Request By:
Dr. Ferd J. Metzger
7105 Dixie Highway
Florence, Kentucky 41042
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 31 in which you request an opinion concerning the following:
"I am presently serving on the Board of Optometric Examiners and am considering running for the office of county commissioner in Boone County.
"Could you give me your interpretation of the law as to whether I must resign from this board, in order to serve as a county commissioner? At what point in time must I resign in order to hold this elected office?
"Is it possible to serve the board until I am elected and sworn in to office, or must I resign before the primary?"
The Board of Optometric Examiners is created by Chapter 320 KRS and particularly KRS 320.210 and 320.230. Members of the board would be considered state officers by virtue of the referred to statutes and the case of
Commonwealth v. Howard, Ky., 379 S.W.2d 475 (1964), which sets forth the five elements necessary to constitute a public officer. At the same time the office of county commissioner is a county office pursuant to Section 144 of the Constitution, KRS 67.050 and 67.060.
Section 165 of the Constitution and KRS 61.080 prohibit a state officer from holding a county office at the same time, however, the incompatibility does not occur until the individual assumes the second office that is incompatible with the first. See KRS 61.090.
Thus, you could continue to serve as a member of the Board of Optometric Examiners up until you assumed the office of county commissioner without violating the referred to section of the Constitution and statute.