CHAPTER 35 Military Justice

35.010. Definitions for chapter.

As used in this chapter, unless the context otherwise requires:

  1. “State” means one (1) of the several states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the United States Virgin Islands;
  2. “Cadet,” “candidate,” or “midshipman” means a person who is enrolled in or attending a state military academy, a regional training institute, or any other formal education program for the purpose of becoming a commissioned officer in the state military forces;
  3. “Officer” means a commissioned or warrant officer;
  4. “Superior commissioned officer” means a commissioned officer superior in rank or command;
  5. “Enlisted member” means a person in an enlisted grade;
  6. “State active duty” means full-time military duty in the state military forces under an order of the Governor or otherwise issued by authority of law, and paid by state funds, and includes travel to and from the duty;
  7. “Military court” means a court-martial or a court of inquiry;
  8. “Military judge” means an official of a general and special court-martial detailed in accordance with KRS 35.125 ;
  9. “Classified information” means:
    1. Any information or material that has been determined by an official of the United States or any state pursuant to law, an executive order, or regulation to require protection against unauthorized disclosure for reasons of national or state security; and
    2. Any restricted data, as defined in the Atomic Energy Act of 1954, 42 U.S.C. sec. 2014(y) ;
  10. “Code” means this chapter;
  11. “National security” means the national defense and foreign relations of the United States;
  12. “Commanding officer” includes only commissioned officers of the state military forces and shall include officers in charge only when administering nonjudicial punishment under KRS 35.070 . The term “commander” has the same meaning unless the context otherwise requires;
  13. “Day” means:
    1. For the purpose of pay, one (1) day equals one (1) unit training assembly; and
    2. For all other purposes, one (1) day equals one (1) calendar day;
  14. “Record,” when used in connection with the proceedings of a court-martial, means:
    1. An official written transcript, written summary, or other writing relating to the proceedings; or
    2. An official audiotape, videotape, digital image or file, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced;
  15. “Duty status other than state active duty” means any other type of duty not in federal service and not full-time in the active service of the state, under an order issued by authority of law and includes travel to and from the duty;
  16. “Judge advocate” means a commissioned officer of the organized state military forces who is a member in good standing of the bar of the highest court of a state, and is:
    1. Certified or designated as a judge advocate in the Judge Advocate General’s Corps of the Army, Air Force, Navy, Marine Corps, or Coast Guard, or a reserve component of one (1) of these; or
    2. Certified as a non-federally recognized judge advocate, under regulations promulgated pursuant to this provision, by the senior judge advocate of the commander of the force in the state military forces of which the accused is a member, as competent to perform those military justice duties required by this code. If there is no judge advocate available, then the certification may be made by a senior judge advocate of the commander of another force in the state military forces, as the convening authority directs;
  17. “Accuser” means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused;
  18. “Military” refers to any or all of the Armed Forces;
  19. “Convening authority” includes, in addition to the person who convened the court, a commissioned officer commanding for the time being or a successor in command to the convening authority;
  20. “Officer in charge” means a member of the naval militia, the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority;
  21. “Senior force commander” means the commander of the same force of the state military forces as the accused;
  22. “Senior force judge advocate” means the senior judge advocate of the commander of the same force of the state military forces as the accused and who is that commander’s chief legal advisor;
  23. “State military forces” means the Kentucky National Guard as defined in Title 32 of the United States Code and as organized under the Constitution and laws of the Commonwealth of Kentucky. The unorganized militia, state defense force, state national guard, home guard, or any other name of any state force that does not meet this definition shall not be part of the “state military forces” under this code; and
  24. “Military offenses” means those offenses prescribed under KRS 35.440 , 35.442 , 35.450 , 35.451 , 35.470 , 35.471 , 35.472 , 35.473 , 35.474 , 35.4751 , 35.476 , 35.478 , 35.481 , 35.486 , 35.491 , 35.575 , 35.577 , 35.580 , 35.585 , 35.590 , 35.595 , 35.600 , 35.605 , 35.609 , 35.614 , 35.620 , 35.625 , 35.630 , 35.635 , 35.637 , 35.640 , 35.642 , 35.645 , 35.650 , 35.652 , 35.654 , 35.657 , 35.660 , 35.665 , 35.671 , 35.679 , 35.681 , 35.683 , 35.685 , 35.690 , 35.725 , 35.727 , and 35.730 .

History. Enact. Acts 1954, ch. 99, § 1; 1970, ch. 56, § 1; 1986, ch. 239, § 1, effective July 15, 1986; 1992, ch. 307, § 1, effective April 9, 1992; 2007, ch. 85, § 118, effective June 26, 2007; 2013, ch. 32, § 6, effective June 25, 2013; 2016 ch. 75, § 1, effective July 15, 2016.

Legislative Research Commission Note.

(6/25/2013). In subsection (24) of this statute, the list of KRS sections has been corrected. During the 2013 Regular Session of the General Assembly, the amendments to the Model State Code of Military Justice appeared in House Bill 362 and House Bill 167. The section numbers in these bills changed several times when alternative versions of the bills were introduced, but some of the internal references in subsection (24) of this statute ( 2013 Ky. Acts ch. 32, sec. 6) were inadvertently not corrected to correspond to those changes. Under the authority of KRS 7.136(1), the Reviser of Statutes has corrected those references to match the list that appears in Article 1(a)(14) of the Model State Code of Military Justice.

35.015. Persons subject to this code — Jurisdiction.

  1. This code applies to all members of the state military forces at all times and in all places.
  2. Subject matter jurisdiction is established if a nexus exists between an offense, either military or non-military, and the state military force. Courts-martial have primary jurisdiction of military offenses of this code. A proper civilian court has primary jurisdiction of a non-military offense when an act or omission violates both this code and local criminal law, foreign or domestic. In such a case, a court-martial may be initiated only after the civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes must be determined by the underlying offense.

History. Enact. Acts 1954, ch. 99, § 2; 1970, ch. 56, § 2; 2013, ch. 32, § 7, effective June 25, 2013.

Research References and Practice Aids

Cross-References.

Kentucky active militia, officers and enlisted men subject to code, KRS 37.265 .

35.020. Jurisdiction to try certain personnel.

  1. Each person discharged from the state military forces who is later charged with having fraudulently obtained a discharge is, subject to KRS 35.215 , subject to trial by court-martial on that charge and is, after apprehension, subject to this code while in custody under the direction of the state military forces for that trial. Upon conviction of that charge that person is subject to trial by court-martial for all offenses under this code committed prior to the fraudulent discharge.
  2. No person who has deserted from the state military forces may be relieved from amenability to the jurisdiction of this code by virtue of a separation from any subsequent period of service.

History. Enact. Acts 1954, ch. 99, § 3; 1970, ch. 56, § 3; 2013, ch. 32, § 8, effective June 25, 2013.

Research References and Practice Aids

ALR

Pendency of charges before, or sentence by, as affecting power of court to discharge minor from military service. 137 A.L.R. 1486; 147 A.L.R. 1311; 151 A.L.R. 1455; 153 A.L.R. 1420; 155 A.L.R. 1451; 157 A.L.R. 1449.

35.022. Judge advocates. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 56, § 5) was repealed, reenacted and amended as KRS 35.031 by Acts 2013, ch. 32, § 10, effective June 25, 2013.

35.025. Dismissal of commissioned officers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 4; 1970, ch. 56, § 4) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.030. Territorial applicability of the code.

  1. This code has applicability at all times and in all places subject to the personal jurisdiction as provided in KRS 35.015 , or, if not in a duty status, that there is a nexus between the act or omission constituting the offense and the efficient functioning of the state military forces; however, this grant of military jurisdiction shall neither preclude nor limit civilian jurisdiction over an offense, which is limited only by the prohibition of double jeopardy.
  2. Courts-martial and courts of inquiry may be convened and held in units of the state military forces while those units are serving outside the same jurisdiction and powers as to persons subject to this code as if the proceeding were held inside the state, and offenses committed outside the state may be tried and punished either inside or outside the state.

History. Enact. Acts 1954, ch. 99, § 5, effective July 1, 1954; 2013, ch. 32, § 9, effective June 25, 2013.

35.031. Judge advocates.

  1. The senior force judge advocates in each of the state’s military forces or that judge advocate’s delegates shall make frequent inspections in the field of supervision of the administration of military justice.
  2. Convening authorities shall at all times communicate directly with their judge advocates in matters relating to the administration of military justice. The judge advocate of any command is entitled to communicate directly with the judge advocate of a superior or subordinate command, or with the state judge advocate.
  3. No person who has acted as member, military judge, trial counsel, defense counsel, or investigating officer, or who has been a witness in any case may later act as a judge advocate to any reviewing authority upon the same case.

History. Repealed, reenact. and amend., Acts 2013, ch. 31, § 10, eff. June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.022 .

35.033. Military judges.

Procedures pertaining to the selection and regulation of military judges shall be promulgated by the adjutant general and approved by the Governor of the Commonwealth of Kentucky.

History. Enact. Acts 2013, ch. 32, § 11, effective June 25, 2013.

35.035. Apprehension.

  1. Apprehension is the taking of a person into custody.
  2. Any person authorized by this code or by 10 U.S.C. Chapter 47, or by regulations issued under either, to apprehend persons subject to this code, any marshal of a court-martial appointed pursuant to the provisions of this code, and any peace officer or civil officer having authority to apprehend offenders under the laws of the United States or of a state, may do so upon probable cause that an offense has been committed and that the person apprehended committed it.
  3. Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to quell quarrels, frays, and disorders among persons subject to this code and to apprehend persons subject to this code who take part therein.
  4. If an offender is apprehended outside the state, the offender’s return to the jurisdiction must be in accordance with normal extradition procedures or by reciprocal agreement.
  5. No person authorized by this section to apprehend persons subject to this code or the place where the offender is confined, restrained, held, or otherwise housed may require payment of any fee or charge for receiving, apprehending, confining, restraining, holding, or otherwise housing a person except as otherwise provided by law.

History. Enact. Acts 1954, ch. 99, § 6, effective July 1, 1954; 1986, ch. 239, § 2, effective July 15, 1986; 2013, ch. 32, § 12, effective June 25, 2013.

Opinions of Attorney General.

There is no conflict between RCr 2.04 and the provisions contained in subsection (2) of this section. OAG 79-576 .

Under the military code, the equivalent of a magistrate would be the commanding officer authorized under KRS 35.045(2) to order the apprehension of an individual who has violated the provisions of the code. OAG 79-576 .

35.040. Apprehension of deserters. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 7; 1970, ch. 56, § 6) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.045. Imposition of restraint.

  1. Arrest is the restraint of a person by an order not imposed as a punishment for an offense, directing the person to remain within certain specified limits. Confinement is the physical restraint of a person.
  2. An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person, or through other persons subject to this code. A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of the commanding officer’s command or subject to the commanding officer’s authority into arrest or confinement.
  3. A commissioned officer, a warrant officer, or a civilian subject to this code or to trial thereunder may be ordered into arrest or confinement only by a commanding officer to whose authority he or she is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons into arrest or confinement may not be delegated.
  4. No person may be ordered into arrest or confinement except for probable cause.
  5. This section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.

History. Enact. Acts 1954, ch. 99, § 8; 1970, ch. 56, § 7; 2013, ch. 32, § 13, effective June 25, 2013.

35.050. Restraint of person charged with offenses.

Any subject person charged with an offense under this code may be ordered into arrest or confinement, as circumstances may require. When any person subject to this code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform the person of the specific wrong of which the person is accused and diligent steps shall be taken to try the person or to dismiss the charges and release the person.

History. Enact. Acts 1954, ch. 99, § 9; 1970, ch. 56, § 8; 1986, ch. 239, § 3, effective July 15, 1986; 2013, ch. 32, § 14, effective June 25, 2013.

35.055. Place of confinement — Reports and receiving of prisoners.

  1. If a person subject to this code is confined before, during, or after trial, confinement shall be in a civilian or military confinement facility.
  2. No person authorized to receive prisoners pursuant to subsection (1) of this section may refuse to receive or keep any prisoner committed to the person’s charge by a commissioned officer of the state military forces, when the committing officer furnishes a statement, signed by the officer, of the offense charged against the prisoner, unless otherwise authorized by law.
  3. Every person authorized to receive prisoners pursuant to subsection (1) of this section, to whose charge a prisoner is committed shall, within twenty-four (24) hours after that commitment or as soon as he or she is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense charged against the prisoner, and the name of the person who ordered or authorized the commitment.

History. Enact. Acts 1954, ch. 99, § 10, effective July 1, 1954; 1986, ch. 239, § 4, effective July 15, 1986; 2013, ch. 32, § 15, effective June 25, 2013.

Opinions of Attorney General.

Jailer’s fees attributed to military prisoners of Kentucky should be paid out of the state treasury. OAG 64-460 .

Prisoners who are members of the national guard, not on extended active federal duty, for the purpose of jailer’s fees, are state prisoners and the fees should be paid out of the state treasury. OAG 64-460 .

35.057. Confinement with enemy prisoners prohibited.

No member of the state military forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the Armed Forces.

History. Enact. Acts 2013, ch. 32, § 16, effective June 25, 2013.

35.060. Punishment prohibited before trial.

No person, while being held for trial or awaiting a verdict, shall be subjected to punishment or penalty other than arrest or confinement upon the charges pending against the person, nor shall the arrest or confinement imposed upon the person be any more rigorous than the circumstances require to insure the person’s presence, but the person may be subjected to minor punishment during that period for infractions of discipline.

History. Enact. Acts 1954, ch. 99, § 11, effective July 1, 1954; 2013, ch. 32, § 17, effective June 25, 2013.

35.065. Delivery of offenders to civil authorities.

  1. A person subject to this code accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial or confinement.
  2. When delivery under this chapter is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender, after having answered to the civil authorities for the offense, shall, upon the request of competent military authority, be returned to the place of original custody for the completion of the person’s sentence.

History. Enact. Acts 1954, ch. 99, § 12; 1970, ch. 56, § 9; 2013, ch. 32, § 18, effective June 25, 2013.

Research References and Practice Aids

ALR

Civil and criminal liability of militiamen. 135 A.L.R. 10; 147 A.L.R. 1429; 151 A.L.R. 1463; 153 A.L.R. 1432; 154 A.L.R. 1457; 158 A.L.R. 1462.

Official immunity of state national guard members, 52 A.L.R.4th 1095.

Courts martial jurisdiction over members of armed forces for “civilian” offenses, 14 A.L.R. Fed. 152.

35.070. Commanding officer’s nonjudicial punishment.

  1. Under such regulations as prescribed, any commanding officer, and for purposes of this section, officers-in-charge, may impose disciplinary punishments for minor offenses without the intervention of a court-martial pursuant to this section. The Governor, the adjutant general, or an officer of a general or flag rank in command may delegate the powers under this section to a principal assistant who is a member of the state military forces.
  2. Any commanding officer may impose upon enlisted members of the officer’s command:
    1. An admonition;
    2. A reprimand;
    3. The withholding of privileges for not more than six (6) months;
    4. The forfeiture of pay of not more than seven (7) days’ pay;
    5. A fine of not more than seven (7) days’ pay;
    6. A reduction to the next inferior pay grade if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction;
    7. Extra duties, including fatigue or other duties, for not more than fourteen (14) days, which need not be consecutive; and
    8. Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen (14) days, which need not be consecutive.
  3. Any commanding officer of the grade of major or lieutenant commander or above may impose upon enlisted members of the officer’s command:
    1. Any punishment authorized in subsection (2)(a), (b), and (c) of this section;
    2. The forfeiture of not more than fourteen (14) days’ pay;
    3. A fine of not more than fourteen (14) days’ pay;
    4. A reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than two (2) pay grades;
    5. Extra duties, including fatigue or other duties, for not more than forty-five (45) days which need not be consecutive; and
    6. Restriction to certain specified limits, with or without suspension from duty, for not more than sixty (60) days which need not be consecutive.
  4. The Governor, the adjutant general, an officer exercising general court-martial convening authority, or an officer of a general or flag rank in command may impose:
    1. Upon officers in the officer’s command:
      1. Any punishment authorized in paragraph (a), (b), (c), or (f) of subsection (3) of this section; and
      2. Arrest in quarters for not more than thirty (30) days which need not be consecutive;
    2. Upon enlisted members of the officer’s command, any punishment authorized in subsection (3) of this section.
  5. Whenever any of those punishments are combined to run consecutively, the total length of the combined punishment cannot exceed the authorized duration of the longest punishment in the combination, and there must be an apportionment of punishments so that no single punishment in the combination exceeds its authorized length under this section.
  6. Prior to the offer of non-judicial punishment, the commanding officer shall determine whether arrest in quarters, restriction, forfeiture, or fine shall be considered as punishments. Should the commanding officer determine that the punishment options may include arrest in quarters, restriction, forfeiture, or fine, the accused shall be notified of the right to demand a trial by court-martial. Should the commanding officer determine that the punishment options will not include arrest in quarters, restriction, forfeiture, or fine, the accused shall be notified that there is no right to trial by courts-martial in lieu of non-judicial punishment.
  7. The officer who imposes punishment, or the successor in command, may, at any time, suspend, set aside, mitigate, or remit any part or amount of the punishment and restore all rights, privileges, and property affected. The officer also may mitigate:
    1. Reduction in grade to forfeiture of pay;
    2. Arrest in quarters to restriction; or
    3. Extra duties to restriction.

      The mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating reduction in grade to forfeiture of pay, the amount of the forfeiture shall not be greater than the amount that could have been imposed initially under this section by the officer who imposed the punishment mitigated.

  8. A person punished under this section who considers the punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority within fifteen (15) days after the punishment is either announced or sent to the accused, as the commander may determine. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection (7) of this section by the officer who imposed the punishment. Before acting on an appeal from a punishment, the authority that is to act on the appeal may refer the case to a judge advocate for consideration and advice.
  9. The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial or a civilian court of competent jurisdiction for a serious crime or offense growing out of the same act or omission, and not properly punishable under this section; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the amount of punishment to be adjudged in the event of a finding of guilty.
  10. Whenever a punishment of forfeiture of pay is imposed as provided in this section, the forfeiture may apply to pay accruing before, on, or after the date that punishment is imposed.
  11. Regulations may prescribe the form of forfeiture of records to be kept of proceedings under this section and may prescribe that certain categories of those proceedings shall be in writing.

History. Enact. Acts 1954, ch. 99, § 13; 1970, ch. 56, § 10; 1974, ch. 108, § 1; 1986, ch. 239, § 5, effective July 15, 1986; 2013, ch. 32, § 19, effective June 25, 2013; 2016 ch. 75, § 2, effective July 15, 2016.

35.075. Courts-martial classified.

The two (2) kinds of courts-martial in the state military forces are:

  1. General courts-martial, consisting of:
    1. A military judge and not less than five (5) members; or
    2. Only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed only of a military judge and the military judge approves; and
  2. Special courts-martial, consisting of:
    1. A military judge and not less than three (3) members; or
    2. Only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in subsection (1)(b) of this section so requests.

History. Enact. Acts 1954, ch. 99, § 14; 1970, ch. 56, § 11; 2013, ch. 32, § 20, effective June 25, 2013.

35.080. Jurisdiction of courts-martial in general.

Each component of the state military forces has court-martial jurisdiction over all members of the particular component who are subject to this code.

History. Enact. Acts 1954, ch. 99, § 15, effective July 1, 1954; 1986, ch. 239, § 6, effective July 15, 1986; 2013, ch. 32, § 21, effective June 25, 2013.

35.085. Jurisdiction of general courts-martial.

Subject to KRS 35.080 , general courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code, and may, under those limitations as the Governor may prescribe, adjudge any punishment not forbidden by this code.

History. Enact. Acts 1954, ch. 99, § 16; 1970, ch. 56, § 12; 1974, ch. 108, § 2; 1986, ch. 239, § 7, effective July 15, 1986; 2013, ch. 32, § 22, effective June 25, 2013.

35.090. Jurisdiction of special courts-martial.

Subject to KRS 35.080 , special courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code, and may, under those limitations as the Governor may prescribe, adjudge any punishment not forbidden by this code except dishonorable discharge, dismissal, confinement for more than one (1) year, forfeiture of pay exceeding two-thirds (2/3) pay per month, or forfeiture of pay for more than one (1) year.

History. Enact. Acts 1954, ch. 99, § 17; 1970, ch. 56, § 13; 1974, ch. 108, § 3; 1986, ch. 239, § 8, effective July 15, 1986; 2013, ch. 32, § 23, effective June 25, 2013.

35.095. Jurisdiction of summary courts-martial. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 18; 1970, ch. 56, § 14; 1974, ch. 108, § 4; 1986, ch. 239, § 9, effective July 15, 1986) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.100. Jurisdiction of courts-martial not exclusive. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 19) was repealed by Acts 1970, ch. 56, § 93.

35.105. Who may convene general courts-martial.

  1. General courts-martial may be convened by:
    1. The Governor;
    2. The adjutant general; or
    3. A general officer who is designated as a commander.
  2. If any such commanding officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by such superior competent authority if considered desirable by that authority.

History. Enact. Acts 1954, ch. 99, § 20, effective July 1, 1954; 2013, ch. 32, § 24, effective June 25, 2013.

35.110. Who may convene special courts-martial.

  1. Special courts-martial may be convened by:
    1. Any person who may convene a general court-martial;
    2. The commanding officer of a garrison, fort, post, camp, station, Air National Guard base, or naval base or station;
    3. The commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Army;
    4. The commanding officer of a wing, group, separate squadron, or corresponding unit of the Air Force; or
    5. The commanding officer or officer in charge of any other command, when empowered by the adjutant general.
  2. If any such officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by that superior authority if considered desirable by that authority.

History. Enact. Acts 1954, ch. 99, § 21, effective July 1, 1954; 2013, ch. 32, § 25, effective June 25, 2013.

35.115. Who may convene a summary court-martial. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 22, effective July 1, 1954) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.120. Who may serve on courts-martial.

  1. Any commissioned officer of the state military forces is eligible to serve on all courts-martial for the trial of any person subject to this code.
  2. Any warrant officer of the state military forces is eligible to serve on general and special courts-martial for the trial of any person subject to this code, other than a commissioned officer.
  3. Any enlisted member of the state military forces who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member subject to this code, but that member shall serve as a member of a court only if, before the conclusion of a session called by the military judge under KRS 35.195 prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it. After such request the accused shall not be tried by a general or special court-martial the membership of which does not include enlisted persons in a number comprising at least one-third (1/3) of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If enlisted members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained. For the purposes of this section, the word “unit” means any regularly organized body of the state military forces not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one (1) of them.
  4. When it can be avoided, no person subject to this code may be tried by a court-martial any member of which is junior to the accused in rank or grade.
  5. When convening a court-martial, the convening authority shall detail as members thereof such members of the state military forces as, in the convening authority’s opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of the state military forces is eligible to serve as a member of a general or special court-martial when that member is the accuser, a witness, or has acted as investigating officer or as counsel in the same case.

History. Enact. Acts 1954, ch. 99, § 23; 1970, ch. 56, § 15; 1974, ch. 108, § 5; 2013, ch. 32, § 26, effective June 25, 2013.

35.125. Military judge of a general or special court-martial.

  1. A military judge shall be detailed to each general and special court-martial. The military judge shall preside over each open session of the court-martial to which the military judge has been detailed.
  2. A military judge shall be all of the following:
    1. An active or retired commissioned officer of the Judge Advocate General’s Corps;
    2. A member in good standing of the bar of the highest court of a state or a member of the bar of a federal court for at least five (5) years; and
    3. A judge certified by the service component Judge Advocate General’s Corps, the senior force judge advocate of the state, or a judge of a court of competent jurisdiction who is approved by the adjutant general, subject to the order of succession in subsection (5) of this section. For purposes of this section, “certified” means the judge advocate certification and assignment as a military judge upon completion of the Judge Advocate General’s Legal Center and School’s military judge training, as referenced in Army Regulation 27-10 or Structure Manning Decision Review 27-10, paragraphs 1 through 4(b).
  3. In the instance when a military judge is not a member of the bar of the highest court of the state, the military judge shall be deemed admitted pro hac vice, subject to filing a certificate with the senior force judge advocate which is the same force as the accused setting forth the qualifications provided in subsection (2) of this section, and with notice and approval of the state bar and the Chief Justice of the Kentucky Supreme Court.
  4. The military judge of a general or special court-martial shall be designated by the senior force judge advocate which is the same force as the accused, or a designee, for detail by the convening authority. Neither the convening authority nor any staff member of the convening authority shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to performance of duty as a military judge.
  5. The senior force judge advocate shall designate the military judge who is currently assigned to the state military forces and certified as a military judge by his or her service component of the Judge Advocate General’s Corps. If that military judge is unavailable, then the senior force judge advocate shall designate upon consideration of this order of succession:
    1. A current member of the state military forces who has been certified as a military judge by his or her service component of the Judge Advocate General’s Corps;
    2. A current member of the state military forces who is both a judge advocate and an actively serving judge of a court of competent jurisdiction;
    3. A retired judge advocate of the state military forces who is an actively serving judge of a court of competent jurisdiction;
    4. Any other military judge certified by his or her service component of the Judge Advocate General’s Corps; or
    5. Any other military judge certified by the senior force judge advocate as set out in Structure Manning Decision Review 27-10.
  6. No person is eligible to act as military judge in a case if that person is the accuser, a witness, or has acted as investigating officer or a counsel in the same case.
  7. The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel, nor vote with the members of the court.
  8. The designation of a military judge shall not be by political appointment. The designation of a military judge by the senior force judge advocate under subsection (5) of this section shall ensure uniformity and impartiality, and prevent any appearance of impropriety. The senior force judge advocate shall assign a military judge from a predetermined list of military judges.
  9. A military judge does not have to be in the same service as the accused. However, the court-martial shall be conducted using the implementing regulations and procedures of the military service of the accused to the extent that they apply and are not inconsistent with this code. When a service member is tried by a court-martial convened by a joint commander, the applicable implementing regulations and procedures of the service of which the accused is a member shall be used to the extent they apply and are not inconsistent with this code, the state manual for courts-martial, and their implementing regulations.

History. Enact. Acts 1954, ch. 99, § 24; 1970, ch. 56, § 16; 2013, ch. 32, § 27, effective June 25, 2013; 2016 ch. 75, § 3, effective July 15, 2016.

35.130. Detail of trial counsel and defense counsel.

    1. For each general and special court-martial the authority convening the court shall detail trial counsel, defense counsel, and assistants as are appropriate. (1) (a) For each general and special court-martial the authority convening the court shall detail trial counsel, defense counsel, and assistants as are appropriate.
    2. No person who has acted as investigating officer, military judge, or court member in any case may act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution.
    3. Except as provided in subsection (2) of this section, trial counsel and defense counsel detailed for a general and special court-martial must be a judge advocate.
  1. In the instance when a defense counsel is not a member of the bar of the highest court of the state, the defense counsel shall be deemed admitted pro hac vice, subject to filing a certificate with the military judge setting forth qualifications that counsel is:
    1. A commissioned officer of the Armed Forces of the United States or a component thereof; and
    2. A member in good standing of the bar of the highest court of a state; and
    3. Either:
      1. Certified as a judge advocate in the Judge Advocate General’s Corps of the Army, Air Force, Navy, or the Marine Corps; or
      2. A judge advocate.

History. Enact. Acts 1954, ch. 99, § 25; 1970, ch. 56, § 17; 2013, ch. 32, § 28, effective June 25, 2013.

Legislative Research Commission Note.

(6/25/2013). The numbering and lettering of subsection (2) of this statute have been changed. Paragraphs (c) and (d) in the enacted version (2013 Ky. Acts ch. 32, sec. 28) have been renumbered as subparagraphs 1. and 2. of paragraph (c), and the word “Either:” has been inserted at the beginning of paragraph (c). The Reviser of Statutes has made this change under the authority of KRS 7.136(1).

35.135. Persons ineligible as staff judge advocate or legal officer to reviewing authority upon same case. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 26; 1970, ch. 36, § 18) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.140. Detail or employment of reporters and interpreters.

Under such regulations as may be prescribed, the convening authority of a general or special court-martial or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court and may detail or employ interpreters who shall interpret for the court.

History. Enact. Acts 1954, ch. 99, § 27; 1974, ch. 108, § 6; 2013, ch. 32, § 29, effective June 25, 2013.

35.145. Absent and additional members.

  1. No member of a general or special court-martial shall be absent or excused after the court has been assembled for the trial of the accused unless excused as a result of a challenge, excused by the military judge for physical disability or other good cause, or excused by order of the convening authority for good cause.
  2. Whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below five (5) members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than the applicable minimum number of five (5) members. The trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused, and counsel for both sides.
  3. Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below three (3) members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than three (3) members. The trial shall proceed with the new members present as if no evidence has been introduced previously at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation thereof is read to the court in the presence of the military judge, the accused, and counsel for both sides.
  4. If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, as a result of a challenge, or for other good cause, the trial shall proceed, subject to any applicable conditions in KRS 35.075(1)(b) or (2)(b), after the detail of a new military judge as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a stipulation thereof is read in court in the presence of the new military judge, the accused, and counsel for both sides.

History. Enact. Acts 1954, ch. 99, § 28; 1970, ch. 56, § 19; 2013, ch. 32, § 30, effective June 25, 2013.

35.150. Charges and specifications.

  1. Charges and specifications shall be signed by a person subject to this code under oath before a commissioned officer authorized by this chapter to administer oaths and shall state:
    1. That the signer has personal knowledge of, or has investigated, the matters set forth therein; and
    2. That they are true in fact to the best of the signer’s knowledge and belief.
  2. Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges as soon as practicable.

History. Enact. Acts 1954, ch. 99, § 29, effective July 1, 1954; 2013, ch. 32, § 31, effective June 25, 2013.

35.155. Compulsory self-incrimination prohibited.

  1. No person subject to this code may compel any person to incriminate himself or herself or to answer any question the answer to which may tend to incriminate him or her.
  2. No person subject to this code may interrogate or request any statement from an accused or a person suspected of an offense without first informing that person of the nature of the accusation and advising that person that the person does not have to make any statement regarding the offense of which the person is accused or suspected, and that any statement made by the person may be used as evidence against the person in a trial by court-martial.
  3. No person subject to this code may compel any person to make a statement or produce evidence before any military court if the statement or evidence is not material to the issue and may tend to degrade the person.
  4. No statement obtained from any person in violation of this section, or through the use of coercion, unlawful influence, or unlawful inducement shall be received in evidence against the person in a trial by court-martial.

History. Enact. Acts 1954, ch. 99, § 30; 1970, ch. 56, § 20; 2013, ch. 32, § 32, effective June 25, 2013.

35.160. Investigation.

  1. No charge or specification shall be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.
  2. The accused shall be advised of the charges against the accused and of the right to be represented at that investigation by counsel. The accused has the right to be represented at that investigation as provided in KRS 35.190 and in regulations prescribed under that section. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against the accused if they are available and to present anything the accused may desire in the accused’s own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.
  3. If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation as prescribed in subsection (2) of this section, no further investigation of that charge is necessary under this section unless it is demanded by the accused after the accused is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in the accused’s own behalf.
  4. If evidence adduced in an investigation under this section indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused having first been charged with the offense if the accused is:
    1. Present at the investigation;
    2. Informed of the nature of each uncharged offense investigated; and
    3. Afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (2) of this section.
  5. The requirements of this section are binding on all persons administering this code, but failure to follow them does not constitute jurisdictional error.

History. Enact. Acts 1954, ch. 99, § 31; 1970, ch. 56, § 21; 1972, ch. 154, § 1; 2013, ch. 32, § 33, effective June 25, 2013.

35.165. Forwarding of charges.

When a person is held for trial by general court-martial, the commanding officer shall, within eight (8) days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the person exercising general court-martial jurisdiction. If that is not practicable, the commanding officer shall report in writing to that person the reasons for delay.

History. Enact. Acts 1954, ch. 99, § 32, effective July 1, 1954; 2013, ch. 32, § 34, effective June 25, 2013.

35.170. Advice of judge advocate and reference for trial.

  1. Before directing the trial of any charge by general court-martial, the convening authority shall refer it to a judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless the convening authority has been advised in writing by a judge advocate that:
    1. The specification alleges an offense under this code;
    2. The specification is warranted by evidence indicated in the report of investigation under KRS 35.160 , if there is a report; and
    3. A court-martial would have jurisdiction over the accused and the offense.
  2. The advice of the judge advocate under subsection (1) of this section with respect to a specification under a charge shall include a written and signed statement by the judge advocate:
    1. Expressing conclusions with respect to each matter set forth in subsection (1) of this section; and
    2. Recommending action that the convening authority take regarding the specification.

      If the specification is referred for trial, the recommendation of the judge advocate shall accompany the specification.

  3. If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections and such changes in the charges and specifications as are needed to make them conform to the evidence may be made.

History. Enact. Acts 1954, ch. 99, § 33, effective July 1, 1954; 2013, ch. 32, § 35, effective June 25, 2013.

35.175. Service of charges.

The trial counsel shall serve or cause to be served upon the accused a copy of the charges. No person may, against the person’s objection, be brought to trial before a general court-martial case within a period of five (5) days after the service of charges upon the person, or in a special court-martial, within a period of three (3) days after the service of the charges upon the accused.

History. Enact. Acts 1954, ch. 99, § 34; 1970, ch. 56, § 22; 2013, ch. 32, § 36, effective June 25, 2013.

35.180. Governor or the adjutant general may prescribe rules.

Pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial cases arising under this code, and for courts of inquiry, may be prescribed by the Governor or adjutant general by regulations, or as otherwise provided by law, which shall apply the principles of law and the rules of evidence generally recognized in military criminal cases in the courts of the Armed Forces but which may not be contrary to or inconsistent with this code.

History. Enact. Acts 1954, ch. 99, § 35, effective July 1, 1954; 2013, ch. 32, § 37, effective June 25, 2013.

35.185. Unlawfully influencing action of court.

  1. No authority convening a general or special court-martial, nor any other commanding officer, or officer serving on the staff thereof, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or their functions in the conduct of the proceeding. No person subject to this code may attempt to coerce or, by unauthorized means, influence the action of a court-martial or court of inquiry or any member thereof in reaching the findings or sentence in any case, or the action of any convening, approving or reviewing authority with respect to their judicial acts. The foregoing provisions shall not apply to:
    1. General instructional or informational courses in military justice, if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial; or
    2. Statements and instructions given in open court by the military judge or counsel.
  2. In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the state military forces is qualified to be advanced in grade or in determining the assignment or transfer of a member of the state military forces or in determining whether a member of the state military forces should be retained on active status, no person subject to this code may in preparing any such report:
    1. Consider or evaluate the performance of duty of any such member as a member of a court-martial or witness therein; or
    2. Give a less favorable rating or evaluation of any counsel of the accused because of zealous representation before a court-martial.

History. Enact. Acts 1954, ch. 99, § 36; 1970, ch. 56, § 23; 2013, ch. 32, § 38, effective June 25, 2013.

35.190. Duties of trial counsel and defense counsel.

  1. The trial counsel of a general or special court-martial shall be a member in good standing of the state bar and shall prosecute in the name of the state, and shall, under the direction of the court, prepare the record of the proceedings.
    1. The accused has the right to be represented in defense before a general or special court-martial under KRS 35.160 as provided in this subsection. (2) (a) The accused has the right to be represented in defense before a general or special court-martial under KRS 35.160 as provided in this subsection.
    2. The accused may be represented by civilian counsel at the provision and expense of the accused.
    3. The accused may be represented:
      1. By military counsel detailed under KRS 35.130 ; or
      2. By military counsel of the accused’s own selection if that counsel is reasonably available as determined under paragraph (g) of this subsection.
    4. If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (c) of this subsection shall act as his associate counsel unless excused at the request of the accused.
    5. Except as provided under paragraph (f) of this subsection, if the accused is represented by military counsel of his own selection under paragraph (c)2. of this subsection, any military counsel detailed under paragraph (c)1. of this subsection shall be excused.
    6. The accused is not entitled to be represented by more than one (1) military counsel. However, the person authorized under regulations prescribed under KRS 35.130 to detail counsel, in that person’s sole discretion:
      1. May detail additional military counsel as assistant defense counsel; and
      2. If the accused is represented by military counsel of the accused’s own selection under paragraph (c)2. of this subsection, may approve a request from the accused that military counsel detailed under paragraph (c)1. of this subsection act as associate defense counsel.
    7. The senior force judge advocate of the same force of which the accused is a member, shall determine whether the military counsel selected by an accused is reasonably available.
  2. In any court-martial proceeding resulting in a conviction, the defense counsel may:
    1. Forward for attachment to the record of proceedings a brief of such matters as counsel determines should be considered in behalf of the accused on review, including any objection to the contents of the record which counsel may deem appropriate;
    2. Assist the accused in the submission of any matter under KRS 35.326 ; and
    3. Take other action authorized by this code.

History. Enact. Acts 1954, ch. 99, § 37; 1970, ch. 56, § 24; 2013, ch. 32, § 39, effective June 25, 2013.

Legislative Research Commission Note.

(6/25/2013). An internal reference has been changed in subsection (2)(c)1. of this statute. In the enacted version (2013 Ky. Acts ch. 32, sec. 39), there is a reference to “Section 23 of this Act” (KRS 35.090 ). However, it is clear from examining earlier versions of this legislation drafted during the 2013 Regular Session of the General Assembly, and from a reading of Article 38 of the Uniform State Code of Military Justice, that a reference to Section 28 (KRS 35.130 ) was intended. Accordingly, under the authority of KRS 7.136(1), the Reviser of Statutes has changed the reference to read “KRS 35.130 .”

35.195. Sessions.

  1. At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to KRS 35.175 , call the court into session without the presence of the members for the purpose of:
    1. Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;
    2. Hearing and ruling upon any matter which may be ruled upon by the military judge under this code whether or not the matter is appropriate for later consideration or decision by the members of the court;
    3. Holding the arraignment and receiving the pleas of the accused; and
    4. Performing any other procedural function which does not require the presence of the members of the court under this code. These proceedings shall be conducted in the presence of the accused, defense counsel, and trial counsel and shall be made part of the record. These proceedings may be conducted notwithstanding the number of court members and without regard to KRS 35.145 .
  2. When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any consultation of the members of the court with counsel or the military judge shall be made part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge.

History. Enact. Acts 1954, ch. 99, § 38; 1970, ch. 56, § 25; 2013, ch. 32, § 40, effective June 25, 2013.

35.200. Continuances.

The military judge of a court-martial may, for reasonable cause, grant a continuance to any party for such time and as often as appears to be just.

History. Enact. Acts 1954, ch. 99, § 39; 1970, ch. 56, § 26; 2013, ch. 32, § 41, effective June 25, 2013.

35.205. Challenges.

    1. The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge or the court shall determine the relevancy and validity of challenges for cause, and may not receive a challenge to more than one (1) person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered. (1) (a) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge or the court shall determine the relevancy and validity of challenges for cause, and may not receive a challenge to more than one (1) person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.
    2. If the exercise of a challenge for cause reduces the court below the minimum number of members required by KRS 35.075 , all parties shall, notwithstanding KRS 35.145 , either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed by the court. However, peremptory challenges shall not be exercised at that time.
    1. Each accused and trial counsel is entitled to one (1) peremptory challenge of members of the court. The military judge may not be challenged except for cause. (2) (a) Each accused and trial counsel is entitled to one (1) peremptory challenge of members of the court. The military judge may not be challenged except for cause.
    2. If the exercise of a peremptory challenge reduces the court below the minimum number of members required by KRS 35.075 , the parties shall, notwithstanding KRS 35.145 , either exercise or waive any remaining peremptory challenge not previously waived against the remaining members of the court before additional members are detailed to the court.
    3. Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to one (1) peremptory challenge against members not previously subject to peremptory challenge.

History. Enact. Acts 1954, ch. 99, § 40; 1970, ch. 56, § 27; 2013, ch. 32, § 42, effective June 25, 2013.

35.210. Oaths or affirmations.

  1. Before performing their respective duties, military judges, general and special courts-martial members, trial counsel, defense counsel, reporters and interpreters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully. The form of the oath or affirmation, the time and place of the taking thereof, the manner of recording the same, and whether the oath or affirmation shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulation or as provided by law. These regulations may provide that an oath or affirmation to perform faithfully the duties as a military judge, trial counsel, or defense counsel may be taken at any time by any judge advocate or other person certified or designated to be qualified or competent for the duty, and if such an oath or affirmation is taken, it need not again be taken at the time the judge advocate or other person is detailed to that duty.
  2. Each witness before a court-martial shall be examined on oath or affirmation.

History. Enact. Acts 1954, ch. 99, § 41; 1970, ch. 56, § 28; 2013, ch. 32, § 43, effective June 25, 2013.

35.215. Statute of limitations.

  1. Except as otherwise provided in this section, a person charged with any offense is not liable to be tried by court-martial or punished under KRS 35.070 if the offense was committed more than three (3) years before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command or before the imposition of punishment under KRS 35.070 . There shall be no statute of limitations for the crimes set forth in KRS 35.678 to 35.690 .
  2. Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this article.
  3. Periods in which the accused was absent from territory in which the state has the authority to apprehend him, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this section.
  4. When the United States is at war, the running of any statute of limitations applicable to any offense under this code:
    1. Involving fraud or attempted fraud against the United States, any state, or any agency of either in any manner, whether by conspiracy or not;
    2. Committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States or any state; or
    3. Committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or government agency;

      is suspended until two (2) years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.

  5. “War,” as used in subsection (4) of this section, means a period of war declared by Congress or the factual determination by the President that the existence of hostilities warrants a finding that a time of war exists.
    1. If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations: (6) (a) If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations:
      1. Has expired; or
      2. Will expire within one hundred eighty (180) days after the date of dismissal of the charges and specifications;

        trial and punishment under new charges and specifications are not barred by the statute of limitations if the conditions specified in paragraph (b) of this subsection are met.

    2. The conditions referred to in paragraph (a) of this subsection are that the new charges and specifications must:
      1. Be received by a commander within one hundred eighty (180) days after the dismissal of the charges or specifications; and
      2. Allege the acts or omissions that were alleged in the dismissed charges or specifications.

History. Enact. Acts 1954, ch. 99, § 42; 1970, ch. 56, § 29; 2013, ch. 32, § 44, effective June 25, 2013; 2016 ch. 75, § 4, effective July 15, 2016.

35.220. Former jeopardy.

  1. No person may, without his consent, be tried a second time for the same offense.
  2. No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed.
  3. A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused shall be a trial in the sense of this section.

History. Enact. Acts 1954, ch. 99, § 43; 1970, ch. 56, § 30; 2013, ch. 32, § 45, effective June 25, 2013.

Research References and Practice Aids

Cross-References.

Former jeopardy, Penal Code, KRS 505.020 to 505.050 .

35.225. Pleas of the accused.

  1. If an accused after arraignment makes any irregular pleading, or, after a plea of guilty, sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record and the court shall proceed as though he had pleaded not guilty.
  2. With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to the announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

History. Enact. Acts 1954, ch. 99, § 44; 1970, ch. 56, § 31; 2013, ch. 32, § 46, effective June 25, 2013.

35.230. Opportunity to obtain witnesses and other evidence.

The trial counsel, defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence as prescribed by regulations and provided by law. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall apply the principles of law and the rules of courts-martial generally recognized in military criminal cases in the courts of the Armed Forces of the United States, but which may not be contrary to or inconsistent with this code. Process shall run to any part of the United States, or the Territories, Commonwealths, and possessions, and may be executed by civil officers as prescribed by the laws of the place where the witness or evidence is located or of the United States.

History. Enact. Acts 1954, ch. 99, § 45; 1970, ch. 56, § 32; 2013, ch. 32, § 47, effective June 25, 2013.

35.235. Refusal to appear or testify.

  1. Any person not subject to this code, who:
    1. Has been duly subpoenaed to appear as a witness or to produce books and records before a court-martial or court of inquiry, or before any military or civil officer designated to take a deposition to be read in evidence before such a court;
    2. Has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending a criminal court of the state; and
    3. Willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce;

      may be punished by the military court in the same manner as a criminal court of the state.

  2. The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.

History. Enact. Acts 1954, ch. 99, § 46; 1970, ch. 56, § 33; 2013, ch. 32, § 48, effective June 25, 2013.

35.240. Contempt.

  1. A military judge may punish for contempt any person who uses any disrespectful word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder.
  2. A person subject to this code may be punished for contempt by confinement not to exceed thirty (30) days or a fine of one hundred dollars ($100), or both.
  3. Any person not subject to this code may be punished for contempt by a military court in the same manner as a criminal court of the state.

History. Enact. Acts 1954, ch. 99, § 47; 1970, ch. 56, § 34; 2013, ch. 32, § 49, effective June 25, 2013.

Research References and Practice Aids

ALR

Power of courts-martial to punish for contempt. 8 A.L.R. 1547; 54 A.L.R. 321.

35.245. Depositions.

  1. At any time after charges have been signed as provided in KRS 35.150 , any party may take oral or written depositions unless the military judge hearing the case, or, if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause.
  2. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.
  3. Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the state or by the laws of the place where the deposition is taken to administer oaths.
  4. A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape, digital image or file, or similar material, may be placed in evidence before any military court, if it appears:
    1. That the witness resides or is beyond the state in which the court is ordered to sit, or beyond one hundred (100) miles from the place of trial or hearing;
    2. That the witness, by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing; or
    3. That the present whereabouts of the witness is unknown.

History. Enact. Acts 1954, ch. 99, § 48; 1970, ch. 56, § 35; 2013, ch. 32, § 50, effective June 25, 2013.

35.250. Admissibility of records of courts of inquiry.

  1. In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence.
  2. Such testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.
  3. Such testimony may also be read in evidence before a court of inquiry.

History. Enact. Acts 1954, ch. 99, § 49; 1970, ch. 56, § 36; 2013, ch. 32, § 51, effective June 25, 2013.

35.252. Defense of lack of mental responsibility.

  1. It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.
  2. The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.
  3. Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall instruct the members of the court as to the defense of lack of mental responsibility under this section and charge them to find the accused:
    1. Guilty;
    2. Not guilty; or
    3. Not guilty only by reason of lack of mental responsibility.
  4. Subsection (3) of this section does not apply to a court-martial composed of a military judge only. In the case of a court-martial composed of a military judge only, whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall find the accused:
    1. Guilty;
    2. Not guilty; or
    3. Not guilty only by reason of lack of mental responsibility.
  5. Notwithstanding KRS 35.260 , the accused shall be found not guilty only by reason of lack of mental responsibility if:
    1. A majority of the members of the court-martial present at the time the vote is taken determines that the defense of lack of mental responsibility has been established; or
    2. In the case of a court-martial composed of a military judge only, the military judge determines that the defense of lack of mental responsibility has been established.

History. Enact. Acts 2013, ch. 32, § 52, effective June 25, 2013.

35.255. Voting and rulings.

  1. Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.
  2. The military judge shall rule upon all questions of law and interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court. However, the military judge may change the ruling at any time during the trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in KRS 35.260 , beginning with the junior in rank.
  3. Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them:
    1. That the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;
    2. That in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt shall be resolved in favor of the accused and he shall be acquitted;
    3. That if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and
    4. That the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the state.
  4. Subsections (1), (2), and (3) of this section do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum decision is filed, it will be sufficient if the findings of fact appear therein.

History. Enact. Acts 1954, ch. 99, § 50; 1970, ch. 56, § 37; 2013, ch. 32, § 53, effective June 25, 2013.

35.260. Number of votes required.

  1. No person may be convicted of an offense except as provided in KRS 35.225(2) or by the concurrence of two-thirds (2/3) of the members present at the time the vote is taken.
  2. All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion relating to the question of the accused’s sanity is a determination against the accused. A tie vote on any other question shall be a determination in favor of the accused.

History. Enact. Acts 1954, ch. 99, § 51; 1970, ch. 56, § 38; 2013, ch. 32, § 54, effective June 25, 2013.

35.265. Court to announce action.

A court-martial shall announce its findings and sentence to the parties as soon as determined.

History. Enact. Acts 1954, ch. 99, § 52, effective July 1, 1954; 2013, ch. 32, § 55, effective June 25, 2013.

35.270. Record of trial.

  1. Each general and special court-martial shall keep a separate record of the proceedings in each case before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his death, disability or absence, it shall be authenticated by the signature of the trial counsel or by that of a member, if the trial counsel is unable to authenticate it by reason of his or her death, disability, or absence. In a court-martial consisting of only a military judge, the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this subsection.
    1. A complete verbatim record of the proceedings and testimony shall be prepared in each general and special court-martial case resulting in a conviction. (2) (a) A complete verbatim record of the proceedings and testimony shall be prepared in each general and special court-martial case resulting in a conviction.
    2. In all other court-martial cases, the record shall contain such matters as may be prescribed by regulations.
  2. A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated.

History. Enact. Acts 1954, ch. 99, § 53; 1970, ch. 56, § 39; 1974, ch. 108, § 7; 2013, ch. 32, § 56, effective June 25, 2013.

35.275. Cruel and unusual punishments prohibited.

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment may not be adjudged by a court-martial or inflicted upon any person subject to this code. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

History. Enact. Acts 1954, ch. 99, § 54, effective July 1, 1954; 2013, ch. 32, § 57, effective June 25, 2013.

35.277. Maximum limits.

  1. The punishment which a court-martial may direct for an offense may not exceed such limits as prescribed by this code, but in no instance may a sentence exceed more than ten (10) years for a military offense, nor shall a sentence of death be adjudged. A conviction by general court-martial of any military offense for which an accused may receive a sentence of confinement for more than one (1) year is a felony offense. All other military offenses are misdemeanors.
  2. The limits of punishment for violations of the punitive articles prescribed in this code shall be lesser of the sentences prescribed by the manual for courts-martial of the United States in effect on January 1, 2004, and the state manual for courts-martial, but in no instance shall any punishment exceed that authorized by this code.

History. Enact. Acts 2013, ch. 32, § 58, effective June 25, 2013.

35.280. Effective date of sentences.

  1. Whenever a sentence of a court-martial, as lawfully adjudged and approved, includes a forfeiture of pay or allowances in addition to confinement not suspended, the forfeiture may apply to pay or allowances becoming due on or after the date the sentence is approved by the convening authority. No forfeiture may extend to any pay or allowances accrued before that date.
  2. Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.
  3. All other sentences of courts-martial are effective on the date ordered executed.

History. Enact. Acts 1954, ch. 99, § 55; 1970, ch. 56, § 40; 2013, ch. 32, § 59, effective June 25, 2013.

35.282. Deferment of sentences.

  1. On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under that person’s jurisdiction, the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may in that person’s sole discretion defer service of the sentence of confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the person who granted it or, if the accused is no longer under that person’s jurisdiction, by the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned.
    1. In any case in which a court-martial sentences an accused referred to in paragraph (b) of this subsection to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of the accused, until after the accused has been permanently released to the state military forces by a state, the United States, or a foreign country referred to in paragraph (b) of this subsection. (2) (a) In any case in which a court-martial sentences an accused referred to in paragraph (b) of this subsection to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of the accused, until after the accused has been permanently released to the state military forces by a state, the United States, or a foreign country referred to in paragraph (b) of this subsection.
    2. Paragraph (a) of this subsection applies to a person subject to this code who:
      1. While in the custody of a state, the United States, or a foreign country is temporarily returned by that state, the United States, or a foreign country to the state military forces for trial by court-martial; and
      2. After the court-martial, is returned to that state, the United States, or a foreign country under the authority of an agreement or treaty, as the case may be.
    3. In this subsection, the term “state” includes the District of Columbia and any commonwealth, territory, or possession of the United States.
  2. In any case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case under KRS 35.333 is pending, the adjutant general may defer further service of the sentence to confinement while that review is pending.

History. Enact. Acts 2013, ch. 32, § 60, effective June 25, 2013.

35.285. Execution of confinement.

  1. A sentence of confinement adjudged by a court-martial, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place authorized by this code. Persons so confined are subject to the same discipline and treatment as persons regularly confined or committed to that place.
  2. No place of confinement may require payment of any fee or charge for receiving or confining a person except as otherwise provided by law.

History. Enact. Acts 1954, ch. 99, § 56; 1962, ch. 159, § 1; 1970, ch. 56, § 41; 1982, ch. 385, § 14, effective July 1, 1982; 2013, ch. 32, § 61, effective June 25, 2013.

Opinions of Attorney General.

Jailer’s fees attributed to military prisoners of Kentucky should be paid out of the state treasury. OAG 64-460 .

Prisoners who are members of the national guard, not on extended active federal duty, for the purpose of jailer’s fees, are state prisoners and the the fees should be paid out of the state treasury. OAG 64-460 .

35.289. Sentences: reduction in enlisted grade upon approval.

  1. A court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, shall reduce that member to pay grade E-1, effective on the date of that approval, when it includes:
    1. A dishonorable or bad-conduct discharge; or
    2. Confinement.
  2. If the sentence of a member who is reduced in pay grade under subsection (1) of this section is set aside or disapproved, or, as finally approved, does not include any punishment named in subsection (1)(a) or (b) of this section, the rights and privileges of which the person was deprived because of that reduction shall be restored, including pay and allowances.

History. Enact. Acts 2013, ch. 32, § 62, effective June 25, 2013.

35.290. Approval of sentences required — Suspension or commutation of sentences. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 57) was repealed by Acts 1970, ch. 56, § 93.

