Phyllis Lee Sharp Mattingly, Esq.
137 North Main Street
P. O. Box 468
Versailles, KY 40383
Dear Ms. Mattingly:
This is in reply to your letter concerning incompatible offices, conflicts of interest, and
planning and zoning.
You ask whether it would create an incompatibility or a conflict of interest or be unethical
for an attorney representing the planning and zoning commission (who is not a paid employee of
the commission but held on retainer) to serve as an assistant county attorney. As an assistant
county attorney, the person would be present at fiscal court meetings and could be called upon to
render advice to the fiscal court on zoning matters.
KRS 61.080 and Section 165 of the Kentucky Constitution deal with incompatible
offices. Those provisions would not appear to be applicable to your fact situation.
While the county attorney and an assistant county attorney are county officers (OAG 77-779 and OAG 80-341), an attorney on retainer with a planning and zoning commission would not
be a state, city or county officer. Such a person would be an independent contractor as far as his
relationship with the commission is concerned. See OAG 81-214 and OAG 83-138, copies of
which are enclosed. In addition, if the planning commission were a joint city-county commission
as opposed to either a city or a county agency, even the officers and employees of such a joint
undertaking would not be considered county or city employees for purposes of the incompatible
KRS 69.210 sets forth many of the duties of the county attorney. While the statute does
not specifically state that he must advise the fiscal court relative to planning and zoning matters
the statute clearly implies such a duty. In addition, the county attorney may be requested to advise
the planning commission concerning county interests. The interests of the fiscal court and the
planning commission in regard to planning and zoning matters may not always be compatible.
Thus the common law concepts of incompatibility would prohibit the same person from serving
concurrently as assistant county attorney and attorney for the planning commission.
In OAG 82-377, copy enclosed, we dealt in part with common law incompatibility and, at
page three of that opinion, we cited the cases of Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122
(1917) and Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937). See particularly pages
144-145 of the opinion in Polley, supra, where the court said an incompatibility arises if one
office or position is subordinate to the other, or the performance of one interferes with the
performance of the duties of the other, or if the functions of the two are inconsistent or
Common law concepts of conflicts of interest would also prohibit the proposed
arrangement with which you are concerned.
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 case,
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, 179A.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.
As far as legal ethics are concerned you will have to present such matters to the Kentucky
Bar Association as this office has no jurisdiction to resolve those issues.
In our opinion, for the reasons set forth above, an attorney functioning as an independent
contractor for a planning and zoning board could not at the same time serve as an assistant
Thomas R. Emerson
Assistant Attorney General