Request By:
Honorable Sheryl G. Snyder
Wyatt, Tarrant & Combs
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of April 6, in which you, on behalf of the City of Douglass Hills, raise the question as to whether or not the city can authorize the payment of a salary to its city engineer who is the spouse of the city's mayor, in view of the provisions of KRS 61.270, prohibiting an officer of the city from being directly or indirectly interested in a contract with the city. With respect to this question you relate the following facts:
"Richard Leezer is, and for several years has been, Douglass Hills' City Engineer. He was most recently appointed to that position by Hon. C. E. Schlie, then Mayor of Douglass Hills. The appointment was pursuant to KRS 83A.080, relating to non-elective city offices. At the time Mr. Leezer was appointed City Engineer, his wife was a council member; but there was no compensation for the position of City Engineer so there was no question of conflict of interest.
Mr. Leezer has continued in office as City Engineer because, as we interpret KRS 83A.080, non-elective city officers serve at the pleasure of the Mayor and need not be reappointed each time council members are inaugurated. In the interim, however, Mayor Schlie has resigned and the vacancy was filled by the Council electing Mrs. Leezer Mayor."
In response to your question, we agree with your position that nonelective city officers, who serve at the pleasure of the mayor, need not be reappointed each time the council members go into office unless, of course, they are appointed for specific terms pursuant to ordinance. In a miscellaneous letter addressed to Mayor Ken Smith of Russellville, dated January 27, 1982, copy attached, we cited the general rule that all appointive officers and employees hold over until their successors are appointed unless they are removed or the position is abolished. See also McQuillin, Municipal Corporations, Vol. 3, §§ 12.112 and 12.115.
The compensation of all nonelective officers and employees is required to be fixed by the city council pursuant to ordinance as provided by KRS 83A.070(2) and (3). The mayor is, of course, not a member of the city council and has no voting power except in case of a tie as provided in KRS 83A.130. Therefore, the mayor has no vote on the question of fixing a salary for the office of city engineer. Of course if the mayor's vote is necessary, as in the event of a tie vote, in determining the salary in question, she must refrain from voting as it would be against public policy based on self interest. See City of Springfield v. Haydon, 216 Ky. 483, 288 S.W. 337 (1926); McQuillin, Municipal Corporations, Vol. 3, § 12.75, and 63 Am. Jur.2d, Public Officers and Employees, § 96.
In any event, the conflict of interest statute to which you refer, KRS 61.270, would not be violated because of the remoteness of the interest, as held in the opinions to which you refer, namely, OAG 76-76 and 73-22, among others, which cite the case of Chadwell v. Commonwealth, 288 Ky. 644, 157 S.W.2d 280 (1941), from which we quote the following:
". . . Nor are we impressed with the argument that the services the daughter renders the board are services in which the defendant was directly or indirectly interested. We are of the opinion the Legislature intended such interest to be confined to monetary considerations and that the consideration must be such as would move directly or indirectly to the board member himself, and not to include mere emotional interest that a member of the board might have in the person rendering the services . . . ."
Under the circumstances, therefore, we find no legal objection to the city council authorizing a salary for the city engineer who is the spouse of the mayor.