35.294. Sentences: forfeiture of pay and allowances during confinement.

    1. A court-martial sentence described in paragraph (b) of this subsection shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this article shall take effect on the date determined under KRS 35.282 and may be deferred as provided by that section. The pay and allowances forfeited, in the case of a general court-martial, shall be all pay and allowances due that member during that period and, in the case of a special court-martial, shall be two-thirds (2/3) of all pay due that member during that period. (1) (a) A court-martial sentence described in paragraph (b) of this subsection shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this article shall take effect on the date determined under KRS 35.282 and may be deferred as provided by that section. The pay and allowances forfeited, in the case of a general court-martial, shall be all pay and allowances due that member during that period and, in the case of a special court-martial, shall be two-thirds (2/3) of all pay due that member during that period.
    2. A sentence covered by this section is any sentence that includes:
      1. Confinement for more than six (6) months; or
      2. Confinement for six (6) months or less and a dishonorable or bad-conduct discharge or dismissal.
  1. In a case involving an accused who has dependents, the convening authority or other person acting under KRS 35.326 may waive any or all of the forfeitures of pay and allowances required by subsection (1) of this section for a period not to exceed six (6) months. Any amount of pay or allowances that, except for a waiver under this subsection, would be forfeited shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused.
  2. If the sentence of a member who forfeits pay and allowances under subsection (1) of this section is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in subsection (1)(b) of this section, the member shall be paid the pay and allowances which the member would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.

History. Enact. Acts 2013, ch. 32, § 63, effective June 25, 2013.

35.295. Record to be forwarded to reviewing authority. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 58; 1970, ch. 56, § 42) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.300. Record to be referred to state judge advocate for opinion. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 59) was repealed by Acts 1970, ch. 56, § 93.

35.305. Return of record for reconsideration or revision. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 60, effective July 1, 1954) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.310. Rehearings. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 61; 1970, ch. 56, § 43) was repealed, reenacted, renumbered, and amended as KRS 35.329 by Acts 2013, ch. 32, § 68, effective June 25, 2013.

35.315. Approval of findings by convening authority. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 62; 1970, ch. 56, § 44) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.320. Disposition of record after review by convening authority. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 63; 1970, ch. 56, § 45) was repealed, reenacted and amended as KRS 35.332 by Acts 2013, ch. 32, § 70, effective June 25, 2013.

35.325. Error of law — Lesser included offense.

  1. A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.
  2. A reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.

History. Enact. Acts 1954, ch. 99, § 64, effective July 1, 1954; 2013, ch. 32, § 64, effective June 25, 2013.

35.326. Action by the convening authority.

  1. The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence.
    1. The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any such submission shall be in writing. Such a submission shall be made within ten (10) days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of a judge advocate under subsection (4) of this section. (2) (a) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any such submission shall be in writing. Such a submission shall be made within ten (10) days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of a judge advocate under subsection (4) of this section.
    2. If the accused shows that additional time is required for the accused to submit such matters, the convening authority or other person taking action under this section, for good cause, may extend the applicable period under paragraph (a) of this subsection for not more than an additional twenty (20) days.
    3. The accused may waive the right to make a submission to the convening authority under paragraph (a) of this subsection. A waiver must be made in writing and may not be revoked. For the purposes of subsection (3)(b) of this section, the time within which the accused may make a submission under this subsection shall be deemed to have expired upon the submission of a waiver to the convening authority.
    1. The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. If it is impractical for the convening authority to act, the convening authority shall forward the case to a person exercising general court-martial jurisdiction who may take action under this section. (3) (a) The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. If it is impractical for the convening authority to act, the convening authority shall forward the case to a person exercising general court-martial jurisdiction who may take action under this section.
    2. Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. The action may be taken only after consideration of any matters submitted by the accused under subsection (2) of this section or after the time for submitting such matters expires, whichever is earlier. The convening authority or other person taking the action, in that person’s sole discretion, may approve, disapprove, commute, or suspend the sentence in whole or in part.
    3. Action on the findings of a court-martial by the convening authority or other person acting on a sentence is not required. However, such person, in the person’s sole discretion, may:
      1. Dismiss any charge or specification by setting aside a finding of guilty thereto; or
      2. Change a finding of guilty to a charge or specification to a finding of guilty to any offense that is a lesser included offense of the offense stated in the charge or specification.
  2. Before acting under this section on any general or special court-martial case in which there is a finding of guilty, the convening authority or other person taking action under this section shall obtain and consider the written recommendation of a judge advocate. The convening authority or other person taking action under this section shall refer the record of trial to the judge advocate, and the judge advocate shall use that record in the preparation of the recommendation. The recommendation of the judge advocate shall include such matters as may be prescribed by regulation and shall be served on the accused, who may submit any matter in response under subsection (2) of this section. Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object thereto.
    1. The convening authority or other person taking action under this section, in the person’s sole discretion, may order a proceeding in revision or a rehearing. (5) (a) The convening authority or other person taking action under this section, in the person’s sole discretion, may order a proceeding in revision or a rehearing.
    2. A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the finding or sentence that can be rectified without material prejudice to the substantial rights of the accused. In no case, however, may a proceeding in revision:
      1. Reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty;
      2. Reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some section of this code; or
      3. Increase the severity of the sentence unless the sentence prescribed for the offense is mandatory.
    3. A rehearing may be ordered by the convening authority or other person taking action under this article if that person disapproves the findings and sentence and states the reasons for disapproval of the findings. If that person disapproves the findings and sentence and does not order a rehearing, that person shall dismiss the charges. A rehearing as to the findings may not be ordered where there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.

History. Enact. Acts 2013, ch. 32, § 65, effective June 25, 2013.

35.327. Withdrawal of appeal.

  1. In each case subject to appellate review under this code, the accused may file with the convening authority a statement expressly withdrawing the right of the accused to an appeal. A withdrawal shall be signed by both the accused and his defense counsel and must be filed in accordance with appellate procedures as provided by law.
  2. The accused may withdraw an appeal at any time in accordance with appellate procedures as provided by law.

History. Enact. Acts 2013, ch. 32, § 66, effective June 25, 2013.

35.328. Appeal by the state.

    1. In a trial by court-martial in which a punitive discharge may be adjudged, the state may appeal the following, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial, or by a judge in a bench trial so long as it is not made in reconsideration: (1) (a) In a trial by court-martial in which a punitive discharge may be adjudged, the state may appeal the following, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial, or by a judge in a bench trial so long as it is not made in reconsideration:
      1. An order or ruling of the military judge which terminates the proceedings with respect to the charge or specification;
      2. An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding;
      3. An order or ruling which directs the disclosure of classified information;
      4. An order or ruling which imposes sanctions for nondisclosure of classified information;
      5. A refusal of the military judge to issue a protective order sought by the state to prevent the disclosure of classified information; and
      6. A refusal by the military judge to enforce an order described in subparagraph 5. of this paragraph that has previously been issued by the appropriate authority.
    2. An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within seventy-two (72) hours of the order or ruling. The notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one which excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.
    3. An appeal under this section shall be diligently prosecuted as provided by law.
  1. An appeal under this section shall be forwarded to the court prescribed in KRS 35.333 . In ruling on an appeal under this section, that court may act only with respect to matters of law.
  2. Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.

History. Enact. Acts 2013, ch. 32, § 67, effective June 25, 2013.

35.329. Rehearings.

Each rehearing under this code shall take place before a court-martial composed of members who were not members of the court-martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which the accused was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes a plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agreement, the approved sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.

History. Repealed, reenacted, and amended Acts 2013, ch. 32, § 68, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.310

35.330. Approval of finding on lesser included offense. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 65, effective July 1, 1954) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.331. Review by the senior force judge advocate.

  1. Each general and special court-martial case in which there has been a finding of guilty shall be reviewed by the senior force judge advocate, or a designee. The senior force judge advocate or designee may not review a case under this subsection if that person has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The senior force judge advocate’s review shall be in writing and shall contain the following:
    1. Conclusions as to whether:
      1. The court had jurisdiction over the accused and the offense;
      2. The charge and specification stated an offense; and
      3. The sentence was within the limits prescribed as a matter of law;
    2. A response to each allegation of error made in writing by the accused; and
    3. If the case is sent for action under subsection (2) of this section, a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.
  2. The record of trial and related documents in each case reviewed under subsection (1) of this section shall be sent for action to the adjutant general if:
    1. The judge advocate who reviewed the case recommends corrective action;
    2. The sentence approved under KRS 35.326(3) extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than six (6) months; or
    3. Action is otherwise required by regulations of the adjutant general.
    1. The adjutant general may: (3) (a) The adjutant general may:
      1. Disapprove or approve the findings or sentence, in whole or in part;
      2. Remit, commute, or suspend the sentence in whole or in part;
      3. Except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; or
      4. Dismiss the charges.
    2. If a rehearing is ordered but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.
    3. If the opinion of the senior force judge advocate, or designee, in the senior force judge’s review under subsection (1) of this section is that corrective action is required as a matter of law and if the adjutant general does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and action thereon shall be sent to the Governor for review and action as deemed appropriate.
  3. The senior force judge advocate, or a designee, may review any case in which there has been a finding of not guilty of all charges and specifications. The senior force judge advocate, or designee, may not review a case under this subsection if that person has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The senior force judge advocate’s review shall be limited to questions of subject matter jurisdiction.
  4. The record of trial and related documents in each case reviewed under subsection (4) of this section shall be sent to the adjutant general. The adjutant general may:
    1. When subject matter jurisdiction is found to be lacking, void the court-martial ab initio, with or without prejudice to the government, as the adjutant general deems appropriate; or
    2. Return the record of trial and related documents to the senior force judge advocate for appeal by the government as provided by law.

History. Enact. Acts 2013, ch. 32, § 69, effective June 25, 2013.

35.332. Disposition of records after review by the convening authority.

Except as otherwise required by this code, all records of trial and related documents shall be transmitted and disposed of as prescribed by regulation and provided by law.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 70, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.320 .

35.333. Review by state appellate authority.

Final decisions of a court-martial shall be deemed the statutory equivalent of a Circuit Court decision. The appellate procedures to be followed shall be those provided by law for the appeal of criminal cases.

History. Enact. Acts 2013, ch. 32, § 71, effective June 25, 2013.

35.334. Appellate counsel.

  1. The senior force judge advocate shall detail a judge advocate as appellate government counsel to represent the state in the review or appeal of cases specified in KRS 35.333 and before any federal court when requested to do so by the state Attorney General. Appellate government counsel must be a member in good standing of the bar of the highest court of the state to which the appeal is taken.
  2. Upon an appeal by the state, an accused has the right to be represented by detailed military counsel before any reviewing authority and before any appellate court.
  3. Upon the appeal by an accused, the accused has the right to be represented by military counsel before any reviewing authority.
  4. Upon the request of an accused entitled to be so represented, the senior force judge advocate shall appoint a judge advocate to represent the accused in the review or appeal of cases specified in subsections (2) and (3) of this section.
  5. An accused may be represented by civilian appellate counsel at no expense to the state.

History. Enact. Acts 2013, ch. 32, § 72, effective June 25, 2013.

35.335. Counsel for accused before reviewing authority. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 66; 1970, ch. 56, § 46) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.336. Execution of sentence — Suspension of sentence.

  1. If the sentence of the court-martial extends to dismissal or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn under KRS 35.327 , that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings. A judgment as to the legality of the proceedings is final in such cases when review is completed by an appellate court prescribed in KRS 35.333 , and is deemed final by the law of the state where the judgment was had.
  2. If the sentence of the court-martial extends to dismissal or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn under KRS 35.327 , that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until review of the case by the senior force judge advocate and any action on that review under KRS 35.331 is completed. Any other part of the court-martial sentence may be ordered executed by the convening authority or other person acting on the case under KRS 35.326 when so approved under that section.

History. Enact. Acts 2013, ch. 32, § 73, effective June 25, 2013.

35.340. Vacation of suspension.

  1. Before the vacation of the suspension of a special court-martial sentence, which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The probationer shall be represented at the hearing by military counsel if the probationer so desires.
  2. The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in this code.
  3. The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.

History. Enact. Acts 1954, ch. 99, § 67; 1970, ch. 56, § 47; 2013, ch. 32, § 74, effective June 25, 2013.

Research References and Practice Aids

ALR

Application, to sentence by court-martial, of federal statute (28 USCS § 2255) dealing with vacation of sentence in criminal case. 20 A.L.R.2d 998.

35.345. Petition for a new trial.

At any time within two (2) years after approval by the convening authority of a court-martial sentence the accused may petition the adjutant general for a new trial on grounds of newly discovered evidence or fraud in the court-martial.

History. Enact. Acts 1954, ch. 99, § 68; 1970, ch. 56, § 48; 2013, ch. 32, § 75, effective June 25, 2013.

35.350. Remission and suspension.

  1. Any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the Governor.
  2. The Governor may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

History. Enact. Acts 1954, ch. 99, § 69; 1970, ch. 56, § 49; 2013, ch. 32, § 76, effective June 25, 2013.

35.355. Restoration.

  1. Under such regulations as may be prescribed, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.
  2. If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the Governor may substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of the accused’s enlistment.
  3. If a previously executed sentence of dismissal is not imposed on a new trial, the Governor may substitute therefor a form of discharge authorized for administrative issuance, and the commissioned officer dismissed by that sentence may be reappointed by the Governor alone to such commissioned grade and with such rank as in the opinion of the Governor that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the Governor may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.

History. Enact. Acts 1954, ch. 99, § 70; 1970, ch. 56, § 50; 2013, ch. 32, § 77, effective June 25, 2013.

35.360. Finality of proceedings, findings, and sentences.

The appellate review of records of trial provided by this code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this code, and all dismissals and discharges carried into execution under sentences by courts-martial following the approval, review, or affirmation as required by this code, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States and the several states, subject only to action upon a petition for a new trial as provided in KRS 35.345 and to action under KRS 35.350 .

History. Enact. Acts 1954, ch. 99, § 71; 1970, ch. 56, § 51; 2013, ch. 32, § 78, effective June 25, 2013.

Research References and Practice Aids

ALR

Review by civil courts of court-martial convictions. 15 A.L.R.2d 387.

Review by federal civil courts of court-martial convictions — modern status. 95 A.L.R. Fed. 472.

Use of prior military conviction to establish repeat offender status, 11 A.L.R.5th 218.

35.364. Leave required to be taken pending review of certain court-martial convictions.

Under regulations prescribed, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this section if the sentence, as approved under KRS 35.326 , includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin that leave on the date on which the sentence is approved under KRS 35.326 or at any time after that date, and the leave may be continued until the date on which action under this section is completed or may be terminated at an earlier time.

History. Enact. Acts 2013, ch. 32, § 79, effective June 25, 2013.

35.365. State judge advocate to supervise administration of military justice. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 72) was repealed by Acts 1970, ch. 56, § 93.

35.367. Determination of lack of mental capacity or mental responsibility.

The determination of lack of mental capacity or mental responsibility shall be determined pursuant to Kentucky state law as well as regulations of the Department of Defense of the United States and the laws of the United States governing the Armed Forces of the United States as required under the Kentucky Constitution.

History. Enact. Acts 2013, ch. 32, § 80, effective June 25, 2013.

35.370. Direct communication between convening authorities, judge advocates and legal officers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 73, effective July 1, 1954) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.375. Courts of inquiry. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 74; 1970, ch. 56, § 52) was repealed, reenacted and amended as KRS 35.800 by Acts 2013, ch. 32, § 139, effective June 25, 2013.

35.380. Authority to administer oaths. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 75; 1970, ch. 56, § 53) was repealed, reenacted and amended as KRS 35.802 by Acts 2013, ch. 32, § 140, effective June 25, 2013.

35.385. Code to be explained and text furnished to personnel. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 76; 1970, ch. 56, § 54) was repealed, reenacted and amended as KRS 35.805 by Acts 2013, ch. 32, § 141, effective June 25, 2013.

35.390. Complaints of wrongs. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 77; 1970, ch. 56, § 55.) was repealed, reenacted and amended as KRS 35.807 by Acts 2013, ch. 32, § 142, effective June 25, 2013.

35.395. Redress for damage to property. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 78, effective July 1, 1954) was repealed, reenacted and amended as KRS 35.810 by Acts 2013, ch. 32, § 143, effective June 25, 2013.

35.400. Marshals. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 79) was repealed by Acts 1970, ch. 56, § 93.

35.405. Process and mandates of military courts. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 80, effective July 1, 1954) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.410. Payment and disposition of fines. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section was (Enact. Acts 1954, ch. 99, § 81, effective July 1, 1954) was repealed, reenacted and amended as KRS 35.425 by Acts 2013, ch. 32, § 146, effective June 25, 2013.

35.415. Immunity from prosecution for action of military court. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section was (Enact. Acts 1954, ch. 99, § 82, effective July 1, 1954) was repealed, reenacted and amended as KRS 35.822 , by Acts 2013, ch. 32, § 148, effective June 25, 2013.

35.420. Jurisdiction of military courts presumed. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 83, effective July 1, 1954) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.425. Delegation of Governor’s authority. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section was (Enact. Acts 1954, ch. 99, § 84, effective July 1, 1954) was repealed, reenacted and amended as KRS 35.425 by Acts 2013, ch. 32, § 144, effective June 25, 2013.

35.430. Short title of code. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 85, effective July 1, 1954) was repealed, reenacted and amended as KRS by Acts 2013, ch. 32, § 150, effective June 25, 2013.

35.435. Code not to affect offenses, penalties, forfeitures, fines or liabilities committed or incurred prior to July 1, 1954. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 86) was repealed by Acts 1970, ch. 56, § 93.

35.436. Application of substantive provisions to persons in duty status only. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 56, § 56) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.440. Principals.

Any subject person is a principal who:

  1. Commits an offense punishable by this code, or aids, abets, counsels, commands, or procures its commission; or
  2. Causes an act to be done which if directly performed by the person would be punishable by this code.

History. Enact. Acts 1954, ch. 99, § 87, effective July 1, 1954; 2013, ch. 32, § 81, effective June 25, 2013.

35.442. Accessory after the fact.

Any person subject to this code who, knowing that an offense punishable by this code has been committed, receives, comforts, or assists the offender in order to hinder or prevent the person’s apprehension, trial, or punishment shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 82, effective June 25, 2013.

35.445. Conviction of lesser included offense.

An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.

History. Enact. Acts 1954, ch. 99, § 88, effective July 1, 1954; 1970, ch. 56, § 57; 2013, ch. 32, § 83, effective June 25, 2013.

35.450. Attempts.

  1. An act, done with specific intent to commit an offense under this code, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.
  2. Any person subject to this code who attempts to commit any offense punishable by this code shall be punished as a court-martial may direct, unless otherwise specifically prescribed.
  3. Any person subject to this code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

History. Enact. Acts 1954, ch. 99, § 89, effective July 1, 1954; 2013, ch. 32, § 84, effective June 25, 2013.

35.451. Conspiracy.

Any person subject to this code who conspires with any other person to commit an offense under this code shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 58; 2013, ch. 32, § 85, effective June 25, 2013.

35.455. Perjury. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 90; 1970, ch. 56, § 59) was repealed, reenacted and amended as KRS 35.722 by Acts 2013, ch. 32, § 135, effective June 25, 2013.

35.460. Conduct constituting desertion. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 91; 1970, ch. 56, § 60) was repealed, reenacted and amended as KRS 35.473 by Acts 2013, ch. 32, § 89, effective June 25, 2013.

35.461. Absence without leave. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 56, § 61) was repealed, reenacted and amended as KRS 35.474 by Acts 2013, ch. 32, § 90, effective June 25, 2013.

35.462. Missing movement. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 56, § 62) was repealed, reenacted and amended as KRS 35.4751 by Acts 2013, ch. 32, § 91, effective June 25, 2013.

35.465. Mutiny — Sedition — Failure to suppress or report either. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 92; 1970, ch. 56, § 63) was repealed, reenacted and amended as KRS 35.577 by Acts 2013, ch. 32, § 98, effective June 25, 2013.

35.470. Solicitation.

  1. Any person subject to this code who solicits or advises another or others to desert in violation of KRS 35.473 , or mutiny in violation of KRS 35.577 , shall, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed or attempted, the person shall be punished as a court-martial may direct.
  2. Any person subject to this code who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of KRS 35.600 or sedition in violation of KRS 35.577 shall, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, the person shall be punished as a court-martial may direct.

History. Enact. Acts 1954, ch. 99, § 93; 1970, ch. 56, § 64; 2013, ch. 32, § 86, effective June 25, 2013.

35.471. Fraudulent enlistment, appointment, or separation.

Any person shall be punished as a court-martial may direct who:

  1. Procures his or her own enlistment or appointment in the state military forces by knowingly false representation or deliberate concealment as to his or her qualifications for that enlistment or appointment and receives pay or allowances thereunder; or
  2. Procures his or her own separation from the state military forces by knowingly false representation or deliberate concealment as to his or her eligibility for that separation.

History. Enact. Acts 1970, ch. 56, § 65; 2013, ch. 32, § 87, effective June 25, 2013.

35.472. Unlawful enlistment, appointment, or separation.

Any person subject to this code who effects an enlistment or appointment in or a separation from the state military forces of any person who is known to him or her to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation or order shall be punished as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 66; 2013, ch. 32, § 88, effective June 25, 2013.

35.473. Desertion.

  1. Any member of the state military forces is guilty of desertion who:
    1. Without proper authority goes or remains absent from the member’s unit, organization, or place of duty with intent to remain away from there permanently;
    2. Quits the member’s unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
    3. Without being regularly separated from one (1) of the state military forces enlists or accepts an appointment in the same or another one (1) of the state military forces, or in one (1) of the Armed Forces of the United States, without fully disclosing the fact the member has not been regularly separated, or enters any foreign armed service except when authorized by the United States.
  2. Any commissioned officer of the state military forces who, after tender of the officer’s resignation and before notice of its acceptance, quits his or her post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.
  3. Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by confinement of not more than ten (10) years or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment as a court-martial may direct.

History. Repealed, reenact., and amend., Acts 2013, ch. 32, § 60, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.460 .

35.474. Absence without leave.

Any person subject to this code shall be punished as a court-martial directs who, without authority:

  1. Fails to go to the appointed place of duty at the time prescribed;
  2. Goes from that place; or
  3. Absents himself or herself or remains absent from the unit, organization , or place of duty at which the person is required to be at the time prescribed.

History. Repealed, reenact., and amend., Acts 2013, ch. 32, § 90, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.461 .

35.475. Punishment for misconduct unbecoming an officer. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 94, effective July 1, 1954; 1986, ch. 239, § 10, effective July 15, 1986) was repealed, reenacted and amended as KRS 35.727 by Acts 2013, ch. 32, § 137, effective June 25, 2013.

35.4751. Missing movement.

Any person subject to this code who through neglect or design misses the movement of a ship, aircraft, or unit with which the person is required in the course of duty to move shall be punished as a court-martial may direct.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 62, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.462 .

35.476. Contempt toward officials.

Any person subject to this code who uses contemptuous words against the President or the Governor which may detrimentally affect the morale or effectiveness of any unit of the state military forces shall be punished as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 67; 2013, ch. 32, § 92, effective June 25, 2013.

35.478. Disrespect toward superior commissioned officer.

Any person subject to this code who behaves with disrespect toward the person’s superior commissioned officer shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 93, effective June 25, 2013.

35.480. Insubordination by warrant officer or enlisted person. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 95, effective July 1, 1954) was repealed, reenacted and amended as KRS 35.486 by Acts 2013, ch. 32, § 95, effective June 25, 2013.

35.481. Assaulting or willfully disobeying superior commissioned officer.

Any person subject to this code who:

  1. Strikes the person’s superior commissioned officer or draws or lifts up any weapon or offers any violence against the superior commissioned officer while he or she is in the execution of his or her office; or
  2. Willfully disobeys a lawful command of the person’s superior commissioned officer;

shall be punished, if the offense is committed in time of war, by confinement of not more than ten (10) years or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 68; 2013, ch. 32, § 94, effective June 25, 2013.

35.485. Improper handling of military property. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 96; 1970, ch. 56, § 69) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.486. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.

Any warrant officer or enlisted member is guilty of any of the following offenses and shall be punished as a court-martial may direct who:

  1. Strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his or her office;
  2. Willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or
  3. Treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while that officer is in the execution of his or her office.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 95, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.480 .

Legislative Research Commission Note.

(6/25/2013). The word “or” has been inserted at the end of subsection (2) of this statute. As amended in 2013 Ky. Acts ch. 32, sec. 95, the statute mirrors the language of Article 91 of the Model State Code of Military Justice, and that article includes the word “or” at the end of its subsection (2). The Reviser of Statutes has made this change pursuant to KRS 7.136(1).

35.490. Disorders and neglects. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 97) was repealed by Acts 1970, ch. 56, § 93.

35.491. Failure to obey order or regulation.

Any person subject to this code shall be punished as a court-martial may direct who:

  1. Violates or fails to obey any lawful general order or regulation;
  2. Having knowledge of any other lawful order issued by a member of the state military forces, which it is the person’s duty to obey, fails to obey the order; or
  3. Is derelict in the performance of the person’s duties.

History. Enact. Acts 1970, ch. 56, § 70; 2013, ch. 32, § 96, effective June 25, 2013.

35.495. Punishment for enumerated crimes. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 98) was repealed by Acts 1970, ch. 56, § 93.

35.500. Acts constituting murder. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 99) was repealed by Acts 1970, ch. 56, § 93.

35.505. Acts constituting manslaughter. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 100) was repealed by Acts 1970, ch. 56, § 93.

35.510. Acts constituting rape or carnal knowledge. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 101) was repealed by Acts 1970, ch. 56, § 93.

35.515. Acts constituting arson or wrongful appropriation. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 102) was repealed by Acts 1970, ch. 56, § 93.

35.520. Acts constituting robbery. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 103) was repealed by Acts 1970, ch. 56, § 93.

35.525. Acts constituting forgery. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 104) was repealed by Acts 1970, ch. 56, § 93.

35.530. Acts constituting maiming. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 105) was repealed by Acts 1970, ch. 56, § 93.

35.535. Acts constituting sodomy. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 106) was repealed by Acts 1970, ch. 56, § 93.

35.540. Acts constituting aggravated arson or simple arson. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 107) was repealed by Acts 1970, ch. 56, § 93.

35.545. Acts constituting extortion. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 108) was repealed by Acts 1970, ch. 56, § 93.

35.550. Acts constituting assault or aggravated assault. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 109) was repealed by Acts 1970, ch. 56, § 93.

35.555. Acts constituting burglary. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 110) was repealed by Acts 1970, ch. 56, § 93.

35.560. Acts constituting housebreaking. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, §§ 98 to 111) was repealed by Acts 1970, ch. 56, § 93.

35.565. Persons charged with certain crimes against the United States or the Commonwealth to be turned over to civil authorities. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 99, § 112, effective July 1, 1954) was repealed by Acts 2013, ch. 32, § 152, effective June 25, 2013.

35.570. Delivery of persons charged with felony to civil authorities. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 99, § 113) was repealed by Acts 1970, ch. 56, § 93.

35.575. Cruelty and maltreatment.

Any person subject to this code who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to the person’s orders shall be punished as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 71; 2013, ch. 32, § 97, effective June 25, 2013.

35.577. Mutiny or sedition.

  1. Any person subject to this code shall be punished as a court-martial may direct who:
    1. With intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his or her duty or creates any violence or disturbance is guilty of mutiny;
    2. With intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition; or
    3. Fails to do his or her utmost to prevent and suppress a mutiny or sedition being committed in his or her presence, or fails to take all reasonable means to inform his or her superior commissioned officer or commanding officer of an offense of mutiny or sedition which he or she knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.
  2. A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished as a court-martial may direct.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 98, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.465 .

35.580. Resistance, flight, breach of arrest, and escape.

Any person subject to this code shall be punished as a court-martial may direct who:

  1. Resists apprehension;
  2. Flees from apprehension;
  3. Breaks arrest; or
  4. Escapes from custody or confinement.

History. Enact. Acts 1970, ch. 56, § 72; 2013, ch. 32, § 99, effective June 25, 2013.

35.585. Releasing prisoner without proper authority.

Any person subject to this code who, without proper authority, releases any prisoner committed to his or her charge, or who through neglect or design suffers any such prisoner to escape, shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.

History. Enact. Acts 1970, ch. 56, § 73; 2013, ch. 32, § 100, effective June 25, 2013.

35.590. Unlawful detention.

Any person subject to this code who, except as provided by law or regulation, apprehends, arrests, or confines any person shall be punished as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 74; 2013, ch. 32, § 101, effective June 25, 2013.

35.595. Noncompliance with procedural rules.

Any person subject to this code shall be punished as a court-martial may direct who:

  1. Is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this code; or
  2. Knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during, or after trial of an accused.

History. Enact. Acts 1970, ch. 56, § 75; 2013, ch. 32, § 102, effective June 25, 2013.

35.600. Misbehavior before the enemy.

Any person subject to this code shall be punished as a court-martial may direct who, before or in the presence of the enemy or any hostile force:

  1. Runs away;
  2. Shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his or her duty to defend;
  3. Through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;
  4. Casts away his or her arms or ammunition;
  5. Is guilty of cowardly conduct;
  6. Quits his or her place of duty to plunder or pillage;
  7. Causes false alarms in any command, unit, or place under control of the Armed Forces of the United States or the state military forces;
  8. Willfully fails to do his or her utmost to encounter, engage, capture , or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his or her duty so to encounter, engage, capture, or destroy; or
  9. Does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the Armed Forces belonging to the United States or their allies, to the state, or to any other state, when engaged in battle.

History. Enact. Acts 1970, ch. 56, § 76; 2013, ch. 32, § 103, effective June 25, 2013.

35.605. Subordinate compelling surrender.

Any person subject to this code who compels or attempts to compel the commander of the state military forces of the state, or of any other state, place, vessel, aircraft, or other military property, or of any body of members of the Armed Forces, to give it up to an enemy or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 77; 2013, ch. 32, § 104, effective June 25, 2013.

35.609. Improper use of countersign.

Any person subject to this code who in time of war discloses the parole or countersign to any person not entitled to receive it or who gives to another, who is entitled to receive and use the parole or countersign, a different parole or countersign from that which, to his knowledge, he was authorized and required to give, shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 105, effective June 25, 2013.

35.610. Improper use of countersign. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 56, § 78) was repealed by Acts 1986, ch. 239, § 11, effective July 15, 1986.

35.614. Forcing a safeguard.

Any person subject to this code who forces a safeguard shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 106, effective June 25, 2013.

35.615. Forcing safeguard. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 56, § 79) was repealed by Acts 1986, ch. 239, § 11, effective July 15, 1986.

35.620. Captured or abandoned property.

  1. All persons subject to this code shall secure all property taken for the service of the United States or the state, and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.
  2. Any person subject to this code shall be punished as a court-martial may direct who:
    1. Fails to carry out the duties prescribed in subsection (1) of this section; or
    2. Buys, sells, trades, or in any way deals in or disposes of taken, captured or abandoned property whereby he or she receives or expects any profit, benefit, or advantage to himself or herself or another person directly or indirectly connected; or
    3. Engages in looting or pillaging.

History. Enact. Acts 1970, ch. 56, § 80; 2013, ch. 32, § 107, effective June 25, 2013.

35.625. Aiding the enemy.

Any person subject to this code shall be punished as a court-martial may direct who:

  1. Aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
  2. Without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly.

History. Enact. Acts 1970, ch. 56, § 81; 2013, ch. 32, § 108, effective June 25, 2013.

35.630. Misconduct as prisoner.

Any person subject to this code shall be punished as a court-martial may direct who, while in the hands of the enemy in time of war:

  1. For the purpose of securing favorable treatment by his or her captors, acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatever nationality held by the enemy as civilian or military prisoners; or
  2. While in a position of authority over such persons maltreats them without justifiable cause.

History. Enact. Acts 1970, ch. 56, § 82; 2013, ch. 32, § 109, effective June 25, 2013.

35.635. False official statements.

Any person subject to this code who, with intent to deceive, signs any false record, return, regulation, order, or other official document made in the line of duty, knowing it to be false, or makes any other false official statement made in the line of duty, knowing it to be false, shall be punished as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 83; 2013, ch. 32, § 110, effective June 25, 2013.

35.637. Military property — Loss, damage, destruction, or wrongful disposition.

Any person subject to this code shall be punished as a court-martial may direct, if that person, without proper authority:

  1. Sells or otherwise disposes of;
  2. Willfully or through neglect damages, destroy, or loses; or
  3. Willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of;

any military property of the United States or of any state.

History. Enact. Acts 2013, ch. 32, § 111, effective June 25, 2013.

35.640. Property other than military property — Waste, spoilage, or destruction.

Any person subject to this code who willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States or of any state shall be punished as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 84; 2013, ch. 32, § 112, effective June 25, 2013.

35.642. Improper hazarding of vessel.

  1. Any person subject to this code who willfully and wrongfully hazards or suffers to be hazarded any vessel of the Armed Forces of the United States or any state military forces shall suffer such punishment as a court-martial may direct.
  2. Any person subject to this code who negligently hazards or suffers to be hazarded any vessel of the Armed Forces of the United States or any state military forces shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 113, effective June 25, 2013.

Legislative Research Commission Note.

(6/25/2013). 2013 Ky. Acts ch. 32, sec. 113, prescribed that this statute be created as a new section of KRS Chapter 110. Since there currently is not a KRS Chapter 110 to be utilized, the Reviser of Statutes has created this statute as a new section of KRS Chapter 35 to correct this manifest clerical or typographical error under the authority of KRS 7.136 .

35.645. Driving under the influence or reckless driving.

Any person subject to this code who operates or is in physical control of any vehicle while under the influence of alcohol or any other substances or combination of substances which impair one’s driving ability, or in a reckless or wanton manner, shall be punished as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 85; 2013, ch. 32, § 114, effective June 25, 2013.

35.650. Drunk on duty.

Any person subject to this code other than a sentinel or lookout, who is found drunk on duty, shall be punished as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 86; 2013, ch. 32, § 115, effective June 25, 2013.

35.652. Wrongful use, possession, etc., of controlled substances.

  1. Any person subject to this code who wrongfully uses, possesses, manufactures, distributes, or imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the Armed Forces of the United States, state military forces, or the state military forces of any other state a substance described in subsection (2) of this section shall be punished as a court-martial may direct.
  2. The substances referred to in subsection (1) of this section are the following:
    1. Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any of these substances;
    2. Any substance not specified in paragraph (a) of this subsection that is listed on a schedule of controlled substances prescribed by the President for the purposes of the Uniform Code of Military Justice of the Armed Forces of the United States, 10 U.S.C. secs. 801 et seq.; and
    3. Any other substance not specified in paragraph (a) of this subsection or contained on a list prescribed by the President under paragraph (b) of this subsection that is listed in schedules I through V of Article 202 of the Controlled Substances Act, 21 U.S.C. sec. 812 .

History. Enact. Acts 2013, ch. 32, § 116, effective June 25, 2013.

35.654. Misbehavior of sentinel.

Any sentinel or lookout who is found drunk or sleeping upon his or her post or leaves it before being regularly relieved, shall be punished, if the offense is committed in a time of war, by confinement of not more than ten (10) years or other punishment as a court-martial may direct, but if the offense is committed at any other time, by such punishment as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 117, effective June 25, 2013.

35.655. Dueling. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 56, § 87) was repealed by Acts 1986, ch. 239, § 11, effective July 15, 1986.

35.657. Dueling.

Any person subject to this code who fights or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the proper authority, shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 118, effective June 25, 2013.

35.660. Malingering.

Any person subject to this code shall be punished as a court-martial may direct who, for the purpose of avoiding work, duty or service:

  1. Feigns illness, physical disablement, mental lapse, or derangement; or
  2. Intentionally inflicts self-injury.

History. Enact. Acts 1970, ch. 56, § 88; 2013, ch. 32, § 119, effective June 25, 2013.

35.665. Riot or breach of peace.

Any person subject to this code who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct.

History. Enact. Acts 1970, ch. 56, § 89; 2013, ch. 32, § 120, effective June 25, 2013.

35.670. Larceny — Wrongful appropriation. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 56, § 90) was repealed, reenacted and amended as KRS 35.692 by Acts 2013, ch. 32, § 125, effective June 25, 2013.

35.671. Provoking speeches or gestures.

Any person subject to this code who uses provoking or reproachful words or gestures towards another person subject to this code shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 121, effective June 25, 2013.

35.675. Unbecoming conduct. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 56, § 91) was repealed by Acts 1986, ch. 56, § 91, effective July 15, 1986.

35.678. Definitions for KRS 35.678 to 35.690.

As used in KRS 35.678 to 35.690 :

  1. “Act of prostitution” means a sexual act or sexual contact as defined in subsection (12) or (13) of this section, respectively, on account of which anything of value is given to, or received by, any person;
  2. “Bodily harm” means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact;
  3. “Broadcast” means delivering to the actual or constructive possession of another, including transmission by electronic means;
    1. “Consent” means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent. (4) (a) “Consent” means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.
    2. A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely causing death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or fear or under the circumstances described in KRS 35.681(2)(a)3. and 4.
    3. Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions;
  4. “Course of conduct” means:
    1. A repeated maintenance of visual or physical proximity to a specific person; or
    2. A repeated conveyance of verbal threat, written threats, or threats implied by conduct, or a combination of these threats, directed at or towards a specific person;
  5. “Force” means:
    1. The use of a weapon;
    2. The use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or
    3. Inflicting physical harm sufficient to coerce or compel submission by the victim;
  6. “Grievous bodily harm” means serious bodily injury. It includes fractures or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose;
  7. “Immediate family,” in the case of a specific person, means a spouse, parent, child, or sibling of the person, or any other family member, relative, or intimate partner of the person who regularly resides in the household of the person or who within the six (6) months preceding the commencement of the course of conduct regularly resided in the household of the person;
  8. “Indecent manner” means conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations;
  9. “Private area” means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple;
  10. “Repeated,” with respect to conduct, means two (2) or more occasions of that conduct;
  11. “Sexual act” means:
    1. Contact between the penis and the vulva or anus or mouth, and, for purposes of this paragraph, contact involving the penis occurs upon penetration, however slight; or
    2. The penetration, however slight, of the vulva or anus or mouth of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person;
  12. “Sexual contact” means:
    1. Touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or
    2. Any touching, or causing another person to touch, either directly or through the clothing, any body parts of another person, if done with an intent to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body;
  13. “Threatening or placing that other person in fear” means a communication or action that is of sufficient consequences to cause a reasonable fear that noncompliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action;
  14. “Under circumstances in which that other person has a reasonable expectation of privacy” means:
    1. Circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of that person was being captured; or
    2. Circumstances in which a reasonable person would believe that a private area of that person would not be visible to the public; and
  15. “Unlawful force” means an act of force done without legal justification or excuse.

HISTORY: 2016 ch. 75, § 5, effective July 15, 2016.

35.679. Sexual harassment.

Any person subject to this code is guilty of sexual harassment and shall be punished as a court-martial may direct who:

  1. Influences, offers to influence, or threatens the career, reputation, pay, or job of another person in exchange for sexual favors;
  2. Makes deliberate or repeated unwanted offensive comments or gestures of a sexually explicit nature toward, or in the presence of, another person; or
  3. Displays or transmits to another person, without legal justification or lawful authorization, imagery of a sexually explicit nature.

HISTORY: 2016 ch. 75, § 6, effective July 15, 2016.

Legislative Research Commission Note.

(7/15/2016). 2016 Ky. Acts ch. 75, sec. 6 provided that a new section of KRS Chapter 35 was created to be numbered as KRS 35.680 . However, a statute had previously been numbered as KRS 35.680 when it was created in 1970 and then renumbered as KRS 35.730 in 2013. Since the designation of “35.680” had been applied to an earlier statute and should not be assigned to a different statute because it would create confusion, the Reviser of Statutes has numbered 2016 Ky. Acts ch. 75, sec. 6 (this statute) as KRS 35.679 instead under the authority of KRS 7.136(1)(a).

35.680. General misconduct. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 56, § 92) was repealed, reenacted and amended as KRS 35.730 by Acts 2013, ch. 32, § 138, effective June 25, 2013.

35.681. Rape and sexual assault generally.

  1. Any person subject to this code is guilty of rape and shall be punished as a court-martial may direct who commits a sexual act upon another person by:
    1. Using unlawful force against another person;
    2. Using force causing or likely to cause death or grievous bodily harm to any person;
    3. Threatening or placing that other person in fear that any person will be subject to death, grievous bodily harm, or kidnapping;
    4. First rendering that other person unconscious; or
    5. Administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct.
  2. Any person subject to this code is guilty of sexual assault and shall be punished as a court-martial may direct who:
    1. Commits a sexual act upon another person by:
      1. Threatening or placing that other person in fear;
      2. Causing bodily harm to that other person;
      3. Making a fraudulent representation that the sexual act serves a professional purpose; or
      4. Inducing a belief by an artifice, pretense, or concealment that the person is another person;
    2. Commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; or
    3. Commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to:
      1. Impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or
      2. A mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person.
  3. Any person subject to this code who commits or causes sexual contact upon or by another person, if to do so would violate subsection (1) of this section had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct.
  4. Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (2) of this section had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.
  5. In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat.
  6. An accused may raise any applicable defenses available under this code. Marriage is not a defense for the conduct in issue in any prosecution under this section.

History. Enact. Acts 2013, ch. 32, § 122, effective June 25, 2013; 2016 ch. 75, § 7, effective July 15, 2016.

35.683. Rape of a child.

Any person subject to this code is guilty of rape of a child and shall be punished as a court-martial may direct who:

  1. Commits a sexual act upon a child who has not attained the age of twelve (12) years; or
  2. Commits a sexual act upon a child who has attained the age of twelve (12) years by:
    1. Using force against any person;
    2. Threatening or placing that child in fear;
    3. Rendering that child unconscious; or
    4. Administering to that child a drug, intoxicant, or other similar substance.

HISTORY: 2016 ch. 75, § 8, effective July 15, 2016.

35.685. Stalking.

Any person subject to this code is guilty of stalking and shall be punished as a court-martial may direct who:

  1. Wrongfully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to himself or herself or a member of his or her immediate family;
  2. Has knowledge, or should have knowledge, that the specific person will be placed in reasonable fear of death or bodily harm, including sexual assault, to himself or herself or a member of his or her immediate family; and
  3. By his or her acts, induces reasonable fear in the specific person or bodily harm, including sexual assault, to himself or herself or to a member of his or her immediate family, through the person’s actions.

History. Enact. Acts 2013, ch. 32, § 123, effective June 25, 2013; 2016 ch. 75, § 9, effective July 15, 2016.

35.690. Other sexual misconduct.

  1. Any person subject to this code is guilty of an offense under this section and shall be punished as a court-martial may direct who, without legal justification or lawful authorization:
    1. Knowingly or wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy;
    2. Knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person’s consent or under circumstances in which that other person has a reasonable expectation of privacy; or
    3. Knowingly broadcasts or distributes any recording that the person knew or reasonably should have known was made under the circumstances proscribed in paragraphs (a) and (b) of this subsection.
  2. Any person subject to this code who compels another person to engage in the act of prostitution with any person is guilty of forcible pandering and shall be punished as a court-martial may direct.
  3. Any person subject to this code who intentionally exposes, in an indecent manner, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 124, effective June 25, 2013; 2016 ch. 75, § 10, effective July 15, 2016.

35.692. Larceny and wrongful appropriation.

  1. Any person subject to this code who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or articles of value of any kind:
    1. With intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his or her own use or the use of any person other than the owner, steals that property and is guilty of larceny; or
    2. With intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his or her own use or the use of any person other than the owner, is guilty of wrongful appropriation.
  2. Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial may direct.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 125, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.670 .

35.695. Robbery.

Any person subject to this code who with intent to steal takes anything of value from the person or in the presence of another, against his or her will, by means of force of violence or fear of immediate of future injury to his or her person or property or to the person or property of a relative or member of his or her family or of anyone in his or her company at the time of the robbery, is guilty of robbery and shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 126, effective June 25, 2013.

35.700. Forgery.

Any person subject to this code is guilty of forgery and shall be punished as a court-martial may direct who, with intent to defraud:

  1. Falsely makes or alters any signature to, or any part of, any writing which would, if genuine, apparently impose a legal liability on another or change his or her legal right or liability to his or her prejudice; or
  2. Utters, offers, issues, or transfers such a writing, known to him or her to be so made or altered.

History. Enact. Acts 2013, ch. 32, § 127, effective June 25, 2013.

35.702. Making, drawing, or uttering check, draft, or order without sufficient funds.

  1. Any person subject to this code is guilty of making, drawing, or uttering a check, draft, or order without sufficient funds and shall be punished as a court-martial may direct who:
    1. For the procurement of any article or thing of value, with the intent to defraud; or
    2. For the payment of any past due obligation, or for any other purpose, with intent to deceive;

      makes, draws, utters, or delivers any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time that the maker or drawer has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of that check, draft, or order in full upon its presentment.

  2. The making, drawing, uttering, or delivering by a maker or drawer of a check, draft, or order, payment of which is refused by the drawee because of insufficient funds of the maker or drawer in the drawee’s possession or control, is prima facie evidence of his or her intent to defraud or deceive and of his or her knowledge of insufficient funds in, or credit with, that bank or other depository, unless the maker or drawer pays the holder the amount due within five (5) days after receiving notice, orally or in writing, that the check, draft, or order was not paid on presentment.
  3. In this section, “credit” means an arrangement or understanding, express or implied, with the bank or other depository for the payment of that check, draft, or order.

History. Enact. Acts 2013, ch. 32, § 128, effective June 25, 2013.

35.705. Maiming.

Any person subject to this code is guilty of maiming and shall be punished as a court-martial may direct who, with intent to injure, disfigure, or disable, inflicts upon the person of another an injury which:

  1. Seriously disfigures his or her person by any mutilation thereof;
  2. Destroys or disables any member or organ of his or her body; or
  3. Seriously diminishes his or her physical vigor by the injury of any member or organ.

History. Enact. Acts 2013, ch. 32, § 129, effective June 25, 2013.

35.710. Arson.

  1. Any person subject to this code who willfully and maliciously burns or sets on fire an inhabited dwelling, or any other structure, movable or immovable, wherein to the knowledge of the offender there is at the time a human being, is guilty of aggravated arson and shall be punished as a court-martial may direct.
  2. Any person subject to this chapter who willfully and maliciously burns or sets fire to the property of another, except as provided in subsection (1) of this section, is guilty of simple arson and shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 130, effective June 25, 2013.

35.712. Extortion.

Any person subject to this code who communicates threats to another person with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion and shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 131, effective June 25, 2013.

35.715. Assault.

  1. Any person subject to this code who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.
  2. Any person subject to this chapter is guilty of aggravated assault and shall be punished as a court-martial may direct who:
    1. Commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or
    2. Commits an assault and intentionally inflicts grievous bodily harm with or without a weapon.

History. Enact. Acts 2013, ch. 32, § 132, effective June 25, 2013.

35.717. Burglary.

Any person subject to the code who, with intent to commit an offense punishable under KRS 35.681 , 35.685 , 35.690 , 35.692 , 35.695 , 35.700 , 35.702 , 35.705 , 35.710 , 35.712 , and 35.715 , breaks and enters, in the nighttime, the dwelling house of another, is guilty of burglary and shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 133, effective June 25, 2013.

35.720. Housebreaking.

Any person subject to this code who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 134, effective June 25, 2013.

35.722. Perjury.

Any subject person subject to this code is guilty of perjury and shall be punished as a court-martial may direct who, in a judicial proceeding or course of justice, willfully and corruptly:

  1. Upon a lawful oath or in any form allowed by law to be substituted for an oath, gives any false testimony material to the issue or matter of inquiry; or
  2. In any declaration, certificate, verification, or statement under penalty of perjury as permitted under 28 U.S.C. sec. 1746 , subscribes any false statement material to the issue or matter of inquiry.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 135, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.455 .

35.725. Frauds against the government.

Any person subject to this code who:

  1. Knowing it to be false or fraudulent:
    1. Makes any claim against the United States, the state, or any officer thereof; or
    2. Presents to any person in the civil or military service thereof, for approval or payment, any claim against the United States, the state, or any officer thereof;
  2. For the purposes of obtaining the approval, allowance, or payment of any claim against the United States, the state, or any officer thereof:
    1. Makes or uses any writing or other paper knowing it to contain any false or fraudulent statements;
    2. Makes any oath, affirmation, or certification to any fact or to any writing or other paper knowing the oath, affirmation, or certification to be false; or
    3. Forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged or counterfeited;
  3. Having charge, possession, custody, or control of any money, or other property of the United States or the state, furnished or intended for the Armed Forces of the United States or the state military forces, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which he or she receives a certificate or receipt; or
  4. Being authorized to make or deliver any paper certifying the receipt of any property of the United States or the state, furnished or intended for the Armed Forces of the United States or the state military forces, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States or the state;

shall, upon conviction, be punished as a court-martial may direct.

History. Enact. Acts 2013, ch. 32, § 136, effective June 25, 2013.

35.727. Conduct unbecoming an officer and a gentleman.

Any commissioned officer, cadet, candidate, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 137, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.475 .

35.730. General article.

Though not specifically mentioned in this code, all disorders and neglects to the prejudice of good order and discipline in the state military forces and all conduct of a nature to bring discredit upon the state military forces shall be taken cognizance of by a court-martial and punished at the discretion of a military court. However, where a crime constitutes an offense that violates both this code and the criminal laws of the state where the offense occurs or criminal laws of the United States, jurisdiction of the military court must be determined in accordance with KRS 35.015(2).

History. Repealed, reenact. and amend., Acts 2013, ch. 35, § 138, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.680 .

35.800. Courts of inquiry.

  1. Courts of inquiry to investigate any matter of concern to the state military forces may be convened by any person authorized to convene a general court-martial, whether or not the persons involved have requested an inquiry.
  2. A court of inquiry consists of three (3) or more commissioned officers. For each court of inquiry the convening authority shall also appoint counsel for the court.
  3. Any person subject to this code whose conduct is subject to inquiry shall be designated as a party. Any person subject to this code who has a direct interest in the subject of inquiry has the right to be designated as a party upon request to the court. Any person designated as a party shall be given due notice and shall have the right to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence.
  4. Members of a court of inquiry may be challenged by a party, but only for cause stated to the court.
  5. The members, counsel, the reporter, and interpreters of courts of inquiry shall take an oath or affirmation to faithfully perform their duties.
  6. Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts-martial.
  7. Courts of inquiry shall make findings of fact but shall not express opinions or make recommendations unless required to do so by the convening authority.
  8. Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court it shall be signed by a member in lieu of the counsel.

History. Repealed, reenact., and amend., Acts 2013, ch. 32, § 139, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.375 .

35.802. Authority to administer oaths and to act as notary.

  1. The following persons may administer oaths for the purposes of military administration, including military justice:
    1. All judge advocates;
    2. All adjutants, assistant adjutants, acting adjutants, and personnel adjutants;
    3. All commanding officers of the naval militia; and
    4. All other persons designated by regulations of the Armed Forces of the United States or by statute.
  2. The following persons may administer oaths necessary in the performance of their duties:
    1. The president, military judge, and trial counsel for all general and special courts-martial;
    2. The president and the counsel for the court of any court of inquiry;
    3. All officers designated to take a deposition;
    4. All persons detailed to conduct an investigation;
    5. All other persons designated by regulations of the Armed Forces of the United States or by statute.
  3. The signature without seal of any such person, together with the title of his or her office, shall be prima facie evidence of the person’s authority.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 140, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.380 .

35.805. Sections to be explained.

    1. The sections of this code specified in paragraph (c) of this subsection shall be carefully explained to each enlisted member at the time of, or within thirty (30) days after, the member’s initial entrance into a duty status with the state military forces. (1) (a) The sections of this code specified in paragraph (c) of this subsection shall be carefully explained to each enlisted member at the time of, or within thirty (30) days after, the member’s initial entrance into a duty status with the state military forces.
    2. The sections shall be explained again:
      1. After the member has completed basic or recruit training; and
      2. Again at the time when the member reenlists.
    3. This subsection applies with respect to KRS 35.015 , 35.020 , 35.035 to 35.070 , 35.120 , 35.130 , 35.155 , 35.185 , 35.190 , 35.275 , 35.440 to 35.730 , and 35.805 to 35.810 .
  1. The text of this code and of the regulations prescribed under such code shall be made available to any member of the state military forces, upon request by the member, for the member’s personal examination.

History. Repealed, reenact, and amend., Acts 2013, ch. 32, § 141, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.385 .

35.807. Complaints of wrongs.

Any member of the state military forces who believes himself or herself wronged by his or her commanding officer, and, upon due application to that commander, is refused redress, may complain to any superior commissioned officer who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of, and shall, as soon as possible, send to the adjutant general a true statement of that complaint, with the proceedings thereon.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 142, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.390 .

35.810. Redress of injuries to property.

  1. Whenever complaint is made to any commanding officer that willful damage has been done to the property of any person or that the person’s property has been wrongfully taken by members of the state military forces, that person may, under such regulations prescribed, convene a board to investigate the complaint. The board shall consist of from one (1) to three (3) commissioned officers and, for the purpose of that investigation, it has power to summon witnesses and examine them upon oath, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by that officer shall be charged against the pay of the offenders. The order of such commanding officer directing charges herein authorized is conclusive on any disbursing officer for the payment to the injured parties of the damages so assessed and approved.
  2. If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just upon the individual members thereof who are shown to have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 143, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.395 .

35.812. Delegation by the Governor.

The Governor may delegate any authority vested in the Governor under this code, and provide for the subdelegation of any such authority, except the power given the Governor by KRS 35.105 .

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 144, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.425 .

