2 KAR 2:060reg. Adjudicatory hearings

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

      (2) "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.

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

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

 

      Section 2. Joinder of Complaints. (1) Separate complaints against a single respondent may be consolidated by the commission and heard as a single case.

      (2)(a) Separate complaints against two (2) or more respondents may be consolidated and heard as a single proceeding if the commission determines that the complaints are based upon the same or related set of facts.

      (b) If allegations against two (2) or more respondents are heard as a single proceeding, the commission shall make separate findings regarding each respondent.

 

      Section 3. Rulings on Motions. (1) A substantive or dispositive motion such as a motion to dismiss or a motion to exclude evidence shall be ruled on by the commission.

      (2) A procedural motion such as a motion for a continuance shall by ruled on by the commission chair or another member authorized by the commission.

      (3) All pleadings, motions, and exhibits shall be filed with the principal assistant of the commission staff and copies served on each respondent or respondent’s counsel and on the commission’s enforcement counsel in accordance with the Kentucky Rules of Civil Procedure.

 

      Section 4. Authority for Settlement Negotiations. (1) The commission may authorize:

      (a) Its enforcement counsel to attempt to negotiate a settlement with the respondent; and

      (b) Its chair to accept or reject a proposed negotiated settlement.

      (2) If a proposed negotiated settlement is reached and accepted, the procedures established in this subsection shall be followed.

      (a) The commission shall conduct an adjudicatory hearing as required by KRS 6.691(5) before imposing any penalty on the respondent.

      (b) The respondent shall waive the introduction of evidence at the hearing.

      (3) If a proposed negotiated settlement is rejected, the respondent’s offer of settlement shall not be used against the respondent.

 

      Section 5. Witness Lists. (1) At least ten (10) days before the date set for the adjudicatory hearing, the attorneys for the parties and for the commission shall provide to the commission the names and addresses of all proposed witnesses.

      (2) A copy of each witness list shall be served upon each opposing party or counsel as provided by the Kentucky Rules of Civil Procedure.

      (3) Additional witnesses may only be called for rebuttal, or with the permission of the commission for good cause shown.

      (4) Commission staff shall provide all witnesses with a copy of this administrative regulation in accordance with KRS 6.691(1).

 

      Section 6. Prehearing Conference. (1) The commission chair may order that a prehearing conference be held for the purposes set out in Kentucky CR 95 with reasonable notice to each respondent or respondent’s attorney and to enforcement counsel.

      (2) The commission chair, or another member authorized by the commission, shall preside over the prehearing conference.

 

      Section 7. Amendments to the Complaint or Answer. (1) The complaint may be amended before or after the commencement of the hearing to conform to the proof or to set forth additional facts.

      (2) If the complaint is amended, the respondent shall be given twenty (20) days to answer the amended complaint and a reasonable time to prepare his or her defense against the matters charged in the amended complaint.

 

      Section 8. Hearing Additional Evidence. (1) The commission may order a hearing for the taking of additional evidence at any time while the complaint is pending before it.

      (2) The order shall set the time and place of the hearing and shall indicate the matters on which the evidence is to be taken.

      (3) A copy of the order shall be sent by mail to the respondent or the respondent’s attorney at least ten (10) days prior to the date of the hearing.

 

      Section 9. Deliberations. The commission shall deliberate and publish its findings and conclusions in accordance with KRS 6.691(4) and (5).

 

      Section 10. Transcript of Evidence. Adjudicatory hearings before the commission shall be reported by a reporter or recorded by an electronic device.

 

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 an adjudicatory hearing after the commission has conducted a preliminary inquiry and found probable cause to believe a violation of the Code of Legislative Ethics has occurred.

      (b) The necessity of this administrative regulation: This regulation is necessary to comply with KRS 6.666 and to provide notice of the adjudicatory hearing process for handling complaints.

      (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 an adjudicatory hearing 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 provides notice of the procedures for conducting an adjudicatory hearing after the commission has conducted a preliminary inquiry and found probable cause to believe a violation of the Code of Legislative Ethics has occurred.

      (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 adjudicatory hearing if a hearing is held.

      (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 adjudicatory hearing 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, 6.686, and 6.691.

      (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, 6.691

      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 adjudicatory hearings into alleged violations of KRS 6.601 through 6.849 in appropriate cases. This administrative regulation establishes the requirements governing adjudicatory proceedings of the commission.