author: HOGGE, Judge.

text:
    Raymond Oliver BAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 7, 1978.
    Discretionary Review Denied Dec. 19, 1978.

      Jack Emory Farley, Public Defender, Com. of Ky., Linda K. West, Asst. Public Defender, Com. of Ky., Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and HOGGE, and REYNOLDS, JJ.
   HOGGE, Judge.

In this appeal we are faced with deciding how a defendant should express his dissatisfaction with counsel and what steps the court should take to handle a request to change counsel. A further issue is raised by the appellant’s contention that his right to be involved in his own representation has been violated.

The appellant, Raymond 0. Baker, has had three different attorneys during the course of proceedings against him for the offense of first degree robbery and persistent felony offender charges. The first two attorneys sought to be relieved as counsel, the first due to legal and ethical considerations and the second because of a conflict of interest.

Appellant was dissatisfied with his third court-appointed counsel, Kenneth F. Osborne. On March 21, 1977, Osborne filed a motion requesting that he be permitted to withdraw as counsel of record because Baker had declined to meet with him until certain conditions were met and Baker’s conduct had shown that he intended to have the “exclusive control and direction” of his defense. At the hearing on this motion, the defendant alleged that his attorney had not adequately addressed the problem of the pretrial publicity the case was receiving; that he feared that if he confided in his attorney, those confidences might be violated. The trial judge reassured the defendant that his confidences would not be violated, and that counsel would take steps to protect the proceeding from the prejudicial effects of publicity.

On April 24, appellant filed a pro se motion expressing dissatisfaction with the assistance of Mr. Osborne, and requesting additional or substitute counsel. This motion was overruled.

On May 23, a second pro se motion was made, alleging counsel had advised a witness, Alvin Harris, whose testimony would have assisted Baker, to exercise his right to remain silent. Harris was later called as a witness at trial and testified. Harris stated that Baker committed the robbery after having injected heroin at Harris’ request. In Baker’s pro se motion, he stated that he felt he was receiving ineffective assistance of counsel.

At a pretrial suppression hearing to determine the admissibility of lineup identification evidence, a pro se motion by Baker that Harris be called to testify at the hearing was overruled. Baker had indicated in the motion that he also had other witnesses. The trial court stated that the defense counsel was handling the case and felt that he had called all necessary witnesses. Baker filed a motion subsequent to the hearing that he be allowed to “object to issues”, and that if Osborne refused to call his witnesses that Osborne remove himself or the court remove him. At the conclusion of the Commonwealth’s case, appellant again filed a motion that his defense counsel be removed, which was denied.

The first question which we are requested to decide is whether the trial court erred in failing to inquire further into the appellant’s expressed dissatisfaction with his appointed counsel and requests for substitution of counsel. The expression “counsel of one’s own choice” drawn from the holding of the case in Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1931) does not mean that an indigent defendant is entitled to the appointment of any particular attorney. Hargrove v. Commonwealth, Ky., 362 S.W.2d 37 (1962); Annotation, 66 A.L.R.3d 996 (1975). A defendant is not entitled to the dismissal of his counsel and the appointment of a substitute “except for adequate reasons or a clear abuse by counsel.” Fultz v. Commonwealth, Ky., 398 S.W.2d 881, 882 (1966).

In this case there was no showing by the appellant of any just cause for the removal of his appointed counsel. His principal objection to his counsel was counsel’s failure to subpoena or call the witness Alvin Harris. During the course of the trial, in accordance with appellant’s request, the witness Harris was called to the stand and his testimony proved disastrous to the appellant’s case. Appellant was undoubtedly displeased with this result of his contention, but it did resolve his principal bone of contention.

Adequate and sufficient cause for removal of counsel has been variously defined by the federal courts and includes (1) complete breakdown of communications between counsel and defendant, (2) conflict of interest, and (3) legitimate interests of the defendant are being prejudiced. None of the appellant’s complaints as to counsel are of this severe nature. In this case, appellant was dissatisfied with his counsel. The record indicates this was customary for the appellant. Although there were disagreements between appellant and his counsel as to trial tactics, there was no breakdown of communications.

We have examined the record in this case, and we find that the defendant received effective assistance of counsel. We know of no precedent in this jurisdiction requiring the trial court to hold a formal hearing to inquire into a defendant’s dissatisfaction with his appointed counsel and desire for a substitute. Under these circumstances, no hearing was required. We hold that there was no error in failing to hold such a hearing, or in declining to remove appointed counsel and substitute another attorney.

Next, closely related to the first issue on this appeal, is the issue presented to us as to whether the trial court denied the defendant his right of self-representation by failing to advise the defendant of that right. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) established the principle that a defendant has the right to act as his own attorney. In Wake v. Barker, Ky., 514 S.W.2d 692 (1974), the court recognized that a defendant also has the right to make a limited waiver of counsel. See also Annotation, 77 A.L.R.2d 1233 (1961). The dismissal of counsel in a criminal case, where appointed counsel is representing the defendant, is with prior leave of court and not solely on a bald allegation of the defendant.

However, it is conceded by the appellant that before an accused may invoke the right to proceed pro se he must make an unequivocal request to do so. “Regardless of whether he has been notified of his right to defend himself, the criminal defendant must make an unequivocal request to act as his own lawyer in order to invoke the right.” United States v. White, 139 U.S. App.D.C. 32, 429 F.2d 711, 712 (1970).

The appellant never made any request to proceed pro se. Thus, there was no denial of any right to which he was entitled.

Was it the court’s obligation to inform the appellant of his right to proceed pro se? We find no authority in this state imposing such an obligation on the court. White, supra, clearly disposes of this question.

Nor do we find error in the circumstances of this case in the omission of the trial court to advise appellant of his right to proceed pro se. We need not resolve the question whether this right has constitutional status — see the opinions in Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363 (en banc), cert. denied, 360 U.S. 911, 79 S.Ct. 1299, 3 L.Ed.2d 1262 (1959) — for, whether or not, the situation here did not require such advice. Appellant gave no indication of a desire to proceed without counsel. He made no request to be permitted to do so. In expressing dissatisfaction with appointed counsel he was appealing rather to the discretion of the court to substitute another. White, supra, at 712.

We hold that appellant, under the circumstances in this case, was not entitled as a matter of constitutional right to be informed sua sponte that he could proceed pro se.

The appellant has further raised the question that the trial court failed to follow the mandatory presentenee and sentence procedure as set out in KRS 532.050 and as interpreted by the case of Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977). Indeed, there is nothing in the judgment or the record indicating that a presentence report was either obtained or considered. In Brewer, supra, at 476, it was stated:

The requirement placed upon a trial court by the statute is mandatory and does not afford a trial judge the privilege or discretion of determining whether the report will be requested, obtained, or considered. It is a “must” and is in fact a prerequisite to the entry of a valid judgment. In view of the mandatory character of this requirement, the record of the proceeding should clearly disclose the fact that the trial court has fully complied with KRS 532.050 by requesting a presen-tence investigation, examining and considering the written report as supplied, and informing defendant or his counsel of the factual contents and conclusions contained in the report and the fact that the defendant either requested or did not request time within which to controvert the factual data contained in the report.

Since the statutory procedures were not complied with, the judgment entered on the jury verdict is now vacated and the case is remanded to the Jefferson Circuit Court for resentencing after compliance with KRS 532.050.

All concur.


source: Caselaw Access Project

author: WHITE, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky ex rel. Robert F. STEPHENS, Attorney General, Appellant, v. Eugene STEPHENSON, Appellee.
    Court of Appeals of Kentucky.
    July 7, 1978.
    Rehearing Denied Aug. 25, 1978.
    Discretionary Review Denied Dec. 19, 1978.

      James J. Cunningham, Cincinnati, Ohio, Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, for appellant.
    Amos H. Eblen, Eblen, Milner, Rosenb-aum & Wilson, Lexington, for appellee.
    Before WHITE, HOGGE and HOWER-TON, JJ.
   WHITE, Judge.

The Commonwealth of Kentucky appeals from a summary judgment in favor of ap-pellee Eugene Stephenson in a suit seeking ouster of appellee from his office as a member of the Boone County Board of Education for violation of KRS 160.180(4). It is alleged that appellee violated the statute by voting at a Board meeting on March 10, 1977, on a motion to employ his sister as a cafeteria worker and by voting on April 19, 1977, on a motion to hire his niece as a teacher. KRS 160.180(4) prohibits a school board member from voting on any matter regarding employment or appointment of certain enumerated relatives (including sister and niece) by the school board. On April 7,1977, the Board voted to amend the minutes of the March 10 meeting to show that Stephenson did not vote for his sister. On August 1, 1977, the Commonwealth moved for summary judgment on the second cause of action concerning appellee’s voting to hire his niece. On August 23, 1977, the Board again amended its minutes to reflect that Stephenson had not voted on this motion. The trial court refused to allow into evidence the Commonwealth’s sworn affidavits of witnesses to the March 10 and April 7 meetings, which stated that appellee had in fact voted on motions to employ his relatives. On the basis of the amended minutes, the trial court overruled appellant’s motion for summary judgment and granted like motion for appellee. The issue before this court is whether the trial court was clearly erroneous in excluding parol evidence in this instance. We hold the trial court was erroneous.

In Kentucky, the general rule allows only the minutes of municipal corporations to speak for actions of these bodies. Parol evidence is generally not admissible to refute or explain actions taken at meetings, City of Monticello v. Ragan, 258 Ky. 223, 79 S.W.2d 720 (1935), Lewis v. Board of Education of Johnson County, Ky., 348 S.W.2d 921 (1961); and minutes can be amended to correct inaccuracies and reflect actual events of meetings, Janutola & Comadori Const. Co. v. Taulbee, 229 Ky. 213, 16 S.W.2d 1026 (1929), Commonwealth v. Combs, Ky., 426 S.W.2d 461 (1968).

