Request By:
Mr. Arthur A. Azar
Kentucky Board for Licensing
Hearing Aid Dealers
P.O. Box 456
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: B. F. Radmacher, III, Assistant Attorney General
This will acknowledge your letter to the Attorney General, Robert F. Stephens, requesting an opinion relative to referrals by employees of the Commonwealth of Kentucky.
Essentially, your question is whether a public employee can make specific recommendations to a hard of hearing citizen, of his need for a hearing aid device and a recommendation as to the specific hearing aid brand and retailer. In the situation posed in your letter, the referring party is in a position to make such a referral because of his employment.
There is no express Kentucky statute prohibiting a state employee from making a referral as to a specific brand name or retailer. However, if there was evidence of an attempt to restrain trade or a conspiracy, then it is the opinion of this office that such an act would be a violation of KRS 367.175 which states as follows:
"It shall be unlawful for any person or persons to monopolize, or attempt to monopolize or combine or conspire with any other person or persons to monopolize any part of the trade or commerce in this Commonwealth."
Further, if a public employee is receiving a benefit directly resulting from the sale of any nature, he may be subject to the provision of KRS 522 (Abuse of Public Office).
It is imperative that a state employee maintain a independent and unbiased attitude in the performance of his duties. The Department for Human Resources has adopted regulations, relative to medical assistance, which provide that any hearing aid dealer, wishing to participate should supply the examining audiologist or physicians, with specific information as to price and specifications of their hearing aid devices and referrals are made to those participating dealers. This office would suggest such a procedure as a possible guideline to avoid any possible conflict of interest or inference thereof.
If you have any further questions, please advise.