Earnhardt's death, Sept. 11 lead to legislative proposals
By: David T. Thompson
KPA Executive Director

NASCAR and Attack on America events are getting lots of attention in legislatures across the nation. And Kentucky is no different.

Dale Earnhardt’s death in last year’s Daytona 500 has led several states to take up discussions on autopsy photos and records, while the Attack on America in September has resulted in numerous government security bills around the country. And strangely enough, the versions between states vary only slightly.

Kentucky’s current 60-day session has also included many of the old standbys -- public notice advertising, open records/open meetings, telemarketing, the environment and eavesdropping.

Prioritized, Senate Bill 136, filed by Sen. Richard Roeding, a Republican from Northern Kentucky, would be at the top of the list. SB 136 would allow public agencies more opportunities to go into closed session anytime a security issue or public record was to be discussed.

Government security was an issue taken up by Gov. Patton’s administration last fall following the events of Sept. 11. But before the session started, the administration announced that the current open records law was adequate enough to cover security concerns.

Roeding’s legislation, passed by the Senate 24-14 in mid-February, would allow a public agency to go into a closed session if a record involving security issues was to be discussed. Any action concerning that record would have to be done in a public meeting, however.

Terrorism is one thing but “other criminal acts” are another. And under the version approved by the Senate, discussions about “other criminal acts” could as well be done behind closed doors.

KPA’s general counsel Lora Morris testified against SB 136 in committee and suggested that language be deleted and a sunset
provision be included. The committee kept the bill intact. Sen. Roeding did file a floor amendment to delete the “other criminal acts” language but did not push that change.

Soon after the Senate approved the bill, the Bluegrass Chapter of the Society of Professional Journalists’ board voted to oppose SB 136 and are joining KPA in lobbying the House of Representatives

Even before SB 136 officially arrived in the House, some state representatives had already expressed interest in amending the bill to help with KPA’s concerns. Whether amendments to delete “other criminal acts” and a two-year sunset provision will become part of the final version remains to be seen.

As of press time, SB 136 was in the House State Government Committee awaiting a hearing. The two-year sunset provision means that if SB 136 passes both houses and is signed by Gov. Patton, it would be law only until July 15, 2004. By that time the legislature would either have to revive it or let the open meetings/open records laws return to the pre-2002 language.

Telemarketing -- Senate Republicans were blamed for no new telemarketing bills getting through the 2001 General Assembly and that message carried over into 2002 when the Democrats began radio commercials blasting the GOP for doing nothing to cut the number of supper-time sales calls.

Then telemarketing took on a “poker hand” strategy. The House passed a fairly restrictive House Bill 47 that cut the previous 22 exemptions to a half-dozen and asked the Senate how many cards it wanted. After hearing testimony over two weeks from the Federal Trade Commission and Missouri attorney general, the Senate Judiciary Committee kept its poker face on until holding a special meeting the week of Feb. 18.

At the meeting, the committee heard only from a representative of the AARP and HB 47’s sponsor, Rep. Buddy Buckingham.

And that’s when the Republicans called the bluff and laid down their hand. Most all exemptions were gone and added was language the Senate Republicans believe will make their restrictions binding on out-of-state telemarketers as well. The proposal got unanimous support from the committee and then passed the full Senate, 38-0, with members on both sides of the aisle claiming it was one of the strongest telemarketing bills in the country.

At press time, the House had received the new House Bill 47 with expectations it accept the Senate’s version and head to the governor.

Throughout telemarketing discussions, the focus was on who would and would not get exemptions. And it was as if only the ones with exemptions would be able to do any telemarketing calls.

That’s not correct. Any business will still be able to telemarket even if it’s not covered in the exemptions. However, those companies not exempted -- including newspapers -- can only telemarket by abiding by restrictions:

* calls can be made only between 10 a.m. and 9 p.m.

