Request By:
Mr. Tom Cooley
103 West Main Street
P.O. Box 481
Lebanon, Kentucky 40033
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 13 in which you relate that as Chariman of the Board of Trustees of the city of Bradfordsville, a city of the sixth class, you resigned from the board on August 10, 1978. Since you are contemplating returning to the board, you raise the following questions:
"1. The City of Bradfordsville, has a volunteer fire department and two of the board members are volunteer fireman. Is this a conflict of interest and can these people legally serve in both capacities?
"2. Also, please outline the proper procedure for selecting a new member, when someone has resigned or quit. Under the present council, two members were sworn in by the County Clerk before the three members who were on the board accepted and voted to have these people accepted. Is this legal and are these people legally board members.
"3. In the September meeting there was a chairman pro tem appointed for this meeting, but the October and November meetings there was no chairman pro tem appointed. Can the persons appointed in September legally conduct the meetings in October and November without first having been appointed for these meetings as a chairman pro tem? "
In response to your initial question, there would be no conflict of interest, assuming that the volunteer fire department is a private corporation not constituting the city's fire department as we have held in OAG 71-514 [copy attached] . You will note, however, that we also pointed out in the opinion that a possible conflict of interest would exist if the volunteer fire department negotiated a contract with the city during the councilman's term for his services as a fireman associated with the volunteer fire department. In this respect, we refer you to KRS 61.280 which prohibits an officer of the city from being interested directly or indirectly in any contract with the city in which he is an officer. See also OAG 71-219 [copy attached] .
In response to your second question, when a vacancy is created in the board of trustees, as for example your resignation on August 10, the county judge is required pursuant to KRS 88.230 to fill said vacancy, subject of course to an election for the unexpired term as required by § 152 of the Constitution. On the other hand, appointments to fill vacancies on the board made by the county judge are not subject to the approval or disapproval of the other members of the board of trustees.
With respect to your third question concerning the appointment of a chairman pro tem, we initially refer you to KRS 88.150, which reads as follows:
"In the absence of the chairman, the board of trustees may choose a chairman pro tem, who shall exercise all the powers and duties of the chairman, but only during the day on which he is chosen."
The above statute clearly provides that the chairman pro tem appointed by the board exercises his powers and duties as chairman only during the day on which he is chosen when the chairman is absent. Thus, in any subsequent meeting where the chairman is absent, the pro tem chairman again would have to be appointed. This statute, however, would not apply where the chairman resigned from the board thereby creating a vacancy, in which case the board would be required to select a member to act as chairman, not as pro tem chairman. In any event, it would appear that since a new chairman had to be appointed following your resignation in August and assuming no one had, the councilman appointed chairman pro tem in September was, from a legal standpoint, actually appointed chairman and, thus, would be entitled to serve at any subsequent meeting, such as the October and November meetings.