Request By:
Hon. Drexell R. Davis
Secretary of State
Office of Secretary of State
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of January 5 in which you present the following facts and question.
"I am faced with the following situation. State Board of Elections member Nancy Wake has applied for the position of Executive Director of the State Board of Elections. My question is as follows. Is Mrs. Wake entitled to participate in the discussion of applicants for the position of Executive Director of the State Board of Elections and, further, is she entitled to cast a vote for said appointment?"
Our response to the above question would be in the negative. For a member of the Board to either participate in the discussion of the applicants for the position of Executive Director or to cast a vote in filling the position (KRS 117.025), for which said member is a candidate, would create a common law conflict of interest as being against public policy and self-serving.
Referring to the case of
Buchignani v. Lexington-Fayette Urban Co. Gov., Ky. App., 632 S.W.2d 465 (1982), the court declared that a public office is a public trust and holders of such office may not directly or indirectly use it for personal profit or gain. In the case of
City of Springfield v. Haydon, 216 Ky. 483, 288 S.W. 337 (1926), the court held that a councilman having an interest in a matter could not vote. Also, from McQuillin, Mun. Corp., Vol. 4, Sec. 13.35 we quote the following:
"The public is entitled to have its representatives perform their duties free from any personal or pecuniary interest which might affect their judgment. Public policy forbids the sustaining of municipal action founded upon a vote of a councilman or a member of a municipal governing body in any matter before it which directly or immediately affects him individually. . . . So members of the legislative body should not be permitted to act in matters before them, as a body, in which they are either directly or indirectly pecuniarily interested."
Reference is also made to 63 Am. Jur., Public Officers and Employees, Sec. 96.
Under the circumstances, we are of the opinion that Mrs. Wake, a member of the State Board, who has applied for the position of Executive Director of the Board cannot legally participate in the Board's discussion of the applicants for this position, or cast a vote with respect to the filling of this position.