Volume 40 - Issue 31 - August 5, 2021
State of Kansas
Governmental Ethics Commission
Opinion No. 2021-01
Written July 28, 2021, to Ms. Judith A. Taylor, General Counsel, Kansas Gaming and Racing Commission, Eisenhower State Office Building,700 SW Harrison St., Suite 500, Topeka, KS 66603.
Synopsis: A state employee with two separate state positions may accept compensation from each.
Cited herein: K.S.A. 46-221(a), 75-3223, 74-8803(j) and 46-235.
Dear Ms. Taylor:
We understand you request our opinion concerning application of the state governmental ethics laws, K.S.A. 46-215 et seq., as general counsel for the Kansas Racing and Gaming Commission. Our opinion in response to the request is limited in its applicability. This opinion does not address whether some other statutory system, common law theory, or agency rule or regulation applies to your inquiry.
The opinion request provides the following facts:
Our commissioner is employed by the Kansas Department of Transportation (KDOT). Her position had been full-time, unclassified, non-exempt and hourly. She has recently reduced her hours and is now working as a part-time, unclassified, non-exempt, hourly employee, working approximately twenty hours per week, typically five days per week. Her duties for the commission require her to, among other things, attend commission meetings, review licensee background reports, analyze complex financial documents, review and approve contracts related to gaming, and review disciplinary case documentation in preparation for meetings and hearings. Her duties as a [Kansas Racing and Gaming Commission (KRGC)] commissioner do not involve approving KDOT contracts or performing any duties related to KDOT.
Would it be an ethics violation for a commissioner to accept per diem compensation for work on the commission that is performed on the same day that the commissioner works part-time hours for the Kansas Department of Transportation (KDOT), but during the time that she is not on the schedule working for KDOT (i.e. during the “free,” non-paid portion of her working day?)
Analysis and Opinion
“State officer or employee” is defined by K.S.A. 46-221, which provides in pertinent part:
(a) … (2) any individual who is in the classified service or unclassified service of the Kansas civil service act, …and (4) any individual who receives monthly or semimonthly compensation for services from the state or any state agency. …Also, state officer or employee does not include any appointed member of an advisory council, commission or board, who serves without compensation other than amounts for expense allowances or reimbursement of expenses as provided for in subsection (e) of K.S.A. 75-3223 and amendments thereto, when such member is engaged in performing a function or duty for such council commission or board.
From the facts provided, we find the commissioner in question is a state employee based upon her KDOT employment. We further find that she is a state employee as a KRGC commissioner based upon the receipt of a per diem as provided in K.S.A. 74-8803(j), in addition to the amounts for allowances and reimbursements provided for in K.S.A. 75-3223(e).
We cannot opine regarding K.S.A. 75-3223(a), since that provision is not involved in interpreting the K.S.A. 46-221(a) definition of “state officer or employee.” However, it does contain the same language as subsection (e): “whenever it is provided by law.” We see no reference in K.S.A. 74-8803(j) to 75-3223(a) which would make it apply to KRGC commissioner per diems.
We next consider K.S.A. 46-235, which provides:
No state officer or employee shall accept compensation for performance of official duties, other than that to which such person is entitled for such performance. No person shall pay or offer to pay any state officer or employee performing official duties, except a state officer or employee performing official duties in making payments to state officers and employees. The receipt of wages or salary from an individual’s non-state employer during a period of service as a state officer or employee shall not be construed as compensation for performance of official duties.
The facts demonstrate no overlaps between commissioner’s schedule and official duties at KRGC and those at KDOT. Consequently, the respective compensation received for each position could not be for the performance of official duties at the other. Under these circumstances a violation of K.S.A. 46-235 does not occur.
We concur with your conclusion that K.S.A. 46-235 “would not prohibit a commissioner from accepting part time pay from KDOT and a per diem from KRGC when working in both positions on the same day because the official duties performed for the KRGC have no overlap with the official duties performed for KDOT, and the work performed for KRGC would not be performed during time compensated by KDOT.”
Nicholas Hale, Chairman
By Direction of the Commission
Doc. No. 049336