Could Kentucky's engineering licensing board use a hearing officer for disciplinary hearings?

Plain-English summary

In 1994, Kentucky's Attorney General reaffirmed an earlier opinion that the State Board of Registration for Professional Engineers and Land Surveyors could not assign its disciplinary hearings to a hearing officer. KRS 322.200(1) said charges “shall be heard by the board.” The AG read that language as requiring the board itself to conduct the hearings, even though the same sentence also imposed a six-month hearing deadline.

The AG found no implied delegation power in the board's authority to set procedural rules. He said a new administrative procedures law enacted in 1994 would expressly allow delegation of hearing duties when it took effect in 1996.

Currency note

This opinion was issued in 1994. 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

Engineering and land surveying board

The board asked the AG to reconsider OAG 79-116. He declined. The statutory command that the board hear charges remained unchanged, and the opinion found no basis to read the six-month deadline as displacing that command. The board's power to adopt procedural rules did not, in the AG's view, allow it to delegate a hearing contrary to the statute's text.

Licensed engineers and land surveyors facing charges

Under the 1994 provision quoted in the opinion, charges not dismissed as unfounded or trivial had to be heard by the board within six months unless the charged party waived that timing. The statute also required notice of the charges, time, and place at least thirty days before the hearing. The AG's answer concerned who could preside over that hearing: the board, not a delegated hearing officer under the law then in force.

Later administrative procedures law

The opinion said KRS 13B.030(1) would take effect in 1996 and then permit the board to delegate the power to preside over a disciplinary hearing to a hearing officer. That was a stated future change in the 1994 opinion, not a claim about the current law.

Common questions

Could the board use a hearing officer for a disciplinary hearing in 1994?
The AG said no. KRS 322.200(1) required the board to hear the charges itself.

Did the board's rulemaking power let it delegate hearings?
The AG said KRS 322.290(2)'s procedural-rule authority did not imply power to act outside the hearing requirement.

Did the six-month deadline change who had to hear the case?
No. The AG read the deadline and the requirement that the board hear charges as separate parts of the same sentence.

What change did the opinion expect in 1996?
It said KRS 13B.030(1) would expressly allow the board to delegate the power to preside over disciplinary hearings after that law became effective.

Background and statutory framework

The AG reaffirmed OAG 79-116, reading KRS 322.200(1)'s “heard by the board” language according to its ordinary meaning. He contrasted KRS 322.290(2)'s procedural-rule authority with express hearing-officer provisions for other licensing boards. He then read the new chapter 13B provisions as confirming that delegation required explicit authority.

Citations and references

• KRS 322.200(1)
• KRS 322.290(2)
• KRS 13B.030(1), (2)
• Comm. v. Shively, Ky., 814 S.W.2d 572, 573 (1991)

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG94-068.htm

Original opinion text

OAG 94-68

November 15, 1994

Subject: Use of hearing officer in hearings by Kentucky State Board of Registration for Professional Engineers and Land Surveyors

Written by: Matthew L. Mooney

Requested by: B. R. Salyer, General Counsel, Kentucky State Board of Registration for Professional Engineers and Land Surveyors

Syllabus: Kentucky State Board of Registration for Professional Engineers and Land Surveyors may not use a hearing officer to conduct hearings under KRS 322.200(1)

OAGs cited: OAG 79-116

Statutes construed: KRS 322.200(1); KRS 322.290(2); KRS 13B.010(4); KRS 13B.030(1); KRS 13B.030(2)

OPINION OF THE ATTORNEY GENERAL

We have been asked to reconsider our opinion in OAG 79-116 in which we opined that the State Board of Registration for Professional Engineers and Land Surveyors (hereafter "the Board") may not use a hearing officer to conduct hearings under KRS 322.200(1). KRS 322.200(1) provides as follows:

All charges, unless dismissed by the board as unfounded or trivial, shall be heard by the board within six (6) months after the date on which they are preferred. Provided, however, that a charged party may waive his right to a hearing within six (6) months. The time and place of the hearing shall be fixed by the board, and a copy of the charges, together with a notice of the time and place of the hearing, shall be personally served on or mailed to the last known address of the registrant at least thirty (30) days before the date fixed for the hearing.

