Request By:
Honorable William E. Rummage
Attorney at Law
Lincoln Federal Building
322 Frederica Street
Owensboro, Kentucky 42301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 26 in which you, as attorney for the City Utility Commission of the city of Owensboro, seek our advice concerning the following:
"This is to advise that I am the attorney for the City Utility Commission of the City of Owensboro, Kentucky, a second class city. I am writing to you for an opinion with regard to the following matter:
"Procedure under KRS 90.360, before the Civil Service Commission of the City of Owensboro, Kentucky.
"Facts: Pursuant to the Kentucky Revised Statutes, and, in particular, KRS 96.530, the City Utility Commission of the City of Owensboro, Kentucky, is the 'appointing authority' for the Civil Service appointment within the classified service pertaining to employees of the City Utility Commission of the City of Owensboro. Pursuant to the Owensboro Code of Ordinances, 2-51, it is the duty of the City Attorney of the City of Owensboro to give all necessary legal counsel and advice, when required, to the Board of Commissioners and other statutory boards not having authority to employ their own counsel. The Civil Service Commission of the City of Owensboro does not have authority to employ their own counsel and, therefore, the City Attorney is the counsel for said Civil Service Commission. A copy of said ordinance is attached hereto.
"If the appointing authority, the City Utility Commission of the City of Owensboro, Kentucky, pursuant to KRS 90.360, where probable cause appears, prefers charges against an employee of the utility whom it believes guilty of conduct justifying his removal, I would like for you to render me an opinion with reference to the following questions:
"1. Upon the Civil Service Commission hearing the charges as provided by KRS 90.360, is it the duty of the attorney for the City of Owensboro, pursuant to the attached Ordinance 2-51, to give necessary legal counsel and advice to the Civil Service Commission at its hearing? Or is it the duty of the attorney for the City Utility Commission of the City of Owensboro to act in this capacity?
"2. Would I, as attorney for the City Utility Commission of the City of Owensboro, have standing under law to participate in the proceeding before the Civil Service Commission as attorney for the appointing authority and question and cross-examine witnesses, and otherwise participate in the proceeding, in view of KRS 90.360(3), which provides: 'Upon hearing, the charges shall be considered traversed and put in issue, and the trial shall be limited to the issues presented by the written charges.'
"3. In view of the attached City of Owensboro Ordinance 2-51, would such participation by me as attorney for the appointing authority, the City Utility Commission of the City of Owensboro, Kentucky, in cross-examining witnesses and presenting arguments of counsel for the Utility Commission, not a party to the matter, be violative of due process as far as the accused employee is concerned?
"4. Does KRS 90.360 permit members of the City Utility Commission of the City of Owensboro to appear at the hearing and express to the Civil Service Commission their wishes as to punishment where they are without personal knowledge as to the facts concerning the charges?
"5. Do the provisions of KRS 90.360 contemplate a prosecutorial-type hearing wherein the attorney for the appointing authority appears for the purpose of prosecuting the employee, on behalf of the appointing authority? Or, does KRS 90.360 contemplate a hearing wherein the particular employee is given an opportunity to controvert the written charges brought against him without additional oral arguments being brought at said hearing by those bringing such charges or their attorney?"
The City Utility Commission is, pursuant to KRS 96.530, a public body politic and corporate entity, completely separate from the city. Pursuant to subsection (1), it is also noted that the utility commission in cities of the second class providing civil service coverage for city employees, shall, in turn, provide civil service coverage for its own employees and shall exercise the powers and functions with respect to such employees which are vested in the city legislative body with respect to city employees pursuant to KRS 90.380 which is, of course, part of the civil service act for city employees generally under Ch. 90 KRS. In other words, the city utility commission exercises the same authority over its employees as the city with respect to number and compensation, and the provision relating to dismissal, suspension and reduction as provided in KRS 90.380. However, as you know, with respect to the dismissal or suspension of a civil service employee, KRS 90.360 would govern as provided in KRS 90.380 which simply means that an employee of the utility commission must be given an opportunity for a hearing before the civil service commission before dismissal or suspension.
In response to your initial question, the utility commission has the obvious authority to employ its own attorney who would normally represent it in any matter germane to the commission. However, since the utility commission is the complaining party according to your factual situation, we do not believe in any event that it would be ethical for you to represent the civil service commission which is normally the responsibility of the city attorney. If the utility commission was not the complaining party, then it is conceivable that you could, on behalf of the utility commission, in turn, represent the civil service commission since it would be a matter involving an employee of the utility commission. If you do not agree with this conclusion, we suggest that you check with the Kentucky Bar Association's Legal Ethics Committee for an official opinion, which only it may render. However, under the circumstances, we believe that it is the duty of the city attorney to represent the civil service commission at the hearing in question.
In response to your other questions, we first believe that the hearing provisions of KRS 90.360, which gives the employee the right to respond to any charges preferred against him, should be conducted in a trial-type manner [swearing of witnesses, cross-examinations, and the recording of testimony] for a record to be available for appeal. At the same time, the testimony presented at the hearing must be limited to the charges made as clearly indicated in subsection (3) of KRS 90.360.
Since the complaining party is the utility commission, we see no reason why the members of the commission cannot appear to substantiate their charges, and at the same time, be represented by you as their attorney for the purpose of presenting their argument and the cross-examination of witnesses.