Request By:
Honorable Roger Wm. Perry
Assistant County Attorney
908 Poplar Street
Benton, Kentucky 42025
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 24 in which you initially raise the following question:
"First, under the provisions of the New Judicial Article, our county will be entitled to a trial commissioner, since we are a two-county judicial district and our district judge will reside in the other county. Our present county judge, will also be our county judge/executive next term. In this capacity, could he also serve as trial commissioner? . . ."
The answer to the above question would be in the negative. The office of trial commissioner, established pursuant to the Judicial Article and Chapter 24A of the Kentucky Revised Statutes, particularly KRS 24A.100, is a state office. Also, reference OAG 77-101. On the other hand, the office of county judge/executive is a county office pursuant to Sections 99 and 100 of the Constitution. Section 165 of the Constitution and KRS 61.080 prohibit a person from holding a state office and county office at the same time; therefore, the two positions are incompatible.
Your second question is as follows:
". . . may a district judge appoint a judge pro-tem or trial commissioner in his own home county, if such individual is unpaid, or paid by the county fiscal court? . . ."
The answer to your second question would normally be in the negative since KRS 24A.100 provides that only in those counties not having a district judge residing in the county shall there be a trial commissioner. This means, in effect, that in a county in which the district judge resides, such judge cannot have a trial commissioner unless authorized pursuant to § 113 of the Constitution which provides under subsection (5) the following:
". . . Other trial commissioners with like qualifications may be appointed by the chief judge in any judicial district upon certification of the necessity therefor by the Supreme Court."
We find no authority whatsoever for the appointment of a judge pro tem of the district court. Trial commissioners are required to be compensated as provided in the judicial personnel system. KRS 24A.100.
Your third question is as follows:
". . . May a trial commissioner in a county where no district judge resides appoint a pro-tem if such individual is unpaid, or paid by the trial commissioner, so long as the district judge approves?"
The answer to the above question would also be in the negative as there is no authority under the Judicial Article or referred to statutes authorizing the appointment of a so-called pro tem trial commissioner. Only trial commissioners themselves are provided for under the condition set forth in KRS 24A.100 and § 113 of the Constitution previously referred to.
Your last question is as follows:
". . . may a member of the city council of the City of Benton serve as a deputy sheriff for Marshall County?"
The answer to the above question would likewise be in the negative. A member of the city council of the city of Benton would be considered a municipal officer under the Constitution and charter pertaining to cities of the fourth class, particularly KRS 86.050. A deputy sheriff, on the other hand, is considered a county officer, having the same powers and duties of the sheriff. Reference KRS 70.030 and the case of Keithing v. Covington, 18 KLR 245, 35 S.W. 1026 (1896). KRS 61.080 prohibits a person from holding a municipal office and a county office at the same time; therefore, these two positions are incompatible, one with the other.