LABOR CABINET ?haunt-mum Matthew G. Bevin Kentucky Labor Cabinet David A. Dickerson GovernOr Office of the Secretary Acting Secretary 657 Chamberlin Avenue Jenean M. Hampton Frankfort, Kentucky 4060] Lt. Governor Phone: (502) 564-3070 Fax: (502). 564?5484 July 31, 2018 VIA HAND DELIVER Hon. Rocky Adkins Democratic Leader Kentucky House of Representatives State Capitol Room 305 Frankfort, Kentucky 40601 Hon. Ray S. Jones, 11 Democratic Leader Kentucky State Senate State Capitol Room 330 Frankfort, Kentucky 40601 Re: Request to Rescind Executive Order 2018-586 Dear Rep. Adkins and Sen. Jones: Given my role as the Secretary of the Executive Branch agency charged with enforcing Kentucky?s occupational safety and health (OSH) laws, Governor Bevin asked that I respond to your respective July 27, 2018 and July 30, 2018 letters about Executive Order 2018?586. In short, though we appreciate your collective invitation to rescind Executive Order 2018-586, we decline to do so. As you know, newly minted gubernatorial candidate Andy Beshear recently called on Governor Bevin to take essentially the same action requested in your letters; namely, to rescind Executive Order 2018?586 and re?create the Occupational Safety and Health Standards Board (the ?Board?). And, like you, Candidate Beshear has expressed his concern that the abolishment of the Board will somehow decrease the effectiveness of Kentucky?s OSH scheme. Both of these [(01qu UNBRIDLE SPIRIT An Equal Opportunity Employer Hon. Rocky Adkins Hon. Ray S. Jones, II July 31, 2018 Page 2 positions illustrate a profound ignorance of the Board?s true impact on workplace safety in this state. Allow me to set the record straight. When Governor Bevin took office in December 2015, he brought a mandate to eliminate ?business as usual? in Frankfort, to implement meaningful and reasonable reforms to the size and scope of state government, and to serve the people??i.e., those who have entrusted us with the keys of more economical and efficient means. His decision to abolish the Board is consistent with this wellwsupported agenda. Turning specifically to the concerns set forth in your letters, you say Executive Order 2018? 586 somehow violates state law, yet KRS 12.028 grants the Governor the authority to ?temporarily effect a change in the state government organizational structure.? Governor Bevin has exercised this authority on more than one occasion since taking office, mostly without fanfare or opposition. KRS 12.020 lists the Board as a body of the Executive Branch. There is no law, like KRS 342.1228, for example, that expressly forbids the Governor from exercising this power as to the Board. And let?s not forget that the General Assembly, of which you are members, has the ultimate authority to either endorse or overturn the Governor?s proposed abolishment of the Board. So how, then, is Governor Bevin?s action unlawful? Indulge me for a small digression. I do not recall anyone in either of your caucuses?or Candidate Beshearwraising the same alarm of ?ignoring state law? when Democrats were the majority party in the House of Representatives and former Governor Steve Beshear established an unprecedented public policy initiative and co?opted an entire segment of Kentucky?s economy by creating ?kynect? out of whole cloth. This begs the question: Like most outrages du jour identified by opponents of the Bevin Administration these days, why is an act celebrated when taken by his predecessors, but deemed ?illegal? when Governor Bevin does so? Setting that question aside for another time, Executive Order 2018?586 takes into account current realities for Kentucky?s OSH system. In case you are not aware, or perhaps as a needed reminder, the baseline threshold for OSH law in this state derives from the federal Occupational Safety and Health Act, which is enforced generally by the US. Department of Labor (DOL). Kentucky, however, is a ?State Plan? state, which means DOL has agreed to allow Kentucky to enforce OSH standards within its borders. The reciprocal obligation of that agreement, however, is that Kentucky must maintain such laws, regulations, and standards that are ?as effective as? the federal counterparts enforced in ?non?State Plan? states. So under the ?State Plan? arrangement, Kentucky is obliged to affix its OSH standards to be commensurate to, or perhaps greater than, federal equivalents. In simple terms, and in practice, this means Kentucky generally adopts federal standards as its own. Moreover, to be in compliance with federal mandates, Kentucky must promulgate its parallel OSH regulations within six months of a federal OSH rule becoming effective. Toward that end, KRS 338.051 currently permits the Secretary of the Labor Cabinet, acting as the Chairman of the Board, to ?adopt established federal standards without [B]oard approval if necessary to meet federal time requirements.? And as the House minority leadership conceded in their letter, the General Assembly, through HB 314, recently granted to the Secretary the authority Hon. Rocky Adkins Hon. Ray S. Jones, 11 July 3 1 2018 Page 3 to suspend, delay, or alter enforcement of a promulgated OSH administrative regulation if the federal government has suspended, delayed, or enjoined the corresponding federal regulation. Thus, the Secretary can promulgate OSH regulations without Board approval to meet federal timelines, and the Secretary can unilaterally alter the enforcement of existing OSH regulations when DOL so acts. What, then, does the Board do exactly? If you are ?numbers people,? perhaps it is best to illustrate the point by mentioning a few statistics. Since 2008, when former Governor Beshear assumed office, the Board has met a total of 11 times and has considered no fewer, and likely more than, 