Appellant agrees that minutes of the School Board are generally conclusive as to actions taken by that body but argues that parol evidence should be admissible in this instance because the Board amended its minutes not to correct inaccuracies but to reflect actions which in fact did not occur. This subject is touched upon in 56 Am. Jur.2d Municipal Corporations § 179 at p. 231:

After the record has been amended, it is entitled to the same respect as an original record. The only remedy of a person who is injured by such amendment and claims that the original entry was correct is by a direct proceeding to have the minutes as amended annulled, and the original minutes restored. While the amended minutes remain, they cannot be impeached or varied in a collateral proceeding.

In accord is an Alabama case, Anniston v. Davis, 98 Ala. 629, 13 So. 331 (1893), where Davis sought a writ of mandamus to compel the city council of Anniston to reinstate him as councilman. The record revealed Davis was elected by unanimous vote but the minutes were later amended showing a vote of less than a majority for Davis. The Alabama Supreme Court held that the minutes as they stood were a complete answer for a writ of mandamus and that Davis’ remedy lay in a direct proceeding to have the city council amended minutes set aside and the original minutes restored.

The fact situation before this court differs considerably from that of Anniston v. Davis, supra, where an individual’s rights were concerned. Here we have an alleged violation of KRS 160.180(4) which is designed to protect the public at large. Enforcement of this provision is only allowed through ouster proceedings initiated by the Attorney General’s office. KRS 415.050 and KRS 415.060. To allow a school board to circumvent KRS 160.180(4) by amending its minutes and then not allow such amendments to be attacked under the guise of sanctity of such records appears inordinately unjust to this court. In such instances where fraud or mistake is alleged parol evidence should be considered by the trial court. “[I]t would be an intolerable situation if, as appellants contend, the records of a city were conclusive against a direct attack for fraud or mistake.” City of Monticello v. Ragan, supra, 79 S.W.2d at 721. “Furthermore, extrinsic evidence has been allowed to disprove the authenticity of a public record.” E. McQuillan, The Law of Municipal Corporations § 14.07 at p. 19 (3rd ed. 1969).

Appellee contends that attack of the minutes should not be allowed because it constitutes a separate and distinct cause of action. Furthermore, amendment of corporate minutes must be sought through a direct action. Thus, appellee contends the summary judgment should be upheld and no evidence considered concerning amendment of the minutes. Appellee also points out that, even if an action for amendment of the minutes could properly be consolidated with this action,’the appellant failed to move to amend the pleadings at the trial level and cannot seek to do so on appeal.

The fact situation of this case appears to be a novel one for this jurisdiction. Since Kentucky has modeled its rules on the federal rules, assistance is sought in commentary on these rules and federal cases interpreting the same. Moore, in Federal Practice 2nd Ed. Vol. 3 § 15.08[2] pp. 877-878, states: “Many jurisdictions for instance have followed the rule that an amendment may not ‘substantially change’ the cause of action or defense, or introduce a different claim or defense. This limitation has not been observed under Rule 15.” Thus, modern practice allows liberal amendment of pleadings to change the theory on which the case is tried.

Recognizing that the entire spirit of the rules is to the effect that controversies shall be decided on the merits, the courts have not been hesitant to allow amendments for the purpose of presenting the real issues of the case, where the moving party has not been guilty of bad faith and is not acting for the purpose of delay, the opposing party will not be unduly prejudiced and the trial of the issues will not be unduly delayed. Moore, supra, pp. 874-875.

Federal courts have repeatedly allowed amendments to facilitate the disposition of a case on its merits. Oil, Chemical & Atomic Workers International Union, AFL-CIO v. Delta Refining Co., 277 F.2d 694, 698 (6th Cir.1960); American Universal Ins. Co. v. Sterling, 203 F.2d 159, 165 (3rd Cir. 1952).

Two federal cases are of particular import in reaching a decision here. Though the two cases have fact patterns quite distinct from the case before us, the discussion of Rule 15 in each is useful and applicable. Saylor v. Lindsley, 302 F.Supp. 1174 (1969), was a stockholder’s derivative action wherein a motion for summary judgment was granted defendants. On appeal the case was reversed and remanded. On remand a question of the correct statute of limitations and its possible tolling due to fraudulent concealment was raised. The court noted the pleadings were too unclear to allow a ruling on this allegation and granted plaintiff leave to amend if so desired. The Court noted:

Accordingly, cognizant of the mandate of Rule 15(a), F.R.Civ.P. that leave to amend ‘shall be freely given when justice so requires,’ we grant plaintiff leave to amend his complaint ‘as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see, whether by the exercise the discovery might not have been before made.’ Id., p. 1184.

In the case before us, appellant did not discover the minutes had been amended to reflect a change in appellee’s vote until after motion for summary judgment had been made. Indeed, there was no possible way to discover this and allege mistake or fraud because the amendment of minutes occurred after the motion was made. Appellant attempted to introduce affidavits to show mistake or fraud. Clearly the trial court should have allowed such affidavits and considered the pleadings as amended to reflect this change.

The other noteworthy case is U. S. v. Springer, 491 F.2d 239 (9th Cir. 1974). Springer concerned the review of an ejectment proceeding by the Dept, of Interior on ten mining claims. After the final decision of the Interior Board of Land Appeals, the district court allowed the United States to file a supplemental complaint concerning the validity of unpatented mining claims. The appellate court upheld:

the filing of a supplemental complaint and also the whole procedure of holding the principal action in abeyance pending an administrative determination of the validity of the mining claims by the Department of Interior. . In the ejectment action as originally commenced, defendant’s right to possession depended upon the validity of the mining claims. After final agency action was obtained, a supplemental pleading ‘setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented’ is plainly authorized by the rules. Rule 15(d), Federal Rules of Civil Procedure. Id., 241-242.

Although the above case dealt specifically with the procedures of determining validity of mining claims, application of procedural rules for reaching an outcome on the merits is apropos to the present case. Appellee Stephenson’s right to remain in office depends on whether or not he voted for employment of his niece. The determination of this issue rests on whether the amended minutes of the School Board meeting are correct or were changed due to mistake or fraud. It appears the proper procedure for the trial court to follow on remand is to allow the Commonwealth to amend its complaint, if it so desires, to have a determination by the trial court on the correct form of the minutes. While this question is being considered, the ouster proceedings should be held in abeyance.

Appellee argues that if parol evidence is to be admitted to dispute the school board records where fraud or mistake is alleged, no sufficient allegations of fraud or mistake were made in the Commonwealth’s complaint as required under CR 9.02. CR 9.02 requires pleading of fraud and mistake with particularity but this rule is also “. . . to be considered in light of the entire spirit of modern pleading which lays emphasis upon short, concise and direct pleading.” Scott v. Farmers State Bank, Ky., 410 S.W.2d 717, 722 (1967).

See Clay, CR 9.02, pp. 165-166 wherein is contained a statement from Union Mutual Life Ins. Co. v. Simon, D.C.Pa., 22 F.R.D. 186 as follows:
‘Rule requiring that averments of fraud be made with particularity does not require textbook pleading of all elements of fraud but requires merely that plaintiff set forth facts with sufficient particularity to apprise defendant fairly of charges against him.’ Id.

We feel the Commonwealth’s complaint satisfies CR 9.02 under the spirit of modern pleading. Paragraph 5 of Count 1 states that the minutes had been amended to reflect that appellee had not voted on the motion to employ his sister; paragraph 7 states appellee did in fact vote for his sister; and paragraph 8 states that the amendment to the minutes was “. an incorrect statement of the actual action taken by Defendant on March 10, 1977, as to said Motion No. 16.”

Appellant further asks this court, upon remand, to direct the trial court to enter summary judgment for the Commonwealth on the issue of the corrected minutes. We decline to do so. There is a sufficient question of fact presented. Ap-pellee has come forth with a sworn affidavit to refute evidence presented by the Commonwealth. Although parts of this affidavit may relate hearsay testimony, affi-ant also testifies to what he remembers.

The judgment is reversed and remanded for proceedings consistent with this opinion.

All concur.


author: VANCE, Judge:

text:
    CHEMETRON CORPORATION and James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, Appellants, v. Frank McKINLEY and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    July 14, 1978.
    Rehearing Denied Aug. 25, 1978.
    Discretionary Review Denied Dec. 19, 1978.

      Gemma M. Harding, Dept, of Labor, James M. Graves, William P. Swain, Louisville, for appellants.
    William A. Miller, Jr., Louisville, for ap-pellees.
    Before HAYES, VANCE and WINTER-SHEIMER, JJ.
   VANCE, Judge:

Appellee, Frank McKinley, who suffered from various allergies, developed a condition known as chronic rhinitis from inhaling toxic chemical substances during his work as a janitor. Prior to this employment he had worked as a dishwasher, janitor, carpenter’s helper and parking lot attendant.

The chronic rhinitis resulted from a change in the tissue lining his mucous membranes and nasal passages. It is a permanent condition and the evidence, though meager, sufficiently establishes the probability of a causal relationship between the condition and the condition of his work.

As a result of the chronic rhinitis, McKinley is subjected to nasal congestion and drainage, will likely be more susceptible to upper respiratory infections and should avoid breathing toxic chemical fumes. He has obtained other employment as a janitor where he is not exposed to toxic fumes. He has not shown that his condition has caused him any loss in present earnings.

