Could Irvington's city council fund and hire its own lawyer if that lawyer employed a council member?

Plain-English summary

Irvington's mayor asked whether the city council could shift budget funds from the city attorney to an attorney employed by the council. The Attorney General said the council could amend its budget and hire its own attorney. The opinion relied on the council's budget authority and on the mayor's appointment power expressly excluding council employees.

The proposed lawyer employed a council member as a paralegal. The AG said the council could not enter that contract unless the requirements of KRS 61.252(1)(c) were met. Those requirements included public disclosure of the transaction and the officer's interest, an official record of that disclosure, a finding that the contract served the public and city for specific reasons, and a record of the finding before execution.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the council hire its own attorney despite the mayor's employee appointment power?

The AG said yes. KRS 83A.130 gave the council budget authority, and the mayor's appointment power excluded council employees. The council could fund the position by amending the budget.

Did the lawyer's employment of a council member automatically rule out the contract?

The AG said the contract could proceed only if the requirements of KRS 61.252(1)(c) were met. It identified public disclosure and a recorded public-interest finding before the contract was executed.

Which budget amendment citation did the opinion use?

The opinion's syllabus and statute list say “KRS 91.030,” while its analysis and conclusion say “KRS 91A.030.” This page follows the analysis when describing the budget amendment and preserves both versions in the original text below.

Background and statutory framework

KRS 83A.130 divided city executive and legislative authority, reserved appointment of council employees from the mayor's general employee appointment power, and gave the council budget authority. The AG applied those provisions to a council attorney position. It separately applied KRS 61.252(1)(c) to the proposed attorney's employment relationship with a council member.

Citations

• KRS 83A.130 (mayor and council powers).
• KRS 91A.030 (budget amendment, as cited in the analysis).
• KRS 61.252(1)(c) (contract disclosure and finding requirements).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Pages/Opinions.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2019-020.pdf

Original opinion text

OAG 19-020

November 15, 2019

Subject: Whether the Irvington City Council has the authority to
amend the city budget to redirect the funds for a city attor- ney to a newly created position of an attorney for the City Council; whether the City Council may hire an attorney who employs a city council member as a paralegal.

Requested by: Yvonne Kennedy, Mayor

Written by: Taylor Payne, Assistant Attorney General

Syllabus: A city council may amend a budget in accordance with KRS
91.030 and hire its own attorney as a city council employee.
A city council may not hire an attorney who employs a city council member unless the requirements of KRS 61.252 are met.

Statutes construed: KRS 83A.130; KRS 91.030; KRS 61.252

Opinion of the Attorney General

Yvonne Kennedy, Mayor of the City of Irvington, Kentucky, has requested an opinion of this office to address whether the Irvington City Council has the authority to amend the city budget to redirect the funds for a city attorney to a newly created position of an attorney for the City Council. The Mayor informs this office that the City Council intends to hire the former city attorney she fired and that the former city attorney employs a member of the City Council as a paralegal. The Mayor further asks whether this presents a conflict of interest.

The duties and powers of mayors and city councils under a mayor-council plan of local government are set forth in KRS 83A.130. That statute vests all

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executive authority of a city in the office of the mayor and all legislative authori- ty of a city in the city council. KRS 83A.130(2) and (11). In particular, the mayor is the “appointing authority with power to appoint and remove all city employees .
. . except as tenure and terms of employment are protected by statute, ordinance or contract and except for employees of the council.” KRS 83A.130(9) (emphasis added). The council provides for the revenue to operate the city government and appropriates funds of the city in a budget. KRS 83A.130(12). It may amend the budget by ordinance in accordance with KRS 91A.030.

Based on KRS 83A.130(9) and (12), the city council has the authority to appropriate city funds in a budget and has the authority to hire its own employ- ees pursuant to that budget. Therefore, the Irvington City Council may hire its own attorney after amending the budget in accordance with KRS 91A.030 to provide the necessary funding.

As to the second question, Kentucky law does not contemplate a conflict between public office and private employment. Rather, KRS 61.252 prohibits any city officer from directly or through others from holding or enjoying any contract entered into by the officer’s city unless certain criteria exist. For instance, this prohibition does not apply if:

1. The specific nature of the contract transaction and the nature of the officer's or employee's interest in the contract are publicly dis- closed at a meeting of the governing body of the city or city agency;

2. The disclosure is made a part of the official record of the govern- ing body of the city or city agency before the contract is executed;

3. A finding is made by the governing body of the city or city agen- cy that the contract with the officer or employee is in the best inter- ests of the public and the city or city agency because of price, sup- ply, or other specific reasons; and

4. The finding is made a part of the official record of the governing body of the city or city agency before the contract is executed.

KRS 61.252(1)(c).

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In this instance, we do not believe that the city council could enter a contract with an attorney who employs a city council member as a paralegal unless the requirements of KRS 61.252(1)(c) are met.

ANDY BESHEAR
ATTORNEY GENERAL

Taylor Payne
Assistant Attorney General