Request By:
Mrs. Helen Ashworth
Vice President
Lansdowne Mental Health-Mental Retardation Board, Inc.
608 Pine Grove Court
Ashland, Kentucky 41101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Deputy Attorney General
You have requested an opinion of this office concerning the constitutionality and/or legality of House Bill 686 which was adopted by the Kentucky General Assembly during the 1978 regular session. This office has examined your request and has decided to render an opinion in response to your letter.
The sections of House Bill 686 which you submit for consideration have now been incorporated into the Kentucky Revised Statutes as KRS 210.440(3) and (4). KRS 210.440(3) and (4) are as follows:
"(3) If the secretary finds at any time that an emergency situation exists with regard to the financial stability of any regional mental health-mental retardation board or nonprofit organization, which jeopardizes the continuation of programs and provision of services in the area served by that board or nonprofit organization, he may, other statutes to the contrary notwithstanding:
(a) Appoint a caretaker administrator who shall be authorized to direct the operation and administration of the board or nonprofit organization's community mental health and mental retardation programs including but not limited to their financial record keeping, their personnel management operations and their financial and program reporting; and
(b) Make whatever personnel changes are deemed necessary to insure the continued operation of the board or nonprofit organization in compliance with its plan and budget and the policies and regulations of the department.
(4) Any community mental health-mental retardation board to be affected by the provision of subsections (2) and (3) of this section shall be notified by the secretary for human resources thirty (30) days prior to such anticipated action by the secretary. Such notification shall be by means of a letter from the secretary to the chairman of the mental health-mental retardation board in question and shall state the reasons for such anticipated action. Following such notification the mental health-mental retardation board may:
(a) Comply with the secretary's action without contesting it; or
(b) Apply for a public hearing before the Statewide Health Coordinating Council (SHCC) created pursuant to P.L. 93-641 to show cause why such action should not stand. Such application shall be made within seven (7) days of the receipt of such letter from the secretary. The public hearing shall be held before a hearing officer designated by the SHCC within ten (10) days of the application by the mental health-mental retardation board for such hearing. The hearing officer shall prepare a written finding of facts, conclusions of law and recommendation to the SHCC within ten (10) days after the date of the hearing. This finding of facts, conclusions of law and recommendation shall be filed with the secretary who shall call a special meeting of the SHCC for the purpose of considering the hearing officer's findings and recommendation and making a ruling thereon."
It is apparent from your letter that you are concerned about the authority granted to the Secretary of the Department for Human Resources by the foregoing legislation. KRS 210.440(3) provides that the Secretary of the Department for Human Resources may appoint a caretaker administrator to direct the operation and administration of the mental health-mental retardation program being formally administered by a mental health-mental retardation board or nonprofit corporation and further provides that the Secretary may make necessary personnel changes. The Secretary is authorized to do this whenever he makes a determination that an emergency situation exists regarding the financial stability of the regional mental health-mental retardation board or nonprofit corporation administering the mental health program.
KRS 210.440(4) sets forth a procedure whereby an aggrieved mental health-mental retardation board or nonprofit corporation may request a hearing on the action taken by the Secretary. KRS 210.440(4)(b) provides for a public hearing before the Statewide Health Coordinating Council (hereinafter referred to as SHCC). The SHCC was created under Public Law 93-641. See 42 U.S.C. § 300K, et seq.
Your letter hints that the above legislation conflicts with the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment of the United States Constitution provides in Section I:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The Fourteenth Amendment to the United States Constitution prohibits the taking of a citizen's life, liberty or property without due process of the law. In Board of Regents by Roth, 408 U.S. 464, 33 L. Ed. 2d 548, 92 S. Ct. 2701, the United States Supreme Court said that in order to determine whether the due process requirements of the Fourteenth Amendment apply, it is first necessary to look at the nature of the interest at stake. In the situation presented here, we are obviously not confronted with either an interest in life or liberty. The only potential interest with which we are confronted in the case you present is concerned with property. Although the mental health-mental retardation board may have an interest in property by virtue of a statute, we are confronted with the bare fact that the property we are talking about does not belong to an individual. A mental health-mental retardation board is merely an administrator of a program which is set up under KRS 210.370, et seq. Furthermore, in the event a nonprofit corporation is the administrator of the program, there is still no individual property involved because of the nature of the corporation. A nonprofit corporation such as yours has been incorporated under KRS Chapter 273. The corporation has no shareholders. Consequently, there is no individual property right involved.
In Roth, supra, the United States Supreme Court held that a teacher who taught for one academic year for a university and who had not yet acquired tenure had not acquired a right to continued employment. Consequently, when he was not rehired after the first year, it was not necessary to comply with the due process requirements of the Fourteenth Amendment. He had not acquired a cognizable interest in property.
Under KRS 210.370, et seq. , a mental health-mental retardation board or nonprofit corporation administering a mental health program has property but the property does not belong to any individuals. It belongs to the public generally. Consequently, when the Secretary of the Department for Human Resources determines that an emergency situation exists and takes over the program, there is no need for a due process hearing.
It is therefore our opinion that KRS 210.450(4) which creates a procedure for contesting the action of the Secretary is not required by the United States Constitution. Nevertheless, the General Assembly has chosen to grant a right to a hearing. But, it should be observed that the aggrieved mental health-mental retardation board or nonprofit corporation has the burden of proof. That entity has the burden of showing good cause why the action of the Secretary of the Department for Human Resources was erroneous. According to KRS 210.440, the hearing is to be held before a hearing officer who in turn files his findings of fact, conclusions of law and recommended order with the SHCC. The SHCC is to make a ruling on the findings and recommendation of the hearing officer. This office has problems with KRS 210.440(4)(b) because it is not clear that the SHCC's ruling is controlling as to the decision of the Secretary for the Department for Human Resources.
You indicate in your letter that the SHCC does not exist in this state. We have checked with the Department for Human Resources and find that your information is correct. This creature does not exist. Consequently, the public hearing contemplated by KRS 210.440(4)(b) is unavailable. Another problem we have with the hearing procedure is that the statute seems to permit a creature of federal law to act as a reviewing body over a state officer. The members of the SHCC are to be appointed by the governor, but the fact remains that the SHCC is not created by state law but by federal law. Much the same situation would exist if a provision were adopted in Kentucky law authorizing the United States District Court to act as an appellate court as to the decisions of the Kentucky circuit courts. This simply cannot be done. In addition, it is apparent that Public Law 93-641 (also 42 U.S.C. § 300K, et seq.) fails to authorize the SHCC to act as a reviewing body to decisions made by the Secretary of the Department for Human Resources.
In summary, KRS 210.440(4) is unnecessary, confusing and meaningless. However, any interest which might be taken by the Secretary of the Department for Human Resources under KRS 210.440(3) does not belong to an individual. Therefore, it is not an interest in property cognizable under the Fourteenth Amendment to the United States Constitution. A due process hearing is not required. Our review fails to show that KRS 210.440(3) or (4) violates any other provision of the United States Constitution, or for that matter any provision of the Kentucky Constitution.