The Board found him to have a permanent occupational disability of 15% and apportioned the award 60% to the employer and 40% to the Special Fund. The award was affirmed by circuit court. Both the Special Fund and the employer appeal to this court.

The determination of the Board that claimant suffers an occupational disability of 15% is a finding of an ultimate fact. The validity of the finding (which is little different from a conclusion) rests upon whether it is a reasonable finding to be made from the underlying, basic facts. Other administrative agencies are required to make specific findings as to basic facts which support an ultimate finding. We are not cited any reason why an exception to this rule should be made m the case of the Workmen s Compensation Board. It is sometimes said, however, that the basic findings are implicit in the ultimate finding and we would not remand for a technical reason if the eviden-tiary support for the necessary basic findings were clearly apparent.

In this case the employee is making substantially the same wages as before. Under the rationale of Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), he does not have any occupational disability unless he has sustained (1) an injury of appreciable proportions (2) which will probably impair his future earning capacity through a reduction of his work life or a limitation of his work opportunities.

It was established that claimant’s injury is permanent, but not all permanent injuries may be classified as injuries of “appreciable proportions”. In Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731 (1972), it was held that “appreciable proportions” means substantial or of significant consequence, and an injury which resulted in a fractured wrist and in which the attending physician expressed the opinion that Davis had a permanent impairment of the right extremity but could nevertheless perform all types of manual labor was held not to be of appreciable proportions.

The injury here is a change in the texture of the tissue lining the mucous membranes and nasal passages. It causes head congestion and discomfort but has not disabled claimant from working.

The Board did not make a finding that the injury was one of appreciable proportions. Can we hold such a finding was implicit in the ultimate finding of 15% occupational disability? We think not because there is nothing to indicate that the Board really came to grips with the question of whether or not the injury is one of “appreciable proportions” and the evidence is not such as to compel such a finding. There is probably some evidence under which this injury could be regarded as appreciable and much to indicate otherwise. In this sitúation the Board should face the issue squarely and make a finding, giving its reason therefor. Without such a finding, a review for arbitrariness is impossible.

There is also an absence of any finding as to the probability that this condition will impair the future earning capacity of the claimant. It may be that upon proper consideration the Board would find that nasal congestion coupled with some increased risk of upper respiratory disease would probably shorten claimant’s work life or that his inability to work around toxic fumes would reduce his future employment opportunities, but it is not clear to us that it would do so and we do not think the evidence would compel such a finding.

We think it would be infinitely better if the Workmen’s Compensation Board in each case would make a specific finding of the basic facts necessary to support the ultimate finding rather than expect reviewing courts to hold that the necessary basic findings are implicit in the ultimate finding. We have not been cited to any authority which holds that we must always indulge the assumption that necessary basic findings were made. In view of the evidence here, which we regard as weak, we do not think this is a proper case to indulge such an assumption.

The judgment is reversed with direction that a new judgment be entered remanding this case to the Board for further findings of fact.

All concur.


author: HOWERTON, Judge.

text:
    Samuel Eugene POLK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 21, 1978.
    Discretionary Review Denied Dec. 19, 1978.

      Terrence Fitzgerald, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., James Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
    Before GANT, HOWARD and HOWER-TON, JJ.
   HOWERTON, Judge.

Appellant was convicted of third-degree burglary and sentenced to serve a term of four years and three months in prison. Appellant has brought a direct appeal and presents three arguments as grounds for reversal.

1. The misapprehension of the juror, Richard Plappert, that Samuel Polk might be the same person who was involved with Curtis May in the robbery of Plappert’s father, denied Polk his Sixth Amendment right to trial by an impartial jury.
2. The fact that a complete transcript cannot be furnished in this case, and that appellate counsel is different from trial counsel, is prejudicial to the defendant and violative of his right to effective assistance of counsel on appeal.
3. Under the evidence, Polk was entitled to an instruction on criminal trespass in the first degree.

The evidence pointing toward guilt in this case is substantial. Errors, if any, are generally less prejudicial in a strong evidentia-ry situation than they are in a weak eviden-tiary situation. Five witnesses testified for the Commonwealth. One witness testified that she observed the appellant enter the rear of the house next door and she called the police. Another neighbor testified to the effect that he observed a stranger at the house which was burglarized, and that he also attempted to call the police. A police officer testified that when he arrived to investigate, he saw the appellant run from the house in apparent flight. Another detective testified that he attempted to apprehend the appellant as he ran from the house. The homeowner also testified that the back door had been forced open, that the house had been ransacked, and that all of this had been done without her permission. The property owner testified that the only item missing was a-gold symbol, which had been given to her husband when he purchased an insurance policy. The item had been sitting on a stand in the living room.

The appellant testified and merely denied the charge, attempting to establish an alibi that he was merely walking down the nearby street at the time he was apprehended shortly after the break-in.

During a recess in the trial, and at a time when the court reporter was not present, Richard Plappert,- one of the jurors, approached the bench and indicated to the trial judge that he believed the appellant and another person had robbed his father. Appellant’s trial counsel advised the juror that he had to be mistaken. The trial judge admonished the juror, and reminded him of his required duty to render a fair and impartial verdict. There is no transcript of the conversation with the juror, but immediately following the recess, there is recorded dialogue between the court, trial counsel and the prosecutor. Trial counsel moved to discharge the jury, but the motion for mistrial was overruled.

There can be no doubt that in a criminal prosecution, a defendant has the right to a trial by an impartial and unbiased jury. Butler v. Commonwealth, Ky., 387 S.W.2d 867 (1965). This right is also guaranteed by the Sixth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, and is also guaranteed by § 11 of the Kentucky Constitution. Normally, bias and impartiality are determined on voir dire when the jury is selected. Jurors may then be dismissed for cause or on preemptory challenges. When bias is apparent or known before trial, and a juror is permitted to remain, the objection to the juror is waived. When such facts are not known and would not reasonably have been determined prior to the selection of the jury, no waiver is involved, and an objection may be raised upon discovery of the bias. Tayloe v. Commonwealth, Ky., 335 S.W.2d 556 (1960).

It is incumbent upon the party claiming bias or partiality to prove the point. Watson v. Commonwealth, Ky., 433 S.W.2d 884 (1968). As was stated in Watson, supra, at' p. 887, “ . . . Under RCr 9.36, the question still is whether bias exists as a matter of fact, and it is not to be presumed.” In reviewing the record, we cannot find where the appellant has shown any actual bias or prejudice by the juror. There is no evidence that there was any prejudice to his substantial rights to a fair and impartial trial. Several facts militate against the existence of actual bias or prejudice. The juror gave assurances on voir dire that he did not have reason to favor the Commonwealth, and that he could render a fair and impartial decision. The record reflects that trial counsel for the appellant indicated to the juror during the recess that his client was not involved in any robbery with a person named Curtis May, as was suspected by the juror. The record also reflects that the trial judge admonished the juror following the revelation, and reminded him of his duty to render a fair and impartial verdict. There is no indication whatsoever that at the time of the admonition there was any doubt about the juror’s ability to serve in an unbiased and impartial manner. Also, as to any prejudicial effect from knowledge of other crimes, there is testimony in the record regarding the appellant’s prior felony convictions which were introduced for purposes of impeachment. “Normally the trial court is allowed much discretion in determining the prejudicial effect of a juror’s misconduct, particularly if there is an opportunity to give a curative admonition.” Butler, supra, at 868.

We therefore conclude that there is no evidence of actual bias, and that the trial judge did not abuse his discretion in refusing to declare a mistrial.

The second error assigned by appellant relates to the fact that there was no transcript of the proceedings involving the conversation with the juror during the recess. It is argued that the appellant is entitled to a complete transcript and that anything less is prejudicial, especially since there is different counsel on appeal than at trial. If we accepted appellant’s argument on this point, we would open the door for a reversal in any case where something was omitted from the complete record by merely allowing the defendant to use different counsel for his appeal.

The conversation which took place at the bench during the recess was not part of the regular evidence of the trial. The court reporter could not be expected to record the conversation without directions from the trial counsel or the trial judge to do so. This was not done, but the transcript of conversation between the trial judge and the trial counsel following the recess does indicate what took place.

We cannot conclude that the failure to have a complete transcript of every word uttered during the trial impairs appellant’s constitutional right to effective assistance of counsel on this appeal. The appellant has received the complete transcript of what was recorded, and the trial judge did take steps to see that the substance of the conversation with the juror was put in the trial transcript.

In Goins v. Meade, Ky., 528 S.W.2d 680 (1975), our Supreme Court dealt at length with the question of providing complete trial transcripts. Theré exists no constitutional right to a complete transcript in all criminal cases. The mere fact that there is different counsel at trial and on appeal is not a ground for providing a complete transcript. Such is not a denial of equal protection and due process of the law. The opinion in Goins, supra, concluded at p. 684:

To adopt the petitioner’s abstract argument would encourage the waste of public money and delay finality in the disposition of criminal cases to the detriment of the affected defendant and society which deserves protection.

Appellant cited the case of Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), as authority for the point that an indigent was entitled to a complete transcript. We quote from Hardy, supra, 375 U.S. 277, at p. 281, 84 S.Ct. at p. 428:

We deal here only with the statutory scheme and do not reach a consideration of constitutional requirements. We see no escape from the conclusion that either where the requirements of a nonfrivolous appeal prescribed by Coppedge v. United States, supra, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 are met, or where such a showing is sought to be made, and where counsel on appeal was not counsel at the trial, the requirements placed on him by Ellis v. United States, supra, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 will often make it seem necessary to him to obtain an entire transcript. (Emphasis added.)

