Must a Kentucky planning commissioner recuse himself when a competing engineering firm brings a zoning application?

Plain-English summary

In 1997, Kentucky's Attorney General concluded that the chairman of a joint city-county planning commission was not disqualified merely because another engineering firm, potentially a competitor of his own firm, brought a matter before the commission. The suggested benefit to his business depended on several uncertain events. The opinion said the conflict statute required more than a hypothetical chance of financial gain.

The AG reached a different kind of limit on the chairman's other role as Florence city engineer: it could not decide whether holding both positions was incompatible without facts about their duties and his appointment. The opinion also corrected earlier informal correspondence that had treated the joint commission as a county agency.

Currency note

This opinion was issued in 1997. 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.

Historical summary

Commission members and zoning applicants

The chairman owned an engineering firm that sometimes represented applicants before the commission. According to the facts given to the AG, he left the room for his firm's matters but participated when other firms brought applications. KRS 100.171(1) required a member with a direct or indirect financial interest in a question to disclose that interest and refrain from voting. The AG found no demonstrated financial interest arising solely from the possibility that another firm's unsuccessful client might later hire the chairman's firm. It said evidence that he actually gained such clients could present a different question for a court.

The chairman's city job

The AG treated the commission as a joint city-county body. It said the constitutional and statutory rules it discussed for state, county, or city offices, and the county ethics code, did not govern this hybrid body's compatibility question. Under the common-law test it described, incompatibility could arise from subordination, interference with duties, or inconsistent functions. The AG lacked enough facts to apply that test to the planning commission position and the city engineer position.

Common questions

Does a planning commissioner have to recuse himself whenever a competitor files a zoning application?

The AG said no on the facts presented. It rejected a chain of hypothetical events in which a disappointed client might switch engineering firms, while leaving open a different result if evidence showed an actual benefit.

Which conflict rule did the AG apply to this joint commission?

It applied KRS 100.171(1), which addressed a commission member's direct or indirect financial interest. Because a statute covered these conflicts, the AG said the common-law conflict rule did not also apply.

Could the chairman serve as both a commission member and the Florence city engineer?

The AG did not decide. It said the record lacked the details needed to determine whether one role was subordinate to the other, interfered with its duties, or had inconsistent functions.

Background and statutory framework

The opinion concerned the Boone County Planning Commission, which the AG identified as a joint city-county commission under KRS 100.121 despite its name. It quoted the disclosure and voting rule in KRS 100.171(1), discussed the Kentucky Court of Appeals' reading of that rule in City-County Planning Commission of Warren County v Jackson, and used Hermann v Lampe and Polley v Fortenberry for the common-law incompatibility test. It expressly superseded earlier informal correspondence on the commission's character.

Citations and references

• KRS 100.121: joint commission's creation, as described by the opinion.
• KRS 100.171(1): direct or indirect financial interests of planning commissioners.
• KRS 61.080 and KRS 65.003: office-compatibility and county ethics provisions the opinion discussed.
• City-County Planning Commission of Warren County v Jackson, Ky App, 610 SW 2d 930 (1981): the opinion's account of the conflict statute.
• Hermann v Lampe, 175 Ky 109, 194 SW 122 (1917), and Polley v Fortenberry, 268 Ky 369, 105 SW 2d 143 (1937): common-law incompatibility.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_e867c456-393a-4577-9ded-cbaee0cc1fdc/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_e867c456-393a-4577-9ded-cbaee0cc1fdc

Original opinion text

OAG 97-21
July 18, 1997

Subject:

Conflicts of interest and incompatible offices provisions applicable to members of a joint city/county planning commission

Requested by:

Fred V. Short

Written by:

Ross T. Carter

Syllabus:

(1) For members of a joint city-county planning commission, conflicts of interest are defined by statutory provisions, while incompatible offices are defined by the common law. (2) Member of joint city-county planning commission does not have conflict of interest based on speculative assumption that he benefits by disapproving proposals presented by his competitors.

Statutes construed:

KRS 100.157; KRS 100.171(1)

Opinion of the Attorney General
This opinion discusses the conflict of interest and incompatible
offices provisions applicable to members of a joint city-county planning commission. The questions presented to us involve a particular member of the Boone County Planning Commission. Despite its name, that entity is not a county agency or a county planning commission, but a joint

