Request By:
Hon. J. Michael Noyes
General Counsel
Office of the Governor
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have asked the Office of the Attorney General to consider a matter involving the consideration for appointment of an individual to the Public Service Commission. You have informed us the individual in question meets, as such, the qualifications set out in KRS 278.060. You are concerned, however, with the meaning of KRS 278.060(6) which reads:
"(6) In making appointments to the commission, the governor shall consider the various kinds of expertise relevant to utility regulation and the varied interests to be protected by the commission, including those of consumers as well as utility investors, and no more than two (2) members shall be of the same occupation or profession. "
A question has arisen concerning this statutory provision due to the fact the individual being considered for appointment by the Governor to the Public Service Commission holds a law degree, but has not otherwise engaged in the occupation or practice of law. The two current members of the Public Service Commission are members of the legal profession and were so actively engaged just prior to being appointed to the Commission. Under the circumstances as explained, we believe the individual under consideration may be appointed to the Commission.
Our position on this matter rests upon basic common sense. As the former Court of Appeals said in Cantrell v. Kentucky Unemployment Insurance Commission, Ky. 450 S.W.2d 235, 237 (1970), ". . . Common sense must not be a stranger in the house of the law."
We note that the language in KRS 278.060(6) is in the nature of a restriction upon the power of the Governor to appoint individuals to the Commission rather than as such a specific qualification to hold this state office. We believe this provision of law should be simply read in keeping with the literal language of the law and also so as to give a practical construction to the language used. See Hamilton v. International Union of Operating Engineers, Ky., 262 S.W.2d 695 (1954).
In tort law there is an old principle that an argued tortfeasor takes an individual as he finds him. That is, you size up the facts about an individual as they exist at a particular time. It seems to us that similar reasoning should be applied to KRS 278.060(6). The Governor should consider the occupation or profession of a potential appointee at the time of the consideration and not what the individual may have once done or is legally capable of doing.
You have related the individual under consideration has a law degree but has not otherwise engaged in the occupation or practice of law. We do not believe this person's occupation or profession, for purposes of this statute, is what the individual is educated to be and capable of being. Instead in the literal sense of the usage of these terms, we think the controlling factor should be what the individual is doing at the time of consideration for the appointment. In Black's Law Dictionary, 5th Ed. at page 972, the term "occupation" is defined to be "that which principally takes up one's time, thought, and energies, especially, one's regular business or employment." In that the individual's time and employment have not been as an attorney, we see no conflict with KRS 278.060(6) for this person to be appointed to serve on the Public Service Commission.