Request By:
Vic Hellard, Jr.
Director, Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; Ross T. Carter, Assistant Attorney General
On behalf of a General Assembly member you have asked four questions relating to the hiring of attorney and former Governor Louie B. Nunn as an auditor for the Board of Regents of Western Kentucky University.
Your first question is:
1. Can a university board of regents hire an attorney without going through the provisions of KRS 12.210 and the provisions of KRS 45A.690 through KRS 45A.725?
KRS 12.210(1) states:
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. . . . 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. . . . 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.
We advised in OAG 84-255 that this section applies to the employment of an attorney by a state university by personal service contract. We believe that the provisions of the section are equally mandatory when the employment is done on a full-time or part-time basis by placing the attorney on the department's payroll.
KRS 45A.695 details the procedures that a contracting body must follow in entering personal service contracts. "Contracting body" is defined in KRS 45A.690(1) to include a state university, and "personal service contract" is defined in the same statute as "an agreement whereby an individual, firm, partnership or corporation is to perform certain duties, professional or otherwise, for a specified period of time for a price agreed upon. . . ." We find that KRS 45A.695 plainly applies to a state university's hiring of an attorney, or anyone else for that matter, on a contract basis.
Our answer to your first question is that a state university, when procuring the services of an attorney, must comply with KRS 12.210 by first obtaining the approval of the Attorney General and the Governor. If the attorney is hired on a contract basis, as opposed to an employee basis, then the university must comply with the personal service contract procedures set out in KRS 45A.695.
Your second question is:
2. Can a university board of regents hire an attorney to perform "audit" functions when the person, apparently, is not an auditor?
Your question essentially asks the qualifications required of a person hired to perform audit functions. We cannot answer this question since we have been provided no information relating to the kind of work that the auditor is expected to do. Under the personal service contract procedures, it is up to the contracting body to adjudge the qualifications of the contractor. KRS 45A.695(5). We are aware of no reason why an otherwise qualified person would be disqualified from performing audit functions simply because the person is an attorney.
Your third question is:
3. Even if the person was an auditor, would the university board of regents still need to comply with the provisions of KRS 45A.690 through KRS 45A.725?
As we explained above, the personal service contract procedures apply regardless of the type of service that the contractor is to perform.
Your fourth question is:
4. Given the language in KRS 45A.690 through KRS 45A.725, can the board of regents of a university hire an attorney as a "part-time employee" without going through the provisions of KRS 12.210 and the provisions of KRS 45A.690 through KRS 45A.725, or would this designation merely be an unlawful subterfuge?
Whether the hiring of a particular part-time employee constitutes a subterfuge is a fact-specific question that we cannot answer. Certainly the board may hire employees, whether full-time or part-time, KRS 164.365, although in the case of an attorney hired to perform legal services the board must comply with KRS 12.210, as we have explained above. In general, the personal service contract procedures must be followed when the services required are to be performed for a specified period of time and for a price that is agreed upon. KRS 45A.690(1)(d). If an individual is hired as a part-time employee on the expectation that his services will be performed for an agreed-upon time period and compensation, then we believe a presumption would arise that the hiring was done in order to avoid the law governing personal service contracts. In some situations, the strength of this presumption would be overwhelming; but we cannot state as a general rule that the hiring of a part-time employee always represents an avoidance of the law. In the case of a university board of regents, we would assume that the regents are aware of the provisions of KRS 45A.990(5), which says:
Any person who violates this code shall be punished by a fine of not more than one thousand dollars ($ 1,000) or by imprisonment for not more than one (1) year, or by both fine and imprisonment in the discretion of the jury.
It is difficult to believe that a state university board of regents, knowing of the penalties involved, would deliberately adopt such a transparent subterfuge to flout the personal service contract requirements. Therefore we can only say in response to your fourth question that the legality of the hiring of a part-time employee can only be determined from an examination of the facts surrounding the appointment.