Request By:
Mr. Sam Steger
City Hall
206 North Jefferson
Princeton, Kentucky 42445
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of March 7, in which you state that the City of Princeton is in the process of establishing by ordinance a municipal water and sewer system to be operated by a commission of which you will be a member.
You initially raise the following question:
"Should the Commission employ the present City Attorney also as their legal counsel, would there be a conflict of interest in this individual holding the dual position as City Attorney and legal counsel for the Utility Commission simultaneously?"
You do not enclose a copy of the proposed ordinance and as a consequence we cannot determine whether the utility commission is established simply by ordinance under the city's general powers or pursuant to a specific statute which may create an independent agency. If the commission is simply an agency of the city, the city attorney should probably represent both the city and the commission since the utility is an agency of the city. If it is an independent agency, he could at the same time be employed under a personal service contract which would make him an independent contractor. See
Hobson v. Howard, Ky., 367 S.W.2d 249 (1961). In neither event would the question of his holding two municipal offices at the same time be involved which would violate Section 165 of the Constitution and KRS 61.080. He should, of course, refrain from participating in any controversy between the city and the commission if the commission is an independent agency.
Your second question concerns the employment of a secretary by the commission and is as follows:
"Should the Commission employ the present City Clerk, a full time position, in the capacity of part time Commission Secretary, would there be a conflict of interest in this individual holding the dual position as City Clerk and part time Secretary of the Commission, simultaneously?"
An officer of the city such as the city clerk [KRS 80A.085] can at the same time hold other city employment as well as outside employment with an independent agency referred to above as long as she can perform the duties of both at the same time. Thus there would exist no constitutional or statutory incompatibility under the above referred to constitutional and statutory sections. Nor would there be any conflict of interest were the clerk to serve as a part time secretary for the commission assuming she can perform the duties in both positions at the same time.