35.815. Payment of fees, costs, and expenses.

  1. The fees and authorized travel expenses of all witnesses, experts, victims, court reporters, and interpreters, fees for the service of process, the costs of collection, apprehension, detention and confinement, and all other necessary expenses of prosecution and the administration of military justice, not otherwise payable by any other source, shall be paid out of the military justice fund.
  2. For the foregoing purposes, there is created in the State Treasury a fund to be designated the military justice fund that shall be administered by the adjutant general, from which expenses of military justice shall be paid in the amounts and manner as prescribed by law. The legislature may appropriate and have deposited in the military justice fund such funds as it deems necessary to carry out the purposes of this code.

History. Enact. Acts 2013, ch. 32, § 145, effective June 25, 2013.

35.817. Payment of fines and disposition thereof.

  1. Fines imposed by a military court or through imposition of non-judicial punishment may be paid to the state and delivered to the court or imposing officer, or to a person executing their process. Fines may be collected by:
    1. Cash or money order;
    2. Retention of any pay or allowances due or to become due the person from any state or the United States; or
    3. Garnishment or levy, together with costs, on wages, goods, and chattels of a person delinquent in paying a fine, as provided by law.
  2. Any sum so received or retained shall be deposited in the military justice fund or to whomever the court so directs.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 146, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.410 .

35.820. Uniformity of interpretation.

This code shall be so construed as to effectuate its general purpose to make it uniform, so far as practical, with the Uniform Code of Military Justice, 10 U.S.C. Chapter 47.

History. Enact. Acts 2013, ch. 32, § 147, effective June 25, 2013.

35.822. Immunity for action of military courts.

All persons acting under the provisions of this code, whether as a member of the military or as a civilian, shall be immune from any personal liability for any of the acts or omissions which they did or failed to do as part of their duties under this code.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 148, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.415 .

35.825. Severability.

The provisions of this code are hereby declared to be severable and if any provision of this code or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this code.

History. Enact. Acts 2013, ch. 32, § 149, effective June 25, 2013.

35.827. Short title.

This chapter may be cited as the Kentucky Code of Military Justice.

History. Repealed, reenact. and amend., Acts 2013, ch. 32, § 150, effective June 25, 2013.

Compiler’s Notes.

This section was formerly compiled as KRS 35.430 .

35.830. Supersedes existing state military justice codes.

Upon June 25, 2013, this chapter supersedes all existing statutes, ordinances, directives, rules, regulations, orders, and other laws in the state covered by the subject matter of this chapter, and all such statutes, ordinances, directives, rules, regulations, orders, and other laws are hereby superseded.

History. Enact. Acts 2013, ch. 32, § 151, effective June 25, 2013.

CHAPTER 36 Department of Military Affairs

36.010. Department of Military Affairs attached to Office of Governor — Functions — Organization.

The Department of Military Affairs shall be attached to the Office of the Governor, have charge of and be responsible to the Governor for the proper functioning of the Kentucky National Guard, militia, and all other military or naval matters of the state, and shall consist of the following offices and divisions:

  1. Office of Management and Administration, containing the:
    1. Division of Administrative Services;
    2. Division of Facilities;
    3. Bluegrass Station Division; and
    4. Logistics Operations Division;
  2. Division of Emergency Management;
  3. Office of the Chief of Staff for Federal Army Guard;
  4. Office of the Chief of Staff for Federal Air Guard;
  5. Kentucky Guard Youth Challenge Division; and
  6. Kentucky Civil Air Patrol.

In order to promote greater efficiency, economy, and improved administration, the divisional structure of the Department of Military Affairs may be changed, redesignated, or reorganized in accordance with KRS Chapter 12. Notwithstanding KRS Chapter 12, the department’s attachment to the Office of Governor as a separate organizational unit not attached to any cabinet shall not be changed except by action of the General Assembly.

History. 2711a-142, 2711a-145i, 4618-1: amend. Acts 1946, ch. 57; 1954, ch. 94, § 1; 1962, ch. 127, § 1; 1978, ch. 155, § 40, effective June 17, 1978; 1982, ch. 183, § 1, effective July 15, 1983; 1984, ch. 118, § 1, effective July 13, 1984; 1996, ch. 244, § 3, effective July 15, 1996; 1998, ch. 142, § 1, effective July 15, 1998; 1998, ch. 401, § 1, effective July 15, 1998; 2000, ch. 51, § 1, effective July 14, 2000; 2000, ch. 102, § 1, effective July 14, 2000; 2001, ch. 39, § 1, effective June 21, 2001; 2002, ch. 45, § 2, effective July 15, 2002; 2006, ch. 193, § 6, effective July 12, 2006; 2009, ch. 13, § 15, effective June 25, 2009.

Research References and Practice Aids

Cross-References.

Active militia, KRS Ch. 37.

Adjutant general is executive officer of active militia, KRS 37.180 .

Constitutional provisions relating to military affairs, Const., §§ 22, 75, 219 to 223.

General Assembly to provide for safekeeping of public arms, relics and banners, Const., § 223.

Governor is commander in chief of army, navy and militia, Const., § 75.

Governor to appoint adjutant general, Const., § 222.

Implementation of federal hazardous materials programs, Ch. 39E.

Local emergency management programs, Chs. 39B, 39C.

Military justice, KRS Ch. 35.

National guard, KRS Ch. 38.

Passenger motor vehicles and trucks, Department of Military Affairs may acquire, KRS 44.050 .

Statewide emergency management programs, Ch. 39A.

36.020. Adjutant general — Appointment — Rank — Qualifications — Bond — Compensation.

  1. The Governor, immediately on his induction into office, shall appoint the adjutant general who shall have served honorably, or be serving, as a commissioned officer of the Armed Forces of the United States, and who shall:
    1. Have at least ten (10) years commissioned service in the Kentucky National Guard. A national guard active duty tour or mobilization of national guard units into active federal duty shall not be considered a break in national guard service.
    2. Have attained at least the rank of lieutenant colonel with federal recognition.
    3. Have not been separated from the Kentucky National Guard for more than five (5) years before the date of appointment.
    4. Have met the federal recognition requirement for his current rank and be qualified to meet the requirements for federal recognition in the ranks of brigadier general and major general at the time of appointment to those ranks.
  2. The Governor shall issue a commission to the adjutant general in the grade of major general. The commission shall automatically be vacated when the adjutant general is relieved from duty or at the expiration of the term of the Governor appointing him. The adjutant general shall execute bond in the sum of ten thousand dollars ($10,000). The adjutant general shall be compensated at the base rate of pay, not including subsistence and quarters allowances, as provided in KRS 38.205 , or prescribed in KRS 64.640 .

History. 2711a-142, 2711a-151, 2711a-229, 4618-81: amend. Acts 1946, ch. 27, § 25; 1954, ch. 94, § 2; 1956, ch. 4, § 1; 1962, ch. 127, § 2; 1966, ch. 214, § 1; 1970, ch. 92, § 6; 1992, ch. 101, § 1, effective July 14, 1992.

Research References and Practice Aids

Cross-References.

Bond of adjutant general, amount and conditions, KRS 62.160 , 62.180 .

Governor to appoint adjutant general, Const., § 222.

36.025. Deputy and assistant adjutants general — Appointment, qualifications — Compensation.

  1. The Governor, with the recommendation of the adjutant general, may appoint a deputy adjutant general for the Army National Guard and a deputy adjutant general for the Air National Guard, who at the time of appointment shall be at least thirty (30) years of age and shall be serving as a commissioned officer in the Kentucky National Guard. The Governor shall issue a commission to each such deputy adjutant general in the grade of brigadier general, provided such individual is qualified for federal recognition in that grade. The position of deputy adjutant general shall require full-time employment in the Department of Military Affairs. The deputy adjutants general shall be compensated at the base rate of pay, not including subsistence and quarters allowances as provided in KRS 38.205 , or as prescribed in KRS 64.640 .
  2. The Governor, with the recommendation of the adjutant general, may appoint an assistant adjutant general for the Army National Guard and an assistant adjutant general for the Air National Guard, who at the time of appointment shall be at least thirty (30) years of age and shall be serving as a commissioned officer in the Kentucky National Guard. The Governor shall issue a commission to each such assistant adjutant general in the grade of brigadier general, provided such individual is qualified for federal recognition in that grade. The assistant adjutants general may be compensated for all state service performed by them, as provided in KRS 38.205 .

History. Enact. Acts 1962, ch. 127, § 12; 1966, ch. 214, § 2; 1970, ch. 92, § 7; 2007, ch. 31, § 1, effective June 26, 2007.

36.030. Adjutant general, deputy and assistant adjutants general — Compatibility of office.

The office of the adjutant general, deputy adjutant general, or assistant adjutants general shall not necessarily be incompatible with or serve to vacate the commission in the Kentucky National Guard held by the officer appointed as the adjutant general, deputy adjutant general, or assistant adjutant general at the time of his appointment, nor shall it be incompatible with any office of the National Guard to which he might be promoted or appointed, nor interfere with or prevent his attending to the duties of the office held at the time or to which he may thereafter be promoted or appointed.

History. 2711a-151: amend. Acts 1950, ch. 15; 1956, ch. 4, § 2; 1962, ch. 127, § 3; 1966, ch. 214, § 3.

36.040. Duties of adjutant general — Authority to enter into agreements with federal agencies.

  1. The adjutant general shall:
    1. Represent the Governor in all military matters pertaining to the Commonwealth of Kentucky;
    2. Be the executive head of the Department of Military Affairs and exercise all functions vested by law in the department;
    3. Establish the internal organizational structure of the major organizations of the department;
    4. Organize and supervise all programs, functions, and personnel assigned to the department in accordance with all state and federal statutes and administrative regulations;
    5. Be responsible to the Governor for the proper carrying into effect of all laws, rules, and regulations of the United States and of this state affecting the militia and other military organizations established by law;
    6. Perform the duties prescribed for him by laws of the United States and regulations issued thereunder;
    7. Direct and supervise the chiefs of staff departments and supervise all troops and all departments, arms, and branches of the Kentucky Army and Air National Guard;
    8. Supervise the preparation of all returns and reports of the Department of Military Affairs;
    9. Keep a register of all the officers of the Kentucky National Guard, and make a written report to the Governor for the annual period ending on June 30 of each year of the operations and conditions of the Department of Military Affairs;
    10. Cause to be prepared and issued all necessary blank books, forms, and notices required to carry into full effect matters assigned to the adjutant general under the provisions of KRS Chapters 36, 37, and 38;
    11. Direct and supervise the safekeeping and repairing of the ordnance, arms, accouterments, equipment, and all other military property belonging to the state or issued to it by the United States;
    12. Notify the Finance and Administration Cabinet of all military property of the state which after inspection is found unsuitable for use of the cabinet;
    13. Keep an account of:
      1. All expenses, including pay of officers and enlisted men, allowance to officers and organizations;
      2. Any other moneys required to be disbursed by him and through his office, including subsistence and transportation of the National Guard; and
      3. All military property of the United States;
    14. Issue and make requisitions for military property under the direction of the Governor, but no military property shall be issued to persons or organizations other than those belonging to the National Guard, except to such portion of the Kentucky active militia as is called out by the Governor;
    15. Maintain as a part of his office a Bureau of War Records in which all records pertaining to wars and relics shall be kept, and be custodian of all such records, relics, colors, standards, and battle flags now the property of the state, or in its possession, or which the state may hereafter acquire;
    16. Organize units of the National Guard at places designated by the Governor and have the members mustered into service under regulations prescribed by the Governor;
    17. Issue all regulations, orders, and directives for the proper functioning and utilization of the Department of Military Affairs and its divisions; and
    18. Hire, discharge, and pay any personnel that the adjutant general deems necessary to fulfill defense contracts without regard to KRS Chapter 18A.
  2. The adjutant general, or his or her designee, may enter into any federal contracts, federal grants, and federal agreements with the United States of America, by and through the Department of Defense, Department of the Army, Department of the Air Force, National Guard Bureau, Federal Aviation Administration, United States Department of Homeland Security, and Federal Emergency Management Agency, and any other division, department, or agency of the federal government, as may be deemed necessary to carry out the general intent and purposes of the Department of Military Affairs.

History. 2711a-142, 2711a-152, 4618-81: amend. Acts 1954, ch. 94, § 3; 1962, ch. 127, § 4; 1970, ch. 92, § 8; 1974, ch. 74, Art. II, § 9(1); 1992, ch. 313, § 1, effective July 14, 1992; 1996, ch. 244, § 4, effective July 15, 1996; 1998, ch. 540, § 6, effective July 15, 1998; 2001, ch. 39, § 3, effective June 21, 2001; 2006, ch. 194, § 1, effective July 12, 2006.

NOTES TO DECISIONS

1. Report to Governor.

Absolute privilege applied to a newspaper publication of an official report of the adjutant general to the Governor and released by the Governor to the Associated Press for publication under the rule that absolute privilege applies wherever a communication is made in discharge of a duty under express authority of law by or to heads of executive departments provided the libelous communication is pertinent to the inquiry under investigation at the time. Begley v. Louisville Times Co., 272 Ky. 805 , 115 S.W.2d 345, 1938 Ky. LEXIS 206 ( Ky. 1938 ).

Research References and Practice Aids

Cross-References.

Adjutant general is executive officer of active militia, KRS 37.180 .

General Assembly to provide for safekeeping of public arms, relics and banners, Ky. Const., § 223.

36.045. Deputy adjutants general — Appointment — Commission. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 4, § 3) was repealed by Acts 1962, ch. 127, § 13.

36.050. Disability of adjutant — Who to act.

In the absence or inability of the adjutant general to perform his duties, he may designate, by special order, an officer to perform his duties temporarily, and if no officer is so designated, the senior officer on duty in the adjutant general’s office shall perform the adjutant general’s duties.

History. 2711a-152.

36.060. Kentucky disabled ex-service men’s board. [Repealed.]

Compiler’s Notes.

This section (4618-83: amend. Acts 1946, ch. 57) was repealed by Acts 1966, ch. 255, § 283.

36.065. Kentucky disabled ex-service men’s board. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 137; 1960, ch. 83) was repealed by Acts 1972, ch. 222, § 4.

36.067. Logistics Operations Division.

  1. The Logistics Operations Division shall be headed by a director appointed by the Governor in accordance with KRS 12.050 . The division shall be composed of organizational entities deemed appropriate by the adjutant general and set forth by administrative order.
  2. The Logistics Operations Division shall provide logistical services to federal defense agencies under contract or program memorandum of agreement between those agencies and the Department of Military Affairs.

History. Enact. Acts 2001, ch. 39, § 2, effective June 21, 2001.

36.068. Bluegrass Station Division.

The Bluegrass Station Division exists to support, retain, and attract primarily defense and homeland security agencies, contractors, and associated and compatible operations, including the jobs which they bring to Kentucky. Agency contracts, leases, and accounting procedures may additionally reflect the needs of these customers. The Bluegrass Station Division shall be headed by a director experienced with federal contracts, construction, and installation operations, and maintenance funding requirements.

History. Enact. Acts 2014, ch. 15, § 1, effective April 2, 2014.

36.070. Facilities division — Director — Powers.

The facilities division shall be headed by a director experienced in the administration of real property. The division may make contracts, acquire real and personal property by gift, purchase, or by condemnation in the manner prescribed in the Eminent Domain Act of Kentucky, and may do all things necessary to perform its duties under this section and KRS 36.080 .

History. 2711a-128, 4618-84: amend. Acts 1962, ch. 127, § 5; 1976, ch. 140, § 16; 1980, ch. 188, § 14, effective July 15, 1980.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS Chapter 416.

NOTES TO DECISIONS

1. Lease.

Only the Armory Commission (now Facilities Division) can make a lease contract for the state under this section, thus where the adjutant general agreed with the owner to omit certain provisions from a lease approved by the Armory Commission, but the provisions were not omitted when the lease was drawn, the lease was not subject to reformation since the mistake was between the adjutant general and the owner and there was no misunderstanding between the Armory Commission and the owner. Armory Com. v. Palmer, 253 Ky. 425 , 69 S.W.2d 681, 1934 Ky. LEXIS 654 ( Ky. 1934 ).

36.080. Armories to be provided — Acquisition — Cost.

  1. The facilities division shall provide adequate armories, buildings and grounds for the Kentucky Army and Air National Guard for its purposes of drill, instruction and administration and for the safekeeping of public property of the state and the United States issued to or for the use of the Kentucky National Guard.
  2. The facilities division may, either alone or in cooperation with the United States government, counties, cities, private corporations, voluntary unincorporated associations or individuals, construct, or acquire by purchase, contract, lease, gift, donations, or by condemnation in the manner prescribed in the Eminent Domain Act of Kentucky, armories, buildings or grounds suitable for drill, instruction and administration and the safekeeping of public property, and make additions and improvements in or to such armories and facilities. The division may, either alone or with the like cooperation of others, provide heat, light, water, telephone service and other costs of operation and maintenance, including insurance.
  3. The amounts to be spent for the construction, acquisition, maintenance and rental of armories shall be wholly within the discretion of the adjutant general.

History. 2711a-128: amend. Acts 1954, ch. 94, § 4; 1962, ch. 127, § 6; 1976, ch. 140, § 17.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS Chapter 416.

NOTES TO DECISIONS

1. Plan for Construction.

Plan of city, county and the Armory Commission (now Facilities Division) for armory that provided for part of the building for an armory and part for offices and an auditorium to rent, the proceeds going towards payment of the construction of the building, was valid. Keith v. Richards, 220 Ky. 201 , 294 S.W. 1057, 1927 Ky. LEXIS 499 ( Ky. 1927 ).

2. Building of Armories.

Law requiring counties in which militia organizations were formed to construct and pay for armories was unconstitutional for the state militia was essentially a state institution and its purpose was in no sense a county one. (Decided under prior law) Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ).

3. Maintenance.

A county armory did not come within the meaning of “county buildings” of KRS 67.130 , and the jailer was not required to perform any duties with regard to the armory. (Decided under prior law) Fiscal Court of Jefferson County v. Pflanz, 127 Ky. 8 , 104 S.W. 1002, 31 Ky. L. Rptr. 1242 , 1907 Ky. LEXIS 112 ( Ky. 1907 ).

Under law that provided that where national guard companies were organized and furnished with arms or equipment in any county the fiscal court of such county should have provided an armory for drill and for storing arms and equipment it was the duty of the fiscal court and not the county jailer to have provided heat, light and janitor service for the county armory. (Decided under prior law) Fiscal Court of Jefferson County v. Pflanz, 127 Ky. 8 , 104 S.W. 1002, 31 Ky. L. Rptr. 1242 , 1907 Ky. LEXIS 112 ( Ky. 1907 ).

Where law specifically authorized counties to erect armories, the fiscal court had the power to provide heat, light and janitor service for the county armory, and to make appropriations for that purpose. (Decided under prior law) Fiscal Court of Jefferson County v. Pflanz, 127 Ky. 8 , 104 S.W. 1002, 31 Ky. L. Rptr. 1242 , 1907 Ky. LEXIS 112 ( Ky. 1907 ).

Opinions of Attorney General.

The only authority whereby a city of the fifth class can participate in the acquisition and construction of an armory is under the terms of KRS 36.080 and KRS 36.090 (repealed) and such acquisition is a joint project. OAG 61-969 .

Research References and Practice Aids

Cross-References.

State flag, flying of at armories encouraged, KRS 2.030 .

36.081. Restriction of application of KRS 36.080(3).

Subsection (3) of KRS 36.080 shall not apply to armories constructed by or rented from the Commonwealth of Kentucky Military Department Armory Corporation, organized under the laws of Kentucky, July 10, 1939.

History. Enact. Acts 1946, ch. 72, § 3; 1948, ch. 103, § 3.

36.082. National Guard Facilities Construction Act.

  1. This section may be cited as the National Guard Facilities Construction Act.
  2. The purpose of this section is to provide funds for the construction of National Guard facilities at the following locations, at the estimated cost shown:

    Any of these facilities may be constructed at such other locations at which National Guard units may be established.

  3. Proceeds from the sale of facilities now held by the Department of Military Affairs which are obsolete or surplus to the needs of the department shall be deposited to the capital construction fund to the credit of the Department of Military Affairs. Such amounts credited and such additional funds as are available for general use within the capital construction fund may be used for construction of facilities for the Department of Military Affairs to carry out the provisions of this section. Any unexpended balances remaining at the close of a fiscal year shall not lapse, but shall carry forward into subsequent fiscal years. Upon certification by the adjutant general that any project which was planned in anticipation of receipt of federal funds, that such federal funds will not be received on a timely basis, state funds designated for such projects may revert to capital construction fund to the credit of the Department of Military Affairs for other construction projects.

Location Facility Estimated CostExpected FederalFunds StateFunds Louisville Maintenance Shop $ 75,000 $ 6,000 Hickman Armory 210,000 80,000 Lexington Armory 340,000 145,000 Lexington Maintenance Shop 75,000 6,000 Frankfort Aviation Maintenance Shop 85,000 6,800 Ravenna Armory 190,000 75,000 Russellville Armory 170,000 70,000 Frankfort Department of Military Affairs Building and State Government Emergency Operations Center 250,000 470,000 TOTAL $1,395,000 $858,800

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History. Enact. Acts 1956, ch. 71; 1958, ch. 24; 1960, ch. 177; 1966, ch. 231; 1968, ch. 58; 1974, ch. 108, § 8.

36.085. Legislative intent.

  1. It is the intent of the General Assembly to provide a local installation management fund at Department of Military Affairs facilities. The local installation management fund shall be receipts from the use of Department of Military Affairs facilities by military and nonmilitary individuals and organizations.
  2. The General Assembly further recognizes that some Department of Military Affairs facilities are not staffed by state employees, but are staffed by members of the Kentucky National Guard, who are on the federal payroll. It is the intent of the General Assembly to authorize the adjutant general of Kentucky to appoint a member of the Kentucky National Guard as custodian of each of the various local installation management funds when an authorized state employee is not stationed at that location.

HISTORY: Enact. Acts 1986, ch. 420, § 1, effective July 15, 1986; 2015 ch. 72, § 1, effective June 24, 2015.

36.086. Installation management fund.

  1. The Department of Military Affairs may establish an installation management fund account in a local bank for each Department of Military Affairs facility, notwithstanding KRS 41.070 and 45A.655 . Funds derived from the use of the buildings and grounds shall be deposited in the Department of Military Affairs local installation management fund account.
  2. The adjutant general shall determine the maximum authorized balance in each Department of Military Affairs local installation management fund account. The adjutant general or his designated representative shall review at least annually each installation management fund account. If the account balance is excessive, the surplus funds shall be withdrawn from the installation management fund account for deposit in the appropriate Department of Military Affairs trust and agency fund account.
  3. The local installation management fund account shall be used for expenses associated with routine Department of Military Affairs and Kentucky National Guard functions and operations. Any expense in excess of one hundred fifty dollars ($150) but not more than one thousand dollars ($1,000) shall have approval from the facilities division director. Any expense in excess of one thousand dollars ($1,000) but not more than two thousand five hundred dollars ($2,500) shall have approval from the executive director of the Department of Military Affairs. Any expense in excess of two thousand five hundred dollars ($2,500) but not more than four thousand dollars ($4,000) shall have approval from the adjutant general or his designated representative.
  4. The adjutant general shall provide an annual report to the Legislative Research Commission and the secretary of the Finance and Administration Cabinet which identifies the receipts and expenditures of the installation management fund accounts. This report shall be transmitted to the Legislative Research Commission and the secretary of the Finance and Administration Cabinet within sixty (60) days after the close of each fiscal year. In addition, the adjutant general shall also provide information to the Legislative Research Commission and the secretary of the Finance and Administration Cabinet during the preparation of the biennial budget relating to the receipts, expenditures, and balances of these accounts.

HISTORY: Enact. Acts 1986, ch. 420, § 2, effective July 15, 1986; 1990, ch. 496, § 27, effective July 13, 1990; 2015 ch. 72, § 2, effective June 24, 2015.

36.088. Morale, welfare, and recreation facilities — Nonappropriated fund instrumentality — Administrative regulations — Use of facilities and proceeds derived therefrom.

  1. As used in this section, unless the context requires otherwise:
    1. “Morale, welfare, and recreation facility” means any post exchange, canteen, barber shop, fitness center, snack bar, transient housing, billeting operation, daycare, laundry, or similar facility, the purpose of which is to enhance the morale and welfare of military personnel;
    2. “Nonappropriated fund employee” means an employee of a nonappropriated fund instrumentality who is not an employee of the federal government or the Commonwealth of Kentucky; and
    3. “Nonappropriated fund instrumentality” means an enterprise operated exclusively with funds derived from sales or user fees, which receives no legislative appropriations for its operations.
    1. The adjutant general is authorized to establish morale, welfare, and recreation facilities within the state as in his or her judgment may be necessary and proper for military purposes. (2) (a) The adjutant general is authorized to establish morale, welfare, and recreation facilities within the state as in his or her judgment may be necessary and proper for military purposes.
    2. Morale, welfare, and recreation facilities may be established at any property under the control of the Department of Military Affairs.
    3. As used in this subsection, “property under the control of the Department of Military Affairs” means any property on the facility installations stationing plan as maintained by the construction and facilities manager for the Kentucky National Guard, and includes all armories, training areas, ranges, and other facilities leased, licensed, or owned by the Department of Military Affairs.
  2. Notwithstanding any other provision of law to the contrary, the adjutant general is authorized to establish a nonappropriated fund instrumentality for the purpose of operating the morale, welfare, and recreation facilities.
  3. A nonappropriated fund instrumentality established under this section may:
    1. Contract for goods and services;
    2. Hire nonappropriated fund employees under terms and conditions as it may negotiate, subject only to applicable state and federal labor laws;
    3. Establish a system of bookkeeping, accounting, and auditing procedures for the proper handling of funds derived from its operations; and
    4. Perform any other action necessary to establish a board, corporation, or other entity for the purpose of operating the morale, welfare, and recreation facilities.
  4. A nonappropriated fund instrumentality established under this section is solely responsible for its operations. No debt of the nonappropriated fund instrumentality is a debt of the Commonwealth. An action of the nonappropriated fund instrumentality is not an action of the Commonwealth, and shall not obligate the Commonwealth in any manner.
  5. The adjutant general may promulgate administrative regulations for the operation of morale, welfare, and recreation facilities and any nonappropriated fund instrumentality established under this section.
  6. All proceeds derived from the operation of the morale, welfare, and recreation facilities within the state shall, after payment of operating expenses, notwithstanding any other provision of law to the contrary, be used exclusively to benefit the morale, welfare, and recreation facilities.
  7. Use of the morale, welfare, and recreation facilities provided for in this section is limited to:
    1. Current and retired members of the Kentucky National Guard and their eligible dependents; and
    2. Civilian employees of the United States or the Commonwealth of Kentucky working under Department of Military Affairs management or in support of Department of Military Affairs activities.

HISTORY: 2015 ch. 75, § 1, effective March 30, 2015.

36.090. Counties and cities may acquire armories — Taxes. [Repealed.]

Compiler’s Notes.

This section (2711a-128: amend. Acts 1962, ch. 127, § 7; 1976, ch. 140, § 18) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

36.100. Rooms for veterans. [Repealed.]

Compiler’s Notes.

This section (2711a-128) was repealed by Acts 1954, ch. 94, § 5.

36.110. Governor’s staff.

The staff of the commander in chief shall consist of an administrative and personal staff. The administrative staff shall consist of the adjutant general and such other officers of the Kentucky National Guard, of the grade prescribed by the Department of Defense of the United States for the administrative staff for Kentucky, as are detailed by the Governor. The personal staff shall consist of not more than four (4) aides-de-camp, detailed from commissioned officers of the National Guard in active service from grades below that of colonel. Such detail shall not add to the grade of the officer so appointed. The officers detailed as aides-de-camp shall not be relieved from duty with their respective organizations but shall perform all duties pertaining thereto except when on duty as aides-de-camp under orders of the Governor. The staff shall be appointed by the Governor and shall hold office during his pleasure or during the term for which he was elected.

History. 2711a-144: amend. Acts 1962, ch. 127, § 8.

Research References and Practice Aids

Cross-References.

Appointment of staff officers, Const., § 222.

Governor, commander in chief of militia, Const., § 75.

36.120. Assistant adjutants general. [Repealed.]

Compiler’s Notes.

This section (2711a-154, 2711a-227, 2711a-230: amend. Acts 1954, ch. 94, § 6; 1956, ch. 4, § 4) was repealed by Acts 1962, ch. 127, § 13.

36.130. Officers and personnel — Appointment — Duties — Salaries.

The adjutant general, by and with the advice and approval of the Governor, shall appoint the officers and other personnel necessary for the proper functioning of the Department of Military Affairs, fix their salaries and prescribe their duties.

History. 2711a-155: amend. Acts 1962, ch. 210, § 3.

Research References and Practice Aids

Cross-References.

Department officers and employees, KRS 12.060 .

Officers of the militia, how chosen, Const., § 222.

36.140. Reimbursement for expenses and subsistence for active field service or state active duty — Annual leave.

  1. Officers and enlisted men ordered into active field service pursuant to KRS 37.240 or into state active duty as defined in KRS 38.010(4) as individuals shall be entitled to reimbursement out of the State Treasury for expense of transportation and for other expenses actually incurred pursuant to KRS 45.101 and the regulations promulgated thereunder, and, when government supplied quarters and mess facilities are not available to the officers and enlisted men without cost, they shall be entitled to reimbursement out of the State Treasury for subsistence pursuant to KRS 45.101 .
  2. Nothing in this section shall be construed to prevent officers and employees of state, county, and local departments and agencies from receiving fifteen (15) days annual military leave with pay.

History. 2711a-156: amend. Acts 1954, ch. 94, § 7; 1962, ch. 127, § 9; 1974, ch. 108, § 9; 1982, ch. 450, § 54, effective July 1, 1983; 1992, ch. 307, § 2, effective April 9, 1992.

36.145. Kentucky National Guard and Reserve Employers’ Council — Membership — Meetings. [Repealed]

History. Enact. Acts 2003, ch. 158, § 1, effective June 24, 2003; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler's Notes

This section (Enact. Acts 2003, ch. 158, § 1, effective June 24, 2003) was repealed by ch. 80, § 58, effective June 29, 2017.

36.146. Mission of Kentucky National Guard and Reserve Employers’ Council. [Repealed]

History. Enact. Acts 2003, ch. 158, § 2, effective June 24, 2003.

Compiler's Notes

This section (Enact. Acts 2003, ch. 158, § 2, effective June 24, 2003) was repealed by ch. 80, § 58, effective June 29, 2017.

36.150. Bonds of officers and employees. [Repealed.]

Compiler’s Notes.

This section (2711a-202, 2711a-231, 2711a-232) was repealed by Acts 1946, ch. 27, § 16.

36.160. Militia — Whom to consist of — Divided into three classes. [Repealed.]

Compiler’s Notes.

This section (2711a-145) was repealed by Acts 1942, ch. 4, § 23.

36.170. Codes of regulations.

  1. The system of organization, armament, discipline and government of the National Guard shall be prescribed from time to time in a code of regulations promulgated by the Governor, subject to the laws and regulations of the United States.
  2. The system of organization, armament, discipline and government of the Kentucky active militia shall be prescribed from time to time in a “Code of Regulations” to be promulgated by the adjutant general after being authorized by the Governor.

History. 2711a-145f, 2711a-157: amend. Acts 1942, ch. 4, §§ 10, 24; 1962, ch. 127, § 10.

36.180. United States articles of war and regulations adopted — Imprisonment. [Repealed.]

Compiler’s Notes.

This section (2711a-158) was repealed by Acts 1954, ch. 94, § 8.

36.190. Council of administration — Honorary members — Jury service, exemption from. [Repealed.]

Compiler’s Notes.

This section (2711a-241) was repealed by Acts 1962, ch. 127, § 13.

36.200. Inspection of military property.

The adjutant general or such officers as he may designate shall inspect, at least once in each year or oftener if the Governor requires, all headquarters, arsenals, storehouses, armories, organizations, military property belonging to the state, and military property issued to the state by the United States. The inspectors shall render a detailed report to the adjutant general of the condition of same.

History. 2711a-239: amend. Acts 1962, ch. 127, § 11.

Compiler's Notes

This section is set out above to reflect a correction to the section's punctuation by the state reviser.

36.210. Appropriations may be used interchangeably. [Repealed.]

Compiler’s Notes.

This section (2711a-145x) was repealed by Acts 1942, ch. 4, § 23.

36.220. Expenses of active militia — Appropriations may be used interchangeably.

All necessary cost and expense of perfecting and maintaining the organization of the Kentucky active militia, the payment of salaries, expenses of administration, purchase of necessary equipment, supplies, printing, postage and all other necessary expenditures shall be paid out of any budget appropriation made for the present or that may be made for any future fiscal year, for use of the military department, and the adjutant general is hereby authorized and empowered to use any funds so appropriated interchangeably for the Kentucky active militia or the National Guard, except as to the armory fund. In the event there is not sufficient funds in the budget allotted to the adjutant general, the Governor is authorized to expend from his emergency fund or any other fund appropriated by the Legislature a sufficient amount to take care of any deficiency that may arise.

History. Enact. Acts 1942, ch. 4, § 17.

36.224. Office for Security Coordination — Federal homeland security funding. [Repealed.]

Compiler’s Note.

This section (Enact. Acts 2002, ch. 45, § 1, effective July 15, 2002; 2003, ch. 68, § 1, effective March 18, 2003) was repealed by Acts 2006, ch. 193, § 16, effective July 12, 2006.

Unit of Civil Air Patrol

36.230. Unit of Civil Air Patrol — Head of unit.

  1. There shall be a Unit of Civil Air Patrol in the Department of Military Affairs. The unit shall consist of the Kentucky wing of the Civil Air Patrol and any other units and personnel as are added by administrative order.
  2. The commanding officer or his designee of the Kentucky wing of the Civil Air Patrol shall be ex officio the head of the unit.

History. Enact. Acts 1996, ch. 258, § 1, effective July 15, 1996.

36.235. Functions of unit.

The Unit of Civil Air Patrol established pursuant to KRS 36.230 shall perform emergency disaster work within the Commonwealth in all instances in which aeronautical equipment and maneuvers might be of assistance in relieving the disaster, and shall engage in all manner of air search and rescue for which the Civil Air Patrol is fitted. The head may establish facilities for aeronautical education and training.

History. Enact. Acts 1996, ch. 258, § 2, effective July 15, 1996.

36.240. Coordination of unit activities with federal government.

The adjutant general shall coordinate the activities of the Unit of Civil Air Patrol established pursuant to KRS 36.230 with the federal government and any of its agencies in all matters relating to aeronautical training and education, communications, rescue work, mercy missions, aerial observation, establishment of navigational aids, and other functions within the scope of activity of the Civil Air Patrol.

History. Enact. Acts 1996, ch. 258, § 3, effective July 15, 1996.

36.245. Use of appropriations — Restrictions.

No portion of moneys appropriated for the Unit of the Civil Air Patrol established pursuant to KRS 36.230 shall be expended without the approval of the adjutant general nor shall they be expended for the purchase of uniforms for any member of the Civil Air Patrol.

History. Enact. Acts 1996, ch. 258, § 4, effective July 15, 1996.

36.250. Definitions for KRS 36.250 to 36.270.

As used in KRS 36.250 to 36.270 :

  1. “Board” means the Kentucky Community Crisis Response Board;
  2. “Community crisis response team” means the statewide membership of trained volunteers that provide crisis response services under the direction of the board;
  3. “Crisis response services” means consultation, risk assessment, referral, and on-site crisis intervention services to persons impacted by crisis or disaster, but shall not be construed to include any services performed or intended to be performed by any other agency of the Commonwealth, any of its subdivisions, or any private party under KRS Chapter 224 or 39;
  4. “Debriefing session” means the crisis response services rendered during or after a crisis or disaster; and
  5. “Local community crisis response team” means a team formed to provide crisis response services in a county, district, or region and which operates in accordance with protocols and procedures established by the board.

History. Repealed, reenact., and amend. Acts 1998, ch. 86, § 1, effective July 15, 1998.

Compiler’s Notes.

This section was formerly compiled as KRS 42.660 and was repealed, reenacted and amended as this section by Acts 1998, ch. 86, § 1, effective July 15, 1998.

36.255. Kentucky Community Crisis Response Board — Members — Meetings.

  1. The Kentucky Community Crisis Response Board is hereby created as a separate administrative body of state government within the meaning of KRS Chapter 12 and attached for administrative purposes to the Department of Military Affairs.
  2. The membership of the board shall consist of the following:
    1. The commissioner of the Department for Behavioral Health, Developmental and Intellectual Disabilities, or the commissioner’s designee;
    2. The commissioner of the Department for Public Health, or the commissioner’s designee;
    3. The commissioner of the Department of Education, or the commissioner’s designee;
    4. The commissioner of the Department of Kentucky State Police, or the commissioner’s designee;
    5. The Kentucky state fire marshal, or the fire marshal’s designee;
    6. The executive director of the Division of Emergency Management, or the executive director’s designee;
    7. The Attorney General, or the Attorney General’s designee;
    8. One (1) representative of local community crisis response teams appointed by the Governor;
    9. Four (4) members appointed by the Governor to represent mental health disciplines;
    10. Two (2) members appointed by the Governor to represent emergency services disciplines;
    11. One (1) member who is a mental health professional licensed for independent clinical practice, to be appointed by the Governor. The licensed mental health professional member shall serve as clinical director for the board;
    12. One (1) member, appointed by the Governor, from a statewide chaplain’s association involved in emergency services, who is trained in grief counseling and has experience in crisis response;
    13. One (1) member from the Kentucky Chapter of the American Red Cross; and
    14. The commissioner of the Department for Community Based Services or the commissioner’s designee.
  3. All board members appointed pursuant to subsection (2)(h) to (l) of this section shall be approved members of the existing community crisis response team.
  4. All board members appointed pursuant to subsection (2)(h) to (l) of this section shall have demonstrated a commitment to the provision of community crisis response services.
  5. The members of the board appointed by the Governor shall serve for two (2) years and may be reappointed for one (1) additional consecutive two (2) year term. All vacancies in appointed members’ terms shall be filled by appointment of the Governor for the remainder of the unexpired term.
  6. The board shall elect annually from its membership a chairperson and shall establish other officers and committees as needed to execute the duties of the board.
  7. The board shall meet at least quarterly, and a majority of the members shall constitute a quorum for the transaction of the board’s business.
  8. Except for hired and appointed staff, no board member or team member shall receive compensation. However, board members and crisis response team members may receive reimbursement for expenses incurred in the course of providing crisis response services or executing the duties of the board, consistent with state policy governing the reimbursement of state employees for food, travel, and lodging. Except as provided for in KRS 36.260 , nothing in the provisions of KRS 36.250 to 36.270 shall be construed to create liability of a private party for expenses incurred or reimbursed under this subsection.

History. Repealed, reenact., and amend. Acts 1998, ch. 86, § 2, effective July 15, 1998; 1998, ch. 426, § 83, effective July 15, 1998; 2000, ch. 14, § 6, effective July 14, 2000; 2000, ch. 102, § 3, effective July 14, 2000; 2007, ch. 85, § 119, effective June 26, 2007; 2012, ch. 146, § 6, effective July 12, 2012; 2012, ch. 158, § 7, effective July 12, 2012.

Compiler’s Notes.

This section was formerly compiled as KRS 42.665 and was repealed, reenacted and amended as this section by Acts 1998, ch. 86, § 2, effective July 15, 1998.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158, which do not appear to be in conflict and have been codified together.

36.260. Duties of board.

The board shall:

  1. Establish and maintain necessary offices, appoint an executive director, and hire other employees as necessary and prescribe their duties and compensation;
  2. Recruit and train volunteer members who shall comprise the community crisis response team;
  3. Maintain a team of volunteer members to provide crisis response services statewide;
  4. Provide technical assistance for the development of local community crisis response teams;
  5. Promulgate administrative regulations pursuant to KRS Chapter 13A relating to the operation of crisis response services;
  6. Provide training programs on the operation of the crisis response teams and the provision of crisis response services;
  7. Develop agreements with agencies in both the public and private sectors;
  8. Promulgate administrative regulations pursuant to KRS Chapter 13A as necessary to execute the duties of the board;
  9. Make recommendations to the Governor and to the General Assembly related to the planning and provision of crisis response services; and
  10. Receive funding from any source and apply for public and private grants as it deems necessary.

History. Repealed, reenact., and amend. Acts 1998, ch. 86, § 3, effective July 15, 1998.

Compiler’s Notes.

This section was formerly compiled as KRS 42.670 and was repealed and reenacted as this section by Acts 1998, ch. 86, § 3, effective July 15, 1998.

36.265. Attorney General to represent board members in civil proceedings.

If any member of the board or any member of a crisis response team authorized by KRS 36.250 to 36.270 does any act in the discharge of his duty that causes him to be proceeded against by civil court action, the Attorney General shall represent him in the civil proceedings.

History. Repealed, reenact., and amend. Acts 1998, ch. 86, § 4, effective July 15, 1998.

Compiler’s Notes.

This section was formerly compiled as KRS 42.675 and was repealed, reenacted and amended as this section by Acts 1998, ch. 86, § 4, effective July 15, 1998.

36.270. Status of state and local government employees acting on behalf of board.

Whenever the employees of the Commonwealth of Kentucky or any county, urban-county, charter county, or city government, are rendering outside aid pursuant to the authority contained in KRS 36.250 to 36.270 , those employees shall have the same powers, duties, rights, privileges, and immunities as if they were performing their duties in the jurisdiction in which they are normally employed.

History. Repealed, reenact., and amend. Acts 1998, ch. 86, § 5, effective July 15, 1998.

Compiler’s Notes.

This section was formerly compiled as KRS 42.680 and was repealed, reenacted and amended as this section by Acts 1998, ch. 86, § 5, effective July 15, 1998.

Veterans’ Affairs

36.300. Department of Veterans’ Affairs attached to Office of Governor — Organization. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1996, ch. 244, § 1, effective July 15, 1996; 1998, ch. 88, § 1, effective July 15, 1998) was repealed, reenacted and amended as KRS 40.300 by Acts 2000, ch. 147, § 1, effective July 14, 2000.

36.310. Advisory Board for Veterans’ Affairs — Membership — Meetings — Duties. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 222, § 1; 1974, ch. 74, Art. II, § 9(1); ch. 74, Art. VI, § 33; 1980, ch. 118, § 1, effective July 15, 1980; 1984, ch. 118, § 2, effective July 13, 1984; 1996, ch. 244, § 5, effective July 15, 1996) was repealed and reenacted as KRS 40.305 by Acts 2000, ch. 147, § 2, effective July 14, 2000.

36.320. Officers — Records. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 222, § 2) was repealed by Acts 1974, ch. 74, § 108.

36.330. Duties of Department of Veterans’ Affairs. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 222, § 3; 1974, ch. 74, Art. VI, § 34; 1980, ch. 118, § 2, effective July 15, 1980; 1992, ch. 313, § 2, effective July 14, 1992; 1996, ch. 244, § 6, effective July 15, 1996) was repealed, reenacted and amended as KRS 40.310 by Acts 2000, ch. 147, § 3, effective July 14, 2000.

36.340. State veterans’ cemeteries — Administrative regulations — Funding. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 19, § 1, effective July 15, 1998) was repealed and reenacted as KRS 40.315 by Acts 2000, ch. 147, § 4, effective July 14, 2000.

Veterans’ Nursing Homes

36.350. Purpose of KRS 36.355. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 31, § 1, effective February 28, 1986) was repealed, reenacted and amended as KRS 40.320 by Acts 2000, ch. 147, § 5, effective July 14, 2000.

36.355. Veterans’ nursing homes — Attachment to Finance and Administration Cabinet — Administrative regulations — Funding. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 31, § 2, effective February 28, 1986; 1994, ch. 474, § 2, effective July 15, 1994; 1996, ch. 244, § 7, effective July 15, 1996) was repealed and reenacted as KRS 40.325 by Acts 2000, ch. 147, § 6, effective July 14, 2000.

36.360. Authorization to apply for issuance of revenue bonds — Other financial arrangements. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 437, Pt. X, § 1, effective April 15, 1988; 1994, ch. 474, § 3, effective July 15, 1994; 1996, ch. 244, § 8, effective July 15, 1996) was repealed and reenacted as KRS 36.360 by Acts 2000, ch. 147, § 7, effective July 14, 2000.

36.370. Revenue bonds — Provisions — Exempt from taxation — Negotiability — Conditions in authorizing resolution — Sale of bonds — Prior consent not required. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 437, Pt. X, § 2, effective April 15, 1988) was repealed, reenacted and amended as KRS 40.335 by Acts 2000, ch. 147, § 8, effective July 14, 2000.

Military Burial Honor Guards

36.390. Legislative findings on military burial honors — Authority to promulgate administrative regulations.

  1. The Commonwealth of Kentucky recognizes the need to provide for honorable burials for Kentuckians who have served their state and nation in the Armed Forces. Historically these burial services have been conducted by the active military units in Kentucky, the Kentucky National Guard, the military reserves, and the veterans’ service organizations. However, increasing death rates, declining military resources, and an aging membership of veterans’ service organizations present the need for new initiatives in support of military burial honors.
  2. To correct this situation, and recognizing the immediate need, the Department of Military Affairs shall oversee a Military Burial Honor Guard Program, in coordination with the Department of Veterans’ Affairs, on behalf of the Commonwealth of Kentucky.
  3. The Department of Military Affairs, in consultation with and as a supplement to the Department of Defense, active United States military commands in Kentucky, the Department of Veterans’ Affairs, the military reserves, and veterans service organizations, shall implement and administer the provisions of KRS 36.390 to 36.396 through the promulgation of administrative regulations. These regulations shall be in accordance with the provisions of KRS Chapter 13A and shall comply with and supplement the Department of Defense and the Armed Services’ guidance.

History. Enact. Acts 2000, ch. 378, § 1, effective July 1, 2000.

36.392. Military burial honor guard trust fund.

  1. There is established and created in the State Treasury a fund entitled the “Miliary Burial Honor Guard Trust Fund” to provide funds to offset the costs of the Military Burial Honor Guard Program. The fund may receive state appropriations, gifts, grants, federal funds, and any other funds both public and private. Moneys deposited in the fund shall be disbursed by the State Treasurer upon the warrant of the Adjutant General or his representative. Any unallocated or unencumbered balances in the fund shall be invested as provided in KRS 42.500(9), and any income earned from the investments along with the unallotted or unencumbered balances in the fund shall not lapse and shall be deemed a trust and agency account and made available solely for the purposes and benefits of the Military Burial Honor Guard Program.
  2. The fund shall be used to support the costs, beyond federal reimbursements, that the Department of Military Affairs and the Department of Veterans’ Affairs incur and deem necessary in providing and supporting the personnel and activities of KRS 36.390 to 36.396 .

History. Enact. Acts 2000, ch. 378, § 2, effective July 1, 2000.

36.394. Duties of Department of Military Affairs and Department of Veterans’ Affairs relating to burial honors.

  1. The Department of Military Affairs shall promulgate administrative regulations to implement the Military Burial Honor Guard Program.
  2. The Department of Military Affairs shall coordinate military burial honors for those who are determined to be eligible by federal and state regulations.
  3. The Department of Veterans’ Affairs shall coordinate the Military Burial Honor Guard Program with veterans’ service organizations, Kentucky veterans and their dependents, and the United States Department of Veterans Affairs in support of the Department of Military Affairs.

History. Enact. Acts 2000, ch. 378, § 3, effective July 1, 2000.

36.396. Excused absences for secondary school students who participate in Military Burial Honor Guard Program — Inclusion in instructional program.

  1. Recognizing the participation of secondary school students in the Military Burial Honor Guard Program, excused absences may be granted by local school boards to students of secondary school JROTC programs or other students who participate in the Military Burial Honor Guard Program. This includes time spent training, traveling, and participating in the Military Burial Honor Guard Program.
  2. Local school boards may also adopt a policy to allow students to participate in the Military Burial Honor Guard Program as a part of the instructional program.

History. Enact. Acts 2000, ch. 378, § 4, effective July 1, 2000.

Air Transport

36.400. Definitions for KRS 36.400 to 36.425. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 605, § 1, effective July 15, 1998; 2007, ch. 85, § 120, effective June 26, 2007) was repealed, reenacted and amended as KRS 174.500 by Acts 2009, ch. 13, § 16, effective July 25, 2009.

36.405. Policy development supervision, management, and administration of Division of Air Transport and Capital City Airport. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 605, § 1, effective July 15, 1998; 2007, ch. 85, § 120, effective June 26, 2007) was repealed, reenacted and amended as KRS 174.502 by Acts 2009, ch. 13, § 17, effective July 25, 2009.

36.410. Functions of the Division of Air Transport — Authority for administrative regulations. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 605, § 3, effective July 15, 1998) was repealed, reenacted and amended as KRS 174.504 by Acts 2009, ch. 13, § 18, effective July 25, 2009.

36.415. Use of state aircraft. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 605, § 4, effective July 15, 1998) was repealed, reenacted and amended as KRS 174.506 by Acts 2009, ch. 13, § 19, effective July 25, 2009.

36.420. Approval of requests for use of state aircraft. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 605, § 5, effective July 15, 1998) was repealed, reenacted and amended as KRS 174.508 by Acts 2009, ch. 13, § 20, effective July 25, 2009.

36.425. Recordkeeping for Division of Air Transport and use of state aircraft. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 605, § 6, effective July 15, 1998) was repealed, reenacted and amended as KRS 174.510 by Acts 2009, ch. 13, § 21, effective July 25, 2009.

36.440. Authority for disposition of remains when decedent died in active military service.

Notwithstanding KRS 367.97501 to 367.97537 or any other statute relating to the disposition of remains, if a decedent died while in active military service, including state active duty with the National Guard, the person designated by the decedent on the United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, shall have the primary authority and responsibility for the final disposition of the decedent’s remains.

History. Enact. Acts 2013, ch. 124, § 1, effective June 25, 2013.

36.450. Automatic extension of license, permit, or certification held by members of Armed Forces deployed overseas — Inapplicability to operator’s and driver’s licenses, motor vehicle registrations, and licenses to carry concealed deadly weapon — Renewal of concealed carry license by deployed service member.

  1. Except as provided for in subsections (5), (6), and (7) of this section, notwithstanding any other provision of law, a license, permit, or certification held by a member of the United States Armed Forces, including a member of the Kentucky National Guard or Reserve on federal active duty, that expires while that member is deployed overseas shall be extended until ninety (90) days after the end of the deployment.
  2. The hiring, licensing, permitting, or certifying authority shall renew a license, permit, or certification extended under subsection (1) of this section until the next date that the license, permit, or certification expires or for the period that the license, permit, or certification is normally issued, at no cost to the member, if that member:
    1. Requests renewal of the license, permit, or certification within ninety (90) days after the end of overseas deployment;
    2. Provides the hiring, licensing, permitting, or certifying authority with a copy of the member’s official orders ending the overseas deployment; and
    3. Meets all the requirements necessary for the renewal of the license, permit, or certification, except that the member need not meet the requirements, if any, that relate to continuing education or training.
    1. The possession by a member specified in subsection (1) of this section of a license, permit, or certification, together with orders for overseas deployment, shall constitute a de facto extension of the license, permit, or certification until its expiration pursuant to subsection (1) of this section or until the license, permit, or certificate is renewed by the hiring, licensing, permitting, or certifying authority, whichever occurs later. (3) (a) The possession by a member specified in subsection (1) of this section of a license, permit, or certification, together with orders for overseas deployment, shall constitute a de facto extension of the license, permit, or certification until its expiration pursuant to subsection (1) of this section or until the license, permit, or certificate is renewed by the hiring, licensing, permitting, or certifying authority, whichever occurs later.
    2. The possession of a license, permit, or certification, together with orders for overseas deployment, shall constitute, during the period specified in paragraph (a) of this subsection, a defense to any charge for possession of an expired license, permit, or certification by the member specified in subsection (1) of this section.
  3. In order to avoid confusion regarding the status of a license, permit, or certification, a service member specified in subsection (1) of this section may provide the hiring, licensing, permitting, or certifying authority a copy of the service member’s overseas deployment orders. Upon receipt of the service member’s overseas deployment orders, the receiving agency shall indicate the license as extended as provided in this section in the agency’s records. Failure of a service member to provide overseas deployment information to the hiring, licensing, permitting, or certifying authority shall have no effect on the automatic extension of the license, permit, or certification or its renewal as provided in this section. No hiring, licensing, permitting, or certifying agency shall take any adverse action with regard to the renewal of the license, permit, or certification of a service member who has been the subject of an overseas deployment and who has not notified the agency of the overseas deployment.
  4. This section shall not apply to a motor vehicle or motorcycle operator’s license issued under KRS Chapter 186, a motor vehicle registration issued under KRS Chapter 186, or a commercial driver’s license issued under KRS Chapter 281A.
  5. A license to carry a concealed deadly weapon issued pursuant to KRS 237.110 shall not be extended beyond its expiration date. However, a service member specified in subsection (1) of this section may:
    1. Renew a license issued pursuant to KRS 237.110 by requesting an application form from the Department of Kentucky State Police by mail or facsimile, and returning the completed application, photograph, and license fee to the sheriff prior to the expiration date of the license. The request for the application may be submitted not more than six (6) months prior to the expiration date of the license. The Department of Kentucky State Police shall, if the applicant meets the requirements of KRS 237.110, mail the new license directly to the applicant at the active duty military address specified by the applicant and shall send notification to the sheriff who sent in the application that the license has been sent directly to the applicant. No extra charges shall be made for this service; or
    2. Permit the license to expire and, upon return to the county of residence, apply for renewal of the license in the same manner as if the license had been renewed in a timely manner prior to its expiration without any extra fees or penalty charges if the renewal is accomplished within one (1) year after the end of the deployment.
  6. The Department of Kentucky State Police shall promulgate administrative regulations to implement the provisions of subsection (6) of this section.

