2 KAR 2:050reg. Preliminary inquiries

      Section 1. Definitions. (1) "Commission" is defined by KRS 6.611(9).

      (2) "Complainant" means a person who has filed a complaint with the commission.

      (3) "Complaint" means a formal, written complaint filed in accordance with KRS 6.686 that accuses one (1) or more persons of violating a provision of KRS 6.601 to 6.849.

      (4) "Enforcement counsel" means the attorney employed by the commission to investigate and prosecute a complaint.

      (5) "Respondent" means a person accused in a complaint of violating any of the provisions of KRS 6.601 to 6.849.

 

      Section 2. Complaint. (1) A complaint may be filed by any person in accordance with the requirements of KRS 6.686(1).

      (2) A person may file a complaint by completing and signing the commission’s complaint form or by filing a written, sworn complaint in another form that complies with the requirements of KRS 6.686(1).

      (3) The complainant shall not be considered a party to the action, although he or she may be a witness.

      (4) The commission shall dismiss a complaint in accordance with KRS 6.686(1)(d) or 6.686(4).

 

      Section 3. Preliminary Inquiry and Hearing. (1) A preliminary inquiry shall be commenced as required by KRS 6.686(1)(d).

      (2) The enforcement counsel:

      (a) May be assisted by investigators employed by the commission;

      (b) Shall investigate the complaint for the purpose of presenting the facts to the commission; and

      (c) Shall present information and recommendations to the commission about the allegations in the complaint.

      (3) After the enforcement counsel’s investigation is complete, the commission shall consider the results of the enforcement counsel’s investigation and shall vote to:

      (a) Dismiss the complaint in accordance with KRS 6.686(1)(d) or 6.686(4); or

      (b) Conduct a preliminary inquiry hearing to determine if probable cause exists to believe there has been a violation of KRS 6.601 to 6.849.

      (4) If the commission decides to conduct a preliminary inquiry hearing, the chair shall:

      (a) Set a date for the preliminary inquiry hearing; and

      (b) Notify the respondent of the time and place of the hearing.

 

      Section 4. Hearing Proceedings. (1) As required by KRS 6.686(2), during the preliminary inquiry hearing, only the commission members, the commission staff, enforcement counsel, the commission’s investigator, the respondent, the respondent’s counsel, and any witness called to testify may be present.

      (2) The Kentucky Rules of Civil Procedure and Kentucky Rules of Evidence shall not apply at the preliminary inquiry hearing. The chair, or other member of the commission appointed by the chair, shall:

      (a) Conduct the hearing; and

      (b) Allow or exclude evidence within his or her discretion and in accordance with KRS 6.686(3).

      (3) The commission may compel the attendance of witnesses at the preliminary inquiry hearing in accordance with KRS 6.666.

      (4) All testimony taken at the preliminary inquiry hearing shall be under oath.

      (5) The enforcement counsel shall call witnesses and question them concerning the allegations in the complaint, and the complainant shall be given an opportunity to testify. The members of the commission may ask questions of the witnesses and complainant. The commission may allow the respondent to cross-examine the witnesses and the complainant.

      (6) Following the presentation of evidence by the enforcement counsel, the respondent shall be given the opportunity to testify under oath and to present evidence on his or her behalf.

      (7) Following the presentation of evidence by the enforcement counsel and respondent, the commission may allow the enforcement counsel and respondent to present statements to the commission concerning the disposition of the complaint.

      (8) At the conclusion of the evidence and statements, the commission shall meet in executive session to deliberate on the question of whether there is probable cause to believe a violation has occurred.

      (9) The witnesses, the complainant, the respondent, and the respondent’s attorney shall not be present during the deliberations.

      (10) In accordance with KRS 6.686(5), at the conclusion of the preliminary inquiry hearing, the commission may dismiss the complaint, issue a confidential reprimand, or initiate an adjudicatory proceeding.

 

      Section 4. Incorporation by Reference. (1) "Complaint", 10/16, is incorporated by reference.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Legislative Ethics Commission, 22 Mill Creek Park, Frankfort, Kentucky 40601, Monday through Friday, 8:00 a.m. to 4:30 p.m.