The transcript available in this action is as complete as it can be. It is certainly complete enough that the appellate counsel can provide effective assistance. So long as the transcript is as complete as it can be made, and so long as it is complete enough for trial counsel to provide effective assistance on appeal, we will not be disposed to reverse cases because a new counsel is unable to provide effective assistance. Other ways to provide a complete and adequate record must be provided through the assistance and cooperation of the trial judge, the prosecutor and the trial counsel. We find no reversible error in this argument presented by the appellant.

The appellant’s final argument is that it was error for the court to refuse to instruct the jury on criminal trespass in the first degree. Appellant argues that the recent Supreme Court opinion in Martin v. Commonwealth, Ky., 571 S.W.2d 613, (1978), is dispositive of the issue. We cannot agree and we find Martin, supra, and the cases cited therein to be distinguishable on their facts from the case at bar.

Martin was charged with and found guilty of first degree burglary. He was discovered in a home next door to his own house. Martin testified that the door was open, and that he thought someone had broken into the house. He claimed that he entered the dwelling to investigate the situation because he knew the occupant was not home. Martin readily admitted entering the house without permission, but he denied the commission of or intent to commit any crime. Martin’s counsel moved for an instruction on criminal trespass, which was overruled. The court held it was reversible error.

The opinion in Martin, supra, cited Trimble v. Commonwealth, Ky., 447 S.W.2d 348 (1969), and Harris v. Commonwealth, Ky., 389 S.W.2d 907 (1965). Trimble was convicted of attempted rape and claimed that it was error to fail to instruct the jury on the offense of detaining a woman against her will with intent to have carnal knowledge. - The opinion in Trimble, supra, at 350, reads in part, “When the prosecution adduces evidence warranting an inference of a finding of a lesser degree of the charged offense, the court should instruct on the lesser degree even though the defendant presents the defense of alibi.” The court affirmed the conviction and noted that nothing in the evidence tended to prove any lesser degree of the offense charged.

In Harris, supra, a murder conviction was reversed when the trial court failed to give an instruction on voluntary manslaughter. The court held that, “If a reasonable inference can be drawn from the evidence that the defendant in a homicide case is guilty of a lesser crime than murder, instructions should be given consistent therewith.” Harris, supra, at 907-908. Although Harris used an alibi for a defense, the court nevertheless concluded that under the evidence presented in the case, it would be as reasonable to infer that he was as likely to be guilty of voluntary manslaughter as he was guilty of murder.

Martin, supra, holds that it is the duty of a trial court to instruct a jury on a lesser included offense when it is requested, and when it is justified by the evidence. We cannot say that it was error for the trial court in this action to refuse to give an instruction on criminal trespass, because the only reasonable inference to be drawn from the evidence is that the appellant is either guilty of burglary or nothing. Unlike Martin, the appellant never admitted being in the house. The house had been thoroughly ransacked, and the appellant was identified as the one running from the house as soon as the officers arrived. This is substantial evidence of an intent to commit a crime, and the evidence bears little resemblance to merely knowingly entering or remaining unlawfully in a dwelling, which are the only elements necessary for criminal trespass in the first degree. KRS 511.060.

Although appellant could not claim reversible error if the court had given an instruction on criminal trespass in this case, since the appellant requested the instruction, we might nevertheless anticipate that the appellant would have cried “foul,” if the court had given a criminal trespass instruction over his objection. This is especially true if he had been found guilty of the lesser offense. Appellant’s argument would then have been that since his defense was that he had never entered the dwelling, he was either guilty of burglary or nothing. The instruction on the lesser offense merely gave the jury an opportunity to find him guilty of something with an easy conscience.

There was no evidence presented of the lesser included offense, except such elements as are inseparable incidents of the offense charged. We cannot say that these inseparable incidents allow for a reasonable inference that the appellant was guilty merely of the lesser offense. There was no theory presented that a lesser included offense was committed. The evidence points to an intent to commit a crime, and the appellant offered no conflicting evidence. Appellant was not entitled to an instruction on a lesser included offense. George v. Commonwealth, Ky., 468 S.W.2d 296 (1971).

The judgment of the trial court is affirmed.

All concur.


text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, and Uninsured Employer’s Fund, Appellants, v. Russell RATLIFF, Flatwoods Mining Company, Steeles Creek Coal Company, Childers Coal Company and Workmen’s Compensation Board, Appellees. Russell RATLIFF, Cross-Appellant, v. James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Uninsured Employer’s Fund, Flatwoods Mining Company, Steeles Creek Coal Company, Childers Coal Company and Workmen’s Compensation Board, Cross-Appellees.
    Court of Appeals of Kentucky.
    July 28, 1978.
    Rehearing Denied Sept. 22, 1978.
    Discretionary Review Denied Dec. 19, 1978.

      John Riehl, Jr., Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for James R. Yocom (Special Fund).
    Michael G. Richardson, Asst. Atty. Gen., Frankfort, for Frances Jones Mills, Treasurer and Custodian of the Uninsured Employer’s Fund.
    William S. Kendrick, William G. Francis, Francis, Kazee & Francis, Prestonsburg, for Flatwoods Mining Co., Steeles Creek Coal Co.
    Kelsey E. Friend Law Firm, R. Roland Case, Pikeville, for Russell Ratliff.
    Before LESTER, VANCE and WIL-HOIT, JJ.
   VANCE, Judge:

Appellee, Russell Ratliff, for many years a coal miner, contracted pneumoconiosis while in the employ of appellee, Flatwoods Mining Company. He was informed by his doctor on March 13, 1975, that he had the disease, but he continued work with Flat-wood until May 8, 1975, when he quit work because of his disability. He filed a compensation claim against Flatwood and the appellee, Steeles Creek Coal Company, on July 1, 1975.

Before the filing of his claim, however, Ratliff began working as a coal miner for Childers Coal Company and worked for that company for two months, from June 1, 1975, to August 1, 1975. On October 15, 1975, he amended his claim to make Child-ers Coal Company a party. The filing of the amended claim was the only notice given to Childers Coal Company.

The Workmen’s Compensation Board dismissed the claim against Childers Coal Company for failure to give timely notice. It dismissed the claim against Flatwood Mining Company and Steeles Creek Coal Company because they were not the employers in whose employment Ratliff was last exposed to the hazard of the disease. KRS 342.316(l)(a).

On appeal, the Floyd Circuit Court reversed the order dismissing Childers Coal Company and affirmed the dismissal as to Flatwood Mining and Steeles Creek.

Because Childers Coal Company was uninsured, the judgment imposes a potential liability upon the Uninsured Employer’s Fund as well as the Special Fund. Both funds appeal. Ratliff has cross-appealed from that part of the judgment which dismissed the claim against Flatwood Mining Company and Steeles Creek Coal Company.

We reverse the judgment on both the appeal and the cross-appeal.

There is ample evidence to support the determination of the Board that Ratliff failed to give due and timely notice to Childers Coal Company. He was aware two months prior to becoming employed by Childers that he had pneumoconiosis. He worked for Childers for two months, quitting on August 1, 1975, and gave no notice of disability until October 15, 1975. He offers no reasonable excuse for this delay. Assuming that Ratliff could be excused for failure to notify Childers as long as he worked for it, he did not notify Childers until two and one-half months after he terminated his employment, and no case cited by Ratliff holds that notice given two and one-half months after disability is sufficient per se under the statute. In some cases a delay of even greater length has been held reasonable under the particular circumstances of those cases, but as we have pointed out, there was no circumstance here which could be said to be a reasonable excuse for the delay. The order of the Board dismissing as to Childers Coal Company should have been affirmed.

Pneumoconiosis is an occupational disease. An award for permanent partial disability resulting from occupational disease was approved in Young v. Marsillett, Ky., 473 S.W.2d 128 (1971). Although disability from pneumoconiosis is not recognized to exist so long as a miner remains continuously employed by the same employer (Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167), that fiction ends when the employment is terminated, Yocom v. Karst, Ky., 528 S.W.2d 697 (1975).

In Karst, it was expressly recognized that a claim for permanent partial disability from pneumoconiosis materializes as soon as a miner terminates his employment in a coal mine. The claim for compensation for whatever disability exists at the termination of employment is not affected by subsequent employment as a miner by a different (or even the same) employer. We think Ratliff stated a claim against Flatwood Mining Company and Steeles Creek Coal Company. He should be permitted to proceed with his proof on that claim. The judgment dismissing the claim as to Flat-wood and Steeles Creek is erroneous.

It is true that KRS 342.316(l)(a) imposes liability upon the employer in whose employment the last hazardous exposure occurs. The holdings in Young v. Marsillett, supra, and Yocom v. Karst, supra, limit the application of the statute and permit a claim for disability from pneumoconiosis to be filed the moment the disease is discovered and the employee has terminated his employment, and the claim may proceed to an award for such disability as then existed, even though the employee subsequently is re-employed as a miner. The fact of subsequent employment will have bearing only as to the extent of the disability. Yocom v. Karst, supra.

The judgment is reversed both on the appeal and the cross-appeal for the entry of a new judgment in conformity with this opinion.

All concur.


text:
    Sargeant John T. SPELLMAN on his own behalf and on behalf of the class of individuals similarly situated being Jefferson County Police Officers, Fraternal Order of Police, Lodge No. 14, Appellants, v. FISCAL COURT OF JEFFERSON COUNTY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1978.
    Rehearing Denied Dec. 8, 1978.
    Richard J. Frockt, Karen A. Carter, Frockt & Klingman, Louisville, for appellants.
    Donald R. Erler, Eugene L. Mosley, Louisville, for appellee.
    Before HOWARD, HOWERTON and PARK, JJ.
   HOWERTON, Judge.