History. Enact. Acts 2005, ch. 49, § 1, effective June 20, 2005; 2008, ch. 2, § 2, effective July 15, 2008; 2010, ch. 12, § 1, effective July 15, 2010.

Military Family Assistance Trust Fund

36.470. Military family assistance trust fund.

  1. The military family assistance trust fund is created as a separate revolving fund. The trust fund shall consist of grants, contributions, appropriations, or other moneys made available for the purpose of the trust fund.
  2. Trust fund amounts not expended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year.
  3. Any interest earnings of the trust fund shall become a part of the trust fund and shall not lapse.

History. Enact. Acts 2006, ch. 252, Pt. XXVIII, § 1, effective April 25, 2006.

36.472. Military family assistance trust fund board — Membership — Terms — Meetings.

    1. The military family assistance trust fund board is hereby created for the purpose of administering the trust fund created under KRS 36.470 . The board shall be attached to the Department of Military Affairs for administrative purposes. The board shall be composed of seven (7) members as follows: (1) (a) The military family assistance trust fund board is hereby created for the purpose of administering the trust fund created under KRS 36.470 . The board shall be attached to the Department of Military Affairs for administrative purposes. The board shall be composed of seven (7) members as follows:
      1. Four (4) members, expert in military family matters, at least one (1) of whom shall be a member of the Kentucky National Guard, appointed by the Governor;
      2. One (1) member, expert in military family matters, appointed by the President of the Senate;
      3. One (1) member, expert in military family matters, appointed by the Speaker of the House of Representatives; and
      4. The adjutant general, who shall serve as a nonvoting member.
    2. Appointments referred to in paragraph (a) of this subsection shall be made within sixty (60) days of April 25, 2006.
  1. The adjutant general, or a majority of the board members, shall arrange for the first board meeting as soon as possible after all board members are appointed, but no later than June 15, 2006.
  2. Appointed board members shall serve without compensation but may receive reimbursement for their actual and necessary expenses incurred in the performance of their duties.
  3. The term of each appointed member shall be four (4) years, except any person serving on the board prior to July 15, 2012, shall serve until the expiration of his or her current term. The subsequent appointments shall be for terms as follows:
    1. The Governor shall appoint two (2) members to a term of two (2) years and two (2) members to a term of three (3) years; the President of the Senate and the Speaker of the House of Representatives shall each appoint one (1) member to a term of four (4) years; and
    2. Upon expiration of the terms established in paragraph (a) of this subsection, all appointments shall be for a term of four (4) years.
  4. An appointed member whose term has expired may continue to serve until a successor is appointed and qualifies. A member who is appointed to an unexpired term shall serve the rest of the term and until a successor is appointed and qualifies. A member may serve two (2) consecutive four (4) year terms and shall not be reappointed for four (4) years after the completion of those terms.
  5. A majority of the full membership of the board shall constitute a quorum.
    1. Except as provided in paragraph (b) of this subsection, at the first meeting, the board shall elect, by majority vote, a president who shall preside at all meetings and coordinate the functions and activities of the board. The president shall be elected or reelected each calendar year thereafter. (7) (a) Except as provided in paragraph (b) of this subsection, at the first meeting, the board shall elect, by majority vote, a president who shall preside at all meetings and coordinate the functions and activities of the board. The president shall be elected or reelected each calendar year thereafter.
    2. The adjutant general shall not serve as the president of the board.
  6. The board shall meet at least two (2) times annually but may meet more frequently, as deemed necessary, subject to call by the president or by request of a majority of the board members.

History. Enact. Acts 2006, ch. 252, Pt. XXVIII, § 2, effective April 25, 2006; 2012, ch. 87, § 1, effective July 12, 2012.

36.474. Eligibility for funds — Need-based applications by members or member’s spouse or dependent for necessary expenses — Expenditure of funds to benefit group of members, spouses, or dependents — Expenditure of funds to Adoption Assistance Program applicants — Adjutant general to award or decline — Identification of other funding sources available to applicant — Emergency regulations.

  1. During active duty of a regular member of the United States Armed Forces deployed outside the United States who names Kentucky as home of record for military purposes, or any federal active duty of a member of a state National Guard or a Reserve component, who names Kentucky as home of record for military purposes, and for one hundred eighty (180) days following the end of deployment outside the United States or deactivation, as appropriate, trust fund moneys shall be used to support:
    1. The person who names Kentucky as home of record for military purposes;
    2. The person’s Kentucky resident spouse;
    3. The person’s dependent or dependents; or
    4. A group of several members of the military or their families as described in paragraphs (a) to (c) of this subsection.
  2. An application for a trust fund grant may be filed by the member who names Kentucky as home of record for military purposes or his or her Kentucky resident spouse. The application shall be accompanied by an appropriate authorization to access personnel information contained in the military database Defense Enrollment Reporting System (DEERS) for verification purposes.
  3. Subject to the availability of trust fund moneys, the adjutant general shall award a grant to an applicant described in paragraphs (a) to (c) of subsection (1) of this section if that person’s application is need-based, and the amount of the grant does not exceed the dollar cap established by the board through the promulgation of administrative regulations. An application shall be need-based if:
    1. Funds are requested for necessary expenses incurred, or to be incurred. Necessary expenses shall include but not be limited to:
      1. Housing;
      2. Utilities;
      3. Groceries;
      4. Health insurance copay; and
      5. Child care;
    2. The necessary expenses created, or will create, an undue hardship on a person referred to in subsection (1) of this section;
    3. The undue hardship is directly related to the member’s deployment outside the United States or federal active duty, as appropriate;
    4. The applicant does not have reasonable access to any other funding source, whether public or private; and
    5. The military family assistance trust fund is the last resort.
  4. Subject to the availability of trust fund moneys, the adjutant general may expend trust fund money, in amounts up to one thousand dollars ($1,000) per situation and up to ten thousand dollars ($10,000) per calendar year, to benefit individuals described in paragraph (d) of subsection (1) of this section if:
    1. The individuals have a demonstrated need that affects their health, safety, or well-being; and
    2. A majority of the members of the military family assistance trust fund board has approved the expenditure, verbally or in writing.
  5. Subject to the availability of trust fund moneys, the director of the Kentucky National Guard Family Services Program within the Kentucky Department of Military Affairs may expend trust fund money, in amounts up to one thousand dollars ($1,000) per situation and up to ten thousand dollars ($10,000) per calendar year, to benefit individuals described in subsection (1) of this section if:
    1. The individuals have a demonstrated need that affects their health, safety, or well-being; and
    2. A majority of the members of the military family assistance trust fund board has approved the expenditure, verbally or in writing.
  6. Subject to the availability of military family assistance trust fund moneys, the adjutant general shall expend trust fund money to eligible applicants to the Kentucky National Guard Adoption Assistance Program as provided in KRS 36.477 . Eligible applicants to the Kentucky National Guard Adoption Assistance Program shall not be subject to the requirements of subsection (1) of this section.
    1. The adjutant general shall award or decline to award a grant within sixty (60) days of receiving an application. (7) (a) The adjutant general shall award or decline to award a grant within sixty (60) days of receiving an application.
    2. If the adjutant general awards or declines to award a grant, he or she shall state in writing the reason for the decision and keep the writing on file.
    3. If the adjutant general declines to award a grant, he or she shall provide the applicant with a copy of the writing referred to in paragraph (b) of this subsection. In addition, if the adjutant general declines to award a grant due to the availability of public or private funds, the adjutant general shall identify the source of available funds for the applicant and provide assistance with regard to seeking funds from that source.
  7. No later than August 15, 2006, the military family assistance trust fund board shall promulgate emergency administrative regulations to carry out the provisions of this section. These emergency regulations shall, at a minimum, enhance administrative efficiency and limit the dollar amount that a person may receive in grants per twelve (12) month period.

History. Enact. Acts 2006, ch. 252, Pt. XXVIII, § 3, effective April 25, 2006; 2010, ch. 138, § 1, effective July 15, 2010; 2012, ch. 7, § 2, effective July 12, 2012.

36.476. Annual report by board.

Each year between August 15 and September 1, the military family assistance trust fund board shall provide a written report to the Governor, the Legislative Research Commission, and the Interim Joint Committee on Seniors, Veterans, Military Affairs, and Public Protection. The written report shall provide:

  1. The board’s activities during the previous fiscal year;
  2. What moneys were spent out of the military family assistance trust fund for what purposes;
  3. The amount of money left in the fund; and
  4. Any recommendations for future initiatives with regard to the trust fund and its administration.

History. Enact. Acts 2006, ch. 252, Pt. XXVIII, § 4, effective April 25, 2006.

36.477. Kentucky National Guard Adoption Assistance Program.

  1. There is hereby established the Kentucky National Guard Adoption Assistance Program to be administered by the Kentucky Department of Military Affairs.
  2. Any member of the Kentucky National Guard who finalizes a legal adoption procedure for the adoption of a child, other than the child of a spouse, on or after July 12, 2012, shall be eligible to receive reimbursement from the military family assistance trust fund as provided in KRS 36.474 for actual costs associated with the adoption of the child, including a child with special needs. For the purposes of this section, a child with special needs means the same as defined in KRS 199.555(1).
  3. The eligible member of the Kentucky National Guard shall receive:
    1. Up to five thousand dollars ($5,000) in unreimbursed direct costs related to the adoption of a child with special needs; or
    2. Up to three thousand dollars ($3,000) in unreimbursed direct costs related to the adoption of any other child.
  4. Unreimbursed direct costs related to the adoption of a child with special needs or other child shall include:
    1. Licensed adoption agency fees;
    2. Legal fees;
    3. Medical costs;
    4. Court costs; and
    5. Other fees or costs associated with the child adoption in accordance with state and federal law and after review and approval by the court at the finalization of the adoption.
  5. Application for financial assistance shall be made by submitting a completed Kentucky National Guard adoption assistance application to the adjutant general along with documentary evidence of:
    1. Finalization of the adoption; and
    2. Certification by the secretary of the Cabinet for Health and Family Services that the adopted child is a child with special needs, if reimbursement for special needs adoption is sought.
  6. If both adoptive parents are members of the Kentucky National Guard, the application for financial assistance shall be made jointly and the amount of reimbursement shall be limited to that specified in subsection (2) of this section.
  7. Upon approval of the application for financial assistance, the adjutant general shall dispense funds from the military family assistance trust fund to the eligible applicant.
  8. The Department of Military Affairs shall promulgate administrative regulations in accordance with KRS Chapter 13A to carry out the provisions of this section.

History. Enact. Acts 2012, ch. 7, § 1, effective July 12, 2012.

36.478. “Mission: Welcome Home” Program. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2006, ch. 252, Pt. XXVIII, § 5) was repealed by Acts 2007, ch. 55, § 3, effective June 26, 2007.

36.480. Web publication of information and links to assist military spouses with credentialing.

The Kentucky Department of Military Affairs shall publish and periodically update information on its Web site to assist military spouses in obtaining professional and occupational licenses, certificates, registrations, permits, and other credentials. At a minimum, the department’s Web site shall provide links to relevant Department of Defense and Kentucky state agency Web sites.

History. Enact. Acts 2006, ch. 252, Pt. XXVIII, § 6, effective April 25, 2006; 2007, ch. 55, § 2, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). A manifest clerical or typographical error in this section has been corrected by the Reviser of Statutes under the authority of KRS 7.136 .

CHAPTER 37 Active Militia

37.010. Governor to organize Active Militia; may disband or reorganize it. [Repealed.]

Compiler’s Notes.

This section (2711a-145a, 2711a-145h) was repealed by Acts 1942, ch. 4, § 23.

37.020. Active Militia a division of the Department of Military Affairs. [Repealed.]

Compiler’s Notes.

This section (2711a-145i) was repealed by Acts 1942, ch. 4, § 23.

37.030. Organization; administration; equipment; drill. [Repealed.]

Compiler’s Notes.

This section (2711a-145f, 2711a-145g, 2711a-145i, 2711a-145r) was repealed by Acts 1942, ch. 4, § 23.

37.040. Executive Council. [Repealed.]

Compiler’s Notes.

This section (2711a-145f, 2711a-145j, 2711a-145k) was repealed by Acts 1942, ch. 4, § 23.

37.050. Enlistments; qualifications; discharge; term. [Repealed.]

Compiler’s Notes.

This section (2711a-145b, 2711a-145c, 2711a-145d) was repealed by Acts 1942, ch. 4, § 23.

37.060. Oaths of Active Militia; forms. [Repealed.]

Compiler’s Notes.

This section (2711a-145e) was repealed by Acts 1942, ch. 4, § 23.

37.070. Commanding officer, visits of instruction and inspection. [Repealed.]

Compiler’s Notes.

This section (2711a-145r) was repealed by Acts 1942, ch. 4, § 23.

37.080. Armories; drill halls; rifle ranges. [Repealed.]

Compiler’s Notes.

This section (2711a-145L) was repealed by Acts 1942, ch. 4, § 23.

37.090. Expenses of Active Militia; how paid. [Repealed.]

Compiler’s Notes.

This section (2711a-145p) was repealed by Acts 1942, ch. 4, § 23.

37.100. Per diem allowed officers. [Repealed.]

Compiler’s Notes.

This section (2711a-145k) was repealed by Acts 1942, ch. 4, § 23.

37.110. Officers and men in active service are peace officers. [Repealed.]

Compiler’s Notes.

This section (2711a-145u) was repealed by Acts 1942, ch. 4, § 23.

37.120. Fees; rewards. [Repealed.]

Compiler’s Notes.

This section (2711a-145w) was repealed by Acts 1942, ch. 4, § 23.

37.130. Not liable for acts done in pursuance of duty. [Repealed.]

Compiler’s Notes.

This section (2711a-145v) was repealed by Acts 1942, ch. 4, § 23.

37.140. Active service, how and when Active and Reserve Militia ordered into. [Repealed.]

Compiler’s Notes.

This section (2711a-145s, 2711a-145t, 2711a-149, 2711a-150, 2711a-163) was repealed by Acts 1942, ch. 4, § 23.

37.150. Exemptions from military service. [Repealed.]

Compiler’s Notes.

This section (216aa-22, 2711a-146, 2776, 2896, 2896a-14, 3047) was repealed by Acts 1942, ch. 4, § 23.

37.160. Enrollment of Reserve Militia; county clerk’s fees. [Repealed.]

Compiler’s Notes.

This section (2711a-147, 2711a-148) was repealed by Acts 1942, ch. 4, § 23.

37.170. Kentucky State Defense Force — Organization — Reorganization.

  1. The Governor is hereby authorized to enlist, organize, maintain, equip, discipline and pay when called into active field service a volunteer state defense force other than the National Guard, which shall constitute the active militia and shall be known as the Kentucky State Defense Force, which shall consist of able-bodied citizens who are residents of the State of Kentucky between the ages of eighteen (18) and sixty-four (64) who are not active members of a reserve component of the Armed Forces of the United States.
  2. Whenever the President of the United States shall call any part of the National Guard of this state into active federal service, the Governor is hereby authorized to organize the Kentucky State Defense Force under such regulations as may be promulgated by the Governor or adjutant general.
  3. The Governor shall have the power to alter, divide, annex, disband or reorganize any organization of the Kentucky State Defense Force whenever in his judgment the efficiency of the state forces will thereby be increased, and he shall have power to change the organization so as to conform to the regulations now or hereafter prescribed by the laws of the United States for the organization of the National Guard or militia.

History. Enact. Acts 1942, ch. 4, §§ 1, 4, 8; 1962, ch. 48, § 3; 1974, ch. 108, § 10; 1974, ch. 386, § 9; 1984, ch. 414, § 47, effective July 13, 1984.

Research References and Practice Aids

Cross-References.

Code of regulations for active militia, KRS 36.170 .

Expense of maintaining active militia, KRS 36.220 .

National Guard, KRS Ch. 38.

Organization of militia to conform to United States army regulations, Const., § 221.

Persons who constitute militia, exemptions from military service, Const., §§ 219, 220.

ALR

Minors, enlistment or mustering of 137 A.L.R. 1467; 147 A.L.R. 1311; 151 A.L.R. 1455; 153 A.L.R. 1420; 155 A.L.R. 1451; 157 A.L.R. 1449.

37.180. Governor is commander in chief — Adjutant general is executive officer.

The Governor shall be commander in chief of the Kentucky active militia, and the adjutant general shall be the executive officer and shall be responsible to the Governor for the proper functioning of the Kentucky active militia, and he is hereby authorized and empowered to take necessary action to perfect and maintain an efficient organization for the purposes herein set out. He shall have charge of all matters of administration and organization, which shall be in all respects, insofar as necessary and applicable, the same as that of the National Guard.

History. Enact. Acts 1942, ch. 4, § 2.

Research References and Practice Aids

Cross-References.

Adjutant general, powers and duties of, KRS 36.040 .

Governor, commander in chief of militia, Const., § 75.

37.190. Executive council. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 4, § 3) was repealed by Acts 1962, ch. 48, § 8.

37.200. Officers and personnel — Administration — Equipment — Housing — Enlistment and discharge of men.

  1. The Governor of Kentucky is hereby authorized to appoint and commission the necessary officers for the Kentucky active militia. The adjutant general of the state with the approval of the Governor shall prescribe rules and regulations governing the enlistment, organization, administration, pay, equipment, discipline and discharge of the personnel of the Kentucky active militia; obtain by requisition or purchase from the Secretary of Defense such necessary arms and equipment as may be secured from the Department of Defense, or procure from some other source the necessary arms and equipment to maintain and equip the Kentucky active militia; and provide the necessary space for the housing of property and for the purpose of drills and instruction.
  2. All officers shall be appointed and commissioned by the Governor. All men shall be enlisted by the unit commanders and may be discharged upon order of the Governor for the same reasons as men are discharged from the National Guard, when such discharge is requested in writing by the unit commanders.

History. Enact. Acts 1942, ch. 4, §§ 5, 6; 1962, ch. 48, § 4.

NOTES TO DECISIONS

1. Armories.

Law requiring counties in which militia organizations were formed to construct and pay for armories was unconstitutional, for state militia was essentially a state institution and its purpose was in no sense a county one. (Decided under prior law) Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ).

Law requiring counties where militia organizations were organized to construct and pay for armories was unconstitutional since it destroyed the equality of burdens for state purposes contrary to Const., § 171 and created an unjustifiable discrimination authorized by it. (Decided under prior law) Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ).

The General Assembly could not impose on a county the duty of maintaining at the cost of the county an armory for the use of the militia. (Decided under prior law) Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ).

Research References and Practice Aids

Cross-References.

Discharges may be recorded, KRS 422.090 .

Office in militia not incompatible with civil office, KRS 61.080 .

Officers to have commissions, KRS 61.020 .

Organization of militia to conform to United States army regulations, Const., § 221.

37.210. Oaths of officers and men.

All officers and enlisted men of the Kentucky active militia shall take an oath similar to that required to be taken by commissioned officers and enlisted men of the National Guard. Said oath when duly subscribed to shall be filed with and preserved by the adjutant general of Kentucky. The oath shall be administered to all officers by any person authorized to administer an oath. The commanding officers of the units are authorized and empowered to administer the oath to all enlisted men in their units.

History. Enact. Acts 1942, ch. 4, § 7.

Research References and Practice Aids

Cross-References.

Oaths of National Guard members, KRS 38.070 , 38.090 .

ALR

Validity of governmental requirement of oath of allegiance or loyalty as applied to militiamen. 18 A.L.R.2d 268.

37.220. Drill — Parades — Ceremonies — Privileges.

Companies and other units of the Kentucky active militia are hereby authorized to drill, to parade and to have all other ceremonies, privileges and rights in regard to such matters, within the state, as is authorized by law for the National Guard.

History. Enact. Acts 1942, ch. 4, § 11.

Research References and Practice Aids

Cross-References.

Parade with arms, who may, KRS 38.440 .

37.230. Visits of inspection.

Commanding and staff officers of organizations and units are hereby authorized to make such visits of instruction and inspection, when authorized by the adjutant general to do so, as in his discretion may be necessary. When making said visits they may be compensated as provided in KRS 36.140 and 38.205 .

History. Enact. Acts 1942, ch. 4, § 15; 1962, ch. 48, § 5; 1970, ch. 92, § 9.

Research References and Practice Aids

Cross-References.

Inspection of military property by adjutant general, KRS 36.200 .

37.240. Active service — How and when ordered into — Direction — Powers.

The Governor is hereby authorized to call and to assign any part of the Kentucky active militia to active service for the purpose of resisting invasion, suppressing rebellions, insurrections, riots, or threats thereof; to suppress any active, unlawful, or threatened violence to persons or property in this state; to authorize the arrest of all persons engaged in aiding or abetting therein; to investigate any acts of treason, sabotage, or attempted sabotage and to cause the arrest of such persons engaged therein for aiding and abetting; to protect life and property in the event of any emergency or disaster. The Governor may by his order prescribe the duty to be performed by the troops thus called into active field service. The Governor may direct the commanding officer of such military forces thus ordered into service to report to any of the following named civil officers of the judicial circuit, county, city, or town: Circuit Judge, sheriff, county judge/executive, or mayor; and such civil officers may direct the specific object to be accomplished by such military force, but the tactical direction and disposition of the troops and the particular means to be employed to accomplish the object shall be left solely to the officers of the Kentucky active militia. Troops shall not be relieved from active field service except by order of the Governor.

History. Enact. Acts 1942, ch. 4, § 9; 1976, ch. 62, § 48.

NOTES TO DECISIONS

1. Activating Active Militia.
2. — Purpose.

The Governor was charged by the Constitution and law with the duty of preserving the peace and quiet of the state, and protecting the life and property of its citizens and in accomplishing this end might use all the military forces of the state. (Decided under prior law) Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

3. — Discretion of Governor.

The Governor had authority to order the militia into active service whenever or wherever he deemed their presence necessary and he need not have waited until requested by the local authorities to do so. (Decided under prior law) Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

The Governor, supreme civil authority in state and commander in chief of militia, might have called the latter into active service at his discretion and the exercise of this discretion was not subject to restraint or control by the courts since this would have been interference by judiciary with executive department. (Decided under prior law) Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

The Governor had the power and authority to send troops or military officers into a county to inquire into lawlessness prevailing in the county, and the Court of Appeals could not inquire into his motives or reasons.(Decided under prior law) Begley v. Louisville Times Co., 272 Ky. 805 , 115 S.W.2d 345, 1938 Ky. LEXIS 206 ( Ky. 1938 ).

4. — Capacity of Governor.

The Governor in calling out the militia acted in the capacity of a civil officer of the state and not as commander in chief of its army. (Decided under prior law) Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

5. Militia Subordinate to Civil Powers.

The militia in active service and in every emergency that arises in such service was subordinate to the civil power. The military could not in any case take the initiative or assume to do anything independent of the civil authorities. (Decided under prior law) Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

Opinions of Attorney General.

The state police department is not in any way a successor to the Kentucky active militia. OAG 68-409 .

Research References and Practice Aids

Cross-References.

Civil posse, how summoned, KRS 70.060 .

National Guard, how called out, KRS 38.030 .

Kentucky Law Journal.

The Power of a Governor to Proclaim Martial Law and Use State Military Forces to Suppress Campus Demonstrations, 59 Ky. L.J. 547 (1970).

37.250. Right to carry arms.

Officers and enlisted men of the Kentucky active militia when ordered on active duty as prescribed herein shall have the right to carry arms. All officers and enlisted men shall have the right to carry arms at any drill or ceremony.

History. Enact. Acts 1942, ch. 4, § 18.

Research References and Practice Aids

Kentucky Law Journal.

Note, Carrying a Concealed Weapon — Nature of the Offense in Kentucky, 38 Ky. L.J. 275 (1949-1950).

37.260. Not liable for acts done in pursuance of duty.

Officers and enlisted men of the Kentucky active militia ordered into active service by proper authority shall not be liable civilly or criminally for any act or acts legally done in the pursuance of their duty in such service.

History. Enact. Acts 1942, ch. 4, § 14.

NOTES TO DECISIONS

1. Liability of Militiamen.

Prior to the enactment of a statute on the subject a militiaman was subject to the same criminal or civil liability as any other citizen if he violated any of the laws of the state; and the fact that he did so in obedience to the orders of his superiors did not furnish him any protection. (Decided under prior law) Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

2. Powers and Duties of Militiamen.

A member of the state militia while in active service whether acting under the command of his superior officer or some civil officer of the state had the same powers and duties as a peace officer and he might have made an arrest without a warrant when a public offense was committed in his presence, or when he had reasonable grounds to believe that the person arrested had committed a felony or in cases of riots, routs, unlawful assemblies, or when two or more persons had confederated or banded together for the purpose of intimidating, threatening, alarming, disturbing, or injuring any person, or molesting or destroying any property. (Decided under prior law) Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

37.265. Application of code of military justice.

Officers and enlisted men of the Kentucky active militia shall be subject to the code of military justice as set forth in KRS Chapter 35.

History. Enact. Acts 1962, ch. 48, § 1.

37.270. Pay for active field service — Travel expense.

Officers and enlisted men, when employed in active state service as defined in subsection (4) of KRS 38.010 , beginning with the day they assemble at their armories or other designated place until the day they return thereto and have been properly relieved, inclusive, fractional parts of a day counting as a full day, shall receive pay at the rates provided for in KRS 38.205 and in addition thereto actual and necessary cost of transportation, when transportation is not furnished in kind.

History. Enact. Acts 1954, ch. 94, § 9; 1970, ch. 92, § 10.

Research References and Practice Aids

Cross-References.

Maintenance of active militia, how paid, KRS 36.220 .

37.280. Pay and expenses for member injured in course of duty — Claim — Examination. [Repealed.]

Compiler’s Notes.

This section (Acts 1944, ch. 10, § 1; 1954, ch. 94, § 10; 1970, ch. 92, § 11) was repealed by Acts 1974, ch. 108, § 18.

37.285. Workers’ compensation for members on active state service.

The Department of Military Affairs shall accept the provisions of KRS Chapter 342 for the benefit of members of the Kentucky active militia while such members are on active state service.

History. Enact. Acts 1962, ch. 48, § 2; 1974, ch. 108, § 11.

Research References and Practice Aids

Cross-References.

National Guard, acceptance of Workers’ Compensation Law, KRS 38.235 .

37.290. Funeral expenses. [Repealed.]

Compiler’s Notes.

This section (Acts 1944, ch. 10, § 2; 1962, ch. 48, § 6) was repealed by Acts 1974, ch. 108, § 18.

37.300. Preparation and return of body for burial — Payment of medical and funeral expenses. [Repealed.]

Compiler’s Notes.

This section (Acts 1944, ch. 10, § 3; 1962, ch. 48, § 7) was repealed by Acts 1974, ch. 108, § 18.

37.310. Legal representation in civil or criminal action arising out of act done in course of duty.

If any member of the active militia, when on duty or assembled therefor under competent authority or lawful order, shall do any act in the discharge of his duty, the doing of which causes him to be proceeded against by civil court action, it shall be the duty of the Attorney General to represent the member of the active militia in any civil proceedings so begun. If, under the same conditions, a member of the active militia is proceeded against in a criminal action, the adjutant general may, with the approval of the Governor, appoint for said member of the active militia, legal counsel, who shall represent said member in any criminal proceedings so begun. The compensation paid the legal counsel shall be fixed by the adjutant general, with the written approval of the Governor, and upon proper certification shall be paid from the appropriation for the Department of Military Affairs as other claims against that department are paid.

History. Enact. Acts 1944, ch. 10, § 4.

Research References and Practice Aids

Cross-References.

Attorneys for state departments and agencies, employment of, KRS 12.210 .

National Guard, legal representation, KRS 38.240 .

37.990. Penalty.

Any person, other than a member of the Kentucky active militia, who shall wear any uniform or insignia or badge duly authorized as a designation of an officer or an enlisted man of the Kentucky active militia, shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than ten dollars ($10) nor more than one hundred dollars ($100).

History. Enact. Acts 1942, ch. 4, §§ 12, 19; 1944, ch. 173, § 5; 1974, ch. 108, § 12, effective June 21, 1974.

CHAPTER 38 National Guard

38.010. Definitions for chapter.

As used in this chapter, unless the context requires otherwise:

  1. “Kentucky National Guard” includes the Army National Guard and Air National Guard;
  2. “Active Army National Guard and active Air National Guard” includes those organizations, officers, and enlisted personnel, both male and female, of the federally recognized Kentucky National Guard authorized to receive federal pay, arms, and equipment;
  3. “Inactive Army National Guard and inactive Air National Guard” includes those organizations, officers, and enlisted personnel, both male and female, of the Kentucky National Guard not entitled to receive federal pay, arms, and equipment;
  4. “State active duty” is:
    1. The ordering by the Governor of personnel or units of the Kentucky National Guard to perform any duty authorized by KRS 38.030(1)(a);
    2. Officers, warrant officers, and enlisted personnel employed under orders of the Governor in making tours of inspection, mustering in or mustering out troops, making surveys of military property, sitting on courts-martial, summary courts, efficiency boards, courts of inquiry or boards of officers, or performance of any other duty directed by the Governor or adjutant general;
    3. The participation of any unit or units of the Kentucky National Guard in gunnery competition or other training or military exercise anywhere within or without the United States.
  5. Words importing the masculine gender only shall extend to and be applied to females as well as males.

History. 2711a-234: amend. Acts 1954, ch. 98, § 1; 1958, ch. 89, § 1; 1970, ch. 265, § 1; 1976, ch. 161, § 1; 1992, ch. 307, § 3, effective April 9, 1992.

NOTES TO DECISIONS

1. State Institution.

An organized state militia by whatever name called is a state institution and performs exclusively a state service and no part of it nor any of the duties performed by it partakes in the least exclusively or at all of county purposes. Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ).

2. Active State Service.

A member of the National Guard, who, at time of injury, was entitled to receive federal pay was not on “active state service,” nor entitled to receive workmen’s (now workers’) compensation benefits. Kentucky Nat'l Guard v. Bayles, 535 S.W.2d 234, 1976 Ky. LEXIS 90 ( Ky. 1976 ).

Research References and Practice Aids

Cross-References.

Active militia, KRS Ch. 37.

Department of Military Affairs, KRS Ch. 36.

Governor, commander in chief, Const., § 75.

Militia, Const., §§ 219 to 223.

Military justice, KRS Ch. 35.

Public officers and employees, annual military leave, KRS 61.394 , 61.396 .

Quartering soldiers restricted, Const., § 22.

Standing army, restriction, Const., § 22.

State and local emergency management programs, Chs. 39A to 39E.

Subordination of military, Const., § 22.

Kentucky Bench & Bar.

Legal Issues for Today’s Citizen Soldier: Kentucky’s Added Reemployment Protections for the State Employee/Citizen Soldier, Vol. 69, No. 6, Nov. 2005, Ky. Bench & Bar 12.

ALR

Validity and construction of state statutes requiring employers to compensate employees for absences occasioned by military service, 8 A.L.R.4th 704.

Effect of parent’s military service upon child custody, 21 A.L.R.6th 577.

38.020. National Guard, how composed — Acceptance or rejection of unit allotments by Department of Defense.

  1. The Kentucky National Guard shall consist of the officers, warrant officers, enlisted men and units as prescribed in tables of organization of the Department of the Army for the Army National Guard, and the officers, warrant officers, enlisted men and units as prescribed in the tables of organization of the Department of the Air Force, Air National Guard and the inactive Army and inactive Air National Guard.
  2. The Governor may accept or reject any or all organizations allotted to Kentucky by the United States Department of Defense. He may recommend to the United States Department of Defense the type of organizations both Army and Air Force, which he considers to be best suited to the performance of Kentucky’s internal defense and security missions.

History. 2711a-160, 2711a-161: amend. Acts 1954, ch. 98, § 2.

38.030. Ordering troops into state active duty — Nontactical direction by local civil officers — Disability compensation for injury or disease arising from state active duty.

  1. Only the Governor shall have the authority to order units and members of the Kentucky National Guard into state active duty.
    1. The Governor may order units and individual members of the Kentucky National Guard into state active duty for any of the following purposes:
      1. Protecting lives and property;
      2. Assisting in disaster relief or other humanitarian efforts;
      3. Preventing or suppressing riot or civil disorder;
      4. Enforcing the laws of the Commonwealth; or
      5. Other similar purpose.
    2. In addition to ordering personnel and units to state active duty, the Governor may order other members of the Kentucky National Guard to participate in or perform duty in support of state active duty missions notwithstanding the fact that they are then entitled to receive federal pay and allowances pursuant to Title 32 of the United States Code. The personnel may be ordered to perform state active duty support missions either prior to, during, or after the time that state active duty missions are planned or performed.
    3. Members of the National Guard who are ordered to perform duty as provided in subsection (1)(b) of this section while they are entitled to receive federal pay under Title 32 of the United States Code shall have all of the powers, immunities, and benefits conferred by law upon persons ordered to state active duty except that they shall receive no additional pay for the duty and the provisions of KRS 38.235 shall not apply to them. The powers, immunities, and benefits conferred upon those persons shall be in addition to, and not in place of, those powers, immunities, and benefits provided under federal law.
    4. Any member of the National Guard may, with his consent, be ordered to state active duty without pay.
  2. The Governor may direct the commanding officer of the military forces ordered to state active duty to report to any civil officer, including, but not limited to, judge, county judge/executive, mayor, sheriff, or head of law enforcement or other public agency in whose jurisdiction the state active duty mission is to be performed. The civil officer may advise the commanding officer regarding the specific objectives to be accomplished by the military force, but the tactical direction and disposition of the troops and the particular means to be employed to accomplish the mission shall be left solely to the commanding officer of the National Guard.
  3. Troops shall not be relieved from active field service except by order of the Governor.
  4. National Guard officers, enlisted soldiers, and airmen who are temporarily or permanently disabled as a direct result of an injury or disease arising out of the performance of an act in the line of duty while on state active duty shall, at the discretion of the Governor, remain on paid state active duty status until a competent medical authority releases them to return to their normal activities or the Governor deems it appropriate to relieve the individual from state active duty status. Compensation paid to the soldier or airman by the department shall be adjusted and maintained at the soldier’s or airman’s regular rate of active duty pay; however, compensation paid by the department shall be reduced by the amount of payments received from workers’ compensation insurance, Social Security benefits, and other federal or state-financed disability programs designed to supplement the soldier’s or airman’s income. Final compensation shall not be reduced by payments for medical care.

History. 2711a-149, 2711a-163, 2711a-195; Acts 1954, ch. 98, § 3; 1962, ch. 47, § 1; 1974, ch. 108, § 13; 1976, ch. 62, § 49; 1992, ch. 307, § 4, effective April 9, 1992; 2009, ch. 95, § 1, effective March 24, 2009; 2010, ch. 13, § 1, effective March 11, 2010; repealed and reenact., Acts 2014, ch. 71, § 2, effective July 15, 2014.

Legislative Research Commission Note.

(3/24/2009). The Reviser of Statutes has corrected a manifest clerical or typographical error in subsection (4) of this statute under the authority of KRS 7.136(1)(h).

NOTES TO DECISIONS

1. Activating Guard.

When the Governor orders out the militia he may place the militia at the disposal of the local civil authorities, or he may control and direct their movements through military channels. Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

2. — Time.

The Governor may order the militia into active service at any time and he need not wait until requested by the local civil authorities to do so. Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

3. — Interference by Courts Prohibited.

The courts do not have power to interfere with the action of the Governor in calling out the militia. Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

The Governor may send troops or military officers into county to inquire into reports of lawlessness prevailing therein, and may make inquiry into activities or nonactivities of militia under his command, and the Court of Appeals cannot inquire into his motives or reasons. Begley v. Louisville Times Co., 272 Ky. 805 , 115 S.W.2d 345, 1938 Ky. LEXIS 206 ( Ky. 1938 ).

4. Liability for Acts of Guard.

Members of National Guard called out by Governor to act as guards at Churchill Downs on Derby Day became agents of owners of racing plant, and such owners were liable for assault upon patron by officer of National Guard in attempt to preserve order, although officer may have gone beyond reasonable bounds in making assault. Fournier v. Churchill Downs-Latonia, Inc., 292 Ky. 215 , 166 S.W.2d 38, 1942 Ky. LEXIS 47 ( Ky. 1942 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Legal Issues for Today’s Citizen Soldier: USERRA Protections for Reemployment Rights of Returning Military Personnel, Vol. 69, No. 6, Nov. 2005, Ky. Bench & Bar 16.

Legal Issues for Today’s Citizen Soldier: USERRA Protections for Reemployment Rights of Returning Military Personnel, Vol. 69, No. 6, Nov. 2005, Ky. Bench & Bar 16.

Kentucky Law Journal.

The Power of a Governor to Proclaim Martial Law and Use State Military Forces to Suppress Campus Demonstrations, 59 Ky. L.J. 547 (1970).

38.040. Appointment of officers and warrant officers — Staff officers — Conformity with federal standards.

  1. All commissioned officers and warrant officers of the Kentucky National Guard shall be appointed by the Governor, upon the recommendation of the adjutant general and the commanding officers of the organizations to which such officers are to be assigned for duty, and shall be appointed according to grade in the branch or corps of the service in which they are appointed. No officer or warrant officer shall be appointed unless he is eighteen (18) years of age or older and until he shall have successfully passed such tests as to his physical, moral and professional fitness as are or shall be prescribed by federal law for federal recognition as an officer.
  2. All appointments as staff officers shall be of individuals with previous military experience.
  3. The Governor may issue such regulations governing the appointment of commissioned officers and warrant officers in the Kentucky National Guard as may be necessary in order to conform to the requirements made by Congress for participation in federal appropriations for the Kentucky National Guard.
  4. No officer or warrant officer except the adjutant general shall retain the grade to which he may have been appointed or promoted unless, within a reasonable length of time, he obtains federal recognition for such grade.

History. 2711a-164: amend. Acts 1954, ch. 98, § 4; 1962, ch. 47, § 2; 1974, ch. 108, § 14.

Research References and Practice Aids

Cross-References.

Officers to have commission, KRS 61.020 .

ALR

Incompatibility of offices of public officer and officer of National Guard or militia. 26 A.L.R. 142; 132 A.L.R. 254; 147 A.L.R. 1419; 148 A.L.R. 1399; 150 A.L.R. 1444.

38.050. Qualifications of commissioned officers. [Repealed.]

Compiler’s Notes.

This section (2711a-165) was repealed by Acts 1954, ch. 98, § 28.

38.060. Examination and nomination of commissioned officers. [Repealed.]

Compiler’s Notes.

This section (2711a-166, 2711a-167) was repealed by Acts 1954, ch. 98, § 28.

38.070. Oath of commissioned officers.

Every officer shall take and subscribe to an oath of office as prescribed by the Department of Defense. The oath shall be taken and subscribed before any officer from any branch of the armed services authorized to administer oaths. In case of neglect or refusal to take and subscribe to the oath the commission shall be canceled by the Governor and a new appointment shall be made to fill the vacancy.

History. 2711a-168: amend. Acts 1962, ch. 47, § 3; 1984, ch. 414, § 45, effective July 13, 1984.

38.080. Warrant officers — Appointment — Reducing to ranks. [Repealed.]

Compiler’s Notes.

This section (2711a-177) was repealed by Acts 1954, ch. 98, § 28.

38.090. Enlistment in Kentucky National Guard — Oath — Transfer — Extension of enlistments.

  1. All able-bodied citizens of the United States, of good character, who can read and write the English language, who are between the ages of seventeen (17) and thirty-five (35) years with no prior service; between thirty-six (36) and under thirty-eight (38) with one (1) year of service; thirty-eight (38) and under forty-one (41) with two (2) years of service and forty-one (41) and under fifty-seven (57) with two (2) years plus the number of years applicant is over age forty (40), and who have passed the required physical examination and who are not ineligible for enlistment or reenlistment in the Armed Forces of the United States, subject to current United States Armed Forces regulations covering enlistments and reenlistments, may be enlisted or reenlisted in the Kentucky National Guard for a term of one (1) or more years.
  2. No person dishonorably discharged or discharged without honor from the Armed Forces of the United States shall be eligible for enlistment in the Kentucky National Guard.
  3. Every person who enlists, extends his enlistment or reenlists shall sign and make oath to an enlistment paper before any officer from any branch of the armed services authorized to administer oaths.
  4. Enlisted persons may be transferred to or from organizations, as provided by regulations.
  5. By order of the Governor in case of emergency, enlistments in the Kentucky National Guard may be extended for one (1) year.

History. 2711a-174 to 2711a-176: amend. Acts 1954, ch. 98, § 5; 1962, ch. 47, § 4; 1974, ch. 108, § 15; 1984, ch. 414, § 46, effective July 13, 1984.

Research References and Practice Aids

ALR

Minor’s right to wages or similar payments for enlistment or military services. 137 A.L.R. 1491; 147 A.L.R. 1311; 151 A.L.R. 1455; 153 A.L.R. 1420; 155 A.L.R. 1451; 157 A.L.R. 1449.

38.100. Inactive National Guard.

The inactive National Guard shall consist of the officers and men of the Kentucky National Guard not on the active list. In time of peace, officers and enlisted men of the Kentucky National Guard may be transferred at their own request to the inactive National Guard. Upon the authorized disbandment or consolidation of organizations of the National Guard, all commissioned officers and enlisted men rendered surplus who are qualified for active service and have not been transferred to active units may be transferred to the inactive National Guard. Officers and enlisted men of the inactive National Guard may become members of the active National Guard in time of peace where circumstances permit.

History. 2711a-169: amend. Acts 1954, ch. 98, § 6.

38.110. Duration of commission.

An officer of the Kentucky National Guard shall hold his commission so long as he is entitled to federal recognition in that grade unless separated from the service prior to that time by reason of resignation, disability or for cause to be determined by a court-martial or efficiency board legally convened for that purpose.

History. 2711a-165, 2711a-171: amend. Acts 1954, ch. 98, § 7; 1962, ch. 47, § 5.

38.120. Resignation of officers.

A commissioned officer tendering his resignation, if the Governor accepts it, shall receive an honorable discharge if he is not under arrest or to be returned to a military court for deficiency or delinquency. The Governor may not accept the resignation of an officer of the Kentucky National Guard who has been charged with an offense under the Kentucky Military Code of Justice which is tantamount to a felony under Kentucky criminal law.

History. 2711a-170: amend. Acts 1954, ch. 98, § 8.

38.130. Discharge of officer for unfitness for service.

The Governor may order any commissioned officer before an efficiency board consisting of three (3) officers senior in rank to the officer whose fitness for service is under examination. The board shall have the powers of courts of inquiry and courts-martial to subpoena witnesses and produce testimony and shall inquire into the moral character, capacity and general fitness of the commissioned officer. The board shall make a record of all proceedings. If the findings of the board are unfavorable to the officer and are approved by the Governor, he shall be discharged from the service. No officer shall participate in the examination or decision of the board in any case in which the decision would affect his own grade or promotion. Failure to appear when ordered before a board constituted under this section shall be sufficient grounds for a finding of the board that the officer ordered to appear be discharged.

History. 2711a-172: amend. Acts 1954, ch. 98, § 9; 1962, ch. 47, § 6.

38.140. Enlisted man, discharge of — Discharge papers.

  1. An enlisted man shall not be discharged before the expiration of his term of service except by order of the Governor or by sentence of court-martial approved by the Governor. A soldier upon his discharge from service, shall be given a certificate of discharge or report of separation from service.
  2. The types of discharges used shall be the same as those authorized by the National Guard Bureau.

History. 2711a-180: amend. Acts 1954, ch. 98, § 10; 1962, ch. 47, § 7.

NOTES TO DECISIONS

Cited:

Schultz v. Wellman, 717 F.2d 301, 1983 U.S. App. LEXIS 16790 (6th Cir. 1983).

38.150. Enlisted man, discharge of without honor. [Repealed.]

Compiler’s Notes.

This section (2711a-181) was repealed by Acts 1954, ch. 98, § 28.

38.160. Dishonorable discharge — Governor to approve dismissal.

A dishonorable discharge shall be given only by sentence of a general court-martial. No sentence of dismissal from the service or dishonorable discharge imposed by a court-martial shall be executed until approved by the Governor.

History. 2711a-182, 2711a-221.

38.170. Certificate issued upon loss of discharge certificate.

Upon satisfactory proof of the loss of a discharge certificate or of its destruction the adjutant general may cause to be issued to the person a certificate of service, showing the date of enlistment and discharge from the military service and character given on the original discharge certificate upon payment of a one dollar ($1) fee.

History. 2711a-183: amend. Acts 1954, ch. 98, § 11.

38.180. Member absent without leave.

  1. The commission of any officer who absents himself without leave for three (3) months shall be vacated, and he may be dropped from the rolls of the National Guard and dismissed from service and be subject to punishment under the Kentucky Code of Military Justice.
  2. When an enlisted man of the National Guard absents himself without leave and there is reason to believe that he does not intend to return, he may be dropped from the rolls.

History. 2711a-173, 2711a-178: amend. Acts 1954, ch. 98, § 12.

38.190. Governor may restore enlisted man to service. [Repealed.]

Compiler’s Notes.

This section (2711a-179) was repealed by Acts 1954, ch. 98, § 28.

38.200. Daily pay for active state service. [Repealed.]

Compiler’s Notes.

This section (2711a-186: amend. Acts 1948, ch. 65; 1958, ch. 90, 1962, ch. 47, § 8) was repealed by Acts 1968, ch. 140, § 2.

38.205. Compensation for state active duty.

Except when in the service of the United States, officers and enlisted men, when employed in state active duty, beginning with the day they assemble at their armories or other designated places until the day they return there and have been properly relieved, including, fractional parts of a day which count as a full day, shall receive pay at the same rate as though serving on active duty as a member of the Armed Forces of the United States, but the rate shall not be less than twelve (12) times the prevailing federal minimum hourly wage per day.

History. Enact. Acts 1968, ch. 140, § 1; 1974, ch. 111, § 1; 1980, ch. 128, § 1, effective July 15, 1980; 1992, ch. 307, § 5, effective April 9, 1992.

Compiler’s Notes.

The federal minimum hourly wage is provided by 29 USCS § 206(a)(1).

38.210. Pay at encampments or other exercises. [Repealed.]

Compiler’s Notes.

This section (2711a-187: amend. 1962, ch. 47, § 9; 1970, ch. 92, § 12) was repealed by Acts 1974, ch. 108, § 18.

38.220. Pay for services and attendance at courts and boards. [Repealed.]

Compiler’s Notes.

This section (2711a-188: amend. Acts 1954, ch. 98, § 14; 1962, ch. 47, § 10) was repealed by Acts 1974, ch. 108, § 18.

38.230. Military tribunals may subpoena witnesses — Fees. [Repealed.]

Compiler’s Notes.

This section (2711a-189) was repealed by Acts 1962, ch. 47, § 15.

38.235. Acceptance of workers’ compensation law — Direct payment of benefits.

  1. The Department of Military Affairs shall accept the provisions of KRS Chapter 342 for the benefit of members of the Kentucky National Guard while members are on state active duty.
  2. The department may, in lieu of procuring additional extended insurance coverage, elect to avail itself of the provisions of KRS 342.340 , relating to the direct payment of benefits, for the purpose of paying the benefits provided under subsection (1) of this section.

History. Enact. Acts 1960, ch. 182; 1966, ch. 88, §§ 1, 2; 1970, ch. 92, § 13; 1976, ch. 161, § 2; 1992, ch. 307, § 6, effective April 9, 1992.

NOTES TO DECISIONS

1. Active State Service.

Notwithstanding the provisions of this section a member of the National Guard who at time of injury was entitled to receive federal pay was not on “active state service” nor entitled to receive workmen’s (now workers’) compensation benefits. Kentucky Nat'l Guard v. Bayles, 535 S.W.2d 234, 1976 Ky. LEXIS 90 ( Ky. 1976 ).

38.238. Employer required to grant employee leave to serve in National Guard.

An employee shall be granted a leave of absence by his or her employer for the period required to perform active duty or training in the National Guard of this or any other state. Upon the employee’s release from a period of active duty or training, the employee shall be permitted to return to his or her former position of employment with the seniority, status, pay or any other rights or benefits he or she would have had if he or she had not been absent, except that no employer shall be required to grant an employee a leave of absence with pay.

HISTORY: Enact. Acts 1980, ch. 249, § 1, effective July 15, 1980; 2018 ch. 82, § 1, effective July 14, 2018.

Research References and Practice Aids

Kentucky Bench & Bar.

Legal Issues for Today’s Citizen Soldier: USERRA Protections for Reemployment Rights of Returning Military Personnel, Vol. 69, No. 6, Nov. 2005, Ky. Bench & Bar 16.

38.240. Legal representation of members of National Guard.

If any member of the National Guard, when on duty or assembled therefor under lawful authority, does any act in the discharge of his duty that causes him to be proceeded against by civil court action, the Attorney General shall represent him in the civil proceedings. If, under the same conditions, a member of the National Guard is proceeded against in a criminal action, the adjutant general may, with the approval of the Governor, appoint legal counsel to represent him in the criminal proceedings. The compensation paid the legal counsel shall be fixed by the adjutant general, with the written approval of the Governor.

History. 2711a-190: amend. Acts 1954, ch. 98, § 15; 1962, ch. 47, § 11; 1966, ch. 88, § 3.

38.250. Amount of training each year.

Every unit of the Kentucky National Guard shall assemble for drill and instructions not less than forty-eight (48) times each year, and shall participate in encampments, maneuvers or other exercises at least fifteen (15) days in each year unless excused therefrom by the Governor. The number present in order to obtain credit for the drill, period of time and type of instruction shall be such as is prescribed by the Governor.

History. 2711a-194: amend. Acts 1954, ch. 98, § 16; 1962, ch. 47, § 12; 2006, ch. 194, § 3, effective July 12, 2006.

Opinions of Attorney General.

The 15 days annual military leave applies only to periodic and temporary military duty. OAG 68-267 .

KRS 61.394 is the latest pronouncement of the legislature and its provisions limiting and delineating computation of leave should prevail where they conflict with subsection (2) of this section in paying all officers and employes of the state who are members of the National Guard or any reserve component of the armed forces of the United States while they are on active duty with the military. OAG 73-48 ; 76-358.

38.260. Tactics and field exercises same as army’s. [Repealed.]

Compiler’s Notes.

This section (2711a-193) was repealed by Acts 1954, ch. 98, § 28.

38.270. Maintenance and equipment.

  1. Units allotted to the Kentucky National Guard by the United States Department of Defense and accepted by the Governor shall be maintained by the state and furnished with adequate and suitable armory accommodations, ranges, and camp grounds.
  2. The state shall provide such arms, equipment, colors, camp and garrison equipage, books of instruction and of record and other supplies as are necessary for the proper performance of the duties required by this chapter.
  3. Every commissioned officer or warrant officer shall provide himself, at his own expense, with uniforms and equipment required to be worn by officers of his rank. The department may provide a $150 uniform allowance for each newly commissioned officer or warrant officer.

History. 2711a-161, 2711a-196, 2711a-197: amend. Acts 1954, ch. 98, § 17; 1974, ch. 109, § 1.

38.280. Liability for lost or damaged property.

Every officer and enlisted man shall be personally responsible to the state for loss or damage to public property issued to him, and no one shall be relieved from liability, unless it is shown to the satisfaction of the Governor that the loss of or damage to the property was unavoidable and in no way the fault of the person responsible for the property. The value of the property lost or damaged, in the amount determined by a surveying officer or a board, shall be charged against the person at fault or, with the concurrence of its commanding officer, to the command to or for which it has been issued, and, if not relieved from the charge by the Governor, it shall be an indebtedness from the person or command to the state. The value of property lost or damaged for which an enlisted man is liable shall be charged against his pay by his commanding officer, and collected on such forms and under such regulations as may be prescribed.

History. 2711a-191, 2711a-198.

38.290. Officer in control of occupied premises — Equipment to be stored in armory.

  1. Premises occupied by the Kentucky National Guard for military purposes shall be under the control of the senior National Guard officer using them.
  2. All military property furnished for the use of the several organizations of the Kentucky National Guard shall be kept in the armory or storerooms of the command, except when in use for authorized military purposes.

History. 2711a-203, 2711a-204: amend. Acts 1954, ch. 98, § 18; 1962, ch. 47, § 13.

38.300. Use and possession of military property.

Military property shall be used for authorized military purposes only. No officer or soldier shall wear, use or have in his possession, except for authorized military purposes, or by special permission of his commanding officer, any uniform or part thereof, or any other article of military property belonging to the state or the United States.

History. 2711a-204, 2711a-205.

38.310. Property furnished by United States not to be disposed of.

No military property furnished by the United States, through the agency of the state, to any officer or soldier of the Kentucky National Guard shall be sold, bartered, exchanged, pledged, loaned or given away. No person, not a soldier or duly authorized officer of the state, who has possession of any military property so furnished, and which has been the subject of any such barter, exchange, pledge, loan or gift, shall have any right, title or interest therein, but the property may be seized and taken wherever found by any officer of the state, civil or military, and shall thereupon be delivered to the adjutant general or other officer authorized to receive it. The possession of such military property by any person not a soldier or officer of the state shall be presumptive evidence of such a sale, barter, exchange, pledge, loan or gift.

History. 2711a-207: amend. Acts 1954, ch. 98, § 19.

38.320. Military courts; procedure. [Repealed.]

Compiler’s Notes.

This section (2711a-214) was repealed by Acts 1954, ch. 98, § 28.

38.330. Courts of inquiry. [Repealed.]

Compiler’s Notes.

This section (2711a-215) was repealed by Acts 1954, ch. 98, § 28.

38.340. General courts-martial. [Repealed.]

Compiler’s Notes.

This section (2711a-216) was repealed by Acts 1962, ch. 47, § 15.

38.350. Special courts-martial. [Repealed.]

Compiler’s Notes.

