[1994/oagheade.htm]

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