Request By:
Mr. Dewayne Clayton
Director
Urban Renewal and Community
Development Agency
35 South Bank Street
Mt. Sterling, Kentucky 40353
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of February 4, in which you relate the City of Mt. Sterling has recently created, pursuant to KRS 99.350, a Community Development Agency to administer the city's community development block grant program. Under the terms of KRS 99.350, the mayor, with the council's approval, appoints members of the Community Development Board. The question is raised as to whether or not the mayor can appoint himself to said board.
Our response to your question would be in the negative, since we believe the appointment of oneself to a board would be against public policy based on self-interest and we have so held in a number of opinions, among them them being OAG 66-586, copy attached, from which we quote the following:
"In answer to your second question as to whether or not the mayor and county judge may nominate themselves as members of the city-county planning commission pursuant to their appointing authority under KRS 100.141, we believe that such appointments would be against public policy, based on self-interest. Referring to the case of
Smelly v. Kerby, 120 Mich. 253, 79 N.W. 187 (1956) we find where the court held that the mayor was disqualified by self-interest in casting a deciding vote in appointing himself as a member of the water commission. Next referring to McQuillin, Municipal Corporations, Vol. 3, § 12.75, we find the following general rule on the subject:
'Officers who have the appointing power are usually disqualified for appointment to office to which they may appoint. Such exercise of the appointive power is against public policy, as is void on its face, . . .'
See also the case of
Meglemery v. Weissinger, 140 Ky. 353, 131 S.W. 40 (1910)."
Aside from the conclusion that the self-appointment by the mayor to the board would be against public policy, it should be noted that under the provisions of KRS 99.350(2), members of the board are to be five "resident electors" of the city. This statute would appear to require that the appointments come from individuals in the private sector who are duly registered and qualified voters of the city, thus excluding the appointment of any city officials. In other words, if the legislature had intended to permit the city officials to serve on the board, it would have provided, for example, that a certain proportion of membership be citizen members, thereby allowing the other portion of the board to be selected from local officials as permitted in the statutory makeup of the planning and zoning commission, found under KRS 100.133.
Under the circumstances, we are of the opinion that the mayor cannot legally appoint himself, though approved by the council, to the Community Development Agency Board established pursuant to KRS 99.350.