Appellants brought this action seeking damages against the fiscal court for failure to pay them wages for “on-call” time. The trial court denied appellants’ request for a jury trial and found in favor of the Jefferson County Fiscal Court.

Appellants are police officers who were involved in extra duty during the busing demonstrations in Jefferson County in the fall of 1975. The officers worked 12-hour shifts, 7 days a week, for a period of approximately 2 weeks. Additionally, from September 4 through September 30, and on weekends through November, the officers were required to be reachable by telephone and able to arrive at a police substation within 30 minutes if an emergency arose.

Two issues are raised on appeal: (1) whether appellants were entitled to a jury trial; and (2) whether the court erred in concluding that KRS 337.285 and 803 KAR 1.065 § 3, § 4 did not cover the so-called “on-call” time, thereby precluding the additional pay.

Appellants requested a jury trial in their complaint. Prior to trial, appellee moved the court to deny the request for a jury trial, which the court did, without giving any reasons for doing so. In Whitfield v. Cornelius, Ky.App., 554 S.W.2d 870, 871, (1977), this Court held:

The fundamental right to a trial by jury, when a proper demand is made, is recognized by the Kentucky Constitution in Section 7, and incorporated into the Kentucky Rules of Civil Procedure, Rule 38.-01. Civil Rule 39.01 gives the trial judge a limited discretion to remove a ease from a jury in certain special instances only. CR 39.01(3) permits the trial court on its own motion to deny a jury trial where because of the peculiar questions involved, or because the action involves complicated accounts, or a great detail of facts, it is impracticable for a jury intelligently to try the case. The trial judge does not have broad and unlimited discretion to deny a proper jury demand. Such discretion must be exercised in strict conformity to the Civil Rules. The trial court’s findings must be supported by the evidence and must give substantial reasons for the exercise of such discretion.

We believe the trial court erred by denying the request for a jury trial.

However, we find the error to be harmless. Even if we accept appellants’ rendition of the facts most favorably to their argument, we must conclude that a directed verdict for the appellee would have been proper. The pertinent sections of 803 KAR 1:065 provide that employees shall be compensated while “on-call”, if they are so restricted as not to be able to use their time effectively for their own purposes. The regulation also provides that “an employee who is not required to remain on the employer’s premises, but is merely required to leave word at his home or with company officials where he may be reached is not working while ‘on-call’.” Appellants allege that there were discrepancies among individuals as to what limitations they were under. However, it is clear that the Police Chief only directed that the men be capable of being reached by telephone and be able to report to a police substation within 30 minutes. While these restrictions placed some limitations on the policemen, it should be noted that policemen are considered under duty to respond as policemen 24 hours a day. The position of police officer must be the individual’s primary occupation. Even under normal circumstances, policemen have certain limitations placed upon them. We recognize that the order prevented some policemen from leaving the Louisville area on long breaks for recreational trips or second jobs, but we must nevertheless conclude that the order was not so restrictive as to require additional compensation under the statute or regulation.

The trial court relied upon Aldridge v. United States, 479 F.2d 1365, 202 Ct.Cl. 365 (1973). In Aldridge, the court faced a similar situation where policemen were limited in the free use of their off-duty time. Policemen in the Panama Canal Zone were put “on-call” during a period of civil disturbances. The policemen in the Canal Zone were limited to the geographical boundaries of their district, and they had to be within reach by telephone at all times. The regulations applicable in the Canal Zone are also similar to the Kentucky regulations. The Canal Zone police were not on compensable time. We believe the reasoning in Aldridge is sound, and the trial court’s reliance on Aldridge was well-founded.

The facts of this case make it clear that even if the trial court had allowed the case to be heard by a jury, the appellee would have been entitled to a directed verdict. Therefore, we affirm the judgment of the circuit court.

All concur.


author: HOWARD, Judge.

text:
    KENTUCKY ALCOHOLIC BEVERAGE CONTROL BOARD and Kentucky Beer Wholesalers Association, Inc., Appellants, v. ANHEUSER-BUSCH, INC., Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1978.
    Julian W. Knippenberg, Carroll & Knip-penberg, R. Coleman Endicott, Lexington, for appellants.
    Ben B. Fowler, Stites, McElwain & Fowler, Frankfort, for appellee.
    Before HOGGE, HOWARD and WIL-HOIT, JJ.
   HOWARD, Judge.

Anheuser-Busch, Inc. applied for a beer distributor’s license under KRS 243.040. However, its application was rejected by the Kentucky Alcoholic Beverage Control Board pursuant to its regulation, 804 KAR 4:015, that prohibits interlocking interests between wholesalers, distributors, and manufacturers of malt beverages. The trial court set aside the order of the Board and ordered same to issue the license. Hence, this appeal from the trial court.

The regulation in question attempts to prevent a monopoly in the beer business which might occur where those who have financial interests in the manufacturing, wholesaling, or retailing of beer could form interlocking relationships to the detriment of the independent wholesaler or retailer. This is, perhaps, a laudable goal but the issue here is whether there was and is statutory authority upon which this administrative regulation could be based.

The statute relied upon is KRS 241.060 and the pertinent parts are as follows:

The board shall have the following functions, powers and duties:
(1) To adopt reasonable regulations governing the procedure relative to applications for and revocations of licenses and relative to all other matters over which the board has jurisdiction, and for the supervision and control of manufacture, sale, transportation, storage, advertising and trafficking of alcoholic beverages. Regulations need not be uniform in their application, but may vary in accordance with reasonable classifications.

In addition to the specific grant of regulatory power set out above, KRS 13.082 provides for the adoption of regulations by every administrative body and is quoted as follows:

(1) The power vested in every administrative body to adopt regulations shall be uniform and shall be confined to the direct implementation of the functions and duties assigned to an administrative body by the general assembly, or by executive order.

Do these statutory provisions grant the authority claimed by the appellant? We think not.

Prior to the adoption of the administrative regulations in question, the Court of Appeals ruled on a case that is very similar to the one before us. In the ease of Kentucky Beer Wholesalers Association v. George Wiedemann Brewing Company, Ky., 302 S.W.2d 606 (1957), it was held that Chapter 243 of the Kentucky Revised Statutes did not prohibit the issuance of a distributor’s license to a licensed brewer, and the court affirmed a judgment of the Franklin Circuit Court approving the issuance of such a license.

The rationale of the opinion is that KRS 243.110(1) expressly provides that each kind of license issued under KRS 243.030 is incompatible with every other license listed in that section. KRS 243.030 pertains only to distilled spirits and wine licenses. Malt beverage licenses of all kinds are provided for in KRS' 243.040. As a consequence, the court reasoned that since the legislature had specifically prohibited cross-licensing for distilled spirits and wine licensees that its failure to provide a similar prohibition insofar as malt beverage licenses were concerned indicated that there was no intention on the part of the legislature to prohibit a licensed brewer from holding a distributor’s license.

KRS 243.110 has not been amended in any way, and there have been no significant amendments to KRS 243.030 and 243.040. No new section has been created in Chapter 243 since 1957 indicating any new legislative policy in connection with malt beverage licenses.

It is true that the alcoholic beverage control law grants to the Board the right to make reasonable regulations in all matters over which the Board has jurisdiction. KRS 241.060. However, it is axiomatic that the grant of the power to make regulations does not authorize an administrative agency to adopt regulations which are contrary to legislative policy as expressed in the statutes. The cases that best exemplify this principle are the cases of Roppel v. Shearer, Ky., 321 S.W.2d 36 (1959), and Alcoholic Beverage Control Board v. Hunter, Ky., 331 S.W.2d 280 (1960). In the Roppel case the Alcoholic Beverage Control Board, exercising its authority to promulgate regulations under KRS 241.060, adopted a regulation prohibiting any “brewer, distributor or retailer of malt beverages” from selling malt beverages on credit. The Court of Appeals held that the regulation was contrary to law and therefore invalid. The court referred to KRS 244.040 which prohibited a brewer, wholesaler, or distributor from selling alcoholic beverages on credit. As a consequence, it was beyond the power and authority of the Alcoholic Beverage Control Board to adopt a regulation which had the effect of prohibiting credit in sales by malt beverage retailers.

In the Hunter case, the Alcoholic Beverage Control Board had adopted a regulation which provided that any retailer guilty of giving a cold check for the purchase of alcoholic beverages would be considered as obtaining credit from the wholesaler and guilty of violating the statute prohibiting a distributor to sell alcoholic beverages on credit. The court noted that KRS 244.-040(1) was a prohibition against brewers and distributors from selling alcoholic beverages on credit. The court held that this statute did not affect any buyer, such as a retailer, and, as a consequence, the regulation was invalid. The court, specifically referring to KRS 241.060(1), stated that this statute does not bestow upon the Board the right to place rules in force that exceed the limitations of a particular statute it undertakes to administer.

It is our holding that the trial court was correct in its decision because the Kentucky Beer Wholesalers Association v. George Wiedemann Brewing Company, supra, holds that the legislature in KRS Chapter 243 dealt directly with the problem of incompatibility of licenses. Therefore, this statute established a clear legislative intent not to prohibit cross-licensing in the areas not expressly prescribed. Thus, the Board exceeded the authority conferred upon it by statute in issuing this regulation. Roppel v. Shearer, supra, and Alcoholic Beverage Control Board v. Hunter, supra.

The judgment of the trial court is affirmed.

