Request By:
Mr. Willie Hendrickson
Bell County Judge/Executive
P.O. Box 366
Pineville, Kentucky 40977
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
One of the magistrates of Bell County Fiscal Court is operating a cable TV system in your county. He has asked the fiscal court for permission to erect certain portions of his cable TV system on poles to be located on county right of way. The fiscal court apparently intends to give him such easement rights without paying any monetary consideration.
Your question is whether any conflict of interest exists? The answer is "yes".
To begin, the granting of easement rights over county owned land would inevitably result in a financial benefit to the magistrate in question. In any event, the fiscal court has no authority to extend such a benefit unless a reasonable monetary consideration therefor is paid by the magistrate. Public policy dictates that the county property, which belongs to the people of the county collectively, be not used in some fashion by a private person for no consideration. See Burns v. Moore, 307 Ky. 167, 209 S.W.2d 735 (1948).
Since the magistrate in question must engage in a contractual relationship with the county under an easement document, involving his paying a monetary consideration therefor, the resulting pecuniary or proprietary interest of the magistrate in running his cable TV system along county right of way would disqualify him from holding the office of magistrate. In Commonwealth v. Withers, 266 Ky. 29. 98 S.W.2d 24 (1936) 25, the court wrote that "It is a salutary doctrine 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 public policy."
Since engaging in the easement contract with the county would be illegal while he is a member of fiscal court, it could subject him to an action for malfeasance under KRS 61.170. Fannin v. Commonwealth, Ky., 331 S.W.2d 726 (1960).