Request By:
Mark E. Gormley, Esq.
Woodford County Attorney
Third Floor, Courthouse
Versailles, Kentucky 40383
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your letter raises questions concerning a fiscal court member's participation in a zoning matter.
A particular magistrate made a motion before the fiscal court to initiate a zoning change. He set forth his reasons in his motion, the motion was seconded and passed, and the proposed zone change is in process. The same magistrate serves as chairman of the fiscal court's planning and zoning subcommittee and is the fiscal court's representative on the Versailles-Midway-Woodford County Planning and Zoning Commission.
Allegations have been made that this magistrate should not participate in or vote on the zone change proposal as a member of the planning and zoning commission. The matter will come back to the fiscal court with a recommendation for approval or disapproval and the magistrate, as a member of the fiscal court, would be faced with voting on the matter again.
Your specific questions are whether this magistrate may vote on the zone change proposal as a member of the planning and zoning commission and as a member of the fiscal court when the matter reaches that body.
The magistrate is, of course, a member of the fiscal court (KRS 67.040) and thus may, as a general proposition, vote on any matter before that body.
Presumably, the magistrate has been properly appointed as a member of the city-county planning and zoning commission. In OAG 71-204, copy enclosed, at page two, we said in part that, generally, any member of the planning and zoning commission, including those public officials on the commission, has the right to vote on any official business before the commission.
An exception to the general right of the magistrate to vote on the zoning change proposal before the planning and zoning commission and the fiscal court would be if the magistrate has a direct or indirect interest in the outcome of the zone change proposal. Your letter neither maintains, infers nor implies that this magistrate has a personal interest in the outcome of the zone change proposal.
We would point out, however, that it is against public policy for a person to vote on a matter of even an indirect interest to him. See the case of
City of Springfield v. Haydon, 216 Ky. 483, 288 S.W. 337, 341 (1926) and the enclosed copy of OAG 80-293.
In McQuillin Mun. Corp. (3rd Ed.), Vol. 4, § 13.35, the following appears in part:
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.
Generally, the motive of a public official as to why he voted as he did is not a factor that the courts consider in determining whether a zoning ordinance is valid.
In 82 Am.Jur.2d, Zoning and Planning, § 31, relative to the motives of members, the following appears:
While the authorities are in agreement that there is a presumption that a municipal authority, such as a zoning authority, acts with proper motives, they are not agreed as to whether such presumption is conclusive or rebuttable. Most courts follow the general rule, applicable to municipal ordinances generally, that if a statute appears on its face to be constitutional and valid, the court cannot inquire into the motives of the legislature. Consequently, they refuse to consider, in determining the validity of a zoning ordinance, the motives of the municipal zoning authority which approved or adopted the ordinance. It has been said in this respect: 'If the conditions justify the enactment of the ordinance, the motives prompting its enactment are of no consequence. If the conditions do not justify the enactment, the inquiry as to motive becomes useless.'
The court in
City of Louisville v. Bryan S. McCoy, Inc., Ky., 286 S.W.2d 546, 549 (1956) said in part that "Regardless of this, it is well settled that the courts will not inquire into the motives that impel legislative action."
See also the annotation in 71 ALR 2d 568 entitled "Motive of members of municipal authority approving or adopting zoning ordinance or regulation as affecting its validity."
Therefore, on the assumption that the magistrate with whom you are concerned is neither directly nor indirectly pecuniarily interested in the outcome of the proposed zoning change, he may vote on that matter, both as a lawfully appointed member of the city-county planning and zoning commission and as a member of the fiscal court.