Did Kentucky's 1992 executive lobbying registration fine apply despite the statute saying 'legislative agent'?

Plain-English summary

In 1994, Kentucky's Attorney General said a filing-penalty provision in the executive branch ethics law mistakenly used “legislative agent” where the legislature plainly meant “executive agency lobbyist.” The office read KRS 11A.990(6) as applying to executive agency lobbyists who failed to file or correct registrations under KRS 11A.211 or KRS 11A.216. It reached the same corrective reading for another phrase in the section, “executive lobbyist.”

The AG based that interpretation on the provision's place in an act addressing executive lobbying and the referenced registration documents. It said a failed 1994 corrective amendment did not settle legislative intent and that the penal nature of the fine did not require an interpretation that made the provision meaningless.

Currency note

This opinion was issued in 1994. 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.

Historical summary

Executive agency lobbyists and employers

The provision enacted in 1992 allowed the Executive Ethics Commission to fine a covered lobbyist or employer for missing initial or updated registration statements or failing to remedy a filing deficiency. The office said the phrase “legislative agent” in that provision was a drafting mistake, because the referenced filings belonged to executive agency lobbying.

Executive Branch Ethics Commission

The AG told the commission to read “legislative agent” and “executive lobbyist” as “executive agency lobbyist” in the relevant section. It pointed to the 1992 act's structure: earlier sections established legislative ethics, while the later section containing the disputed provision addressed executive agency lobbying.

Failed amendment and penal construction

The opinion rejected the argument that a corrective bill's failure in committee established a contrary intent. It also acknowledged lenity for penal statutes, but said obvious clerical error could be corrected when strict literal reading would drain the provision of meaning.

Common questions

Did the AG take “legislative agent” literally in this filing fine?

No. It concluded that context made the phrase an obvious error and read it as “executive agency lobbyist.”

Why did the registration references matter?

The AG said the initial and updated statements under KRS 11A.211 and KRS 11A.216 were filed by executive agency lobbyists, not legislative agents.

Did a failed legislative fix leave the drafting error in place for interpretation?

The AG said the failed amendment did not alter its conclusion because legislative inaction was too uncertain an indicator of intent.

Did the fine provision's penal character change the answer?

The AG said no. It recognized lenity but concluded the unmistakable drafting error still had to be corrected in the interpretation.

Background and statutory framework

KRS 11A.990(6) was enacted in a 1992 act whose later sections concerned executive agency lobbying. The AG applied a statutory-construction rule allowing courts to correct obvious mistaken words where context revealed the intended term, citing Asher v. Stacy. It compared the statutory setting, filings named in the penalty clause, an unsuccessful proposed amendment, and the rule of lenity before concluding that the executive lobbying reading controlled.

Citations and references

• KRS 11A.990(6): registration filing fine provision at issue.
• KRS 11A.211 and KRS 11A.216: executive agency lobbyist registration statements referenced in the fine provision.
• Asher v. Stacy, 299 Ky. 476, 185 S.W.2d 958, 959 (1945): correction of obvious statutory wording errors.
• Commonwealth v. Colonial Stores, Inc., 350 S.W.2d 465 (1961): lenity principle acknowledged by the AG.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG94-040.htm

Original opinion text

OAG 94-40

June 7, 1994

Jill LeMaster

Executive Director, Executive Branch Ethics Commission

Capitol Annex

Frankfort, Kentucky 40601

Re: KRS 11A.990(6)

Dear Ms. LeMaster:

You have asked how to construe KRS 11A.990(6), which says:

Any legislative agent or employer who fails to file the initial registration statement or updated registration statement required by KRS 11A.211 or 11A.216, or who fails to remedy a deficiency in any filing in a timely manner, may be fined by the [Executive Ethics] commission an amount not to exceed one hundred dollars ($100) per day, up to a maximum total fine of one thousand dollars ($1000).

