challenge is now before the state Supreme Court.
“Fish and Wildlife hadn’t issued state email addresses to their commissioners and they insisted on texting each other on their own devices,” Beshear said. “That’s wrong. So, right now, what the law says is if you do that, that is an open record. But all we can do in terms of enforcement is ask that person ‘would you please look through your phone and take snapshots of anything that we’re asking for and send them to us now?’ Do you think a bad actor who’s trying to get around the open records request is going to do that and send them to you?”
Beshear said HB 509’s mandate that official business be conducted on government email accounts could aid transparency by making government agencies responsible for the records. “What it does is take whether you get a record away from a potential bad actor and put it with the agency that can secure those records.”
Agencies could discipline employees who violate HB 509’s mandates — by using a personal cell phone or email account for official communications, for example — but it’s unclear if and how those records could be publicly disclosed. The bill includes no penalties for violations by elected officials. The bill also does not require agencies to search for public records on personal devices.
When asked if he thought Beshear would veto the bill, Republican Senate President Robert Stivers told reporters as the veto period began: “You’d have to ask the governor on that. I do not know. I don’t know what he would do.”
The open records challenge against the KDFWR was spurred by a former member of the KDFWR’s governing board requesting text messages among Fish and Wildlife officials and lawmakers. The governor and Republican legislature have also clashed over the Kentucky Senate not confirming gubernatorial appointments to the KDFWR’s governing board. Five appointments are awaiting confirmation this session.
Here’s a look at where some high-profile legislation stands:
Momnibus
After picking up some controversial baggage in the last leg of the legislative session, the maternal health bill called “Momnibus” failed to get final passage.
The bill would incentivize Kentuckians to get prenatal care by adding pregnancy to the list of qualifying life events for health insurance coverage, among other things. It had bipartisan support.
But a late amendment borrowed language from a bill filed by an anti-abortion lawmaker that requires hospitals and midwives to refer patients who have nonviable pregnancies or whose fetuses have been diagnosed with fatal conditions to perinatal palliative care services. Abortion rights advocates say the requirement could become coercive.
The bill awaits Senate passage and Beshear’s action.
Meanwhile, Democrats in the Senate have filed amendments
Democrats in the Senate have filed amendments to loosen the state’s near-total ban on abortion by adding exceptions for rape, incest and lethal fetal anomalies and changing the word “baby” to “fetus.”
It could still pass in the final two days but would have to be a version that meets Beshear’s approval because lawmakers would be unable to override a veto.
Freestanding birth centers
A bill to remove the certificate of need requirement for freestanding birth centers that meet a set of criteria was approved by the House. It has had two readings in the Senate but still needs to pass a Senate committee.
A Senate Resolution to reestablish a task force to study certificate of need in Kentucky has also not passed.
Crime bill awaits action by Beshear
A sweeping crime bill backed by Jefferson County House Republicans has been awaiting action by the governor for about a week. House Bill 5 has been hotly debated, with House Democrats futilely arguing on the last day before the veto period against the measure.
The bill includes new or increased criminal penalties, bans street camping and imposes a three strikes rule on violent offenders. It requires prisoners convicted of violent offenses to serve 85% of their sentences instead of the current 20% before becoming eligible for parole, and classifies more crimes as violent.
HB 5 has gained opposition from across the political spectrum, as both progressive and conservative groups have argued that a more in-depth fiscal analysis is needed before implementing the legislation. However, the Kentucky Fraternal Order of Police and some families of deceased crime victims have expressed support for the bill.
Beshear told reporters Thursday that he was still reviewing the bill and was supportive of parts of it but concerned about other sections. He added that he supported the carjacking provision but had reservations about provisions that could criminalize homelessness by creating the crime of illegal street camping.
He said a part of the bill that would “allow for the destruction of a weapon used in a murder” is close to him a year after the Old National Bank shooting in Louisville. The bill would allow someone to purchase such a weapon at auction and ask Kentucky State Police to destroy it. The funds are used for local government and law enforcement grants.
Local officials highlighted the issue of the auctions after the shooting last year. One of the victims, Tommy Elliot, was a close friend of Beshear’s.
“Thankfully, the ATF seized that weapon, and it was destroyed,” Beshear said of the weapon used in the bank shooting. “Otherwise, I was going to have to watch a weapon that murdered my friend be auctioned to the highest bidder.”
Beshear also added that he wished legislation like this would be broken up into separate bills. He can only issue line-item vetoes on budget bills.
Changes to horse racing and gambling oversight
Beshear can also take action on another bill that was passed by the General Assembly just before the veto period began that would dissolve the Kentucky Horse Racing Commission and Department of Charitable Gaming.
Senate Bill 299 would form a new government corporation to oversee the duties of the commission and department. Both of those are currently under the Public Protection Cabinet. The House and Senate have both given approval on the measure.
The bill has been backed by the legislature’s Republican leadership. In a joint meeting of the Senate and House economic development committees, Senate Majority Floor Leader Damon Thayer and House Speaker David Osborne presented the bill.
Beshear told reporters that it does not impact gubernatorial appointment powers but would create an independent corporation that could “take regulatory action and punish different groups,” such as trainers. That raises a question about the constitutionality of the bill, he said, as an executive branch officer will not be over the corporation.
“So, how are you independent but have full regulatory and enforcement authority? I think that’s the thing to work through there,” Beshear said. “We’ve never seen it before. We don’t know of another group that acts that way, so a little complex legally.”
