Request By:
Hon. Dandridge F. Walton
Barnett and Alagia
113 West Main Street
Post Office Drawer 1036
Frankfort, Kentucky 40602
Opinion
Opinion By: David L. Armstrong, Attorney General; Joe Johnson, Assistant Attorney General
In your letter to this office dated February 29, 1984, you asked whether it was a conflict of interest for an attorney under a personal service contract to the Motor Vehicle Commission to also represent an automobile dealers trade association. You state that as attorney, one of his duties is to appear on behalf of the Commission during hearings on citations issued against different auto dealers. He does not issue citations and the final decision lies with the Commission. The attorney assists in drafting regulations and answers general legal questions concerning license applications.
On the other hand, the attorney does not participate in any area in which the Auto Dealers Association may be involved. The Association conducts no business that involves the Commission.
For the following reasons, we find no conflict of interest between the attorney as general counsel under a personal service contract to the Commission and as general counsel to the Association.
KRS 45A.340 is entitled "Conflicts of interest of public officers and employees." The six (6) paragraphs of this statute prohibit:
(1) A state officer or employee from receiving compensation for any services to be rendered by himself or another in negotiations with the state for a purchase by the state of an interest in real property.
(2) An officer, employee or member of a state board or commission from being interested in any contract for the performance of any work in the making, letting or administration of which such officer or employee may be called upon to act or vote. An agent or employee from representing any person with respect to any application or work in regard to which such officer or employee may be called upon to act or vote. An officer or employee from taking any money to influence his vote or action in his official character.
(3) An officer or employee for compensation from appearing before an agency as an expert witness.
(4) An officer or employee from acting as officer or agent for the Commonwealth in the transaction of any business with himself with any corporation in which he or his spouse has an interest greater than five percent (5%).
(5) An officer or employee himself or through any corporation which he controls or in which he owns more than ten percent (10%) of the stock from executing any contract, agreement, sale or purchase of $25 or more unless the contract, agreement, sale or purchase was made after public notice and bidding.
(6) An officer or employee from receiving compensation for services rendered in any proceeding which is before the agency.
The initial question is whether the attorney is an "officer or employee" as defined in KRS 45A.335.
The term "officer or employee" is defined as "a member of the board of trustees, or regents of a state university except faculty and student members, and a person holding an office, position or employment in an agency, but it does not include other persons who serve without salary or other payment for their services and it does not include employees of school boards or district boards of education, or faculty or staff of state institutions of higher learning. KRS 45A.335.
This definition obviously does not include an attorney with a personal service contract.
However, even assuming arguendo that the definition included an attorney under a personal service contract (which it does not), the attorney's respective duties do not involve him in any of the proscribed activities enumerated in KRS 45A.340.
Although we find no statutory conflict, we hasten to add that there may be involved a violation of the ethical rules of the Kentucky Bar Association. We make no findings in this respect but instead refer you to the Kentucky Bar Association for an ethical opinion.