You point out that the term "legislative agent" is an obvious error, and that the proper term should have been "executive agency lobbyist." There is not the slightest doubt that you are correct in this supposition, based on these facts:

KRS chapter 11A establishes the executive branch code of ethics, including provisions on executive agency lobbying; chapter 11A does not pertain to legislative lobbying.

The subsection in question was enacted in Acts 1992 1st Ex. Session c. 4. Sections 1 through 44 of that act established the legislative code of ethics. Sections 44 through 55 of the act are entitled "executive agency lobbying." The provision in question appears in section 55.

The "initial registration statement or updated registration statement required by KRS 11A.211 or 11A.216" is a document filed by executive agency lobbyists, not legislative agents.

Obviously the drafter of section 55 of the 1992 act mistakenly used the term "legislative agent," a term used profusely in sections 1 through 44 of the act, instead of "executive agency lobbyist," which is what section 55 is about. We note that even where section 55 gets the branch of government right, it uses the wrong term: section 55 refers to "executive lobbyist" instead of "executive agency lobbyist," the term that is otherwise used consistently throughout the act.

The general rule on the substitution of one word for another in a statute is:

Courts have permitted the substitution of one word for another where it is necessary to make the act harmonious or to avoid repugnancy or inconsistency, where the word to be substituted can be gathered from the context of the act, . . . where it is obvious that the word used in the act is the result of a clerical error, where the substitution will make the act sensible, give it force and effect, or make it rational, where the word to be substituted can be collected from extrinsic evidence, or where there will be beneficial results by the substitution.

2A Sutherland Statutory Construction 47.36 (4th ed.). A Kentucky rule has expressed the rule this way:

Not the literal language but the true intention or will of the Legislature is the law. That is what the courts endeavor to ascertain and declare and what the executive departments must obey. All rules of statutory construction have that in view. Since words are used to express an idea, if that idea is manifest, although inaptly or obscurely expressed, no usurpation is committed by declaring the legislative intent and no violence done by supplying, deleting or changing words or their arrangement in clarification. The general intent is the key to each part of an act. Often its purpose and its entire tenor disclose the inadvertent or careless misuse or omission of a word or phrase, and the courts are justified in correcting or supplying the proper language.

Asher v. Stacy, 299 Ky. 476, 185 S.W.2d 958, 959 (1945). Our courts have used this rule to substitute "tenth ward" for "eleventh and twelfth wards," Neutzel v. Ryans, 184 Ky. 292, 211 S.W. 852 (1919), and to change a statutory reference from 118.450(7) to 118.450(6), State Property & Buildings Commission v. Hays, Ky., 346 S.W.2d 3 (1961).

The incongruity presented by the interjection of "legislative agent" in the middle of a statute dealing with executive agency lobbyists supplies a perfect context for application of the rule that the right word may be substituted for the wrong word when there is no doubt what the legislature meant to say. Therefore KRS 11A.990(6) must be read to say "executive agency lobbyist" instead of "legislative agent." While we are on this subject we might as well point out that "executive lobbyist" in KRS 11A.990 should be read as "executive agency lobbyist."

You have pointed out that an amendment that would have repaired the statute was proposed in the 1994 legislative session but died in committee. This does not affect our opinion. Legislative inaction is a "weak reed upon which to lean" in construing statutes. 2A Sutherland Statutory Construction 49.10. It is sometimes difficult enough to determine what the legislature meant in enacting a measure; it is almost impossible to determine what it meant by not enacting the measure. The legislative path is so fraught with trips and turns that we cannot ascribe any particular significance to the fact that a proposal expired en route.

We have also considered the fact that KRS 11A.990 is a penal statute, and that penal statutes are construed in favor of lenity. Commonwealth v. Colonial Stores, Inc., 350 S.W.2d 465 (1961). However even penal statutes are subject to fundamental principles of statutory construction and must not be construed so strictly that they are stripped of all meaning. Barrett v. United States, 423 U.S. 212, 46 L.Ed.2d 450, 96 S.Ct. 498 (1976). When a legislative mistake is as palpable as the one in KRS 11A.990(6), the mistake must be rectified even though the statute is penal in nature.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General