Request By:
Mr. Hanson Williams
Staff Attorney
Kentucky Department of Education
500 Mero Street
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Richard C. Carroll, Assistant Attorney General
In your recent letter to this office, you requested to be provided with an opinion on the following question:
Does the language found in KRS 161.120(3)(c) allow the EPSB [Educational Professional Standards Board] to delegate the revocation hearings to be conducted by a hearing officer whose report is then voted on by the board, or does this statute require that the full board conduct the hearing and hear the evidence in that matter prior to voting?
In responding to your question, we must first look to the statutes associated with the EPSB for guidance. The EPSB was created by the recently enacted education reform statutes. In KRS 161.028, the Board is given a specific list of duties and powers. Some of those powers include the ability to receive donations and grants of funds to appoint consultants as needed, approve studies, conduct conferences, etc. See KRS 161.028(2)(g). In addition, one of the Board's primary duties is to oversee the revocation of any licenses or certificates previously issued to superintendents, principals, teachers, etc. See KRS 161.120. The procedures involved with such actions are specifically contained in KRS 161.120.
The importance behind reviewing the specific powers and duties granted to the Board by the General Assembly is due to the long-established law in Kentucky that:
Administrative agencies are creatures of statute, and as such the statute must warrant any exercise of authority which they claim. [Citation omitted.] An administrative agency cannot, by its rules and regulations, amend, alter, enlarge, or limit the terms of a legislative enactment. [Citation omitted.]
Curtis v. Belden Electronic Wire & Cable, Ky.App., 760 S.W.2d 97 at 99 (1988).
The Curtis, supra, decision is based upon the opinion rendered in Johnson v. Correll, Ky., 332 S.W.2d 843 (1960). In that case, the question was whether the Kentucky State Board of Embalmers and Funeral Directors had the authority to revoke the certificate of registration of an apprentice funeral director. The statute in question provided for that Board to revoke, suspend or refuse to issue or renew any license issued to a funeral director. The court in Johnson held that the Board lacked the authority to revoke the certificate since the statute at issue spoke only to a license of a funeral director. According to the court:
The board was authorized only to administer the law as written. It is not empowered to add to or subtract from the statute. Powers not conferred are just as plainly prohibited as those which are expressly forbidden. When powers are given to be performed in a specified manner, there is an implied restriction upon the exercise of those powers in excess of the grant. [Citation omitted.]
Id. at 845.
The court went on to hold that the Legislature had clearly defined in statute the class of persons over which the Board had authority and what actions could be taken against those individuals. The court determined that the statute failed to provide the Board with any authority to revoke the certificate. Id .
In applying the principles announced in the above-cited cases to the issue presented in your letter, it is the opinion of this office that the EPSB lacks the authority to delegate the holding of a revocation hearing found in KRS 161.120 to a hearing officer. Nowhere in the statutory sections dealing with the board is there any authority for such a delegation of power. Therefore, under the Johnson and Curtis decisions, the board lacks the authority to delegate such a duty to a hearing officer.
The determination that the Board cannot delegate the holding of a hearing to a hearing officer is also supported by a review of KRS 161.120(3)(c) which states:
Upon hearing the evidence, the Educational Professional Standards Board may by a majority vote render its decision or may defer its action for no more than five days. [Emphasis added.]
The key term in the above-cited statute is "hearing." Since that term is not defined anywhere in Chapter 161, it must be construed according to the common and approved usage of language. See Claude N. Fannin Wholesale Co. v. Thacker, Ky.App., 661 S.W.2d 477 (1983)
Hearing is defined by Webster as, ". . . the act or power of apprehending sound or the act or instance of actively or carefully listening to a speaker." Webster's Third New International Dictionary (1963) . Clearly, the plain, simple meaning of "hearing" requires the presence of the Board members when evidence is being presented in the case. If the General Assembly did not intend that the Board be present, they could have used the term "review" in place of "hearing."
Therefore, based upon the lack of authority granted to the EPSB under their statutes the board must be physically present to "hear" the evidence introduced during a hearing. Of course, a hearing officer may assist the Board during and following the hearing.