Could Kentucky Personnel Board members decide an appeal of the board's own firing decision?

Plain-English summary

The Kentucky Personnel Board had fired its executive director, who then appealed. The AG concluded that the board members who were parties to the appeal and had an interest in its outcome could not sit as its decision-makers. It applied the due-process need for an impartial administrative tribunal and compared the members' position to a judge disqualified by personal involvement. The opinion assumed the appellant had not made a written waiver.

Because the AG considered all board members disqualified in this case, it said the Governor's office should appoint a substitute tribunal. It identified a permissible size of four members, the board's quorum, through seven, the full board's size under the statutes then cited.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Personnel Board members

The AG said members who were parties to the executive director's appeal and had an interest in its result had to step aside. Its conclusion covered members serving at the time of the firing as well as those appointed afterward, as the opinion described the parties to this particular appeal. It qualified the answer by assuming no written waiver by the appellant.

Public employees and administrative appellants

The opinion treated the appeal as a quasi-judicial proceeding requiring an impartial decision-maker. It did not decide the merits of the executive director's dismissal. It addressed who could hear the appeal after the board members were disqualified.

Common questions

Could the members who fired the director hear the appeal?

No. The AG said their personal involvement and interest in the outcome required disqualification from deciding the appeal.

Did appointment after the firing automatically solve the problem?

Not in the appeal described. The opinion said even later-appointed board members were parties with an interest in that case and were disqualified, assuming no written waiver.

Who would hear the appeal if the entire board stepped aside?

The AG said the Governor's office should appoint a tribunal. It read the cited statutes as allowing four to seven members for that tribunal.

Background and statutory framework

The AG applied due-process principles to an administrative body acting in a quasi-judicial role. It relied on Poorman v. Commonwealth and the judicial-disqualification policy in KRS 26A.015 by analogy, and noted the possible significance of a written waiver through Small v. Commonwealth. With no statute directly addressing replacement of a wholly disqualified board, it looked to the Governor's appointment power and the quorum and board-size provisions in KRS 18A.070 and KRS 18A.045.

Citations and references

• KRS 26A.015: judicial disqualification rule used as an analogy.
• KRS 18A.070 and KRS 18A.045: quorum and board size cited for a replacement tribunal.
• Poorman v. Commonwealth, Ky., 782 S.W.2d 603 (1989): decision-maker disqualification principle.
• Small v. Commonwealth, Ky.App., 617 S.W.2d 61 (1981): written-waiver qualification cited by the AG.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG92-137.htm

Original opinion text

OAG 92-137

August 31, 1992

R. Hanson Williams

Executive Director of the Personnel Board

28 Fountain Place

Frankfort, Kentucky 40601

Dear Mr. Williams:

You have asked whether members of the personnel board who were on the board when it fired its executive director may participate in the appeal filed by the executive director. We believe that those members must disqualify themselves from participating in the appeal.

When an administrative body conducts a quasi-judicial proceeding, principles of due process apply. 1 AmJur2d, Administrative Law �148. Due process requires that the tribunal be uninfluenced by extraneous considerations, free from bias and prejudice, and imbued with a desire to accord equal satisfaction to the parties. 73A C.J.S., Public Administrative Law and Procedure �136. “An impartial tribunal is the sine qua non of a full and fair hearing.” Id.

In a related context we have said that a trial commissioner who was an executor of an estate is disqualified from participating in litigation regarding the estate. OAG 77-450. That conclusion derives from the general principle that a judge may not review a matter in which he participated as a decision-maker. Poorman v. Commonwealth, Ky., 782 S.W.2d 603 (1989). That policy is firmly expressed in KRS 26A.015, which states that a judge may not hear a case in which he has an interest in the outcome, is a party to the proceeding, or is likely to be a material witness.

We find no reason or logic that would allow a party to decide a quasi-judicial appeal when it is clear that the same party would be disqualified from hearing the case as a judge. The impropriety is the same in either situation; if a judge is disqualified from hearing a case because of personal involvement in the case, then certainly an administrative officer would also be disqualified from hearing a case because of personal involvement in the case.

Since all the members who were on the board, including the ones appointed after the executive director was fired, are parties to the appeal and have an interest in the outcome, they are disqualified from participating in the appeal. (This response assumes that the appellant has not executed a written waiver. Small v. Commonwealth, Ky.App., 617 S.W.2d 61 (1981).)

With all the board members disqualified from the case, the question arises how a tribunal should be selected to decide the appeal. Although no statute addresses this specific question, appointment power resides exclusively in the Governor and consequently the Governor's office should appoint a tribunal to decide the appeal. The size of the tribunal may range from four (a quorum; KRS 18A.070) to seven members (the size of the full board; KRS 18A.045).

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General