Request By:
Mr. David R. Choate
Clinton County Attorney
212 Washington Street
Albany, Kentucky 42602
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In 1977 Clinton County received a HUD grant for a Clinton County Center for the Aged. Competitive bids were submitted and an award to the low bidder was made in April, 1978.
After the building had been partially constructed, the prime contractor hired one of the Clinton County magistrates, a painter by trade, to do some interior painting. He worked approximately 40 hours and was paid the sum of $200.
You ask if there was some statutory conflict of interest.
KRS 61.220 reads:
"(1) Any member of the fiscal court who becomes interested, directly or indirectly, in any contract for work to be done or material to be furnished for the county or any district thereof, or who becomes interested in any claim against the county or state shall be fined not less than five hundred (500) nor more than five thousand dollars ($5,000) for each offense.
"(2) If any county judge or justice is, by the same act, guilty of a violation of this section and KRS 61.210, he shall be punished as provided in KRS 61.210."
KRS 61.210 prohibits a magistrate serving on fiscal court from becoming interested in county contracts involving roads or any internal improvements. However, that has no application here, since the center for the aged is not an "internal improvement". The term "internal improvements" is defined in Black's Law Dictionary, page 952, as "works of general public utility or advantage, designed to promote facility of intercommunication, trade, and commerce, the transportation of persons and property, or the development of the natural resources of the state, such as railroads, public highways, turnpikes, and canals, bridges, the improvement of rivers and harbors, systems or artificial irrigation, and the improvement of water powers; . . .".
It is our opinion that the magistrate, in becoming directly interested in the county contract for the building and in a claims against the county, violated KRS 61.220. It is a misdemeanor and is subject to a fine of from $500 to $5,000. It is not subject to the forfeiture of office provisions of KRS 61.210, for reasons given above.
The courts have adopted the doctrine, aside from this technical statutory violation, that "he who is intrusted 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."
Commonwealth v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936) 25. Here the prohibited interest in the county contract was $200, a specific and substantial monetary or pecuniary gain.
While it might be said that the paint contract in point of time in no way affected the magistrate's sound judgment in participating in the originally let prime contract, the fact remains that the magistrate violated KRS 61.220, which was designed to prohibit a magistrate from being interested, directly or indirectly, in a county contract. The law makes no distinctions between a prime contract and some later executed subcontract.