Request By:
Mr. Herald Whitaker
Superintendent
Magoffin County Schools
Salyersville, Kentucky 41465
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of August 10 in which you relate that the Magoffin County Board of Education has for several years employed Mr. Marcus Mann as attorney for the board. Mr. Mann is also the county attorney and the question is raised as to whether or not a conflict of interest exists.
Our response to your question would be in the negative. To begin with, KRS 61.080 and Section 165 of the Constitution prohibit a county officer from holding a state office or a deputy state office. Since Mr. Mann's employment as attorney would not constitute a state office but at most a form of state employment, these two sections would not be violated.
In the case of Hobson v. Howard, Ky., 367 S.W.2d 249 (1963), the Court had before it the question of whether or not an attorney employed by the board of education was a school employee or an independent contractor. The Court declared that he was an independent contractor in the traditional sense as professional employment was involved and cited the case of New Independent Tobacco Warehouse v. Latham, Ky., 282 S.W.2d 846 (1955). Here the Court pointed out that whether or not a person is an independent contractor is, of course, determined from the facts and circumstances involved, but that as a general rule the services of a professional man, such as a lawyer, doctor, architect or supervising engineer, are rendered under an independent contract rather than the relationship of master and servant.
It would thus appear that Mr. Mann's employment would be that of an independent contractor and as a consequence no conflict of interest or incompatible situation would exist under the referred to statute and section of the constitution. Of course a common law conflict would obviously exist if a matter came before the board involving the county, in which case he would have to refrain from participating therein.
There is the further question involving legal ethics, which is a matter for the Kentucky Bar Association to consider and determine. However, we note in one of its opinions, namely KAB E-88, the question was raised concerning the right of a county attorney to represent a city located in the same county on a contract basis. The bar committee's conclusion was that no legal ethics principle would be violated.