Politics & Government

Bevin’s regulation to limit Capitol access is illegal, Beshear opines

Minister and Kentucky police face off at Capitol door

The Rev. Kent H. Gilbert, pastor of Berea’s Union Church, tried to get protesters with the Poor People’s Campaign on Wednesday, June 13, 2018, into the Kentucky Capitol but was told by police that only two could enter at a time.
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The Rev. Kent H. Gilbert, pastor of Berea’s Union Church, tried to get protesters with the Poor People’s Campaign on Wednesday, June 13, 2018, into the Kentucky Capitol but was told by police that only two could enter at a time.

Gov. Matt Bevin’s administration violated Kentucky law by implementing an emergency regulation last month that restricts access to the state Capitol and other state-owned facilities and grounds, Attorney General Andy Beshear said Thursday.

In an eight-page opinion, Beshear said the regulation also may lead to violations of the Kentucky Open Meetings Act.

Beshear, a Democrat who wants to replace the Republican governor, issued the opinion in response to a question from state Rep. Patti Minter, D-Bowling Green, about the validity of the regulation filed by the state Finance and Administration Cabinet.

Bevin spokesman Woody Maglinger defended the policy Thursday, saying it was “developed base upon guidance from experienced law enforcement and security experts, and we are confident that it complies with law.”

“While Andy Beshear continues his tired tradition of spewing opinions to further his political aspirations, the Bevin administration will continue to make responsible decisions regarding public facility access in order to protect the safety and well-being of state employees and the general public,” Maglinger said.

Opinions of the attorney general do not have the force of law, though they can be cited in court and “public officials are expected to follow them,” according to the website of the Office of the Attorney General.

On Jan. 4, Finance Secretary William Landrum III filed with the Legislative Research Commission an emergency administrative regulation that placed restrictions on public use of and activities that may be conducted at all state-owned facilities, including the Capitol and Capitol Annex.

The regulation said the changes are necessary to “protect the health, safety and welfare of visiting members of the public, as well as staff at state-owned facilities and grounds.”

“Over the years, public interest in and attendance of, the regular business of the Kentucky Legislature has steadily increased to the extent that concerns have arisen regarding the healthy, safety and welfare of visiting members of the public and staff,” Bevin said at the time. “With a regular session of the Kentucky Legislature imminent, the provision of this administrative regulation should be given immediate effect.”

Visitors to the Capitol found more security and less freedom to roam the historic building and its annex. There are more security checkpoints, including in an underground tunnel between the Capitol and Capitol Annex, and restrictions on where people can stand.

The Capitol and its grounds were flooded last spring with protesters upset with a public pension bill backed by Bevin and the Republican-controlled House and Senate.

On June 4, Kentucky State Police blocked members of the Kentucky Poor People’s Campaign from entering the Capitol following an outdoor rally, citing a new policy in which members of the group could only enter the building two at a time.

The policy was not contained in an administrative regulation. Thirty-two state lawmakers asked Beshear to comment on the process by which rules and policies for public access to the Capitol may be implemented or altered. Beshear issued an opinion on July 2 that found the cabinet and Kentucky State Police violated state law by implementing and enforcing policies regarding entry to the Capitol that were not contained in properly adopted administrative regulations.

The restrictions were lifted, but the cabinet issued an emergency regulation with new rules regarding access to the Capitol less than two days before the start of the 2019 Kentucky General Assembly.

Beshear said the cabinet “deprived the public of the opportunity to comment on its new restrictions prior to the session commencing, and prior to public access actually being restricted.”

This violated state law — KRS Chapter 13A — “because conditions did not exist that necessitated the promulgation of an emergency administrative regulation,” he said.

Beshear also said the regulation unlawfully gives the cabinet discretion to create and enforce policies at will and that he finds no imminent threat to public health, safety or welfare to justify it.

Another concern, Beshear said, is the regulation may lead to violations the Kentucky Open Meetings Act. He said it gives broad discretion to the state and police officers to place limitations on who attends public meetings in the Capitol.

For the second week in a row, a group of protesters with the Poor People’s Campaign were denied entry to the State Capitol in large numbers. Only two at a time were allowed to enter the Capitol.

Jack Brammer is Frankfort bureau chief for the Lexington Herald-Leader. He has covered politics and government in Kentucky since 1978. He has a Master’s in communications from the University of Kentucky and is a native of Maysville, Ky.