This section (2711a-217) was repealed by Acts 1954, ch. 98, § 28.

38.360. Summary courts. [Repealed.]

Compiler’s Notes.

This section (2711a-218) was repealed by Acts 1954, ch. 98, § 28.

38.370. Confinement in lieu of fines. [Repealed.]

Compiler’s Notes.

This section (2711a-219) was repealed by Acts 1954, ch. 98, § 28.

38.380. Right of accused to counsel. [Repealed.]

Compiler’s Notes.

This section (2711a-220) was repealed by Acts 1954, ch. 98, § 28.

38.390. Arrest of accused; evidence. [Repealed.]

Compiler’s Notes.

This section (2711a-222) was repealed by Acts 1954, ch. 98, § 28.

38.400. Civil officers to execute process and sentences.

All processes and sentences of military courts shall be executed by sheriffs or other civil officers and such officers shall make return thereof to the officer issuing the process or imposing the sentence.

History. 2711a-223.

38.410. Jail or prison may be used for military prisoners — Cost of imprisonment. [Repealed.]

Compiler’s Notes.

This section (2711a-224) was repealed by Acts 1954, ch. 98, § 28.

38.420. Authorization for military personnel to carry arms when on state active duty.

Officers, warrant officers, and enlisted men of the Kentucky National Guard shall, while on state active duty, have the same right to carry arms and in the same manner as sheriffs and other peace officers.

History. 2711a-233: amend. Acts 1954, ch. 98, § 20; 1992, ch. 307, § 7, effective April 9, 1992.

Research References and Practice Aids

Cross-References.

Concealed weapons, who may carry, KRS 527.020 .

Kentucky Law Journal.

Note, Carrying a Concealed Weapon — Nature of the Offense in Kentucky, 38 Ky. L.J. 275 (1949-1950).

38.430. Exemption from tolls.

Officers, warrant officers, and enlisted men of the Kentucky National Guard, going to or returning from any parade, encampment, drill or meeting they are required by proper authority to attend, shall, together with their vehicular conveyances, animals and military property in their custody, be allowed to pass free through tollgates and over all interstate and intrastate toll bridges and ferries if they are in uniform or present a written order signed by an officer of the Kentucky National Guard.

History. 2711a-209: amend. Acts 1954, ch. 98, § 21; 1974, ch. 108, § 16.

38.440. Entities who may drill or parade with arms without Governor’s permission.

  1. Except as permitted in subsections (2), (3), and (4) of this section, no persons other than the Kentucky National Guard or Kentucky active militia shall associate together as an armed company or drill or parade with arms without permission from the Governor.
  2. Students in educational institutions chartered under the laws of Kentucky, in which military science is part of the course of instruction, may drill and parade with arms in public under the supervision of their instructors.
  3. Veterans’ service organizations may wear swords and may drill or parade with arms in public.
  4. People participating in the reenactment of a historical military event from the French and Indian War, Revolutionary War, War of 1812, United States Civil War, or Spanish-American War may wear swords and may drill or parade with arms in public.

History. 2711a-211: amend. Acts 1954, ch. 98, § 22; 2011, ch. 26, § 1, effective March 15, 2011.

Research References and Practice Aids

2012-2014 Budget Reference.

See State/Executive Branch Budget, 2012 Ky. Acts ch. 144, Pt. III, 25 at 1241.

38.450. Persons not to wear insignia of National Guard.

No person shall wear any uniform, device, strap, knot or other insignia prescribed by law or general regulations as a designation of rank, grade or office in the Kentucky National Guard, except members of the Army, Navy, Air Force, Marine Corps or Coast Guard of the United States, the National Guard of this or any other state, members of associations wholly composed of soldiers honorably discharged from the service of the United States or any state, and the faculty and students of educational institutions.

History. 2711a-199: amend. Acts 1954, ch. 98, § 23.

Research References and Practice Aids

Cross-References.

Wearing insignia or uniform of active militia, KRS 37.990 .

38.460. Injuring business of or discriminating against member of the National Guard.

  1. No person shall, either as an individual or with another, willfully deprive a member of the National Guard or Kentucky active militia of employment, or prevent the member being employed, or in any way obstruct a member of the National Guard or Kentucky active militia in the conduct of trade, business, or profession, or by threats of violence prevent any person from enlisting in the National Guard or Kentucky active militia. References to the National Guard in this statute include members of the National Guard of this or any other state.
  2. No association or corporation constituted or organized for the purpose of promoting the success of the trade, employment, or business of the members thereof shall by any constitution, rule, bylaw, resolution, vote, or regulation discriminate against any member of the National Guard or Kentucky active militia because of membership, eligibility for membership, or right to retain membership in such organization.

HISTORY: 2711a-212, 2711a-213: amend. Acts 1954, ch. 98, § 24; 2018 ch. 82, § 2, effective July 14, 2018.

38.470. Student’s credit when called into active service.

If the Kentucky National Guard or Kentucky active militia is called into state active duty by the Governor or into federal active duty by the President of the United States for any purpose, requiring the service of members who are students in any institution of learning in the state, no teacher, professor, principal, or president of the institution shall discriminate against the student by reason of his absence, but shall credit him with all academic work accomplished to the date of his absence. Students shall be given reasonable time to make up work missed as a result of a call to state or federal active duty.

History. 2711a-238: amend. Acts 1954, ch. 98, § 25; 1974, ch. 108, § 17; 1992, ch. 307, § 8, effective April 9, 1992; 2006, ch. 19, § § 1, effective July 12, 2006.

38.480. Immunity for acts done in pursuance of duty — Immunity from arrest on civil process.

  1. Officers, warrant officers, and enlisted men of the Kentucky National Guard or Kentucky active militia ordered into state active duty by the Governor, and when specifically directed by the Governor, shall be deemed peace officers as defined in KRS 61.310 and 446.010 . They shall have all the powers and immunities of peace officers, and shall not be liable, civilly or criminally, for any act done by them in pursuance of duty in state active duty.
  2. No officer, warrant officer, or enlisted man of the Kentucky National Guard or Kentucky active militia shall be arrested, except in case of a felony, while going to, remaining at, or returning from a place where he is ordered to attend for state active duty.

History. 2711a-208, 2711a-240: amend. Acts 1954, ch. 98, § 26; 1968, ch. 130; 1992, ch. 307, § 9, effective April 9, 1992.

Research References and Practice Aids

ALR

Service of civil process, exemption of member of armed forces from. 137 A.L.R. 1372; 147 A.L.R. 1307; 148 A.L.R. 1385; 149 A.L.R. 1454; 150 A.L.R. 1419; 151 A.L.R. 1454; 153 A.L.R. 1419; 155 A.L.R. 1450; 156 A.L.R. 1449.

38.490. Liability insurance for Kentucky National Guard members on active state duty.

The Adjutant General may purchase liability insurance for the protection of members of the Kentucky National Guard called to state active duty by the Governor under KRS 38.030 to protect them for acts, omissions, and claims arising while on state active duty, and while not otherwise covered by existing state government programs that provide medical coverage or protection for acts, omissions, or claims to members of the Kentucky National Guard while on state active duty. To provide coverage not provided by existing state government programs, the Adjutant General may purchase the type and amount of liability coverage deemed appropriate to best serve the interests of the Kentucky National Guard and its members.

History. Enact. Acts 1998, ch. 516, § 1, effective July 15, 1998.

38.500. Educational encouragement fund. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 48, § 1; 1978, ch. 38, § 1, effective June 17, 1978; 1980, ch. 125, § 1, effective July 15, 1980) was repealed by Acts 1996, ch. 220, § 5, effective July 15, 1996. For present law see KRS 164.516 to 164.5169 .

38.510. Rights, benefits, and protections upon call to active duty.

Any right, benefit, or protection that may accrue to a member of the Kentucky National Guard under the Federal Servicemembers Civil Relief Act, 50 U.S.C. secs. 501 et seq., as a result of a call to federal active duty service under Title 10 of the United States Code shall be extended to a member of the Kentucky National Guard called to active duty service under Title 32 of the United States Code, or to state active duty by the Governor of the Commonwealth of Kentucky, if the active duty orders are for a period of thirty (30) days or more.

History. Enact. Acts 2002, ch. 321, § 1, effective July 15, 2002; 2008, ch. 53, § 1, effective July 15, 2008.

NOTES TO DECISIONS

1. Stay.

Pursuant to the Servicemembers Civil Relief Act, which applied to members of the Kentucky National Guard, a trial court was prohibited from conducting a hearing on a motion to temporarily modify primary residential custody of a son while his father was deployed to Afghanistan with the Air Force National Guard because the father complied with the requirements for a stay. The injury in the case was real and irreparable because the son was being relocated during the school year to a distant state, and the father was unable to appear and oppose the mother's motion while serving his country. Wood v. Woeste, 461 S.W.3d 778, 2015 Ky. App. LEXIS 60 (Ky. Ct. App. 2015).

Research References and Practice Aids

Kentucky Bench & Bar.

Legal Issues for Today’s Citizen Soldier: A Practitioner’s Primer on the Servicemembers Civil Relief Act (SCRA), Vol. 69, No. 6, Nov. 2005, Ky. Bench & Bar 9.

38.990. Penalties.

  1. Any person who makes a false oath as to any statement contained in the enlistment papers mentioned in subsection (3) of KRS 38.090 shall be fined not less than ten dollars ($10) nor more than fifty dollars ($50).
  2. Any civil officer who fails to execute process and sentences when required to do so under KRS 38.400 shall be fined not more than fifty dollars ($50) for each offense.
  3. Any master, keeper, or other person in charge of a tollgate, toll bridge, or ferry who willfully hinders or delays any member of the Kentucky National Guard or Kentucky active militia going to or returning from any parade, encampment, drill, or meeting which he is required by proper authority to attend, or who refuses free passage to any member, conveyance, or other property in violation of KRS 38.430 shall be fined not more than fifty dollars ($50) for each offense.
  4. Any person who violates any of the provisions of KRS 38.440 shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100), or imprisoned in the county jail for not more than six (6) months, or both.
  5. Any person who violates any of the provisions of KRS 38.450 shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100).
  6. Any person who violates any of the provisions of subsection (1) of KRS 38.460 or who aids in enforcing any provision prohibited by subsection (2) of KRS 38.460 shall be fined not less than one hundred dollars ($100) or more than five hundred dollars ($500) or imprisoned in the county jail not less than six (6) months, or both.
  7. Any person who trespasses upon property occupied by the Kentucky National Guard or Kentucky active militia contrary to the orders of the officer in charge of such property shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or imprisoned in the county jail for six (6) months, or both.
  8. Any witness who refuses to appear in answer to a subpoena, to answer questions before a military court or board is guilty of contempt and may be fined not more than fifty dollars ($50) by such court or board.
  9. Any employer failing to meet any requirements of KRS 38.238 shall be guilty of a Class A misdemeanor.

History. 2711a-175, 2711a-199, 2711a-203, 2711a-210, 2711a-213, 2711a-222 (in part), 2711a-223: amend. Acts 1954, ch. 98, § 27; 1962, ch. 47, § 14; 1980, ch. 249, § 2, effective July 15, 1980.

Compiler’s Notes.

The former Carroll’s Statutes 2711a-184, 2711a-185 and 2711a-205 were omitted from the history of this section because of the 1954 amendment which eliminated the material contained in them.

CHAPTER 39 Disaster and Emergency Services Management

39.010. Title. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 3, § 1) was repealed by Acts 1950, ch. 176, § 1.

39.020. State Defense Council created; purpose. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 3, § 2) was repealed by Acts 1950, ch. 176, § 1.

39.030. Membership of council; State Director of Civil Defense; quorum; personnel; compensation; travel. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 3, § 3) was repealed by Acts 1950, ch. 176, § 1.

39.040. Meetings of council; offices. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 3, § 4) was repealed by Acts 1950, ch. 176, § 1.

39.050. Powers and duties of council; funds. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 3, § 5) was repealed by Acts 1950, ch. 176, § 1.

39.060. Use of services and facilities of other agencies. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 3, § 6) was repealed by Acts 1950, ch. 176, § 1.

39.070. Local defense councils. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 3, § 7) was repealed by Acts 1950, ch. 176, § 1.

39.080. Regional defense councils. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 3, § 8) was repealed by Acts 1950, ch. 176, § 1.

39.090. Reports by council to Governor. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 3, § 9) was repealed by Acts 1950, ch. 176, § 1.

39.100. Title. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, § 13) was repealed by Acts 1950, ch. 176, § 1.

39.110. Definitions for KRS 39.120 to 39.220. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, § 1) was repealed by Acts 1950, ch. 176, § 1.

39.120. Effect of KRS 39.120 to 39.220 on other statutes; when to terminate. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, § 14, 15) was repealed by Acts 1950, ch. 176, § 1.

39.130. Injury to or interference with property with intent to impede prosecution of defense or war; penalties. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, § 2) was repealed by Acts 1950, ch. 176, § 1.

39.140. Intentionally defective workmanship; penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, § 3) was repealed by Acts 1950, ch. 176, § 1.

39.150. Attempt or solicitation to commit sabotage; penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, § 4) was repealed by Acts 1950, ch. 176, § 1.

39.160. Conspiracy to commit sabotage; penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, § 5) was repealed by Acts 1950, ch. 176, § 1.

39.170. Witnesses required to give evidence. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, § 6) was repealed by Acts 1950, ch. 176, § 1.

39.180. Posting of property used for defense or by utility; penalty for unlawful entry. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, § 7) was repealed by Acts 1950, ch. 176, § 1.

39.190. Closing and restricting use of highways and other areas; penalty for wrongful entry. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, §§ 9 and 10) was repealed by Acts 1950, ch. 176, § 1.

39.200. No injunction against closing or restricting order; mandamus allowed. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, § 11) was repealed by Acts 1950, ch. 176, § 1.

39.210. Detention, questioning and arrest of suspected persons. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 67, § 8) was repealed by Acts 1950, ch. 176, § 1.

39.220. Appointment of special police for premises essential to National Defense. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 13, § 1) was repealed by Acts 1950, ch. 176, § 1.

39.230. Fee to accompany application; use for expenses. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 13, § 2) was repealed by Acts 1950, ch. 176, § 1.

39.240. Oath and bond. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 13, § 2) was repealed by Acts 1950, ch. 176, § 1.

39.250. Powers and duties of special police; badge. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 13, §§ 3 and 4) was repealed by Acts 1950, ch. 176, § 1.

39.260. Compensation of special police. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 13, § 5) was repealed by Acts 1950, ch. 176, § 1.

39.270. Termination of appointment. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 13, § 6) was repealed by Acts 1950, ch. 176, § 1.

39.280. Repeal of KRS 39.220 to 39.270 when emergency is over. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 13, § 7) was repealed by Acts 1950, ch. 176, § 1.

39.290. Wartime. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 95) was repealed by Acts 1950, ch. 195, § 2.

Sale of War Bonds

39.300. Authorization of issuing agents for United States obligations.

Notwithstanding the provisions of any other law, all individuals, partnerships, associations or corporations organized, operating, or doing business under the laws of this state are hereby authorized, during the continuance of any emergency proclaimed by the President of the United States or of a state of war between the United States and a foreign nation or nations, and for such time thereafter as may be expedient or necessary, and upon designation by and qualification with the Secretary of the Treasury of the United States or under his authority, to act as issuing agents for the sale and issue of obligations of the United States.

History. Enact. Acts 1942, ch. 117, § 1.

Disaster and Emergency Services

39.400. Necessity for and purpose of provisions for disaster and emergency response. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 1; 1974, ch. 114, § 1) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.401. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 2; 1962, ch. 117, § 1; 1974, ch. 114, § 2; 1978, ch. 225, § 1, effective June 17, 1978; 1982, ch. 178, § 1, effective July 15, 1982; 1990, ch. 57, § 1, effective July 13, 1990) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.402. Division of Civil Defense created. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 58, § 3) was repealed by Acts 1962, ch. 117, § 4.

39.403. Adjutant General to serve as director; duties. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 58, § 4) was repealed by Acts 1962, ch. 117, § 4.

39.404. Personnel. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 58, § 5) was repealed by Acts 1962, ch. 117, § 4.

39.405. Office space and materials. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 58, § 6) was repealed by Acts 1962, ch. 117, § 4.

39.406. Public defense advisory council — Duties. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 58, § 7; 1962, ch. 117, § 2) was repealed by Acts 1974, ch. 114, § 25.

39.407. Powers of adjutant general. [Repealed.]

Compiler’s Notes.

This is former KRS 39.408 , as amended, renumbered by the Reviser in 1974. Former KRS 39.407 (Acts 1952, ch. 58, § 8) was repealed by Acts 1962, ch. 117, § 4.

This section (Enact. Acts 1952, ch. 58, § 9; 1974, ch. 114, § 3; 1978, ch. 225, § 2, effective June 17, 1978) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

Legislative Research Commission Note.

(7/15/98). Under KRS 446.260 , the repeal of this section in 1998 Ky. Acts ch. 226 prevails over its amendment in 1998 Ky. Acts chs. 69 and 426.

39.408. Executive orders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 114, § 4) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

Legislative Research Commission Note.

Former KRS 39.408 was renumbered as KRS 39.407 by the reviser in 1974.

39.409. Emergency powers of Governor, mayors, and county judges/executive. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 10; 1962, ch. 117, § 3; 1974, ch. 114, § 5; 1990, ch. 57, § 2, effective July 13, 1990; 1994, ch. 394, § 4, effective July 15, 1994) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.410. Compensation for property taken for temporary use — Notice to owner of property where title is taken. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 11; 1974, ch. 114, § 6; 1974, ch. 315, § 2; 1980, ch. 114, § 5, effective July 15, 1980) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.411. Board of Claims to fix compensation if amount is in dispute. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 12, effective March 5, 1952; 1990, ch. 57, § 3, effective July 13, 1990) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.412. Appeal from award of Board of Claims. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 13; 1966, ch. 255, § 47; 1976, ch. 62, § 50; 1976 (Ex. Sess.), ch. 14, § 11, effective January 2, 1978) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.413. Procedure for payment of compensation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 14; 1974, ch. 74, Art. II, § 9(1); 1974, ch. 114, § 7) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.414. Local mutual aid arrangements — Assistance in negotiation of reciprocal agreements with adjoining states or their political subdivisions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 15; 1974, ch. 114, § 8; 1978, ch. 225, § 3, effective June 17, 1978) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.415. Local government to establish organizations — Functions — Areawide organizations — Director, term, qualifications, duties, salary. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 16; 1974, ch. 114, § 9; 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1978; 1978, ch. 225, § 4, effective June 17, 1978; 1988, ch. 192, § 1, effective July 15, 1988; 1992, ch. 149, § 1, effective July 14, 1992) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.416. Disaster and emergency response powers of counties, urban-county governments, and cities. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 17; 1974, ch. 114, § 10; 1990, ch. 57, § 4, effective July 13, 1990) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.417. Powers of county, metropolitan government, and city employees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 18; 1974, ch. 114, § 11) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.418. Reimbursement for loss, damage or expense — Notice of claim — Reimbursement where aid rendered outside state. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 19; 1974, ch. 114, § 12) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.419. Owners of real estate used for sheltering persons not civilly liable for death, injury, loss or damage. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 20; 1974, ch. 114, § 13) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.420. Mobile support units; commanders. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 58, § 21) was repealed by Acts 1962, ch. 117, § 4.

39.421. Personnel of mobile support units, powers, duties, compensation; reimbursement of county or city by state for compensation and expenses of employes. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 58, § 22) was repealed by Acts 1962, ch. 117, § 4.

39.422. Reimbursement of other state for mobile support personnel furnished; mobile support unit personnel not to operate in other state without reciprocity of provision for reimbursement. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 58, § 23) was repealed by Acts 1962, ch. 117, § 4.

39.423. Investigative powers of Governor — Subpoena. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 24; 1974, ch. 114, § 14) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.424. Traffic control plans — Executive orders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 25; 1974, ch. 114, § 15) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.425. Powers of Governor concerning lease or loan of state property and permitting state employees to engage in disaster and emergency response activities — Permission for judicial and legislative employees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 26; 1974, ch. 114, § 16; 1994, ch. 432, § 1, effective July 15, 1994) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.426. Powers of political subdivision to contract with state for lease or loan of property. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 27; 1974, ch. 114, § 17) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.427. Orders, rules and regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, §§ 28, 29; 1974, ch. 114, § 18) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.428. Nonliability of state, its political subdivisions, agents or representatives for injury or property damage — Nonliability for death or injury resulting from blackout or other precautionary measures. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 58, § 30) was repealed by Acts 1974, ch. 114, § 25.

39.429. Power of arrest for violation of orders, rules or regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 31; 1974, ch. 114, § 19) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.430. Authority to receive services, equipment, supplies, materials and funds from federal government. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 32; 1974, ch. 114, § 20) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.431. Political activity forbidden. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 33; 1974, ch. 114, § 21) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.432. Qualifications and oath of persons connected with disaster and emergency response organizations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 34; 1974, ch. 114, § 22) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.433. Exemption from liability. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 225, § 6, effective June 17, 1978) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

Legislative Research Commission Note.

(7/15/98). Under KRS 446.260 , the repeal of this section in 1998 Ky. Acts ch. 226 prevails over its amendment in 1998 Ky. Acts ch. 488.

39.445. Rescue squads. [Renumbered.]

Compiler’s Notes.

This section has been transferred to KRS 39.700 by the Reviser of Statutes.

KRS 39.700 was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.450. Authority to execute Interstate Emergency Management and Disaster Compact. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 59; 1974, ch. 114, § 23; 1982, ch. 178, § 2, effective July 15, 1982) was repealed by Acts 1998, ch. 117, § 3, effective July 15, 1998, and Acts 1998, ch. 226, § 113, effective July 15, 1998.

Legislative Research Commission Note.

(7/15/98). This section was repealed by 1998 Ky. Acts chs. 117 and 226.

39.460. Governor’s actions under compact. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 114, § 24) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

Legislative Research Commission Note.

(7/15/98). Under KRS 446.260 , the repeal of this section in 1998 Ky. Acts ch. 226 prevails over its amendment in 1998 Ky. Acts ch. 117.

39.470. Policy for disaster and emergency services organizations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 82, § 1, effective June 17, 1978) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

Allocation of Supplementary State Funds

39.480. Allocation of state funds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 82, § 2, effective June 17, 1978) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.481. Purpose of supplementary state fund. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 1, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.482. State officers and their duties — Funds to local units. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 2, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.483. Criteria for funding local disaster and emergency services organizations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 3, effective July 15, 1988; 1992, ch. 149, § 2, effective July 14, 1992) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.484. Request for financial aid — Review and evaluation criteria. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 4, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.485. Reimbursement — Claims and equipment purchase. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 5, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.486. Performance evaluation — Appeal process. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 6, effective July 15, 1988; 1996, ch. 318, § 24, effective July 15, 1996) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.487. Requests for waiver of requirements. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 7, effective July 15, 1988) was repealed by Acts 1988, ch. 226, § 113, effective July 15, 1998.

39.490. Administration of supplementary state funding — Power to make rules and regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 82, § 3, effective June 17, 1978) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.600. Unit of Civil Air Patrol. [Repealed.]

Compiler’s Notes.

This section (enacted as KRS 183.820 by Acts 1958, ch. 57, § 1; 1960, ch. 179, § 76; 1974, ch. 74, Art. IV, §§ 20(4), (5); 1978, ch. 155, § 114, effective June 17, 1978, and repealed and reenacted by Acts 1980, ch. 188, § 139, effective July 15, 1980) was repealed by Acts 1996, ch. 258, § 5, effective July 15, 1996. For present law see KRS 36.230 .

39.610. Functions of unit. [Repealed.]

Compiler’s Notes.

This section (enacted as KRS 183.830 by Acts 1958, ch. 57, § 2; 1960, ch. 179, § 77; 1974, ch. 74, Art. IV, § 20(5) and repealed and reenacted by Acts 1980, ch. 188, § 140, effective July 15, 1980) was repealed by Acts 1996, ch. 258, § 5, effective July 15, 1996. For present law see KRS 36.235 .

39.620. Coordination with federal government. [Repealed.]

Compiler’s Notes.

This section (enacted as KRS 183.840 by Acts 1958, ch. 57, § 3; 1960, ch. 179, § 78; 1974, ch. 74, Art. IV, §§ 20 (5), (6); 1978, ch. 155, § 115, effective June 17, 1978 and repealed and reenacted as KRS 39.620 by Acts 1980, ch. 188, § 141, effective July 15, 1980) was repealed by Acts 1996, ch. 258, § 5, effective July 15, 1996. For present law see KRS 36.240 .

39.630. Restrictions on use of appropriated funds. [Repealed.]

Compiler’s Notes.

This section (enacted as KRS 183.850 by Acts 1958, ch. 57, § 4; 1960, ch. 179, § 79; 1974, ch. 74, Art. IV, §§ 20(5), (6); 1978, ch. 155, § 116, effective June 17, 1978 and repealed and reenacted as KRS 39.630 by Acts 1980, ch. 188, § 142, effective July 15, 1980) was repealed by Acts 1996, ch. 258, § 5, effective July 15,1996. For present law see KRS 36.245 .

Rescue Squads — Rescue Aid Program. [Repealed]

39.700. Rescue squads — Rescue squad taxing districts. [Repealed.]

Compiler’s Notes.

This section was formerly compiled as KRS 39.445 .

This section (Enact. Acts 1986, ch. 244, § 1, effective July 15, 1986; 1992, ch. 383, § 1, effective June 18, 1992) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.710. Rescue Aid Program — Purpose. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 8, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.720. Rescue aid fund — State officials’ duties — Local officials’ duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 9, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.730. Requirements for rescue grant funding — Written standard operating procedures — Bylaws — Rescue vehicle — Membership — Training — Affiliation — Service fee prohibited. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 10, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.740. Rescue and project funding — Application and review process. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 11, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.750. Purchase, disposal and inspection of equipment — Audit of funds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 12, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.760. Reports of lost, stolen or damaged equipment, or loss of capability to operate — Quarterly incident and training reports — Cumulative list of equipment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 13, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.770. Workers’ compensation coverage — Limitation on — Enrollment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 54, § 14, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.780. Procedures for rescue squad taxing districts. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1992, ch. 383, § 2, effective June 18, 1992) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

Emergency Response Commission

39.800. Kentucky Emergency Response Commission established — General purposes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 1, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.805. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact Acts 1988, ch. 193, § 2, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.810. Membership — Meetings — Reimbursement for meetings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 3, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.815. Duties of commission — Appointment of local committees mandatory. [Repealed.]

Compiler’s Notes.

This section (Enact Acts 1988, ch. 193, § 4, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.817. Fees — Trust and agency account. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 110, § 1, effective July 13, 1990) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.820. Permissive activities of commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 5, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.825. Administrative support by Division of Disaster and Emergency Services — Protection of federal funds — Issuance of administrative regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 6, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.830. Local planning district boundaries. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 7, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.835. Local emergency planning committees — Relationship to state commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 8, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.840. Duties of local emergency planning committees — Terms of members — Enforcement procedures. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 9, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.845. Identification of covered facilities — Reporting to public agencies. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 10, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.850. Naming of facility representative — Liaison duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 11, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.855. Organizations required to participate in local planning process — Adoption of local ordinances. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 12, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.860. Plan development, approval and review. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 13, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.865. Response to be consistent with plan. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 14, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.870. State agency response. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 15, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.875. Claims to be filed with Board of Claims. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 16, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.880. Report of release of substance. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 17, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.885. Establishment of warning and notification standards. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 18, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.890. Report of inventories and locations of extremely hazardous substances. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 19, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.895. Additional information may be required. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 20, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.900. Reports available to public — Protection of trade secrets. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 21, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

39.905. KRS 39.800 to 39.905 supplemental to other laws. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 193, § 22, effective July 15, 1988) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

Penalties

39.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 58, § 35; 1988, ch. 193, § 23, effective July 15, 1988; 1990, ch. 110, § 2, effective July 13, 1990) was repealed by Acts 1998, ch. 226, § 113, effective July 15, 1998.

CHAPTER 39A Statewide Emergency Management Programs

39A.010. Legislative intent — Necessity.

The General Assembly realizes the Commonwealth is subject at all times to disaster or emergency occurrences which can range from crises affecting limited areas to widespread catastrophic events, and that response to these occurrences is a fundamental responsibility of elected government in the Commonwealth. It is the intent of the General Assembly to establish and to support a statewide comprehensive emergency management program for the Commonwealth, and through it an integrated emergency management system, in order to provide for adequate assessment and mitigation of, preparation for, response to, and recovery from, the threats to public safety and the harmful effects or destruction resulting from all major hazards, including but not limited to: flood, flash flood, tornado, blizzard, ice storm, snow storm, wind storm, hail storm, or other severe storms; drought, extremes of temperature, earthquake, landslides, or other natural hazards; fire, forest fire, or other conflagration; enemy attack, threats to public safety and health involving nuclear, chemical, or biological agents or weapons; sabotage, riot, civil disorder or acts of terrorism, and other domestic or national security emergencies; explosion, power failure or energy shortages, major utility system failure, dam failure, building collapse, other infrastructure failures; transportation-related emergencies on, over, or through the highways, railways, air, land, and waters in the Commonwealth; emergencies caused by spill or release of hazardous materials or substances; mass-casualty or mass-fatality emergencies; other technological, biological, etiological, radiological, environmental, industrial, or agricultural hazards; or other disaster or emergency occurrences; or catastrophe; or other causes; and the potential, threatened, or impending occurrence of any of these events; and in order to protect life and property of the people of the Commonwealth, and to protect public peace, health, safety, and welfare, and the environment; and in order to ensure the continuity and effectiveness of government in time of emergency, disaster, or catastrophe in the Commonwealth, it is hereby declared to be necessary:

  1. To create a Division of Emergency Management as the emergency management agency of state government and to authorize the creation of local emergency management agencies in the cities, counties, and urban-county or charter county governments of the Commonwealth;
  2. To confer upon the Governor, the county judges/executive of the counties, the mayors of the cities and urban-county governments of the Commonwealth, and the chief executive of other local governments the emergency powers provided in KRS Chapters 39A to 39F;
  3. To establish provisions for mutual aid among the cities, counties, and urban-county or charter county governments of the Commonwealth, with other states, and with the federal government with respect to the performance of disaster and emergency preparedness, response, recovery, and mitigation functions; and
  4. To authorize the establishment of a statewide comprehensive emergency management program and integrated emergency management system, the promulgation of orders or administrative regulations, and the taking of other steps necessary and appropriate to carry out the provisions of KRS Chapters 39A to 39F.

History. Enact. Acts 1998, ch. 226, § 1, effective July 15, 1998.

39A.015. Definitions and chapter provisions applicable to KRS Chapters 39B to 39F.

The definitions and other provisions of this chapter shall apply to this chapter and to KRS Chapters 39B, 39C, 39D, 39E, and 39F unless the language or context of a particular statute requires otherwise.

History. Enact. Acts 1998, ch. 226, § 28, effective July 15, 1998.

39A.020. Definitions for KRS Chapters 39A to 39F.

As used in KRS Chapters 39A to 39F, unless the context requires otherwise:

  1. “Adjutant General” means the executive head of the Department of Military Affairs vested with general direction and control authority for the department and the division of emergency management;
  2. “Catastrophe” means a disaster or series of concurrent disasters which adversely affect the entire Commonwealth of Kentucky or a major geographical portion thereof;
  3. “Chief executive officer” means a:
    1. County judge/executive of a county;
    2. Mayor of a consolidated local government;
    3. Mayor of an urban-county government;
    4. Chief executive officer of a charter county government;
    5. Chief executive officer of a unified local government; or
    6. Mayor of a city;
  4. “Comprehensive emergency management program” means the public safety program developed, organized, implemented, administered, maintained, and coordinated by the Division of Emergency Management and local emergency management agencies created pursuant to the provisions of KRS Chapters 39A to 39F, to assess, mitigate, prepare for, respond to, or recover from, an emergency, declared emergency, disaster, or catastrophe, or threat of any of those, as contemplated in KRS 39A.010 or as defined in this section;
  5. “Coordination” means having and exercising primary state or local executive branch oversight for the purpose of organizing, planning, and implementing;
  6. “County” means a county, urban-county government, charter county government, consolidated local government, or unified local government;
  7. “Declared emergency” means any incident or situation declared to be an emergency by executive order of the Governor, or a county judge/executive, or a mayor, or the chief executive of other local governments in the Commonwealth pursuant to the provisions of KRS Chapters 39A to 39F;
  8. “Director” means the director of the Division of Emergency Management of the Department of Military Affairs;
  9. “Disaster” means any incident or situation declared as such by executive order of the Governor, or the President of the United States, pursuant to federal law;
  10. “Disaster and emergency response” means the performance of all emergency functions, other than war-related functions for which military forces are primarily responsible, including, but not limited to: direction and control, incident command, or management; communications; fire protection services; police services; medical and health services; ambulance services; rescue; search and rescue or recovery; urban search and rescue; engineering; alerting and warning services; resource management; public works services; nuclear, chemical, biological, or other hazardous material or substance monitoring, containment, decontamination, neutralization, and disposal; emergency worker protection, site safety, site operations and response planning; evacuation of persons; emergency welfare services; emergency transportation; physical plant protection; temporary restoration of public utility services; emergency lighting and power services; emergency public information; incident investigation, hazards analysis, and damage assessment; and other functions related to effective reaction to a disaster or emergency or catastrophe, or the potential, threatened, or impending threat of any disaster or emergency or catastrophe, together with all other activities necessary or incidental to the preparation for and carrying out of the functions set out in this subsection;
  11. “Division” means the Division of Emergency Management of the Department of Military Affairs;
  12. “Emergency” means any incident or situation which poses a major threat to public safety so as to cause, or threaten to cause, loss of life, serious injury, significant damage to property, or major harm to public health or the environment and which a local emergency response agency determines is beyond its capabilities;
  13. “Integrated emergency management system” means the unified and multidisciplinary disaster and emergency response infrastructure developed in the Commonwealth, under the coordination of the division, using methods which align state or local administrative, organizational, and operational resources, to accomplish the mission, goals, and objectives of the comprehensive emergency management program of the Commonwealth;
  14. “Local disaster and emergency services organization” means that organization of public and private entities developed to carry out the multiagency disaster and emergency response of a city, county, urban-county or charter county pursuant to KRS Chapters 39A to 39F;
  15. “Local emergency management agency” means the agency created, operated, and maintained to coordinate the local comprehensive emergency management program and disaster and emergency response of a city, county, and urban-county or charter county government pursuant to KRS Chapters 39A to 39F;
  16. “Local emergency management director” or “Local director” means the executive head of the local emergency management agency, appointed pursuant to the provisions of KRS Chapters 39A to 39F;
  17. “State emergency management agency” means the Division of Emergency Management of the Department of Military Affairs; and
  18. “State emergency management director” means the director of the Division of Emergency Management.

History. Enact. Acts 1998, ch. 226, § 2, effective July 15, 1998; 2014, ch. 99, § 2, effective July 15, 2014.

Research References and Practice Aids

Cross-References.

Department of Military Affairs, KRS Ch. 36.

39A.030. Rationale and purpose of program — Division of Emergency Management.

The General Assembly recognizes that the rationale and purpose of the comprehensive emergency management program of the Commonwealth has evolved from a program for response to threats to national security, enemy attack, and other national defense needs, to a program for response to all hazards, but primarily, domestic hazards and threats including natural, man-made, technological, industrial, or environmental emergencies or disasters, for which civil government is primarily responsible. Because of major changes in the rationale and necessity for emergency management capabilities, as well as the urgent requirement for multiagency participation and inter-agency coordination to ensure timely, effective, and appropriate disaster and emergency response in the Commonwealth, and to otherwise modernize and improve the administration, effectiveness, and relevance of the comprehensive emergency management program for the contemporary needs of the citizens of the Commonwealth, the General Assembly declares:

  1. A Division of Emergency Management is hereby created as the emergency management agency of state government which shall develop the comprehensive emergency management program of the Commonwealth on behalf of the Governor, and in consultation with the cabinet secretaries of state government, other appropriate state agency heads, local elected chief executives, local emergency management directors, and local emergency planning committees, for the purpose of developing and enhancing comprehensive emergency management program policies, plans, or procedures to provide for a coordinated responsive, and integrated emergency management system in the Commonwealth;
  2. The division may accept on behalf of the Commonwealth any grant, contribution, or fund, federal or otherwise, made to assist in meeting the costs of carrying out the provisions and purposes of KRS Chapters 39A to 39F, and fully comply with all funding requirements imposed by the receipt and use of the grant, contribution, or fund; and
  3. The term “Division of Emergency Management” shall constitute and designate the official name of the emergency management agency of state government created pursuant to subsection (1) of this section and “Division of Emergency Management,” in the exact order or form as specified in this subsection, shall not be utilized by or assigned to any other agency of state or local government, or other state or local entity, or any political subdivision of the Commonwealth to constitute or designate the official name of any such agency, entity, or political subdivision.

History. Enact. Acts 1998, ch. 226, § 3, effective July 15, 1998.

39A.040. Administrative bodies attached to division.

The following administrative bodies shall be attached to the division for administrative purposes:

  1. Governor’s Earthquake Hazards and Safety Technical Advisory Panel; and
  2. Kentucky Emergency Response Commission.

History. Enact. Acts 1998, ch. 226, § 4, effective July 15, 1998.

39A.050. Responsibility of division for coordinating disaster and emergency services — Powers, authorities, and duties.

  1. The Division of Emergency Management shall coordinate for the Governor all matters pertaining to the comprehensive emergency management program and disaster and emergency response of the Commonwealth. The division shall be the executive branch agency of state government having primary jurisdiction, responsibility, and authority for the planning and execution of disaster and emergency assessment, mitigation, preparedness, response, and recovery for the Commonwealth; the coordination of all disaster and emergency response by and between all state agencies, all agencies of city, county, and urban-county or charter county government, all local entities, and all political subdivisions of the Commonwealth for an emergency, declared emergency, disaster, or catastrophe as contemplated in KRS 39A.010 , 39A.020 , or 39A.030 ; the coordination of, and liaison with, related or concerned federal government agencies, elected officials of other states, private organizations or private sector companies dealing with disaster and emergency response; the coordination of all recovery operations and mitigation initiatives subsequent to disasters or emergencies; and the coordination of all public information activities regarding state government disaster and emergency response operations.
  2. The Division of Emergency Management shall have and exercise the following powers, authorities, and duties:
    1. To develop, administer, and maintain a statewide comprehensive emergency management program for the Commonwealth, and through it an integrated emergency management system for the disaster and emergency response of the Commonwealth, which shall be coordinated with the emergency management programs, and other related public safety, emergency response, mitigation, or disaster recovery programs, of all appropriate federal government agencies including the Federal Emergency Management Agency, the federal Department of Homeland Security, the State Department, the Federal Aviation Administration, the Centers for Disease Control and Prevention, the Department of Transportation, the Environmental Protection Agency, the Occupational Safety and Health Administration, the Department of Defense, the National Oceanic and Atmospheric Administration, the Department of Justice, the Bureau of Alcohol, Tobacco, and Firearms, the National Transportation Safety Board, the Chemical Safety and Hazard Investigation Board, the Army Corps of Engineers, the National Security Council, the Department of Health and Human Services, the Federal Railroad Administration, the United States Geological Survey, the Department of Energy, the Nuclear Regulatory Commission, the Department of Agriculture, the Department of Housing and Urban Development, the American Red Cross, the other states, and other appropriate public or private agencies, to the fullest appropriate extent;
    2. To coordinate the development, implementation, and maintenance of comprehensive emergency management programs by local emergency management agencies in the cities, counties, and urban-county or charter county governments of the Commonwealth to ensure that all such programs, agencies, and organizations are organized, administered, and operated as functional components of the integrated emergency management system of the Commonwealth;
    3. To develop and maintain a comprehensive, risk-based, all-hazards disaster and emergency response plan entitled “Kentucky Emergency Operations Plan,” the provisions of which shall establish the organizational structure to be utilized by state government for managing disaster and emergency response, and set forth the policies, procedures, and guidelines for the coordination and execution of all disaster and emergency response for an emergency, declared emergency, disaster, or catastrophe in the Commonwealth. The Kentucky Emergency Operations Plan shall be submitted to the Governor for approval when the Governor assumes office following each gubernatorial election, or at other times as the director deems appropriate. The Governor shall provide written approval of the Kentucky Emergency Operations Plan through issuance of an executive order, and the division shall file a copy of the executive order with the Legislative Research Commission. The Kentucky Emergency Operations Plan shall be the primary strategic disaster and emergency response planning component of the integrated emergency management system of the Commonwealth, and shall be utilized and followed by all state agencies, all local government agencies, all local public agencies or entities, and all other political subdivisions of the Commonwealth which may be involved in disaster and emergency response in the Commonwealth. The Kentucky Emergency Operations Plan shall be updated by the division not less than annually;
    4. To maintain and operate the State Emergency Operations Center facility, which shall be the official and primary state government twenty-four (24) hour warning point, communications, and command center, from which the Governor, cabinet secretaries, department heads, and other state agency officials can, at any time, rapidly, adequately, and effectively manage the disaster and emergency response of the Commonwealth. The State Emergency Operations Center facility shall be the primary state direction and control component of the integrated emergency management system of the Commonwealth for the coordination of all disaster and emergency response in the Commonwealth;
    5. To develop, monitor, and operate, on a twenty-four (24) hour per day basis, the appropriate alerting or warning systems, public safety telecommunications systems, or radio networks; any state trunked, fiber, or interactive communication systems; computer, fax, other telecommunications or information networks; and systems needed for communication and coordination with all necessary or appropriate federal, state, or local public safety, law enforcement, emergency management, or other disaster and emergency response agencies, and state or local dispatch centers in the Commonwealth, and other appropriate interests, and through these agencies and systems to receive or disseminate emergency information, or to receive timely notification of, and continual assessment of, all threatened or actual emergency incidents or disaster situations occurring anywhere in or near the Commonwealth;
    6. To immediately notify the Governor, the adjutant general, and the executive director of the Kentucky Office of Homeland Security, or his or her designee, in the event of any major emergency incidents or disaster occurrences, or the threatened or impending occurrence of any of these events, and to keep the Governor, the adjutant general, and the executive director of the Kentucky Office of Homeland Security, or his or her designee, informed of all actions being taken in response to these events;
    7. To respond to the scenes of emergencies or disasters, or their threatened or impending occurrence and to directly and immediately investigate, analyze, and assess the nature and seriousness of these situations; to convene meetings, gather information, conduct briefings, and evaluate ongoing emergency response activities; take actions to execute the appropriate provisions of the Kentucky Emergency Operations Plan; coordinate the establishment and operation of a state incident management system; establish or manage sub-state or area emergency operations centers, or on-scene command posts; and fully expedite and coordinate the disaster and emergency response of the Commonwealth;
    8. To establish and operate area field offices of the division, each office to be headed by an area manager, responsible for administering the policies, plans, programs, and duties of the division in specific geographic areas of the Commonwealth, including the coordination of comprehensive emergency management programs developed by the cities, counties, urban-county, or charter county governments in the areas;
    9. To provide funds to the cities, counties, and urban-county or charter county governments of the Commonwealth to support the development, administration, operation, and maintenance of local emergency management agencies created pursuant to KRS Chapters 39A to 39F;
    10. To require the regular submission of program administration data, records, materials, reports, or documents from local emergency management agencies as may be necessary and sufficient to conduct performance reviews and assessments to ensure compliance with all state or federal funding and program requirements, and to ensure local program compatibility and consistency with the mission, goals, and objectives of the comprehensive emergency management program and integrated emergency management system of the Commonwealth;
    11. To ascertain the requirements of the Commonwealth and its cities and counties for emergency resources and the necessities of life in the event of disaster or emergency; institute an emergency resource management plan and procure emergency supplies, materials, and equipment; and use or employ in time of emergency any of the property, services, and resources of state or local government in the Commonwealth for the purposes set forth in KRS Chapters 39A to 39F;
    12. To institute public information and education programs, emergency management training programs, and exercise programs to test and evaluate emergency operations plans and disaster and emergency response and recovery capabilities; and
    13. To promulgate administrative regulations to carry out the provisions of KRS Chapters 39A to 39F.

History. Enact. Acts 1998, ch. 226, § 5, effective July 15, 1998; 2002, ch. 82, § 3, effective March 28, 2002; 2006, ch. 193, § 5, effective July 12, 2006.

39A.060. Nature and scope of comprehensive program — Director under direction of adjutant general.

The General Assembly recognizes that the nature and scope of the activities necessary to develop and to administer a statewide comprehensive emergency management program, together with an integrated emergency management system requires the full support, cooperation, and active participation of all cabinets, departments, divisions, offices, or agencies of state government, local elected officials, local public agencies or entities, special districts, political subdivisions of the Commonwealth, volunteer organizations, individual citizens, and the private sector in this Commonwealth. To provide effective executive leadership for a program area of such broad scope and to ensure the professional administration of the comprehensive emergency management program and integrated emergency management system of the Commonwealth, the General Assembly declares:

  1. The Division of Emergency Management shall be headed by a director recommended by the Adjutant General and appointed by the Governor; and
  2. The director shall have the powers, rights, responsibilities, and authorities, as provided in KRS Chapters 39A to 39F, or other laws, and shall carry out all duties under the general direction of the Adjutant General of the Department of Military Affairs.

History. Enact. Acts 1998, ch. 226, § 6, effective July 15, 1998.

Research References and Practice Aids

Cross-References.

Department of Military Affairs, KRS Ch. 36.

39A.070. Powers, responsibilities, and duties of director.

The director, with the approval of the adjutant general, shall exercise the following powers, responsibilities, and duties:

  1. To represent the Governor on all matters pertaining to the comprehensive emergency management program and the disaster and emergency response of the Commonwealth;
  2. To coordinate the development of a statewide comprehensive emergency management program, and through it, an integrated emergency management system for the disaster and emergency response of the Commonwealth;
  3. To promulgate administrative regulations and issue orders, directives, standards, rules, procedures, guidance, or recommended practices necessary to coordinate the development, administration, organization, operation, implementation, and maintenance of the statewide comprehensive emergency management program and the integrated emergency management system of the Commonwealth;
  4. To coordinate the development of comprehensive emergency management programs by the cities, counties, and urban-county or charter county governments as functional components of the integrated emergency management system of the Commonwealth;
  5. To supervise the development and maintenance of the Kentucky Emergency Operations Plan, and to review and give concurrence to local emergency operations plans required pursuant to KRS Chapters 39A to 39F;
  6. To coordinate the comprehensive emergency management program of the Commonwealth with the emergency management or other emergency response-related programs of the federal government, and of other states, to the fullest appropriate extent;
  7. To advise the Governor and the adjutant general immediately of the occurrence or threatened or impending occurrence of any disaster or emergency, and to recommend to the Governor any emergency actions, written orders, emergency powers, or executive orders that the Governor should execute;
  8. To serve as the Governor’s primary liaison with local officials in the event of the occurrence, or threatened or impending occurrence, of any disaster or emergency in the cities, counties, urban-counties, or charter counties of the Commonwealth;
  9. To take any other preparedness or response actions deemed necessary for adequate response to a disaster or emergency situation to include: requesting increased readiness activities by state or local agencies in advance of an actual disaster or emergency; requesting implementation of local emergency operations plans or the activation of local emergency operations centers; requesting reports from state or local agencies regarding emergency situations, damage assessments, or the taking of emergency response actions; and requesting the mobilization or deployment of any trained and equipped forces of state or local government for the disaster and emergency response purposes set forth in KRS Chapters 39A to 39F;
  10. To request and utilize the personnel, equipment, services, and facilities of existing officers and agencies of the Commonwealth and of all political subdivisions and special districts. All these officers and agencies shall fully cooperate with and extend their resources to the director as requested to the extent that local public safety is not unreasonably compromised;
  11. To employ measures and give directions to the state or local boards of health as necessary for the purpose of securing compliance with the provisions of KRS Chapters 39A to 39F, or with the findings or recommendations of the boards of health, because of conditions arising from disasters, emergency situations, national security emergencies, or the threat thereof;
  12. To request and utilize the services of state and local law enforcement officers for the purpose of securing compliance with the provisions of KRS Chapters 39A to 39F, or any order of the Governor pertaining to disaster and emergency response;
  13. On behalf of this Commonwealth, with the approval of the Governor or act of the General Assembly, to enter into reciprocal aid agreements or compacts with other states and the federal government, either on a statewide, local, county, or city basis, or with other states or a province of a foreign country. The mutual aid agreements shall be limited to the furnishing or exchange of food, clothing, medicine, and other supplies; engineering services; emergency housing; police services; National Guard personnel and resources while under the control of the state; health, medical, and related services; firefighting; rescue; search and rescue or recovery; urban search and rescue; hazardous materials response services, transportation and construction services and equipment; personnel necessary to provide or conduct these services and other supplies, equipment, facilities, personnel, and services as needed; the reimbursement of costs and expenses for equipment, supplies, personnel, and similar items for mobile support units, firefighting, search and rescue, and police units, and health units; and on the terms and conditions deemed necessary;
  14. To sponsor and develop mutual aid plans and agreements among the urban-county or charter county governments, counties, cities, and other political subdivisions and special districts of the Commonwealth, similar to the mutual aid arrangements with other states referred to in subsection (13) of this section;
  15. To procure motor vehicles, radio and telecommunications equipment, protective clothing, safety equipment, and other necessary supplies and materials to meet the emergency response, operational, and administrative needs of the division;
  16. To identify deficiencies existing in the emergency management program organization, facilities, and capabilities of the Commonwealth, including but not limited to: personnel and administrative resources; state, sub-state, area, or local emergency operations centers; mobile command posts; emergency telecommunications and computer systems; alerting and warning systems; stockpiles of critical resources; or any other necessary elements, and to recommend to the adjutant general, for consideration by the Governor or the General Assembly or other appropriate funding authority, the administrative or operational funding requirements, and long-range capital construction or improvement projects needed to meet the emergency management infrastructure needs of the Commonwealth;
  17. To serve as the state coordinating officer and notify the Governor of the appropriations necessary to fund the expected emergency operational or response costs of the division, and the Commonwealth’s share of the grants provided by Pub.L.No. 93-288, Title V, Federal Disaster Assistance Programs as amended by Pub.L.No. 100-707, the Robert T. Stafford Disaster Relief and Emergency Assistance Act, or successor acts or titles, and further, take action necessary to ensure entitlement to all other federal relief or assistance programs;
  18. To cooperate with the President of the United States, the Federal Emergency Management Agency, and other appropriate federal offices and agencies, and the offices and agencies of other states in matters pertaining to the comprehensive emergency management program of the Commonwealth and nation; and in connection with these, to take any measures considered necessary to implement any request of the President and the appropriate federal offices and agencies, for any action requiring effective disaster and emergency response, including the direction or control and mobilization of disaster and emergency response forces; tests and exercises, warnings, and signals for drills or other emergency response activities and the mechanical devices to be used in connection with these; the shutting off of water mains, gas mains, electric power connections, and the suspension of all other utility services; the conduct of civilians and the movement and cessation of movement of pedestrians and vehicular traffic during, prior, and subsequent to a drill, emergency, declared emergency, or disaster; public meetings or gatherings; and the evacuation and sheltering of the civilian population; and
  19. To delegate any authority vested in the director under KRS Chapters 39A to 39F and to provide for the subdelegation of any such authority.

History. Enact. Acts 1998, ch. 226, § 7, effective July 15, 1998; 2002, ch. 82, § 4, effective March 28, 2002; 2006, ch. 193, § 7, effective July 12, 2006.

Compiler’s Notes.

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Pub. L. No. 93-288 as amended by Pub. L. No. 100-707) referred to in subdivision (17) of this section is compiled as 42 USCS § 5121 et seq.

39A.080. Seals and markings of Division of Emergency Management to be affixed on vehicles used and operated by division.

In lieu of the official seal of the Commonwealth of Kentucky, the division shall be authorized to design, display and affix the distinctive seal and markings of the Division of Emergency Management on any and all state vehicles owned, leased, or operated by the division for official purposes and operated by personnel of the division.

History. Enact. Acts 1998, ch. 226, § 15, effective July 15, 1998.

39A.090. Executive orders.

The Governor may make, amend, and rescind any executive orders as deemed necessary to carry out the provisions of KRS Chapters 39A to 39F.

History. Enact. Acts 1998, ch. 226, § 8, effective July 15, 1998.

39A.100. Emergency powers of Governor and local chief executive officers.

