Request By:
Ms. Phyllis Green
City Councilwoman
832 Brand
Mayfield, Kentucky 42066
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of July 22 in which you request an opinion concerning the following:
"Before I was elected to the City Council, the City of Mayfield purchased many items from my husband's chemical business. My question, 'is there anything in the KRS statutes that would prevent the city from continuing to buy from my husband or one of his salesmen as long as he can give the city a better quality product at a cheaper price than anyone else can?'"
With respect to cities of the third class, there is no present statute prohibiting municipal officers from being directly or indirectly interested in contracts with the city since the repeal of Ch. 85 KRS relating to third class cities and the fact that Ch. 61 KRS has never contained such a provision covering third class cities though the related sections pertaining to all other classes were retained. At the same time Senate Bill 26, detailing the duties and powers of cities of all classes, contains no such disqualifying section. However, in absence of a specific statute on the subject, the common law principle would govern to the effect that it would be against public policy for a councilman to enter into a contract with the city, the execution of which would make it possible for his personal interest to become antagonistic with the performance of his duties. See McQuillin, Mun. Corps., Vol. 10, § 29.97 and
Arms & Short v. Denton, 212 Ky. 43, 278 S.W. 158 (1925).
Though the common law principle mentioned above would prohibit officers of cities of the third class from entering into contracts with the city, this principle would not prohibit the city from contracting with a relative of a member of the city council such as a councilwoman's husband under the facts presented. In this respect we are enclosing a copy of OAG 80-198, in which the position was taken that the interest of the officer which will render void such a contract as you mention must be present, personal and pecuniary and, as a consequence, contracts between the city and a relative of such officer have generally been sustained. Citing McQuillin on Municipal Corporations, Vol. 10, § 29.971. Reference is also made to
Chadwell v. Commonwealth, 288 Ky. 644, 157 S.W. 2d 280 (1941), in which the court held that the school board member was not disqualified by reason of the employment contract between the school board and his son and daughter.
On the other hand, if you are part owner in your husband's chemical business, the common law rule referred to above would apply and render the contract void. In any event, you must refrain from voting and participating in any way in any contract between the city and your husband's chemical business as such would be considered against public policy as also pointed out in the enclosed opinion.