Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On behalf of the Administrative Regulation Review Subcommittee, you request our opinion concerning a hearing relating to a proposed administrative regulation.
KRS 13.085(1)(b) provides that, concerning certain conditions underlying an administrative regulation's becoming effective, no regulation shall become effective until ". . . a public hearing is held, if requested, by a person having an interest in the subject matter. . . ." (Emphasis added).
The following language appears in KRS 13.085(4):
"If within thirty (30) days following publication of the text of a proposed regulation a request is received by the administrative body from a person having an interest in the subject matter of the regulation to offer comment upon the proposed regulation, the administrative body shall fix a date, time and place for a hearing, open to the public, on the proposed regulation. " (Emphasis added).
Specifically and factually, in June, 1980, the Kentucky Board of Nursing filed six proposed regulations with the L.R.C. During the 30 day comment period, seven letters commenting on the proposed regulations were received. The Board scheduled a discussion time during the regular open meeting of the Board on August 14, 1980. The persons who sent letters of comment were notified of such discussion period. We have been informed that the LRC Regulation Review Subcommittee informed the Nursing Board that the written comments constituted a request for a hearing, pursuant to KRS 13.085(1)(b) and (4).
Your specific question: "What constitutes a request for a hearing on a proposed regulation? "
Webster's Seventh New Collegiate Dictionary at page 729 defines "request" as meaning "to ask for". That is precisely what is involved here. The literal language, "request a public hearing" , simply means what it says. The plain meaning is that a person having an interest in the subject matter must request a public hearing. Subsection (4) of the statute says that "Every hearing shall be conducted in such a manner so as to guarantee each person who wishes to offer comment a fair and reasonable opportunity to do so . . ." There is nothing in the statute to suggest that the comments must be in the letter to the administrative body.
While the letters of comment written to the Board of Nursing are interesting as reflecting various viewpoints, they do not, in our opinion, constitute a request for a public hearing.
In
Department of Revenue v. Greyhound Corporation, Ky., 321 S.W.2d 60 (1959) 61, the court wrote this:
"We conceive it to be our duty to accord the words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion."
Here the literal interpretation of "request a hearing" leads to no absurdity. The administrative body is not required to guess or speculate as to what a writer's intentions are, even where the letter comments on a proposed regulation. In fact such letters of comment, which do not contain an express request for a hearing, must be construed as letters of comment only, but not a request for a hearing.
It is so easy to use the phrase: "I request a public hearing. " Thus if a public hearing is to be validly held, the party in interest must submit in writing to the administrative body an express or explicit request for a public hearing. We say this should be in writing in order to document such request.