Request By:
Honorable Kenneth E. Hollis
General Counsel
Department of Labor
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You ask whether there exists a constitutional, statutory or common law incompatibility between the office of assistant county attorney and state employment, pursuant to a personal service contract. You state that the Department of Labor retains on a contract basis several attorneys throughout the State who represent the Department in various legal matters involving enforcement of the Workmen's Compensation statutes. I assume you mean the Special Fund attorneys.
You point out that Section 165 of the Kentucky Constitution provides in part:
"No person shall, at the same time, be a state officer or a deputy officer, or a member of the General Assembly, and an officer of any county, city, town, or other municipality, or an employee thereof . . ."
You also point out that KRS 61.080 is a statutory mirror of Constitutional Section 165.
Further, you mention that KRS 61.096(7) may be applicable. That section provides in part:
"No officer employee or appointee of an agency, including persons who serve without salary or other payment for their services, shall knowingly receive or agree to receive directly or indirectly, compensation for any services rendered or to be rendered, either by himself or another, in any cause, proceeding application or other matter which is before said agency or before the department of state government in which said agency functions."
The assistant county attorney is, for all intent and purposes, the alter ego of the county attorney and performs the same duties that the county attorney would perform. You mention a hypothetical situation as follows:
"1. An employee of the county is injured and files a Workmen's Compensation claim naming the county and the Department of Labor (the Special Fund) as co-defendants. The assistant county attorney is required to defend the interests of the county before the Workmen's Compensation Board. Under his contract with the Department the attorney would be assigned to represent the interest of the Department. He may, however, refuse to represent the Department in this claim. The attorney in question frequently appears before the Board litigating other claims in which the Department has an interest."
We do not feel that your hypothetical situation is covered by Section 165 of the Kentucky Constitution or KRS 61.080 because, while the assistant county attorney is an officer of a county, he is not a state officer or a deputy state officer. Since he is under contract with the State, he is, in fact, an independent contractor performing services for the State.
We do not believe that KRS 61.096(7) applies because as we interpret that section, the intent there is to prohibit a person rendering a decision for a particular agency from, at the same time, receiving compensation from a litigant or other interested person seeking a ruling or other decision from that agency. That is not the situation mentioned in your illustration.
In In re Advisory Opinion of Kentucky Bar Association, Ky., 526 S.W.2d 306 (1974), the then Kentucky Court of Appeals reversed an opinion of the Bar Association and held that a person may, at the same time, be a county attorney and practice Workmen's Compensation cases. The Court held at page 307:
"To have a conflict of interest there must be conflicting attorney-client relationships in existence at the time, 31 A.L.R.3d 725. . . ." (Emphasis supplied)
Using that opinion as a criterion in the hypothetical situation you have forwarded, the assistant county attorney would not have an immediate conflict of interest by representing the Special Fund in a particular case, unless he is required to do something for the Special Fund that would prevent him from performing his duties as an assistant county attorney. An example of a conflict would be the situation of an assistant county attorney defending a county in a Workmen's Compensation claim by a county employee and being assigned the same case by the Special Fund.
In the absence of a factual conflict and based upon the aforesaid Court of Appeals opinion, it is the opinion of this office that an assistant county attorney may, generally, represent the Special Fund as a contract attorney in proceedings before the Workmen's Compensation Board.
Of course, this opinion does not prevent the Special Fund, as a matter of policy via contract, from prohibiting Special Fund attorneys to practice other Workmen's Compensation cases, either as plaintiff or defendant counsel.