Request By:
Honorable Thomas M. Bertram, II
Attorney at Law
317 W. Second Street
Vanceburg, Kentucky 41179
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of March 17 in which you enclose an ordinance of the city of Vanceburg authorizing the employment of a nonresident attorney in view of the fact that there was no attorney living within the city to be appointed to the office of city attorney. You raise the question as to whether or not you who presently hold the position of assistant commonwealth attorney could be employed by the city pursuant to said ordinance under a personal service contract, without creating an incompatible situation.
Our response to your question would be in the affirmative insofar as § 165 of the Constitution and KRS 61.080 are concerned. These sections prohibit a state officer, such as assistant commonwealth attorney, from holding a municipal office, such as city attorney; however, where it is necessary for the city to employ outside professional assistance under a professional service contract as authorized by the enclosed ordinance, no conflict would exist since the attorney advising the city under such a contract would not in fact hold the office of city attorney but would be considered an independent contractor. In this respect we refer to the case of
City of Glasgow v. Burchett, Ky., 419 S.W.2d 544 (1967), wherein the court held that a police judge of the city of Glasgow was not prohibited from being hired by another city under contract to advise the city on legal matters since the judge would not be serving the other city in the capacity of city attorney. As a consequence, he would not be holding two municipal offices at the same time which would be in violation of the referred to sections of the constitution and statutes. Reference is also made to the case of
Hobson v. Howard, Ky., 367 S.W.2d 249 (1963), in which it was held that an attorney employed by the Floyd County Board of Education was not considered a school employe but merely an independent contractor.
Under the circumstances and as indicated above, we find no incompatibility existing with respect to your position as assistant commonwealth attorney and that of attorney for the city of Vanceburg under a personal service contract.
We note that you are also seeking a legal ethics opinion from the Kentucky Bar Association on the question as we suggested in our phone conversation.