Recently, the Kentucky Office of Attorney General sent out a communication notifying Mayors and City Attorneys of legislation that amends the Open Meetings and Open Records Acts. The information contained the following summaries:
On April 26, 2018, HB 592, amending the Open Meetings Act, KRS 61.800 to 61.850, took effect. The legislation amended KRS 61.826 to allow public agencies to conduct any meeting through video teleconference. Prior to the amendment, closed sessions of public meetings could not be conducted through video teleconference. The legislation also amended KRS 61.826 to require a public agency to precisely identify a primary location of a video teleconference meeting where all members can be seen and heard, and the public may attend in accordance with KRS 61.840. Prior to the amendment, the statute required the notice to identify all video teleconference locations as well as which, if any, location was primary.
On July 14, 2018, HB 302, amending the Open Records Act, KRS 61.870 to 61.884, became effective. That legislation amended KRS 61.810 to include selection committees established under KRS Chapters 45A and 56 as exceptions to the open meeting requirements until the award of the contract or cancellation of the procurement. HB 302 also amended KRS 61.878 to exclude “communications of a purely personal nature unrelated to any governmental function” as a public record. The legislation also amended KRS 61.878 to include information identifying members of selection committees and records of the procurement processes established under KRS Chapters 45A and 56 as exceptions to the open record requirements. It also amended KRS 56.8169 to clarify that KRS 61.810 and 61.878 apply to the selection process for built-to-suit contracts.
These legislative changes trigger a duty for Mayors to distribute publications to each official and member of every legislative body, board, commission, authority or committee. This includes special districts “located within their jurisdiction” regardless of whether it is a joint board, i.e. tourism commission or code enforcement board. In the case of a joint board, the Mayor must distribute the publications to those board members appointed by the city. “Your Duty Under the Law” and “Managing Government Records” are the publications that Mayors must distribute. The Mayor may also assign a designee with that task, however the duty to distribute the publications ultimately falls to the Mayor. Within 60 days of the receipt of the information from the Attorney General, the Mayor must distribute the publications.
But wait, there is more. With elections closing in, it is important to remember that Mayors are also saddled with the duty to distribute these publications to newly elected officials and newly appointed board or commission members. Again, the magic number is 60. Within 60 days of when the term of office begins (January 1 for newly elected officials and the next meeting for new appointees) the Mayor must distribute the publications.
Attached are the pdf versions of the updated publications.
Even though the Managing Government Records document has not been updated since August 2015, the statute does not differentiate between that and the newly minted Your Duty Under the Law. If either is amended, both must be distributed by the Mayor.
EFFECTIVE JULY 1, 2018:
BACKGROUND CHECKS FOR YOUTH PROGRAMS
After each legislative session, every city carefully reviews the KLC Legislative Update to make a color-coded chart denoting effective dates any new requirements for cities right? Well, in the real world, you have us to remind you instead.
In 2017, the Kentucky General Assembly enacted SB 236 to require background checks for youth programs. Many of our cities are impacted by this statute. KRS 194A.382 prohibits any youth camp that receives public funds from employing, contracting or utilizing as a volunteer a person who has been convicted of a criminal offense against a minor or a sex crime, who is a violent offender, or who the Cabinet for Health and Family Services has determined to have abused or neglected a child. As explained in KLC’s 2017 legislative update, effective July 1, 2018, prior to employing, contracting with or allowing a person to volunteer, a youth camp receiving public funds must:
1. Obtain from the Justice and Public Safety Cabinet a national and state criminal background check of the applicant, contractor or volunteer prior to the individual’s presence at the camp or involvement in any program of the camp; and
2. Require applicants to obtain a letter from the Cabinet for Health and Family Services stating the individual is clear to hire based on no findings of substantiated child abuse or neglect found through a background check of child abuse and neglect records maintained by the Cabinet for Health and Family Services.
