Can Kentucky AG Opinion 96-5 on university prevailing wages be cited after it was withdrawn?
Apply this to your situation
This page answers the general question as of 1996. Ask about yours and see what current Kentucky law means for your facts, with citations you can check.
Plain-English summary
In February 1996, Kentucky's Attorney General withdrew OAG 96-5, which he described as addressing a prevailing wage issue in a dispute between state universities and the Labor Cabinet. The office learned after issuing it that the Labor Cabinet had already sued the universities over the same question. The AG said the opinion “shall not be cited as any authority whatsoever” and later said it should, as far as possible, be treated as if never issued.
The AG relied on 40 KAR 1:020, which barred official opinions on questions already being litigated or submitted in contemplation of litigation. This opinion withdrew the earlier answer; it did not decide the underlying prevailing-wage dispute.
Currency note
This opinion was issued in 1996. 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
Readers of the earlier university opinion
The AG directed that OAG 96-5 not be cited as authority. The withdrawal followed the discovery that the Labor Cabinet had filed a declaratory-judgment suit against the universities before the office issued that opinion.
Universities and the Labor Cabinet
The office said it had invited the Labor Cabinet's position, met with both sides and researched the question before issuing OAG 96-5. It then discovered that the parties were litigating the precise issue. The withdrawal gave no answer to the prevailing wage question the parties had taken to court.
Lawyers researching an active case
The AG quoted the office's regulation against issuing opinions on litigated questions. He said the office could appear in litigation as a party or amicus and file briefs, while avoiding an AG opinion on a question already presented to a court.
Common questions
Can OAG 96-5 still be cited as Kentucky AG authority?
No. OAG 96-12 expressly withdrew it and said it “does not constitute authority of any kind.”
Why did the Attorney General withdraw the earlier opinion?
The office learned that the Labor Cabinet had already filed suit against the universities over the same prevailing-wage issue. Its regulation barred opinions on matters in litigation.
Did the withdrawal decide the prevailing-wage issue already in court?
No. It withdrew the earlier AG opinion and said that opinion had no authority.
Background and statutory framework
The opinion applied Section 4 of 40 KAR 1:020, the office's rule against rendering an official opinion on a matter being litigated or contemplated for litigation. It described the Labor Cabinet's suit against the universities and withdrew OAG 96-5 because the two proceedings concerned the same question.
Citations and references
- 40 KAR 1:020
- OAG 96-5 (withdrawn)
Source
Original opinion text
OAG 96-12
February 14, 1996
Subject: Opinions of the Attorney General
Written by: T. Scott White and Ross T. Carter
Requested by: Angela Koshewa, Terry McBrayer, Richard Plymale, Giles Black
Syllabus: The Office of the Attorney General will under no circumstances issue opinions on matters that are in litigation
OAGs cited: OAG 96-5 (withdrawn)
Statutes construed: None
Opinion of the Attorney General
This opinion follows our opinion OAG 96-5, in which we addressed a prevailing wage issue involving a dispute between state universities and the Labor Cabinet. For the reasons stated in this opinion, OAG 96-5 is withdrawn and shall not be cited as any authority whatsoever.
In 1995 the Attorney General received requests from various state universities to issue an opinion regarding the Labor Cabinet's interpretation of the prevailing wage laws. In keeping with our policy regarding opinions involving disputes between parties, the Attorney General contacted the Labor Cabinet and invited it to submit its position on the question. The Attorney General met with representatives of the Labor Cabinet and of the universities to discuss the opinion request. After considerable research and effort, and after frequent communication with the parties, the Attorney General issued OAG 96-5.
After OAG 96-5 was issued, the Attorney General learned that the parties had been engaged in litigation on the precise question that was raised in the opinion request. On September 5, 1995, the Labor Cabinet filed suit against the universities seeking a declaratory judgment on the same issue that the Attorney General was researching (Secretary of Labor v University of Kentucky et al, No. 95-CI-2824 (Fayette Circuit Court, Division 5)).
40 KAR 1:020 sets forth the conditions under which the Attorney General issues official opinions. Section 4 of the regulation states that official opinions will not be rendered “in response to questions involving matters being litigated or questions submitted in contemplation of litigation.” Therefore, OAG 96-5 is withdrawn. Our respect for the judiciary and for the orderly execution of the judicial process requires that we strictly avoid the issuance of any opinion that could be deemed to affect the deliberation of the court having jurisdiction over the question presented. The Attorney General may appear in litigation as an amicus or as a party and file appropriate briefs, but the Attorney General will never deign to announce a point of law in the form of an OAG on a question that has been presented to a court for determination.
This opinion provides a public expression of regret to the court presiding in Secretary of Labor v University of Kentucky et al. , 95-CI-2824 (Fayette Circuit Court , Division 5). OAG 96-5 does not constitute authority of any kind and shall, as far as possible, be treated as if it had never been issued.
This is not the first violation of 40 KAR 1:020 this office has dealt with, although it is perhaps the most blatant. For this reason, we have no alternative but to take this admittedly drastic action.
A. B. Chandler III
Attorney General
T. Scott White
Director
Division of Civil and Environmental Law
Ross T. Carter
Branch Manager
Opinions Branch
What does Kentucky law say today, for your facts?
This opinion is from 1996. Ezel checks the current Kentucky statutes and case law, applies them to your situation, and cites what it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace