Request By:
Arthur Hatterick, Jr.
Executive Director and Secretary
Kentucky Personnel Board
Room 383, Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You seek an opinion as to possible conflicts of interest affecting the new personnel board members, Walsburger and Terry. These members were elected to their positions by classified employees pursuant to newly enacted H.B. 415, Chapter 448 Kentucky Acts, 1982 General Assembly, and particularly Sections 10 and 11, codified as KRS 18A.050 and 18A.055.
The newly elected board members came from Transportation and Human Resources Cabinets, the two largest entities in state government.
You want to know whether they should recuse themselves under the following circumstances:
"(1) When they are reviewing a recommended order for a final vote of the Board which involves (a) their cabinet, (b) their department, (c) division, etc.;
"(2) As to where they have a personal employment relationship with the parties involved;
"(3) Where they have testified in a particular case;
"(4) Where they are members of such groups as the Ten-Forty Club, Ten-Ure Club, Kentucky Association of Transportation Engineers (KATE), Kentucky Association of State Employees (KASE), or International Association of Personnel Employment Specialists."
Merely being from a particular cabinet or department should not, per se, constitute a conflict. Obviously, by the manner in which the General Assembly authorized election of such new board members, they could necessarily come from such entities of state government. The General Assembly put them in such positions in order to give merit system employees a voice and vote on the Personnel Board. This was the intention of the General Assembly to balance, in part, possible voices of the Governor or Administration by his nomination of the other five members. So, for the newly elected board members to step down every time one of the cases involves Transportation or Human Resources Cabinet parties would thwart the very intention of creating the new positions on the Personnel Board. If they are required to recuse themselves for such reasons, the other five board members would be required to recuse themselves because the Governor appointed them.
Such a requirement would completely nullify the operation of the Personnel Board.
Thus, in our view, they would not need to recuse themselves in situation number (1).
But, where their relationship is more personal as contemplated in situations (2) and (3), they should not participate in discussion or voting. However, a determination concerning such situations can only be made on a cas-by-case basis.
Situation number (4) is more removed from a possible conflict unless there were special circumstances which would be more direct and involved.