Request By:
Mrs. Frances Parsons
City Councilperson
City of Pineville
Pineville, Kentucky 40977
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of December 12, in which you raise the following questions:
"1. Does the local zoning committee have the sole authority to recommend who the city council will hire for building inspector? "
"2. Is this building inspector required to live within the city limits?"
"3. Is the building inspector restricted from engaging in the building trade? "
In response to your initial question, KRS 100.271 provides that an administrative officer may be designated by the city to issue building permits or certificates of occupancy. This statute, together with the powers given cities under S.B. 26, clearly authorizes the city council, which is the legislative body of the city, to establish by ordinance the position of building inspector as a minor city office under the terms of KRS 83A.130(12), or as an alternative, the city council could designate one of its administrative officers to issue building permits. In any event, the person to fill the position is to be selected by the mayor [the administrative head of the city] with the approval of the city council under the terms of KRS 83A.080(2). Of course, the zoning committee could recommend someone to hold the position of building inspector to the mayor once it is established.
Our response to your second question would be in the negative as there is no statutory requirement that a nonelective officer of the city reside within the city limits although we believe that the city could so provide, under its home rule power as expressed in KRS 82.082, if it so desires.
Your third question raises the possibility of a common law conflict of interest where the building inspector is also engaged in the building trade since there would be no statutory prohibition. A possible common law conflict of interest as we said, could possibly develop by his being in the building business whether it involves furnishing material and supplies or an actual building contract, where at the same time he would be responsible for enforcing the building code on property involving his material and work. See Commonwealth v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936) wherein the court declared:
"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."
We might add that the city legislative body under its home rule authority could, we believe, prohibit by ordinance any person serving as building inspector from at the same time being engaged in the building trade on the grounds of a possible common law conflict.