Request By:
Dale Wright, Esq.
Anderson County Attorney
Main and Court Place
Lawrenceburg, Kentucky 40342
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions relative to the duties of the city attorney and the county attorney in regard to advising a joint city-county planning commission.
You refer to KRS 69.210, OAG 75-256, OAG 78-407 and a "Resolution" of the Anderson County Bar Association and ask if there is a mandatory duty upon the county attorney to advise a city-county planning commission and if there is a conflict of interest relative to said advice.
You ask the same questions relative to KRS 69.560 and the city attorney.
You state that as county attorney you often find yourself at a planning commission meeting giving advice to the commission on county matters only. When you attend fiscal court meetings that body often has a completely different view of the issue that was before the planning commission and asks you to take a completely different legal position. That, in your opinion, is a conflict of interest.
The local planning commission, consisting of nine members, has checked the surrounding counties and discovered that only one county has the county attorney representing the planning commission. The local planning commission is considering whether or not to employ its own counsel.
You also ask whether the opinion expressed in OAG 75-256, to the effect that a planning commission may employ an attorney to represent its interests, still represents the opinion of this office.
KRS 69.210 sets forth the duties of the county attorney but it does not specifically state that he must represent the planning commission. In OAG 75-256, copy enclosed, we said, relying upon OAG 69-200, copy enclosed, that the county attorney and the city attorney could be required to furnish legal representation for the joint planning commission, but only within the realm of their jurisdiction, since they represent the county and city respectively. Thus, the county attorney would advise on problems relating to the county and the city attorney would advise on problems relating to the city. OAG 78-407, copy enclosed, at page three, states in part that under the broad implications of KRS 69.210 the county attorney should advise a city-county planning and zoning commission concerning the county's interest.
KRS 69.560, dealing with city attorneys in fourth class cities, was repealed as of July 15, 1980. The city attorney now could be a city officer, a city employe or an independent contractor. If he is an officer or employe, the position will exist pursuant to a city ordinance which will set forth the duties and responsibilities of the office or employment. See KRS 83A.070 dealing with appointed officials and employes, KRS 83A.080 concerning the creation of nonelective city offices by ordinance and KRS 83A.010(9) defining "officer."
The Resolution of the Anderson County Bar Association states in part that: "there is an ethical professional conflict of interest when the City Attorney of Lawrenceburg and/or the County Attorney of Anderson County or both advise the Lawrenceburg-Anderson County Joint Planning Commission on matters which are properly before said Planning Commission for their official consideration and decision; that such conflict of interest exists when the said City Attorney and County Attorney are acting in their official capacities as such officers."
While this office does not render opinions relative to legal ethics, as such matters are handled by the Kentucky Bar Association, we do consider situations involving conflicts of interest. Even where there are no controlling constitutional or statutory provisions relative to conflicts of interest, there can still be common law conflicts. Various aspects of common law conflicts and incompatibility are dealt with 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). In
Hermann v. Lampe, supra, which applies to offices and forms of employment, the Court quoted with approval from an earlier case as follows:
"'Offices are said to be incompatible and inconsistent so as to be executed by the same person: First. When, from the multiplicity of business in them, they cannot be executed with care and ability; or, second, when, their being subordinate and interfering with each other, it induces a presumption that cannot be executed with impartiality and honesty.
In
Polley v. Fortenberry, supra, the following appears at pages 144-145 of the Court's opinion:
"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.'"
Neither KRS 69.210 nor KRS 15.725, dealing with the duties of the county attorney, specifically require the county attorney to advise a joint city-county planning commission. KRS 69.210 is sufficiently broad to justify an interpretation that the county attorney should advise a city-county planning commission concerning the interests of the county. However, a county attorney would not be expected to render such advice if doing so would create a conflict of interest situation. Whether a common law conflict of interest or incompatibility exists is primarily a matter for the courts to resolve. Furthermore, while we concede that a conflict of interest situation might arise under the general facts you have set forth, those facts are not precise enough for us to conclude that a conflict of interest has occurred concerning any particular act undertaken by the county attorney.
KRS 69.560, dealing with city attorneys in fourth class cities, has been repealed. The duties of a city attorney will be determined by the city ordinance establishing the office or position of city attorney or by the contract between the city and the attorney. We do not know whether the ordinance or contract requires the city attorney to advise the city-county planning commission concerning the interests of the city. Again, we would not expect the city attorney to render advice to the joint planning commission concerning city interests if doing so would create a conflict of interest situation. What we said relative to the existence of a common law conflict of interest involving the county attorney would also apply to the city attorney.
Finally, it is our opinion now as it was in OAG 75-256 and OAG 69-200 that, pursuant to KRS 100.173, a joint planning commission may, in its discretion, employ an attorney or attorneys (private practitioners) for advice and representation. The legislative bodies of the city and county should appropriate sufficient funds to cover such expenses.