No.

Paula Herzmark Department of Local Affairs 1313 Sherman Street, Room 518 Denver, Colorado 80203

Dear Ms. Herzmark:

I am writing in response to your June 9, 1980 request for an attorney general's opinion on the interpretation of C.R.S. 1973,31-4-404 (1977 repl. vol. 12).

QUESTION PRESENTED AND CONCLUSION

Your request presents the following question:

Whether C.R.S. 1973, 31-4-404 prevents a town trustee from contracting with the town to perform work and receive compensation for that work?

My conclusion is "yes." C.R.S. 1973, 31-4-404 prohibits any member of a governing body of a town from being directly or indirectly interested in the profits of any contract for work or services to be performed for the town.

ANALYSIS

C.R.S. 1973, 31-4-404 provides as follows:

During the time for which he has been elected or for one year thereafter, no member of the governing body of any city or town shall be appointed to any municipal office which is created or the emoluments of which are increased during the term for which he has been elected except in the cases provided in this title, nor shall any such member be interested, directly or indirectly, in the profits of any contract or job for work or services to be performed for the city or town.

(Emphasis added.)

A town trustee is a member of a governing body of a town, as defined in C.R.S. 1973, 31-1-101(4).

C.R.S. 1973, 31-4-404 has not been interpreted by the Colorado courts. However, the statutory language is clear and unambiguous: that no municipal officer may gain pecuniary benefit from a contract with the municipality. The statute reflects the generally accepted common law rule that any contract between a municipal officer and the municipality is unenforceable or voidable insofar as the officer cannot contract with himself when he acts in his official capacity as an agent of the municipality. 19 Am.Jur.2d, Municipal Corporations, section 294 et seq. The Colorado statute sets forth an absolute prohibition against such contractual arrangements, whether the officer is directly or indirectly receiving benefits from the contract, and regardless of whether the officer participated in the transaction in his official capacity.

SUMMARY

C.R.S. 1973, 31-4-404 prohibits a town trustee from entering into a contract to perform work or services for the town, insofar as that statute prohibits a member of the governing body of a municipality from deriving any pecuniary gain, either directly or indirectly, from the profits of any contract with the municipality.

Very truly yours,

J.D. MacFARLANE Attorney General

CONFLICT OF INTEREST PUBLIC OFFICERS CONTRACTS PUBLIC FUNDS TRUSTEES

C.R.S. 1973, 31-4-404

LOCAL AFFAIRS, DEPT. OF Local Government, Div. of

C.R.S. 1973, 31-4-404 prohibits a town trustee from deriving any pecuniary gain, either directly or indirectly, from the profits of any contract with the municipality.