Request By:
Mr. R. Bruce Lankford
Associate Counsel
University of Kentucky
Office of Legal Counsel
Lexington, Kentucky 40506
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have asked the Office of the Attorney General to render a formal opinion concerning a University of Kentucky faculty member who is also a shareholder and director in a Lexington architectural firm which, from time to time, contracts with the University. As a brief background to the problem you stated the individual in question became a faculty member, in the University's College of Architecture, on January 1, 1982, and subsequently acquired shares of stock and became a director on April 1, 1982, in the architectural firm. You stated the faculty member inquired of you in writing on April 8, 1982, as to whether a conflict of interest situation had been created by the above recited facts. Your position is that the individual may serve on the University faculty and, at the same time, continue to hold his shares and position with the architectural firm without creating a conflict of interest. You reached your conclusion after considering the state procurement statutes, particularly KRS 45A.330 to 45A.340, and also KRS 164.130(5). This office agrees with the conclusion you have reached and is therefore of the opinion no conflict of interest has been created.
The general state conflict of interest statute governing procurement matters is KRS 45A.340. This statute is the successor to KRS 61.096. KRS 45A.340 is to be considered along with KRS 45A.330 and 45A.335. KRS 45A.330 sets out the purpose of the provisions as being "to prescribe specific standards to guide public officers and employees in the conduct of their offices or employment, and to proscribe improper conduct to the extent to which such conduct may be sufficiently described to enable statutory prohibitions against it to be properly enforced." In KRS 45A.335 are found the definitions for the terms used in 45A.330 to 45A.340. As amended by the 1982 General Assembly, KRS 45A.335(2) reads:
"As used in KRS 45A.330 to 45A.340 except as may be otherwise indicated by the context:
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"(2) 'Officer or employe' means a member of the boards of trustees, or regents of a state university except faculty and student members, and a person holding an office, position or employment in an agency, but it does not include other persons who serve without salary and it does not include members or employes of school boards or district boards of education or faculty or staff of state institutions of higher learning or, as used in KRS 45A.340(5), citizen members of boards, commissions or independent state authorities who may receive per diem allowances for attendance at meetings of the boards, commissions or authorities on which they serve;"
From the above quoted provision it is clear that faculty or staff of the state universities are not to be included within the definition of "officer or employe" and likewise excluded from the prohibitions set out in KRS 45A.340 deemed to create conflicts of interest for public officers and employees.
You express concern with the fact KRS 45A.335 defines terms used in KRS 45A.330 to 45A.340 and indicated your belief the word "through" is actually intended. We concur with your belief due to the provisions of KRS 446.120(2) which reads as follows:
"Wherever in the statute laws of this state a reference is made to several sections and the section numbers given in the reference are connected by the word 'to,' the reference includes both the sections whose numbers are given and all intervening sections."
Thus, this statutory construction provision requires the reading of the word "to" in KRS 45A.335 to mean in effect "through."
Having determined the state procurement conflicts of interest statute is not applicable to the situation you describe, we now turn to KRS 164.130, a statute specifically relating to the University of Kentucky. Only subsection (5) of this statute is relevant to our consideration of the problem presented. KRS 164.130(5) reads as follows:
"No member of the administrative staff of the university shall be directly or indirectly interested in any contract with the university for the sale of property, materials, supplies, equipment or services, with exception of compensation to the three (3) faculty members. "
Prior to amendment in 1978, this provision was codified as subsection (3) and provided as follows:
"No member of the board of trustees or its administrative staff shall be directly or indirectly interested in any contract with the university for the sale of property, materials, supplies, equipment or services, with exception of compensation to the two faculty members. "
The only prior opinion of this office where KRS 164.130(3) was reviewed in a manner such as to be helpful to the present issue was in OAG 63-731 which you too considered. This office pertinently stated in OAG 63-731:
"This statute by its express terms is limited to the University Board of Trustees and its administrative staff which, in our opinion, would not include a part time Assistant Professor of Animal Science who has no duties or responsibilities directly related to the operation of the business affairs of the University. KRS 164.130(3) is not, therefore, applicable here."
We are of the opinion KRS 164.130(5) is likewise inapplicable to the present situation. The faculty member is not a part of the administrative staff of the university such as to be involved in the making or letting of a contract for architectural services. Therefore, we do not believe a conflict of interest has been created under KRS 164.130(5).