Advocates Fear Letter from KACo to Counties Could Hurt Local Smoke-free Efforts

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LEXINGTON-HERALD LEADER | BILL ESTEP | MAY 10, 2015

Health advocates are concerned that efforts to pass local ordinances against smoking in public buildings could be undercut by an insurer’s letter warning counties of potential rate increases if they get sued over such measures.

The letter from the Kentucky Association of Counties does not square with laws and a Supreme Court decision under which local governments have authority to bar smoking in public buildings, according to a legal consultant to the Kentucky Center for Smoke-free Policy.

The KACo communication already has played a role in scuttling a smoke-free law in McCreary County, where the fiscal court voted 4-1 in mid-February to approve the first reading of a law to ban smoking in public buildings.

But after the county received the Feb. 23 letter from KACo that raised the specter of higher premiums, the ordinance died when it came up for a required second reading, said Judge-Executive Doug Stephens.

Stephens said that some residents objected to the law after the first vote but that the notice from KACo was certainly a factor in the decision to drop the issue.

There is a concern that the letter could deter other counties from considering laws to protect people from being exposed to secondhand smoke, said Ellen Hahn, a professor of nursing at the University of Kentucky and head of the Kentucky Center for Smoke-free Policy.

“It definitely could affect what happens in other local jurisdictions,” Hahn said. “It had a profound effect on McCreary County.”

Denny Nunnelley, KACo’s executive director and chief executive officer, said the letter was not intended to keep counties from passing laws of any kind, including smoke-free ordinances.

Rather, Nunnelley said, many counties got new judges-executive and magistrates at the first of the year, so KACo officials thought it made sense to send a reminder that lawsuits challenging ordinances could result in higher insurance costs.

The organization provides coverage for 113 of the state’s 120 counties through one of its programs. The letter went to all 113, Nunnelley said.

The letter noted that counties had been asked recently to consider ordinances on issues that “have traditionally been addressed more frequently at the state level.”

It cited four examples: smoking in public places, same-sex marriage, right-to-work laws and the minimum wage.

Nunnelley said in the letter that he was writing at the request of the directors of the insurance fund to suggest counties “tread cautiously in venturing into these areas.”

“The more an insurer has to pay out in claims on behalf of a county, whether paying settlements or judgments or paying the costs to defend lawsuits, the higher the county’s insurance premiums will be,” Nunnelley said in the letter.

Right-to-work laws were a hot topic at the time. More than half a dozen counties had approved local right-to-work ordinances on first or second reading in the two months before the advisory from KACo, and labor unions had sued one, Hardin County.

Under right-to-work laws, employees at companies where there is a union may opt out of paying dues.

Supporters argue right-to-work laws are necessary to be more competitive in attracting development. Detractors say they are designed to undercut unions.

Nunnelley’s letter told local officials that KACo’s insurance program had decided to defend Hardin County, but that the organization would make case-by-case decisions on defending other counties based on the complaint against them and the language of policies.

“Nevertheless, one thing is certain: If coverage is provided, it will result in higher insurance premiums for the county,” the letter said.

Nunnelley said local smoke-free laws were just another example to cite in the letter. KACo was not trying to send a message against such laws, he said.

One problem with the letter, however, is that the Kentucky Constitution, state law and a Supreme Court case all make clear that counties have the authority to enact and enforce smoke-free laws, said Judy Owens, an attorney who researched the issue as a consultant to the Kentucky Center for Smoke-free Policy.

“It’s unequivocal in Kentucky law,” Owens said.

The state Supreme Court case on the issue is from Lexington. The Lexington-Fayette County Food and Beverage Association sued after the Urban County Council approved a law in 2003 barring smoking in restaurants and other public places.

The high court upheld a decision that let the law go into effect.

“Protecting the public from exposure to environmental tobacco smoke, sometimes known as secondhand smoke, can be the proper object of the police power of local government,” the decision said.

Owens said she considered it misleading for the KACo letter to cite smoke-free laws with the other issues mentioned in the letter.

There are state or federal standards on right-to-work, same-sex marriage and the minimum wage, but not on limiting smoking in public buildings.

Lawmakers have considered a statewide law on smoking in public buildings but have not approved it.

Hahn said there are two dozen communities with comprehensive smoke-free workplace laws, covering a third of the state’s population.

Indoor air pollution went down 91 percent in Lexington and 77 percent in Georgetown after those cities enacted smoke-free laws, according to a study cited by the center Hahn directs.

The study compared air samples in those cities with samples from Bell, Clay, Harlan, Jackson and Rockcastle counties.

Workers and business patrons in those counties were exposed to levels of indoor pollution 4.8 times greater than in Lexington, the study said.

Secondhand smoke contains tiny particles that can lodge in people’s lungs and are a cause of heart attacks, strokes, cancer and asthma attacks, according to the center.

Hahn said that if it was not KACo’s intent to discourage counties from considering smoke-free laws, it should send a new letter clarifying that, because in the absence of a statewide law, cities and counties need to enact comprehensive smoke-free measures.

“It’s up to the local governments to protect their people right now,” she said.