Of course, this begs the question of what is a youth camp? KRS 194A.380(4) defines a youth camp broadly as follows: “Youth Camp” or “camp” means:
- Any camp required pursuant to KRS 211.180 to obtain a permit to operate; and
- Any program offered, whether free or for a fee, for recreational, educational, sports training, or vacation purposes to children under eighteen (18) years of age that a child attends outside the presence of his or her parent or legal guardian.
In our conversations with the Cabinet for Health and Family Services, KLC confirmed that this definition includes local government parks and recreation programs and youth sports programs that receive public funds. Public school districts, private schools, child-care centers, child-caring and child-placing agencies, foster care, relative caregiver services and adoptive homes governed by KRS Chapter 199 and babysitting or child-care arrangements made by a child’s parent or guardian occurring in a private home are all exempt from these requirements. Note, for programs run by other entities on city property, the entity running the program is responsible for obtaining the necessary checks. But, programs run by a city are covered by the statute.
The statute requires the Cabinet for Health and Family Services to promulgate administrative regulations and adopt forms for youth program operators to use. Unfortunately, this regulation has run into a few snags and will not be final until at least August of 2018. So what can a city do when the statute will be in effect before the regulation?
KLC recommends requiring potential employees, contractors and volunteers at youth programs to obtain a criminal background check and abuse/neglect checks using the following forms:
- The Kentucky State Police Request for Conviction Records – Employment/Professional License
- The Cabinet for Health and Family Services Youth Camp Employee, Contractor, or Volunteer Central Registry Check
http://manuals.sp.chfs.ky.gov/Resources/sopFormsLibrary/DPP-156 Central Registry Check.doc
The city operating the youth camp should retain these forms along with the employee, contractor or volunteer application. Please note that there are open records implications for criminal records and abuse/neglect records. Call KLC with any questions on what to release.
Finally, a city operating a youth camp covered by these requirements must post a sign at each camp it operates. The sign must state the following:
State law requires a national and state criminal background check and a letter from the Cabinet for Health and Family Services stating the employee is clear to hire based on no findings of substantiated child abuse or neglect found through a background check of child abuse and neglect records as a condition of employment or involvement in this program.
These requirements are mandatory on any city or other entity operating a covered camp. Anyone who owns or operates a covered youth camp and who knowingly allows an individual who has been convicted of or has entered a guilty plea to a sex crime or criminal offense against a minor, who is a violent offender, or who has been found by the Cabinet for Health and Family Services to have abused or neglected a child shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for each subsequent offense.
KLC will continue monitoring and awaiting the adoption of regulations and will continue updating our members on changes regarding the youth camp requirements. Please contact Morgain M. Sprague at firstname.lastname@example.org or (859) 977-4212 with any questions.
“…junk (opioids) is the inoculation of death that keeps the body in a condition of emergency.” Burroughs, William S., JUNKIE: Confessions of an Unredeemed Drug Addict.
Kentucky is one of the states most severely impacted by opioid drug abuse. As early as 1998, prescription drug abuse in Kentucky was sufficiently severe as to spur policy-makers into creating the Kentucky All Schedule Prescription Electronic Reporting Act (KASPER). With this system, policy-makers sought to monitor the medical use of controlled substances to dissuade prescription drug abuse. KASPER is a vital tool in providing data on prescription drugs. However, it has not been enough to prevent the death of many Kentuckians.
Since 1998, legislation requiring employers to select insurance policies that funds substance abuse treatment, expanding KASPER to make the data available to public safety persons, restrictions on prescription drug prescribing, and state funding for substance abuse treatment have all been signed into law in an effort to address Kentucky’s severe substance abuse problem. By 2000, despite these efforts to discourage prescription drug abuse, four Kentucky counties reached an overdose rate of more than 20 per 100,000 people. That number tripled in 2014 as 64 of Kentucky’s counties matched that overdose rate. https://www.healthy-ky.org/res/images/resources/Full-Substance-Use-Brief-Final_12_16-002-.pdf. Substance abuse data is collected based upon county of residence, thus city specific data is not available.
