Request By:
Mr. Clint R. Collins
P.O. Box 514
Monticello, Kentucky 42633
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have requested an opinion from this office on the following question which reads:
"Is it proper for the county attorney to be an appointed member on the hospital board, which is a legal sub-division of the county government? Is there a potential conflict of interest in a case of litigation regarding the hospital and/or fiscal court in any way?"
The county attorney, under KRS 69.210(1) and (2), is required to attend the fiscal court and conduct all business of that body touching the rights or interest of the county, and when so directed by the fiscal court he must institute, defend and conduct all civil actions in which the county is interested before any of the courts of the Commonwealth. Under that statute he is also required to give legal advice to the fiscal court and the several county officers in all matters concerning any county business within their jurisdiction. These obligations to the county are of a civil nature. The main thrust of this statute is that he must at all times represent the interest of the county.
We assume from your letter that the hospital board is an administrative board established by the fiscal court to run the county hospital on a day by day administrative basis, subject to the overall supervision and control of the county court. See Abernathy v. Irvine, Ky., 355 S.W.2d 159 (1962). If we assume that the hospital board members are appointed for definite terms of some duration, then it is possible that they could be considered county officers under the criteria established in Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817.
If we assume that the hospital board members qualify as county officers, and we are also assuming that this is a county hospital subject to the overall control of the fiscal court under KRS 216.040, then we find nothing in the constitution and in the statutes which would prohibit the county attorney from holding the two county offices at the same time. See § 165, Kentucky Constitution, and KRS 61.080. We are saying in effect that there is nothing in the constitution or the statutes that would prohibit the county attorney from serving on the county hospital board. Thus there is no constitutional or statutory conflict of interest.
However, even in the absence of constitutional or statutory provisions, we must usually consider the possibility of any common law incompatibility. A common law incompatibility arises where the officer in question, from the multiplicity of business in the two offices, cannot execute both offices with care and ability and with impartiality and honesty. See Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126.
Should the occasion arise, assuming that the county attorney is appointed to the hospital board, wherein it is felt that there might be a common law conflict of interest such that the county attorney could not execute both positions with impartiality and honesty, then the county attorney should refrain from participating in the particular matter before the county hospital board, thus making it possible for him to continue to carry out his duties as county attorney in the fullest sense under KRS 69.210.