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Beshear Issues Opinion Saying Bevin's Emergency Regulation is Invalid

J. Tyler Franklin

Kentucky Attorney General Andy Beshearissued an opinion Thursday that said an emergency regulation put in place by Governor Matt Bevin’s administration earlier this year violates the law.

The regulation restricted access to all state-owned facilities and grounds, including the state capitol building in Frankfort.  One provision in the regulation said that any group wanting to protest at the capitol would have to make such a request at least ten days in advance.

The AG’s office said the Finance and Administration Cabinet violatedtwo Kentuckystatutes in issuing the regulation. The opinion also said language used in the regulation might violate the Kentucky Open Meetings Act and is vulnerable to constitutional challenges.

Attorney General Andy Beshear said any attempt to change who gets into the capitol and when would need to go through an open and transparent process that the public could participate in.

“Here they did it through what is basically a secretive process. They did it at the last moment and they did it in a way where no one could object,” Beshear told WKU Public Radio.  

The AG’s analysis said no conditions existed that necessitated the emergency administrative regulations. Beshear's opinion said the regulation didn’t meet statutory requirements, didn’t contain the required statement explaining the nature of the emergency, and didn't explain why an ordinary administrative regulation wasn’t sufficient.

“We found that the emergency regulation is invalid because an emergency regulation has to have an actual emergency,” Beshear said.

Last year, members of the Poor People’s Campaign were refused entry into the state capitol building because of a new policy that only allowed two members in at a time. The Attorney General’s office issued an opinion finding that the Finance and Administration Cabinet and the Kentucky State Police violated the law by implementing and enforcing policies regarding entry to the Capitol building that were not contained in properly adopted administrative regulations. The new policy restrictions were lifted.

In the opinion issued Thursday, the AG’s office said the Finance and Administration Cabinet didn’t take any immediate action or begin the regulatory process for the policy restricting people from entering more than two people at a time. Then, less than two business days before the start of the General Assembly’s 2019 regular session, the cabinet enacted the emergency regulation.

Democratic State Representative Patti Minter of Bowling Green requested the AG’s opinion on the emergency regulation’s validity. The new rules went into effect when it was filed, without the public comment period and hearing that precedes an ordinary administrative regulation.

A statement from the Governor’s Communications office said Bevin would continue to issue orders that protect the safety of state employees and the general public, and accused Beshear of issuing opinions to further his political aspirations. Beshear is running for Governor this year.

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