Could a Kentucky fiscal court member also sit on a county tourism commission in 1999?

Plain-English summary

A state senator asked whether a fiscal court member could also be appointed to a county tourist commission. The Attorney General answered yes, with a qualification. It concluded that the offices were not inherently incompatible under Kentucky's constitution or KRS 61.080, whether the commission was created by a county alone or jointly with a city. The county judge/executive, rather than the fiscal court, held the relevant appointment power, so appointing a fiscal court member other than the judge/executive was not self-appointment by the fiscal court.

The opinion found no inherent statutory or common-law conflict in that arrangement. It warned that particular facts could create a conflict. Its example was a fiscal court appropriation to the tourism commission: the fiscal court member serving on that commission would have to refrain from voting on the appropriation.

Currency note

This opinion was issued in 1999. 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

Q: Could a Kentucky fiscal court member also serve on a county tourism commission? A: The Attorney General said yes. It found no inherent incompatibility between these specific offices and no automatic conflict from serving on both.

Q: Who appointed members of the tourist commission in the arrangement the opinion examined? A: The opinion said the county judge/executive had the county appointment authority under KRS 91A.360(1), with the mayor joining in appointments to a commission created jointly by city and county. The fiscal court itself did not make the appointment.

Q: Could the fiscal court appoint one of its own members if it held the appointment power? A: No. The opinion said the common-law rule against self-appointment would bar that situation. It distinguished appointment by the county judge/executive of another fiscal court member.

Q: What if the fiscal court voted to fund the tourism commission? A: The opinion gave that as an example of a case-specific conflict and said the fiscal court member on the commission would have to refrain from voting on the appropriation.

Background and statutory framework

The opinion read KRS 91A.360(1) to place appointments with the local government's chief executive. It then considered the constitution's prohibition on incompatible offices and the more specific list in KRS 61.080. A joint city-county tourism commission was treated as a hybrid agency; a county-only commission was treated as a county office. Neither arrangement made these two positions incompatible under the provisions the opinion examined. It separately applied the common-law objection to an appointing body selecting one of its own members and distinguished that from the county judge/executive's appointment.

Citations and references

Statutes: KRS 91A.360(1); KRS 61.080.

Case: Meglenery v. Weissinger, 140 Ky. 353, 131 SW 40, 41 (1910).

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_a8dc3737-a54a-49f9-b8c6-becf626edfc5/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_a8dc3737-a54a-49f9-b8c6-becf626edfc5

Original opinion text

OAG 99-4
April 16, 1999
Subject:

Whether a member of fiscal court may also serve as an appointed member of a county tourism commission as established in KRS 91A.360.

Requested by:

The Honorable Richard A. “Richie” Sanders, Jr. Kentucky State Senator

Written by:

Amye L. Bensenhaver

Syllabus:

A member of a fiscal court may also serve as an appointed member of a county tourism commission. These offices are not incompatible, and no statutory or common law conflict of interest exists, although a common law conflict could arise.

Statutes construed:
OAGs cited:

KRS 91A.360

OAG 84-384; OAG 76-257; OAG 78-238

Opinion of the Attorney General
You have requested an opinion from this office on a question arising under KRS 91A.360. Specifically, you ask whether a member of the fiscal court may also serve as an appointed member of a county tourist commission. The answer to your question is a qualified “yes.” Our analysis begins with an examination of KRS 91A.360(1). That statute provides:

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The commission established pursuant to subsection (2) of KRS 91A.3501 shall be composed of seven (7) members to be appointed, in accordance with the method used to establish the commission. Members of a commission established by joint action of the local governing bodies of a county and a city or cities located therein shall be appointed, jointly, by the chief executive officers of the local governing bodies that established the commission. Members of a commission established by separate action of the local governing body of a county or a city located therein shall be appointed separately by the chief executive officer of the local governing body that established the commission. The chief executive officer of a city shall mean the mayor and the chief executive officer of a county shall mean the county judge/executive. The appointing authority, in the case of commissions established by joint action of the city and county or by separate action of the county, resides in the chief executive officer of the local governing bodies. Thus, the mayor of a city and the county/judge executive of a county are vested with sole authority to make appointments to local tourist commissions. Neither the city council nor the county fiscal court participate in the appointment process. Clearly, a member of the fiscal court is a county officer. It is the opinion of this office that membership on the fiscal court and on a local tourist commission does not run afoul of the constitutional and statutory prohibition on incompatible offices. Section 165 of the Constitution of Kentucky provides: No person shall, at the same time, be a state officer or a deputy officer or member of the General Assembly, and an 1

Subsection (2) of KRS 91A.350 states:
The local governing bodies of counties containing cities of the second through sixth classes and the local governing bodies of the cities of the second through sixth classes located therein may, by joint or separate action, establish tourist and convention commissions for the purpose of promoting convention and tourist activity.

