Request By:
Honorable Robert T. Harrod
Attorney at Law
305 West Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 31 in which you indicate that you anticipate being appointed County Judge/Executive of Franklin County. In such event you raise the following question:
Is there any Constitutional provision, law, regulation or any type prohibition which would prevent a duly qualified County Judge Executive from entering into a contract with the Commonwealth of Kentucky, to provide legal services to the Kentucky Public Service Commission?"
Our response to your question as to whether or not you could legally hold the office of County Judge/Executive and at the same time enter into a personal service contract with the state to provide legal services to the Kentucky Public Service Commission would be in the affirmative. As you know, § 165 of the Constitution and KRS 61.080 prevent a county officer from holding a state office at the same time; however, there is no legal objection under either of these sections to a county officer becoming a state employe or entering into a personal service contract which we have held in a number of instances to establish him as an independent contractor. Referring to the case of Hobson v. Howard, Ky., 367 2d 249 (1963), we find the case involving an attorney employed by the Floyd County Board of Education to furnish legal services at a monthly salary. The board later voted to discharge the attorney and employ another attorney for the remainder of the school year. The question was raised as to the board's authority to arbitrarily terminate the attorney's employment on the grounds that he was a public school employe with certain statutory rights of employment. The court, in concluding that he was not a school employe but merely an independent contractor, cited the case of
New Independent Tobacco Warehouse No. 3 v. Latham, Ky., 282 S.W.2d 846 (1955), to the effect that a professional man is an independent contractor, and, moreover, the court could take judicial knowledge of the fact that the board was only one of the attorney's numerous clients. Thus, in its opinion, there existed between the board and the attorney the traditional relationship of attorney and client, and that since the attorney was an independent contractor, he could not be a "public school employe."
Next referring to the case of
Ewart v. Commissioner of Internal Revenue, C.C.A. 98 F.2d 649, we find the court holding that an attorney who rendered services as a municipal attorney for eight boroughs and two townships in New Jersey but who did not take the oath of office or perform services for the municipalities which the Attorney General performs and who spends 80% of his working time pursuing private practice, was neither an officer nor an employe of the municipalities, but was on the other hand merely an "independent contractor. " See also the case of
State ex rel Williams v. Musgrave, Idaho, 370 P. 2d 778.
We also might mention the case of
City of Glasgow v. Burchette, Ky., 419 S.W. 544 (1967), wherein the court declared that a police judge was not prohibited from being employed by a city of the fifth class to advise the city on legal matters by reason of the fact that the judge was not serving the city in the capacity of city attorney, which, if had been the case, would create a incompatibility under the previously referred sections of the constitution and statute which prohibit him from holding two municipal offices at the same time.
As a consequence, though we believe that your personal service contract would place you in the category of an independent contractor, the fact that you might be considered a state employe would nevertheless in no way create a constitutional or statutory incompatibility or conflict of interest.
There is however the possibility of a legal ethics question being involved which we cannot answer but which should be referred to the Kentucky Bar Association for clearance by contacting Mr. Leslie W. Whitmer, Director of KBA, Bush Building, 403 Wapping Street, Frankfort, Kentucky.