Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron
Attorney General
Capitol Building, Suite 118
700 Capital Avenue
Frankfort, Kentucky 40601
(502) 696-5300
Fax: (502) 564-2894
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 andOpinion of the Attorney General 23-08
November 27, 2023
Page 2
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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).Opinion of the Attorney General 23-08
November 27, 2023
Page 3
3
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.”1
Similarly, one general dictionary definition of the verb “mail” is “to send” through “a
nation’s postal system.”2 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.”3
“[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 § 11.4 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
1
Mail, Black’s Law Dictionary (11th ed. 2019).
2
Mail, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/mail (last
accessed Nov. 27, 2023).
3
Mail, Dictionary.com, https://www.dictionary.com/browse/mail (last accessed Nov. 27, 2023).
4
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.Opinion of the Attorney General 23-08
November 27, 2023
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the mid-1990s. At that time, email did not enjoy widespread use.5 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.6
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.
5
The first-ever emails exchanged between heads of state occurred in 1994 when the Prime Minister
of Sweden sent an email to the President of the United States, who sent an email of his own in return.
See Carl Bildt, “I sent the first email between heads of state—but the real revolution of connectivity is
still to come” (Dec. 13, 2016), available at https://qz.com/861001/i-sent-the-first-email-between-two-
heads-of-state-but-the-new-era-of-connectivity-will-change-the-world (last accessed Nov. 27, 2023).
“At that time, email was seen as revolutionary; 1994 was also the year the first commercial web
browser appeared.” Id.
6
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”).Opinion of the Attorney General 23-08
November 27, 2023
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Daniel Cameron
Attorney General
Aaron J. Silletto
Assistant Attorney General