Does Kentucky's workforce-board statute (KRS 151B.290) conflict with federal law, so the Governor can refuse to implement it?
Plain-English summary
The Governor's administration had refused to implement KRS 151B.290, a 2022 law that gives Kentucky's local workforce development boards responsibility for planning, budgeting, and overseeing public workforce programs in their areas. The administration's position was that the statute conflicts with two federal laws, the Workforce Innovation and Opportunity Act (WIOA) and the Wagner-Peyser Act, and so could not lawfully be carried out. Senator Jimmy Higdon, who sponsored the underlying bill, asked the Attorney General to weigh in.
The Attorney General concluded there is no conflict. Going through each subsection the Education and Labor Cabinet flagged, the opinion found that the responsibilities KRS 151B.290 hands to local boards mirror the responsibilities federal law (29 U.S.C. § 3122(d)(8)) already places on those same boards. The state statute keeps the boards "Governor-certified" and requires them to report to the state, so it does not block the Governor from running the annual monitoring and sanctioning that federal law assigns to the Governor. Because both the state and federal schemes point the same direction, the opinion found nothing for the Supremacy Clause to override.
What this means for you
State legislators and the General Assembly
The opinion supports the view that KRS 151B.290 is enforceable. The Attorney General read the statute as aligned with, not preempted by, federal workforce law, and noted that the General Assembly overrode the Governor's 2022 veto of the underlying bill. This is the Attorney General's legal opinion, not a court ruling, so it does not by itself compel the executive branch to act.
Local workforce development boards
The opinion describes the statute as giving local boards "fiscal and administrative responsibilities for planning, oversight, and evaluation" of public workforce programs in their area, and frames those duties as matching what federal law (29 U.S.C. § 3122(d)(8)(A)) already expects of local boards. The opinion also stresses that the boards remain "Governor-certified" and must report annually to the Collaborative and the state board.
State agency officials (Education and Labor Cabinet)
The Cabinet had argued that three pieces of KRS 151B.290 collided with federal monitoring, certification, and single-agency requirements. The opinion addressed each and found no actual conflict: the state law assigns duties to local boards, while the federal provisions assign separate duties to the Governor and the Commonwealth, so the two can operate side by side.
Common questions
Q: What is KRS 151B.290?
A: It is a Kentucky statute, codified from a 2022 law, that sets up the Kentucky Education and Workforce Collaborative and gives local workforce development boards responsibility for planning, oversight, and evaluation of public workforce programs in their local areas.
Q: Why did the Governor's office refuse to implement it?
A: According to the opinion, the administration took the position that the statute violates federal law, specifically the Workforce Innovation and Opportunity Act and the Wagner-Peyser Act, because those laws give the Governor authority to oversee federally funded workforce programs.
Q: What did the Attorney General actually decide?
A: That no provision of KRS 151B.290 conflicts with either federal law. The opinion reads the state duties on local boards as mirroring the federal duties on those boards, and as leaving the Governor free to perform the oversight federal law separately requires.
Q: Does this opinion force the executive branch to implement the statute?
A: An Attorney General opinion is persuasive authority, not a binding court order. It expresses the Attorney General's legal view; it does not itself resolve a dispute between the branches the way a court judgment would.
Background and statutory framework
The dispute traces back to Executive Order 2020-551, which created the Kentucky Education and Workforce Collaborative to carry forward the state workforce board's strategic plan. In 2022 the General Assembly codified the Collaborative (2022 Ky. Acts ch. 220), over the Governor's veto, in what became KRS 151B.290.
The two federal statutes in the background are the Workforce Innovation and Opportunity Act, which builds a national workforce-development system and requires states to set up local boards that oversee and manage workforce funds (29 U.S.C. § 3122(d)(8)), and the Wagner-Peyser Act, which runs a national network of state employment offices and calls for a single designated state agency to manage parts of the labor-market information system (29 U.S.C. § 49l-2(e)(1)). The opinion's core move is that assigning duties to local boards under state law does not strip the Governor of the separate oversight duties federal law assigns, citing the rule that "when a state agency accepts federal funds appropriated under the spending clause, the supremacy clause requires conflicting local laws to yield" (Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002)), and finding no conflict to trigger it.
