Request By:
Mr. Ben Rice
Tolesboro, Kentucky 41189
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 3 in which you refer to a problem involving annexation by the city of Tollesboro, a city of the sixth class. Your question actually involves a possible conflict of interest where three (3) members of the board live in the territory that has been annexed at a meeting held on December 8. All three members voted for annexation. You question whether or not their actions were legal.
Questions involving possible conflicts of interest are generally based on statutes providing, in effect, that no member of the city legislative body [and in some cases, all other city offices] can be interested in any contract executed on behalf of the city whereby such member has a direct or indirect interest. Such disqualifying interest, however, must be pecuniary as held in the case of Commonwealth ex rel Vincent v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936). Sixth class cities are governed by KRS 61.280 which indeed prohibits members of the board from having an interest in any contract with the city.
On the other hand, the city is authorized to annex territory pursuant to KRS 81.230 which would not of course involve a contractual relationship so as to activiate the provisions of KRS 61.280 against those members voting for annexation that live within the territory to be annexed. For example, it has been held that a member of the city council is not disqualified from voting on an ordinance establishing a sewer system simply because he owns property within the sewer district and would obviously derive some benefit from the system. See McQuillin, Mun. Corps., Vol. 4, § 13.35 and § 13.35a. See also Pursiful v. Harlan, 222 Ky. 658, 1 S.W.2d 1043 (1928).
Under the circumstances, we are of the opinion that those members voting in favor of annexation who live within the territory annexed, had the legal right to do so.