New hurdles for fossil fuel-fired power plant retirements
Beshear has yet to act on Senate Bill 349, a Senate president-backed bill that would add new bureaucratic hurdles to slow the retirement of fossil fuel-fired power plants. Before utilities could retire a fossil fuel-fired plant, they would have to notify a newly created board, whose membership would be dominated by fossil fuel industries.
Investor-owned utilities and environmental advocacy groups have decried the bill, saying it could keep aging, uneconomical coal-fired power plants on the grid and burden ratepayers with the costs of their maintenance. Advocates for the bill, including coal industry interests, have argued SB 349 is needed to ensure the reliability of the state’s energy grid, an assertion rebuffed by the leader of Kentucky’s largest utility.
Beshear last month criticized the bill, saying it was going to “take authority” from the state’s utility regulator, the Kentucky Public Service Commission, which makes decisions on power plant retirement requests. He said he’s been in the “same place” as some of the people who have pushed for SB 349, but that the proposed board is “not the way” to address the issue.
Limiting power of Louisville’s air pollution regulator
Beshear on Monday vetoed House Bill 136, sponsored by Rep. Jared Bauman, R-Louisville. The bill would prevent the Louisville Air Pollution Control District from issuing fines against industries that self-disclose violations of federal pollution regulations. Critics, including the environmental law group Kentucky Resources Council, say it could give industry in Jefferson County a “free pass” from penalties when a self-disclosure of a violation happens by ending the air pollution regulator’s ability to issue penalties in such cases.
Bauman and other Republicans have argued HB 136 is needed to align air pollution regulations in Jefferson County with the rest of the state. Most Democrats have opposed the bill, worried the bill could create less accountability over air pollution in Jefferson County.
Criminalizing documentation of meatpacking plants, ag operations without consent
Senate Bill 16, sponsored by Sen. John Schickel, R-Union and backed by Tyson Foods and Kentucky’s poultry industry, would criminalize using recording equipment or drones at concentrated animal feeding operations (CAFOs) and commercial food processing and manufacturing plants without the permission of the operation’s owner or manager. It would also criminalize distributing the footage.
Critics, including animal welfare groups, have said the bill is a so-called “ag gag” bill meant to hide from the public and prevent whistleblowers from exposing the conduct and practices of large-scale, corporate agricultural operations. An animal protection advocacy group released a video from a “hidden-camera” investigation of alleged “cruelty” within Kentucky poultry production, an investigation the group argues would be criminalized under SB 16.
Schickel and other SB 16 supporters have said the bill is needed to prevent harassment of employees and agricultural operations that provide jobs to Kentucky communities. The bill passed through the legislature largely on party lines.
Bills that are in the legislative graveyard or near
Drag bill: After several edits to soften the legislation, a bill to place restrictions on adult-oriented businesses with “sexually explicit” performances sputtered on the House side despite passing a committee.
Vaccine bill: A bill to bar employers and educational institutions from requiring the COVID-19 vaccination for treatment, employment or school, passed in the Senate but failed to advance on the House side.
Though it could still pass in the final days of the session, Beshear, an outspoken supporter of the vaccines, would likely veto it.
Abortion bills: None of the bills seeking to loosen Kentucky’s near-total abortion ban were assigned committees, making them effectively dead on arrival. Those include:
- A Republican bill to add rape and incest exceptions and clarify doctors can treat ectopic pregnancies
- A Democratic bill to add rape and incest exceptions.
- A Democratic bill to roll back all abortion restrictions.
Loosening state child labor law: A bill that would allow some teenagers to work longer and later hours, voted down and then revived by a Senate committee, still needs final passage through the Senate to get to Beshear’s desk.
Lawmakers wouldn’t have the chance to override a veto of House Bill 255 from Beshear, who in past comments panned the legislation saying child labor protections are there “for a reason.”
Education and Labor Cabinet officials have said HB 255 also deletes language in state law that mirrors federal prohibitions on employing 14- and 15-year olds in hazardous occupations, such as jobs involving railroad cars and conveyors, loading and unloading goods from motor vehicles and requiring the use of ladders. State labor officials said they wouldn’t be able to enforce those hazardous occupation standards even if still federally prohibited.
Bill sponsor Rep. Phillip Pratt, R-Georgetown, who owns a lawn and landscaping company, said his legislation would help minors “gain valuable experience in the workplace.”
Weakening a mine safety protection: House Bill 85, sponsored by Rep. Bill Wesley, R-Ravenna, would weaken a key workplace protection for coal miners, according to a long-time coal miner safety advocate. Wesley has argued HB 85 is needed to help smaller coal mines continue operating. The bill would need approval from the Senate Natural Resources and Energy Committee and three required readings before being sent to the governor, who could veto it without the legislature overriding it.
This article is republished under a Creative Commons license from Kentucky Lantern, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kentucky Lantern maintains editorial independence. Contact Editor Jamie Lucke for questions: info@kentuckylantern.com. Follow Kentucky Lantern on Facebook and Twitter.
McKenna Horsley covers state politics for the Kentucky Lantern. She previously worked for newspapers in Huntington, West Virginia, and Frankfort, Kentucky. She is from northeastern Kentucky.
Sarah Ladd is a Louisville-based journalist and Kentuckian. She has covered everything from crime to higher education. In 2020, she started reporting on the COVID-19 pandemic and has covered health ever since.
Liam Niemeyer covers government and policy in Kentucky and its impacts throughout the Commonwealth for the Kentucky Lantern. He most recently spent four years reporting award-winning stories for WKMS Public Radio in Murray.
