Request By:
Honorable Woolsey M. Caye
Attorney at Law
310 West Liberty
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 23 in which you state that you represent a member of an engineering and consulting firm doing business in the city of Louisville. Said member has been approached to serve as a board member on TARC, which is a joint city-county board operating the bus system in Louisville and Jefferson County. The firm of which your client is a member has in the past five years done approximately $50,000 of consulting work for the TARC board, however, in the event of his appointment, said firm will refrain from doing any business with TARC. On the other hand this firm does from time to time do consulting work and other engineering work for the city of Louisville, Jefferson County and other city and county boards.
Under the circumstances, the question is raised as to whether or not the appointment in question would constitute a conflict of interest so as to prevent the engineering and consulting firm from doing business with either the city of Louisville, Jefferson County or any city or county board other than TARC.
Our response to your question would be in the negative since being a member of the TARC board would in no way involve him in any contractual relationship with either the city of Louisville or Jefferson County, or for that matter any other city or county board from which he would derive a pecuniary interest by virtue of his position with the engineering firm.
In the absence of any specific statute involving a conflict of interest [which appears to be the case here], the common law conflict of interest rules would apply. Referring to McQuillin, Mun. Corps., Vol. 10, § 29.37, we find the general rule expressed as follows:
". . . It is generally held that whenever a public officer enters into a contract the execution of which may make it possible for his personal interests to become antagonistic to his faithful discharge of a public duty, such contract will be held void as against public policy . . ."
Also referring to the case of
Commonwealth v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936), we find the following:
"It is a salutary doctrine that he who is intrusted with the business of others cannot be allowed to make such business an object of profit to himself. This is based upon principles of reason, of morality, and of public policy. These are principles of the common law and of equity which have been supplemented and made more emphatic by the foregoing and other statutory enactments.
Nunemacher v. City of Louisville, 98 Ky. 334, 32 S.W. 1091, 17 Ky.Law Rep. 933. In their application and operation it is impossible to lay down any definite rules defining the nature of the interest of the officer, or indicating the line between that which is proper and that which is unlawful. In general, the disqualifying interest must be pecuniary or proprietary by which he stands to gain or lose something. Falling within the principle are contracts with firms in which the member of the municipal body is a partner or a corporation of which he is an officer, or sometimes only a stockholder or employee.
Byrne & Speed Coal Co. v. City of Louisville, 189 Ky. 346, 224 S.W. 883;
Douglas v. Pittman, 239 Ky. 548, 39 S.W. (2d) 979. Furthermore, it is not material that the selfinterest is only indirect or very small." (Emphasis added).
As a consequence, we are of the opinion that your client can serve as a member of the TARC board and at the same time his engineering and consulting firm can continue to contract with the city of Louisville and Jefferson County or any city or county board other than the TARC board.