Request By:
Mr. James B. Allen, Jr.
Clark County Judge Executive
Courthouse
P.O. Box 5
Winchester, Kentucky 40391
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request the opinion of this office as to whether your serving as a director on a board of a local bank would constitute a conflict of interest?
The Clark County Fiscal Court has on record an order of rotation whereby all county funds will be deposited in three local banks over a two-year period.
You have appointed a financial advisory committee composed of a delegate from each bank to advise fiscal court in the management of all county funds to insure that they are invested wisely, and that all banks are treated equally.
The choosing of a depository bank for county funds is the responsibility of the fiscal court. See KRS 67.080(1)(c). See also
Pulaski County v. Richardson, 225 Ky. 556, 9 S.W.2d 523 (1928), wherein the court said that fiscal court has almost unlimited control of the fiscal affairs of a county.
Under the present provisions for a depository, we see no conflict of interest on your part. We do believe that if the present policy of rotation is changed, you should avoid being present for the vote, since an absention may be counted with a majority vote.
Under the total factual circumstances, we do not believe that the fact that you are a director and stockholder in one of the local banks would create an incompatibility.
As concerns any common-law incompatibility, the court, in
Adams v. Commonwealth, Ky., 268 S.W.2d 930 (1954), wrote that such incompatibility exists when the two offices are inherently inconsistent or repugnant, or when the occupancy of the two offices is detrimental to the public interest. On the face of it, the facts do not disclose such an incompatibility.
It was stated in
Commonwealth v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936), that it is a salutary doctrine that he who is entrusted 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. In general, the disqualifying interest must be pecuniary or proprietary by which he stands to gain or lose something. However, the interest is not sufficient to disqualify the officer if the opportunity for self-benefit is a mere possibility or is so remote or collateral that it cannot be reasonably calculated to affect his judgment or conduct in the making of a contract.
Thus under Commonwealth v. Withers, above, we see no basis for incompatibility on the part of the county judge executive. In addition, the case of