Can an EPIC board member who works for a coal company sit on the executive committee if the employer sells coal to utilities?

Plain-English summary

Kentucky's Energy Planning and Inventory Commission (EPIC) has an 18-member board, and five of those members form an executive committee. State law (KRS 164.2807(4)(g)) says no executive committee member may have "any current employment, contractual, or other direct financial relationship with any utility," other than as a retail customer. EPIC's executive director asked the Attorney General whether a board member who works for a coal company, where that coal company sells coal to utilities, can serve on the executive committee.

The Attorney General said yes. The opinion reads the statutory limit as applying to the individual member, not the member's employer. The member here had no personal employment, contract, or financial tie to any utility beyond being a regular electric customer; only his employer had coal-supply contracts with utilities. Imputing the employer's relationships to the employee would, the opinion explains, contradict the plain text and defeat the statute's purpose. The legislature deliberately stocked the EPIC board with people who have hands-on energy-industry experience (coal, oil and gas, transportation, and so on), so reading in an employer-based disqualification would make it nearly impossible to fill the executive committee and would frustrate the General Assembly's stated intent.

What this means for you

EPIC board members and appointing authorities

Under the opinion, eligibility for the executive committee turns on the individual's own relationships with utilities, not the member's employer's. A board member whose non-utility employer happens to contract with a utility is not disqualified on that basis. A member who is personally employed by, under contract with, or directly financially tied to a utility (beyond retail service) would be barred.

Government-ethics advisors and state agency officials

The opinion is a statutory-construction reading of one specific eligibility clause. It declines to add an "interpretive gloss" extending the disqualification to indirect, employer-level relationships, and it leans on the statute's declared purpose (KRS 164.2807(1)(p)) of drawing on diverse energy-industry expertise.

Common questions

Q: What does KRS 164.2807(4)(g) actually prohibit?
A: It bars an EPIC executive committee member from having any current employment, contractual, or other direct financial relationship with a utility, except as a customer of retail electric service, both when appointed and during service.

Q: The member's employer sells coal to utilities. Doesn't that count?
A: Not under this opinion. The opinion reads the restriction as personal to the member. The employer's coal-supply contracts are the employer's relationships, not the member's direct financial relationship with a utility.

Q: Why does the opinion stress legislative intent?
A: Because the statute deliberately fills the EPIC board with energy-industry representatives. The opinion reasons that disqualifying anyone whose employer deals with a utility would make it nearly impossible to seat an executive committee, defeating the law's purpose of using that expertise.

Background and statutory framework

EPIC is structured under KRS 164.2807, which sets an 18-member board drawn from across the energy sector and creates a five-member executive committee. The eligibility clause for that committee, KRS 164.2807(4)(g), is the focus of the opinion. Applying the principle that statutes are construed "as they are written" (Conn v. Kentucky Parole Board, 701 S.W.3d 76 (Ky. 2024)) and that legislative intent is the "lodestar" of interpretation (Normandy Farm, LLC v. Kenneth McPeek Racing Stable, Inc., 701 S.W.3d 129 (Ky. 2024)), the opinion declines to expand the disqualification beyond the individual member and points to the statute's own statement of purpose (KRS 164.2807(1)(p)) calling for input from diverse energy stakeholders.

Citations and references

Statutes:
- KRS 164.2807 (Energy Planning and Inventory Commission; board and executive committee)
- KRS 164.2807(4)(g) (executive committee eligibility)
- KRS 164.2807(1)(p) (declaration of legislative intent)

Cases:
- Conn v. Kentucky Parole Board, 701 S.W.3d 76 (Ky. 2024), statutes construed as written
- Normandy Farm, LLC v. Kenneth McPeek Racing Stable, Inc., 701 S.W.3d 129 (Ky. 2024), legislative intent as the lodestar

