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Key Takeaways:

  • A Kentucky Circuit Court Judge has ruled that the General Assembly’s attempt to dilute the governor’s appointment power for the Executive Branch Ethics Commission violates the Kentucky Constitution.
  • The new law comes after a series of reorganizations under Democratic and Republican governors alike.

In mid-July, a Kentucky Circuit Court Judge ruled that the General Assembly’s attempt to dilute the appointment power of Governor Andy Beshear (D) for the Executive Branch Ethics Commission violates the Kentucky Constitution. In technical terms, the judge granted a motion from the governor for summary judgment in his lawsuit against Kentucky’s other constitutional officers, the Legislative Research Commission, and the Kentucky Executive Branch Ethics Commission to block a law that would strip him of five of his appointments to the seven member panel. Jefferson Circuit Judge McKay Chauvin found that the law was unconstitutional and “threatens the balance of power purposely and purposefully established in the Kentucky Constitution as foundation to our democracy.”

Background

The Republican supermajority in the Kentucky General Assembly passed a law to limit the governor’s ability to appoint members of the Kentucky Executive Branch Ethics Commission (KY HB 334) earlier this year. The governor vetoed the bill but lawmakers overrode the veto and the bill became law. 

The Kentucky Executive Branch Ethics Commission administers the Executive Branch Code of Ethics for executive branch employees and lobbyists. It is an independent agency within the commonwealth’s government.

The legislation was a result of a 2020 executive order to reorganize the ethics commission and replace appointees of former Governor Matt Bevin (R) with three of Governor Beshear’s (D) own appointments and two appointments from Attorney General Daniel Cameron (R) and Auditor of Public Accounts Mike Harmon (R). Beshear’s reorganization overruled a 2016 executive order from the former governor giving himself all five appointments to the Ethics Commission. The former governor’s 2016 order overruled a portion of an executive order from 2008 issued by then Governor Steven Beshear (D and the current governor’s father) that established a rotating appointment process between the Governor, Attorney General, and Auditor of Public Accounts to fill Commission vacancies.

What Does HB 334 Do?

  • HB 334 increases the number of Ethics Commission members from five to seven persons and gives the governor two appointments. The other five appointments would be made by the Treasurer, Auditor of Public Accounts, Commissioner of Agriculture, Secretary of State, and Attorney General (one appointment per constitutional officer). 

  • The law also staggers the four year terms so that not all of the commission members’ terms expire at the same time. Current members of the Executive Branch Ethics Commission would lose their appointments upon the effective date of the legislation and future members could only be removed by the “appointing authority who appointed him or her.” The law removes the governor’s ability to unilaterally remove a Commission member.

  • Finally, a new paragraph is added to Section 2 of Kentucky Revised Statutes 11A.060 to state that “the commission shall not be reorganized except by statute.” 

Reaction to the Ruling

The governor’s spokesperson issued a statement to the Louisville Courier-Journal after the ruling declaring that it “shows the rules stay the same for everyone and that Gov. Beshear has the same authority as every governor before him” and that HB 334 “was an attempt by the General Assembly to politicize and even weaponize the Executive Branch Ethics Commission.”

On the other side of the aisle, Senate President Robert Stivers (R) stated that “the Kentucky General Assembly established the Executive Branch Ethics Commission and maintains the constitutional authority to modify its enabling statute. [This] ruling will be appealed.” The other Republican officeholders who would have seen their ability to appoint a member to the Commission also expressed disappointment with the ruling calling it a “good government bill” and expressing that their side will win on appeal.

As of writing, an appeal to the Circuit Court’s ruling has not been filed with the Kentucky Court of Appeals.

Are you struggling with frequent changes to ethics laws and reporting requirements? We can help. Don’t miss critical deadlines with MultiState lobbying compliance services — reach out to our team with questions.