Request By:
Honorable Joseph T. Condit
City Solicitor
906 City-County Building
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of August 19, in which you relate the following facts and question:
"The city of Covington has a city solicitor and three part-time (works 25 hours per week), noncivil service assistant city solicitors who serve at the pleasure of the city commission, under the supervision of the city solicitor.
One of our assistant city solicitors is a partner in a general partnership that is undertaking the rehabilitation of an old mansion in downtown Covington for conversion to office spaces. The general partnership has planned to finance the project with Kentucky's industrial revenue bonds (KRS 103). As a step in obtaining tax exempt status for the bonds, the appropriate governing body -- in this case the Covington city commission, must pass a resolution authorizing issuance of the bonds in the City's name. A local financial institution has agreed to lend the money and purchase the bonds.
An opinion is needed as to whether or not a part-time, noncivil service assistant city solicitor is an officer as defined in KRS 83A.010(9), and if, therefore, he is prohibited from entering into this arrangement with the city."
In response to your question we initially refer to KRS 61.260 which reads as follows:
"If any officer of a city of the second class shall be directly or indirectly interested in any contract with the city, or in any work done by the city, or in furnishing supplies for the city or any of its institutions, or in the sale of any property to or for the city, he shall be guilty of a misdemeanor. Any appointed officer becoming so interested shall be immediately dismissed from office by the mayor. If the mayor believes that an elective officer is so interested, he shall report the facts to the board of aldermen, which shall, as soon as practicable, convene to hear and determine the same, and if, by a two-thirds (2/3) vote of the board, the officer is found so interested, he shall be immediately dismissed from office."
The conflict of interest referred to in the above statute applies to elected and nonelected municipal officers and prohibits them from being directly or indirectly interested in any contract with the city. So unless the part-time city solicitor is in fact a municipal officer, there would obviously be no statutory conflict of interest.
In determining whether or not a position with the city is an office, we refer you to KRS 83A.080(1) which requires all nonelected city offices be created by ordinance, as follows:
"(1) All nonelected city offices shall be created by ordinance which shall specify:
(a) Title of office;
(b) Powers and duties of office;
(c) Oath of office;
(d) Bond, if required; and
(e) Compensation.
The above statute must be read in conjunction with KRS 83A.010(9) to which you refer and which defines the term "officer" as one elected or appointed to a position possessing the seven or eight elements mentioned therein but which we will not quote.
Thus, in order for the position of assistant city solicitor to be classified as a nonelective office, said position must be established by ordinance with the term, powers and duties enumerated as required in KRS 83A.080(1) and 83A.010(9).
We also might call your attention to the case of
City of Glasgow v. Burchett, Ky., 419 S.W.2d 544 (1967), in which the Court held that a police judge was not prohibited from being employed by a city of the fifth class to advise the city on legal matters since he was not serving the city in the capacity of city attorney, an office of the city. Also, in the case of
Hobson v. Howard, Ky., 367 S.W.2d 249 (1963), it was held that an attorney employed by the Floyd County Board of Education was not even considered a school employee but merely an independent contractor.
Thus, assuming from the tenor of your letter that this position has not been established by ordinance as a municipal office, the provisions of KRS 61.260 would not apply and there would be no conflict of interest present. In any event, however, we believe that the assistant city solicitor in question should in no way personally participate in negotiating the agreement with the city. We further note from your letter that you have already obtained clearance from the Kentucky Bar Association's Legal Ethics Committee with respect to this question.