Request By:
Honorable David G. Vest
Wake & Vest
P. O. Box 1460
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: James S. Goldberg, Assistant Attorney General
This letter is in response to your correspondence of March 23, 1977 in which you have asked this Office for an opinion on the following question:
Is a complaint alleging racial discrimination in hiring and promotion policies barred when the Kentucky Commission on Human Rights fails to take formal action, either by scheduling a hearing, or filing a civil action within one year from the date the complaint is filed?
The Commission schedules hearings on a complaint in the manner provided under KRS 344.210 (1), which states:
"Within sixty (60) days after a complaint is filed, unless the commission has issued an order dismissing the complaint or stating the terms of a conciliation agreement or within thirty (30) days after an application for review is filed under subsection (3) of KRS 344.200, the commission shall serve on the respondent by registered or certified mail a written notice, together with a copy of the complaint as it may have been amended, requiring the respondent to answer the allegations of the complaint at a hearing before one or more members of the commission or an individual designated pursuant to its rules, at a time and place specified in the notice. A copy of the notice shall be furnished to the complainant, the attorney general, and such other public officers and persons as the commission deems proper."
Therefore, the Commission should schedule a hearing within sixty (60) days after the complaint is filed.
However, in the case of
Whispering Hills Country Club, Inc. v. Kentucky Commission On Human Rights, Ky., 475 S.W.2d 645, 647 (1972), the Commission found the appellant guilty of engaging in the unlawful practice of discriminating against individuals because of race or color and entered a cease and desist order accordingly. Subsequently, the Jefferson Circuit Court entered a judgment upholding the Commission's order.
On appeal the appellant alleged as one ground of error the failure of the Commission and the circuit court to dismiss the proceeding on the ground that the Commission failed to comply with KRS 344.210 (1) by delivering notice to the appellant sixty-one days after the complaint was filed. In addressing itself to this issue the Court of Appeals of Kentucky held:
"The purpose of the statute in requiring notice (and thereby scheduling of a hearing) within sixty days plainly is to encourage prompt action by the Commission, not to constitute a limitation on action by the Commission; therefore, delay in giving notice (and therefore scheduling a hearing) is not a basis for barring action on a complaint."
We conclude, as did the Court of Appeals in Whispering Hills, that the Commission's delay in scheduling a hearing in the present case is not a basis for barring an action on the complaint.
In addition, KRS 344.240 (3) states:
" If the commission has failed to schedule a hearing in accordance with subsection (1) of KRS 344.210 or has failed to issue an order within one hundred eighty (180) days after the complaint is filed, the complainant, respondent, attorney general, or an intervenor may petition the circuit court in a county in which the alleged unlawful practice set forth in the complaint occurs or in which the petitioner resides or has his principal place of business for an order directing the commission to take such action. The court shall follow the procedure set forth in subsection (2) so far as applicable."
Under this statute, there is nothing to prevent the above-mentioned parties from obtaining a court order directing the Commission to schedule a hearing at any time after the one hundred and eighty (180) day period terminates. Therefore, since the Commission can be ordered by the circuit court to schedule a hearing at any time after the one hundred and eighty (180) day period expires, one could conclude that the Commission's delay in scheduling a hearing would not be grounds for barring an action on the complaint in this case, at any time.
Finally, as regards the filing of a civil action by the Commission, KRS 344.200 (6) states:
" At any time after a complaint is filed, the commission may file an action in the circuit court in a county in which the subject of the complaint occurs, or in a county in which a respondent resides or has his principal place of business, seeking appropriate temporary relief against the respondent, pending final determination of proceedings under KRS 344.160, 344.190 to 344.210, and 344.230 to 344.260, including an order or decree restraining him from doing or procuring any act tending to render ineffectual any order the commission may enter with respect to the complaint. The court shall have power to grant such temporary relief or restraining order as it deems just and proper."
Therefore, in answer to your question, it is this Office's position that the Commission's delay in taking formal action, either by scheduling a hearing or filing a civil action, within one year from the date the complaint was filed, did not bar an action on the complaint in this case.
We hope that this opinion will satisfactorily answer your question. If we can be of any further service, please do not hesitate to call upon us.