The statutory mandate in KRS 322.200(1) that "[a]ll charges . . . shall be heard by the board . . . " has remained unchanged since this office's opinion in OAG 79-116.

In OAG 79-116, in response to a request by the Board for an opinion, this office construed KRS 322.200(1) to prohibit the Board from using a hearing officer to conduct disciplinary hearings. Our opinion at that time was that the board was bound by the clear legislative mandate that "[a]ll charges . . . shall be heard by the board . . . ." (Emphasis ours.) After reconsidering this matter we can find no reason to deviate from our prior opinion.

First, the language of KRS 322.200 is clear and unambiguous. The first sentence of subsection (1) of KRS 322.200 mandates that hearings shall be conducted "by the board" and that is what it means. That same sentence goes on to provide that the Board shall hear matters "within six (6) months after the date on which they are preferred." However, nothing in this last phrase indicates that the emphasis in the first sentence of KRS 322.200(1) is or should be on the six month deadline and not on the requirement that "the board" hear cases. In short, the plain meaning of the first sentence of KRS 322.200(1) supports the conclusion in OAG 79-116. See, e.g., Comm. v. Shively, Ky., 814 S.W.2d 572, 573 (1991); KRS 446.080(4).

Second, we recognize that in some instances the authority to appoint a hearing officer may be necessarily implied in a statute. We find no such implied grant in Chapter 322. The authority given the Board in KRS 322.290(2)(A) to adopt and amend "by-laws and rules of procedure . . . reasonably necessary for the proper performance of its duties and the regulation of the proceedings before it" is not an implied grant of authority to the Board to act outside of its statutory mandate. In other places in Title 25, Chapters 310-335B, where the legislature wished to authorize governmental entities similar to the Board to conduct a hearing through a hearing officer, it has provided for a hearing officer expressly. See, e.g., KRS 311.490 (Board of Podiatry); KRS 311.565, .591, .592, .593, .922 (State Board of Medical Licensure); KRS 312.019 (Kentucky State Board of Chiropractic Examiners); KRS 314.089 (Kentucky Board of Nursing); KRS 315.131, .155 (Kentucky Board of Pharmacy); KRS 315.131, .155 (Kentucky Board of Pharmacy); KRS 318.066 (Plumbers and Plumbing); KRS 319.032 (Kentucky Board of Examiners of Psychology); KRS 320.321 (Kentucky Board of Optometrists); KRS 323.130, .140 (State Board of Examiners and Registration of Architects of Kentucky); KRS 324.170 (Kentucky Real Estate Commission); KRS 325.360 (State Board of Accountancy); KRS 334.120 (Kentucky Licensing Board for Specialists in Hearing Instruments). We find it significant therefore that KRS Chapter 322 does not mention a hearing officer.

Third, we have considered the interplay between the provisions of KRS chapter 13B, the new administrative procedures act passed by the General Assembly in 1994, and KRS 324.200. We find nothing in chapter 13B that alters our conclusion in OAG 79-116, or our conclusions here. Indeed, we find it significant that KRS chapter 13B restricts the power to issue a final decision to "agency heads" such as the Board, and explicitly grants such agency heads discretion to delegate the agency's hearing powers to a hearing officer. See KRS 13B.010(4), 13B.030(1), 13B.030(2). By implication, agency heads do not have the authority to delegate the power to preside over a hearing to a hearing officer absent such explicit statutory authority.

Upon the foregoing, we decline to alter the opinion first rendered by us in OAG 79-116. It is our opinion that the State Board of Registration for Professional Engineers and Land Surveyors does not have the authority under KRS 322.200 to delegate to a hearing officer the authority to conduct hearings. The statutory authority to delegate the power to preside over a hearing to a hearing officer set forth in KRS 13B.030(1) will take effect in 1996. See Acts 1994, ch. 382 20. After the effective date of KRS 13B.005-.170, the Board will have the authority to delegate the power to preside over disciplinary hearings to a hearing officer. KRS 13B.030(1).

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Matthew L. Mooney

Assistant Attorney General