Citations and references
Statutes:
- KRS 151B.290 (Kentucky Education and Workforce Collaborative; local workforce development boards)
- 29 U.S.C. § 3101 et seq. (Workforce Innovation and Opportunity Act)
- 29 U.S.C. § 49 et seq. (Wagner-Peyser Act)
- 2022 Ky. Acts ch. 220
Cases:
- Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002), federal funds and the Supremacy Clause
Source
- Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
- Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2025-01.pdf
Original opinion text
The full opinion as issued by the Office of the Kentucky Attorney General:
February 10, 2025
OAG 25-01
Subject: Whether KRS 151B.290 conflicts with Federal law by giving
certain powers to local workforce development boards.
Requested by: Senator Jimmy Higdon
Kentucky Senate, District 14
Written by: Zachary M. Zimmerer
Assistant Attorney General
Syllabus: No provision of KRS 151B.290 conflicts with Federal law by
giving certain powers to local workforce development boards.
Opinion of the Attorney General
On July 7, 2020, the Governor issued Executive Order (“EO”) 2020-551,1 which
established the Kentucky Education and Workforce Collaborative (“the
Collaborative”). The Collaborative was tasked with “ensuring the continued
implementation of the Kentucky Workforce Innovation Board’s [(“the Board”)]
strategic plan.” EO 2020-551 § I. Among other provisions, the Executive Order
required “local workforce boards” to ensure that five operational outcomes are
achieved in their local area and to “report quarterly to the [Board] on measured
success and continuous improvement” of those outcomes “to ensure fulfillment of
[Workforce Innovation Opportunities Act] requirements.” Id. at § XI.
1 A copy of Executive Order 2020-551 is available on the Secretary of State’s website. See
https://web.sos.ky.gov/execjournalimages/2020-MISC-2020-0551-268390.pdf (last accessed Feb. 10,
2025).
The General Assembly codified the creation of the Collaborative in 2022.2 See
2022 Ky. Acts ch. 220 (creating what is now KRS 151B.2903). KRS 151B.290 now
establishes the membership of the Collaborative, requires the Collaborative to report
to the General Assembly, and sets the milestones to be achieved by the Collaborative,
the Commonwealth as a whole, and local workforce development boards (“local
boards”). Specifically, the statue requires each local board to assume “fiscal and
administrative responsibilities for planning, oversight, and evaluation of all public
workforce programs in the board’s local workforce development area in the state.”
KRS 151B.290(8)(a). The statute further requires that plans include “Governor-
certified local workforce development boards to provide local control,” KRS
151B.290(8)(b), and requires local workforce development boards to submit annual
reports to the Collaborative and the Board “detailing its attainment of the policies
and goals contains in the Governors current executive order issued pursuant to the
Workforce Innovation Opportunities Act,” KRS 151B.290(8)(c).
The executive branch has not implemented KRS 151B.290 since it was enacted.
According to Senator Higdon, the Governor maintains the position that the statute
violates Federal law. Thus, Senator Higdon asks whether KRS 151B.290 violates
Federal law.
The Office sought input from the Governor’s Office to explain how the Governor
believes KRS 151B.290 violates federal law. In response, the Education and Labor
Cabinet (“the Cabinet”) stated its belief that KRS 151B.290 violates both the
Workforce Innovation Opportunities Act (“WIOA”) and the Wagner-Peyser Act of
1933, as amended (“Wagner-Peyser Act”). The Cabinet explains that “the WIOA and
the Wagner-Peyser Act, along with associated federal regulations, provide numerous
provisions granting the Governor authority to oversee the operation and management
of workforce programs funded under the acts.”
The WOIA is intended to improve individuals’ abilities to succeed in the labor
market by developing “a comprehensive, accessible, and high-quality workforce
development system.” 29 U.S.C. § 3101(2). The WOIA requires a state’s governor to
work with a state workforce development board to develop a state plan detailing the
state’s workforce development system, providing how federal workforce development
2 The Governor vetoed 2022 Senate Bill 207 (sponsored by Senator Higdon) on April 8, 2022. His
veto message stated that he was vetoing the bill for two reasons: (1) it created “a redundant oversight
body” separate from the Collaborative created by EO 2020-551; and (2) it “may violate federal law.”
