Could Kentucky’s horse racing commission let private racetracks choose whether to hold furosemide-free races?

Plain-English summary

The Kentucky Attorney General concluded in 2015 that the Horse Racing Commission could not delegate to private racetracks the choice of whether a race would be furosemide-free. The statute placed responsibility for drug restrictions with the commission. The opinion treated each track’s choice of which medication rule applied as a discretionary regulatory decision that the commission could not surrender to a private party.

The AG examined the commission’s international medication protocol regulations, which let an association make the protocol a condition of a particular race. It said the commission could promote furosemide-free races through a framework retaining its own final approval and specifying an approval procedure.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a racetrack decide on its own which furosemide rule applied to a race?

The AG said no. It viewed the choice as discretionary drug regulation assigned to the commission by statute.

Did the opinion say the commission could never allow furosemide-free races?

No. It described a possible framework in which the commission kept final approval and set procedures for that approval.

Why did the AG call the regulation an invalid delegation?

The rule let private tracks choose whether to apply the protocol and left the commission without final review of that choice, according to the opinion.

Background and statutory framework

The horsemen’s association asked about the international medication protocol in 810 KAR 1:300 and related regulations. The AG read KRS 230.240(2) as assigning drug restrictions to the commission. It cited Ky. Real Estate Comm'n v. Milgrom, 197 S.W.3d 552, 554 (Ky. Ct. App. 2005), for the principle that an agency’s powers come from its enabling statute.

Citations and references

Authorities: KRS 230.240(2); 810 KAR 1:300; Ky. Real Estate Comm'n v. Milgrom, 197 S.W.3d 552, 554 (Ky. Ct. App. 2005).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Pages/Opinions.aspx
• Original Word document: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG15-017.doc

Original opinion text

OAG 15-017

December 18, 2015

Subject: Whether the Kentucky Horse Racing Commission may promulgate regulations allowing private racetracks to determine whether to hold furosemide-free races

Requested by: Martin A. Maline, Executive Director

Kentucky Horsemen’s Benevolent and Protective Association, Inc.

Written by: Matt James

Syllabus: The Kentucky Horse Racing Commission may not promulgate regulations delegating the authority to determine whether to hold furosemide-free races to private racetracks.

Statutes construed: KRS 230.240(2)

Opinion of the Attorney General

Martin A. Maline, Executive Director of the Kentucky Horsemen’s Benevolent and Protective Association, Inc. (“KHBPA”), has requested an opinion of this office on whether the Kentucky Horse Racing Commission (“KHRC”) may promulgate regulations delegating the authority to determine whether to have furosemide-free races to individual racetracks. We advise that the KHRC may not delegate the authority to determine whether to have furosemide-free races to individual racetracks.

The KHRC proposed several substantively identical regulations entitled “international medication protocol as a condition of race,” now codified at 810 KAR 1:300 (regulating thoroughbred racing), 811 KAR 1:300 (standardbred racing), and 811 KAR 2:300 (quarter horse, appalloosa, and Arabian racing). After a hearing before the Administrative Regulation Review Subcommittee on Sept. 8, 2015, the subcommittee found the proposed regulations to be deficient. However, on Sept. 28, 2015, the Governor promulgated the regulations notwithstanding the subcommittee’s finding of deficiency, and the regulations became effective on Nov. 6, 2015. 810 KAR 1:300 provides in relevant part:

Section 1. Definition. "International Medication Protocol" means a condition of a race that all horses nominated or entered to compete in the race shall not be administered furosemide less than twenty-four (24) hours prior to post time for the race.

Section 2. Notwithstanding any other provision of 810 KAR Chapter 1 to the contrary, an association may require adherence to the International Medication Protocol as a condition of a particular race. The association shall publish the requirement in its condition book or otherwise make the requirement known to all licensees participating in its race meeting. The horses entered to compete in an International Medication Protocol race shall not be eligible to receive furosemide less than twenty-four (24) hours prior to post time for the race. . . .

810 KAR 1:300 provides that individual racetracks may adopt the “international medical protocol” providing that horses may not be administered furosemide less than twenty-four hours prior to a race as a condition of a particular race. KRS 230.240(2) provides that “the racing commission shall promulgate administrative regulations for . . . restricting or prohibiting the use and administration of drugs or stimulants or other improper acts to horses prior to the horse participating in a race.” KRS 230.240(2) commits the power to restrict the administration of drugs to horses to KHRC. At issue is whether KHRC can delegate the authority to determine which furosemide rules apply to individual racetracks.