  1. In the event of the occurrence or threatened or impending occurrence of any of the situations or events contemplated by KRS 39A.010 , 39A.020 , or 39A.030 , the Governor may declare, in writing, that a state of emergency exists. The Governor shall have and may exercise the following emergency powers during the period in which the state of emergency exists:
    1. To enforce all laws, and administrative regulations relating to disaster and emergency response and to assume direct operational control of all disaster and emergency response forces and activities in the Commonwealth;
    2. To require state agencies and to request local governments, local agencies, and special districts to respond to the emergency or disaster in the manner directed;
    3. To seize, take, or condemn property, excluding firearms and ammunition, components of firearms and ammunition, or a combination thereof, for the protection of the public or at the request of the President, the Armed Forces, or the Federal Emergency Management Agency of the United States, including:
      1. All means of transportation and communication;
      2. All stocks of fuel of whatever nature;
      3. Food, clothing, equipment, materials, medicines, and all supplies; and
      4. Facilities, including buildings and plants;
    4. To sell, lend, give, or distribute any of the property under paragraph (c) of this subsection among the inhabitants of the Commonwealth and to account to the State Treasurer for any funds received for the property;
    5. To make compensation for the property seized, taken, or condemned under paragraph (c) of this subsection;
    6. To exclude all nonessential, unauthorized, disruptive, or otherwise uncooperative personnel from the scene of the emergency, and to command those persons or groups assembled at the scene to disperse. A person who refuses to leave an area in which a written order of evacuation has been issued in accordance with a written declaration of emergency or a disaster may be forcibly removed to a place of safety or shelter, or may, if this is resisted, be arrested by a peace officer. Forcible removal or arrest shall not be exercised as options until all reasonable efforts for voluntary compliance have been exhausted;
    7. To declare curfews and establish their limits;
    8. To prohibit or limit the sale or consumption of goods, excluding firearms and ammunition, components of firearms and ammunition, or a combination thereof, or commodities for the duration of the emergency;
    9. To grant emergency authority to pharmacists pursuant to KRS 315.500 , for the duration of the emergency;
    10. Except as prohibited by this section or other law, to perform and exercise other functions, powers, and duties deemed necessary to promote and secure the safety and protection of the civilian population;
    11. To request any assistance from agencies of the United States as necessary and appropriate to meet the needs of the people of the Commonwealth; and
    12. Upon the recommendation of the Secretary of State, to declare by executive order a different time, place, or manner for holding elections in an election area for which a state of emergency has been declared for part or all of the election area. The election shall be held within thirty-five (35) days from the date of the suspended or delayed election. The State Board of Elections shall establish procedures for election officials to follow. Any procedures established under this paragraph shall be subject to the approval of the Secretary of State and the Governor by respective executive orders.
  2. In the event of the occurrence or threatened or impending occurrence of any of the situations or events contemplated by KRS 39A.010 , 39A.020 , or 39A.030 , which in the judgment of a local chief executive officer is of such severity or complexity as to require the exercise of extraordinary emergency measures, the county judge/executive of a county other than an urban-county government, or mayor of a city or urban-county government, or chief executive of other local governments or their designees as provided by ordinance of the affected county, city, or urban- county may declare in writing that a state of emergency exists, and thereafter, subject to any orders of the Governor, shall have and may exercise for the period as the state of emergency exists or continues, the following emergency powers:
    1. To enforce all laws and administrative regulations relating to disaster and emergency response and to direct all local disaster and emergency response forces and operations in the affected county, city, urban-county, or charter county;
    2. To exclude all nonessential, unauthorized, disruptive, or uncooperative personnel from the scene of the emergency, and to command persons or groups of persons at the scene to disperse. A person who refuses to leave an area in which a written order of evacuation has been issued in accordance with a written declaration of emergency or a disaster may be forcibly removed to a place of safety or shelter, or may, if this is resisted, be arrested by a peace officer. Forcible removal or arrest shall not be exercised as options until all reasonable efforts for voluntary compliance have been exhausted;
    3. To declare curfews and establish their limits;
    4. To order immediate purchase or rental of, contract for, or otherwise procure, without regard to procurement codes or budget requirements, the goods and services essential for protection of public health and safety or to maintain or to restore essential public services; and
    5. To request emergency assistance from any local government or special district and, through the Governor, to request emergency assistance from any state agency and to initiate requests for federal assistance as are necessary for protection of public health and safety or for continuation of essential public services.
  3. Nothing in this section shall be construed to allow any governmental entity to impose additional restrictions on the lawful possession, transfer, sale, transport, carrying, storage, display, or use of firearms and ammunition or components of firearms and ammunition.

History. Enact. Acts 1998, ch. 226, § 9, effective July 15, 1998; 2005, ch. 91, § 1, effective June 20, 2005; 2006, ch. 7, § 1, effective July 12, 2006; 2006, ch. 240, § 10, effective July 12, 2006; 2010, ch. 22, § 3, effective July 15, 2010; 2020 ch. 91, § 74, effective April 15, 2020.

39A.110. Compensation for property taken for temporary use — Notice to owner of property where title taken.

If property is taken for temporary use, pursuant to the provisions of this chapter, the Governor shall, within thirty (30) days of the taking, fix the amount of compensation to be paid for the property. If the property is returned to the owner in a damaged condition or is not returned to the owner, the Governor shall, within thirty (30) days after the taking, fix the amount of compensation to be paid for the damage or failure to return. When the Governor deems it advisable for the state to take title to property taken under this section, the owner shall be notified in writing by certified mail, return receipt requested, and a copy of the notice shall be filed with the Secretary of State.

History. Enact. Acts 1998, ch. 226, § 10, effective July 15, 1998.

39A.120. Procedure when owner refuses to accept compensation fixed by Governor.

If the owner of any property seized, taken, or condemned pursuant to KRS 39A.110 refuses to accept as adequate the compensation fixed by the Governor, the owner may present a claim to the Kentucky Claims Commission, which shall hear and determine it according to the provisions of KRS 49.040 to 49.180 and the administrative regulations of the commission.

HISTORY: Enact. Acts 1998, ch. 226, § 11, effective July 15, 1998; 2017 ch. 74, § 56, effective June 29, 2017.

Research References and Practice Aids

Cross-References.

Board of Claims, KRS 44.070 .

39A.130. Appeal from award of Kentucky Claims Commission.

  1. The owner of property seized, taken, or condemned may appeal from the award of the Kentucky Claims Commission to the Circuit Court of the county of the owner’s residence. The Rules of Civil Procedure shall, so far as applicable, govern the procedure on appeal. A trial de novo shall not be allowed unless the record on appeal is not sufficient to determine the matter from the record, but if the action is tried, it shall be tried according to the practice prescribed for the trial of jury cases.
  2. An appeal from the judgment of Circuit Court may be taken to the Court of Appeals.

HISTORY: Enact. Acts 1998, ch. 226, § 12, effective July 15, 1998; 2017 ch. 74, § 57, effective June 29, 2017.

Research References and Practice Aids

Cross-References.

Appeals to Court of Appeals, KRS 22A.020 .

39A.140. Procedure for payment of compensation.

  1. If the owner of property seized, taken, or condemned accepts as adequate the compensation fixed by the Governor, the owner shall file a statement of the amount of compensation from the Governor with the Finance and Administration Cabinet, which shall draw a warrant on the State Treasurer for the amount of the compensation in favor of the person entitled to payment.
  2. If the compensation is determined by award of the Kentucky Claims Commission or judgment of a court, as provided in KRS 39A.110 , 39A.120 , and 39A.130 , a certified copy of the award or judgment shall be filed with the Finance and Administration Cabinet which shall draw a warrant on the State Treasurer for the amount of the award or judgment.
  3. The State Treasurer shall pay the warrants out of any money in the Treasury not otherwise appropriated.

HISTORY: Enact. Acts 1998, ch. 226, § 13, effective July 15, 1998; 2017 ch. 74, § 58, effective June 29, 2017.

39A.150. Traffic control plans — Executive orders.

  1. The Kentucky Emergency Operations Plan and local emergency operations plans shall include measures for, and the Governor for the state or portion thereof, the county judge/executive for a county other than an urban-county, or a portion thereof, and the mayor for a city or an urban-county or portion thereof, may issue written executive orders providing for:
    1. The control of traffic in order to provide for rapid and safe movement in evacuation over public highways and streets during any disaster or emergency;
    2. The control and alteration of speed limits and traffic regulations on public highways during any disaster or emergency; and
    3. The prohibition or limitation of use of motor vehicles on public highways during any disaster or emergency.
  2. The Governor may extend the provisions of subsection (1) of this section to the public thoroughfares of any political subdivision of the Commonwealth.
  3. The Governor may order agencies of state government and political subdivisions of the Commonwealth to take steps necessary to effectuate plans made or orders issued pursuant to this section.
  4. During a declared emergency or disaster, the Governor, county judge/executive, or mayor, may, for their respective jurisdictions, place these plans in effect.

History. Enact. Acts 1998, ch. 226, § 14, effective July 15, 1998.

39A.160. Witnesses — Production of records and documents.

For the purpose of making surveys and investigations and obtaining information which may be necessary to the operation or enforcement of KRS Chapters 39A to 39F, the Governor, or the director with the written approval of the Governor, may compel by subpoena the attendance of witnesses, and the production of books, papers, records, and documents of individuals, firms, associations, and corporations. All officers, boards, commissions, and divisions of the state, the political subdivisions thereof, and special districts, having information which is the subject of the investigation, shall cooperate with and assist the Governor or the director in making the investigation and surveys.

History. Enact. Acts 1998, ch. 226, § 15, effective July 15, 1998.

39A.170. Lease or loan of real or personal property of state government — Disaster and emergency response activities of state employees.

  1. Notwithstanding any inconsistent provision of law, the Governor may, when it is found to be in the public interest:
    1. Authorize any division or agency of the state to lease or lend, on such terms and conditions as deemed necessary to promote the public welfare and protect the interests of the state, any real or personal property of the state government to the President of the United States, the chiefs of the Armed Forces, or to the Federal Emergency Management Agency;
    2. Enter into a contract on behalf of the state for the lease or loan to any political subdivision of the state on such terms and conditions as may be deemed necessary to promote the public welfare and protect the interests of the state, of any real or personal property of the state government, or the temporary transfer or employment of personnel of the state government to or by any political subdivision of the state; and
    3. Permit state employees to engage in disaster and emergency response activities, within or without the state, for the division, or for a local jurisdiction upon request of a local emergency management agency to the division. State employees assigned to or volunteering for this duty shall be considered as being employed by the agency by which they are regularly employed and shall continue to receive salary and benefits while engaging in disaster and emergency response work.
  2. The permission of the Governor for the use of state employees in the manner specified in subsection (1)(c) of this section shall be presumed, and shall be automatic unless the Governor specifies otherwise with regard to the use of a specific employee or employees.
  3. The Chief Justice for the Court of Justice and the Director of the Legislative Research Commission, with regard to employees of their respective branches of government, may permit Court of Justice and legislative employees to engage in disaster and emergency services work under the same terms and conditions as specified in subsections (1) and (2) of this section.

History. Enact. Acts 1998, ch. 226, § 16, effective July 15, 1998.

39A.180. Orders and administrative regulations of political subdivisions — Enforcement.

  1. The political subdivisions of the state and other agencies designated or appointed by the Governor may make, amend, and rescind orders and promulgate administrative regulations necessary for disaster and emergency response purposes, and to supplement the carrying out of the provisions of this chapter, if not inconsistent with any orders or administrative regulations promulgated by the Governor or by any state agency exercising a power delegated to it by the Governor.
  2. All written orders and administrative regulations promulgated by the Governor, the director, or by any political subdivision or other agency authorized by KRS Chapters 39A to 39F to make orders and promulgate administrative regulations, shall have the full force of law, when, if issued by the Governor, the director, or any state agency, a copy is filed with the Legislative Research Commission, or, if promulgated by an agency or political subdivision of the state, when filed in the office of the clerk of that political subdivision or agency. All existing laws, ordinances, and administrative regulations inconsistent with the provisions of KRS Chapters 39A to 39F, or of any order or administrative regulation issued under the authority of KRS Chapters 39A to 39F, shall be suspended during the period of time and to the extent that the conflict exists.
  3. The law enforcement authorities of the state and of its counties, urban-counties, charter counties, and cities shall enforce the written orders and administrative regulations issued pursuant to KRS Chapters 39A to 39F.

History. Enact. Acts 1998, ch. 226, § 17, effective July 15, 1998.

39A.190. Power of arrest for violation of order or administrative regulation.

A peace officer, when in full and distinctive uniform or displaying a badge or other insignia of authority, may arrest without a warrant any person violating or attempting to violate in the officer’s presence any order or administrative regulation made pursuant to this chapter, or KRS Chapter 39B, 39C, 39D, 39E, or 39F.

History. Enact. Acts 1998, ch. 226, § 18, effective July 15, 1998.

39A.200. Authority to receive services, equipment, supplies, materials, or funds from federal government.

When the federal government or any agency or officer thereof shall offer to the state, or through the state to any political subdivision thereof, services, equipment, supplies, materials, or funds by way of gift, grant, or loan, for purposes of disaster and emergency response, the state, acting through the Governor, or the political subdivision, acting through its chief executive or governing body, may accept the offer and upon acceptance the Governor of the state or chief executive or governing body of the political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive the services, equipment, supplies, materials, or funds on behalf of the state or the political subdivision, and subject to the terms of the offer.

History. Enact. Acts 1998, ch. 226, § 19, effective July 15, 1998.

39A.210. Qualifications and oath of persons connected with disaster and emergency response organizations.

No person shall be employed or associated in any capacity in any disaster and emergency response organization established under this chapter who advocates a change by force or violence in the constitutional form of the government of the United States or in this state or the overthrow of any government in the United States by force or violence, or who has been convicted of or is under indictment or information charging any subversive act against the United States. Each person who is appointed to serve in an organization for disaster and emergency response shall, before entering upon his or her duties, take an oath, in writing, before a person authorized to administer oaths in this Commonwealth, which shall be as follows:

“I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of this Commonwealth and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of emergency management director according to law;

And I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this state, have not fought a duel with deadly weapons within this state, nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offended, so help me God.”

History. Enact. Acts 1998, ch. 226, § 20, effective July 15, 1998.

39A.220. Agency emergency operations procedures.

  1. Each agency, board, or commission of state government, unless the requirement is waived, in writing, by the director, shall develop agency emergency operations procedures which are consistent with and which meet the requirements of the Kentucky Emergency Operations Plan. The agency emergency operations procedures shall be updated not less than yearly.
  2. Each agency, board, or commission of state government shall take those measures necessary to ensure that it can continue to operate during times of disaster or emergency, that it can protect its vital records, and that it has designated at least four (4) persons, preferably by title, who may act for the agency, and for its major component operations, during an emergency or disaster if the primary person with the power to make necessary decisions is unavailable for any reason.
  3. In carrying out the provisions of subsections (1) and (2) of this section, each agency, board, or commission of state government shall follow the general planning guidance of the division and the requirements of administrative regulations promulgated by the division.
  4. Each agency, board, or commission of state government shall train its employees with regard to the contents of the agency emergency operations procedures, and shall give any additional training necessary to implement the procedures during times of emergency or disaster.
  5. Each agency, board, or commission of state government shall, upon request of the director, send an employee of the agency with full authority to take any action on behalf of the agency to the State Emergency Operations Center, area offices of the division, state command posts or other designated location during periods of emergency or disaster.
  6. As used in this section, agency, board, or commission means all agencies, unless the requirement is waived, in writing, by the director, listed in KRS 12.020 , other state bodies created by executive order of the Governor, the Legislative Research Commission, and the Court of Justice and its agencies.

History. Enact. Acts 1998, ch. 226, § 21, effective July 15, 1998.

39A.230. Procedures for one multirisk, multiagency, unified incident command or management system.

  1. The Kentucky Emergency Operations Plan shall include procedures for one multirisk, multiagency, unified incident command or management system to be used by all state agencies responding to the scene of an emergency, declared emergency, disaster, or catastrophe, as contemplated by KRS 39A.010 , 39A.020 , or 39A.030 .
  2. Local emergency operations plans shall include procedures for:
    1. An incident command or management system to be used by individual local agencies or departments when responding to the scene of day-to-day, routine emergency incidents; and
    2. One unified incident command or management system to be used by all local agencies or departments when responding to the scene of a multiagency or multijurisdictional emergency, declared emergency, disaster, or catastrophe, as contemplated by KRS 39A.010 , 39A.020 , or 39A.030 .
  3. All incident command or management system procedures required pursuant to subsections (1) or (2) of this section shall be based upon or utilize the five (5) functions of: command, operations, planning, logistics, and finance.

History. Enact. Acts 1998, ch. 226, § 22, effective July 15, 1998.

39A.240. State Emergency Operations Center — Agency representatives.

  1. The division shall maintain the State Emergency Operations Center and those alternate locations deemed necessary, and shall activate the State Emergency Operations Center when deemed necessary by the director, the Adjutant General, or the Governor.
  2. Each cabinet of state government, and each independent agency of state government, and other organizations provided for in the Kentucky Emergency Operations Plan shall immediately send a designated person to the State Emergency Operations Center upon request of the director, during a time of emergency or disaster or the threatened or impending happening of such an incident. They shall remain at the State Emergency Operations Center until relieved and replaced, unless released by the director.
  3. Persons representing agencies of state government or other organizations assigned to the State Emergency Operations Center during times of emergency or disaster or the threatened or impending happening thereof may obligate the funds, equipment, and personnel of the organization which they represent, and make decisions on behalf of the organization which they represent.

History. Enact. Acts 1998, ch. 226, § 23, effective July 15, 1998.

39A.250. [Superseded by KRS 39A.280.]

39A.260. Mutual aid agreements with other states — Workers’ compensation.

  1. The division may enter into agreements with other states with regard to mutual aid for routine provision of emergency management services or for mutual aid during times of emergency or disaster, or any combination of these.
  2. Kentucky emergency management personnel, either working for the state or local government or affiliated with the state or a local government, paid or volunteer, shall, to the extent provided by the law of the host state, have the same rights and privileges as they have in Kentucky.
  3. Emergency management personnel, either working for the state or a local government or affiliated with the state or a local government of another state, paid or volunteer, shall, to the extent provided by Kentucky law, have the same rights and privileges as do Kentucky emergency management personnel working for the state or local government or affiliated with the state or a local government, whether paid or volunteer. This provision shall not apply to the provision of peace officer services, unless approved in writing by the Governor, or the General Assembly, as appropriate for the specific incident.
  4. Kentucky emergency management-provided workers’ compensation shall apply to a state or local emergency management agency worker, paid or volunteer, or worker in an operating unit officially affiliated with the division, or worker in a local emergency management agency-supervised operating unit officially affiliated with a local disaster and emergency services organization pursuant to KRS 39B.070 , who is serving in another state pursuant to an agreement consummated under this section.
  5. An emergency management worker from another state, paid or volunteer, who is working for or affiliated with the state emergency management agency and who is serving in Kentucky pursuant to an agreement consummated under this section may be accorded Kentucky emergency management workers’ compensation coverage by action of the director.
  6. The provisions of subsections (4) and (5) of this section shall not apply to hazardous materials emergency response operations defined in 29 C.F.R. 1910.120 which are above the first-responder operations level, on-scene incident commander level excluded.
  7. An emergency management worker from another state, paid or volunteer, who is working for the state emergency management agency or a local emergency management agency or a worker in an organization affiliated with the state or local emergency management agency of another state who holds license or certification from the worker’s state to practice a profession, or paraprofessional activity, or other activity for which a license or certification is required to practice that activity in Kentucky shall be, for the period of that work, under an agreement consummated pursuant to this chapter, considered as properly licensed or certified in Kentucky to perform the services granted by the worker’s license or certification. The worker shall, however, while in Kentucky, be subject to discipline by the appropriate Kentucky licensing or certifying agency for acts of misconduct or negligence which are committed in Kentucky.
  8. City, county, urban-county, or charter county emergency management agencies in Kentucky may make written agreements with similar local emergency management agencies in adjoining states if the agreements are submitted to the state emergency management agencies of both states and are approved in writing by the directors of both agencies. Agreements pursuant to this section shall be subject to the same rights and privileges as state agreements under this section, but shall be limited to two (2) years, unless renewed by submission of a new agreement for approval.
  9. The provisions of this section shall be subject to the provisions of all applicable federal law.

History. Enact. Acts 1998, ch. 226, § 25, effective July 15, 1998.

Research References and Practice Aids

Cross-References.

Workers’ Compensation, KRS Ch. 342.

39A.270. Use of publicly owned resources at impending, happening, or response phase of disaster or emergency.

  1. During the threatened or impending happening of a disaster or emergency, the Governor, the Adjutant General, or the Director may authorize the use of public employees, equipment, supplies, materials, funds, or any other publicly owned or supported resources to assist in the mitigation of the potential effects of the disaster or emergency, regardless of whether the use is on public or private property.
  2. During the actual happening of and any part of the response phase of a disaster or emergency the Governor, the Adjutant General, or the Director, shall, when necessary or desirable, authorize the use of public employees, equipment, supplies, materials, funds, or any other publicly owned or supported resource to assist in the operations of government, or the private sector, necessary to deal with the disaster or emergency, regardless of whether the use is on public or private property.
  3. After the active or response phase of the disaster or emergency has passed and the recovery phase has begun, the Governor, the Adjutant General, or the Director may authorize the use of public employees, equipment, supplies, funds, or any other publicly owned or supported resources to assist in the recovery phase of the disaster or emergency, regardless of whether the use is on public or private property.
  4. A formal declaration of disaster or emergency shall not be necessary to invoke the provisions of subsection (1) or (2) of this section.

History. Enact. Acts 1998, ch. 226, § 26, effective July 15, 1998.

39A.280. Nature of disaster and emergency response functions provided by state or local management agency, licensed professional engineer, or licensed architect — Immunity, exceptions.

  1. Disaster and emergency response functions provided by a state or local emergency management agency, or any emergency management agency-supervised operating units or personnel officially affiliated with a local disaster and emergency services organization pursuant to KRS 39B.070 , shall not, in itself, be deemed to be the making of a promise, or the undertaking of a special duty, towards any person for the services, or any particular level of, or manner of providing, the services; nor shall the provision of or failure to provide these services be deemed to create a special relationship or duty towards any person upon which an action in negligence or other tort might be founded. Specifically:
    1. The failure to respond to a disaster or other emergency, or to undertake particular inspections or types of inspections, or to maintain any particular level of personnel, equipment, or facilities, shall not be a breach of any duty to persons affected by any disaster or other emergency.
    2. When a state or local emergency management agency, or local emergency management agency-supervised operating unit officially affiliated with a local disaster and emergency services organization, does undertake to respond to a disaster or other emergency, the failure to provide the same level or manner of service, or equivalent availability or allocation of resources as may or could be provided, shall not be a breach of any duty to persons affected by that disaster or other emergency.
    3. A state or local emergency management agency, or local emergency management agency-supervised operating unit officially affiliated with a local disaster and emergency services organization shall not have or assume any duty towards any person to adopt, use, or avoid any particular strategy or tactic in responding to a disaster or other emergency.
    4. A state or local emergency management agency, or local emergency management agency-supervised operating unit officially affiliated with a local disaster and emergency services organization, in undertaking disaster and emergency preparedness or prevention activities including inspections, or in undertaking to respond to a disaster or other emergency, shall not have voluntarily assumed any special duty with respect to any risks which were not created or caused by it, nor with respect to any risks which might have existed even in the absence of that activity or response, nor shall any person have a right to rely on such an assumption of duty.
  2. Neither the state nor any political subdivision of the state, nor the agents or representatives of the state or any of its political subdivisions, shall be liable for personal injury or property damage sustained by any person appointed or acting as a volunteer emergency management agency member, or disaster and emergency services member, or disaster and emergency response worker, or member of any agency engaged in any emergency management or disaster and emergency services or disaster and emergency response activity. The immunity provided by this subsection shall not apply to the extent that the state, a political subdivision of the state, or a person or organization maintains liability insurance or self-insurance for an act or omission covered by this subsection. To the extent that the state, a political subdivision of the state, or a person or an organization maintains liability insurance or self-insurance, sovereign immunity shall not be claimed with regard to an act or omission covered by this subsection. This immunity shall not affect the right of any person to receive benefits or compensation to which the person might otherwise be entitled under the Workers’ Compensation Law, or this chapter, or any pension law, or any Act of Congress.
  3. Subject to subsection (6) of this section, neither the state nor any political subdivision of the state nor, except in cases of willful misconduct, gross negligence, or bad faith, the employees, agents, or representatives of the state or any of its political divisions, nor any volunteer or auxiliary emergency management agency or disaster and emergency services organization member or disaster and emergency response worker or member of any agency engaged in any emergency management or disaster and emergency services or disaster and emergency response activity, complying with or reasonably attempting to comply with this chapter or any order or administrative regulation promulgated pursuant to the provisions of this chapter, or other precautionary measures enacted by any city of the state, shall be liable for the death of or injury to persons, or for damage to property, as a result of that activity. The immunity provided by this subsection shall not apply to the extent that the state, a political subdivision of the state, or a person or organization maintains liability insurance or self-insurance for an act or omission covered by this subsection. To the extent that the state, a political subdivision of the state, or a person or an organization maintains liability insurance or self-insurance, sovereign immunity shall not be claimed with regard to an act or omission covered by this subsection.
  4. Decisions of the director, his subordinates or employees, a local emergency management director, or the local director’s subordinates or employees, a rescue chief or the chief’s subordinates, concerning the allocation and assignment of personnel and equipment, and the strategies and tactics used, shall be the exercise of a discretionary, policy function for which neither the officer nor the state, county, urban-county, charter county, or city, or local emergency management agency-supervised operating unit formally affiliated with a local disaster and emergency services organization, shall be held liable in the absence of malice or bad faith, even when those decisions are made rapidly in response to the exigencies of an emergency.
  5. Any person owning or controlling real estate or other premises who voluntarily and without compensation grants a license or privilege, or otherwise permits the designation or use of the whole or any part of the real estate or premises for the purpose of sheltering persons during an actual, impending, mock, or practice disaster or emergency, together with his or her successors in interest, shall not be civilly liable for negligently causing the death of, or injury to, any person on or about the real estate or premises for loss of, or damage to, the property of that person. The immunity provided by this subsection shall not apply to the extent that the state, a political subdivision of the state, or a person or organization maintains liability insurance or self-insurance for an act or omission covered by this subsection. To the extent that the state, a political subdivision of the state, or a person or organization maintains liability insurance or self-insurance, sovereign immunity shall not be claimed with regard to an act or omission covered by this subsection.
  6. Subsection (3) of this section shall apply to a volunteer or auxiliary disaster and emergency response worker only if the volunteer or worker is enrolled or registered with a local disaster and emergency services organization or with the division in accordance with the division’s administrative regulations.
  7. While engaged in disaster and emergency response activity, volunteers and auxiliary disaster and emergency response workers enrolled or registered with a local disaster and emergency service organization or with the division in accordance with subsection (6) of this section shall have the same degree of responsibility for their actions and enjoy the same immunities as officers and employees of the state and its political subdivisions performing similar work, including the provisions of KRS 12.211 , 12.212 , and 12.215 , allowing the Attorney General to provide defense of any civil action brought against a volunteer enrolled or registered with a local disaster or emergency service organization or with the division due to an act or omission made in the scope and course of a disaster and emergency response activity.
    1. Notwithstanding subsections (3) and (6) of this section, a licensed professional engineer as defined in KRS 322.010 or an architect licensed under KRS Chapter 323, who voluntarily and without compensation provides architectural, structural, electrical, mechanical, or other professional services at the scene of a declared emergency, disaster, or catastrophe, shall not be liable for any personal injury, wrongful death, property damage, or other loss of any nature related to the licensed professional engineer’s or licensed architect’s acts, errors, or omissions in the performance of the services carried out: (8) (a) Notwithstanding subsections (3) and (6) of this section, a licensed professional engineer as defined in KRS 322.010 or an architect licensed under KRS Chapter 323, who voluntarily and without compensation provides architectural, structural, electrical, mechanical, or other professional services at the scene of a declared emergency, disaster, or catastrophe, shall not be liable for any personal injury, wrongful death, property damage, or other loss of any nature related to the licensed professional engineer’s or licensed architect’s acts, errors, or omissions in the performance of the services carried out:
      1. At the request of or with the approval of a federal, state, or local:
        1. Emergency management agency official with executive responsibility in the jurisdiction to coordinate disaster and emergency response activity;
        2. Fire chief or his or her designee; or
        3. Building inspection official; whom the licensed professional engineer or licensed architect believes to be acting in an official capacity;
      2. Within ninety (90) days following the end of the period for the declared emergency, disaster, or catastrophe, unless extended by the Governor under KRS 39A.100 ; and
      3. If the professional services arose out of the declared emergency, disaster, or catastrophe and if the licensed professional engineer or licensed architect acted as an ordinary reasonably prudent member of the profession would have acted under the same or similar circumstances.
    2. Nothing in this subsection shall provide immunity for wanton, willful, or intentional misconduct.

History. Enact. Acts 1998, ch. 488, § 2, effective July 15, 1998; 2014, ch. 129, § 1, effective July 15, 2014.

Research References and Practice Aids

Cross-References.

Suits against the Commonwealth, Const., § 231.

39A.283. Short title for KRS 39A.050, 39A.070, and 39A.285.

KRS 39A.050 , 39A.070 , and 39A.285 may be cited as the Antiterrorism Act of 2002.

History. Enact. Acts 2002, ch. 82, § 1, effective March 28, 2002; 2006, ch. 193, § 9, effective July 12, 2006.

39A.285. Legislative findings.

The General Assembly hereby finds that:

  1. No government by itself can guarantee perfect security from acts of war or terrorism.
  2. The security and well-being of the public depend not just on government, but rest in large measure upon individual citizens of the Commonwealth and their level of understanding, preparation, and vigilance.
  3. The safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God as set forth in the public speeches and proclamations of American Presidents, including Abraham Lincoln’s historic March 30, 1863, Presidential Proclamation urging Americans to pray and fast during one of the most dangerous hours in American history, and the text of President John F. Kennedy’s November 22, 1963, national security speech which concluded: “For as was written long ago: ‘Except the Lord keep the city, the watchman waketh but in vain.’”

History. Enact. Acts 2002, ch. 82, § 2, effective March 28, 2002.

NOTES TO DECISIONS

1. Constitutionality.

KRS 39A.285 and 39G.010 do not violate the First and Fourteenth Amendments, U.S. Const. amend. I and XIV, and Ky. Const. § 5 as the legislation merely pays lip service to a commonly held belief in the puissance of God; the legislation does not seek to advance religion, nor does it have the effect of advancing religion, but instead seeks to recognize the historical reliance on God for protection. Ky. Office of Homeland Sec. v. Christerson, 371 S.W.3d 754, 2011 Ky. App. LEXIS 209 (Ky. Ct. App. 2011), cert. denied, 568 U.S. 1228, 133 S. Ct. 1582, 185 L. Ed. 2d 577, 2013 U.S. LEXIS 2211 (U.S. 2013).

39A.287. Preparedness of Commonwealth to respond to acts of war or terrorism — Annual assessment. [Repealed.]

Compiler’s Note.

This section (Enact. Acts 2002, ch. 82, § 5, effective March 28, 2002; 2003, ch. 68, § 2, effective March 18, 2003) was repealed by Acts 2006, ch. 193, § 16, effective July 12, 2006.

39A.295. Taking of property or rights guaranteed by KRS 237.102 or 237.104 not authorized — Rights of relocated persons unaffected.

  1. Nothing in KRS 39A.100 , 39A.110 , 39A.120 , 39A.130 , or 39A.140 , or any other provision of this chapter, shall authorize a taking of property or the taking of any action which is in violation of KRS 237.102 or 237.104 .
  2. If a person is relocated to temporary housing before, during, or after a disaster or emergency, he or she shall still possess the rights guaranteed by KRS 237.102 and 237.104 .

History. Enact. Acts 2006, ch. 240, § 9, effective July 12, 2006.

39A.300. Disaster Relief Funding Program.

  1. The Disaster Relief Funding Program is established and shall be administered by the Division of Emergency Management in accordance with the provisions of this section.
  2. A Disaster Relief Funding Program trust fund is established as a separate revolving fund. The trust fund shall be administered by the Division of Emergency Management and the proceeds shall be used to support the Disaster Relief Funding Program.
      1. The Disaster Relief Funding Program trust fund may receive state appropriations, gifts, grants, federal funds, and any other funds both public and private. (3) (a) 1. The Disaster Relief Funding Program trust fund may receive state appropriations, gifts, grants, federal funds, and any other funds both public and private.
      2. The Disaster Relief Funding Program trust fund shall not publicly advertise for or solicit contributions from the general public that could potentially impact fundraising efforts of not-for-profit disaster relief agencies.
    1. Trust fund amounts not expended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year.
    2. Any interest earnings of the trust fund shall become a part of the trust fund and shall not lapse.
    3. Any funds deposited in the trust fund are hereby appropriated for the purposes set forth in this section.
  3. Eligibility for funds under the Disaster Relief Funding Program shall be limited to cities, counties, urban-counties, charter counties, and consolidated local governments of the Commonwealth and individuals who have disaster-related needs that cannot or will not be met by other relief agencies and who are residents of, and living in, the Commonwealth on the date of the emergency.
    1. Eligible applicants located in an area where there has been a declared emergency by the Governor, as defined in KRS 39A.020 , may receive financial assistance when federal authorities decline to issue a federal declaration of disaster and federal assistance will not be forthcoming. (5) (a) Eligible applicants located in an area where there has been a declared emergency by the Governor, as defined in KRS 39A.020 , may receive financial assistance when federal authorities decline to issue a federal declaration of disaster and federal assistance will not be forthcoming.
    2. Cities, counties, urban-counties, charter counties, and consolidated local governments of the Commonwealth that are eligible applicants may receive financial assistance to pay the state contribution required by the federal government in cases where there has been a federal declaration of disaster.
  4. The Division of Emergency Management shall promulgate administrative regulations necessary to carry out the provisions of this section.

History. Enact. Acts 2005, ch. 56, § 1, effective June 20, 2005.

Good Samaritan Act

39A.350. Definitions for KRS 39A.350 to 39A.366.

As used in KRS 39A.350 to 39A.366 :

  1. “Disaster relief organization” means an entity that provides emergency or disaster relief services that include health services provided by volunteer health practitioners and that:
    1. Is designated or recognized as a provider of those services pursuant to a disaster response and recovery plan adopted by an agency of the federal government or the Kentucky Division of Emergency Management; or
    2. Regularly plans and conducts its activities in coordination with an agency of the federal government or the Kentucky Division of Emergency Management;
  2. “Emergency” has the same meaning as used in KRS 39A.020 ;
  3. “Emergency declaration” has the same meaning as “declared emergency” as used in KRS 39A.020 ;
  4. “Emergency Management Assistance Compact” means the interstate compact established under KRS 39A.950 ;
  5. “Health facility” has the same meaning as used in KRS 216B.015 ;
  6. “Health practitioner” means an individual licensed under the laws of this or another state to provide health services;
  7. “Health services” means:
    1. The provision of treatment, care, advice or guidance, other services, or supplies related to the health or death of individuals or human populations, to the extent necessary to respond to an emergency, including:
      1. The following, concerning the physical or mental condition or functional status of an individual or affecting the structure or function of the body:
        1. Preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care; and
        2. Counseling, assessment, procedures, or other services;
      2. Sale or dispensing of a drug, a device, equipment, or another item to an individual in accordance with a prescription; and
      3. Funeral, cremation, cemetery, or other mortuary services; or
    2. The provision of treatment, care, advice or guidance, other services, or supplies related to the health or death of an animal or to animal populations, to the extent necessary to respond to an emergency, including:
      1. Diagnosis, treatment, or prevention of an animal disease, injury, or other physical or mental condition by the prescription, administration, or dispensing of vaccine, medicine, surgery, or therapy;
      2. Use of a procedure for reproductive management; and
      3. Monitoring and treatment of animal populations for diseases that have spread or demonstrate the potential to spread to humans;
  8. “Host entity” means an entity operating in this state which uses volunteer health practitioners to respond to an emergency;
  9. “License” means authorization by a state to engage in health services that are unlawful without the authorization. The term includes authorization under the laws of this state to an individual to provide health services based upon a national certification issued by a public or private entity;
  10. “Scope of practice” means the extent of the authorization to provide health services granted to a health practitioner by a license issued to the practitioner in the state in which the principal part of the practitioner’s services are rendered, including any conditions imposed by the licensing authority; and
  11. “Voluntary health practitioner” means a health practitioner who provides health services, whether or not the practitioner receives compensation for those services. The term does not include a practitioner who receives compensation pursuant to a preexisting employment relationship with a host entity or affiliate which requires the practitioner to provide health services in this state, unless the practitioner is not a resident of this state and is employed by a disaster relief organization providing services in this state while an emergency declaration is in effect.

History. Enact. Acts 2007, ch. 96, § 1, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). 2007 Ky. Acts ch. 96 (2007 House Bill 287) “established” KRS Chapter 39G and created new sections thereof. However, at the time that House Bill 287 was enacted another KRS Chapter 39G was already in existence. The Reviser of Statutes determined that the newly created sections would be more appropriately placed in KRS Chapter 39A and has placed Sections 1 to 9 of Acts ch. 96 within KRS Chapter 39A, under the authority of KRS 7.136(1)(a).

Research References and Practice Aids

ALR

Construction and application of “good samaritan” statutes, 68 A.L.R.4th 294.

Liability for negligence of ambulance attendants, emergency medical technicians, and the like, rendering medical care outside hospital, 16 A.L.R.5th 605.

Necessity of rendering medical assistance as circumstance permitting warrantless entry or search of building or premises, 58 A.L.R.6th 499.

39A.352. Volunteer health practitioners — Application of KRS 39A.350 to 39A.366.

KRS 39A.350 to 39A.366 shall apply to volunteer health practitioners registered with a registration system that complies with KRS 39A.356 and who provide health services in this state for a host entity while an emergency declaration is in effect.

History. Enact. Acts 2007, ch. 96, § 2, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). 2007 Ky. Acts ch. 96 (2007 House Bill 287) “established” KRS Chapter 39G and created new sections thereof. However, at the time that House Bill 287 was enacted another KRS Chapter 39G was already in existence. The Reviser of Statutes determined that the newly created sections would be more appropriately placed in KRS Chapter 39A and has placed Sections 1 to 9 of Acts ch. 96 within KRS Chapter 39A, under the authority of KRS 7.136(1)(a).

39A.354. Regulation of practice of volunteer health practitioners during a medical emergency.

  1. While an emergency declaration is in effect, the Cabinet for Health and Family Services in coordination with the Kentucky Division of Emergency Management and the appropriate Kentucky licensure boards may regulate:
    1. The duration and scope of practice by volunteer health practitioners;
    2. The geographical areas in which volunteer health practitioners may practice;
    3. The types of volunteer health practitioners who may practice; and
    4. Any other matters necessary to coordinate effectively the provision of health services during the emergency.
  2. An order issued pursuant to subsection (1) of this section may take effect immediately, without prior notice or comment.
  3. A host entity that uses volunteer health practitioners to provide health services in this state shall:
    1. Consult and coordinate its activities with the Cabinet for Health and Family Services to the extent practicable to provide for the efficient and effective use of volunteer health practitioners; and
    2. Comply with any laws relating to the management of emergency health services, in addition to KRS 39A.350 to 39A.366 .

History. Enact. Acts 2007, ch. 96, § 3, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). 2007 Ky. Acts ch. 96 (2007 House Bill 287) “established” KRS Chapter 39G and created new sections thereof. However, at the time that House Bill 287 was enacted another KRS Chapter 39G was already in existence. The Reviser of Statutes determined that the newly created sections would be more appropriately placed in KRS Chapter 39A and has placed Sections 1 to 9 of Acts ch. 96 within KRS Chapter 39A, under the authority of KRS 7.136(1)(a).

39A.356. Operation of emergency system for advanced registration of volunteer health practitioners — Relationship between Cabinet for Health and Family Services and other organizations — Funding.

  1. The Cabinet for Health and Family Services shall operate the emergency system for advanced registration of volunteer health practitioners. The system shall:
    1. Accept applications for the registration of volunteer health practitioners before or during an emergency;
    2. Include information about the licensure and good standing of health practitioners that is accessible by authorized persons; and
    3. Be capable of confirming the accuracy of information concerning whether a health practitioner is licensed and in good standing before health services are provided under KRS 39A.350 to 39A.366 .
  2. The following organizations may maintain a list consisting of trained and equipped emergency response, public health, and medical personnel:
    1. Local units formed under Section 300hh of Title 42 of the United States Code;
    2. Disaster relief organizations;
    3. Licensing boards;
    4. National or regional associations of licensing boards of health practitioners;
    5. Health facilities that provide comprehensive inpatient and outpatient health-care services, including a tertiary care and teaching hospital; or
    6. Governmental entities.
  3. The organizations listed in subsection (2) of this section shall develop a collaborative relationship with the cabinet for the purposes of KRS 39A.350 to 39A.366 and for the purposes of being recognized by the cabinet as a voluntary response resource.
  4. The cabinet may receive state appropriations, gifts, grants, federal funds, and any other public or private funds to establish or maintain the registration system established in subsection (1) of this section.
  5. While an emergency declaration is in effect, representatives of the Cabinet for Health and Family Services or a host entity may confirm whether volunteer health practitioners utilized in this state are registered with the registration system that complies with subsection (1) of this section. Confirmation is limited to obtaining identities of the practitioners from the system and determining whether the system indicates that the practitioners are licensed and in good standing.
  6. Upon request of a person in this state authorized under subsection (2) of this section, or a similarly authorized person in another state, a registration system located in this state shall notify the person of the identities of volunteer health practitioners and whether the practitioners are licensed and in good standing.

History. Enact. Acts 2007, ch. 96, § 4, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). 2007 Ky. Acts ch. 96 (2007 House Bill 287) “established” KRS Chapter 39G and created new sections thereof. However, at the time that House Bill 287 was enacted another KRS Chapter 39G was already in existence. The Reviser of Statutes determined that the newly created sections would be more appropriately placed in KRS Chapter 39A and has placed Sections 1 to 9 of Acts ch. 96 within KRS Chapter 39A, under the authority of KRS 7.136(1)(a).

39A.358. Volunteer practitioners to adhere to scope of practice for similarly licensed Kentucky practitioners.

A volunteer health practitioner shall adhere to the scope of practice for a similarly licensed practitioner established by the licensing provisions, practice acts, or other laws of this state.

History. Enact. Acts 2007, ch. 96, § 5, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). 2007 Ky. Acts ch. 96 (2007 House Bill 287) “established” KRS Chapter 39G and created new sections thereof. However, at the time that House Bill 287 was enacted another KRS Chapter 39G was already in existence. The Reviser of Statutes determined that the newly created sections would be more appropriately placed in KRS Chapter 39A and has placed Sections 1 to 9 of Acts ch. 96 within KRS Chapter 39A, under the authority of KRS 7.136(1)(a).

39A.360. Prohibition upon limitation of rights, privileges, or immunities provided to volunteer practitioners under other laws — KRS 39A.350 to 39A.366 not to affect requirements of the Emergency Management Assistance Compact.

  1. Sections 1 to 9 of this Act shall not limit rights, privileges, or immunities provided to volunteer health practitioners by laws other than KRS 39A.350 to 39A.366 .
  2. KRS 39A.350 to 39A.366 shall not affect requirements for the use of health practitioners pursuant to the Emergency Management Assistance Compact.

History. Enact. Acts 2007, ch. 96, § 6, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). 2007 Ky. Acts ch. 96 (2007 House Bill 287) “established” KRS Chapter 39G and created new sections thereof. However, at the time that House Bill 287 was enacted another KRS Chapter 39G was already in existence. The Reviser of Statutes determined that the newly created sections would be more appropriately placed in KRS Chapter 39A and has placed Sections 1 to 9 of Acts ch. 96 within KRS Chapter 39A, under the authority of KRS 7.136(1)(a).

39A.362. Administrative regulations for implementation of KRS 39A.350 to 39A.366 — Consultation among Cabinet for Health and Family Services, Kentucky Division of Emergency Management Assistance Compact.

The Cabinet for Health and Family Services may promulgate administrative regulations to implement KRS 39A.350 to 39A.366 . In doing so, the Cabinet for Health and Family Services shall consult with and consider the recommendations of the Kentucky Division of Emergency Management and shall also consult with and consider administrative regulations promulgated by similarly empowered agencies in other states to promote uniformity of application of KRS 39A.350 to 39A.366 and make the emergency response systems in the various states reasonably compatible.

History. Enact. Acts 2007, ch. 96, § 7, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). 2007 Ky. Acts ch. 96 (2007 House Bill 287) “established” KRS Chapter 39G and created new sections thereof. However, at the time that House Bill 287 was enacted another KRS Chapter 39G was already in existence. The Reviser of Statutes determined that the newly created sections would be more appropriately placed in KRS Chapter 39A and has placed Sections 1 to 9 of Acts ch. 96 within KRS Chapter 39A, under the authority of KRS 7.136(1)(a).

39A.364. Application and construction of KRS 39A.350 to 39A.366 — Need to promote uniformity of laws among enacting states.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

History. Enact. Acts 2007, ch. 96, § 8, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). 2007 Ky. Acts ch. 96 (2007 House Bill 287) “established” KRS Chapter 39G and created new sections thereof. However, at the time that House Bill 287 was enacted another KRS Chapter 39G was already in existence. The Reviser of Statutes determined that the newly created sections would be more appropriately placed in KRS Chapter 39A and has placed Sections 1 to 9 of Acts ch. 96 within KRS Chapter 39A, under the authority of KRS 7.136(1)(a).

39A.366. Good Samaritan Act of 2007 — Short title for KRS 39A.350 to 39A.366.

KRS 39A.350 to 39A.366 shall be known as the Good Samaritan Act of 2007.

History. Enact. Acts 2007, ch. 96, § 9, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). 2007 Ky. Acts ch. 96 (2007 House Bill 287) “established” KRS Chapter 39G and created new sections thereof. However, at the time that House Bill 287 was enacted another KRS Chapter 39G was already in existence. The Reviser of Statutes determined that the newly created sections would be more appropriately placed in KRS Chapter 39A and has placed Sections 1 to 9 of Acts ch. 96 within KRS Chapter 39A, under the authority of KRS 7.136(1)(a).

Emergency Management Assistance Compact

39A.950. Emergency Management Assistance Compact.

History. Enact. Acts 1998, ch. 117, § 1, effective July 15, 1998.

Emergency Management Assistance Compact

Article I. Purpose and Authorities.

This compact is made and entered into by and between the participating member states which enact this compact, hereinafter called party states. For the purposes of this compact, the term “states” is taken to mean the several states, the Commonwealth of Puerto Rico, the District of Columbia, and all United States territorial possessions.

The purpose of this compact is to provide for mutual assistance between the states entering into this compact in managing any emergency disaster that is duly declared by the Governor of the affected state, whether arising from natural disaster, technological hazard, man-made disaster, civil emergency aspects of resources shortages, community disorders, insurgency, or enemy attack.

This compact shall also provide for mutual cooperation in emergency-related exercises, testing, or other training activities using equipment and personnel simulating performance of any aspect of the giving and receiving of aid by party states or subdivisions of party states during emergencies, such actions occurring outside actual declared emergency periods. Mutual assistance in this compact may include the use of the states’ National Guard forces, either in accordance with the National Guard Mutual Assistance Compact or by mutual agreement between states.

Article II. General Implementation.

Each party state entering into this compact recognizes that many emergencies transcend political jurisdictional boundaries and that intergovernmental coordination is essential in managing these and other emergencies under this compact. Each state further recognizes that there will be emergencies which require immediate access and present procedures to apply outside resources to make a prompt and effective response to such an emergency. This is because few, if any, individual states have all the resources they may need in all types of emergencies or the capability of delivering resources to areas where emergencies exist.

The prompt, full, and effective utilization of resources of the participating states, including any resources on hand or available from the federal government or any other source, that are essential to the safety, care, and welfare of the people in the event of any emergency or disaster declared by a party state, shall be the underlying principle on which all articles of this compact shall be understood.

On behalf of the Governor of each state participating in the compact, the legally designated state official who is assigned responsibility for emergency management will be responsible for formulation of the appropriate interstate mutual aid plans and procedures necessary to implement this compact.

Article III. Party State Responsibilities.

  1. It shall be the responsibility of each party state to formulate procedural plans and programs for interstate cooperation in the performance of the responsibilities listed in this article. In formulating such plans, and in carrying them out, the party states, insofar as practical, shall:
    1. Review individual state hazards analyses and, to the extent reasonably possible, determine all those potential emergencies the party states might jointly suffer, whether due to natural disaster, technological hazard, man-made disaster, emergency aspects of resources shortages, civil disorders, insurgency, or enemy attack;
    2. Review party states’ individual emergency plans and develop a plan which will determine the mechanism for the interstate management and provision of assistance concerning any potential emergency;
    3. Develop interstate procedures to fill any identified gaps and to resolve any identified inconsistencies or overlaps in existing or developed plans;
    4. Assist in warning communities adjacent to or crossing the state boundaries;
    5. Protect and assure uninterrupted delivery of services, medicines, water, food, energy and fuel, search and rescue, and critical lifeline equipment, services, and resources, both human and material;
    6. Inventory and set procedures for the interstate loan and delivery of human and material resources, together with procedures for reimbursement or forgiveness; and
    7. Provide, to the extent authorized by law, for temporary suspension of any statutes or ordinances that restrict the implementation of the above responsibilities.
  2. The authorized representative of a party state may request assistance to another party state by contracting the authorized representative of that state. The provisions of this compact shall only apply to requests for assistance made by and to authorized representatives. Requests may be verbal or in writing. If verbal, the request shall be confirmed in writing within thirty (30) days of the verbal request. Requests shall provide the following information:
    1. A description of the emergency service function for which assistance is needed, including, but not limited to, fire services, law enforcement, emergency medical, transportation, communications, public works and engineering, building, inspection, planning and information assistance, mass care, resource support, health and medical services, and search and rescue;
    2. The amount and type of personnel, equipment, materials and supplies needed, and a reasonable estimate of the length of time they will be needed and;
    3. The specific place and time for staging of the assisting party’s response and a point of contact at that location.
  3. There shall be frequent consultation between state officials who have assigned emergency management responsibilities and other appropriate representatives of the party states with affected jurisdictions and the United States Government, with free exchange of information, plans, and resource records relating to emergency capabilities.

Article IV. Limitations.

Any party state requested to render mutual aid or conduct exercises and training for mutual aid shall take such action as is necessary to provide and make available the resources covered by this compact in accordance with the terms hereof; provided that it is understood that the state rendering aid may withhold resources to the extent necessary to provide reasonable protection for such state.

Each party state shall afford to the emergency forces of any party state, while operating within its state limits under the terms and conditions of this compact, the same powers, except that of arrest unless specifically authorized by the receiving state, duties, rights, and privileges as are afforded forces of the state in which they are performing emergency services. Emergency forces will continue under the command and control of their regular leaders, but the organizational units will come under the operational control of the emergency services authorities of the state receiving assistance. These conditions may be activated, as needed, only subsequent to a declaration of a state emergency or disaster by the Governor of the party state that is to receive assistance or upon commencement of exercises or training for mutual aid and shall continue so long as the exercises or training for mutual aid are in progress, the state of emergency or disaster remains in effect, or loaned resources remain in the receiving state, whichever is longer.

Article V. Licenses and Permits.

Whenever any person holds a license, certificate, or other permit issued by any party state to the compact evidencing the meeting of qualifications for professional, mechanical, or other skills, and when such assistance is requested by the receiving state party, such person shall be deemed licensed, certified, or permitted by the state requesting assistance to render aid involving such skill to meet a declared emergency or disaster, subject to such limitations and conditions as the Governor of the requesting state may prescribe by executive order or otherwise.

Article VI. Liability

Officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for tort liability and immunity purposes. No party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article shall not include willful misconduct, gross negligence, or recklessness.

Article VII. Supplementary Agreements.

Inasmuch as it is probable that the pattern and detail of the machinery for mutual aid among two or more states may differ from that among the states that are party hereto, this compact contains elements of a broad base common to all states, and nothing herein shall preclude any state entering into supplementary agreements with another state or affect any other agreements already in force between states. Supplementary agreements may comprehend, but shall not be limited to, provisions for evacuation and reception of injured and other persons and the exchange of medical, fire, police, public utility, reconnaissance, welfare, transportation and communications personnel, and equipment and supplies.

Article VIII. Compensation.

Each party state shall provide for the payment of compensation and death benefits to injured members of the emergency forces of that state and representatives of deceased members of such forces in case such members sustain injuries or are killed while rendering aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within their own state.

Article IX. Reimbursement.

Any party state rendering aid in another state pursuant to this compact shall be reimbursed by the party state receiving such aid for any loss or damage to or expense incurred in the operation of any equipment and the provision of any service in answering a request for aid and for the costs incurred in connection with such requests; provided, that any aiding party state may assume in whole or in part such loss, damage, expense, or other cost, or may loan such equipment or donate such services to the receiving party state without charge or cost; and provided further, that any two or more party states may enter into supplementary agreements establishing a different allocation of costs among those states. Article VIII expenses shall not be reimbursable under this article.

Article X. Evacuation.

Plans for the orderly evacuation and interstate reception for portions of the civilian population as the result of any emergency or disaster of sufficient proportions to so warrant, shall be worked out and maintained between the party states and the emergency management/services directors of the various jurisdictions where any type of incident requiring evacuations might occur. Such plans shall be put into effect by request of the state from which evacuees come and shall include the manner of transporting such evacuees, the number of evacuees to be received in different areas, the manner in which food, clothing, housing, and medical care will be provided, the registration of the evacuees, the providing of facilities for the notification of relatives or friends, and the forwarding of such evacuees to other areas or the bringing in of additional materials, supplies, and all other relevant factors. Such plans shall provide that the party state receiving evacuees and the party state from which the evacuees come shall mutually agree as to reimbursement of out-of-pocket expenses incurred in receiving and caring for such evacuees, for expenditures for transportation, food, clothing, medicines, and medical care, and like items. Such expenditures shall be reimbursed as agreed by the party state from which the evacuees come. After the termination of the emergency or disaster, the party state from which the evacuees come shall assume the responsibility for the ultimate support of repatriation of such evacuees.

Article XI. Implementation.

  1. This compact shall become effective immediately upon its enactment into law by any two states. Thereafter, this compact shall become effective as to any other state upon enactment by such state.
  2. Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until thirty (30) days after the Governor of the withdrawing state has given notice in writing of such withdrawal to the Governors of all other party states. Such action shall not relieve the withdrawing state from obligations assumed hereunder prior to the effective date of withdrawal.
  3. Duly authenticated copies of this compact and of such supplementary agreements as may be entered into shall, at the time of their approval, be deposited with each of the party states and with the Federal Emergency Management Agency and other appropriate agencies of the United States Government.

