Request By:
Representative Robert Jones
Chairman
Personal Service Contract
Review Subcommittee
Legislative Research Commission
Capitol Building
Frankfort, Kentucky
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
As the Chairman of the Personal Service Contract Review Subcommittee, you have asked the Office of the Attorney General to provide a formal legal opinion to the following question:
"When a state university enters into a personal service contract for legal services, does KRS 12.210 apply?"
It is the opinion of this Office that KRS 12.210, does apply to the contractual employment of legal counsel by the state universities of higher education.
In order to reach the above conclusion, it has been necessary for us to consider along with KRS 12.210 (amended in 1984 but inconsequentially as concerns the question in issue), KRS 12.200 and other provisions of KRS Chapter 12.
KRS 12.210(1) (with the 1984 amendment) reads in full as follows:
"(1) The governor, or any department with the approval of the governor, may employ and fix the term of employment and the compensation to be paid to an attorney or attorneys for legal services to be performed for the governor or for such department. An attorney hired for the collection of revenue owed to the state by a resident shall not be hired by personal service contract. Before approving the employment of an attorney the governor shall consult the attorney general as to whether legal services requested by departments are available in the attorney general's office. The compensation and expenses of any attorney or attorneys employed under the provisions of this section shall be paid out of the appropriations made to such department as other salaries, compensation and expenses are paid, except when the terms of employment provide that the compensation shall be on a contingent basis, and in such event the attorneys may be paid the amount specified out of the moneys recovered by them or out of the general fund. If the governor approves the employment, the terms of employment shall be duly entered by executive order upon the executive journal in the office of the secretary of state."
Necessary in the consideration of the scope of this statutory provision is the definition of the term "department" in KRS 12.200. That definition is:
"The term 'department' as used in KRS 12.210 to 12.230 shall be construed to mean and to include each and every executive or administrative department, program cabinet, division, office and independent agency as said terms are defined and set forth in KRS chapter 12, and shall include any administrative department, program cabinet, division, office and independent agency heretofore or hereafter designated as such by the general assembly. "
It would appear the General Assembly has defined the word "department" about as broadly as possible so as to include all state administrative and executive bodies. If in no other respect, we believe the state universities are covered in the definition by being an "independent agency." State universities have been referred to as an agency of the Commonwealth for some time. See, for example,
Daniel's Adm'r v. Hoofnell, 287 Ky. 834, 155 S.W.2d 469 (1941). More recently the
Supreme Court of Kentucky in Board of Trustee v. Public Emp. Council, Ky., 571 S.W.2d 616, 618 (1978), referred to the Board of Trustees of the University of Kentucky as "an independent agency and an instrumentality of the Commonwealth of Kentucky. . . ." Also note OAG 80-245, copy attached.
Additionally, KRS 12.200 in defining the word "department" as used in KRS 12.210 broadens the range of the term by referencing other definitions in KRS Chapter 12 and then enhances that range with a reference to future legislative designations. We believe that particularly when KRS 12.020 and 12.023 are considered it becomes even more obvious the General Assembly did not intend to exclude state universities from the scope of KRS 12.210.
KRS 12.020 lists departments, program cabinets and administative bodies and other forms of executive organizations, which lists is said not to be all inclusive. KRS 12.023 lists the organizational units and administrative bodies that are to be attached to the governor. KRS 12.023(1) reads in pertinent part:
"(1) The following organization units and administrative bodies shall be attached to the office of the governor.
"(a) Council on higher education (The state universities and colleges shall report through the council on higher education) .
In view of the above, we must conclude that state universities are clearly a state executive entity and subject to the various provisions of KRS Chapter 12. To construe KRS 12.200 and 12.210 as not applying to state universities would be to create a virtual singular exception to the requirements of these provisions. The creation of such an exception should be by explicit statutory language and not accomplished through a technical reading of definitions. The Court of Appeals said in
Robertson v. Western Baptist Hospital, Ky., 267 S.W.2d 395, 397 (1954), that a statutory definition is to be used only as a guide. Here, we belive there is nothing to evidence the General Assembly intended anything but that KRS 12.210 be applicable to all executive branch bodies. Besides, by customary interpretation or contemporaneous construction, it must be acknowledged that any uncertainty about whether state universities came under the terms of KRS 12.210 has been resolved on the side of applicability.
You mention House Bill 622 in your letter. We do not believe this 1982 legislation relating to the financial management of institutions of higher education has any bearing on KRS 12.210. We find nothing in KRS 164A.550 et seq. to suggest that KRS 12.210 is inapplicable to state universities.
House Bill 622 was intended to provide autonomy upon election for state universities from the laws governing the depositing and expenditure of public funds. See OAG 82-520, copy attached. KRS 164A.575 provides that state universities need not seek competitive bids on professional services, but still must submit such contracts in accordance with KRS 45.700 et seq. It is to be presumed that the General Assembly is cognizant of previously enacted statutes. See
Brown v. Hoblitzell, Ky., 307 S.W.2d 739 (1957). We see no conflict between KRS 164A.575 and KRS 12.210 and believe the provisions of each may be fully harmonized one with the other.
Therefore, it is the formal opinion of this Office that state university personal service contracts for legal services are subject to the provisions of KRS 12.210. Before consideration for approval of the contract by the governor, the contract must be presented to the attorney general for review. The term of the contract may not exceed the biennium period in which it is executed. If the contract is to be renewed, the process outlined in 12.210 must be again utilized.