Request By:
Honorable Ray Maynard
State Representative
39th District, Jefferson County
1340 South Sixth Street
Louisville, Kentucky 40208
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 23 in which you request an opinion concerning the following:
"Is it unconstitutional or contrary to the Kentucky Revised Statutes for a Legislator to have a personal service contract with local City or County Government?
"Also, would it be compulsory to be experienced or have expertise in the field which the personal service contract would cover?"
In connection with your question and pursuant to our phone conversation, you relate that the contemplated personal service contract would involve your acting only in an advisory capacity on a part-time basis.
Initially we wish to point out that a member of the legislature cannot become an employee or officer of a city or county since the positions are incompatible under § 165 of the Constitution and KRS 61.080. On the other hand, no incompatibility would generally exist where a member of the legislature is involved in a personal service contract with a city or county as he would be considered an independent contractor under normal circumstances though a lot depends upon the nature of the contract. Referring to McQuillin, Mun. Corps., Vol. 18, § 53,75, we find the term "independent contractor" referred to as follows:
"An independent contractor is one who is employed to do a piece of work without restriction as to the means to be employed, and who employs his own labor to produce certain results required by the contract. The mere reservation by the city of the privilege of inspecting and generally supervising the work, and making changes in the plans, does not destroy or impair the character of independent contractor. Whether one is an employee or an independent contractor generally should be determined from the facts of the particular case, and from a proper construction of the contract as a whole."
From the information given above, it would appear to this office that the part-time advisory nature of your work as contemplated by the proposed contract would place you in the category of an independent contractor and not an employee, in which case there would be no violation of the Constitution or statutes referred to above. Neither do we observe any violation under the Legislative Ethics Act, namely KRS 6.750 to KRS 6.825; however, we believe you should clear this matter with the Legislative Board of Ethics pursuant to KRS 6.770 (c).
Our response to your second question, which relates to the first, would be in the negative.