Request By:
Mrs. Jo Westpheling
Editor-Publisher
The Hickman Courier
P.O. Box 70
Hickman, Kentucky 42050
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on questions relating to possible conflicts of interest and to the significance of attorney general opinions, as applied to people in government who request such opinions.
In one situation, the president of the local bank serves also as the presiding officer of the Fulton-Hickman Riverport Authority. We assume the Riverport Authority was jointly created by the Hickman City and Fulton County governments, pursuant to KRS 65.520. The Riverport Authority is a public agency and a separate body politic from that of the city or county. Once it is established, it has complete control over its own operation under the terms of KRS 65.510 to 65.650. It is a district, as defined by KRS 65.060. It has authority to borrow money from any source on its own credit in anticipation of revenue to be derived from taxes, appropriations or other income, pursuant to KRS 65.590.
A Riverport Authority member, pursuant to KRS 65.540(3), may be replaced by the appointing authority for a conflict of interest. Since the Riverport Authority is a governmental entity, the member in question would have a disqualifying or conflict of interest, provided it can be shown that, in the Authority's dealing with the member's bank, the member has derived a pecuniary interest or profit in the relationship, though the personal financial benefit is small. However, such financial interest would not be disqualifying where it cannot be reasonably calculated to affect the judgment of the member in conducting the affairs of the Riverport Authority. Commonwealth v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936).
As concerns the question about the significance of an attorney general's opinion, the old Court of Appeals, in Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171 (1940), ruled in effect that recipient govermental officials are expected to conform to the rulings of the Attorney General. Cottongim and KRS 15.020 clearly indicate that the Attorney General is the highest non-judicial legal officer in the Commonwealth. The Attorney General is the chief law officer of the Commonwealth. Thus it can be reasoned that the General Assembly did not, by enacting KRS 15.020 and 15.025, intend the doing of a vain or useless thing. County Board of Education v. Fiscal Court, 221 Ky. 106, 298 S.W. 185 (1927) 187. This concept of reasonable expectation of conforming to the Attorney General's opinion applies until a court decision decrees otherwise in a judicial case, or the General Assembly changes the law. There are innumerable questions presented by people in government to the Attorney General which never reach the courts. Thus the concept of conforming to such opinions is in the public interest, for reasons of consistency and uniform interpretation and administrative or executive action ensuing therefrom. The use of the term "advisory only", in connection with Attorney General opinions, is overly simplistic, meaningless and purposeless. The term "advisory" suggests the legal nature of the Attorney General's opinion function. The term "advisory only" is meaningless, since it in no way describes the legal effect of such opinions, as outlined in Cottongim, above. The new Court of Appeals, in referring specifically to Attorney General opinions in the context of litigation, is tacitly confirming the view expressed earlier in Cottongim, above. See Handy v. Warren County Fiscal Court, Ky.App., 570 S.W.2d 663 (1978) 664, 665, for example, wherein the court cited approvingly OAG 74-420 on the law relating to bidding process benefits. In addition, the court has ruled that governmental officers who rely upon an Attorney General's opinion would be acting in good faith. Babb v. Moore, Ky., 374 S.W.2d 516 (1964).
Your third question pertains to two city commissioners (of the city commission) who are both employees of your largest industry. You say they always vote, on the city commission, favorably concerning that industry.
Where it can be shown that their pecuniary and employment interest is reasonably calculated to affect their judgment on such city matters, the two city commissioners should refrain from attending city commission meetings at which questions relating to their industrial employer will be dealt with. Since under KRS 83A.030(2) a city commission consists of a voting mayor and four (4) commissioners, the absence of these two commissioners would still leave a quorum where the two remaining commissioners and mayor attend the meeting. See Commonwealth v. Withers, 266 Ky.29, 98 S.W.2d 24 (1936) 25, 26. The key there is the necessity for a substantial showing that the commissioners have an opportunity for discernable self-benefit, where a conflict of interest is claimed. Thus the interest is not sufficient to disqualify the officer if the opportunity for self-benefit is a mere possibility or is so remote or collateral that it cannot be reasonably calculated to affect their judgments in passing on city matters. The guidelines of Commonwealth v. Withers, above, were followed in McCloud v. City of Cadiz, Ky.App., 548 S.W.2d 158 (1977) 161, 162. Note that KRS 61.270 provides that if any officer of a fourth class city becomes directly or indirectly interested as an agent, principal or surety in any contract with the city, he shall thereby vacate his office, and the contract, if entered into while he is in office, shall be void. See the later case of Com. Ex Rel. Hancock v. Marshall, Ky.App., 559 S.W.2d 497 (1977), in which the court again followed the guidelines of Commonwealth v. Withers, above, and wrote that the doctrine prohibiting a public officer from personally profiting from the public's business was "based upon the principles of reason, of morality, and of public policy."
We appreciate your concern in the public interest and your interest in the functions of this office.