Request By:
Mr. Larry J. Stolarick
Trustee
Pleasure Ridge Park Fire District
4500 Kerrick Lane
Louisville, Kentucky 40258Larry C. Ethridge, Esq.
The Hart Block Building, Fifth Floor
730 West Main Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letters, both of which raise questions concerning fire protection districts organized pursuant to KRS Chapter 75 and both of which ask whether the fire chief of a fire protection district may serve as a member of that particular fire protection district's board of trustees.
Mr. Stolarick's letter first refers to KRS 75.031, dealing with the board of trustees of a fire protection district, and the requirements that two members of the board of trustees be elected by the members of the volunteer fire fighters of the district and that they be members thereof. There is no statutory definition of the word "members" as it is used in that particular provision. KRS 75.100(7) defines "member" in connection with the use of the word in KRS 75.100 to 75.260.
Mr. Stolarick's letter states that a conflict of interest or an incompatibility would arise if the fire chief of the district served as a member of that district's board of trustees. He is of the opinion that the chief is subordinate to the board of trustees as the affairs of the fire district are conducted by the board and the board handles appointments and discipline of members of the fire department. He refers to the common law concept of incompatibility and conflicts of interest as well as KRS 61.080 and Section 165 of the Kentucky Constitution dealing with incompatible offices.
Mr. Ethridge cites various sections of KRS Chapter 75 in suggesting that the fire chief's concurrent membership on the board of trustees may create a conflict of interest in some situations. He states that the fire chief would at least have to abstain from participating in the board's consideration of certain matters. He asks what actions could be taken by a fire chief to avoid conflicts if it is determined that he can serve at the same time as a member of the fire district's board of trustees.
KRS 75.031(1)(a), in regard to the composition of the fire district's board of trustees, states in part that two members of the board of trustees shall be elected by the members of the volunteer fire fighters of the district and shall be members thereof. While the statute specifically requires that two members of the board of trustees be members of the volunteer fire fighters, the statute does not define "members" or "department." That statute does not prevent the chief from being considered as a member of the fire fighting force or department but it also does not specifically include him as a member of that force or department.
KRS 75.100, however, defines a number of terms in connection with their usage in KRS 75.100 to 75.260. "Fire department" means the officers, fire fighters and clerical or maintenance employes, including the chief and assistant chief of the department. In addition, "member" includes the chief and all officers and employes of a fire department, a fire protection district or a volunteer fire department.
We concluded in OAG 82-182, copy enclosed, at page three, that there is no provision in KRS Chapter 75 which prevents the fire chief of a department or district organized pursuant to KRS Chapter 75 from serving as a member of the board of trustees of that department or district. Since we did not specifically discuss in that opinion questions of statutory, constitutional or common law incompatibilities and conflicts of interest relative to a fire chief serving on the board of trustees, we will do so now.
In OAG 82-304, copy enclosed, we said that KRS 61.080 and Section 165 of the Kentucky Constitution, dealing with incompatible offices, would not apply to the fire chief of a fire protection district or the members of the board of trustees of a fire protection district organized pursuant to KRS Chapter 75. Such fire protection district trustees and officers are not state, city or county officers for purposes of those particular provisions but would be considered district officers. Thus, not only are there no statutory or constitutional prohibitions against a fire district fire chief serving at the same time as a member of the fire district's board of trustees, but, as previously stated, KRS 75.031(1)(a) requires that two members of the board be elected by the members of the volunteer fire fighters of the district and be members thereof. The General Assembly obviously intended that the interests of the fire fighters be represented on the board since two board members must be members of the district's fire department.
The more troublesome matter is that of common law incompatibility or conflicts which can exist even where there are no controlling constitutional or statutory provisions. Two leading cases dealing with these concepts are
Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937) and
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917), both of which are discussed in OAG 81-427, copy enclosed.
While the question of common law conflicts is primarily a matter for the courts to resolve, there will be some situations where a fire chief of a fire district who is also serving as a member of the board of trustees of that district, clearly will have to remove himself from the board's consideration of such matters. His position as a member of the board will conflict with his role as the fire chief. The same thing will occur on occasion to the other board member representing the fire fighters. For example, the fire chief, as a member of the board, cannot participate when the board fixes his salary or if the board decides to bring disciplinary action against him. However, much of what the fire chief does as a member of the board of trustees will not conflict with what he does as the fire chief of the fire district.
If a conflict does occur, the fire chief should not merely abstain from voting on the matter but should remove himself from the meeting while the board is considering and voting on that particular matter. One who merely abstains or passes is considered to have voted with whichever side secures a majority on that particular issue. See
Payne v. Petrie, Ky., 419 S.W.2d 761 (1967).
Thus, in conclusion, it is our opinion that the fire chief of a fire protection district organized pursuant to KRS Chapter 75 is not prevented by statutory or constitutional provisions from serving at the same time as one of the two required members of the fire department on the fire district's board of trustees. On those particular occasions where a conflict does occur, the fire chief should remove himself from the proceedings rather than merely abstaining or passing on the matter.