Request By:
Willie Mathis, Jr., Esq.
Dixie State Bank Building
Suite Two
Walton, Kentucky 41094
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter concerning possible conflicts of interest of a councilman of the city of Walton, a city of the fifth class.
The councilman in question operates the only hardware and implement company in the city (the next nearest such company is about ten miles away and well outside the city). Before this person became a councilman the city maintained an account with his company. From time to time small items (from twenty-five cents to fifty dollars) were purchased from the store for use by the city. When this hardware store owner became a councilman you advised him that it would be a conflict of interest for him to be on the council and to continue to do business with the city. The city council now seeks the opinion of this office.
In another situation involving the same councilman, he has proposed to provide the city on a lease basis with a backhoe at a substantial savings from what the city has been paying for such equipment and services. Even with competitive bidding, it is your opinion that such an arrangement between the city and the councilman is prohibited by statute. The city council also seeks the opinion of this office in this second matter.
At the outset we direct your attention to KRS 61.280, applicable to city officers of cities of the fifth and sixth class, which provides as follows:
"No officer of a city of the fifth or sixth class shall be interested, directly or indirectly, in any contract with the city of which he is an officer, or in doing any work or furnishing any supplies for the use of the city or its officers in their official capacity. Any claim for compensation for work done, or supplies or materials furnished, in which any such officer is interested, shall be void, and, if audited and allowed, shall not be paid by the treasurer. Any willful violation of the provisions of this section shall be grounds for a removal from office, and shall be a misdemeanor, and punished as such."
The above-quoted statutory provision would clearly prohibit the city from doing business with a hardware and implement company owned by a city councilman. Furthermore, that same statute would also prohibit the councilman from entering into a lease arrangement with the city whereby the councilman would lease a backhoe to the city. Even if the use of the backhoe furnished by the councilman was obtained on a bid basis, a violation would still exist in view of the Court's decision in
Arms & Short v. Denton, 212 Ky. 43, 278 S.W. 158 (1925). See also OAG 78-554, copy enclosed.
In our opinion, you have correctly concluded that both of the situations set forth in your letter in which the councilman purports to engage are prohibited by statute. The councilman through his hardware and implement company cannot do business with the city he serves and the councilman cannot, through a leasing arrangement, furnish a backhoe to the city he serves in view of the provisions of KRS 61.280. See also OAG's 76-77, 75-687, 74-598 and 72-26, as well as