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officer of any county, city, town, or other municipality, or an employe thereof; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities, except as may be otherwise provided in this Constitution; but a Notary Public, or an officer of the militia, shall not be ineligible to hold any other office mentioned in this section. KRS 61.080, which is more specific as to what public offices are incompatible, provides: 1) No person shall, at the same time, be a state officer, a deputy state officer or a member of the General Assembly, and an officer of any county, city or other municipality, or an employee thereof. (2) The offices of justice of the peace, county judge/executive, surveyor, sheriff, deputy sheriff, coroner, constable, jailer and clerk or deputy clerk of a court, shall be incompatible, the one (1) with any of the others. The office of county judge/executive and county school superintendent are incompatible. 3) No person shall, at the same time, fill a county office and a municipal office. (4) No person shall, at the same time, fill two (2) municipal offices, either in the same or different municipalities. (5) The following offices shall be incompatible with any other public office: (a) Member of the Public Service Commission of Kentucky; (b) Member of the Workers' Compensation Board; (c) Commissioner of the fiscal court in counties containing a city of the first class; (d) County indexer; (e) Member of the legislative body of cities of the first class; (f) Mayor and member of the legislative body in cities of the second class; and

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(g) Mayor and member of council in cities of the fourth class. (6) No office in the Kentucky active militia shall be incompatible with any civil office in the Commonwealth, either state, county, district or city. Regardless of whether the local tourist commission is established by joint city and county action or by separate action, we see no problem with a member of the fiscal court serving as a member of the commission under either constitutional or statutory provision. If a joint city county tourist commission has been established, no incompatibility exists because the commission is a hybrid agency (neither city only nor county only). Such an agency is not contemplated by the incompatibility provisions. We believe that a county officer can be appointed to the commission without violating Section 165 or KRS 61.080. See, for example, OAG 84-384, OAG 76257, and OAG 75-238. If, on the other hand, a county only tourist commission has been established, membership on the tourist commission would be deemed a county office. We believe that a county officer can be appointed to commission without violating Section 165 or KRS 61.080. Although certain county offices, identified in KRS 61.080, may be incompatible with other county offices, neither of these provisions prohibit the same individual from holding these specific offices (member of fiscal court and appointed member of county tourist commission). Turning to the issue whether such an appointment creates a conflict of interest for the fiscal court member, we begin by noting that conflicts of interest exist pursuant to either statutory provisions or principles of the common law. Thus, even where there are no controlling statutory provisions relating to conflicts of interest, common law conflicts may still arise. We do not believe that the appointment of a fiscal court member to a local tourist commission creates a statutory conflict of interest, there being no statutory prohibition on such an appointment. Nevertheless, the common law recognizes that a conflict may arise from a self-appointment, and that such an appointment is

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against public policy. This common law principle is premised on the notion that: municipal and other bodies of public servants should be free from every kind of personal influence in making appointments that carry with them services to which the public are entitled and compensation that the public must pay. And this freedom cannot in its full and fair sense be secured when the appointee is a member of the body and has the close opportunity his associations and relations afford to place the other members under obligations that they may feel obliged to repay. Meglenery v. Weissinger, 140 Ky. 353, 131 SW 40, 41 (1910); Smith v. McDermott, 313 Ky. 184, 230 SW2d 636 (1950); Lemon v. Fiscal Court of Casey County, Ky.App., 291 SW2d 572 (1956); OAG 82-94; OAG 84384. Accordingly, a fiscal court could not, if it had the power of appointment, appoint one of its own members to a local tourist commission. Because the power of appointment resides solely in the county judge/executive, the appointment by the county judge of a member of the fiscal court (other than the county judge himself) to the commission, does not constitute self appointment and does not create a conflict of interest. In closing, we note that although there is no inherent conflict of interest when a member of the fiscal court is appointed to serve on a local tourist commission, a conflict could arise under a particular set of facts.2 This office cannot anticipate every conceivable factual situation from which a conflict might arise. In answer to the narrow question you present, however, we believe that no inherent conflict of interest exists. Albert B. Chandler III Attorney General

2

For example, if the fiscal court were empowered to appropriate funds to the tourist

commission, the fiscal court member who has been appointed to the tourist commission would be obliged to refrain from voting on the appropriation.

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Amye L. Bensenhaver
Assistant Attorney General