The question of what powers an administrative agency may delegate appears to be a question of first impression in Kentucky. “An administrative body's powers are defined and limited by the agency's enabling statute.” Ky. Real Estate Comm'n v. Milgrom, 197 S.W.3d 552, 554 (Ky. Ct. App. 2005). “When a statute prescribes the procedures that an administrative agency must follow, the agency may not add or subtract from those requirements.” Pub. Serv. Comm'n of Ky. v. Attorney Gen. of Commonwealth, 860 S.W.2d 296, 298 (Ky. Ct. App. 1993). “In general, administrative officers and bodies cannot alienate, surrender, or abridge their powers and duties, and they cannot legally confer on their employees or others authority and functions which under the law may be exercised only by them or by other officers or tribunals.” 73 C.J.S. Pub. Admin. Law and Procedure § 159. “‘An agency delegates its authority when it shifts to another party almost the entire determination of whether a specific statutory requirement . . . has been satisfied, or where the agency abdicates its final reviewing authority.” La. Forestry Ass'n Inc. v. Sec'y U.S. Dep't of Labor, 745 F.3d 653, 672 (3d Cir. 2014) (quoting Fund for Animals v. Kempthorne, 538 F.3d 124, 133 (2d Cir. 2008)).

The general rule is that administrative agencies may delegate ministerial tasks, but may not delegate discretionary powers. “While an administrative body cannot delegate quasi-judicial functions, it can delegate the performance of administrative and ministerial duties.” Krug v. Lincoln Nat. Life Ins. Co., 245 F.2d 848, 853 (5th Cir. 1957); Anderson v. Grand River Dam Auth., 446 P.2d 814, 818 (Okla. 1968) (“Administrative officers and bodies . . . may delegate merely ministerial functions . . . , they cannot delegate powers and functions which are discretionary or quasi-judicial in character, or which require the exercise of judgment.”); 2 Am. Jur. 2d Admin. Law § 65 (“Merely administrative and ministerial functions may be delegated to assistants whose employment is authorized, but there generally is no authority to delegate acts discretionary or quasi-judicial in nature.”); 73 C.J.S. Pub. Admin. Law and Procedure § 84 (“The agency cannot, however, delegate the legislative power itself to the private entity.”); see also Legislative Research Comm'n By & Through Prather v. Brown, 664 S.W.2d 907, 915 (Ky. 1984) (“Delegation, of legislative power, to be lawful, must not include the exercise of discretion as to what the law shall be. In addition, such delegation must have standards controlling the exercise of administrative discretion. Finally, the delegating authority must have the right to withdraw the delegation.”).

In Shearer v. Hall, 399 S.W.2d 701 (Ky. 1965), the court described the ministerial/discretionary distinction:

An official duty is ministerial when it is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts; that a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in its nature. Discretionary or judicial duties are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one or two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed.

Id. at 704. An act is ministerial when it is certain and imperative, involving execution of a specific act arising from fixed facts; it is discretionary when the act may be performed in multiple ways, and is left to the judgment of the performer.

As applied to KHRC’s international medical protocol regulations, the regulations vest discretionary power in the individual racetracks. The racetracks are given the option to determine whether to apply the international medical protocol or not, and KHRC has surrendered its final reviewing authority over that decision. As such, the regulations are an unconstitutional delegation to private actors of KHRC’s administrative authority to promulgate regulations governing the administration of drugs to horses. Accordingly, we advise that the international medical protocol regulations promulgated by KHRC, which allow individual racetracks the option to determine which furosemide administration rules apply, are an invalid delegation of administrative rulemaking authority to private actors.

Determination of whether a race is furosemide-free cannot be left solely to individual racetracks. Should KHRC wish to promote furosemide-free races, it may do so through an administrative framework which retains final approval of whether a race is furosemide-free with KHRC, and specifies procedures for that approval.

In summary, we advise that KHRC may not delegate to private actors its authority to determine which regulations for the administration of drugs to horses apply to a particular race, as setting regulations for the administration of drugs to horses is a discretionary function committed by statute to KHRC.

JACK CONWAY

ATTORNEY GENERAL

Matt James

Assistant Attorney General