See Veto Message from the Governor of the Commonwealth of Kentucky Regarding Senate Bill 207 of
the 2022 Regular Session, available at https://apps.legislature.ky.gov/record/22rs/sb207/veto.pdf (last
accessed Feb. 10, 2025). Both chambers of the General Assembly voted to override the Governor’s veto
on April 13, 2022, and the bill was filed with the Secretary of State the following day, becoming 2022
Ky. Acts ch. 220.
3 KRS 151B.290 was amended in 2022 and again in 2023. See 2022 Ky. Acts ch. 236; 2023 Ky. Acts
ch. 90. These amendments are not relevant to this Opinion.
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funds will be used, and prescribing performance measures. Id. at §§ 3111(d), 3112(b),
3141. The WOIA further requires a state’s governor and local officials to establish
local workforce development boards. Id. at § 3122(a). Each local board is tasked with
submitting a local plan to the governor for approval on a four-year basis. Id. at
§§ 3122(d)(1), 3123(a). Additionally, local boards are tasked with program oversight
in their local area, and with funding management of all workforce development
activities. See id. at § 3122(d)(8).
The Wagner-Peyser Act establishes a national system of state-run employment
offices that assist persons in obtaining employment. Id. at § 49. The Wagner-Peyser
Act requires the Secretary of labor to work with states to develop minimum standards
of efficiency, establish uniformity in their administrative and statistical procedures,
provide information regarding employment opportunities, and maintain a system for
clearing labor between the states. Id. at § 49b(a).
The Cabinet identified three subsections of KRS 151B.290 it believes violate
Federal law. Each will be addressed in turn.
(1) Does KRS 151B.290(8)(a) violate the WIOA or the Wagner-Peyser Act?
KRS 151B.290(8) sets out milestones to be reached by local boards. The first
milestone is that local boards will assume “fiscal and administrative responsibilities
for planning, oversight, and evaluation of all public workforce programs in the board's
local workforce development area in the state.” KRS 151B.290(8)(a).
According to the Cabinet, this section contradicts sections of the WIOA and the
Wagner-Peyser Act, which require: (1) the “Governor of a State [to] conduct on an
annual basis onsite monitoring of each local area” to ensure compliance with
administrative requirements4; (2) the Governor to sanction local boards that do not
follow administrative requirements5; (3) the “State [to] annually monitor local areas
to ensure compliance” with administrative grant requirements6; and (4) the “state
[to] establish and maintain a management information system in accordance with
guidelines established by the Secretary designed to facilitate the compilation and
analysis of programmatic and financial data necessary for reporting, monitoring, and
evaluating purposes.”7
To start, the WIOA requires local boards to “conduct oversight” and “ensure
the appropriate use and management of the funds provided” for workforce
development activities, local employment and training activities, and local youth
4 29 U.S.C. § 3244(4).
5 29 U.S.C. § 3244(5).
6 29 U.S.C. § 3112(b)(2)(E)(v).
7 29 U.S.C. § 49i.
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workforce investment activities. See 29 U.S.C. § 3122(d)(8)(A)(i)–(iii). Far from
contradicting that requirement, KRS 151B.290(8)(a)’s requirements that local boards
assume “fiscal and administrative responsibilities” for “public workforce programs”
in their local area bring state law into lockstep with its federal equivalent. Thus, any
belief that KRS 151B.290(8)(a), which plainly mirrors the requirements of 29 U.S.C.
§ 3122(d)(8)(A)(i)–(iii), contradicts federal law is incorrect.
Moreover, looking to the federal laws the Cabinet believes conflict with KRS
151B.290(8)(a), it is apparent that the state statute does not conflict with those
federal requirements. “[W]hen a state agency accepts federal funds appropriated
under the spending clause, the supremacy clause requires conflicting local laws to
yield.” Westside Mothers v. Haveman, 289 F.3d 852, 860 (6th Cir. 2002). But KRS
151B.290(8)(a)’s requirement that the local boards manage the programs within their
local area does not bar the Governor from conducting the oversight required by 29
U.S.C. § 3244(4)–(5) or 29 U.S.C. § 3112(b)(2)(E)(v). Nor does that requirement
prevent the state from maintaining the information system required by 29 U.S.C. §
49(i). Rather, the statute requires collaboration with the Governor. KRS
151B.290(8)(a) requires local boards to be “Governor-certified,” and KRS
151B.290(8)(c) requires local boards to submit annual reports to the Collaborative8
and the Board, “detailing [their] attainment of the policies and goals contained in the
Governor’s current executive order” (emphasis added).9
Thus, the state statute, which imposes the same obligations on “Governor-
certified” local boards as are imposed by Federal law and requires the local boards to
annually document their attainment of “policies and goals” established by the
Governor, does not contradict Federal laws that impose completely separate
obligations on the Governor and the Commonwealth.
