Request By:
Robert Arvin
Deputy Commissioner
Management Consultant Services
Kentucky Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your recent letter raises a question concerning Senate Bill 63, an enactment of the 1992 regular session of the General Assembly, which will be codified as KRS Chapter 11A and which has been designated as the "Executive Branch Code of Ethics." The legislation takes effect July 14, 1992.
You are presently a Deputy Commissioner in the Department of Education, but you will be retiring effective June 30, 1992. After leaving the Department of Education you will be available as a consultant through appropriate contractual arrangements with the Department and local school districts. As a consultant you will be self-employed. In your role as a consultant you would advise the Department and the school districts "on the same side of the fence" as when in service as a public official. You would not be selling any goods to the Department or to local school boards nor would you be utilizing or taking privileged information, acquired while serving with the Department, on behalf of or to a business that contracts with the state.
You ask whether it is legally permissible for you to be employed as a consultant to the Department of Education and to local school districts as of July, 1992, or whether Senate Bill 63 would require you to wait six months following your retirement before serving as a consultant to the Department and various school districts.
Senate Bill 63 in Section 6, subsection (6), provides as follows:
No present or former public servant shall, within six (6) months following termination of his office or employment, accept employment, compensation, or other economic benefit from any person or business that contracts or does business with the state in matters in which he was directly involved during his tenure. This provision shall not prohibit an individual from returning to the same business, firm, occupation, or profession in which he was involved prior to taking office or beginning his term of employment, provided that, for a period of six (6) months, he personally refrains from working on any matter in which he was directly involved in state government. This subsection shall not prohibit the performance of ministerial functions including, but not limited to, filing tax returns, filing applications for permits or licenses, or filing incorporation papers.
As a current, although soon to be former, official of the Department of Education, you are a "public servant" as the term is defined in Section 3, subsection (9), of Senate Bill 63. You, therefore, will be subject to the terms and provisions of the Act as of July 14, 1992.
Section 6, subsection (6) of the Act, however, will not require you to wait six months after you have left the Department of Education before becoming a consultant to the Department. That subsection requires a six months' wait only if you are obtaining employment with a person or business that contracts or does business with the Education Department in matters in which you were directly involved during your tenure with the Department.
The undersigned does not know what your specific functions, duties, and responsibilities with the Department of Education involve nor is it known what, precisely, your consulting duties for the school districts would entail. However, the six months' waiting provision would not apply to your consulting work with the school districts so long as the school districts do not contract and have not contracted with the Department of Education relative to any matters in which you were involved during your tenure with the Department of Education.