Request By:
Mr. James G. Shepherd
City Councilman
City of Edgewood
385 Dudley Road
Edgewood, Kentucky 41017
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 29 in which you refer to the fact that the city of Edgewood [a city of the fourth class] obtains its fire protection pursuant to a contract with the Southern Hills Volunteer Fire Department. A large percentage of the members being residents of Edgewood. The question is raised that if any of these members of the volunteer fire department are elected to the city council at the coming general election, would a conflict of interest exist.
Our response to your question would be in the affirmative if the contract between the city and the volunteer fire department is executed during the term that members of the fire department are also serving as members of the city council. If such be the case, then KRS 61.270 would be violated, in our opinion, which provides, in effect, that no member of the city council of a city of the fourth class shall be interested directly or indirectly in any contract with the city of which he is an officer, and any such contract shall be void.
For your information, we are enclosing a copy of a recent opinion, OAG 79-98, which cites a number of cases in which the court has held that contracts between the city and a corporation of which a member of the city council is an employe creates a conflict of interest under a similar statute to the one referred to above. The basis of these decisions is the fact that the councilman will derive some pecuniary interest, even though small, from the execution of the contract.
On the other hand, if the contract for fire protection is executed prior to a volunteer fireman becoming a member of the city council, no conflict of interest would exist under the terms of the case of
Collinsworth v. City of Catlettsburg, 236 Ky. 194, 32 S.W. 982 (1930). The court, in this case, said and we quote:
". . . 'The interest must exist at the time the contract is made. If at the time a contract is executed no officer of the city has a pecuniary interest in it, it is valid and it will not be invalidated merely because an officer subsequently acquires an interest therein, provided there is no evidence of any conspiracy or criminal understanding between the contractor and the city officer at the time the principal contract was entered into.'"
Here we might also add that the monthly approval of a bill for services rendered under a contract executed prior to the term of the officer in question would not, in our opinion, create a conflict of interest.