41 changes to the state?s OSH regulations. Of those 41 alterations, three, or seven percent could, at best, be considered ?state?specific? changes with no federal mandate. Most, however, were simply ?rubber stamps? of regulations previously adopted by the Secretary within existing statutory parameters. So, again, with the Secretary exercising statutory authority to promulgate OSH regulations to meet federal timelines, and with the overwhelming majority of OSH regulations in the past decade coming on the heels of federal action, there appears to be no real need to have the Board. And despite the fact that the Board has met only twice since Governor Bevin took office, the number of recordable workplace incidents in Kentucky dropped to its lowest level in 2017-the most recent year available?beating the previous low established in 2016. That said, nothing in Executive Order 2018?5 86 precludes the Secretary from creating and relying upon ad hoc groups of experts to consider changes to the state?s OSH regulations. In fact, the Labor Cabinet has recently utilized this tool, through administrative orders, to consider changes to the Commonwealth?s workers? compensation system to meet legislative mandates. Although I cannot speak for future administrations, I see no reason to exclude the possibility that we might rely on such groups moving forward. Furthermore, Executive Order 2018?586 not only removes a superfluity in state government, but also aligns the OSH system to be consistent with other, important programs overseen and, if necessary, altered by either cabinet secretaries or commissioners. KRS 199.420, for example, grants to the Secretary of the Cabinet for Health and Family Services the authority to promulgate regulations related to foster care and adoption. KRS 227.300 permits the Commissioner of the Department of Housing, Buildings, and Construction to promulgate regulations related to standards for fire protection. Yet, under the logic set forth in your letters, and the logic proclaimed by Candidate Beshear, the only way to keep the sky from falling in these critical areas is to create multi~member boards that can pool the alleged ?expertise? of its members to create, alter, or abolish administrative regulations. For his part, Candidate Beshear also sees Executive Order 2018?586 as taking power from so?called ?experts? and placing it in the hands of a single ?at?will? political appointee. This position, however, fails to account forthe fact that employees within the Labor Cabinet, many of whom have spent their careers working on these issues, provide the advice and guidance the Secretary needs to make decisions on how best to regulate OSH standards. Should we deem those employees unnecessary if we take the advice you all and Candidate Beshear have given us? Hon. Rocky Adkins Hon. Ray S. Jones, 11 July 31, 2018 Page 4 Moreover, we should consider the fact that the Board was?and would be?comprised entirely of at-will gubernatorial appointees, any one of whom Governor Bevin could remove pursuant to KRS 63.080. I suppose it is fair to say that you and Candidate Beshear want Governor - Bevin to reinstate a process whereby twelve ?at?will? political appointees promulgate OSH regulations instead of one ?at-will? political appointee. But how do we justify to Kentuckians that this is a more efficient process? Still, the letter sent by the House minority leadership asks why Governor Bevin felt Executive Order 2018?586 was necessary. The better question to ask is why would Governor Bevin not abolish the Board? Again, the Secretary can act under existing law. The employees of the Labor Cabinet keep up with, and provide advice on, current OSH trends. The pr0posal streamlines the process of promulgating OSH regulations, including regulations intended to provide greater protections for KentUcky workers. And, for good measure, DOL does not require the Board to exist as part of the ?State Plan? arrangement, as we confirmed with our federal partners before Governor Bevin signed the Executive Order. True, Candidate Beshear?or any other gubernatorial aspirant, for that matter?may have twelve fewer political appointments in which to place his or her political supporters with the abolishment of the Board, but cronyism makes for bad public policy. Kentuckians deserve much better. In closing, let me say this: Serious issues deserve thoughtful deliberation by honest leaders. So, if you truly believe, as Governor Bevin and I do, that the primary function of government is to protect the people?and not to redistribute their wealth or grant them special privileges??1 invite you to call me so that we might collaborate in the area of OSH governance. All of you can continue to parrot Candidate Beshear?s short?sighted campaign talking points, or you can join us in taking seriously this government?s obligation to protect the workers of this great state from unnecessary harm. A good start would be asking your colleagues to support Governor Bevin?s prOposed reorganization of the Board when the General Assembly reconvenes in January 2019. Governor Bevin has made the latest move to, push this state forward. The ball is now in your court. Thank you again for your letter and for yourattention to my response. Should you have any questions or concerns about this or any other matter overseen by the Labor Cabinet, please do Sincerely, not hesitate to contact me. avid A. Dickerson Acting Secretary Kentucky Labor Cabinet cc: Hon. Dennis Keene Hon. Wilson Stone Hon. Dorsey Ridley Hon. Rocky Adkins Hon. Ray S. Jones, 11 July 3 1, 2018 Page 5 Hon. Julian M. Carroll Hon. Perry B. Clark Hon. Denise Harper Angel Hon. Morgan MeGarvey Hon. Gerald A. Neal Hon. Dennis Parrett Hon. Reginald Thomas Hon. Johnny Ray Turner Hon. Robin L. Webb