Could a Kentucky state university avoid attorney hiring and contract rules by calling a lawyer a part-time employee or auditor?

Plain-English summary

The Legislative Research Commission asked about Western Kentucky University's hiring of attorney and former Governor Louie B. Nunn as an auditor. The AG separated three issues: the rules for hiring an attorney to provide legal services, the procedures for a personal service contract, and whether a particular person was qualified to perform the proposed audit work.

The opinion said KRS 12.210 applied when a state university obtained an attorney's legal services, whether through a contract or by placing the attorney on its payroll. A contract for services also triggered the procedures in KRS 45A.695. Those procedures applied regardless of the service purchased, including audit work. The AG could not judge the proposed auditor's qualifications because the request did not describe the work. It also declined to decide whether a part-time employee label concealed a contract without examining the hiring facts.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

State university regents and administrators

For an attorney hired to provide legal services, the AG said the university had to comply with KRS 12.210. It read that requirement as applying to full-time and part-time payroll hires as well as personal service contracts. When the university hired someone by contract, KRS 45A.695's contract procedures also applied.

People reviewing a part-time hire

The opinion said a board could hire part-time employees under KRS 164.365. Yet an agreed period of service for an agreed price could raise a presumption that the employee label was used to avoid the personal service contract rules. The AG said the legality of a particular appointment depended on its facts and did not declare every part-time hire an evasion.

Common questions

Did a Kentucky university need special approval to hire a lawyer for legal services?

The AG said KRS 12.210 applied and described the university as needing approval from the Attorney General and Governor. It reached the same conclusion for contract and payroll arrangements.

Did calling the work an audit avoid the contract process?

No. The opinion said personal service contract procedures applied regardless of the type of service performed by a contractor.

Was an attorney disqualified from audit work because the person was not an auditor?

The AG did not decide the proposed hire's qualifications without a description of the work. It said an otherwise qualified person was not disqualified simply because the person was an attorney, and that the contracting body judged the contractor's qualifications under KRS 45A.695(5).

Could a university call a contractor a part-time employee to avoid the rules?

The AG did not resolve that fact-specific question. It said an agreed service period and price could raise a presumption of avoidance, but refused to treat every part-time appointment as a contract.

Background and statutory framework

The opinion read KRS 12.210 as governing a state university attorney's legal services. It identified a state university as a “contracting body” under KRS 45A.690(1), making KRS 45A.695 applicable when services were purchased by personal service contract. It distinguished an employee hired under KRS 164.365 from a contract while warning that an employee designation might not reflect the terms of the arrangement.

Citations and references

• KRS 12.210: attorney employment for legal services.
• KRS 45A.690(1) and KRS 45A.695: personal service contract definitions and procedures.
• KRS 45A.695(5): contracting body's assessment of qualifications.
• KRS 164.365: university employee hiring authority.
• KRS 45A.690(1)(d): specified service period and agreed price.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG92-019.htm

Original opinion text

OAG 92-19

February 10, 1992

Vic Hellard, Jr.

Director, Legislative Research Commission

Capitol Building

Frankfort, Kentucky 40601

Dear Mr. Hellard:

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.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General