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OAGs cited: OAG 96-5 (withdrawn)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 For the reasons stated in this opinion, OAG 96-5 is withdrawn and shall not be cited as any authority whatsoever.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 Therefore, OAG 96-5 is withdrawn.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
T. Scott White
Division of Civil and Environmental Law
Ross T. Carter