Request By:
Henry B. Huff, Esq.
Huff and Nelson
310 West Liberty Street Building
Suite 312
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising two questions concerning dual office holdings, the first of which is as follows:
"Is it permissible for a member of the State Legislature to also serve by appointment of the County Judge as a member of the Board of Commissioners of a Sewer Construction District created under the provisions of KRS Chapter 76.300 et seq?"
KRS 61.080(1) provides in part that no person shall, at the same time, be a member of the general assembly and an officer of any county, city or other municipality, or an employe thereof. Section 165 of the Kentucky Constitution contains a similar prohibition. KRS 6.800(1) states in part that no legislator shall accept any appointment as an officer or employe of the Commonwealth or any state agency except as provided in section 165 of the Constitution unless he shall have first resigned his membership in the general assembly.
KRS 76.320, concerning the commission of a sewer construction district, provides that the commission shall be the governing body of the sewer construction district and shall be a body corporate, with power to contract and be contracted with, to sue and be sued and to adopt a corporate seal. Among those powers which the commission may exercise are the assessment of benefited property and the issuance of bonds (KRS 76.360 to 76.366). In addition, KRS 76.380 provides:
"The creation of a sewer construction district, and the carrying out of its corporate purposes are in all respects in the interest of public health and for a public purpose. A sewer construction district performs a governmental function in the exercise of the powers conferred upon it. . . ."
In City of Louisville Municipal Housing Commission v. Public Housing Administration, Ky., 261 S.W.2d 286 (1953), the court said that the municipal housing commission created by statute was a hybrid, conceived for a purpose never contemplated by the framers of the Kentucky Constitution. In our opinion, the same can be said for the commission of the sewer construction district. While it may have some of the attributes of a state agency or a county agency, it is not a state, county or city agency.
Thus, there is no statutory or constitutional prohibition against a member of the General Assembly serving, at the same time, as a commissioner of a sewer construction district. If the person involved can perform in both capacities with care and ability and with impartiality and honesty, no common law incompatibility would be involved either. See Herman v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) and OAG 77-101, copy enclosed.
Your second question asks:
"Is it permissible for a member of the Air Pollution Control Commission, appointed by a County Judge, to also be a member of the Board of Commissioners of a Sewer Construction District by appointment of the County Judge?"
Assuming you are referring to an Air Pollution Control District created pursuant to KRS Chapter 77, we direct your attention to KRS 77.050 which states that such a district is a public body corporate and a political subdivision of the Commonwealth. The general powers of the district are set forth in KRS 77.060 and KRS 77.115 designates the board as the governing body of the district. Note that KRS 77.110 prohibits a person from being a member of the board if he has any interest in the sale or control of any air pollution prevention equipment or apparatus which might be used effectively to reduce the emission of air contaminants. KRS 77.070 deals with board membership in a county containing a city of the first or second class.
An Air Pollution Control District, like the Sewer Construction District, is another of those hybrid entities, conceived for a purpose never contemplated by the framers of the Kentucky Constitution. Thus, neither KRS 61.080 nor section 165 of the Kentucky Constitution prevent a person from, at the same time, being a member of the Board of an Air Pollution Control District and a member of the Board of a Sewer Construction District, neither of which is a state, city or county agency. Again, if the person involved is able to perform the functions of both positions with care and ability and with impartiality and honesty, no common law incompatibility would exist either.