Request By:
Honorable John C. Roberts, Commissioner
Kentucky Occupational Safety and Health Review Commission
104 Bridge Street
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 5 in which you request an opinion concerning the following:
"As you may already know I have recently been appointed to a four-year term on the Kentucky Occupational Safety and Health Review Commission by Governor Carroll. This Commission meets once a month and carries out its responsibilities as outlined in KRS 338.071.
"As a civil engineer I expect to perform consulting engineering services as a principal in or a proprietor of a consulting engineering firm.
"Please advise me if my serving on the Review Commission would constitute a conflict of interest should a consulting engineering firm, which I own or am associated with negotiate and obtain a contract with the Commonwealth of Kentucky. I, of course, realize if such a contract was negotiated with the Review Commission itself, a serious conflict of interest question could be raised and justifiably so. However, what is your opinion relative to a conflict of interest if a contract was awarded to a firm I own or am associated with by another agency of state government, namely the Kentucky Department of Transportation."
The Kentucky Occupational Safety and Health Review Commission, of which you are a member, is established pursuant to KRS 338.071. Membership on this Commission would constitute a state office within the Department of Labor by virtue of the terms of KRS 338.071 and KRS 12.020.
In response to your specific question we would initially refer to the State Conflict of Interest Act, particularly KRS 61.096(5), which provides as follows:
"No officer or employe of an agency or appointee shall knowingly himself or by his partners or through any corporation which he controls or in which he owns or controls more than ten per cent (10%) of the stock, or by any other person for his use or benefit or on his account, undertake, execute, hold or enjoy, in whole or in part, any contract or agreement for sale or purchase, as provided by KRS chapter 45, made, entered into, awarded or granted by any agency, unless the provisions of KRS chapter 45 are complied with."
The above subsection was amended in 1974 and 1976 to delete a former provision that no officer or employe of a state agency could have an interest in a contract for $25.00 or more with the State without competitive bidding. Now, however, only the provisions of KRS Chapter 45 need be complied with. KRS 45.360(1)(f) reads as follows:
"(1) The executive department for finance and administration shall purchase, or shall delegate and control the purchase of, the combined requirements of all spending agencies of the state including, but not limited to, interests in real property, contractual services, rentals of all types, supplies, materials, equipment, and services, except that competitive bids may not be required:
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"(f) For professional, technical, or artistic services (contracts exempted by this provision shall be referred to the department of personnel for review and approval)." (Emphasis added.)
It would therefore appear that your membership on the Kentucky occupational Safety and Health Review Commission, which would be considered a "state agency" under the conflict of interest definition section, namely KRS 61.094(1), wherein the term "agency" includes commissions within a department, would not affect the right of your consulting engineering firm to execute contracts with state agencies other than the one of which you are a member, provided such contracts are executed in conformance with the provisions of Chapter 45 KRS, particularly KRS 45.360 above referred to.