Request By:
Mr. Mark A. Neikirk
Reporter
The Kentucky Post
421 Madison Avenue
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written that Commissioner (Kenton County Fiscal Court) Aldemeyer's son, Gary, owns and operates a travel agency that does business with the fiscal court. Gary lives with his parents and is 25 years old. He does not pay rent to his parents.
You request an opinion as to whether the fiscal court or Robert Aldemeyer are in volation of some statute dealing with a conflict of interest.
Apparently Gary, as a Travel Agent, handles the purchase of plane tickets for county officials traveling, we assume, on county business, and was paid by the airlines a commission for his agency in the matter. Mr. Aldemeyer contends that the county money paid for the plane tickets represented the exact "over-the-counter at the airport" cost of the tickets. He also contends that Gary was paid the standard commissions by the airlines for his travel agency work.
KRS 61.220 prohibits any member of fiscal court from becoming interested, directly or indirectly, in any contract for work to be done or material to be furnished for the county. It prohibits any fiscal court member from becoming interested in any claim against the county.
Even if the statute were considered to be broad enough to embrace flying services, and assuming that there is no evidence that Robert Aldemeyer, or any other member of fiscal court, has shared to any extent in his son's commissions or profited by the ticket sales in any manner, it is our opinion that the statute has not been violated. It is necessary to show a direct or indirect pecuniary interest in the claim against the county. Under the above assumptions of fact, such interest is not evident. The evidence must be such as to indicate that the county's contract was with the members of fiscal court, or one of them, as individuals or an individual. If the latter were the case, the contract would be void since their private interests would conflict with their public duty.
Logan County v. Edwards, 206 Ky. 53, 266 S.W. 917 (1924) 919. But we have no evidence of that personal interest before us. The mere fact that Gary lives in his parent's house, alone, does not indicate any direct or indirect pecuniary interest of Robert in Gary's commissions or in the ticket sales transactions. In fact, Gary is residing there on a gratuitous basis. In applying KRS 61.220 we cannot speculate or guess.
As concerns the Model Procurement Code, KRS 45A.345 to 45A.460 shall automatically apply to local public agencies, including counties and cities. See KRS 45A.350, as amended (Acts 1980, Ch. 293, § 1, approved April 9, 1980). KRS 45A.350 was repealed the same session (Acts 1980, Ch. 250, § 20, approved April 9, 1980). The annotation to KRS 45A.350 indicates that the amendment was the later enactment. That being the case, the amendment prevails.
Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400. The amendment to KRS 45A.350 republished the provision that any legislative body or governing board may adopt any of the other provisions of the procurement code.
We are not informed as to whether or not the Kenton County Fiscal Court has expressly adopted the provisions of KRS 45A.330 and 45A.340. Assuming, for the sake of your question, that the Kenton Fiscal Court did adopt those two sections, it is our opinion that under the facts presented to this office no direct or indirect pecuniary interest, on the part of a member of this fiscal court, in the commissions contract of Gary Aldemeyer or otherwise in the ticket sales matter is made out.
Even under the broad concept of public policy, the appellate court has held 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."
Commonwealth v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936) 25. Elsewhere in that opinion the court wrote that the disqualifying interest must be pecuniary or proprietary by which he stands to gain or lose something. However, the court said that "the interest is not sufficient to disqualify the officer if the opportunity for self-benefit is a mere possibility or is so remote or collateral, such as being only a debtor, that it cannot be reasonably calculated to affect his judgment or conduct in the matter of the contract or in its performance." Here again, even under those broad principles, the evidence before us is insufficient to make out a direct or indirect pecuniary interest.
Finally, we see no violation of KRS 61.190, which prohibits any public officer from receiving directly or indirectly any interest or profits arising from the use of public funds.