* the identity of the caller must be given within the first 30 seconds

* the call cannot be deceptive or fraudulent

* the business must abide by the Zero Call List. The list will be available in electronic format to any business and will contain the telephone numbers of individuals who have requested their number be placed on the Zero Call List. Businesses will be able to get the list electronically and at no charge. And House Bill 47 requires the list be available on a statewide basis and county by county. In addition, the list must be prepared in a searchable format so that companies can sort the list by area code or even local telephone exchanges. Any number on the Zero Call List means it wants to receive “zero” telemarketing calls.

The legislation also established significant penalties to any company that calls numbers on the Zero Call List, including fines of up to $5,000.

Public Notice Advertising -- One of the first bills KPA battled, House Bill 240, would have allowed school districts to publish financial statements on the internet instead of in newspapers. The House Education Committee took up Rep. Stan Lee’s proposal in mid-January and actually gave more “yeas” than “nays.” But since bills in committee must receive yea votes from more than half of the number of committee members, the bill failed. Three of the 29 committee members were not present when the vote was taken and HB 240 could muster only 14 yes votes. The proposal failed.

Some committee members voting against said it’s only a matter of time before serious consideration must be given to using the internet as an alternative for public notice advertising.

In late February, Sen. Katie Stine of Campbell County, filed SB 231 concerning state government construction projects. The legislation allows the state to establish a web site for announcing construction project bids but allows the notice to be published in a newspaper if the agency so chooses.

Eavesdropping and Jurors’ Names --Under Kentucky’s present law, only one person has to know a conversation is being recorded. But HB 119, filed by Rep. Keith Hall, would require all parties involved to be aware a recording is being made. Hall said he was a victim of the current law while serving as school board member in Pike County when some comments he made were recorded by the district’s superintendent.

The taped conversations were used against Hall in his race to become state representative. And even though he won despite those tapings, Hall wanted to do something to protect the unknown.

Hall willingly added an amendment to HB 119 that would allow journalists to be exempted from informing others that a conversation was being recorded and it passed committee. But after two weeks of waiting for passage by the House, a strategic move kept the bill from being considered for approval by the House.

Hall was also the chief sponsor of HB 265 that would require names of jurors be kept confidential. Hall cited a Pike County case where jurors were intimidated by a defendant and felt if the identities of the jurors had been confidential, they would not have received threats about the case.

Expungement -- At least three bills have been filed dealing with expungement of records, headed by Rep. Johnnie Turner’s House Bill 580. The bill would allow records to be expunged automatically if a person was found not guilty of a crime. KPA used the example of Mel Ignatow of Louisville, who was charged in the death of Brenda Sue Schaefer. Ignatow was found not guilty but two years later, evidence pointed at him and he admitted to the killing. Although he could not be tried on the murder charge again, he was found guilty of perjury for saying he did not kill Schaefer. Had Ignatow’s record been expunged when found not guilty, he may have escaped later evidence that pointed to him killing his former girlfriend.

Rep. Royce Adams filed HB 651 that allowed expungement in misdemeanor cases, a bill that wasn’t as serious as Turner’s but just another example of treating charges against individuals as if those charges never occurred.

The final expungement bill, Senate Bill 97, sponsored by Sen. Dick Adams, would have allowed expungement in certain cases of Emergency Protective Orders.

Hall’s jurors’ names bill and the two House expungement bills were in the House Judiciary Committee as of press time. Senate Bill 97 was awaiting a hearing before the Senate Judiciary Committee.

The General Assembly is closing in on the final stretch. As of Monday, March 2, only 22 days remain in the session. Two of those days are set aside for concurrence with changes made in bills in the other chamber and the final day, April 15, is reserved for veto overrides. The legislature is off the first two weeks of April while Gov. Patton considers any legislation he’ll veto.

And by March 6, we’ll know the total number of bills filed for the session. That’s because no new bills can be filed after March 4 in the House and March 6 in the Senate. Through the first 35 days, 1,035 bills had been filed during the 60-day session.