Request By:
The Honorable Richard A. "Richie" Sanders, Jr.
Kentucky State Senator
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Opinion of the Attorney General
You have requested an opinion from this office on a question arising under KRS 91A.360. Specifically, you ask whether a member of the fiscal court may also serve as an appointed member of a county tourist commission. The answer to your question is a qualified "yes."
Our analysis begins with an examination of KRS 91A.360(1) . That statute provides:
The commission established pursuant to subsection (2) of KRS 91A.350 1 shall be composed of seven (7) members to be appointed, in accordance with the method used to establish the commission. Members of a commission established by joint action of the local governing bodies of a county and a city or cities located therein shall be appointed, jointly, by the chief executive officers of the local governing bodies that established the commission. Members of a commission established by separate action of the local governing body of a county or a city located therein shall be appointed separately by the chief executive officer of the local governing body that established the commission. The chief executive officer of a city shall mean the mayor and the chief executive officer of a county shall mean the county judge/executive.
The appointing authority, in the case of commissions established by joint action of the city and county or by separate action of the county, resides in the chief executive officer of the local governing bodies. Thus, the mayor of a city and the county/judge executive of a county are vested with sole authority to make appointments to local tourist commissions. Neither the city council nor the county fiscal court participate in the appointment process.
Clearly, a member of the fiscal court is a county officer. It is the opinion of this office that membership on the fiscal court and on a local tourist commission does not run afoul of the constitutional and statutory prohibition on incompatible offices. Section 165 of the Constitution of Kentucky provides:
No person shall, at the same time, be a state officer or a deputy officer or member of the General Assembly, and an officer of any county, city, town, or other municipality, or an employe thereof; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities, except as may be otherwise provided in this Constitution; but a Notary Public, or an officer of the militia, shall not be ineligible to hold any other office mentioned in this section.
KRS 61.080, which is more specific as to what public offices are incompatible, provides:
1) No person shall, at the same time, be a state officer, a deputy state officer or a member of the General Assembly, and an officer of any county, city or other municipality, or an employee thereof.
(2) The offices of justice of the peace, county judge/executive, surveyor, sheriff, deputy sheriff, coroner, constable, jailer and clerk or deputy clerk of a court, shall be incompatible, the one (1) with any of the others. The office of county judge/executive and county school superintendent are incompatible.
3) No person shall, at the same time, fill a county office and a municipal office.
(4) No person shall, at the same time, fill two (2) municipal offices, either in the same or different municipalities.
(5) The following offices shall be incompatible with any other public office:
(a) Member of the Public Service Commission of Kentucky;
(b) Member of the Workers' Compensation Board;
(c) Commissioner of the fiscal court in counties containing a city of the first class;
(d) County indexer;
(e) Member of the legislative body of cities of the first class;
(f) Mayor and member of the legislative body in cities of the second class; and
(g) Mayor and member of council in cities of the fourth class.
(6) No office in the Kentucky active militia shall be incompatible with any civil office in the Commonwealth, either state, county, district or city.
Regardless of whether the local tourist commission is established by joint city and county action or by separate action, we see no problem with a member of the fiscal court serving as a member of the commission under either constitutional or statutory provision.
If a joint city county tourist commission has been established, no incompatibility exists because the commission is a hybrid agency (neither city only nor county only). Such an agency is not contemplated by the incompatibility provisions. We believe that a county officer can be appointed to the commission without violating Section 165 or KRS 61.080. See, for example, OAG 84-384, OAG 76-257, and OAG 75-238. If, on the other hand, a county only tourist commission has been established, membership on the tourist commission would be deemed a county office. We believe that a county officer can be appointed to commission without violating Section 165 or KRS 61.080. Although certain county offices, identified in KRS 61.080, may be incompatible with other county offices, neither of these provisions prohibit the same individual from holding these specific offices (member of fiscal court and appointed member of county tourist commission).
Turning to the issue whether such an appointment creates a conflict of interest for the fiscal court member, we begin by noting that conflicts of interest exist pursuant to either statutory provisions or principles of the common law. Thus, even where there are no controlling statutory provisions relating to conflicts of interest, common law conflicts may still arise. We do not believe that the appointment of a fiscal court member to a local tourist commission creates a statutory conflict of interest, there being no statutory prohibition on such an appointment.
Nevertheless, the common law recognizes that a conflict may arise from a self-appointment, and that such an appointment is against public policy. This common law principle is premised on the notion that:
municipal and other bodies of public servants should be free from every kind of personal influence in making appointments that carry with them services to which the public are entitled and compensation that the public must pay. And this freedom cannot in its full and fair sense be secured when the appointee is a member of the body and has the close opportunity his associations and relations afford to place the other members under obligations that they may feel obliged to repay.
Meglenery v. Weissinger, 140 Ky. 353, 131 SW 40, 41 (1910); Smith v. McDermott, 313 Ky. 184, 230 S.W.2d 636 (1950); Lemon v. Fiscal Court of Casey County, Ky.App., 291 S.W.2d 572 (1956); OAG 82-94; OAG 84-384. Accordingly, a fiscal court could not, if it had the power of appointment, appoint one of its own members to a local tourist commission. Because the power of appointment resides solely in the county judge/executive, the appointment by the county judge of a member of the fiscal court (other than the county judge himself) to the commission, does not constitute self appointment and does not create a conflict of interest.
In closing, we note that although there is no inherent conflict of interest when a member of the fiscal court is appointed to serve on a local tourist commission, a conflict could arise under a particular set of facts. 2 This office cannot anticipate every conceivable factual situation from which a conflict might arise. In answer to the narrow question you present, however, we believe that no inherent conflict of interest exists.
Footnotes
Footnotes
1 Subsection (2) ofKRS 91A.350 states:
The local governing bodies of counties containing cities of the second through sixth classes and the local governing bodies of the cities of the second through sixth classes located therein may, by joint or separate action, establish tourist and convention commissions for the purpose of promoting convention and tourist activity.
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2 For example, if the fiscal court were empowered to appropriate funds to the tourist commission, the fiscal court member who has been appointed to the tourist commission would be obliged to refrain from voting on the appropriation.
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