 

JOHN SCHAAF, Executive Director

      APPROVED BY AGENCY: June 15, 2016

      FILED WITH LRC: June 15, 2016 at 11 a.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on July 21, 2016 at 9:00 a.m. at the Legislative Ethics Commission, 22 Mill Creek Park, Frankfort, Kentucky 40601. Individuals interested in being heard at this hearing shall notify this agency in writing five workdays prior to the hearing of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until close of business, August 1, 2016. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.

      CONTACT PERSON: Kara L. Daniel, Counsel, Kentucky Legislative Ethics Commission, 22 Mill Creek Park, Frankfort, Kentucky 40601, phone [phone], fax [phone].

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Kara Daniel

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation establishes the procedures for conducting a preliminary inquiry into a complaint alleging a violation of the Code of Legislative Ethics.

      (b) The necessity of this administrative regulation: This regulation is necessary to comply with KRS 6.666 and to provide notice of the procedures for handling a complaint filed with the commission.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: The commission is required to promulgate regulations to implement the Code of Legislative Ethics. This regulation sets out procedures for a preliminary inquiry that is required by the Code.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: The regulation and material incorporated by reference provide notice of the procedures for handling a complaint filed with the commission and incorporates by reference a complaint form that can be used to file a complaint.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

      (a) How the amendment will change this existing administrative regulation: N/A

      (b) The necessity of the amendment to this administrative regulation: N/A

      (c) How the amendment conforms to the content of the authorizing statutes: N/A

      (d) How the amendment will assist in the effective administration of the statutes: N/A

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: The regulation affects the commission staff, the commission members, 138 legislators, 558 legislative agents, and 680 employers of legislative agents, as well as any person who files a complaint against a legislator, legislative agent, or employer.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

      (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: The commission staff, commission members, complainants, and any legislator, legislative agent, or employer who is the subject of a complaint or a witness regarding a complaint will follow the procedures in the regulation regarding the complaint and its subsequent handling.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): An exact cost of compliance is unknown, but this regulation does not create additional costs to individuals affected by a complaint.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): They will benefit from clearer procedures governing the handling of complaints and the preliminary inquiry process.

      (5) Provide an estimate of how much it will cost to implement this administrative regulation:

      (a) Initially: No increase in fees or funding is anticipated.

      (b) On a continuing basis: No increase in fees or funding is anticipated.

      (6) What is the source of funding to be used for the implementation and enforcement of this administrative regulation: Kentucky Legislative Ethics Commission budgeted funds for the biennium.

      (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change, if it is an amendment: No increase in fees or funding is anticipated.

      (8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: This regulation does not establish fees or directly or indirectly increase fees.

      (9) TIERING: Is tiering applied? No. Tiering was not appropriate in this administrative regulation because the administrative regulation applies equally to all those individuals or entities regulated by it.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      (1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? This regulation impacts the Kentucky Legislative Ethics Commission and members of the General Assembly who are the subject of a complaint.

      (2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 6.666 and 6.686.

      (3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This regulation does not create any additional revenue for the Kentucky Legislative Ethics Commission or other government entity.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This regulation does not create any additional revenue for the Kentucky Legislative Ethics Commission or other government entity.

      (c) How much will it cost to administer this program for the first year? This regulation is not expected to increase costs for the Kentucky Legislative Ethics Commission budgeted funds for the biennium.

      (d) How much will it cost to administer this program for subsequent years? This regulation is not expected to increase costs for the Kentucky Legislative Ethics Commission budgeted funds for the biennium.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-):

      Expenditures (+/-):

      Other Explanation: This regulation establishes procedures for handling complaints filed with the commission and it is not expected to have any fiscal impact.

Notation

      RELATES TO: KRS 6.611, 6.686

      STATUTORY AUTHORITY: KRS 6.666(5)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 6.666(5) requires the commission to promulgate administrative regulations necessary to implement KRS 6.601 through 6.849. KRS 6.686 requires the commission to conduct a preliminary inquiry into any alleged violation of KRS 6.601 through 6.849. This administrative regulation establishes the requirements governing the preliminary inquiry proceedings of the commission.