Article XII. Validity.

This compact shall be construed to effectuate the purposes stated in Article I. If any provision of this compact is declared unconstitutional, or the applicability thereof to any person or circumstances is held invalid, the constitutionality of the remainder of this compact and the applicability thereof to other persons and circumstances shall not be affected.

Article XIII. Additional Provisions.

Nothing in this compact shall authorize or permit the use of military force by the National Guard of a state at any place outside that state in any emergency for which the President is authorized by law to call into federal service the militia, or for any purpose for which the use of the Army or the Air Force would in the absence of express statutory authorization be prohibited under Section 1385 of Title 18 of the United States Code.

Compiler’s Notes.

1998 Ky. Acts ch. 117, § 4 provided: “The participation of the Commonwealth of Kentucky in the Interstate Emergency Management and Disaster Compact set forth in KRS 39.450 is terminated.”

Penalties

39A.990. Penalty.

Any person violating any provision of this chapter or any administrative regulation or order promulgated pursuant to this chapter for which another penalty is not specified shall be guilty of a Class A misdemeanor.

History. Enact. Acts 1998, ch. 226, § 27, effective July 15, 1998.

Research References and Practice Aids

Cross-References.

Sentence of imprisonment for misdemeanor, KRS 532.090 .

CHAPTER 39B Local Emergency Management Programs

39B.010. Local emergency management to be maintained — Unified local emergency management agency.

  1. Each city, county, urban-county, charter county government, or counties acting jointly under the provisions of subsection (2)(b) of this section, of this Commonwealth shall create, support, and maintain a local emergency management agency, which shall serve the public safety interest of the local government within the territorial boundaries of the city, county, or counties where the agency is created. Each local emergency management agency shall develop, implement, and maintain a local comprehensive emergency management program, including a local emergency operations plan, in accordance with the provisions of KRS Chapters 39A to 39F. The local emergency management agency shall be an integral component of the statewide integrated emergency management system of this Commonwealth, and shall fully comply with all applicable provisions of KRS Chapters 39A to 39F, the comprehensive emergency management program requirements of the Commonwealth, the provisions of the Kentucky Emergency Operations Plan, and all administrative regulations promulgated by the Division of Emergency Management.
    1. Each county government, and the urban-county, charter county, or city governments located within the territorial boundaries of a county, are encouraged to jointly create a single, unified local emergency management agency to serve all local governments collectively, and therefore may, in lieu of creating individual and separate local agencies, jointly create a single, unified local emergency management agency, provided the agency and its program: (2) (a) Each county government, and the urban-county, charter county, or city governments located within the territorial boundaries of a county, are encouraged to jointly create a single, unified local emergency management agency to serve all local governments collectively, and therefore may, in lieu of creating individual and separate local agencies, jointly create a single, unified local emergency management agency, provided the agency and its program:
      1. Fully comply with all the provisions of KRS Chapters 39A to 39F;
      2. Comply with the Interlocal Cooperation Act or locally adopted memorandums of agreement, as necessary and appropriate; and
      3. Are determined to be in compliance with all requirements of KRS Chapters 39A to 39F by the director of the Division of Emergency Management.
    2. Two (2) or more contiguous county governments, including or excluding the cities within their jurisdictions, may jointly create a single, unified local emergency management agency to serve the counties and participating cities within those counties collectively, and therefore may, in lieu of creating individual and separate local agencies, jointly create a single, unified local emergency management agency, provided the agency and its program meet the requirements set out in subparagraphs 1. to 3. of paragraph (a) of this subsection.
  2. The local emergency management agency shall be an organizational unit of the executive branch of city, county, urban-county, charter county government, or counties acting jointly under the provisions of subsection (2)(b) of this section and shall have primary jurisdiction, responsibility, and authority for all matters pertaining to the local comprehensive emergency management program and, under the general supervision of the local emergency management director, shall serve as a direct function of the office of county judge/executive or mayor. In the case of counties acting jointly pursuant to this section, the supervision of the agency shall be set out by agreement or ordinance approved by the legislative body of each county. In accordance with the policies of the state-local finance officer, a separate emergency management agency fund account shall be designated and included in the city, county, and urban-county or charter county budget ledgers, and all financial matters of a local emergency management agency, involving funds provided through the Division of Emergency Management, shall be handled through the county, urban-county, or charter county treasury and financial system.
  3. City, county, and urban-county or charter county governments may use the term “emergency management” in a manner or form appropriate to constitute and designate the official name of the local emergency management agency established pursuant to this chapter, except for any use of the term “Division of Emergency Management” specified to constitute and designate the official name of the state emergency management agency pursuant to KRS 39A.030 . The term “emergency management” may be used in a manner or form appropriate to constitute and designate the official name of a local emergency management council, or the statewide association of emergency management agencies or personnel, but shall not be utilized by, assigned to, or otherwise specified by any local unit, agency, or department, or any political subdivision of the Commonwealth in any manner or form to constitute or designate the official name of the local unit, agency, or department, or political subdivision, except as authorized in this subsection.
  4. All local emergency management agencies or local disaster and emergency services organizations in the Commonwealth, and the local directors, and members of each, shall, for all purposes, be under the direction of the director of the division, and of the Governor when the latter deems that action necessary.

History. Enact. Acts 1998, ch. 226, § 29, effective July 15, 1998; 2014, ch. 99, § 3, effective July 15, 2014.

Research References and Practice Aids

Cross-References.

Interlocal Cooperation Act, KRS 65.210 to 65.300 .

39B.020. Local emergency management director — Joint appointment of a single local emergency management director — Qualifications.

  1. The county judge/executive of each county, the mayor of each city, consolidated local government, or urban-county government, or the chief executive of other local government, within thirty (30) days of assuming office following their election, shall appoint a local emergency management director who meets all qualifications criteria pursuant to KRS Chapters 39A to 39F, and shall immediately notify the director of the Division of Emergency Management of the appointment.
  2. Except in a county containing a consolidated local government, in lieu of appointing a separate local emergency management director for each jurisdiction, the county judge/executive of a county and mayors of cities or urban-county governments, or the chief executive of other local government located within the territorial boundaries of the same county, or two (2) or more counties acting jointly under the provisions of KRS 39B.010 may jointly appoint a single local emergency management director who meets all the qualifications criteria pursuant to KRS Chapters 39A to 39F. It is the policy of the Division of Emergency Management to encourage and support the joint appointment of a single local director in each territorial county, or counties acting jointly, of the Commonwealth. The duly appointed local emergency management director shall direct, control, and manage all the affairs of the local emergency management agency and comprehensive emergency management program of the jurisdictions wherein appointed.
  3. A local emergency management director appointed under the provisions of subsection (1) or (2) of this section shall serve at the pleasure of the appointing authority, but shall serve not longer than four (4) years without reappointment and, in addition to any local requirements, shall meet the qualification requirements listed in this subsection:
    1. The local director shall be a high school graduate with an additional three (3) years of experience in business administration, government planning, industrial or commercial planning, public safety, management of emergency services, or related community or governmental service. Management level experience may not be substituted for high school education. Education at an accredited college or university may be substituted for experience on a year-for-year basis.
    2. The local director shall be a resident of the Commonwealth of Kentucky and a county served.
    3. The local director shall hold no partisan elective office, nor file for, seek, or campaign for any partisan elective office while holding the position of local emergency management director.
    4. The local director shall be routinely available to respond to emergency scenes, command posts, or emergency operations centers to coordinate emergency response of all local public and private agencies and organizations; to perform necessary administrative, planning, and organizational duties; to complete and submit required reports, records, emergency operations plans, and documents; to attend required training; and to attend meetings convened by the appointing authority or the area manager of the division.
      1. If the local director is also a full-time or part-time employee of the federal or state government, the local director shall have written authorization from the appropriate appointing authority to hold the position of local emergency management director and to fully comply with the provisions of paragraph (d) of this subsection. A copy of the written authorization shall be submitted to the division at the time of appointment.
      2. If the local director is also a full-time or part-time employee of a city, county, urban-county government, or charter county government in another capacity, that government shall enact an official city or county order or ordinance specifying that the individual appointed as local emergency management director shall fully comply with the provisions of paragraph (d) of this subsection. The order or ordinance shall also specify that the individual, when performing the duties of local emergency management director, shall relinquish all authorities and responsibilities associated with any other governmental employment and shall indicate another person, by name or position, to assume those authorities and responsibilities until such time as the local director shall cease to function as local emergency management director. A copy of the enacted order or ordinance shall be submitted to the division at the time of appointment. The city, county, urban-county government, or charter county government shall not seek reimbursement from the division for the local director’s salary for any time spent in another capacity.
      3. If the local director is also a full-time or part-time employee in the private sector, the local director shall have a letter from each employer stating that the local director shall, without penalty or exception, be permitted to fully comply with the provisions of paragraph (d) of this subsection. A copy of the letter from each employer shall be submitted to the division at the time of appointment.
      4. If the local director is self-employed, the local director shall certify at the time of appointment, by letter to the director of the division, that the local director’s schedule shall permit full compliance with the provisions of paragraph (d) of this subsection.
  4. A local director whose salary has been reimbursed by the division prior to January 1, 1994, shall not be subject to the provisions of subsection (3)(a) of this section, so long as remaining continuously in that position for the appointing jurisdiction.
  5. A local director whose salary is reimbursed in part or in full by the Division of Emergency Management pursuant to KRS 39C.010 and 39C.020 , shall also meet any other requirements of KRS Chapters 39A to 39F and any requirements which may be imposed by the Federal Emergency Management Agency, or its successor.

History. Enact. Acts 1998, ch. 226, § 30, effective July 15, 1998; 2002, ch. 346, § 9, effective July 15, 2002; 2014, ch. 99, § 4, effective July 15, 2014.

39B.030. Powers, authorities, rights, and duties of local director — Development of organizational structure.

A local emergency management director, appointed pursuant to this chapter, shall have the following powers, authorities, rights, and duties:

  1. To represent the county judge/executive, or chief executive officers in the case of counties acting jointly under KRS 39B.010 , or mayor on all matters pertaining to the comprehensive emergency management program and the disaster and emergency response of the county, counties acting jointly under KRS 39B.010 , urban-county, charter county, or the county or counties acting jointly and the cities therein, unless there is a local director appointed for a city in accordance with this chapter, who represents that city;
  2. To be the executive head and chief administrative officer of the local emergency management agency, and to direct, control, supervise, and manage, the development, preparation, organization, administration, operation, implementation, and maintenance of the comprehensive emergency management program of the county, counties acting jointly under KRS 39B.010 , urban-county government, charter county government, or the county or counties acting jointly and the cities therein, and to coordinate all local disaster and emergency response, unless there is a local director appointed for a city in accordance with this chapter, who represents that city;
  3. To develop and maintain a local emergency operations plan entitled “county emergency operations plan,” or “joint counties emergency operations plan,” or “city emergency operations plan,” or “city/county emergency operations plan,” as appropriate, the provisions of which shall establish the organizational structure to be utilized by local government to manage disaster and emergency response, and set forth the policies, procedures, and guidelines for the coordination of all disaster and emergency response in the county and all the cities therein for an emergency, declared emergency, disaster, or catastrophe. The local emergency operations plan shall be developed consistent with the appropriate provisions of the Kentucky emergency operations plan, the provisions of KRS Chapters 39A to 39F, planning guidance issued by the division, and administrative regulations promulgated by the division. The local emergency operations plan shall be officially adopted by signed executive order of the county judge/executive or mayor, or in the case of counties acting jointly under KRS 39B.010 , by all chief executive officers of the participating counties. The executive order shall be filed with the office of the clerk for the local jurisdiction and a copy placed in the local emergency operations plan. A copy of the local emergency operations plan, and all revisions or updates thereto, shall be submitted by the local director to the Division of Emergency Management for concurrence review and reference. The local emergency operations plan shall be a component of the integrated emergency management system of the Commonwealth, and subject to the Kentucky Emergency Operations Plan, shall be the primary local strategic planning document governing the coordination of all disaster and emergency response in the county, counties acting jointly under KRS 39B.010 , city, or the county or counties acting jointly and the cities therein, and shall be applicable to, utilized by, and adhered to by, all local emergency response departments, agencies, and officials of the local disaster and emergency services organization in the county and the cities therein. The local emergency operations plan shall be updated not less than annually;
  4. To establish and maintain a local disaster and emergency services organization in accordance with the local emergency operations plan, the Kentucky Emergency Operations Plan, and the provisions of KRS 39B.050 ;
  5. To notify the county judge/executive, mayor, or executive authority of other local governments and the Division of Emergency Management immediately of the occurrence, or threatened or impending occurrence, of any emergency or disaster, and recommend any emergency actions which should be executed;
  6. To be the chief advisor to, and the primary on-scene representative of, the county judge/executive, mayor, or executive authority of other local governments in the event of occurrence of any emergency, declared emergency, disaster, or catastrophe within the local jurisdiction;
    1. To respond and have full access to the scenes of an emergency, declared emergency, disaster, or catastrophe to immediately investigate, analyze, or assess the seriousness of all situations; to coordinate the establishment and operation of a local incident command or management system; to execute the local emergency operations plan, as appropriate; to activate the local emergency operations center or on-scene command post; to convene meetings, gather information, conduct briefings, and to notify the division of on-going response actions; and fully expedite and coordinate the disaster and emergency response of all local public and private agencies, or to have a staff assistant do so; (7) (a) To respond and have full access to the scenes of an emergency, declared emergency, disaster, or catastrophe to immediately investigate, analyze, or assess the seriousness of all situations; to coordinate the establishment and operation of a local incident command or management system; to execute the local emergency operations plan, as appropriate; to activate the local emergency operations center or on-scene command post; to convene meetings, gather information, conduct briefings, and to notify the division of on-going response actions; and fully expedite and coordinate the disaster and emergency response of all local public and private agencies, or to have a staff assistant do so;
    2. At a declared emergency or declared disaster, at the direction of the county judge/executive or mayor, as appropriate, to take or direct immediate actions to protect public safety; however, this paragraph shall not preclude a local director from providing any assistance that he is requested to, and is able to, provide at any emergency.
  7. To act as an official representative of the division in emergency situations when specifically requested by the director;
  8. To report directly to the county judge/executive, mayor, or executive authority of other local governments, act in an official policy-making capacity when carrying out the duties of local emergency management director, and exercise full signatory authority for execution of all contracts, agreements, or other official documents pertaining to the administration and operation of the local emergency management agency and program;
  9. To direct or supervise all paid or volunteer emergency management staff assistants or other local emergency management agency workers, and all operating units or personnel officially appointed and affiliated with the local disaster and emergency services organization pursuant to KRS 39B.070 ;
  10. To prepare and submit regular or scheduled program activity reports to the area manager of the division and local chief executives;
  11. To execute bond, if appropriate, in the amount determined by the appointing authorities;
  12. Annually, by the first day of March, to prepare and submit a program budget request to the county judge/executive and mayor;
  13. Annually, by the fifteenth day of July, to prepare and submit to the division a locally-approved, fiscal year program paper and budget request;
  14. To perform all administrative, organizational, or operational tasks required by the provisions of this chapter, or administrative regulations, or program guidance pertaining thereto;
  15. To be a registered member of the Kentucky Emergency Management Association or other professional emergency management organization; and
  16. To carry out all other emergency management-related duties as required by KRS Chapters 39A to 39F, administrative regulations, or local orders or ordinances.

History. Enact. Acts 1998, ch. 226, § 31, effective July 15, 1998; 2014, ch. 99, § 5, effective July 15, 2014.

39B.040. Mutual aid arrangements with special districts and public and private agencies.

  1. The local director of each local emergency management agency in the Commonwealth may develop or cause to be developed mutual aid arrangements with special districts and other public and private agencies within this Commonwealth for reciprocal disaster and emergency response aid and assistance in case of disaster or other emergency too great to be dealt with unassisted. The arrangements shall be consistent with the Kentucky Emergency Operations Plan, the local emergency operations plan, and the comprehensive emergency management program of the Commonwealth, and in time of emergency it shall be the duty of each local disaster and emergency services organizational unit, including each special district, and each public or private agency, to render assistance in accordance with the provisions of these mutual aid arrangements.
  2. The local director of each local emergency management agency in the Commonwealth may assist the division, acting on behalf of the Governor, in negotiation of reciprocal mutual aid agreements between the Commonwealth and other states, including foreign states or provinces, or their political subdivisions, and shall carry out the arrangements or any agreements relating to the local political subdivision.

History. Enact. Acts 1998, ch. 226, § 32, effective July 15, 1998.

39B.045. Mutual aid agreements between Kentucky or its agencies or political subdivisions and units of government from another state.

  1. As used in this section, “emergency” means an occurrence or condition in a jurisdiction within or outside of the Commonwealth that results in a situation:
    1. That poses an immediate risk to health, life, property, or the environment;
    2. That is not initially at the level of a disaster or emergency that requires a local or state declaration of disaster or emergency, even if such a local or state declaration is made after the initial request for mutual aid; and
    3. For which the governing jurisdiction determines:
      1. The situation exceeds its ability to render appropriate aid; and
      2. That it is in the public’s best interest to request mutual aid from a governmental jurisdiction or private entity in another state with which the governing jurisdiction has entered into a mutual aid agreement under this section.
    1. As used in this section, “emergency responder” means a person: (2) (a) As used in this section, “emergency responder” means a person:
      1. Who is required to possess a license, certificate, permit, or other official recognition for the person’s expertise in a particular field or area of knowledge; and
      2. Whose assistance is desirable during an emergency.
    2. The term includes but is not limited to the following:
      1. Firefighters, hazardous materials personnel, specialized rescue personnel, extrication personnel, water rescue personnel, and other specialized personnel;
      2. Emergency medical services personnel;
      3. Physicians;
      4. Nurses;
      5. Mental health practitioners, veterinary practitioners, and other public health practitioners;
      6. Emergency management personnel; and
      7. Public works personnel.
  2. As used in this section, “political subdivision” has the same meaning as in KRS 39D.040 .
    1. In order to more adequately address emergencies that extend or exceed a jurisdiction’s emergency response capabilities, either without rising to the level of a state or local declaration of a state of disaster or emergency, or in the initial stages of an event that may later become a declared state of disaster or emergency, the state and any of its departments or agencies, or any political subdivision, may enter into written mutual aid agreements with units of government from another state that provide coordination of communications for, training for, response to, and standby for planned events and emergency responses within the Commonwealth of Kentucky or in another state. (4) (a) In order to more adequately address emergencies that extend or exceed a jurisdiction’s emergency response capabilities, either without rising to the level of a state or local declaration of a state of disaster or emergency, or in the initial stages of an event that may later become a declared state of disaster or emergency, the state and any of its departments or agencies, or any political subdivision, may enter into written mutual aid agreements with units of government from another state that provide coordination of communications for, training for, response to, and standby for planned events and emergency responses within the Commonwealth of Kentucky or in another state.
    2. When an emergency responder from outside Kentucky is engaged in training, standby, and emergency response in accordance with a mutual aid agreement under this section, the emergency responder from outside Kentucky is permitted to provide services within Kentucky in accordance with this section and the terms of the mutual aid agreement under this section.
    3. This section shall not be construed to prohibit a private entity or its employees from participating in the provision of mutual aid if:
      1. The participating political subdivision approves the participation of the private entity; and
      2. A contract between the political subdivision and the participating private entity permits the participation.
  3. If an emergency responder from a jurisdiction outside Kentucky holds a license, certification, or other permit recognized or issued by another state, that emergency responder is considered to be licensed, certified, and permitted in Kentucky to render aid involving such skill to meet the request for assistance under a mutual aid agreement signed pursuant to this section, so long as the emergency responder acts within the scope of:
    1. The emergency responder’s license, certificate, or permit; and
    2. What would be authorized by an equivalent license, certificate, or permit from or recognized by the Commonwealth of Kentucky.
  4. All immunities from liability available to Kentucky political subdivisions, other units of local government in Kentucky, and their officers, agents, and employees within Kentucky are extended to political subdivisions and other units of local government from another state, and their officers, agents, and employees, who under a mutual aid agreement authorized by this section are:
    1. Providing mutual aid; or
    2. Engaged in training and exercises.
    1. Emergency responders rendering mutual aid under a mutual aid agreement authorized by this section remain employees and agents of their respective employers and jurisdictions. (7) (a) Emergency responders rendering mutual aid under a mutual aid agreement authorized by this section remain employees and agents of their respective employers and jurisdictions.
    2. A mutual aid agreement entered into under this section does not create an employment relationship between the jurisdiction requesting aid and the employees and agents of the jurisdiction rendering aid.
    3. All pension, relief, disability, death, worker’s compensation, and all other benefits enjoyed by emergency responders rendering mutual aid under a mutual aid agreement authorized by this section extend to the services the emergency responders perform outside their respective jurisdictions, as if those services had been rendered in their own jurisdiction.
  5. A mutual aid agreement under this section shall be approved by each political subdivision entering into the mutual aid agreement. A copy of the mutual aid agreement, including any amendments, shall be delivered to the fiscal court or legislative body having countywide jurisdiction and the county emergency management agency of that jurisdiction.
  6. This section shall not be construed to limit, modify, or abridge:
    1. Kentucky’s emergency management agency statutes; or
    2. The emergency management assistance compact under KRS 39A.950 .

History. Enact. Acts 2012, ch. 126, § 1, effective July 12, 2012.

39B.050. Local disaster and emergency services organization — Membership — Responsibility.

  1. Each local emergency management director shall establish and maintain a local disaster and emergency services organization in accordance with a city or county or city/county or joint counties emergency operations plan required pursuant to KRS Chapters 39A to 39F. The local disaster and emergency services organization shall be comprised of the following members and participants:
    1. The county judge/executive, or chief executive officers when counties are acting jointly under KRS 39B.010 , and mayors, or the chief executive of other local governments;
    2. Elected legislative officials of the county and cities;
    3. The local emergency management director and all local emergency management agency staff members and workers, or emergency management agency-supervised operating units or personnel;
    4. All regular or volunteer public safety or emergency services department heads or agency chiefs in the cities or county;
    5. All regular or volunteer public safety or emergency services department or agency members in the cities or county;
    6. All districts, corporations, public agencies, groups, or political subdivisions of the state and special districts within the county or the cities thereof, which are organized under the laws of the Commonwealth to provide an emergency response service or related function in the interest of public safety; and
    7. All private sector personnel, agencies, organizations, companies, businesses, or individuals and citizens who agree to provide their assets, resources, talents, services, or supplies in aid to the local disaster and emergency services organization of the cities or county in accordance with the approved local emergency operations plan of the city, county, or counties acting jointly under KRS 39B.010 , urban-county government, or charter county government.
  2. The local disaster and emergency services organization shall have responsibility for the performance of all disaster and emergency response functions contemplated in KRS 39A.010 , 39A.020 , or 39A.030 and as listed or assigned in the city, county, or counties acting jointly under KRS 39B.010 , or city/county emergency operations plan, except that the Division of Forestry of the Energy and Environment Cabinet shall have primary responsibility for directing the implementation of all forest fire emergency responses consistent with KRS Chapter 149. Disaster and emergency response functions may be assigned within the local disaster and emergency services organization to existing agencies and organizations, public and private. It shall not be necessary for the local disaster and emergency services organization to create, provide, or maintain an additional or auxiliary capability for any existing function or service deemed adequate to local needs.
  3. The local disaster and emergency services organization shall be the primary disaster and emergency response force of city, county, or counties acting jointly under KRS 39B.010 , urban-county government, or charter county government and an organizational component of the integrated emergency management system of the Commonwealth. The local emergency management director shall have primary responsibility for the coordination of all disaster and emergency response of the local disaster and emergency services organization for an emergency, declared emergency, disaster, or catastrophe.

History. Enact. Acts 1998, ch. 226, § 33, effective July 15, 1998; 2010, ch. 24, § 30, effective July 15, 2010; 2014, ch. 99, § 6, effective July 15, 2014.

39B.060. Emergency operations plan.

  1. The city or county, joint county when counties are acting jointly under KRS 39B.010 , or city/county emergency operations plan developed pursuant to the provisions of KRS Chapters 39A to 39F shall include adequate provisions or procedures to assess, mitigate, prepare for, respond to, and recover from all disaster or emergency incidents contemplated by KRS 39A.010 , 39A.020 , or 39A.030 and shall provide for all functions contemplated by these sections.
  2. The local emergency operations plan shall be submitted by the local director to the county judge/executive, or chief executive officers of each participating county when counties are acting jointly under KRS 39B.010 , mayor, or chief executive of other local governments immediately following each regular election for these offices, for approval and adoption by the local chief executives through issuance of an executive order pursuant to the provisions of KRS Chapters 39A to 39F.
  3. In the event of a conflict between a city emergency operations plan and a county emergency operations plan and decisions made thereunder:
    1. The decision made pursuant to the county plan shall prevail if the incident, its consequences, or the threat thereof, extend beyond the boundaries of the city;
    2. The decision made pursuant to the city plan shall prevail if the incident, its consequences, or the threat of the incident, do not extend beyond the boundaries of the city; and
    3. The same precedence shall govern plans of urban-counties and charter counties.
  4. The joint plan established by counties acting jointly pursuant to KRS 39B.010 shall incorporate a joint decision-making process whereby the chief executive officers, or their designees, use the integrated emergency management system and the unified incident command system set out in KRS 39A.230 to deal with any incident.

History. Enact. Acts 1998, ch. 226, § 34, effective July 15, 1998; 2014, ch. 99, § 7, effective July 15, 2014.

39B.070. Execution of emergency powers — Emergency operations centers — Waiver of procedures and formalities.

Each city, county, urban-county government, or charter county government may:

  1. Through the county judge/executive of a county other than an urban-county government, mayor of an urban-county government, chief executive of other local governments, or mayor of a city, or their designees as provided by ordinance, declare in writing a state of emergency when required, and thereafter execute any emergency powers granted under this chapter to provide for adequate and appropriate response to any occurrence or situation or any impending event or situation resulting from any of the situations or events contemplated by KRS 39A.010 , 39A.020 , or 39A.030 ;
  2. Appropriate and expend funds, make contracts, enact cost-recovery ordinances, obtain and distribute equipment, materials, and supplies for disaster and emergency response purposes; provide for the health and safety of persons and property, including emergency assistance to the victims of any disaster or emergency; review or approve local emergency operations plans; and enact orders or ordinances pertaining to local emergency management programs in accordance with the policies and plans prescribed by the federal and state emergency management agencies and the provisions of KRS Chapters 39A to 39F;
  3. Appoint, employ, remove, or provide, with or without compensation, staff assistants to the local emergency management director, and clerical, administrative, technical or other local emergency management agency staff personnel, and local emergency management agency-supervised operating units officially affiliated with the local disaster and emergency services organization by city or county order or ordinance including rescue squads, auxiliary fire, police, and medical personnel, urban search and rescue teams, severe weather spotters teams, damage assessment teams, amateur radio or communications personnel, or other emergency response groups, teams, or personnel, and other disaster and emergency response workers;
  4. Establish a primary and one (1) or more secondary emergency operations centers or on-scene command posts to serve as official local government command posts during an emergency, declared emergency, disaster, or catastrophe;
  5. Subject to the order of the Governor, or the chief executive of the county, urban-county government, charter county government, or city, to assign and make available for duty, the employees, property, or equipment of the county or city relating to firefighting, engineering, rescue, health, medical and related services, police, transportation, construction, and similar items or services for disaster and emergency response purposes within or outside of the physical limits of the county, urban-county government, charter county government, or city;
  6. In the event of a national emergency or state of declared emergency or declared disaster or catastrophe, as provided in KRS 39A.100 , waive procedures and formalities otherwise required by the law pertaining to: the performance of public work; entering into contracts; the incurring of obligations; the employment of permanent and temporary workers; the utilization of volunteer workers; the rental of equipment; the purchase and distribution, with or without compensation, of supplies, materials, and facilities; the appropriation and expenditure of public funds; and the demolition and removal of damaged public and private structures; and
  7. Confer or authorize the conferring upon members of the auxiliary police the powers of peace officers, subject to the provisions of KRS 61.300 , and any other restrictions imposed by the appointing authority.

History. Enact. Acts 1998, ch. 226, § 35, effective July 15, 1998.

39B.080. Powers, duties, rights, privileges, and immunities of employees rendering outside aid.

When the employees of any county, urban-county, charter county, or city are rendering outside aid pursuant to the authority contained in this chapter, the employees shall have the same powers, duties, rights, privileges, and immunities as if they were performing their duties in the jurisdiction in which they are normally employed.

History. Enact. Acts 1998, ch. 226, § 36, effective July 15, 1998.

39B.090. Liability for loss or damage to equipment used — Reimbursement of compensation and expenses of employees.

  1. The city, county, urban-county government or charter county government, in which any equipment is used pursuant to this chapter shall be liable for any loss or damage thereto and shall pay any expense incurred in the operation and maintenance thereof. No claim for loss, damage, or expense shall be allowed unless, within sixty (60) days after it is sustained or incurred, an itemized written notice of the claim under oath is served by mail or otherwise upon the chief fiscal officer of the county, urban-county, charter county, or city where the equipment was used. The county, urban-county, charter county, or city which is aided pursuant to this chapter shall also reimburse the county, urban-county, charter county, or city furnishing the aid for the compensation paid to employees furnished under this chapter during the time of the rendition of the aid, and shall defray the actual traveling and maintenance expenses of the employees while they are rendering the aid. Reimbursement shall include any amounts paid or due to compensation due to personal injury or death while employees are engaged in rendering aid. The term “employee” as used in this section shall mean, and the provisions of the section shall apply with equal effect to, paid, volunteer, or auxiliary employees, and other local emergency management agency or disaster and emergency response workers.
  2. The rights, privileges, and obligations set out in this section shall also apply if aid is rendered outside the Commonwealth. Payment or reimbursement in this case shall be made by the state or political subdivision receiving the aid pursuant to a reciprocal mutual aid agreement or compact with another state or by the federal government.

History. Enact. Acts 1998, ch. 226, § 37, effective July 15, 1998.

39B.100. Contracts permitted.

The chief executive or governing body of each political subdivision of the state may:

  1. Enter into a contract or lease with the state, or accept any loan, or employ personnel, and the political subdivision may equip, maintain, utilize, and operate any property and employ necessary personnel therefor in accordance with the purposes for which the contract is executed; and
  2. Do all things and perform all acts deemed necessary to effectuate the purpose for which the contract was entered into in accordance with the Kentucky Emergency Operations Plan.

History. Enact. Acts 1998, ch. 226, § 38, effective July 15, 1998.

39B.110. Taking of property or rights guaranteed by KRS 237.102 or 237.104 not authorized — Rights of relocated persons unaffected.

  1. Nothing in KRS 39B.070 or any other provision of this chapter shall authorize a taking of property or the taking of any action which is in violation of KRS 237.102 or 237.104 .
  2. If a person is relocated to temporary housing before, during, or after a disaster or emergency, he or she shall still possess the rights guaranteed by KRS 237.102 and 237.104 .

History. Enact. Acts 2006, ch. 240, § 11, effective July 12, 2006.

39B.990. Penalty.

Any person violating any provision of this chapter or any administrative regulation or order promulgated pursuant to this chapter for which another penalty is not specified shall be guilty of a Class A misdemeanor.

History. Enact. Acts 1998, ch. 226, § 39, effective July 15, 1998.

Research References and Practice Aids

Cross-References.

Sentence of imprisonment for misdemeanor, KRS 532.090 .

CHAPTER 39C State Aid to Local Emergency Management Programs

39C.010. Supplementary state funds.

In order to develop and maintain effective local emergency management agencies, and comprehensive emergency management programs and related activities, it is declared to be the policy of the Commonwealth of Kentucky to encourage and assist the counties, cities, urban-county governments or charter county governments of the Commonwealth by authorizing, and there is hereby authorized, the expenditure of supplementary state funds for local emergency management agencies which are created, administered, operated, and maintained pursuant to KRS Chapters 39A to 39F, and are integral components of the integrated emergency management system of this Commonwealth.

History. Enact. Acts 1998, ch. 226, § 40, effective July 15, 1998.

39C.020. Allocation of state funds.

Supplementary state funds appropriated to the division shall be allocated by the division to local emergency management agencies on a reimbursement basis in amounts not to exceed fifty percent (50%) of the total local funds expended by the local agencies in any given year for the institution, administration, or support of the comprehensive emergency management programs of the city, county, urban-county government or charter county government.

History. Enact. Acts 1998, ch. 226, § 41, effective July 15, 1998.

39C.030. Purpose of supplementary state fund.

The purpose of the supplementary state fund established in KRS 39C.010 and 39C.020 is to:

  1. Assist local emergency management agencies established pursuant to KRS Chapters 39A to 39F to develop adequate comprehensive emergency management programs and disaster and emergency response capabilities;
  2. Maintain and improve these agencies, programs, and capabilities through enhanced training, planning, staffing, administration, operations, and equipment acquisition; and
  3. Benefit the Commonwealth as a whole, through creation of an effective and responsive statewide integrated emergency management system.

History. Enact. Acts 1998, ch. 226, § 42, effective July 15, 1998.

39C.040. Director’s responsibility — Advisory committee.

  1. The Director of the Division of Emergency Management shall have overall responsibility for policy, guidance, administration, and proper utilization of the supplementary fund established in KRS 39C.010 and 39C.020 .
  2. The director shall serve as the principal liaison between the division and local officials participating in programs affected by this fund.
  3. The director shall appoint an advisory committee consisting of seven (7) members, including no more than four (4) employees of the staff of the division, to assist in making initial funding allocations each fiscal year and in making quarterly adjustments, based upon program and financial reviews. The members of the committee shall serve at the pleasure of the director, but for no more than four (4) years without reappointment, and shall serve without reimbursement, except when funded through the emergency management assistance programs. The decisions of the committees shall be advisory only and not binding upon the director.
  4. The director, with the advice of the advisory committee, shall make determinations related to fund allocations.
  5. Area managers of the division shall fully explain program opportunities and requirements to local elected officials and local directors, review budget and program submissions, and make recommendations to the director.
  6. Funds pursuant to KRS 39C.010 and 39C.020 shall be made available to not more than one (1) local emergency management agency in any county on a reimbursement basis up to fifty percent (50%) of the total local funds expended in any given year by the local emergency management agency created pursuant to KRS Chapters 39A to 39F.

History. Enact. Acts 1998, ch. 226, § 43, effective July 15, 1998.

39C.050. Criteria for funding local emergency management agencies.

Local emergency management agencies created pursuant to KRS 39B.010 shall be eligible to apply for benefits from the fund created pursuant to KRS 39C.010 and 39C.020 if they meet the following criteria:

  1. The local emergency management agency shall have a qualified, duly appointed local director who is capable of fully executing the duties of the position pursuant to KRS 39B.030 . Unless the local director has already completed an introductory emergency management course or is determined by the director to be suitably qualified, during the first year of participation in the funding program, the local director, whether serving on a voluntary or paid basis, shall have successfully completed all correspondence courses specified by the division by administrative regulation. The local director shall also participate in an emergency management workshop when offered. Unless the local director has already completed an introductory emergency management course or is determined by the director to be suitably qualified, each local director shall also attend an introductory emergency management course when offered.
    1. In each following year, each local director shall attend an emergency management workshop, when offered.
    2. In subsequent years, a local director shall continue his or her education by annually completing advanced instruction offered by the division, including the training courses and the Emergency Management Development Program as required by administrative regulations promulgated by the division. The requirements of this section may be met by successfully completing related courses offered by federal agencies and other organizations, as approved by the division.
  2. Each local emergency management agency employee, other than the local director, whose salary is reimbursed in part by this fund, shall attend one (1) emergency management workshop at least every other year, and shall complete other instruction offered by the division as required by administrative regulations promulgated by the division.
  3. The local director appointed pursuant to KRS Chapters 39A to 39F, shall develop a local emergency operations plan and appropriate annexes. This plan shall be subject to concurrence review by the director of the division. In subsequent years, the plan and all annexes shall annually be reviewed, updated, approved, and officially adopted in accordance with the provisions of KRS Chapters 39A to 39F.
  4. During the second and each subsequent year of participation in the program, the local director shall conduct an exercise to test the local emergency operations plan in accordance with exercise program requirements and guidelines of the Federal Emergency Management Agency or the division.
  5. Each local emergency management agency created pursuant to KRS Chapters 39A to 39F shall provide for an organized and designated emergency operating center in the local jurisdiction from which all operations of the local disaster and emergency services organization shall be coordinated. This center shall provide resources for communications, information management, and other operational capabilities necessary to ensure the coordination of all disaster and emergency response in the local jurisdiction. The local emergency operations center shall be a direction and control component of the integrated emergency management system of the Commonwealth.
  6. Each local emergency management agency shall develop, and submit annually to the division, a program paper detailing agency administrative data, current staff personnel listings, a specific work plan of program objectives scheduled for accomplishment during the next fiscal year, and a budget request. Forms and guidance materials for this report shall be provided by the division.
  7. Each employee of a local emergency management agency created pursuant to this chapter with the exception of the local director and each deputy, if the deputy functions in a policymaking capacity, whose salary is reimbursed in part or in total with these funds, shall meet the standards of the Kentucky merit system, or the standards of the Federal Office of Personnel Management or its successor or local equivalent, when recognized by the director.
  8. In order for a local emergency management agency to participate in the funding program, one (1) of the following persons shall attend an annual emergency management workshop:
    1. The county judge/executive;
    2. The deputy county judge/executive;
    3. The mayor of an urban-county government, or of a consolidated local government, or of the largest city in the county, or the mayor of the city which is the county seat of the county, or the chief executive of other local government;
    4. The city manager;
    5. The local emergency management deputy director; or
    6. A member of the fiscal court, urban-county council, or consolidated local government of the county.
  9. The division shall determine by administrative regulation:
    1. Public officials and disaster and emergency services personnel who may be reimbursed for attendance at emergency management workshops or other activities; and
    2. Reimbursements for attending courses and workshops, which shall be limited as follows:
      1. Reimbursement rates for meals and travel mileage shall not exceed those for state employees.
      2. Reimbursement shall be made for attending the workshop or course nearest to the participant’s residence. A participant may attend a workshop at a greater distance but will be reimbursed for meals and mileage equal to that of attending the nearest workshop or course. In cases of extreme hardship, the nearest course or workshop requirement may be waived, in writing, by the director.
  10. The division shall:
    1. Publicize all available state and federal emergency management agency training courses to mayors, county judges/executive, and local directors; and
    2. Assist local personnel listed in this section in gaining entrance to state and federal emergency management agency training courses.
  11. If, at any time, the director of the division determines that a local emergency management agency or a local director does not comply with the eligibility requirements of this section, the director shall notify that local director and the appointing authorities, in writing, of the intent to deny financial assistance to the local emergency management agency. The local director shall have ten (10) working days to come into compliance or otherwise provide information to the director to justify eligibility for funding. If the director continues to determine that the local emergency management agency or the local director does not meet eligibility requirements, the local emergency management agency shall be ineligible for funds and the director shall notify the local director and the appointing authorities, of the determination. A local director aggrieved by a decision of the director may appeal to the Franklin Circuit Court within twenty (20) days of the receipt of the director’s decision. The court’s review shall be from the record and shall not be de novo.

History. Enact. Acts 1998, ch. 226, § 44, effective July 15, 1998; 2002, ch. 346, § 10, effective July 15, 2002.

Research References and Practice Aids

Cross-References.

Appeal of administrative decision to Franklin Circuit Court, KRS 13B.140 .

39C.060. Request for financial aid — Review and evaluation criteria.

  1. Local emergency management agencies requesting financial aid from the fund created pursuant to KRS 39C.010 and 39C.020 , shall submit, not later than July 15 of each year, a local “Annual Program Paper” application to the area manager of the division.
  2. The area manager shall review the application and accompanying documents and forward them to the director of the division along with the area manager’s assessments and recommendations, not later than August 15 of each year.
  3. The director shall submit the request for financial aid to the advisory committee for its review and recommendations. The advisory committee shall review the application, accompanying documents, and the assessment and recommendation of the area manager and make a recommendation to the director with regard to the application and the request for funding.
  4. Requests for funding shall be evaluated by the following criteria:
    1. Meeting the eligibility criteria specified in KRS 39C.050 , unless some aspect thereof has been waived as provided in KRS 39C.090 .
    2. Meeting all the requirements specified by the division for developing, preparing, maintaining, and submitting the annual program paper.
    3. Local emergency operations plans submitted and a determination of their conformity to the Kentucky Emergency Operations Plan, and an assessment of their capability, state of currency, sign of official adoption, and general adequacy to provide for the coordination of disaster and emergency response operations.
    4. Past program performance of the local director in fully carrying out the duties of local director as specified in KRS 39B.030 , and overall program performance as it relates to completeness, adequacy, and timeliness in accomplishing program tasks, objectives, or goals.
    5. Historical spending records for this and similar programs.
    6. Local resources committed to the program on a per capita basis.
  5. If available funds do not meet the total funds requested by all local emergency management agencies, then funding allocations may be reduced after a reevaluation of the criteria set forth in subsection (4) of this section.
  6. The director of the Division of Emergency Management shall then review and evaluate each application, together with the recommendations thereon, and not later than September 15 of each year, designate and approve funds for eligible local emergency management agencies and notify the local director.

History. Enact. Acts 1998, ch. 226, § 45, effective July 15, 1998.

39C.070. Reimbursement — Claims and equipment purchase.

  1. Within fifteen (15) days of the end of each month, the local emergency management agency shall submit a completed claim of reimbursement with supporting documentation to the area manager of the division. After review, the area manager shall forward the documentation for administrative review and a reimbursement check shall be returned to the jurisdiction. Reimbursement shall be at the predetermined rate.
  2. Requests to utilize these funds to purchase any item of emergency management-related administrative or office equipment having a total cost in excess of five hundred dollars ($500) shall be submitted to the director for approval or denial before the purchase. To obtain approval, the local emergency management agency shall submit a project application to the area manager, who shall review it and forward it to the director, together with the area manager’s recommendations in reference thereto. If the application is approved by the director, the local emergency management agency shall be notified of the approval and, after making the purchase, may submit a reimbursement claim.

History. Enact. Acts 1998, ch. 226, § 46, effective July 15, 1998.

39C.080. Performance evaluations — Records and reports — Review of program progress and compliance — Correction of deficiencies — Appeal process.

  1. The performance of each local emergency management agency or local director receiving funding pursuant to KRS 39C.010 and 39C.020 shall be evaluated quarterly as to compliance with the provisions of KRS Chapters 39A to 39F, satisfactory program administration, and the achievement of scheduled program objectives by the local emergency management agency or local director. Based upon this evaluation:
    1. Programs which are judged deficient, or otherwise not in compliance with KRS Chapters 39A to 39F, or program guidance of the division, may have funds withheld and those funds which have been withheld may be transferred to other local emergency management agencies.
    2. Programs which meet or exceed their minimum program objectives and have needs for additional funds for program improvements may be granted additional requested funds, or portions thereof, for use by the local emergency management agency in making the improvements, subject to the availability of funds.
  2. Within fifteen (15) days after the end of each quarter, the local emergency management director shall prepare and submit all documentation, records, or reports required by the division to substantiate and document the work activity of the local director and the local emergency management agency in performing official duties or work plan objectives during each quarter.
  3. Program progress and compliance shall be reviewed quarterly by the area manager of the geographical area in which the local emergency management agency is located. The area manager shall review training records, exercise reports, financial records and budget expenditure rates, all work plan documentation reports or materials submitted by the local director at the end of each quarter, program guidance materials, or other sources of information, and make an assessment as to whether the local emergency management agency or local director is in compliance with current program requirements or guidance, or is making satisfactory progress toward the full achievement of the objectives outlined in the work plan of the annual program paper. The area manager shall transmit an assessment report to the director of the division together with any recommendations thereon.
  4. The director shall then review the material submitted, together with the area manager’s recommendations, and submit it to the advisory committee for its evaluation and recommendations with regard thereto.
  5. The advisory committee shall transmit to the director its determination of the local emergency management agency’s state of compliance or progress, and that of the local director, and the committee’s recommendations with regard thereto. The director shall review the report and all recommendations thereon. The director shall then make a final determination with regard to compliance and progress and, if a deficiency is found, the measures which shall be taken to assure compliance.
  6. Local emergency management agencies or local directors determined not to be making satisfactory progress toward the accomplishment or completion of work plan objectives as outlined in the annual program paper, or not performing in accordance with the written program guidance or the requirements of KRS Chapters 39A to 39F, shall be given thirty (30) days to correct the deficiencies in the manner outlined by the director.
  7. A local emergency management agency aggrieved by a decision of the director may appeal to the Franklin Circuit Court within twenty (20) days of the receipt of the director’s decision. The court’s review shall be from the record and shall not be de novo, unless the record is insufficient.
  8. If a decision has been made by the director to withhold funding from the local emergency management agency, that funding shall remain withheld during the pendency of any appeals of the decision.
  9. At the end of the thirty (30) day period further funding may be withdrawn by the director, if the deficiencies have not been corrected. The funds may then be reallocated to other local emergency management agencies.
  10. The director, during the review process outlined in this section, shall also review the expenditure rate of each local emergency management agency receiving funds. If it is determined that a local agency will not utilize all allocated funds, appropriate portions of the allocation may be withdrawn and reallocated to another local emergency management agency.

History. Enact. Acts 1998, ch. 226, § 47, effective July 15, 1998.

Research References and Practice Aids

Cross-References.

Appeal of administrative decision to Franklin Circuit Court, KRS 13B.140 .

39C.090. Requests for waiver of requirements.

Requests for the waiver of any requirement of KRS 39C.050 , 39C.060 , 39C.070 , and 39C.080 or any criteria of KRS Chapter 39F may be submitted with appropriate justification to the director of the division. The director may grant waivers only upon the finding that the justification merits special action and failure to grant the waiver would jeopardize the continuation or development of a viable local emergency management agency and program. In every case, the director shall insure that the local agency and program continues to meet the basic intent of KRS Chapter 39B. Waivers shall apply on a one (1) time basis relating to a specific request and shall not be construed to establish precedents.

History. Enact. Acts 1998, ch. 226, § 48, effective July 15, 1998.

39C.100. Administration of supplementary state funding program — Administrative regulations.

The division shall administer the supplementary state funding program authorized in KRS 39C.010 and 39C.020 and the division shall, by administrative regulations, promulgate and apply eligibility requirements and standards of performance to be achieved by all local emergency management agencies. The division may promulgate other administrative regulations, and issue any program guidance, necessary to carry out the provisions of KRS 39C.010 and 39C.020 .

History. Enact. Acts 1998, ch. 226, § 49, effective July 15, 1998.

39C.110. Workers’ compensation coverage — Limitations.

Local emergency management agencies, including local directors or their deputies, and other local emergency management agency staff personnel and workers, and local emergency management agency-supervised operating units or personnel officially affiliated with the local disaster and emergency services organizations pursuant to KRS 39B.070 , paid or volunteer, for the purposes of receiving workers’ compensation benefits paid by the division, shall be covered by those benefits when performing emergency assessment, mitigation, preparedness, response, or recovery functions, with the following limitations:

  1. The local emergency management agencies, including local directors or staff personnel and workers, and local emergency management agency-supervised operating units or personnel, shall not be covered when performing fundraising functions, unless all proceeds of the function are to be dedicated to the administration or operation of the local emergency management agency or operating unit.
  2. No person shall be covered when performing hazardous materials emergency response operations defined in 29 C.F.R. 1910.120 which are above the first-responder operations level, on-scene incident commander level excluded, except as provided in subsection (3) of this section.
  3. A volunteer hazardous materials response team as defined in 29 C.F.R. 1910.120 which meets all provisions of 29 C.F.R. 1910.120(q), operates on a regional basis, and is supervised by a local emergency management agency may, by action of the director pursuant to administrative regulations, be provided Kentucky emergency management workers’ compensation coverage. Such hazardous materials response teams shall take no actions involving environmental clean-up, removal, or transportation of hazardous substances or materials except as may be essential for initial emergency control or initial emergency stabilization when there is a clear and evident risk of harm to people.
  4. No person shall be covered unless enrolled on a workers’ compensation enrollment form that is filed with the area manager of the division, except when the magnitude of an emergency, or a preparedness exercise activity, is so great that a local director must solicit additional workers. At these times, the local director may develop and maintain a list of workers, to include names, Social Security account numbers, missions assigned, and dates covered, and submit a copy of the list to the area manager within twenty-four (24) hours of the conclusion of the emergency, or the preparedness exercise activity.

History. Enact. Acts 1998, ch. 226, § 50, effective July 15, 1998.

Research References and Practice Aids

Cross-References.

Workers’ Compensation, KRS Ch. 342.

39C.990. Penalty.

Any person violating any provision of this chapter or any administrative regulation promulgated or order issued pursuant to this chapter for which another penalty is not specified shall be guilty of a Class A misdemeanor.

History. Enact. Acts 1998, ch. 226, § 51, effective July 15, 1998.

Legislative Research Commission Note.

(7/15/98). Although the introductory clause for 1998 Ky. Acts ch. 226, sec. 51 indicated that this statute was to be placed in KRS Chapter 39D, it is clear from context that KRS chapter 39C was intended because KRS Chapter 39D had its own penalty provision at 1998 Ky. Acts ch. 226, sec. 57. Therefore, to correct this manifest clerical or typographical error, KRS 7.136(1)(h), this statute has been codified in KRS Chapter 39C.

Research References and Practice Aids

Cross-References.

Sentence of imprisonment for misdemeanor, KRS 532.090 .

CHAPTER 39D Continuity of Government

39D.010. Temporary seat of state government — Acts valid and binding.

  1. When, during a state of emergency, it becomes imprudent, inexpedient, or impossible to conduct the affairs of state government at the state capital, the Governor shall, as often as the exigencies of the situation require, by proclamation, designate a temporary location for the seat of government at the place within this Commonwealth deemed advisable, and shall take action and issue orders necessary for an orderly transition of the affairs of state government to the temporary location. If practicable, the temporary location designated by the Governor shall conform to that provided for in the current Kentucky Emergency Operations Plan. The temporary location shall remain as the seat of government until the Governor establishes a new location under this section, or until the emergency is ended and the seat of government is returned to its normal location.
  2. While the seat of government remains at the temporary location, all official acts required by law to be performed at the seat of government by any officer, independent agency, division, or authority of this Commonwealth, including the convening and meeting of the General Assembly in regular or special session, shall be as valid and binding when performed at that temporary location as if performed at the normal location.

History. Enact. Acts 1998, ch. 226, § 52, effective July 15, 1998.

39D.020. Designation of alternate or substitute places for local government — Acts valid and binding.

  1. When, during a state of emergency, it becomes imprudent, inexpedient, or impossible to conduct the affairs of local government at the regular or usual places, the governing body of each county, urban-county, charter county, and city of this Commonwealth may meet at any place within or without the territorial limits of that political subdivision, at the direction of the elected chief executive officer or his or her successor, and shall proceed to establish and designate by ordinance, resolution, or other manner, alternate or substitute places as the temporary locations of government where all, or any part, of the public business may be transacted and conducted during the emergency situation. The alternate or substitute places may be within or without the territorial limits of the county, urban-county, charter county, and city, and shall be within those of the state. If practicable, they shall be the places designated as the temporary locations of government in the current local emergency operations plan.
  2. While the public business is being conducted at a temporary location, the governing body and other officers of a county, urban-county, charter county, and city of this Commonwealth shall have and exercise, at that location, all of the executive, legislative, administrative, and judicial powers and functions conferred upon that body and officers under state law. The powers and functions, except judicial, may be exercised in the light of the exigencies of the emergency situation without regard to or compliance with time-consuming procedures and formalities prescribed by law and pertaining thereto. All acts of the body and officers shall be as valid and binding as if performed within the territorial limits of their county, urban-county, charter county and city.
  3. This section shall control notwithstanding any statutory charter or ordinance provision to the contrary.

History. Enact. Acts 1998, ch. 226, § 53, effective July 15, 1998.

39D.030. Ordinances and resolutions for continuity of government.

The governing body of each county, urban-county government, charter county government, and city shall enact the ordinances and resolutions necessary to provide for the continuity of government throughout the duration of a state of emergency. The ordinances and resolutions shall provide a method by which temporary emergency appointments to public office are made, except as limited by express constitutional provisions, and shall define the scope of the powers and duties which may be exercised, and provide for termination of the appointment so made. This section shall control notwithstanding any statutory provision to the contrary.

History. Enact. Acts 1998, ch. 226, § 54, effective July 15, 1998.

39D.040. Emergency interim successors — Order of successions — Vacancies — Applicability of statute to all special districts and political subdivisions.

