Can a Kentucky agency email a hearing officer's recommended order to the parties instead of mailing it?

Plain-English summary

The Kentucky Public Pensions Authority runs administrative hearings under KRS Chapter 13B. After a hearing, the hearing officer writes a recommended order, and the parties get 15 days to file objections. The Authority wanted to deliver those recommended orders faster, either by email or by emailing a secure link to download the order, and it argued that electronic delivery would be quicker and more secure than paper mail. It asked the Attorney General whether KRS 13B.110(4) allows that.

The Attorney General's answer turned on one word: "mailed." The statute says the order "shall . . . be sent to each party," and the next clause measures the 15-day objection window from "the date the recommended order is mailed." Reading the statute as a whole, the opinion concluded it requires the order to be sent by mail. The harder question was whether "mailed" includes email. Using the "fixed-meaning canon," which gives a statute's words the meaning they had when it was adopted, the opinion looked back to 1994, when KRS 13B.110 was enacted. Email was barely in use then, so the General Assembly could not have meant "mailed" to include email. "Mailed" therefore means the U.S. Postal Service.

That is not the end of the story. The opinion noted that statutory rights can be knowingly and voluntarily waived. So an agency can ask a party to give up the right to paper service and agree to accept the order by email instead. The choice has to stay with the party, and the waiver has to be knowing and voluntary. Absent that consent, the agency must mail the order, and any broader change has to come from the legislature, not from the agency.

What this means for you

State agencies and agency counsel

Under this opinion, KRS 13B.110(4) requires a hearing officer's recommended order to be served by U.S. Mail. An agency cannot switch to electronic-only service on its own; that would take a change in the statute by the General Assembly.

Administrative law practitioners and hearing officers

The opinion holds that a party has a statutory right to receive a paper copy of the recommended order by mail, but may knowingly and voluntarily waive that right and consent to email or other electronic service.

Parties in administrative cases

For a party, the opinion confirms you are entitled to paper service by mail, and the 15-day window to file exceptions runs from the date the order is mailed. You can agree to accept electronic service, but the decision is yours.

Common questions

Q: Can a Kentucky agency email a recommended order instead of mailing it?
A: Not unless the party agrees. The opinion reads KRS 13B.110(4) to require U.S. Mail service, but says a party may knowingly and voluntarily waive that and accept email or other electronic service.

Q: Why does the date of the opinion matter for what "mailed" means?
A: The opinion applies the fixed-meaning canon, which gives statutory words the meaning they had when the statute was adopted. KRS 13B.110 was enacted in 1994, when email was not in widespread use, so "mailed" refers to the postal service.

Q: The statute says the order "may" be sent by regular mail. Doesn't "may" allow other methods?
A: No, according to the opinion. It reads the permissive "may" as meaning regular mail is allowed and more expensive forms of mail (like certified mail) are not required, not that non-mail methods are permitted.

Q: How long do parties have to object to a recommended order?
A: The opinion notes KRS 13B.110(4) gives parties 15 days from the date the recommended order is mailed to file exceptions with the agency head.

Background and statutory framework

The Kentucky Public Pensions Authority conducts administrative hearings under KRS Chapter 13B. KRS 13B.110(1) directs the hearing officer to submit a written recommended order, and KRS 13B.110(4) provides that a copy "shall also be sent to each party" with a 15-day window to file exceptions measured from "the date the recommended order is mailed," and that "[t]ransmittal of a recommended order may be sent by regular mail to the last known address of the party." Construing the statute under KRS 446.080(1) and (4) and the fixed-meaning canon, the opinion concluded "mailed" carries its 1994 meaning, the U.S. Postal Service, because KRS 13B.110 was enacted by 1994 Ky. Acts ch. 382 § 11. Relying on the general rule that statutory rights may be knowingly and voluntarily waived, the opinion allowed a party to consent to electronic service, while requiring mail service absent that consent.