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city-county planning commission established under KRS 100.121. Earlier correspondence from this office reflected our incorrect assumption about the nature of this planning commission, and this formal opinion is provided to clarify the matter. This opinion supersedes what was said earlier in informal correspondence. The facts are these: the chairman of the Boone County Planning Commission owns an engineering firm that occasionally represents applicants in proceedings before the commission. The chairman recuses himself and leaves the room before the commission discusses matters submitted by the chairman’s firm. The chairman does not recuse himself when the commission hears applications prepared by other firms that might be described as his competitors. The chairman is also employed by the city of Florence as its city engineer. Conflicts of interest The question originally submitted to us asked about common law conflict of interest provisions applicable to the chairman. The answer to this question is that there are none. The common law provisions regarding a public officer’s conflicts of interest apply only in the absence of a statute on the subject; that is to say, conflicts of interest can derive from statutes or the common law but not both. OAG 81204. Because there is a specific statute applicable to conflicts of interest involving members of joint city-county planning commissions (KRS 100.171), the common law does not apply. Although we were not asked about statutory conflicts of interest, we will address that topic in an attempt to provide useful guidance to the interested parties. The applicable portion of KRS 100.171(1) says: Any member of a planning commission who has any direct or indirect financial interest in the outcome of any question before the body shall disclose the nature of the interest and shall disqualify himself from voting on the question, and he shall not be counted for the purpose of a quorum. As a general rule, the object of conflict of interest statutes is to avoid any conflict of interest by the officers and employees of governmental entities and to remove or limit the possibility of personal influence, direct or indirect, relative to an officer’s decision. In 67 CJS, Officers § 204, the following discussion appears:

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Such statutes have been held to be declaratory of the
common law, and are strictly enforced and construed
against the officer involved. Within the conflict of interest
statutes, the term “interest,” for purposes of disqualification, does not mean a mere abstract interest in the general subject or a mere possible contingent interest, but refers to a pecuniary or proprietary interest by which a person will gain or lose something, as contrasted to general sympathy, feeling, or bias. In City-County Planning Commission of Warren County v Jackson, Ky App, 610 SW 2d 930 (1981), the court gave a more relaxed interpretation of KRS 100.171(1) than the preceding excerpt from CJS would suggest as appropriate. Citing a case from Connecticut, the court noted that “local governments would be seriously impaired if every conceivable interest would disqualify a member.” The court did not provide a clearly defined standard under which the statute is to be applied, but it provided the following remarks describing the sort of conflict the statute is designed to prevent:
 A zoning official may not use his official power to further
his own interest.
 A disqualifying interest is either a particularly personal relationship with one of the parties, or an interest in the subject matter.
 Requirements for disqualification were created for situations such as the zoning official’s ownership of land that would be directly enhanced or diminished in value by the zoning process.
 The purpose of the conflict of interest statute is to prevent
direct and indirect financial enrichment to the board member or his business associates who have property or matters for consideration by the commission. With these guidelines in mind, we do not believe that the statute should be construed to equate an indirect interest with a speculative interest. A direct interest affects the member’s immediate personal or financial status. An indirect interest affects that status through an intervening party, such as a close family member. A speculative interest requires the happening of a series of events over which the member

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has no control. In the context presented to us, it is proposed that the
member in question has an indirect interest in the success of his firm’s
competitors; that is, if his firm’s competitors unsuccessfully represent
a client in a zoning matter, the client might be tempted to do future
business with the member’s firm on the assumption that the zoning
proposal would be more likely to be approved.
This train of events is to say the least highly speculative, if not
fanciful. One can always imagine a hypothetical sequence of events
that lead eventually to the enrichment of a member. A zoning change
affects the entire community, and its ripples are likely to be felt by all
citizens, including those who sit on the planning commission. An indirect conflict does not exist simply because one can imagine a situation in which a planning commission member may be affected. A statutory conflict requires more than a raised eyebrow; it requires some demonstrable likelihood that the conflict will arise. The question is presented to us in a purely hypothetical context. We have no evidence that the member in question has been enriched because he obtained clients who fled from his competitors. Were such facts in existence, the conflict would no longer be speculative and the matter could appropriately be considered by a court, where a different result might well be reached. Incompatible offices We have been asked whether the offices of Boone County Planning Commission member and city engineer for the city of Florence are incompatible. The Boone County Planning Commission is a joint city-county planning unit. It is not a state, county, or city agency but a hybrid entity not contemplated by the state constitution nor the general statute on incompatible offices, KRS 61.080. OAG 80-219; OAG 66-777. The county’s code of ethics is inapplicable because the commission is not a county agency. KRS 65.003. Common law incompatibility is discussed in the cases of Hermann v Lampe, 175 Ky 109, 194 SW 122 (1917), and Polley v Fortenberry, 268 Ky 369, 105 SW 2d 143 (1937). At pages 144-145 of the Polley case, the court said that an incompatibility arises if one office or position is subordinate to the other, or the performance of one inter-

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feres with the performance of the duties of the other, or if the function
of the two are inconsistent or repugnant.
We cannot determine from the facts and materials submitted
whether the holding of the two positions creates a common law incompatibility. We do not know the specifics of the relationship between the two positions nor do we know the circumstances of this commission member’s appointment to the commission. This issue, again, is best resolved by a court in which procedures exist for presenting facts and resolving conflicting versions of facts. Because the Attorney General is not a trier of fact, we can only provide our opinion of the law. A. B. Chandler III Attorney General

Ross T. Carter
Manager of the Opinions Branch