As such, it is the Office’s opinion that KRS 151B.290(8)(a) does not conflict with
the WIOA or the Wagner-Peyser Act.
(2) Does KRS 151B.290(8)(b) violate the WIOA?
The second milestone set out in KRS 151B.290(8) requires local boards to
develop “comprehensive system-wide budgets, strategic plans, implementation plans,
supervision agreements with different programmatic employers, memoranda of
understanding for the KCCs, and any infrastructure funding agreements required by
the Workforce Innovation and Opportunity Act.” KRS 151B.290(8)(b).
According to the Cabinet, this provision prevents the Governor from fulfilling
his obligation to certify to the Secretary of Labor that local workforce development
8 The Governor or his designee is chair of the Collaborative. KRS 151B.290(2)(a).
9 The Governor’s “current executive order” is EO 2020-521.
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boards are complying with administrative requirements. 29 U.S.C. § 3244(6). First,
like KRS 151B.290(8)(a), KRS 151B.290(8)(b) imposes requirements on local boards
that align with the federal requirements outlined in 29 U.S.C. § 3122(d)(8)(A)(i)–(iii).
Moreover, as discussed above, the local boards are “Governor-certified” and are
required to submit annual reports documenting their attainment of “policies and
goals” established by the Governor to the Collaborative and the Board. Thus, KRS
151B.290(8)(b)’s requirement that local boards develop administrative materials and
agreements associated with the federal obligations outlined in 29 U.S.C.
§ 3122(d)(8)(A)(i)–(iii) does not conflict with the WIOA.
(3) Does KRS 151B.290(7)(b) violate the Wagner-Peyser Act ?
Under KRS 151B.290(7)(b), the Commonwealth shall achieve the “[t]ransition
and consolidation of all federal and state workforce training, employment, and
employment-related programs into one (1) entity” by December 31, 2023.
According to the Cabinet, this provision conflicts with a provision of the
Wagner-Peyser Act that requires the governor of a state to “designate a single State
agency to be responsive for the management of the portions of the workforce and labor
market information system” and “establish a process for the oversight of such
system.” 29 U.S.C. § 49l-2(e)(1). The Cabinet asserts that the Governor, “not a
statutorily created collaborative,” must name the single state agency according to the
federal law. But KRS 151B.290(7)(b) does not conflict with the Governor’s ability to
meet that requirement. Rather, it merely requires that “federal and state workforce
training, employment, and employment-related programs” be managed by a single
entity. It is not readily apparent how two statutes, both of which both require a single
“state agency” or “entity” to manage certain programming, conflict with one another.
Rather, both statutes are unified in their intent to promote effective management by
a single entity or agency.
As such, it is the Office’s opinion that KRS 151B.290(7)(b) does not conflict with
the Wagner-Peyser Act.
(4) Does KRS 151B.290 violate the WIOA or the Wagner-Peyser Act?
Finally, the Cabinet asserts, without specifying any particular subsection, that
KRS 151B.290 conflicts with the general requirement that the Commonwealth
conduct certain evaluations in coordination with the Secretary of Labor and the
Secretary of Education. The Cabinet also asserts that KRS 151B.290 conflicts with
Federal statutes requiring certain portions of Federal funds to be reserved for
particular uses.
Although the Cabinet does not specify KRS 151B.290(8)(a) as the provision it
believes conflicts with Federal law, it does point to the authority assigned to local
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boards as the source of the conflict. But, as discussed above, the responsibilities KRS
151B.290(8)(a) assigns to local boards are aligned with those prescribed by 29 U.S.C.
§ 3122(d)(8)(A)(i)–(iii). Thus, KRS 151B.290(8)(a) does not conflict with Federal law
because it imposes the same obligations on local boards as its Federal counterpart.
For these reasons, it is the Office’s opinion that no provision of KRS 151B.290
conflicts with the WIOA or the Wagner-Peyser Act.
Russell Coleman
ATTORNEY GENERAL
Zachary M. Zimmerer
Assistant Attorney General
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