Request By:
Paul H. Twehues, Jr., Esq.
Suite 301, Campbell Towers
Newport, Kentucky 41071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that you are presently the staff attorney for the Board of Ethics of the Kentucky General Assembly. You have held this position for three years and each year you enter into a personal service contract with the Board for a one-year period. You further state that in January of 1978 you will assume the office of Campbell County Attorney.
You ask whether any legal conflict will exist if you retain your position as attorney for the Board of Ethics and, in January of 1978, assume the office of county attorney.
KRS 61.080 states in part that no person shall, at the same time, be a state officer, a deputy state officer or a member of the General Assembly, and an officer of any county, city or other municipality, or an employe thereof. See also Section 165 of the Kentucky Constitution.
A county attorney is, of course, a county officer. While he is a county officer he would not be a state officer or a member of the General Assembly under the fact situation you have presented. Representation of the Board of Ethics under a personal service contract would put one in the position of an independent contractor performing services for the Commonwealth of Kentucky and the Kentucky General Assembly. This concept of an "independent contractor" as opposed to an officer or employe of the governmental entity is discussed in Hobson v. Howard, Ky., 367 S.W.2d 249 (1963) and OAG 76-347, copy enclosed, at pages two and three. We also direct your attention to OAG 77-113, copy enclosed, where we said that an assistant county attorney may, at the same time, generally, represent the Department of Labor's Special Fund as a contract attorney in proceedings before the Workmen's Compensation Board.
Thus, in our opinion, there is no constitutional or statutory incompatibility or conflict of interest where the staff attorney for the Board of Ethics of the Kentucky General Assembly serves, at the same time, as a county attorney. If the person involved can perform in both capacities with care and ability and with impartiality and honesty, no common law incompatibility would be involved either. See Herman v. Lampe, 175 Ky. 109, 194 S.W.122 (1917). You may wish to submit questions of legal ethics to the ethics committee of the Kentucky Bar Association.