All concur.


author: MARTIN, Chief Judge.

text:
    Robert ASH and Aliene Ash, Appellants, v. SECURITY NATIONAL INSURANCE COMPANY and William L. Wine, Appellees.
    Court of Appeals of Kentucky.
    Nov. 17, 1978.
    Edward A. Mayer, Terry E. Fox, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appellants.
    William A. Miller, Louisville, for appel-lees.
    Before MARTIN, Chief Judge, and HOWERTON and LESTER, JJ.
   MARTIN, Chief Judge.

This is an appeal from an order of the Jefferson Circuit Court denying appellants’ motion for damages under KRS 26A.300. This case turns solely on the interpretation this Court will give to that statute. KRS 26A.300 defines in what instances damages will be awarded against an appellant upon the affirmance or dismissal of an appeal. It was enacted in 1976 replacing KRS 21.-130 which provided for the award of damages in the amount of 10% on the sum superseded when an appeal was either affirmed or dismissed. The question before us is whether KRS 26A.300, which exempts a first appeal from damages, imposes damages where a petition for rehearing has been made and denied. KRS 26A.300 provides as follows:

(1) When collection of a judgment for the payment of money has been stayed as provided in the Rules of Civil Procedure, there shall be no damages assessed on the first appeal as a matter of right contemplated by section 115 of the Constitution of Kentucky.
(2) When collection of a judgment for the payment of money has been stayed as provided in the Rules of Civil Procedure pending any other appeal, damages of ten percent (10%) on the amount stayed shall be imposed against the appellant in the event the judgment is affirmed or the appeal is dismissed after having been docketed in an appellate court.
(3) Similar damages of ten percent (10%) shall be imposed when a petition for writ of certiorari, petition for rehearing, or other petition which stays collection of a judgment for the payment of money is denied by an appellate court under circumstances not constituting a first appeal under subsection (1) of this section.
(4) No additional penalty shall be imposed upon a party as a consequence of a review subsequent to a petition or a second appeal.
(5) Damages imposed under subsections (2) or (3) of this section shall not be payable and shall be void if the decision of the trial court awarding the payment of money is ultimately reversed.

The Ashes were successful litigants in a lawsuit against Security National Insurance Company and William L. Wine, securing a judgment in the amount of $5,000. The judgment was entered by the Jefferson Circuit Court on March 14, 1977. A notice of appeal was filed, and the defendants executed a supersedeas bond, and a supersede-as for the judgment was issued on March 29, 1977, staying the collection of the judgment pending defendants’ appeal. The appeal was unsuccessful, and this Court affirmed the judgment below on December 2, 1977. The defendants filed a petition for rehearing on December 7, further suspending payment of the judgment. This Court denied the petition on February 10, 1978, and on March 3, 1978, the mandate issued. The defendants then paid the amount of the judgment, including costs, to the plaintiffs. A joint motion was made in Jefferson Circuit Court by all parties for a determination of whether defendants were liable for damages because of the delay caused by the filing and denial of the petition for rehearing. The Jefferson Circuit Court ruled that no damages were due as the petition for rehearing was denied under circumstances constituting a first appeal. KRS 26A.300(3). We agree. It is from this order that the Ashes, the original plaintiffs and former appellees, now appeal.

The parties’ respective positions may be summarized briefly. The appellants, as winning plaintiffs below, contend that a petition for rehearing denied by this Court after affirmance of the original judgment is no longer a first appeal. Therefore, KRS 26A.300(3) applies and damages of 10% must be assessed. Appellees, the losing defendants below, contend that the appeal as a matter of right referred to in KRS 26A.300(1) encompasses the petition for rehearing brought in the same court hearing the original appeal, and that the petition is, therefore, exempt from any assessment of damages. Neither party cites to us any authority, and we believe this is the first time the issue has arisen since the enactment of KRS 26A.300.

Prior to 1976, damages on affirmance were controlled by KRS 21.130, which awarded damages whenever an appeal was affirmed or dismissed. The award was mandatory; there was no discretion to be exercised by the court to determine, for example, the validity or frivolity of an appeal. U. S. Fidelity & Guaranty Co. v. Citizens National Bank, 147 Ky. 810, 145 S.W. 750 (1912); Preece v. Burns Adm’r, 261 Ky. 202, 87 S.W.2d 375 (1935). With the implementation of the judicial article in 1976, came the addition of § 115 to the Kentucky Constitution. Section 115 provides, in part, “In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court .” Until then the right to appeal was statutory. The legislature apparently repealed KRS 21.130 and enacted KRS 26A.300 to insure that there would be no penalty assessed for an appeal brought as a matter of right under § 115.

The assessment of damages against an appellant when an appeal is affirmed is allowed in most jurisdictions. The majority of jurisdictions provide that the reviewing court may assess a penalty or damages on a finding that an appeal was taken frivolously or for the purpose of hindering or delaying justice. 5 Am.Jur.2d, Appeal and Error § 1024. The federal rule states that “[i]f a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appel-lee.” Federal Rule of Appellate Procedure 38. This is typical of many jurisdictions in that the availability of damages is left to the discretion of the reviewing court. Whether the issues are meritorious and whether the appeal was brought solely for delay or vexation of the appellees are questions to be considered by the reviewing court. Krick v. Farmers and Merchants Bank of Boswell, 151 Ind.App. 7, 279 N.E.2d 254 (1972); Taliaferro v. Taliaferro, 203 Cal.App.2d 652, 21 Cal.Rptr. 870 (1962). At least two states, Mississippi and Virginia, automatically provide for damages upon af-firmance of a money judgment. Miss.Code Ann. § 11-3-23; Va.Code § 16-1-113. The position of these two states is especially interesting in light of their single-tier appellate structure. Kentucky also imposed mandatory damages under former KRS 21.-130. Even with the enactment of KRS 26A.300, damages are automatically conferred upon the affirmance or dismissal of appeals other than the first appeals.

The propriety of such damages, which are in fact a penalty imposed for appealing an unfavorable judgment, has been recognized by the United States Supreme Court. L & N Railroad Co. v. Stewart, 241 U.S. 261, 36 S.Ct. 586, 60 L.Ed. 989 (1916). Stewart sued the L & N Railroad under the Federal Employees Liability Act and won. The railroad appealed, and the Kentucky Court of Appeals affirmed, imposing additional damages of 10% of the amount of judgment under the Kentucky law then in effect. The Supreme Court stated at 241 U.S. page 263, 36 S.Ct. page 588:

There was no obligation upon the state to provide for a suspension of the judgment, and nothing to prevent its making it costly in cases where ultimately the judgment is upheld. So, the state may allow interest upon a judgment from the time when it is rendered, if it provides appellate proceedings and the judgment is affirmed, as, but for such proceedings, interest would run as of course until the judgment was paid.

A resolution of the availability of damages where a petition for rehearing is denied by the Kentucky Court of Appeals requires an examination of the nature of the right to an appeal. The Kentucky Constitution, § 115, provides for a right to an appeal to another court. It does not provide for a petition for rehearing. The Constitution also gives the Supreme Court the power to define its own appellate jurisdiction as well as the jurisdiction of the Court of Appeals by the enactment of rules. Kentucky Constitution, §§ 110, 116. The Rules of Civil Procedure provide for the filing of a petition for rehearing in both the Court of Appeals and the Supreme Court. CR 76.32.

An appeal has been defined in various courts as the removal of a cause from a lower to a higher tribunal for retrial or review, Savelewitz v. Solid, 21 Conn.Sup. 159, 149 A.2d 314 (1958); the removal of a suit from an inferior to a superior court, State v. Getty, 273 S.W.2d 170 (Mo.1954); the removal of a case from an inferior court to a higher court for review, Griffitts v. Rockford Utility District, 41 Tenn.App. 653, 298 S.W.2d 33 (1956); the removal of a suit, litigation, or action from an inferior to a superior court, Scott v. Newsom, 74 N.M. 399, 394 P.2d 253 (1964); any complaint to a superior court of an injustice done by an inferior one, Illinois Central Railroad Co. v. Moore, 215 So.2d 419 (Miss.1968); and, a review by a higher court of a lower court judgment, Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971). (Emphasis added.) It is significant that these definitions turn on the removal of an action to a higher court from a lower court and that they are stated in terms of a higher court’s consideration of a lower court’s action.

On the other hand, a petition for rehearing is a request by a party for an appellate court to modify or set aside its own judgment in an appeal. 5 Am.Jur.2d Appeal and Error § 978. Under CR 76.-32(2), a petition will be limited only to the issues argued on appeal and will be granted only when the court “has overlooked a material fact in the record, or a controlling statute or decision, or has misconceived the issues presented on the appeal, or the law applicable thereto.” A petition for rehearing is arguably part of the appeal from which it arises because it is before the same appellate court, and by virtue of its being filed, suspends final action by that court. CR 76.30(2).

There is a general view, however, that the filing of a petition for rehearing is not a matter of right, but a question left to the discretion of the appellate court and therefore not an inherent part of the appeal.

The reasons that rehearings are not awarded as a matter of right in such courts is not any assumption of their infallibility, but the very practical one that there must be at some time an end of litigation, not only for the benefit of the parties in each particular case, but to enable others standing behind him to have their rights determined. 5 Am. Jur.2d Appeal and Error § 978, footnote 13, citing Carey v. Kemper, 45 Ohio St. 93, 11 N.E. 130 (1978).

At one time in Kentucky there was no statutory provision for a rehearing in a criminal case. The court once noted that there was no statutory provision for a rehearing and that none existed as a matter of right. Armes v. Louisville Trust Co., 306 Ky. 155, 206 S.W.2d 487 (1947). Armes, supra, however, preceded the civil rules and new § 115 of the constitution. The question still remains unresolved: “Does the constitutional right to one appeal to another court encompass the filing of a petition for rehearing?” Or, is the petition in effect another appeal causing delay and requiring an award of damages against the appellant/petitioner?

