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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Numbers Show Lack of Need For Senate Bill 1  Posted: February 3, 2014
Dear Senator:

I’m writing to express my concerns regarding Senate Bill 1 SCS 1 and to ask that you oppose the bill when it comes to the Senate Floor.

As you know, the proposed Senate Committee Substitute to Senate Bill 1, would place on the ballot an amendment to the Kentucky Constitution allowing the General Assembly to delegate to a legislative committee the power to prohibit the adoption of administrative regulations that the committee finds to be deficient.

My concerns are twofold - the lack of need for such an amendment and the delegation of judicial, executive, and legislative powers of the House and Senate to a committee of the General Assembly.

The separation of powers under our Commonwealth’s constitution is clear – the legislative branch enacts laws, the executive branch implements those laws, where authorized, by administrative regulation, and the courts of justice determine whether the regulations so promulgated comport with the underlying statute. SB 1 would alter this separation of powers in a fundamental way, reversing part of the 1984 decision in LRC v. Brown by creating a legislative veto that could be delegated to a subset of members of the House and Senate.

My first concern is that the amendment is unnecessary. The premise of the bill, according to the preamble, is that “the executive branch regularly disregards the votes of the General Assembly Committees and implements administrative regulations found to be deficient,” yet the numbers suggest otherwise.

Those instances in which the Administrative Regulations Review Subcommittee has determined a proposed administrative regulation to be deficient are extremely rare. According to data developed by LRC staff, between 2000 and 2013, only 21 went into effect despite a finding of “deficiency” by the Administrative Regulations Review Subcommittee or other review committee. (Only 31 were found deficient during that period).

During the period of 2005 – 2013, 4,157 ordinary regulations were reviewed. Of those, only 16 were found to be deficient. Of those, only 5 became effective based on written determinations by the Governor, and for 2, the ARRS withdrew the findings of deficiency. The other 9 were withdrawn by the agency.

Based on the data, less than ½ of 1% of regulations reviewed were found to be deficient, and less than two-tenths (.2) of 1% became effective notwithstanding a finding of deficiency.

Remedies already exist to address these rare instances. With the General Assembly in regular annual session concerns can be addressed through specific legislation. If the LRC believes that immediate action is necessary to prevent implementation of a regulation that it believes is contrary to law, it may seek a declaration of rights from a court and may challenge the regulation under Kentucky Constitution Article 2.

The delegation of the power to prohibit the adoption of administrative regulations to a committee of the General Assembly diminishes both the judicial and executive branches. Yet it also diminishes the role of the House and Senate as collegial bodies by allowing a subset of the House and Senate to legislate. Particularly where the question is not one of executive branch authority, but rather a disagreement over the exercise of discretion that the General Assembly has granted to the Executive Branch, it should be the General Assembly as a whole that makes a decision as to whether to change the law in order to alter the outcome, not a committee acting as if it were the General Assembly. In essence, the amendment would create a fourth branch of state government, in contravention of the state constitution.

Thanks for taking time to consider my concerns.

Cordially,

/s/

Tom FitzGerald
Director

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