Substance Abuse substantially impacts our cities in Kentucky. In recent decades, cities have dedicated significant portions of every budget to counter the impact of the opioid epidemic. Initially the costs were simply the man hours spent by emergency responders combatting drug-related crime and rescuing neglected children. As the epidemic progressed, cities dedicated more resources to social services and public safety, floundering in the effort to save ravaged communities. Costs to the cities include lost productivity for workers, increased insurance costs, workers’ compensation claims, and unemployment insurance costs for effected employees, contamination remediation for drug affected properties, safety equipment for city workers to avoid needle sticks, etc.
Municipalities throughout the United States have suffered significant monetary losses, similar to those in Kentucky, linked to the opioid addiction epidemic. Recognizing that the pharmaceutical industry bears a significant amount of the blame, hundreds of local governments, insurers and other plaintiffs filed a class action lawsuit in seeking monetary damages in federal court. In Kentucky, over 50 counties have filed suit for damages.
Multi-party lawsuits seeking damages caused by the opioid epidemic are best litigated by lawyers who specialize in class action cases. Last year, a litigation group approached KLC seeking to represent municipalities interested in joining the lawsuit filed in federal court in Cleveland. After several meetings with the group, KLC retained the group to recover damages from losses sustained in our workers’ compensation insurance department for opioid prescriptions. There are no up-front costs to KLC; instead, the litigation group recovers its fees if it is successful in winning the case. This type of fee arrangement is called a contingency fee.
KLC is offering to facilitate a meeting for any group of cities interested in discussing whether to pursue this type of litigation as a class.
For more information regarding drug abuse policies please see the following:
Please contact Morgain M. Sprague, Director of Municipal Law and Training with any questions at (859) 977-4212.
 Eiselt, Erich, “Too Much of a Bad Thing: Municipalities and the Opioid Curse.” Municipal Lawyer: The Journal of Local Government Law March-April 2018: pp. 6-15. Print.
The Next Step for Cities Considering Franchise Fees for Telecommunications Companies
In June we notified members of the victory our cities experienced in the Kentucky CATV Association Inc. v. City of Florence et al. case. To recap, the Kentucky Supreme Court decided that cities can opt-in to the telecom tax scheme under KRS 136.660(1)(a-c) to continue receiving disbursements from the state pool OR the cities can exercise the power granted under the Kentucky Constitution to impose franchise fees on telecommunications companies.
Since we published the article explaining this case in June, KLC has been working with the Kentucky Department of Revenue to figure out how to move forward after this ruling. As you can imagine, there are many logistical issues including: When to opt-out? Who to notify if the city decides to opt-out? What factors should cities consider in deciding whether to opt-in or opt-out? What is the process for notifying companies? Is it final once a city decides?
The Kentucky Department of Revenue has developed a fact sheet with KLC’s assistance that is attached to this article. It explains some of the above questions and provides a lot of information. KLC recommends that each city take some time in deciding what the next steps are. While many cities were not receiving revenue to which they were entitled under the Constitution, some cities may benefit for remaining in the telecom tax scheme. Carefully calculating current receipts from the telecom tax scheme and balancing those against the potential receipts under a franchise fee as well as whether the funds would exceed the property tax and franchise fee components of its 2005 tax base, may take time and will require careful consideration.
If you have any questions regarding this or any other issues please contact Morgain Sprague at email@example.com
Local Jurisdictions Considering Implementation of Utility Franchise Fees
On June 15, 2017, the Kentucky Supreme Court (Kentucky CATV Association Inc. v. City of Florence, 520 S.W.3d 355, (Ky. 2017)) determined that the General Assembly did not have the power under Ky. Const. §181 to prohibit municipalities from collecting franchise fees from utilities in exchange for use of their rights-of-way, as that power was constitutionally granted to local municipalities pursuant to Ky. Const. §§ 163 and 164.