Armes, supra, considered a petition for rehearing which sought to reinstate an appeal which had been dismissed for want of jurisdiction. The court overruled the petition, but stated that an appellate court has discretion, upon good cause, to reinstate an appeal and that a petition could be the proper procedure. Id. The petition would have been, under these circumstances, a means of obtaining a second appeal, since at that time there was no intermediate appellate court in Kentucky. Moreover, as the court in Armes points out, § 118 of the Kentucky Constitution assumed that petitions for rehearing would be allowed by providing that “the court shall prescribe by rule that petitions for rehearing shall be considered by a judge who did not deliver the opinion in the case.” Section 118 was replaced when the judicial article was adopted, and the constitution is now silent as to petitions to rehearing. It can be argued, at least, that Armes is authority for the proposition that a petition for rehearing is a second appeal. Further credence to this proposition is found in Pike, Morgan & Co. v. Wathen, 25 Ky.L.Rptr. 1264, 78 S.W. 137 (1904). Wathen sued Pike, Morgan & Co. and won. The Kentucky Court of Appeals affirmed in a decision reported at 25 Ky.L.Rptr. 640, 76 S.W. 322 (1903). The defendants brought a petition for rehearing claiming, as it had in its answer below, that it was not a corporation and could not be sued as such. This question had not been presented at the former hearing of the appeal. The court granted the petition and reversed its original decision despite Wathen’s claim that the defendants had already paid the judgment. The petition, as a result, served to provide the defendants/appellants with a second appeal, albeit to the same court. Wathen and Armes imply that a petition for rehearing under the current system is not a new appeal for two reasons: (1) The appellate court can now only consider matters raised in the appeal in ruling on a petition for rehearing, unlike the situation in Wathen, supra, CR 76.32; and (2) Today there is a two-tiered appellate system eliminating the device of reviving an appeal by means of a petition for rehearing as was done in Wathen and suggested as a possible procedure in Armes.

Research in other jurisdictions has unearthed neither a case on this point, nor a statute comparable to KRS 26A.300. Cases which assess damages for delay or frivolous appeals do not treat petitions for rehearing separately from the appeal, if at all. Often a decision which affirms and awards damages will state in the heading, “Rehearing Denied.” See, e. g., Krick v. Farmers and Merchants Bank of Boswell, supra; Blume v. Saucier, 507 S.W.2d 827 (Tex.Civ.App. 1974). No case has been found which assessed initial or additional damages specifically for the denial of a petition for rehearing. One suggestion is that the court deemed the petition to be part of the appeal. Another interpretation is that the petition was not considered to be frivolous. This seems implausible, because if an appeal is considered frivolous and damages are assessed, certainly a petition for rehearing would be considered equally frivolous. A more likely explanation is that the petition for rehearing is not even considered when an appellate court is determining the propriety of assessing delay damages.

Only one case has been found which discusses a petition for rehearing in connection with damages upon affirmance. Indiana has a two-tiered appellate system, provides for petitions for rehearing, and allows damages if the appellate court determines that an appeal is frivolous. Annee v. State of Indiana, 274 N.E.2d 260 (Ind.1971), arose out of a condemnation proceeding. Annee drew a sum of money out of the appraiser’s award, which exceeded the amount ultimately awarded by the trial court. Annee appealed the court’s order that he return the difference, and the Indiana Supreme Court affirmed. Both Annee and Indiana filed a petition for rehearing, the state seeking 10% damages for the delay caused by Annee’s petition. Ind.A.P. 15(G). The court denied the 10% damages, holding that, since Annee could not be sure that the difference had to be returned until the petition was decided, no bad faith was shown. This suggests that the Indiana court believed that the petition was part of the appeal because the rights and duties of the parties were not fixed until the disposition of the petition.

It is clear that the Commonwealth may impose damages for frivolous appeals or appeals brought solely for delay, because there is no obligation to provide any appeal at all. Nonetheless, Kentucky has chosen to provide one appeal as a matter of right, and the question is whether the legislature intended that right to include a petition for rehearing. The language of § 115 would indicate that the appeal which is guaranteed is that taken to another court. It is also significant that the same judicial article which instituted the right to an appeal also implemented a two-tiered appellate system. On the other hand, the language of KRS 26A.300(3) lends itself to the interpretation that a petition for rehearing is not a first appeal. The collection of damages can be delayed by a petition for rehearing, and the prevention of such delays is the basis for the penalty imposed by KRS 26A.300. This court must determine at what point the damages provided by KRS 26A.300 are to accrue. In effect, the question is how broad is the right to appeal under § 115 of the Kentucky Constitution and KRS 26A.300. We believe that the provision of the Constitution takes precedence over the statute and that damages under KRS 26A.300 do not accrue when a petition for rehearing has been filed in this court.

The Judgment of the Jefferson Circuit Court is affirmed.

All concur.

APPENDIX

ALABAMA

Rule of Appellate Procedure 38. “In civil cases, if the appellate court shall determine on motion or ex mero motu that an appeal is frivolous, it may award just damages and single or double costs to the appellee.”

ARIZONA

Arizona Revised Statute § 12-2106: “When the supreme court is of the opinion that an appeal has been taken for delay, and that there was not sufficient grounds for taking an appeal, it may include in its judgment an additional amount, not exceeding ten per cent of the judgment appealed from, if the judgment is for the recovery of money, and not exceeding five hundred dollars in other cases, as damages for a frivolous appeal.”

GEORGIA

Code of Georgia, Ga.Code Ann. § 6-1801: “Ten per cent damages may be awarded by the appellate court upon any judgment for a sum certain, which has been affirmed, when in their opinion, the cause was taken up for delay only, and it shall be so entered in the remittitur.”

ILLINOIS

Illinois Revised Statutes, Ch. 33, § 23: “In every such case, if the judgment or decree be affirmed in the whole, the party prosecuting such appeal shall pay to the opposite party a sum not exceeding 10% on the amount of the judgment or decree so attempted to be reversed, at the discretion of the court, and in addition to the costs shall have judgment and execution therefor: Provided, the court shall be of opinion that such appeal was prosecuted for delay.” (Repealed, October, 1976).

INDIANA

Indiana Rule of Appellate Procedure 15(G): “If the court on appeal affirms the judgment, damages may be assessed in favor of the appellee not exceeding ten per cent (10%) upon the judgment, in money judgments, and in other cases in the discretion of the court; and the court shall remand such cause for execution.”

MICHIGAN

Michigan Compiled Laws Annotated, § 600.-2445(3): “The appellee may be awarded damages for the delay and vexation caused by the appeal, to be assessed in the discretion of the court, in addition to costs on appeal, if the appellant does not improve his position on appeal.”

MISSISSIPPI

Mississippi Code Annotated, § 11-3-23: “In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect, the supreme court shall render judgment against the appellant for damages, at the rate of five per centum and costs, as follows . . . ”

MONTANA

Montana Rules of Appellate Civil Procedure 32: “If the Supreme Court is satisfied from the record and the presentation of the appeal, that the same was taken without substantial or reasonable grounds, but apparently for purposes of delay, only, such damages may be assessed on determination thereof as under the circumstances are deemed proper.”

NORTH DAKOTA

North Dakota Rules of Appellate Procedure 38: “If the court shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appel-lee, including reasonable attorney fees.”

OREGON

Oregon Revised Statutes, § 19.160: “Whenever a judgment or decree is affirmed on appeal, and it is for recovery of money, or personal property or the value thereof, the judgment or decree shall be given for 10 percent of the amount thereof, for damages for delay, unless it appears evident to the appellate court that there was probable cause for taking the appeal.”

RHODE ISLAND

Rhode Island General Laws, § 9-22-16: “If it shall appear, on an appeal, exception, or other proceeding, from a lower to a higher court, that such proceeding has been taken (or affidavit filed), solely for delay, the court shall impose double costs on the party so seeking delay, or, in its discretion, treble costs if the ease shall seem to warrant it.”

VIRGINIA

Code of Virginia, § 16.1-113: “. .If judgment be recovered by appellee, execution shall issue against the principal and his surety, jointly or separately, for the amount of the judgment, including interests and costs, with damages on the aggregate at the rate of ten per centum per annum, from the date of that judgment until payment, and for the costs of the appeal; . . . ”

      . An appendix with representative rules and statutes follows this opinion.

      . It has been pointed out that there is no inherent right to an appeal and there is no constitutional duty upon the states to provide such a right. 5 Am.Jur.2d Appeal and Error § 2.


author: HAYES, Judge.

text:
    Darrell CARTER, in his Individual capacity and as Superintendent and as Secretary of the Monroe County School Board, Dr. James E. Carter, Almond Headrick, Dr. Royce McPherson, Denton Gettings, and Owen Holland, in their Individual capacities and as members of the Board of Education of Monroe County, Kentucky, and the Monroe County Board of Education, a/k/a, Monroe County School District, Appellants, v. Virginia CRAIG, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1978.

      James C. Jernigan, Tompkinsville, for appellants.
    William J. Parker, Harlin, Parker & Rud-loff, Bowling Green, for appellee.
    Before HAYES, PARK and REYNOLDS, JJ.
   HAYES, Judge.

The appellee, Virginia Craig, has been employed as a teacher in the Monroe County School System for nineteen (19) years and is a “tenured” teacher. She taught at Gamaliel, Kentucky, from 1957 to 1971, and at Fountain Run, Kentucky, from 1971 until the spring of 1975.

