Request By:
Dale M. Morris
LaRue County Attorney
Hodgenville, Kentucky 42748
Opinion
Opinion By: Steven L. Beshear, Attorney General; Charles W. Runyan, Assistant Deputy Attorney General
Conflict of interest questions are raised in your letter, which reads:
"A member of the LaRue County Fiscal Court presently serves as a director on the board of LaRue County Parks and Recreation, Inc., a non-profit corporation with which the county has a contractual arrangement for the contribution of county funds for the operation of a park system.
Is there a conflict of interest to the extent that that particular court member should abstain from the discussion and/or vote on the issue of the county contribution to said corporation?
The city attorney, an employee of the city of Hodgenville, is also a member of this non-profit corporation board. The city has a lease agreement with said corporation and also contributes money to it. Is there a direct conflict of interest in the city attorney holding both positions?"
As concerns the member of Fiscal Court who is a director on the Parks Board, we can find no statutory conflict of interest, except that KRS 61.220 prohibits members of fiscal court from being interested in claims against the county. Even if the Board position were considered a county office, which it is not under the facts given, KRS 61.080 does not prohibit the holding of two county offices. Since the Board relates to a non-profit recreational corporation with a contractual relationship with the Fiscal Court, the Board membership does not amount to a "county office" in the strict legal sense. We assume that the Fiscal Court is not an appointing authority in connection with the Parks Board membership.
Even if we assume correctly that the Fiscal Court does not exercise a supervisory role over the corporation, there may be a common law incompatibility where the Fiscal Court member cannot perform his duty on Fiscal Court with impartiality and honesty as relates to the recreational corporation. Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917). In Baker v. Dixon, 295 Ky. 279, 174 S.W.2d 410 (1943), 412, the Court wrote this:
"The test of incompatibility is not to be measured by physical inability to personally discharge the duties of the offices; it must be tested by the measure of consistency of the duties involved."
It is our opinion that in the situation involving the Fiscal Court's voting on or litigating a matter relating to the recreation corporation's contract, the member of the Fiscal Court in question should absent himself from the Fiscal Court meeting while such deliberations and voting are going on; and he should, in the event of litigation between the corporation and the county, completely disassociate his name or action from it.
You have written that the City Attorney of Hodgenville, a 4th Class City, is also a member of this non-profit corporate board. The city has a base agreement with said corporation and also contributes money to it. You ask whether there is a direct conflict of interest in the city attorney's holding both positions.
Under the above analysis, we do not believe any statutory conflict of interest is involved, except that KRS 82.092 prohibits any city officer from dealing in claims against the city.
As we said above, there could be a common law conflict of interest where the city attorney and as director of the corporate board cannot consistently perform duties for both the city and the corporation. That being the case, he should scrupulously avoid taking any action in either role that would involve the city's contractual and financial deals with the recreation corporation.