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Nichols v. Kentucky Unemployment Insurance Commission

Court of Appeals of Kentucky

April 26, 2019

MICHAEL NICHOLS APPELLANT
v.
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION; AND NORTON HEALTHCARE, INC. APPELLEES

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 16-CI-002236

          BRIEF FOR APPELLANT Robyn Smith Louisville, Kentucky

          BRIEF FOR APPELLEE KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION: Clay J. Lamb Frankfort, Kentucky

          BRIEF FOR APPELLEE NORTON HEALTHCARE, INC.: Donna King Perry Louisville, Kentucky

          BEFORE: MAZE AND NICKELL, JUDGES; HENRY, SPECIAL JUDGE. [1]

          OPINION

          MAZE, JUDGE

         Michael Nichols appeals an order of the Jefferson Circuit Court which affirmed a ruling by the Kentucky Unemployment Insurance Commission ("the Commission") denying his application for benefits following the termination of his employment with Norton Healthcare, Inc. ("Norton"). Upon review, we conclude that KRS[2] 341.470(3), the statutory provision allowing corporate or partnership employers to appear pro se through non-lawyer representatives in unemployment proceedings, violates the separation-of-powers provisions of the Kentucky Constitution. Since Norton was represented by a non-attorney in the administrative proceedings before the Commission, we must vacate the circuit court's order with directions to remand this matter to the Commission for a new administrative hearing.

         The relevant facts of this matter are as follows. Nichols worked for Norton as a clinical engineering specialist from April 14, 2013, until November 9, 2015. On the latter date, Norton's Systems Director of Clinical Engineering, Scott Skinner, fired Nichols, citing alleged failures to comply with instructions, falsification of records, and misfeasance of company resources. Fifteen minutes later, Nichols submitted an online application for unemployment benefits, seeking to secure unemployment benefits as expeditiously as possible. In his application, Nicholas selected "lack of work" as a basis for his separation from employment from Norton.

         Norton contested Nichols's application, stating that it had discharged Nichols for misconduct. Following an initial investigation, the Commission's Unemployment Division determined that Norton had fired Nichols for misconduct and that he had made intentional misrepresentations in his application, which justified both his disqualification from eligibility to receive benefits and the extension of this period of ineligibility. Nichols then appealed this decision to a referee.

         The referee conducted evidentiary hearings on February 8 and 29, 2016. Nichols was represented by counsel, while Skinner, a non-lawyer, appeared for Norton. Skinner also testified in the hearings, offering several crucial facts. The referee conducted most of the questioning during Nichols' testimony at the February 29th hearing. However, the referee also afforded Skinner an opportunity to conduct a brief cross-examination, asking several questions of Nichols.

         The referee affirmed the Unemployment Division, entering a written ruling to that effect on March 18, 2016. The Commission, after conducting a de novo review of the record, affirmed. The Commission concluded that Nichols had been terminated for misconduct; specifically, abandoning his work duties, dishonesty, and inappropriate stewardship of company resources.

         Nichols filed a petition for judicial review in Jefferson Circuit Court, alleging three errors by the Commission. He first argued that the Commission's factual finding lacked the support of substantial evidence. Second, he contended that the Commission impermissibly shifted the burden to him to prove the lack of misconduct. Finally, he asserted that the proceedings before the referee and the Commission were unconstitutional per se due to Skinner's appearance as a non-attorney representative on behalf of Norton. The circuit court affirmed the Commission in all respects. This appeal followed.

         As an initial matter, we agree with Nichols that Skinner was not authorized to represent Norton during the proceedings before the referee and the Commission.[3] KRS 341.470(3)(a) authorizes "[a]ny employer" to represent himself or to be represented by counsel in a proceeding before a referee or the Commission. And subsection (b) authorizes a managerial representative to represent a corporate or partnership employer in a proceeding before the referee or the Commission.

         However, in Turner v. Kentucky Bar Association, 980 S.W.2d 560 (Ky. 1998), our Supreme Court held that a similar statute authorizing non-attorneys to represent and advise workers' compensation claimants encroached on the exclusive power of the judiciary to establish rules relating to the practice of law. Id. at 562-63. See also Ky. Const. ยง 116. "Legal representation by a lay person before an adjudicatory tribunal, however informal, . . . as such representation involves advocacy that would constitute the practice of ...


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