The telecom taxes imposed under KRS 136.604 and 136.616 were originally enacted as part of Tax Modernization in 2005 (HB 272). Effective January 1, 2006, the bill replaced the franchise value property tax and franchise fees on telecommunications companies with a 3% excise tax on multichannel video programming services and separate gross revenues tax rates on multichannel video programming services and communications services (2.4% and 1.3% respectively). With this legislation, existing local franchise fee collections were purportedly prohibited.
Because of this Supreme Court decision, some local jurisdictions are considering whether to renew or establish a franchise fee on cable service and/or communications service instead of relying on receipts from the state telecom taxes. Below are some key points cities and other jurisdictions should consider before activating any franchise payment provisions.
- Since 2006, cities, counties and other local jurisdictions throughout the Commonwealth have received monthly distributions of state telecom receipts electronically deposited into their bank accounts. The combined amounts for all jurisdictions annually totals $36.4 million.
- According to the provisions of KRS 136.660(4), any political subdivision that chooses to impose a franchise fee on any cable or communications service will forfeit distributions of all state telecom receipts (3% excise and 2.4% and 1.3% gross revenues taxes) during the time that any franchise fees are being collected. While each franchising jurisdiction should carefully evaluate its own unique situation, in many cases, the current distributions of state telecom taxes are and will continue to be greater than any revenues that might be generated from local franchise fees on cable services.
- Before a political subdivision begins a franchise fee imposition, it must notify the Department of Revenue in writing of the effective date of the franchise fee and that it is revoking its certified participation in the state telecom distribution fund. The Department requests a ninety-day notice before franchise fees begin.
- Cable companies and other utilities will need advance notification so they can perform any database changes needed to comply with new franchise fee requirements. Depending on the terms of the franchise, providers may also need time to communicate billing changes to the affected customer base. A ninety-day notice is a recommended minimum, but please consult with local providers to coordinate implementation details.
- Overall, cable receipts are in gradual decline statewide. In contrast, the annual state telecom distributions to local jurisdictions remains fixed at the statutorily set threshold of $36.4 million. While this amount does not fully cover the 2005 baseline, it will not decline under current law regardless of any further erosion of cable receipts.
- The repealed franchise value property tax component of cities’ historical tax base comprised, on average, at least 20% of their total collections amount. If a local jurisdiction elects to activate a franchise fee, the local jurisdiction would likely want to determine whether any new collections would exceed both the property tax and franchise fee components of its 2005 tax base to verify whether the decision to opt-out of participation with the state makes sound financial sense for the local jurisdiction.
If there are additional questions, please contact the Department of Revenue at 502-564-5170, option #2, or send an email to DOR.WEB.Response.Telecom@ky.gov.
On September 6, 2017, the U.S. District Court of Appeals for the Sixth Circuit issued a decision upholding legislative prayer in Bormuth v. County of Jackson, No. 15-1869. Some reading this may think, wait a second this case was decided this past February and changed our practices. This is true. However, the February 15, 2017 decision was issued by a three-judge panel. On February 27, 2017, the Sixth Circuit decided to rehear the case with all fifteen judges and vacated the previous decision. The underlying complaint alleged that the Jackson County Commission violated the Establishment Clause of the Constitution by asking persons to present to rise and assume a reverent position and a Commissioner offering a Christian prayer.
Bormuth argued that the courts should find the prayer in violation of the Establishment Clause in the Constitution because government officials were giving the prayer and the prayers were all Christian. It was his feeling that when a government official offers a public Christian prayer at a public meeting, it forces those present to worship Jesus Christ if they want to participate in government. He also believed that asking those present to rise and assume a reverent position was unduly coercive, forcing those present to submit to social pressure and worship a specified deity. The primary element of this case that differs from previously decided cases is that individual commissioners were offering the prayer, instead of guest preachers or outside individuals.
