Request By:
Honorable Louis A. Noll
Mayor, City of Edgewood
436 Dudley Road
Edgewood, Kentucky 41017
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 17 in which you submit the following questions:
"1. Is Ordinance No. 1977-11 (copy enclosed) constitutional?
"2. If Ordinance No. 1977-11 is constitutional, is there an incompatible office under paragraph 165 of the Kentucky Constitution or KRS 61.080 if the same person is both the city clerk and the city zoning administrator?"
With respect to the constitutionality of the referred to ordinance, the city of Edgewood, as well as other cities, has the general power to establish minor city positions and offices. See KRS 86.110 and the case of
Collopy v. Cloherty, 95 Ky. 330, 25 S.W. 497 (1894). Under the circumstances, therefore, the ordinance in question is constitutional, however, the position created by the ordinance would not, in our opinion, constitute a municipal office within the definition of the term "public office" as defined in many cases, including
Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947); and
Commonwealth v. Howard, Ky., 379 S.W. 2d 475 (1964). These cases declare that five (5) elements must exist in order to create an office and one of these elements is the establishment of a definite term for the office which is not contained in the ordinance in question establishing the position of zoning administrator for the city. There is of course no such position in Chapter 84 governing fourth class cities nor is there any such provision under Chapter 100 governing planning and zoning for local governments.
As a consequence, and in response to your second question, no incompatibility would exist where the city clerk is appointed to the position of zoning administrator under § 165 of the Constitution and KRS 61.080, since these sections do not prohibit a person from holding a municipal office and a form of city employment at the same time. The prohibition is against a person holding two municipal offices at the same time.