Request By:
Mr. Gilbert Starck
Pleasure Ridge Park Fire District
4500 Kerrick Lane
Louisville, Kentucky 40258
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to your letter raising a question concerning KRS 75.031 which deals with the membership of the board of trustees of a fire protection district. You are apparently concerned with that portion of the statute dealing with the appointment of trustees by the county judge-executive, which states as follows:
". . . The county judge/executive of the county in which the greater part of the district is located shall, with the approval of the fiscal court, appoint three (3) members of the board of trustees. In counties containing a city of the first class trustees appointed by the county judge/executive to serve in volunteer fire protection districts shall reside within the boundaries of that county. . . ."
Your question is whether the county judge-executive may appoint as a trustee a person who serves as a firefighter for another fire department. It is your opinion that a trustee of the fire district who also serves as a firefighter for another fire department may not always act in the best interests of the fire district and that there may be a conflict of interest if the same person holds both positions at the same time.
KRS 75.031 sets forth no specific qualifications for the appointees of the county judge-executive except that in counties containing a city of the first class, such persons shall reside within the boundaries of that particular county. We have pointed out, however, in several opinions, including OAG 77-706, copy enclosed, at page four, that the statute expresses an intent to construct a balance of interests or viewpoints on the board of trustees of a fire district. We have suggested that the appointments of the county judge-executive should attempt to preserve the balance.
Section 165 of the Kentucky Constitution and KRS 61.080 deal with incompatible offices and set forth various combinations of state, county and city offices which cannot be held by the same person at the same time. We do not know what kind of "other firefighter" position you are referring to, but, generally, city and county firefighters are considered employes of the employing entity rather than governmental officers. Furthermore, trustees of a fire protection district are district officers rather than state, county or city officers and thus Section 165 of the Constitution and KRS 61.080 are not applicable. See OAG 74-341, copy enclosed.
Conflicts of interest exist pursuant to either statutory provisions or principles of the common law. Where they are statutory in nature the statutes specifically prohibit certain contractual situations as well as other designated activities and transactions. We do not know of any specific statutes setting forth stituations which constitute conflicts of interest for members of the board of trustees of a fire protection district. KRS 75.031(1)(b) does state, however, that an appointed trustee may be removed from office as provided by KRS 65.007 and that statute deals with removal from office, after a hearing and notice, for inefficiency, neglect of duty, malfeasance or conflict of interest.
Even if there are no statutory provisions describing specific instances of conflicts of interest applicable to the fact situation you have set forth, there could still be common law conflicts. Examples of common law conflicts of interest and incompatibility, applicable to offices and forms of employment, are discussed in
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) and
Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937).
The Court in Hermann v. Lampe, supra, said in part as follows:
"'Offices are said to be incompatible and inconsistent so as to be exercised by the same person: First. When from the multiplicity of business in them, they cannot be exercised with care and ability; or second, when, their being subordinate and interfering with each other, it induces a presumption that they cannot be executed with impartiality and honesty.'"
In
Polley v. Fortenberry, supra, the Court stated in part:
". . . The two employments not being incompatible under the Constitution or statute, the case turns on whether the two offices or employments are incompatible under the common law. As said in
Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43, 44, 'Aside from any specific constitutional or statutory prohibitions, incompatibility depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them. The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest.'"
You have alluded to a possible conflict of interest but have set forth no specific factual situations which we might evaluate. We cannot consider, list or guess at every possible situation that might arise, and we can only direct your attention to some of the applicable principles of law relative to common law conflicts of interest. In any event, whether a common law conflict exists is primarily a matter for the courts to resolve.
There is no constitutional or statutory prohibition against the county judge-executive appointing a person as a trustee of a fire protection district existing under KRS Chapter 75 who is also serving as a member of another fire department. A common law incompatibility, which is ultimately an issue for the courts to decide, would not arise if the person can handle both positions with care and ability and the one position does not interfere with the other, is not subordinated to it and is not inconsistent with it.