Request By:
Mr. Arthur Hatterick, Jr.
Executive Director
Kentucky Personnel Board
Room 383, Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman; Asst. Deputy Attorney General
This is in response to your letter of March 15 in which you raise the following question:
"Mr. Jim Higgs has been selected by the Personnel Board to be awarded a personal service contract to serve as general counsel and hearing officer for the Board. Mr. Higgs is currently an Assistant Commonwealth Attorney. Our question is: 'Is there any conflict of interest or incompatibility of office if we do enter into a contract with Mr. Higgs?'"
Our response to your question would be in the negative. A commonwealth attorney is a state officer as held in Miller v. Robinson, 306 Ky. 653, 209 S.W.2d 777 (1948) and any assistant commonwealth attorney that he is entitled to appoint under the terms of KRS 15.760 would also be considered a state officer.
The state, of course, operates under the Kentucky Model Procurement Code. However, we do not believe that the commonwealth attorney or his assistant would be considered an officer coming under the terms of said code, since the office of commonwealth attorney is one filled by election under the Constitution and not a position involving a state agency or defined in the Code. The same would apply to his assistant. KRS 45A.335 defines the term "officer" as a person holding an office, position or employment in an agency. The term "agency" is likewise defined to mean any of the departments of state government and any division, board, bureau, commission or other instrumentality within such department and any independent state authority, commission, instrumentality or agency. As we said, we do not believe the office in question comes within the definition section of the State Procurement Code as it relates to possible conflicts of interest under said Code, particularly KRS 45A.340(5). This subsection in effect prohibits any officer of an agency from being interested in any contract with any agency in an amount exceeding $25.00 unless the contract is let for competitive bidding.
Even assuming for the sake of argument that the officer in question was considered an officer within the meaning of KRS 45A.335, we further do not believe that the officer in question who is an attorney and who will be appointed under a personal service contract would be subject to being selected for his legal services on a competitive bidding basis. Referring to the case of Jeffersontown v. Cassin, 267 Ky. 568, 102 S.W.2d 1001 (1937), the court declared that architectural services along with legal services are professional and not subject to competitive bidding and cited a number of cases as well as McQuillin on Municipal Corporations. We quote from this case as follows:
". . . The court in that case [Gleason v. Dalton, 28 App. Div. 555, 51 N.Y.S. 337, 341] cited People v. Flagg, 17 N.Y. 584 (2d., 5 Abb. Prac. [N.Y.] 232) and said:
"'"It would be an unreasonable and mischievous construction of the statute to apply it to services which require in their performance scientific knowledge or professional skill." The particular phrase under consideration in that case was, "all work to be done and supplies to be furnished." The character of the service therein was making a survey and furnishing a map of the wharves and piers of New York City.'
"Quoting Harlem Gaslight Co. v. Mayor, 33 N.Y. 309, the court continued:
"'If the contract requires professional services, those of an engineer, a physician, lawyer, or an artist, or if it requires services of any kind to be furnished upon a sudden or unforeseen emergency, of greater value than $250.00, and these things can only be obtained through the forms prescribed by statutes, they can not be obtained at all, for these things cannot become the subject of a competitive offer to be consummated by a written contract with the person making the offer. Other cases hold to a similar doctrine, and commend themselves as being the true construction of legislative intention. Matter of Petition of Dugro, 50 N.Y. 513; City of Hartford v. Hartford Electric Light Co., 65 Conn. 324 32 A. 925.' (Emphasis added).
"In McQuillin on Municipal Corporations (2d Ed.) sec. 1292, [now 3rd Ed., § 29.35] it is said:
"'Provisions as to competitive bidding have been held not to apply to contracts for personal services depending upon the peculiar skill or ability of the individual, such as the services of a court stenographer, an attorney-at-law, a superintendent or architect to supervise and make suggestions relative to work let under competitive bidding, or a consulting or supervising engineer. And generally the requirement does not apply to the employment of a professional man, in which case the authorities have a discretion as to his qualifications.'" (Emphasis added).
We also call your attention to KRS 45A.360(1)(f) governing state purchasing procedures generally which exclude from competitive bidding professional services 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;" (Emphasis added).
"(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).
In addition to the above, we call your attention to the noncompetitive negotiation section of the State Procurement Code governing local government, namely KRS 45A.380. This statute eliminates all contracts for services of a licensed professional such as an attorney from not only competitive bidding but also competitive negotiation.
Thus to declare that a professional service contract must be determined on a competitive bidding basis under KRS 45A.340(5) governing state agencies but not under KRS 45A.380 governing local governments, would be completely arbitrary and inconsistent particularly in view of the general and well established principle of law that professional services such as those involving the legal profession should never become subject to competitive bidding.
The question of incompatible offices likewise does not exist under Section 165 of the Constitution or KRS 61.080, since a person can hold two state offices or employment at the same time unless incompatible in fact as held in Coleman v. Hurst, 226 Ky. 534, 76 S.W.2d 600 (1954). Actually, however, the employment of the assistant commonwealth attorney under a personal service contract would make him an independent contractor as held in Hobson v. Howard, Ky., 367 S.W.2d 249 (1963).