Citations and references

Statutes:
- KRS 13B.110(4) (service of recommended order); KRS 13B.110(1) (written recommended order)
- KRS 446.080(1), (4) (construction); KRS 446.010(26) ("may" is permissive)
- KRS 13B.050(2); KRS 13B.120(5) (service of hearing notice and final order)

Cases:
- Commonwealth v. Shirley, 653 S.W.3d 571 (Ky. 2022)
- Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713 (Ky. 2012)
- Whittaker v. McClure, 891 S.W.2d 80 (Ky. 1995)
- Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542 (Ky. 2011)
- Commonwealth ex rel. Beshear v. Commonwealth, Off. of the Governor ex rel. Bevin, 498 S.W.3d 355 (Ky. 2016)
- Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015)
- American Gen. Life & Acc. Ins. Co. v. Hall, 74 S.W.3d 688 (Ky. 2002)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/Opinion%20of%20the%20Attorney%20General%2023-08.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
November 27, 2023
OAG 23-08
Subject: Whether KRS 13B.110(4) authorizes (a) the hearing officer's recommended order in an administrative case to be sent to the parties by email or (b) electronic notice to the parties that the hearing officer's recommended order may be viewed on, or downloaded from, a separate website or online platform.
Requested by: Michael Board, Executive Director, Office of Legal Services, Kentucky Public Pensions Authority
Written by: Aaron J. Silletto, Assistant Attorney General, Office of Civil and Environmental Law
Syllabus: KRS 13B.110(4) requires the hearing officer's recommended order in an administrative case to be sent to the parties via U.S. Mail. However, each party may waive his or her right to service by mail and agree to accept service by email or other electronic means.

Opinion of the Attorney General

The Kentucky Public Pensions Authority (KPPA) is required by law to conduct its administrative hearings in accordance with KRS Chapter 13B. See, e.g., KRS 13B.020; KRS 61.615(3)(e); KRS 61.645(16); KRS 61.665(3)(a). Under KRS Chapter 13B, hearing officers generally receive evidence at a hearing, then prepare and submit a written recommended order to the agency head. See KRS 13B.110(1). KRS 13B.110(4) governs how the hearing officer's recommended order is served on the parties. That statutes provides:

A copy of the hearing officer's recommended order shall also be sent to each party in the hearing and each party shall have fifteen (15) days from the date the recommended order is mailed within which to file exceptions to the recommendations with the agency head. Transmittal of a recommended order may be sent by regular mail to the last known address of the party.

KRS 13B.110(4).

KPPA desires to send these recommended orders to the parties via email or via an emailed link to a secure website or online platform where the parties can view, download, or print the recommended orders. KPPA takes the position that, when compared to storing the recommended orders on a secure online platform, sending the recommended orders by email would be far less secure and private. But both the online platform and service by email would be far more expedient than service of hard copies via the U.S. Postal Service. Expediency is an important interest because KRS 13B.110(4) gives parties only 15 days after service of the recommended order to file any exceptions. Thus, KPPA asserts that electronic service of recommended orders would be more expedient, efficient, and secure than service by mail, and it asks this Office whether such electronic service is permitted by KRS 13B.110(4).

KPPA's question is one of statutory construction. "When dealing with a question of statutory construction, we begin with the plain text." Commonwealth v. Shirley, 653 S.W.3d 571, 577 (Ky. 2022). "All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature." KRS 446.080(1). "The cardinal rule of statutory construction is that the intention of the legislature should be ascertained and given effect." Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 718 (Ky. 2012) (quoting MPM Fin. Grp., Inc. v. Morton, 289 S.W.3d 193, 197 (Ky. 2009)). Legislative intent is derived "from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under consideration." Commonwealth v. Wright, 415 S.W.3d 606, 609 (Ky. 2013). When a statute is plain and unambiguous on its face, we are not at liberty to construe the language otherwise. Whittaker v. McClure, 891 S.W.2d 80, 83 (Ky. 1995). "The statute must be read as a whole and in context with other parts of the law. All parts of the statute must be given equal effect so that no part of the statute will become meaningless or ineffectual." Lewis v. Jackson Energy Coop. Corp., 189 S.W.3d 87, 92 (Ky. 2005).

The first half of KRS 13B.110(4)'s first sentence states that "[a] copy of the hearing officer's recommended order shall . . . be sent to each party" (emphasis added). This opening clause does not state the manner in which the recommended order shall be sent, but the clause cannot be construed in isolation if the statute is to be "read as a whole." Lewis, 189 S.W.3d at 92. The very next clause sets the time for the parties to file exceptions based on "the date the recommended order is mailed" (emphasis added). Read in this context, KRS 13B.110(4) plainly requires the hearing officer's recommended order to "be sent to each party . . . [by] mail[ ]."

