Request By:
Mr. Vic Hellard, Jr., Director
Legislative Research Commission
State Capitol
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of September 26 in which you raise the question as to whether or not there is any statutory or constitutional provision prohibiting the execution of a personal service contract between a member of a law firm and a department of state government where such member is a candidate for the General Assembly.
Our response to your question would be in the negative because we believe that the contract to which you refer would place the individual in question in the position of an independent contractor and not that of an officer or employe of a state agency which would violate KRS 6.800.
We first refer to the case of
Hobson v. Foward, Ky., 367 S.W.2d 249 (1963), which involved an attorney who was employed by the Floyd County Board of Education to serve as its attorney at a monthly salary of $125. 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.
Though we find no constitutional or statutory conflict of interest or incompatibility, this matter should also be cleared with the Board of Ethics of the General Assembly which has jurisdiction in matters of this nature. KRS 6.805 and KRS 6.820.