Request By:
Mr. H. Bernard Wood, Chairman
Electric Plant Board
City of Marion
108 E. Bellville Street
Marion, Kentucky 42064
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of October 5 in which you relate that the City of Marion has created an Electric Plant Board under the Little TVA Act, and a question has arisen regarding the employment of the current city attorney as the Plant Board's attorney in view of the provisions of KRS 96.740, particularly subsection (3), which reads in part as follows:
". . . No officer or employe of a municipality shall be eligible for such appointment until at least one (1) year after the expiration of the term of his public office, or employment; . . ."
In connection with the above, more specifically your question is as follows:
"The city attorney is a salaried position with the same benefits received by all city employees. The position of plant board's attorney will be as proposed in the attached proposal. Please render an opinion regarding compliance with KRS 96.740 Paragraph 3 in the event the city attorney's proposal is accepted by the City and the plant board."
After reviewing the terms of the proposed special services to be rendered by the present city attorney with respect to the possible construction of the Smithland Lock and Dam Hydroelectric Plant Project, we believe the proposed hiring of the present city attorney would be pursuant to a personal service contract.
The provision found in KRS 96.740(3) prohibits any officer or employee of a municipality from qualifying for appointment as a subordinate officer or employee of the Board until at least one year after the expiration of the term of his office or employment. Since we are of the opinion that the city attorney would be hired in his professional capacity under a personal service contract to perform legal services connected with the construction of the proposed Hydroelectric Plant Project, he would not be considered either an officer or an employee under the terms of the referred to statute, but an independent contractor. As a consequence no statutory conflict would exist.
A similar question was raised in OAG 68-534, copy attached, concerning the identical statute under the Little TVA Act as it related to the employment by the Board of an auditor who had within the year served as a member of the city council. This opinion is self-explanatory and concludes there was no violation of the statute since the auditor could not be considered an employee or officer, but merely an independent contractor. Case law covering this point is cited in support of this position.
We also call your attention to the case of Hobson v. Howard, 367 S.W.2d 249 (1963) involving an attorney employed by the Board of Education at a monthly salary of $125. The Board 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 right to arbitrarily terminate the attorney's employment on the grounds he was a public school employee with certain statutory rights of employment. The court, however, in concluding he was not a school board employee but merely an independent contractor cited the case of New Independent Tobacco Warehouse 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 number of clients. Thus, in its opinion, there existed between the Board and the attorney the traditional relationship of attorney and client, and further that since he was an independent contractor he could not be a public school employee.
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 percent of his working time pursuing private practice, was neither an officer nor an employee 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.
The above case law also implies that the attorney presently serving as city attorney as a salaried employee could also be considered an independent contractor, in which case neither his employment with the city nor his employment for special legal services would constitute city employment that would come under the disqualification provision cited in KRS 96.740(3). In any event, the attorney's employment for the special services to be performed in connection with the Smithland Lock and Dam Hydroelectric Plant Project being in the nature of a professional service contract, eliminates the statutory disqualification and would be legal in our opinion.