Request By:
Honorable W. Harold DeMarcus
House of Representatives
Republican Office, Room 324
State Capitol
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 4 in which you present the following facts and question:
"Being a former member of the legislature, an attorney and now the Attorney General, in your opinion could there exist a conflict being an attorney and also a member of the General Assembly with Section 57 of the Constitution which states 'A member who has a personal or private interest in any measure or bill proposed or pending before the General Assembly, shall disclose the fact to the House of which he is a member, and shall not vote thereon upon pain or expulsion.'
"The question in my mind is, being a member of the legal profession, a legislator could possibly have a conflict of interest on any bill coming before the legislature for a vote since these same statutes would be used in the practice of his or her profession. "
In response to your question concerning a possible violation of § 57 of the Constitution by members of the legal profession who, as legislators, vote on bills involving their profession, we refer you to the case of
Stovall v. Gartrell, 332 S.W.2d 256 (1960), which we believe responds to your general question in the negative. This case concerned the enactment of a bill pertaining to veterans bonuses where at the time many members of the legislature were veterans. Here the court declared that such veteran members of the legislature had "no personal or private interest" in this legislation and their vote did not violate § 57.
The court referred to the definition of the terms "personal" and "private" as particularly relating to individuals as opposed to that which is "public" or "general" and then proceeded to lay down its interpretation of the question as it related to § 57, which is as follows:
"The proposal presented to the legislature involved a broad classification of a substantial segment of the public. Though veterans in the legislature might anticipate that someday they would benefit from this legislation, such benefits were not private or personal, but were benefits to be received as members of a class.
"In the sense that veterans voting on this bill might eventually realize a pecuniary benefit (or a detriment) a great mass of legislation involves the same aspect, and the qualifications of the legislators to vote thereon has never been questioned. For example, all tax legislation must necessarily affect the interest of each and every legislator. This would be particularly true with respect to exemptions when particular legislators might by reason of their tax position be substantially benefited. The same is true with respect to insurance legislation. As to those members who are lawyers, the same would be true concerning legislation involving the practice of law. Under almost any act of the legislature, each member of the General Assembly would stand to benefit or suffer a detriment depending upon whether or not he fell within the class of those persons affected. The wheels of government would stop if legislators could not vote on matters in which they necessarily have a remote personal interest by reason of being a member of the public.
"[5] The parties do not cite, nor have we been able to find in our own research, any significant decided cases upon this question. We believe, however, that section 57 must be construed as restricting the right to vote only to those members who have a peculiar special interest in legislation which will affect them in a manner differently from the public or a proper classification of members of the public." (Emphasis added).
You will particularly note in the above quote the reference to attorney members of the legislature, and legislation that may be passed relating to their profession in which they may have an indirect interest but not a direct personal interest as opposed to a public interest.
In view of the above, no conflict of interest in violation of § 57 would be involved were members of the legislature who are also members of the legal profession, to vote on bills involving their profession.