Request By:
Mr. Ralph D. Gibson
Registered Sanitarian
P.O. Box 674
Monticello, Kentucky 42633
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: David K. Martin, Assistant Attorney General
You inquired as to whether the transfer of inspection and permitting functions concerning onsite sewage disposal systems to the Department for Human Resources engendered a conflict of interest for local health department sanitarians who conduct percolation tests as a private business. Under House Bill 639, local health department sanitarians, as agents for the Department for Human Resources, may have the responsibility for inspection of private onsite subsurface sewage disposal systems. Under existing regulations, local boards of health are similarly authorized to act as agents for the Department of Housing, Buildings and Construction. See 815 KAR 20:141(7).
Permits are required from the state or an authorized local board of health before any person may construct, alter or install a subsurface sewage disposal system. KRS 318.134; 815 KAR 20:141(2). A critical factor in the determination as to whether or not a permit will be issued for a subsurface sewage disposal system is the results of the percolation test required by KRS 318.134(2) and 815 KAR 20:141(3). The results of the test also determine the size of the drain field required for permit issuance. 815 KAR 20:141(6).
The general assembly has enacted various statutes to prohibit conflicts of interests for employees of state agencies. See KRS 45A.340. However, an employee of a local board of health is not an employee of a state agency as that term is used in KRS 45A.340. See KRS 45A.335(1); OAG 76-89. Nevertheless, there is a widely accepted doctrine of the common law that a public officer cannot act lawfully as the agent of one person where the private agency will come in conflict with his official duties. 63 Am.Jur.2d, Public Officers and Employees, § 281, p. 745. Furthermore, to act for one of the parties involved implies an interest adverse to the other. Id. Thus, a sanitarian retained to perform a percolation test for an applicant for a plumbing permit would clearly come in conflict with his official duties if he had any input into the decision to issue or deny the permit in question. An analagous situation was presented in Lake De Smet Reservoir Co. v. Kaufman, 75 Wyo. 87, 292 P.2d 482 (1956), in which it was decided that it was improper for a water commissioner to sit on an adjudicatory panel because he had performed services for a party to the case the year before. It was also noted in that case that the law prohibits not only actual conflicts but situations in which the appearance of conflict is present. The problem is almost identical to that of a judge, who should not hear a case if any substantial ground exists for suspicion that he is not wholly disinterested. Ledford v. Hubbard, 236 Ky. 373, 33 S.W.2d 345 (1931). In the situation you have described, a sanitarian could be placed in the situation of passing judgment over his own tests for which he was paid by the applicant. No man can thus serve two masters without giving an impermissible appearance of impropriety. Moreover, a public servant who solicits, accepts, or agrees to accept compensation or advice or other assistance in preparing a bill, contract, claim or other transaction or proposal as to which he knows that he is likely to have an official discretion to exercise is in violation of KRS 521.040, receiving unlawful compensation. This crime is a Class A misdemeanor.
In conclusion, a sanitarian who performs a percolation test as a private business should not take any part in the decision on a permit for a subsurface disposal system that relies on the percolation test he performed. Additionally, the sanitarian should not perform the inspection of the installation of that same subsurface disposal system because of the appearance of conflicting loyalties presented.