OAG 93-33


April 16, 1993






William M. Lear, Jr., Esq.

201 East Main Street

Suite 1000

Lexington, KY 40507-1380

Dear Mr. Lear:

On behalf of your client you request this office to issue an opinion relative to potential conflict of interest situations.

Under the first set of circumstances a member of the city-county planning commission is employed by an entity which owns real estate within the planning area. The land is designated on the comprehensive plan's future land use map for residential and industrial uses. When the plan was updated the member voted to place this land on the future land use map for the above-mentioned uses. Later when a portion of this property came before the planning commission on a zone change request the member refrained from voting on the change because he was an employee of the property owner.

Following the inclusion of his employer's land on the future land use map, the member has consistently opposed other zone change requests for land located within a short distance of his employer's land. He has voted to recommend that such requests be denied by the legislative body having jurisdiction. If these other requests had been approved for residential and industrial uses the property would have been competitive with the property owned by the member's employer.

Under the second set of circumstances a member of the city-county planning commission owns a large tract of land within the planning area. When the current comprehensive plan was adopted for the planning unit, the member voted to designate her land on the future land use map for residential use. This member has consistently opposed other proposed residential land uses. These other properties, if zoned for residential uses, would be competitive with the property owned by the member of the planning commission.

You then present the following list of questions:

1. Should either or both of these Planning Commission members be disqualified from discussions or taking any action (either as members of the Planning Commission or as a part of committees working with or at the direction of the Planning Commission) on the following:

(a) Decisions to designate land owned by the member or the member's employer on a Future Land Use Map of the Comprehensive Plan?

(b) Decisions made with regard to the designation of other lands, which might be competitive with land owned by the Planning Commission member of the member's employer?

2. Should either or both of these Planning Commission members be disqualified from taking part in discussions or votes on zone map amendment requests for:

(a) Land owned by the member or the member's employer?

(b) Other properties which might reasonably be deemed competitive with lands owned by the Planning Commission member or the member's employer?

You have not furnished us with any of the research you have done relative to the fact situations and questions presented nor have you set forth any tentative conclusions of your own.

The only statute we can find dealing with conflicts of interest of planning commission members is KRS 100.157(1). That statute provides in part that a planning commission member may be removed for several reasons, including conflict of interest, but it does not define what constitutes a conflict of interest.

In 4 McQuillin Mun. Corp. (3rd Ed.), §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 that might affect their judgment. Public policy forbids the sustaining of municipal action founded upon a vote of a council member or a member of a municipal governing body in any matter before it which directly or immediately affects him or her 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. In addition, an individual member ordinarily cannot vote on a matter in which that member or his or her employer is interested.

In connection with public policy it should be noted that it is against public policy for a person to vote on a matter of even an indirect interest to him. See the cases of City of Springfield v. Haydon, 216 Ky. 483, 288 S.W. 337, 341 (1926) and Davis v. City of Jenkins, Ky., 238 S.W.2d 475 (1951).

In 67 C.J.S., Officers, §204, it is stated that a public office is a public trust and the officeholder may not use it directly or indirectly for personal profit or to further his own interests, since it is the policy of the law to keep an official so far from temptation as to insure his unselfish devotion to the public interest. See, Katz v. Brandon, Conn., 245 A.2d 579 (1968). Officers are not permitted to place themselves in a position in which personal interest may come into conflict with the duty they owe to the public.

In 67 C.J.S., Officers, §204, at page 668, the following appears in part:

Whether a particular interest is sufficient to disqualify is a factual question, depending on the circumstances of the particular cases, and the question is always whether the circumstances could reasonably be interpreted to show that they had the likely capacity to tempt the official to depart from the sworn public duty. The public officer's personal advantage, pecuniary or otherwise, is one of the elements to be considered in determining whether a conflict of interest situation exists, but it is not the only test, and the officer's good faith is not of controlling importance.

In Bracey v. City of Long Branch, 73 N.J. Super. 91, 179 A.2d 63 (1962), it is stated that, "The public is entitled to have its representatives perform their duties free from any personal or pecuniary interest which might affect their judgments. 'The law tolerates no mingling of self interest; it demands exclusive loyalty.'" A public officer may not place himself in a position where his private interest conflicts with his public duty. Housing Authority of City of New Haven v. Dorsey, 164 Conn. 247, 320 A.2d 820 (1973); 63 Am.Jur.2d, Public Officers and Employees, §§280 and 281.

As noted in 67 C.J.S., Officers, §204, at page 671, conflict of interest provisions are strictly enforced and construed against the officer involved.

The term "conflict of interest" and a public officer's voting on a matter in which he has an interest are also discussed in 67 C.J.S., Officers, §204:

As a general rule, the term 'conflict of interest' refers to a clash between public interest and the private pecuniary interest of the individual concerned, and there is a conflict of interest when a public officer votes on a matter in which he has a direct personal and pecuniary interest. The interest which disqualifies is a personal or private one, not such an interest as the public officer has in common with all other citizens. According to some authority, in order to constitute a disqualification, the personal pecuniary interest of the official must be immediate, definite, and capable of demonstration, and may not be remote, uncertain, contingent and speculative . . . .

The court, in Preston v. Gillam, N.H., 184 A.2d 462 (1962), said it is a general rule of law that a conflict of interest exists when a public officer votes on a matter in which he has a direct personal and pecuniary interest. However, in all matters where his interest is the same as that of any other citizen, his right to vote cannot be questioned. Whether a conflict of interest exists is ordinarily factual and depends upon the circumstances of the particular case.

In connection with voting on a matter by a public official, the court in Netluch v. Mayor and Council of the Borough of West Paterson, 130 N.J. Super. 104, 325 A.2d 517, 520 (1974), said:

The personal or private interest which disqualified may be identified generally as one which is different from that which the public officer holds in common with members of the public. Aldom v. Roseland, supra, at 507, 127 A.2d 190 . . . .

Finally, in 83 Am.Jur.2d, Zoning and Planning, §25, it is stated that the personal interest of a person may disqualify him from serving on a planning commission since the commission acts in a quasi-judicial capacity and must reach conclusions uninfluenced by extraneous considerations. "Personal interest" is either an interest in the subject matter or a particularly personal relationship with one of the parties.

The authorities that we have examined are in agreement that whether a public official has a conflict of interest is a factual question requiring a determination whether his interest is sufficiently direct and personal to cause his judgment to be subject to question. Under the facts presented to us, we do not know the nature of the commission member's relationship with his employer nor the nature and extent of the possible benefits that the employer could receive. If the member stands to benefit personally from actions that inure to the benefit of his employer, then his interest is probably sufficiently direct to require his disqualification. On the other hand, if the commission's actions in a particular circumstance provide a relatively feeble benefit to the employer, and if that benefit is so slight that it could not in turn favorably affect the member to an observable extent, then the member probably would not have an interest that would require his disqualification.

We hope this analysis provides you with sufficient information to enable you to apply the applicable legal principles to the particular facts pertinent to your inquiry.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL





Thomas R. Emerson

Assistant Attorney General

(502) 564-7600

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