In February, 1975, a delegation of parents of school children taught by appellee at Fountain Run School protested appellee’s excessive use of corporal punishment and the delegation asked the Monroe School Board to fire appellee. Charges, in writing, were brought against appellee by the Board on February 10,1975. Craig responded in a letter to the Board requesting a hearing on the charges and she asked further that she be transferred from Fountain Run to the Tompkinsville School System. The record does not contain the notice given by the Board to appellee. Apparently no hearing was held on these charges and by mutual agreement Craig was transferred to the Tompkinsville School District in March, 1975.

Appellee finished the 1974-1975 school year as a librarian at Tompkinsville Elementary and she was rehired for the school year 1975-1976, as a mathematics teacher.

On June 10, 1976, appellee received a notice of her termination as a teacher because of mental disability, failure to maintain discipline, insubordination and a general history of unsatisfactory employment.

A hearing on the charges against appellee was held on July 6, 1976. Appellee was represented by counsel and protested the notice of charges as not being sufficiently specific enough in order to permit her to prepare an adequate defense. She also requested that she be permitted to voir dire the school board members to determine whether the members could sit as an impartial tribunal. Both of the above requests by appellee were denied by the Board.

The cause proceeded, after a three (3) week continuance, numerous witnesses testified, and the Board finally concluded that appellee’s position as a teacher be terminated.

Craig appealed to the Monroe Circuit Court. She, even though entitled to under KRS 161.790(6), offered no additional proof at this de novo hearing.

The trial court concluded that Craig had been improperly dismissed because (1) the refusal of the Board to submit to voir dire examination was error; (2) the charges were not specific enough to meet the requirement of KRS 161.790(3); (3) none of the charges were substantiated by competent evidence; (4) none of the charges were supported by written records of teacher performance required by KRS 161.790(2)(a); (5) there was no written statement identifying Craig’s problems or difficulties as required by KRS 161.790(l)(d); (6) the action of the Board was void because it was taken during a closed session of the Board in violation of KRS 61.810; and finally, (7) the Board erred in not making findings of fact to support their conclusions.

The trial court ordered the teacher reinstated. The Board appeals contending the trial court was wrong on all counts.

In order to properly determine whether or not the trial court has erred, it seems to us that we first have to determine our proper scope of review. Ordinarily, review of a decision of an administrative body is limited to determining whether that body’s decision is supported by substantial evidence, or put another way, whether the decision is unreasonable or arbitrary.

However, appeals from decisions of school boards are not subject to such a limited review as above because of the requirements of KRS 161.790(6). Therein it is stated, inter alia, that:

(6) The teacher shall have a right to make an appeal both as to law and as to fact to the circuit court. . . . The court shall examine the transcript and record of the hearing before the board of education and shall hold such additional hearings as it may deem advisable, at which it may consider other evidence in addition to such transcript and record.

This statute gives the teacher a trial de novo in circuit court. The trial court here made specific findings of fact and conclusions of law. We conceive our scope of review to be, therefore, one governed by CR 52.01. Was the trial court clearly erroneous in its findings and conclusions?

The trial court determined it was error for the Board to refuse to submit to voir dire, citing Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967). That case, as we' interpret it, does not stand for the proposition that refusal of the Board to submit to voir dire is reversible error. In Osborne, the Court of Appeals was faced with the rule of law in Board of Education v. Chattin, Ky., 376 S.W.2d 693 (1964) which was that, upon appeal, the circuit court was limited to an examination of the record of the proceedings held before the school board. Chattin was decided before KRS 161.790(6) was enacted. Therefore, under Chattin, if the teacher could not have spread upon the record the bias or predilection of the board members, there was no adequate review in circuit court and thus a denial of due process. Osborne overruled Chattin on this point, and held that the Board should submit to examination by the teacher; however, it was indicated in Osborne that the de novo provisions of KRS 161.790(6) would remedy that situation.

We believe that KRS 161.790(6) corrects the Board’s procedural deficiency of not submitting to voir dire. As Justice Palmore stated in Bell v. Board of Education of McCreary County, Ky., 450 S.W.2d 229, 232 (1970), “. . . the field of battle was not in the proceedings of the school board, but in the circuit court.” Under CR 26 the teacher was free to subject the school board members to interrogation at any time after the appeal to circuit court. As a matter of fact, the United States Supreme Court, as early as 1884, rejected a contention that due process was violated by administrative actions that denied even an opportunity to be heard at all where a hearing is subsequently allowed to a competent tribunal before the administrative body’s decision could become final and irrevocable. Hagar v. Reclamation District, 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569 (1884). It is apparent that the denial of any hearing is much more unfair than the denial of examination of board members, as we have in the present case.

There is an additional reason why the trial court was clearly erroneous in determining that the lack of opportunity to voir dire the school board members was error. It is the so called “rule of necessity” enunciated in Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887 (1920). In that famous case, the issue concerned the validity of taxing income of federal judges, including Supreme Court Justices. Therein, the United States Supreme Court stated:

. because of the individual relation of the members of this court to the question, thus broadly stated, we cannot but regret that its solution falls to us . . The plaintiff was entitled by law to invoke our decision . . . and there was no other appellate tribunal to which under the law he could go. . In this situation, the only course open to us is to consider and decide the cause

The Kentucky General Assembly has given sole authority to hire and fire teachers to the various boards of education by virtue of Chapter 161 of the Kentucky Revised Statutes. If the members of the board of education were disqualified as having prejudged the case or as having personal animosity against the particular teacher or school employee, or for any reason, then there would be no other agency to hire or terminate school personnel under the existing law. The rule of necessity requires the board members to sit even though they may all be biased and have predetermined the results of a particular hearing. It would be strange indeed if teachers, or other school personnel subject to the board of education’s jurisdiction, proved to be unfit for employment could enjoy immunity from a termination of their employment simply because the only removing authority, the board, was disqualified as being biased or prejudicial against them. Kelly v. Board of Education, Ky.App., 566 S.W.2d 165 (1978) (Discretionary Review denied June 6, 1978), and Hortonville Joint School District No. 1 v. Hortonville Educational Association, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976).

The trial court was also clearly erroneous in finding the Board erred in making its determination to dismiss appellee during a closed session of the Board in violation of KRS 61.805 and 61.810. We decided in Bell v. Board of Education of Harlan, etc., Ky. App., 557 S.W.2d 433 (1977), that the Board’s dismissal of a teacher was not rendered void as a result of the fact that the Board’s deliberation resulting in dismissal took place in a closed session after a public hearing, citing KRS 61.810(6).

The trial court was in error in determining the Board erred in not making findings of fact. KRS 161.790 does not require the Board to do so. Mavis v. Board of Education of the Owensboro Independent School District, Ky.App., 563 S.W.2d 738 (1977).

We do agree that the trial court was not clearly erroneous in its remaining findings and conclusions.

The notice of charges presented to appellee did not conform to the specificity required by Blackburn v. Board of Education of Breckinridge County, Ky.App., 564 S.W.2d 35 (1978), with the possible exceptions of the charges of insubordination and unsatisfactory employment. We believe the notice was specific enough on these two charges, and unlike the other charges, these two charges were sufficiently supported by the evidence in the record.

However, the real problem remains that the Board did not comply with KRS 161.-790(l)(d) and KRS 161.790(2)(a). The trial court could have been clearly erroneous in all its findings and conclusions and it could have still concluded as it did merely because of the Board’s failure to follow the law, a law that has been in existence practically unchanged since 1964.

KRS 161.790(l)(d) states:
(1) The contract of a teacher shall remain in force during good behavior and efficient and competent service by the teacher and shall not be terminated except for any of the following causes: .
(d) Inefficiency, incompetency, or neglect of duty, when a written statement identifying the problems or difficulties has been furnished the teacher or teachers involved.
KRS 161.790(2)(a) requires:
Charges on the above causes shall be supported by written records of teacher performance by the superintendent, principal, or other supervisory personnel of the board.

The record before us is completely void of any “written records of teacher performance by the superintendent, principal, or other supervisory personnel of the board”. Also there is no evidence of any “written statement identifying the problems or difficulties” furnished to appellee. Although the law does not require that such written records appear in the teacher’s personnel file, we note that none appear in appellee’s file.

Appellant argues that the notice appellee received when she was transferred to the Tompkinsville school from the Fountain Run school would suffice under this section of the statute. We disagree, mainly because over a year had passed and appellee had been rehired since then for the 1975-1976 school year, an indication that the Board was not too dissatisfied with her performance. Appellant further argues the petition signed by the parents of children at the Fountain Run school would suffice. However, this is not signed by the “superintendent, principal, or other supervisory personnel of the board”.

Lastly, appellant argues that the school superintendent took notes and a tape recording of interviews he had with students to support the insubordination charge and these would suffice as “written records”. Again we disagree, because there is no evidence the teacher, Virginia Craig, was ever made aware of these tapes or notes previous to the hearing on the charges against her. Obviously, one purpose of the requirements of KRS 161.790(2)(a) is to make the teacher aware of deficiencies so that she or he may correct same before being terminated.

In conclusion, a review of this rather voluminous record indicates to us that the trial court acted properly when it declared the action of the Monroe County School Board in dismissing appellee as a teacher was null and void and when it ordered her reinstated.

The judgment of the trial court is affirmed.

All concur.

      . We would point out here that the Kentucky Constitution, Section 115, has abolished trial de novo, therefore it is questionable whether KRS 161.790(6) granting trials de novo from school board decisions to dismiss tenured teachers is constitutional. However, we have not been asked to decide that issue, and decline to do so.