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2025-04.pdf

Original opinion text

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

March 24, 2025
OAG 25-04
Subject: May an employee of a Kentucky coal producer who has been
appointed to the Energy Planning and Inventory Commission
(“EPIC”) serve on the EPIC executive committee where the
member’s employer has contracts with one or more utilities to
supply coal?
Requested by: Rodney Andrews, PhD PE
Executive Director, EPIC
Written by: Christopher L. Thacker,
General Counsel
Syllabus: So long as the EPIC member individually does not have “any
current employment, contractual, or other direct financial
relationship with any utility,” other than as a customer, the
individual may serve on the executive committee if selected to do
so. To impute the employer’s relationship to the employee would
be contrary to both the express text and purpose of the statute.
Opinion of the Attorney General
Dr. Rodney Andrews as executive director of the Energy Planning and
Inventory Committee (“EPIC”) and on behalf of EPIC seeks an opinion regarding the
statutory eligibility of a member of the board of EPIC to serve on its executive
committee if selected to do so. The executive committee is composed of five individuals
including two EPIC board members who are selected by a vote of the full board. KRS
164.2807(4)(b)4.
The relevant facts, as set forth in Dr. Andrews’ opinion request, are as follows:
A member of EPIC appointed pursuant to [KRS
164.2807(4)(a)(3)] by Governor Andy Beshear by Executive
Order as the representative of the Kentucky coal
producers, nominated by the Kentucky Coal Association, is
a candidate to serve on the EPIC executive committee if
elected by the EPIC board. This member was an employee
of a Kentucky coal producer at the time of his appointment
as a member of EPIC and remains an employee of that
Kentucky coal producer. The member is not currently an
employee of any utility, has no contractual relationship
with any utility, and has no other direct financial
relationship with any utility other than as a customer of
retail electric service.
The member’s coal producer employer has contracts with
one or more utilities to supply coal. Likewise, many other
EPIC board members may be employees or representatives
of entities that have contracts with utilities, even though
the individual member may not.
KRS 164.2807(4)(g) provides the following limitation as to who can serve on
the EPIC executive committee:
Other than being a customer of retail electric service, no
member of the executive committee shall have any current
employment, contractual, or other direct financial
relationship with any utility at the time of their
appointment or during their service on the executive
committee.
As with all matters of statutory construction, our analysis begins with the words the
General Assembly used. See Conn v. Kentucky Parole Board, 701 S.W.3d 76, 82 (Ky.
2024)(“Statutes are to be construed as they are written, and ‘the intent of the
Legislature must be deduced from the language it used, when it is plain and
unambiguous[.]’”)(internal citation omitted). Here the relevant statutory limitation
is specific to the members of the executive committee individually—“no member of
the executive committee shall have any current employment, contractual, or other
direct financial relationship with any utility.”
The absence of any express or implied limitation based upon the member’s employer
(except where the employer is itself a utility) is particularly telling given that the
statute requires most members of the EPIC board to have a substantial relationship
with the energy industry. Of the eighteen board members, two are representatives of
utilities (one from an investor-owned and another from a cooperative), while the
others include representatives of “Kentucky coal producers,” “Kentucky oil and gas
producers,” businesses engaged in the transportation of coal and natural gas, and
nominees of Kentucky Industrial Utility Customers, the Kentucky Chamber of
Commerce, and the Kentucky Banker’s Association. Nothing in the text of KRS
164.2807 suggests that such members would be excluded from service on the
executive committee because of an indirect relationship with a utility. Indeed, adding
such an interpretive gloss would not only be inconsistent with the text of KRS
164.2807(4)(g) but would make it difficult, if not impossible, to select qualifying
members for the executive committee from among the eighteen total board members.
Moreover, it would be contrary to the expressed intent of the General Assembly in
enacting the statute. “[T]he intent of the legislature is the lodestar by which we are
guided. No interpretation of a statutory text can be called correct if it has not the
General Assembly’s purpose at its beginning and end.” Normandy Farm, LLC v.
Kenneth McPeek Racing Stable, Inc., 701 S.W.3d 129, 136 (Ky. 2024). Here, in
addition to the operative statutory text, the General Assembly has included a
relevant declaration of legislative purpose to guide construction of the statute. The
declaration of intent concludes by stating:
The numerous energy policy challenges facing the
Commonwealth require a comprehensive energy policy
informed by the input, judgment, experience, and expertise
of diverse stakeholders representing a variety of interests
and energy resources, including but not limited to coal, oil,
natural gas, wind, solar, hydropower, nuclear, and any
future or emerging resources to achieve the best results for
the citizens of the Commonwealth.
KRS 164.2807(1)(p). This statement of intent reinforces the conclusion that the
General Assembly specifically wanted individuals with personal involvement and
experience in the energy industry to serve in EPIC.
To expand the limitation on service on the executive committee beyond the express
scope of the text of KRS 164.2807(4)(g) by applying it to EPIC board members whose
non-utility employers have a contractual relationship with a utility would exclude
from leadership members with precisely the kind of expertise that the General
Assembly sought. This would frustrate rather than advance the General Assembly’s
intent. Accordingly, the EPIC board member nominated by the Kentucky Coal
Association is not prevented from serving on the executive committee if selected to do
so because of the contracts that the member’s coal producer employer has with one or
more utilities.
Russell Coleman
Attorney General
Christopher L. Thacker
General Counsel