But what did the General Assembly mean when it said that the recommended order must be "mailed"? Kentucky statutes are to be construed in a manner that carries out the intent of the legislature. KRS 446.080(1). "All words and phrases" used in Kentucky statutes "shall be construed according to the common and approved usage of language. . . ." KRS 446.080(4). The General Assembly has not defined "mailed" in either KRS Chapter 13B or in the general definition statute, KRS 446.010. One prominent legal dictionary defines the word "mail" to mean, "To deposit (a letter, package, etc.) with the U.S. Postal Service; to ensure that a letter, package, etc. is properly addressed, stamped, and placed into a receptacle for mail pickup." [Mail, Black's Law Dictionary (11th ed. 2019).] Similarly, one general dictionary definition of the verb "mail" is "to send" through "a nation's postal system." [Mail, Merriam-Webster Dictionary.] Neither of these dictionaries mentions email when defining "mail." However, a newer online dictionary defines the verb "mail" to mean, first, "to send by mail, as by placing in a mailbox; transmit by a postal system" or, second, "to transmit by email." [Mail, Dictionary.com.]

"[I]f the statute is ambiguous or otherwise frustrates a plain reading, . . . we [may] resort to extrinsic aids such as . . . the canons of construction. . . ." Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). One relevant canon of construction, the "fixed-meaning canon," says that the words used in statutes should "be given the meaning they had when the text was adopted." Commonwealth ex rel. Beshear v. Commonwealth, Off. of the Governor ex rel. Bevin, 498 S.W.3d 355, 373 (Ky. 2016) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 78 (2012)). KRS 13B.110 was enacted in 1994. See 1994 Ky. Acts ch. 382 § 11. [KRS 13B.110 has only been amended once, see 1996 Ky. Acts ch. 318 § 10, but that amendment did not alter the text of subsection (4), which is at issue here.] While email is ubiquitous today, and most adults in the Commonwealth likely make regular use of an email account, that was not the case in the mid-1990s. At that time, email did not enjoy widespread use. With this background, it is exceptionally unlikely that the General Assembly in 1994 meant for "mailed" in KRS 13B.110(4) to refer to email. Thus, "mailed" in KRS 13B.110(4) has the same meaning now that it had at the time the statute was enacted and refers to sending the recommended order through the U.S. Postal Service.

A party to an administrative case has a statutory right under KRS 13B.110(4) to receive service of a paper copy of the hearing officer's recommended order through the U.S. Mail. But that is not to say that an agency, such as KPPA, can never serve recommended orders on a party by email or other suitable electronic means, if the party agrees. In general, "statutory rights may be subject to a knowing and voluntary waiver." Roe v. Commonwealth, 493 S.W.3d 814, 830 (Ky. 2015) (citing Humana, Inc. v. Blose, 247 S.W.3d 892, 896 (Ky. 2008)); see also American Gen. Life & Acc. Ins. Co. v. Hall, 74 S.W.3d 688, 693 (Ky. 2002) ("We have repeatedly held that both constitutional and statutory rights inuring to the benefit of a criminal defendant are subject to a knowing and voluntary waiver. We know of no reason why the same principle should not apply to" statutory civil causes of action (citations omitted)). An agency therefore may request that a party to an administrative case waive his or her right to receive a copy of the hearing officer's recommended order by mail and consent to service by email or other electronic means instead. The decision whether to agree to electronic service must remain with the party, and any waiver of the right to service of a paper copy of the recommended order by mail must be "knowing and voluntary."

KPPA's arguments for electronic service of process are well-meaning. But in conducting administrative proceedings under KRS Chapter 13B, an agency may not sidestep legislatively imposed requirements, such as the service-by-mailing requirement in KRS 13B.110(4). Any change in this requirement must come from the General Assembly, not from agency action.

[KRS 13B.110(4) also states that the "recommended order may be sent by regular mail" (emphasis added). The "may" in the statute is permissive. KRS 446.010(26). But that does not mean that service is permitted by means other than mailing; it means that regular mail may be used, and more expensive types of mail (e.g., registered mail or certified mail, return receipt requested) are not necessary. Cf. KRS 13B.050(2) (generally requiring a notice of administrative hearing to be served by certified mail, return receipt requested, or by personal service); KRS 13B.120(5) (requiring an agency's final order to be served "in the same manner as provided in KRS 13B.050").]

Daniel Cameron
Attorney General
Aaron J. Silletto
Assistant Attorney General