Request By:
Mr. Steve P. Robey
The Trader Building
608 East Main Street
P.O. Box 302
Providence, Kentucky 42450
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
This is in response to your letter dated August 23, 1990, requesting a formal opinion regarding the validity of 903 KAR 5:130 Section 2(5)(a) and (b). Your letter states that KRS 341.450(1) requires that appeals from decisions of the Unemployment Insurance Commission be filed in the circuit court within 20 days of the date of the decision of the commission, but only after exhausting remedies before the commission. 903 KAR 5:130 Section 2(5)(b) provides that the filing of an application for reconsideration of the commission's decision shall not stay the running of time for appeal to the circuit court. Your letter concludes that this regulation would seem to impair a party's right to the appeal process granted by KRS 341.450 and therefore would be invalid under KRS 13A.120.
KRS 341.450(1) provides in part as follows:
[W]ithin twenty (20) days after the date of the decision of the commission, any party aggrieved thereby may, after exhausting his remedies before the commission , secure judicial relief thereof by filing a complaint against the commission in the circuit court.
KRS 341.450(1). [Emphasis added.]
903 KAR 5:130 Section 2(5)(b) provides as follows:
An application for reconsideration of a decision of the commission shall not stay the running of time for appeal to the circuit court, if such application is denied.
903 KAR 5:130 Section 2(5)(b). [Emphasis added.]
A collateral issue raised by your letter is whether the filing of an application for reconsideration with the Unemployment Insurance Commission is a necessary step in order to exhaust administrative remedies prior to filing an appeal in circuit court. This issue has apparently not been addressed in any published decision of a Kentucky state court. There is a split of authority among other jurisdictions which have considered this issue. 2 Am.Jur.2d Administrative Law § 609 (1990); 73 C.J.S. Public Administrative Law and Procedure § 39 (1990). Given the split of authority of other jurisdictions that have considered this issue and given that your letter does not expressly request an opinion on this issue, this office respectfully declines to address this collateral issue.
The apparent conflict identified by your letter is that if an aggrieved party elects to file an application for reconsideration of a decision of the Unemployment Insurance Commission and fails to receive a response from the commission ruling on this application within 20 days of the mailing date of the commission's initial decision, then the aggrieved party is compelled by 903 KAR 5:130 Section 2(5)(b) to secure judicial review in the circuit court even though the remedies before the commission have not yet been exhausted as required by KRS 341.450(1). 903 KAR 5:130 Section 2(5)(b) purports to regulate when an appeal shall be taken to the circuit court by requiring that such an appeal be taken even if an application for reconsideration is still pending before the Unemployment Insurance Commission. This regulation in essence attempts to modify KRS 341.450(1) by providing that an appeal must be taken within 20 days after the date of the decision of the commission even if the administrative remedy of having the Unemployment Insurance Commission grant an application for reconsideration has not been exhausted.
Administrative bodies such as the Unemployment Insurance Commission are prohibited from promulgating administrative regulations which modify a statute or its intent. KRS 13A.120(1)(i). To do so makes the regulation null, void, and unenforceable. KRS 13A.120(2).
There is a split of authority among jurisdictions that have considered the issue on whether a party invoking a provision for rehearing or reconsideration is required to await the final disposition of the rehearing or reconsideration before resorting to the courts. 2 Am.Jur.2d Administrative Law § 608, p. 446 (1990). However, in Kentucky,[t]he law seems to be settled that in the absence of statutory authority an administrative agency has no authority . . ., by permitting applications for rehearings, [or applications for reconsiderations to] extend [or limit] the time for appeal.
Hennessy v. Bischoff, Ky., 240 S.W.2d 71, 73 (1951). [Bracketed language added.] The Unemployment Insurance Commission has no statutory authority to limit or extend the time for appeal established by KRS 341.450(1).
KRS 341.450(1) requires that remedies be exhausted before judicial relief is sought. The Unemployment Insurance Commission retains jurisdiction for 20 days after rendering a decision, KRS 341.440(3), and therefore has the authority to promulgate regulations authorizing the filing of an application for reconsideration within 20 days after its initial decision.