[1992/oagheade.htm]

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