  1. As used in this section, unless the context clearly requires otherwise:
    1. “Emergency interim successor” means a person designated under this section, if an officer is unavailable, to exercise the powers and discharge the duties of that office until a successor is appointed or elected and qualified as provided by law, or until the lawful incumbent is able to resume the exercise of the powers and discharge the duties of the office.
    2. “Office” includes all state and local offices, the powers and duties of which are defined by law, except the office of Governor, and except those in the General Assembly and the judiciary. An “officer” is a person who holds an office.
    3. “Political subdivision” includes counties, urban-counties, charter counties, cities, special districts, authorities, and other public corporations and entities whether organized and existing under charter or general law.
    4. “Unavailable” means that during a state of emergency either:
      1. A vacancy in office exists and there is no deputy authorized to exercise all of the powers and discharge the duties of the office; or
      2. That the lawful incumbent of the office and any duly authorized deputy are absent or unable to exercise the powers and discharge the duties of the office.
  2. Subject to administrative regulations of the Governor, all state officers, shall, in addition to any deputy authorized to exercise all of the powers and discharge the duties of the office, designate by title emergency interim successors and specify their order of succession. The officer shall review and revise, as necessary, designations made pursuant to this section to ensure their current status. The officer shall designate a sufficient number of emergency interim successors so that there will be not fewer than three (3) nor more than seven (7) deputies or emergency interim successors or any combination thereof, at any time. If any state officer is unavailable following an emergency, and if a deputy, if any, is also unavailable, the powers of office shall be exercised and the duties of office shall be discharged by any designated emergency interim successors in the order specified. The emergency interim successors shall exercise the powers and discharge the duties only until such time as the Governor under the Constitution or authority other than this section, or other official authorized under the Constitution or this section to exercise the powers and discharge the duties of the office of Governor has, where a vacancy exists, appointed a successor to fill the vacancy, or until a successor is otherwise appointed, or elected and qualified as provided by law, or until an officer or any deputy or a preceding named emergency interim successor becomes available to exercise, or resume the exercise and discharge of, the powers and duties of the office.
  3. Each cabinet and each department of state government, and each agency of state government shall appoint not fewer than three (3) nor more than seven (7) emergency interim successors for each position specified in the Kentucky Emergency Operations Plan and the internal emergency operations procedures for that department or agency. Emergency interim successors in the order of the succession shall have the full power to exercise all powers of their department or agency and to commit its resources during a time of emergency or disaster if the person normally exercising the position becomes unavailable. If the preceding emergency successor becomes unavailable he or she shall resume all duties from the emergency interim successor, unless he or she chooses to permit the emergency interim successor to remain in the position until relieved.
  4. The local legislative bodies of cities, counties, urban-counties, and charter counties shall enact ordinances or orders governing the manner in which vacancies in offices and employment shall be filled, and for the prompt filling thereof during times of disaster and emergency, if the filling of these vacancies is not otherwise provided for by law. The legislative bodies shall enact ordinances providing for the appointment of not fewer than three (3) nor more than seven (7) emergency interim successors for each local office, department, and agency specified in the Kentucky Emergency Operations Plan and local emergency operations plans and annexes thereto. Emergency interim successors, in the order of their successions, shall have the full power to exercise all powers of the office, department, or agency and to commit its resources during a time of emergency or disaster if the person normally exercising the position is unavailable. If the preceding emergency successor becomes available, he or she shall resume the duties being performed by the emergency interim successor, unless he or she chooses to permit the emergency interim successor to remain in the position until relieved. The administrative orders and ordinances shall not be inconsistent with this section.
  5. This section applies to officers of all special districts and political subdivisions not included in subsection (4) of this section. The officers, subject to such administrative regulations as the executive head of the political subdivision promulgates, shall designate by title, if feasible, or by named person, emergency interim successors and specify their order of succession. The officer shall review and revise, as necessary, designations made pursuant to this section to ensure their current status. The officer shall designate a sufficient number of persons so that there will be not fewer than three (3) nor more than seven (7) deputies or emergency interim successors or any combination thereof at any time. If any officer of any political subdivision or any deputy provided for pursuant to law is unavailable, the powers of the office shall be exercised and duties shall be discharged by the designated emergency interim successors in the order specified. The emergency interim successor shall exercise the powers and discharge the duties of the office to which designated until the time a vacancy which exists is filled in accordance with the Constitution or the KRS, or until the officer, a deputy, or a preceding emergency interim successor again becomes available to exercise the powers and discharge the duties of the office.
  6. No person shall be designated or serve as an emergency interim successor unless he or she is eligible under the Constitution and statutes to hold the office to which he or she is designated to succeed, but no statutory provision prohibiting local or state officials from holding another office shall be applicable to an emergency interim successor.
  7. Emergency interim successors shall take the oath required to exercise the powers and discharge the duties of the office to which they may succeed. No person, as a prerequisite to the exercise of the powers or discharge of the duties of an office to which he or she succeeds, shall be required to comply with any other provision of law relative to taking office.
  8. Officials authorized to act as Governor pursuant to this section, and emergency interim successors are empowered to exercise the powers and discharge the duties of an office only during the continuance of an emergency. The General Assembly, by joint resolution, may at any time terminate the authority of the emergency interim successors to exercise the powers and discharge the duties of office.
  9. Until the persons designated as emergency interim successors shall exercise the powers and discharge the duties of an office in accordance with this section, the persons shall serve in their designated capacities at the pleasure of the designating authority.
  10. Any dispute concerning a question of fact arising under this section with respect to an office in the executive division of the state government, except a dispute of fact relative to the office of Governor, shall be adjudicated by the Governor or other official authorized under the Constitution to exercise the powers and discharge the duties of the office of Governor, and the decision reached shall be final.

History. Enact. Acts 1998, ch. 226, § 55, effective July 15, 1998.

39D.050. Preservation of essential state public records — Duties of Archives and Records Commission.

The state Archives and Records Commission shall establish a system for the preservation of essential state public records necessary for the continuity of governmental functions in the event of an emergency, disaster, or catastrophe. The commission shall:

  1. Determine what records are essential for operation during a state of emergency and thereafter through consultation with all state cabinets, departments, and independent agencies and the administrator of state archives services and records, establish the manner in which the records shall be preserved, and provide for their preservation;
  2. Require every state cabinet, department, and independent agency to establish and maintain a preservation program for essential state public records;
  3. Provide for security storage of essential state records;
  4. Furnish state cabinets, departments, and independent agencies with copies of the final plan for preservation of essential public records; and
  5. Advise all political subdivisions of the Commonwealth on preservation of essential public records.

History. Enact. Acts 1998, ch. 226, § 56, effective July 15, 1998.

Research References and Practice Aids

Cross-References.

Archives and Records Commission, KRS 171.420 .

39D.990. Penalty.

Any person violating any provision of this chapter or any administrative regulation promulgated or order issued pursuant to this chapter for which another penalty is not specified shall be guilty of a Class A misdemeanor.

History. Enact. Acts 1998, ch. 226, § 57, effective July 15, 1998.

Research References and Practice Aids

Cross-References.

Sentence of imprisonment for misdemeanor, KRS 532.090 .

CHAPTER 39E Implementation of Federal Hazardous Materials Programs

39E.010. Kentucky Emergency Response Commission — Duties.

The Kentucky Emergency Response Commission is established to:

  1. Implement all provisions of Title III, Pub. L. No. 99-499, associated federal regulations, and subsequent related legislation and regulations related to hazardous substances; develop policies related to the response of state and local governments to releases of hazardous substances; develop standards for planning for these events; develop reporting requirements for those who manufacture, use, transport, or store these substances; provide information to the public concerning hazardous substances in the community; develop training requirements; and develop requirements for local governments and covered facilities to exercise plans related to hazardous substance response; and
  2. Perform any other functions assigned by statute or by the chairman.

History. Enact. Acts 1998, ch. 226, § 58, effective July 15, 1998.

Compiler’s Notes.

Title III, Pub. L. No. 99-499 referred to in subdivision (1) is known as the Emergency Planning and Community Right-to-Know Act of 1986 and is compiled as 42 USCS §§ 11001 et seq.

Research References and Practice Aids

ALR

Validity of local regulation of hazardous waste, 67 A.L.R.4th 822.

Validity, construction, and application of state hazardous waste regulations, 86 A.L.R.4th 401.

39E.020. Definitions for chapter.

As used in this chapter, unless the context requires otherwise:

  1. “Commission” means the Kentucky Emergency Response Commission and those persons appointed by the Governor to implement provisions of Title III, Pub. L. No. 99-499 and this chapter.
  2. “Local emergency planning committee,” hereafter referred to as the “local committee,” means those persons appointed by the commission to assist in the implementation of Title III, Pub. L. No. 99-499 and this chapter.
  3. “Release” means, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, including the abandonment or discarding of barrels, containers and other closed receptacles, of any hazardous substance.
  4. “Reportable quantity” means an amount of hazardous substances released which requires notification to local and state warning points.
  5. “Hazardous substance” means a substance specified by Title III, Pub. L. No. 99-499, subsequent federal regulations, this chapter, and subsequent administrative regulations as requiring notification if released or if stored, manufactured, or used.
  6. “Warning point” means that location, operated by state or local government, and identified by the state commission or local committee, and which is continuously staffed, and which has the capability or responsibility to contact governmental emergency response organizations and, if capability exists, to warn the public of hazards which may affect them.
  7. “Emergency response organization” means a unit of local government or a unit authorized by local government which may be called to make a response because of a release of a hazardous substance, and whose responsibilities are included in plans developed under this chapter.
  8. “Facility” means all buildings, equipment structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person, or by any person which controls, is controlled by, or under common control with such person, and which manufactures, stores, or uses substances covered under this chapter. For purposes of KRS 39E.190 , the term includes motor vehicles, rolling stock, and aircraft.

History. Enact. Acts 1998, ch. 226, § 59, effective July 15, 1998.

Compiler’s Notes.

Title III, Pub. L. No. 99-499 referred to in subdivision (1) is known as the Emergency Planning and Community Right-to-Know Act of 1986 and is compiled as 42 USCS §§ 11001 et seq.

39E.030. Kentucky Emergency Response Commission — Members — Meetings.

  1. The commission shall be composed of not more than twenty-five (25) members and shall be chaired by the director of the Division of Emergency Management of the Department of Military Affairs, who shall also be a member. Other members shall include, but not be limited to, the executive director of the Commission on Fire Protection Personnel Standards and Education or the executive director’s designee, representatives of the Energy and Environment Cabinet, the state fire marshal, the Department of Kentucky State Police, the Office of the Attorney General, the Department of Agriculture, affected industry, local government, health services, environmental interests, and other persons who have technical expertise in the emergency response field as the Governor deems appropriate.
  2. Members of the commission shall be appointed by the Governor. All appointments shall be for a term of two (2) years. Members shall serve until their successors are appointed and qualified and shall be eligible for reappointment.
  3. The commission shall meet not less than semi-annually, or as convened by the chairman.
  4. If a member misses three (3) consecutive meetings of the full commission or three (3) meetings in two (2) consecutive years, the position shall be declared vacant by the commission. In these cases, the Governor shall make an appointment to fill the unexpired term.
  5. The presence of a simple majority of currently appointed members shall constitute a quorum and actions taken at these meetings shall be considered as actions of the full commission.
  6. Members of the commission shall not receive a salary for serving on the commission, but travel and per diem may be paid if funds are appropriated or otherwise made available for these purposes.

History. Enact. Acts 1998, ch. 226, § 60, effective July 15, 1998; 2005, ch. 82, § 1, effective June 20, 2005; 2007, ch. 85, § 121, effective June 26, 2007; 2010, ch. 24, § 31, effective July 15, 2010; 2016 ch. 51, § 1, effective July 15, 2016; 2019 ch. 15, § 1, effective June 27, 2019.

39E.030. Kentucky Emergency Response Commission — Members — Meetings.

  1. The commission shall be composed of not more than twenty-five (25) members and shall be chaired by the director of the Division of Emergency Management of the Department of Military Affairs, who shall also be a member. Other members shall include, but not be limited to, the executive director of the Kentucky Fire Commission or the executive director’s designee, representatives of the Energy and Environment Cabinet, the state fire marshal, the Department of Kentucky State Police, the Office of the Attorney General, the Department of Agriculture, affected industry, local government, health services, environmental interests, and other persons who have technical expertise in the emergency response field as the Governor deems appropriate.
  2. Members of the commission shall be appointed by the Governor. All appointments shall be for a term of two (2) years. Members shall serve until their successors are appointed and qualified and shall be eligible for reappointment.
  3. The commission shall meet not less than semi-annually, or as convened by the chairman.
  4. If a member misses three (3) consecutive meetings of the full commission or three (3) meetings in two (2) consecutive years, the position shall be declared vacant by the commission. In these cases, the Governor shall make an appointment to fill the unexpired term.
  5. The presence of a simple majority of currently appointed members shall constitute a quorum and actions taken at these meetings shall be considered as actions of the full commission.
  6. Members of the commission shall not receive a salary for serving on the commission, but travel and per diem may be paid if funds are appropriated or otherwise made available for these purposes.

HISTORY: Enact. Acts 1998, ch. 226, § 60, effective July 15, 1998; 2005, ch. 82, § 1, effective June 20, 2005; 2007, ch. 85, § 121, effective June 26, 2007; 2010, ch. 24, § 31, effective July 15, 2010; 2016 ch. 51, § 1, effective July 15, 2016; 2019 ch. 15, § 1, effective June 27, 2019; 2020 ch. 67, § 3.

39E.040. Duties — Appointment of committees.

The commission shall:

  1. Appoint local emergency planning committees and revise these committees as it deems appropriate. The committees shall include, as a minimum, representatives from each of the following groups:
    1. Elected local officials;
    2. Law enforcement;
    3. Emergency management;
    4. Fire service;
    5. First aid;
    6. Health service;
    7. Local environmental;
    8. Hospital;
    9. Transportation;
    10. Broadcast and print media;
    11. Community groups; and
    12. Owners and operators of facilities subject to this chapter;
  2. Adopt standards and procedures for the operations of local committees;
  3. Develop reporting requirements and procedures consistent with those of Title III, Pub. L. No. 99-499, for individuals, businesses, and governmental agencies that manufacture, use, store, or transport hazardous substances;
  4. Develop guidance and standards for plans related to hazardous substances;
  5. Approve, disapprove, and, where necessary, make recommendations to improve plans developed by local emergency planning committees;
  6. Recommend administrative regulations to the director for issuance by the Division of Emergency Management to implement provisions of this chapter, consistent with Title III, Pub. L. No. 99-499;
  7. Receive from any source and authorize the expenditure of funds;
  8. Develop policies relating to the training of committees and persons subject to respond to releases of hazardous substances;
  9. Develop policies relating to exercising and testing plans developed by local emergency planning committees;
  10. Specify a warning point to which all required emergency notifications shall be made;
  11. Develop a procedure by which facilities may report the presence and inventories of hazardous substances and by which members of the public may obtain these reports;
  12. Annually review all commission policies and procedures and update them as necessary; and
  13. Adopt policies for the conduct of the business and duties of the commission.

History. Enact. Acts 1998, ch. 226, § 61, effective July 15, 1998.

Compiler’s Notes.

Title III, Pub. L. No. 99-499 referred to in this section is known as the Emergency Planning and Right-to-Know Act of 1986 and is compiled as 42 USCS §§ 11001 et seq.

39E.050. Fees — Trust and agency accounts — Administrative regulations.

  1. The commission shall institute a fee system to assist in the administration of its programs and activities at both state and local levels.
    1. Any facility required to report under the provisions of this chapter shall annually submit to the commission the required fee of forty dollars ($40) no later than March 1. This paragraph shall not apply to facilities that pay a fee pursuant to paragraph (b) of this subsection. (2) (a) Any facility required to report under the provisions of this chapter shall annually submit to the commission the required fee of forty dollars ($40) no later than March 1. This paragraph shall not apply to facilities that pay a fee pursuant to paragraph (b) of this subsection.
    2. Any facility required to report under the provisions of this chapter and which meets any of the following standards shall annually submit to the commission the required fee of two hundred fifty dollars ($250) no later than March 1:
      1. The facility has any of the extremely hazardous substances identified in 40 C.F.R. Part 355, as amended;
      2. The facility has eleven (11) or more hazardous substances as defined in KRS 39E.020 ; or
      3. The facility has a total inventory of hazardous substances as defined in KRS 39E.020 of over four hundred ninety-nine thousand nine hundred ninety-nine (499,999) pounds.
    3. If the same owner or owners own two (2) or more facilities in a single county and all of the facilities are required to submit fees pursuant to paragraph (a) of this subsection, the fees due from the owner or owners shall not exceed a total of two hundred fifty dollars ($250) for all those facilities in that county.
    4. The provisions of this subsection shall not apply to a facility owned or operated by local, state, or federal government.
  2. The funds derived from the fee system shall be placed in a trust and agency account, which shall be known as the “Kentucky Emergency Response Commission Fee Account,” and which shall not lapse. The funds in the account shall be expended only for the purpose specified in subsection (1) of this section.
  3. The commission shall promulgate administrative regulations to implement the provisions of this section, for issuance by the Division of Emergency Management.

History. Enact. Acts 1998, ch. 226, § 62, effective July 15, 1998.

39E.060. Permissive activities of commission.

The commission may undertake other activities that are:

  1. Required by federal law or regulation;
  2. Authorized by federal law or regulation;
  3. Authorized by executive order of the Governor;
  4. Clearly adjunct to the duties specified in KRS 39E.040 ;
  5. Necessary to approve or disapprove actions of the local committees;
  6. Necessary to effectively implement the requirements of Title III, Pub. L. No. 99-499; and
  7. Necessary to commence a civil action against the owner or operator of a facility for failure to comply with the provisions of Section 326, Title III, Pub. L. No. 99-499.

History. Enact. Acts 1998, ch. 226, § 63, effective July 15, 1998.

Compiler’s Notes.

Section 326, Title III, Pub. L. No. 99-499 referred to in this section is compiled as 42 USCS § 11046.

39E.070. SARA Title III programs account.

  1. The “SARA Title III Programs Account” is hereby established as a trust and agency account in the State Treasury for the purpose of assisting in the administration and operation of programs authorized by this chapter.
  2. Funds from civil and other penalties, donations, and sources other than fees shall be placed in the account. The account shall not lapse.

History. Enact. Acts 1998, ch. 226, § 64, effective July 15, 1998.

39E.080. Administrative support by Division of Emergency Management — Protection of federal funds — Administrative regulations.

  1. The Division of Emergency Management shall provide administrative support to the commission within the limitation of staff resources. The division may employ staff and may acquire technical or professional assistance as determined to be necessary by the director of the division, and for whom federal, state, or other funds have been provided.
  2. Persons employed under this section shall report to the director of the division and shall implement policies and directives of the commission as specified by the director. Other employees of the division may also support the commission and assist in the implementation of hazardous substance planning, reporting, investigation, training, and exercising as directed by the director. In cases when the commission develops policies or directives which cannot reasonably be implemented by division staff, the director may defer implementation until sufficient resources exist. In cases when the director advises the commission, in writing, that the division cannot provide requested resources, the commission may seek assistance from other agencies of state government.
  3. In no case shall the director devote division resources to support the commission if that support would result in the withdrawal of federal or state funds from the division.
  4. The division shall, upon concurrence by the director, promulgate administrative regulations recommended by the commission and consistent with Title III, Pub. L. No. 99-499. The regulations shall include, but not be limited to:
    1. Substances which require inventory reporting;
    2. Quantities of each substance covered; and
    3. Emergency notification procedures and requirements.

History. Enact. Acts 1998, ch. 226, § 65, effective July 15, 1998.

Compiler’s Notes.

Title III, Pub. L. No. 99-499 referred to in this section is known as the Emergency Planning and Community Right-to-Know Act of 1986 and is compiled as 42 USCS §§ 11001 et seq.

39E.090. Local emergency planning districts.

Local emergency planning districts shall be consistent with county boundaries. The commission may authorize two (2) or more districts to combine, upon request of the committees of the affected districts. There shall be only one (1) emergency planning committee within a district.

History. Enact. Acts 1998, ch. 226, § 66, effective July 15, 1998.

39E.100. Local planning committees.

  1. Local emergency planning committees are created as part of the state commission.
  2. Local committee members shall be appointed by the commission, and shall be considered as agents of the state for all purposes, including purposes of liability protection.

History. Enact. Acts 1998, ch. 226, § 67, effective July 15, 1998.

39E.110. Committee duties.

  1. Duties of the committees shall include:
    1. Development of plans to prepare emergency response organizations within cities, counties, urban-county governments, and charter county governments to respond effectively to releases of hazardous substances;
    2. Identification of a twenty-four (24) hour warning point within the district to which persons responsible for releases of hazardous substances must report those releases;
    3. Establishment of a method, consistent with federal law, commission policies, and administrative regulations, by which manufacturers, users, or storers of hazardous substances may report the presence of those substances, and by which members of the public may obtain information about those substances;
    4. Appointment of a committee chairman, from among its members, for a term of two (2) years. Chairmen may be reappointed;
    5. Development and maintenance of plans consistent with administrative regulations promulgated by the commission; and
    6. Development of procedures for the annual review of emergency plans and procedures developed under this chapter.
  2. Local committees shall advise the commission of their actions by providing a copy of minutes to the commission within thirty (30) days of the date of the meeting. If the minutes are later changed before approval, a copy of the revised minutes shall be submitted to the commission within thirty (30) days of the approval.
  3. Local committees may request the chief of the fire department with jurisdiction over a facility which has, or may have, substances subject to Title III, Pub. L. No. 99-499, to make on-site inspections of the facilities and to report all findings to the chairman of the committee.
  4. Members of local committees shall serve for terms as specified by the commission, though not to exceed four (4) years except by reappointment. Committees may establish attendance standards for continued membership and shall advise the commission of any additions or deletions from the membership that are desired. These changes may be approved or disapproved by the commission.
  5. Committee meetings shall be subject to provisions of KRS 61.805 to 61.850 relating to public meetings and to KRS 61.870 to 61.884 relating to open records, provided that trade secrets, as determined by the federal Environmental Protection Agency, are processed in accordance with 42 U.S.C. 11042.
  6. The local committee may, after consultation with the commission chairman, seek civil remedies prescribed in Section 326, Pub. L. No. 99-499.
  7. The local committee may, with the advice and consent of the commission chairman, submit information to the county attorney for prosecution.
  8. Consultations pursuant to subsection (6) of this section shall be made prior to the giving of notice of intent to commence a civil action.

History. Enact. Acts 1998, ch. 226, § 68, effective July 15, 1998.

Compiler’s Notes.

Title III, Pub. L. No. 99-499 referred to in this section is known as the Emergency Planning and Community Right-to-Know Act of 1986 and is compiled as 42 USCS §§ 11001 et seq.

39E.120. Commission to be advised of receipt of excess quantities of hazardous substances.

Owners or operators of facilities which manufacture, use, or store extremely hazardous substances, as identified in 40 C.F.R. Part 355, and in quantities as identified in administrative regulations promulgated by the Division of Emergency Management shall advise the commission, local committee, and fire department in whose jurisdiction the facility resides, of the name of the substance and its quantity, within sixty (60) days of the date the facility first receives the substance or substances in excess of the quantities as identified in the administrative regulations, or if there is a revision of these regulations and the facility has present a substance or substances on the revised list in excess of the quantity established for those substances, within sixty (60) days.

History. Enact. Acts 1998, ch. 226, § 69, effective July 15, 1998.

39E.130. Naming of facility representatives — Liaison duties.

Owners or operators of facilities covered under KRS 39E.120 shall identify, within thirty (30) days of notifying the commission that the facility is subject to this chapter, the name of a facility representative who will work with the local committee in the development of emergency plans, and that person shall provide information necessary to the development of those plans.

History. Enact. Acts 1998, ch. 226, § 70, effective July 15, 1998.

39E.140. Political entities required to participate in local planning process.

  1. City, county, urban-county governments, and charter county governments, school districts, special purpose district boards, or other municipal corporations or political subdivisions of the state or local government shall participate in the planning process conducted by local emergency planning committees. This participation shall include, as a minimum, providing information concerning government-owned or controlled emergency response assets, reviewing plans developed by the committee, and concurring that the final plan can be executed with existing resources.
  2. In local governments where local emergency management agencies receive state or federal funds, those agencies shall provide administrative and planning support to the committee as specified by the director of the division.
  3. If state or federal funds are appropriated specifically to support emergency response planning or other portions of Pub. L. No. 99-499, these funds may be allocated to local emergency management agencies and may be expended as specified by the director.
  4. Local governments may enact ordinances specifying standards which owners or operators of facilities shall meet to provide warning of releases to workers and to the public which may be affected by a release.

History. Enact. Acts 1998, ch. 226, § 71, effective July 15, 1998.

Compiler’s Notes.

Title III, Pub. L. No. 99-499 referred to in this section is known as the Emergency Planning and Community Right-to-Know Act of 1986 and is compiled as 42 USCS §§ 11001 et seq.

39E.150. Plan development, approval, and review.

  1. Plans developed under the guidance of the state commission shall be a part of the local emergency operations plan’s hazardous materials annex. These plans shall be consistent with the requirements and criteria prescribed by the Kentucky Emergency Operations Plan’s hazardous materials annex and shall emphasize a coordinated response by all local emergency response organizations.
  2. If, in the judgment of the commission, the local plan is inadequate, or is inconsistent with the Kentucky Emergency Operations Plan, the local plan shall be returned to the committee and the committee shall revise the plan until approved by the commission.
  3. Local committees shall annually review and update, where appropriate, each plan and submit revisions to the commission.

History. Enact. Acts 1998, ch. 226, § 72, effective July 15, 1998.

39E.160. Response to be consistent with plan.

After the state commission approves plans developed by each local emergency planning committee, emergency response organizations of each city, county, urban-county government, and charter county government shall respond in a manner consistent with those plans.

History. Enact. Acts 1998, ch. 226, § 73, effective July 15, 1998.

39E.170. State agency response.

Agencies of state government shall respond, within the confines of the Kentucky Emergency Operations Plan and agency policies, to releases of hazardous substances. Each response shall be consistent with the hazardous materials annex of the Kentucky Emergency Operations Plan. If an on-scene response is required by the Kentucky Emergency Operations Plan or by agency policy, state agencies shall cooperate with one another and with local emergency response organizations and with the party or parties responsible for that release.

History. Enact. Acts 1998, ch. 226, § 74, effective July 15, 1998.

39E.180. Claims to be filed with Kentucky Claims Commission.

Any claims against the commission or committees or their members shall be filed with the Kentucky Claims Commission in accordance with KRS 49.040 to 49.180 .

HISTORY: Enact. Acts 1998, ch. 226, § 75, effective July 15, 1998; 2017 ch. 74, § 59, effective June 29, 2017.

39E.190. Report of release of substance.

When a release of a substance covered under Title III, Pub. L. No. 99-499 and administrative regulations promulgated under this chapter occurs in a reportable quantity, the owner or operator of the facility where the release occurs, or the owner or operator of the vehicle transporting the hazardous substance, shall notify the local and state warning points within times established by administrative regulation. These regulations shall also specify information to be provided upon initial report and in written follow-up reports.

History. Enact. Acts 1998, ch. 226, § 76, effective July 15, 1998.

Compiler’s Notes.

Title III, Pub. L. No. 99-499 referred to in this section is known as the Emergency Planning and Community Right-to-Know Act of 1986 and is compiled a 42 USCS §§ 11001 et seq.

39E.200. Establishment of warning and notification standards.

  1. The state commission shall, by administrative regulation promulgated by the Division of Emergency Management, establish warning and notification standards, which shall include, but not be limited to:
    1. The establishment of twenty-four (24) hour warning points;
    2. Public warning; and
    3. Notification of local emergency response organizations.
  2. Any notification made pursuant to this chapter shall not relieve the facility owner or operator or other responsible party of any notification required by other state or federal laws or regulations.

History. Enact. Acts 1998, ch. 226, § 77, effective July 15, 1998.

39E.210. Report of inventories and location of extremely hazardous substances.

The division shall, upon direction of the commission, promulgate administrative regulations requiring manufacturers, users, or storers of hazardous substances to report information concerning inventories and locations of those substances. These administrative regulations shall use, by reference, lists of extremely hazardous substances and forms issued by the United States Environmental Protection Agency or by the Kentucky Emergency Response Commission.

History. Enact. Acts 1998, ch. 226, § 78, effective July 15, 1998.

39E.220. Additional information may be required.

Upon request of the commission or local committee, facilities covered by those administrative regulations required in KRS 39E.210 shall, within the time periods prescribed by federal law, provide additional information necessary for developing and implementing the emergency plan about each substance to include, but not be limited to, material safety data sheets.

History. Enact. Acts 1998, ch. 226, § 79, effective July 15, 1998.

39E.230. Reports available to public — Protection of trade secrets.

Reports to the commission or committee shall be available to the public upon request in accordance with the provisions of KRS 61.870 to 61.884 relating to open records, if this information is not protected from release to the general public as a trade secret under federal law. Reasonable fees, consistent with KRS 61.874 , may be charged for reproduction of these reports.

History. Enact. Acts 1998, ch. 226, § 80, effective July 15, 1998.

39E.240. Chapter supplemental to other laws.

No section of this chapter shall be construed as repealing any other laws of the Commonwealth, but it shall be held and construed as ancillary and supplemental to those laws.

History. Enact. Acts 1998, ch. 226, § 81, effective July 15, 1998.

39E.990. Penalties.

  1. Any person violating any provision of this chapter or any administrative regulation promulgated or order issued pursuant to this chapter for which another penalty is not specified shall be guilty of a Class A misdemeanor.
    1. When a person violates KRS 39E.120 , 39E.130 , 39E.190 , or 39E.220 , the commission chairman shall proceed against that person under paragraph (b) of this subsection or subsection (3) of this section but not both. (2) (a) When a person violates KRS 39E.120 , 39E.130 , 39E.190 , or 39E.220 , the commission chairman shall proceed against that person under paragraph (b) of this subsection or subsection (3) of this section but not both.
    2. Any person violating KRS 39E.120, 39E.130, or 39E.220 shall, upon the first conviction thereof, be fined not less than two hundred and fifty dollars ($250) nor more than five hundred dollars ($500). If any offense is continued for more than one (1) day, each day upon which the offense occurs or is continued shall be considered and constitute a separate offense and a separate fine may be imposed. Any person violating KRS 39E.120, 39E.130, or 39E.220 shall, upon subsequent convictions, be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000). If any offense is continued for more than one (1) day, each day upon which such offense occurs or is continued shall be considered and constitute a separate offense and a separate fine may be imposed. Any person violating KRS 39E.190 shall, upon the first conviction, be fined not less than one thousand dollars ($1,000) nor more than twenty-five hundred dollars ($2,500). If any offense is continued for more than one (1) day, each day upon which the offense occurs or is continued shall be considered and constitute a separate offense and a separate fine may be imposed. Any person violating KRS 39E.190 shall, upon subsequent conviction, be fined not less than twenty-five hundred dollars ($2,500) nor more than five thousand dollars ($5,000). If any offense is continued for more than one (1) day, each day upon which the offense occurs or is continued shall be considered and constitute a separate offense and a separate fine may be imposed.
  2. Any person violating any provision of this chapter shall be assessed a civil penalty of not less than two hundred and fifty dollars ($250) nor more than five hundred dollars ($500). If any violation is continued for more than one (1) day, each day upon which the violation occurs or is continued shall be considered and constitute a separate violation and a separate civil penalty may be imposed therefor.

History. Enact. Acts 1998, ch. 226, § 82, effective July 15, 1998.

CHAPTER 39F Local Rescue Programs — State and Local Search and Rescue Programs

39F.010. Definitions for chapter.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Developmental disability” has the same meaning as in KRS 387.510 ;
  2. “General rescue squad” means a rescue squad which performs one (1) or more of the following functions as a stated mission of the organization:
    1. Light duty rescue;
    2. Extrication of persons from vehicles;
    3. Water rescue and recovery operations not utilizing divers;
    4. Search for lost, trapped, or missing persons not utilizing dogs;
    5. Low angle rescue and recovery operations; and
    6. High angle rescue and recovery operations;
  3. “Impaired person” means a person who has a known or reported:
    1. Developmental disability, including but not limited to autism, or traumatic brain injury and whose disappearance poses a credible threat to the health or safety of the person, as determined by the Department of Kentucky State Police or a local law enforcement agency; or
    2. Physical, mental, or cognitive impairment or organic brain disorder, including but not limited to Alzheimer’s disease, and whose disappearance poses a credible threat to the health or safety of the person, as determined by the Department of Kentucky State Police or a local law enforcement agency;
  4. “Reports and notification” means the reporting and notification of any search and rescue mission to the appropriate agency or person in the manner as specified by this chapter;
  5. “Rescue” means gaining access, rendering appropriate care, and transporting of a person or persons by whatever means, to a safe environment for appropriate care;
  6. “Rescue squad” means any organization which engages in the search for lost persons, rescue of persons, rescue of persons who are trapped or who are in need of rescue services, search for and recovery of drowned persons, or any other rescue related activity. “Rescue squad” shall not include the rescue of persons from a fire by a fire department, the extrication of persons from a vehicle or other activities which an emergency medical technician, emergency medical technician first responder, or paramedic is authorized to perform pursuant to applicable statutes and administrative regulations, if the activities are performed by a person for an ambulance service or in the role of a first responder. If these activities are performed other than as a first responder or in the role of an ambulance service and are involved in rescue operations, they come within the purview of activities of a rescue squad;
  7. “Search” means the process of looking for a person or persons whose location is not precisely known, and who may be in distress;
  8. “Search and rescue” (“SAR”) means the process of looking for a lost, missing, or overdue person or persons who may be in distress, and rendering care with the use of appropriately trained and adequately equipped personnel;
  9. “Search and rescue mission” includes, but is not limited to, searching for a missing or lost person or persons, cave rescue, high angle or rough terrain rescue, urban search and rescue, dive rescue and recovery of drowning victims, inland water search, rescue, and recovery. “Search and rescue” may also include any mission permitted pursuant to this chapter. A “search and rescue mission” does not include mine rescue missions under the jurisdiction of the Department for Natural Resources pursuant to KRS Chapter 351;
  10. “Specialized rescue squad” means a rescue squad which performs one (1) or more of the following functions as the primary or sole mission of the organization:
    1. Cave rescue;
    2. Search utilizing dogs for lost, trapped or missing persons;
    3. Search for lost, trapped or missing persons, aircraft, or vehicles, utilizing aircraft, but does not apply to licensed air ambulances, active or reserve military organizations, the National Guard, or the Civil Air Patrol; and
    4. Water rescue and recovery operations utilizing divers;
  11. “Traumatic brain injury” has the same meaning as in KRS 211.470 ;
  12. “Veteran at risk” means a veteran or an active-duty member of the Armed Forces, the National Guard, or a military reserve component of the United States who is known to have a physical or mental health condition, to include post- traumatic stress disorder (PTSD), that is related to his or her service; and
  13. “Victim recovery” means the search for and the removal to the jurisdiction of the coroner of the remains of a person known or believed to be dead. If the person is found alive, it includes rescue of the person.

History. Enact. Acts 1998, ch. 226, § 83, effective July 15, 1998; 2005, ch. 123, § 10, effective June 20, 2005; 2008, ch. 109, § 1, effective July 15, 2008; 2012, ch. 106, § 2, effective July 12, 2012; 2019 ch. 54, § 1, effective June 27, 2019.

Legislative Research Commission Note.

(7/12/2012). 2012 Ky. Acts ch. 106, sec. 6, provides that Sections 2 to 5 of the Act, which included an amendment to this statute, shall be known as the “Chase McMurray Act.”

(7/15/2008). 2008 Ky. Acts ch. 109, sec. 4, provides that Sections 1 to 3 of this Act, which included an amendment to this statute, shall be know as the “Golden Alert Bill.”

39F.020. Rescue squads — Formation — Authorization to operate within a jurisdiction — Functions — Public notification of lost or missing impaired persons.

  1. Rescue squads may be formed and duly authorized to perform in the public interest. Authorization to operate within a jurisdiction may be granted by the chief elected official of each urban-county government, charter county government, county, or city which the squad proposes to serve. Rescue squads shall have a formal affiliation with the local disaster and emergency services organization. The statement of affiliation shall be renewed annually.
  2. Except as provided in KRS 39F.040 , a rescue squad shall be composed of at least twelve (12) active members and shall maintain at least one (1) vehicle dedicated to rescue service. Squads may operate in conjunction with a fire division, or may operate as a separate unit.
  3. Each rescue squad shall develop and maintain bylaws and written procedures to specify, at a minimum, election or appointment, succession, and term of officers; financial accounting; property accountability; and rules of notification and response to emergencies.
  4. Rescue squads shall contribute to public safety and welfare by performing functions which may include but not be limited to: removal of victims trapped in vehicles or structures; search for lost or missing persons or missing impaired persons, except those sought for criminal acts; first aid; emergency evacuation; recovery of drowning victims; recovery of any corpse if not accessible by ambulance or hearse and if so authorized by the coroner; and traffic control at an accident scene when requested by law enforcement authorities. Rescue squads organized for the purpose of searching for lost or missing persons which are searching for an impaired person shall work in cooperation with local media outlets to notify the public that an impaired person is lost or missing. Rescue squads shall not engage in law enforcement activities other than traffic control.
  5. The division shall administer funds appropriated for rescue equipment and training and the division shall promulgate administrative regulations to be applied to all rescue squads that apply for financial assistance.

History. Enact. Acts 1998, ch. 226, § 84, effective July 15, 1998; 2008, ch. 109, § 2, effective July 15, 2008; 2012, ch. 106, § 3, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). 2012 Ky. Acts ch. 106, sec. 6, provides that Sections 2 to 5 of the Act, which included an amendment to this statute, shall be known as the “Chase McMurray Act.”

(7/15/2008). 2008 Ky. Acts ch. 109, sec. 4, provides that Sections 1 to 3 of this Act, which included an amendment to this statute, shall be know as the “Golden Alert Bill.”

39F.030. Regional or statewide specialized rescue services — Alternative affiliations agreement and alternative vehicle and equipment requirements.

  1. A rescue squad which proposes to provide regional or statewide specialized rescue services may apply to the director for an alternative affiliation agreement and alternative vehicle and equipment requirements in lieu of those specified in KRS 39F.120 under the following terms and conditions:
    1. The rescue squad meets all of the requirements specified in KRS 39F.120 except for a local affiliation agreement, vehicle dedicated solely to rescue service, or possession of basic rescue equipment.
    2. The director accepts, in writing, that the rescue squad will provide a needed rescue service either on a regional or statewide basis.
    3. The rescue squad and the director execute an affiliation agreement containing the same information required in KRS 39F.120 for a local affiliation agreement.
    4. The rescue squad maintains specialized rescue equipment appropriate to its mission as specified in the affiliation agreement or an annex thereto.
    5. The requirement for a vehicle dedicated solely to rescue service may be waived, in writing, by the director upon determination that having a specific vehicle may be inappropriate to the mission of the rescue squad and that the rescue squad has adequate means of transportation enabling it to respond in an efficient manner.
    6. The rescue squad, when requested to provide services, shall immediately notify and coordinate activities with the local director and with the local rescue squads serving the county in which the response is requested.
  2. Agreements specified in subsection (1) of this section shall be renewed annually.
  3. Rescue squads participating in the alternative program specified in this section shall be eligible to participate in rescue grant funding, state sponsored workers’ compensation, training, and other programs of the division.
  4. Rescue squads operating under an agreement pursuant to this section may respond in any county covered by the agreement, or statewide if the agreement permits. Rescue squads covered under an agreement pursuant to this section may respond in counties not covered by the agreement only by request of the rescue squad or public officials in that county or upon request of the director or his designee.

History. Enact. Acts 1998, ch. 226, § 85, effective July 15, 1998.

39F.040. Specialized squad using search dogs — Requirements — Organization of general rescue squad.

  1. One or more persons with search dogs and handlers may constitute a specialized rescue squad using search dogs, under the terms and conditions as specified in writing by the director;
  2. Each handler of a dog shall have a vehicle available for the transportation of the dog and handler to the scene of a search;
  3. Each handler shall meet the training requirements of the statutes and administrative regulations relating to searching with dogs;
  4. The primary dog utilized in responding to the search shall be certified in accordance with the statutes and administrative regulations;
  5. Each handler shall have the equipment required by statute or administrative regulation for searching with dogs; and
  6. No single search dog handler shall engage in general rescue squad activity or specialized rescue squad activity unless he or she is a member of such an organization.

History. Enact. Acts 1998, ch. 226, § 86, effective July 15, 1998.

39F.050. Organization of general rescue squad.

  1. A general rescue squad shall be organized pursuant to KRS 39F.020 or 39F.030 and shall engage in one or more of the activities listed in the definition of a general rescue squad. A general rescue squad may engage in any other activity, other than ones prohibited by law or administrative regulation, if the activity is specified in its mission statement.
  2. A general rescue squad shall not engage in a specialized rescue squad activity as a primary mission unless it meets the requirements of subsection (3) of this section. A general rescue squad may engage in a specialized rescue squad activity as an initial responding unit within its service area, however, upon responding to such an activity, the highest officer in command of the response shall cause the immediate notification of the appropriate specialized rescue squad, the local director, and the duty officer of the Division of Emergency Management.
  3. A general rescue squad may engage in a specialized rescue squad activity if:
    1. That activity is specified in its mission statement;
    2. The rescue squad has twelve (12) persons including a commanding officer from within its membership of the rescue squad whose mission statement is to engage in the specialized rescue squad activity;
    3. The persons assigned to the specialized rescue squad activity meet the training requirements specified by statute and by administrative regulation;
    4. The rescue squad has the equipment required by administrative regulation to engage in the specialized rescue squad activity listed in its mission statement; and
    5. The rescue squad has a vehicle for transporting the required equipment to the scene.

History. Enact. Acts 1998, ch. 226, § 87, effective July 15, 1998.

39F.060. Activities permitted for general and specialized rescue squads.

  1. A general rescue squad may engage in general and any specialized rescue squad activity utilizing one or more vehicles that hold all of the equipment required for both the general and specialized rescue squad activities specified in its mission statement.
  2. A specialized rescue squad may engage in one or more specialized rescue squad activities or general rescue squad activities utilizing one or more vehicles that hold all of the equipment required for the specialized, or general and specialized, rescue squad activities specified in its mission statement.
  3. The director may waive, in writing, the requirement, upon good cause shown, and upon written alternative plan submitted by a specialized rescue squad showing that adequate response equipment can be transported to the scene in an efficient manner without the necessity for a squad-owned vehicle.

History. Enact. Acts 1998, ch. 226, § 88, effective July 15, 1998.

39F.070. Specialized rescue squad — Activities permitted.

  1. A specialized rescue squad shall engage in one or more of the activities listed in the definition of a specialized rescue squad. A specialized rescue squad may engage in any other activity, other than the ones prohibited by law or administrative regulation, if the activity is specified in its mission statement.
  2. A specialized rescue squad shall not engage in a general rescue squad activity as a primary mission unless it meets the requirements of subsection (3) of this section. A specialized rescue squad may engage in a general rescue squad activity as an initial responding unit within its service area, however, upon responding to that activity, the highest officer in command of the response shall cause the immediate notification of the appropriate general rescue squad for assistance, the local director, and the duty officer of the Division of Emergency Management.
  3. A specialized rescue squad may engage in a general rescue squad activity if:
    1. That activity is specified in its mission statement;
    2. The rescue squad has twelve (12) persons including a commanding officer from within the membership of the specialized rescue squad whose mission statement is to engage in the general rescue squad activity;
    3. The persons assigned to the general rescue squad activity meet the training requirements specified by statute and administrative regulation;
    4. The rescue squad has the equipment required by administrative regulation to engage in general rescue squad activity as listed in its mission statement; and
    5. The rescue squad has a vehicle for transporting the required equipment to the scene.

History. Enact. Acts 1998, ch. 226, § 89, effective July 15, 1998.

39F.080. State coordinator for search and rescue — Appointment and duties.

The director of the Division of Emergency Management shall appoint a state coordinator of search and rescue, who shall:

  1. Identify, inventory, and coordinate resources available for searches and rescues;
  2. Investigate and apply for grants and other financial assistance for searches and rescues;
  3. Maintain statistics regarding searches and rescues;
  4. Coordinate assistance during searches and rescues;
  5. Act as liaison with other states’ operations involving searches and rescues;
  6. Provide assistance, upon request, during searches and rescues;
  7. Prepare a plan for searches and rescues;
  8. Prepare and distribute publications relating to searches and rescues;
  9. Establish, by administrative regulation, recommendations for organizations specializing in search and rescue, and certify organizations which meet those recommendations at the appropriate level;
  10. Maintain a list of all certified organizations and resources;
  11. Coordinate training in techniques of search and rescue; and
  12. Coordinate requests for federal assistance with the Air Force Rescue Coordination Center.

History. Enact. Acts 1998, ch. 226, § 90, effective July 15, 1998.

39F.090. Coordinating and planning responsibility.

  1. The local search and rescue coordinator of each political subdivision, appointed in accordance with KRS 39F.200 , shall be responsible for coordinating and planning for local search and rescue activities. Operation of search and rescue activities shall be in accordance with the Kentucky Emergency Operations Plan, and the local emergency operations plan approved by the elected chief executives of each local political subdivision. The local search and rescue coordinator shall notify the duty officer of the Division of Emergency Management of all search and rescue missions. The local search and rescue coordinator shall work in a coordinating capacity directly supporting all search and rescue activities in that political subdivision, and in registering emergency search and rescue workers. The chief of the appropriate law enforcement agency of each political subdivision may, upon request of the local director or local search and rescue coordinator, restrict access to a specific search and rescue area to personnel authorized by the local director. Access shall be restricted only for the period of time necessary to accomplish the search and rescue mission. An unauthorized person shall not interfere with a search and rescue mission.
  2. When search and rescue activities result in the discovery of a deceased person or search and rescue workers assist in the recovery of human remains, the chief law enforcement officer of the political subdivision shall insure compliance with the provisions of KRS Chapter 72.

History. Enact. Acts 1998, ch. 226, § 91, effective July 15, 1998.

39F.100. Rescue Aid Program — Purpose.

The Rescue Aid Program, which is administered pursuant to this chapter and appropriations in the state budget, is designed to:

  1. Reduce and prevent the loss of life by creating a better equipped, trained, and coordinated rescue force throughout the Commonwealth;
  2. Upgrade the capabilities of local rescue squads by providing financial assistance to be used to purchase equipment and obtain training; and
  3. Encourage the development of rescue squads where none exist.

History. Enact. Acts 1998, ch. 226, § 92, effective July 15, 1998.

39F.110. Rescue aid fund — Duties of director of division — Local director’s responsibilities.

  1. The director of the division shall have overall responsibility for policy, guidance, administration, implementation, and proper utilization of the rescue aid fund.
  2. The director shall serve as principal liaison between the division and local officials participating in programs affected by the rescue aid fund, and shall ensure proper utilization of the rescue aid fund.
  3. The director shall appoint an advisory committee consisting of seven (7) members, including no more than four (4) employees of the staff of the division to assist in making determinations related to rescue grant fund allocations, compliance with fund requirements, releasing equipment to rescue squads, and withdrawal and reallocation of equipment or funds. The members of the committee shall serve at the pleasure of the director, but for no more than four (4) years without reappointment, and shall serve without reimbursement, except when funded through the Emergency Management Assistance Program. The decisions of the committee shall be advisory only and shall not be binding upon the director.
  4. The director, with the advice of the advisory committee, shall make determinations relating to rescue grant fund applications, releasing equipment to rescue squads, and withdrawal and reallocation of equipment or funds.
  5. Area managers of the division shall fully explain rescue grant opportunities and requirements to local elected officials, local emergency management directors, and local rescue squads; review rescue grant fund applications, documentation and program submissions; and make recommendations to the director.
  6. Local emergency management directors shall be responsible for submitting rescue grant fund applications and documentation of expenditures to the division, as required, and shall facilitate and ensure the coordination of local rescue programs to meet the needs of the communities served.
  7. The chief officer of the rescue squad shall initiate rescue grant fund applications, submit all applications or documentation to the local emergency management director, and ensure that all funds are expended for items or services as approved.

History. Enact. Acts 1998, ch. 226, § 93, effective July 15, 1998.

39F.120. Requirements for rescue grant funding — Written standard operating procedures — Bylaws — Rescue vehicle — Membership — Training — Affiliation — Service fee prohibited.

In order to ensure that rescue squads seeking funding under the rescue grant program achieve and maintain compliance with the provisions of this chapter, the following requirements shall be met:

  1. Each rescue squad shall develop written bylaws to specify as a minimum:
    1. The mission of the rescue squad.
    2. The election or appointment, succession, and term of officers.
    3. Financial accounting and property accountability.
    4. Administrative procedures.
    5. Definition of active membership in the squad.
  2. Each rescue squad shall develop written standard operating procedures which specify as a minimum:
    1. Procedures and rules for notification and response to emergencies.
    2. Procedures for all operations and response activities of the squad in accordance with the mission statement.
  3. A current copy of the bylaws and a current copy of all standard operating procedures shall be sent by the squad to the division. Amendments to the bylaws and standard operating procedures shall be sent to the division within ten (10) working days of their adoption. The division shall maintain a file of rescue squad bylaws and standard operating procedures. These files shall be public records. Copies of the bylaws and standard operating procedures of the squad, updated as required in this subsection, shall also be sent concurrently to the local emergency management director.
  4. Each rescue squad shall have a vehicle dedicated solely to rescue service. The make, model, year, vehicle identification number, and license number of each vehicle used by the squad solely for rescue service shall be supplied to the local emergency management director and to the division. When a new vehicle is put in service, or a vehicle is withdrawn from service, both the local director and the division shall be notified within ten (10) working days.
  5. A minimum of twelve (12) persons shall be identified by name as active members of the rescue squad.
  6. The active membership list of the rescue squad shall be submitted quarterly to the division through the area manager with a copy of the same list submitted concurrently to the local emergency management director.
  7. The active membership list shall be continuously maintained in an accurate and current status by the rescue squad, and shall be available for inspection by state and local government officials, employees, and the public.
  8. Rescue squads shall maintain a formal training program appropriate to accomplish the mission of the rescue squad.
    1. The training program shall consist of not less than two (2) hours of formal training per month. Actual rescue missions shall not constitute training.
    2. To be eligible for continued funding, each squad shall report not less than one hundred sixty-eight (168) man-hours of training for its members annually. This training shall be reported on the incident and training reports submitted pursuant to this chapter.
    3. Training at a rescue school provided by an emergency management agency or other appropriate training may be utilized to meet the requirements of subsection (2)(b) of this section.
  9. Rescue squads shall be formally affiliated with the local disaster and emergency services organization through the following means:
    1. Execution of a city or county order or ordinance, the adoption of a written search and rescue plan pursuant to KRS 39F.190 , and the promulgation of a written statement of affiliation as the local charter of authorization signed by the county judge/executive or mayor, the local emergency management director, and the chief rescue officer outlining a specific working agreement. The statement of affiliation shall be subject to annual renewal. No statement of affiliation shall be subject to automatic renewal; it shall be an affirmative process. The document shall include, as a minimum, call out authority, chain of command, the responsibilities of each concerned party, terms and conditions of the local charter of authorization to operate in the jurisdiction, and procedures for revocation of the local charter, and shall be reviewed by the chief elected official of the government signing it and the local director. Both shall certify, if signing the document, that they have reviewed the mission statement of the rescue squad and the statement of affiliation and that they find that the rescue squad possesses:
      1. Adequate numbers of trained personnel to perform the mission;
      2. Proper and adequate equipment, including at least all of the required equipment specified by administrative regulations of the division, to perform the mission, and that the equipment is in proper working order;
      3. A rescue vehicle, dedicated solely to rescue purposes, which is adequate to perform the mission of the squad, and is in proper working order; and
      4. Adequate command and control personnel, training, and policies to ensure that the squad can quickly and efficiently respond and perform its mission when called upon.
    2. Incorporation, into the statement of affiliation, of a finding by the chief elected official and the local director that, following review of the mission statement of the rescue squad and the statement of affiliation, the rescue squad is performing a function not performed by other agencies of government or private agencies or organizations. If other organizations are performing functions which are listed on the mission statement of the rescue squad, then the statement shall contain reasons why duplication of existing services of other organizations by the rescue squad is necessary; and
    3. Incorporation of the responsibilities of the rescue squad into the rescue services annex of the local emergency operations plan or other appropriate annex.
  10. If either the chief elected official or the local director declines to sign the statement of affiliation provided for in subsection (9) of this section, the rescue squad shall be without local charter and shall return to the division all equipment purchased with state funds. This return of equipment shall take place within five (5) days of the refusal of either designee to sign the statement of affiliation. Neither the chief elected official nor the local director shall be required to state a reason why they sign or decline to sign a statement of affiliation.
  11. When a rescue squad is not independent, but is incorporated within other emergency service agencies or divisions, such as a fire department or fire division, the squad members shall be available for and capable of performing rescue services not incidental to their primary mission.
  12. Rescue squads shall maintain a full complement of minimum equipment appropriate to the type of rescue to be undertaken. Minimum equipment lists and other requirements for rescue squads shall be promulgated by the director by administrative regulation.
  13. Rescue squads shall not assess fees or charges for any rescue activity.

History. Enact. Acts 1998, ch. 226, § 94, effective July 15, 1998.

39F.130. Rescue and project funding — Application and review process.

  1. A rescue grant fund project application shall be initiated by the chief rescue officer and forwarded to the local emergency management director. The local director shall review all applications for completeness and accuracy, prioritize and consolidate the applications, and make recommendations thereon. In the absence of a local director, the county judge/executive shall fill this role.
  2. The local director shall forward all applications to the area manager of the division, who shall review them, make recommendations thereon, and forward documentation to the director.
  3. The director shall forward all applications to the advisory committee. The advisory committee shall meet during the months of April, August, and December on dates announced by the director, to assess applications and compliance and to make recommendations to the director with regard to allocations of funds, assessment of compliance, reallocations of funds, release of equipment, reallocation of equipment, and any other matters assigned by the director. The advisory committee shall:
    1. Hold only public meetings; and
    2. Maintain written minutes reflecting the actions of the advisory committee. All applications on file and all other matters pending shall be reviewed during each session and recommendations made thereon to the director.
  4. Requests for funding shall be evaluated by the following criteria:
    1. Meeting the minimum eligibility criteria of KRS 39F.020 or 39F.120 and KRS 39F.030 , unless some aspect thereof has been waived as provided in KRS 39C.090 . In determining membership eligibility, no person may be counted as a member of more than one (1) rescue squad even though that person may be available to or a me