OAG 93-38

April 21, 1993

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 offices provisions.

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 repugnant.

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 county attorney.




Thomas R. Emerson

Assistant Attorney General

(502) 564-7600