Most cases addressing whether government action has violated the Establishment Clause of the Constitution are subject to the Lemon test under which this case was first decided. Instead, the Sixth Circuit found that different standards apply to legislative prayer as the United States Supreme Court has found that legislative prayer “is deeply embedded in the history and tradition of this country.” Marsh v. Chambers, 463 U.S. 783 (1983). Instead, courts must focus on “whether the prayer practice fits within the tradition long followed in Congress and the state legislatures.” Town of Greece v. Galloway, 134 S.Ct. 1811, 1819 (2014). Each case overwhelmingly declines to analyze the content of the prayer refusing to subject prayer to a judicial determination of its sectarian nature. Instead the Town of Greece court stated that when the government invites prayer into the public arena it must allow the offeror to pray according to their beliefs.
What this means for our cities is that if our councils or commissions offer legislative prayer, there is no need to stress over the constitutionality. Instead, there are a few simple guidelines that may help. Is the prayer offered in a manner that allows the offeror to construct their own prayer? Is the council as a whole, mandating what religion or denomination must give the prayer? Is the prayer offered to focus the minds and hearts of the legislative members on their duties as public servants? Has any member of the legislative body commented that the prayer is offered with discriminatory intent? Is there any attempt to require all present to pray or any implication that if someone does not pray that they will not be taken seriously? These are some basic questions that can guide a local legislative body in constructing any prayer practice. As always, we recommend consulting with your city attorney in constructing this type of policy.
A link to the opinion can be found here:
If you have any questions please contact Morgain M. Sprague, KLC Managing Counsel for Member Legal Services at (859) 977-4212.
Standardized Occupational License Forms
On July 1, 2017, Kentucky finalizes the transition to a standardized occupational license tax forms for business reporting. Instead of trying to locate and select between different forms for over 200 taxing districts, businesses will now be able to use standardized forms to file with the local tax districts in which they owe taxes.
HB 277 of the 2012 Kentucky General Assembly established a process to phase in standardized forms for occupational license tax reporting. The legislation was a compromise between the business community and the local government associations to make filing easier for businesses while also ensuring that cities maintain taxing independence. The legislation was implemented in several phases, culminating in the requirement for local governments to accept approved standardized forms by July 1, 2017.
As the first step in implementing the legislation, the Secretary of State gathered all occupational license tax ordinances and forms from tax districts throughout the state. The ordinances and forms of each local taxing jurisdiction were placed on the Secretary of State’s website in November of 2012. Businesses have since been able to download these documents from the Secretary of State’s website, instead of having to contact various tax districts to access them. The Secretary of State maintains updated ordinances and forms as well as a spreadsheet of all occupational license tax rates by city and district. These rates are in a readily searchable format on the website, Microsoft Excel.
In the next phase, the Secretary of State worked with tax preparers and local tax administrators to create standard forms for tax districts that collect taxes for a single district. This single reporting form, complete with instructions, was codified in an administrative regulation in November 2016 and is available on the Secretary of State’s website at http://app.sos.ky.gov/occupationaltax/ as form OL-S Single Tax District, Occupation License Fee Return. And on March 3, 2017, the Dual Tax District Occupational License Fee Return was developed by the Secretary of State and codified in an administrative regulation, with instructions. It too is available on the Secretary of State’s website linked above. There are six districts effected by this change, which are Boyle County/Danville, Daviess County/Owensboro, Henderson County/City of Henderson, Jessamine County/Nicholasville, Rowan County/Morehead, and Taylor County/Campbellsville.
All tax districts that collect for either a single district or dual districts are required to accept the forms effective July 1, 2017.
For those tax districts that collect multi-district occupational taxes, the Secretary of State’s Office is working with stakeholders on the development of another form or forms. Until such a form or forms are adopted formally through the regulatory process, however, businesses reporting in these jurisdictions will likely want to continue using the multi-district return forms developed by local authorities in Boone, Kenton, Campbell, and Scott counties. KLC will make sure to update our members when there are additional developments on this work.