Request By:
Honorable Virgil Pearman
State Representative
26th District
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A question has arisen in Hardin County about the possible incompatibility of offices where a member of the fiscal court serves on the board of commissioners of a water district organized and created under KRS Chapter 74.
As you mention, in OAG 67-68, we concluded that the holding of office of county judge and commissioner of a water district at the same time would involve a common law incompatibility and would be illegal.
Under KRS 74.020, as amended by H.B. 607 [Ch. 384, 1978 Acts, Section 181], the water board commissioners are appointed by the county judge/executive, with the approval of the fiscal court. The salary of the water commissioners are fixed by the county judge/executive, with the approval of the fiscal court. Under KRS 74.010, as amended in 1978, the county judge/executive has a discretion in executing an order creating a water district. He has a similar discretion in the discontinuance of the district. KRS 74.367, as amended in 1978. He has such discretion in enlarging or diminishing the territory of a water district. KRS 74.110, as amended in 1978.
It is our opinion, under the current statutes mentioned, that a county judge/executive cannot legally serve at the same time as a water board commissioner, since that would involve a common law incompatibility. Offices are said to be incompatible as a matter of common law when, their being subordinate and interfering with each other, it induces a presumption that they cannot both be executed with impartiality and honesty. Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917). The central point here is the relation of one office to the other. It simply would be against public policy for the county judge/executive, who plays such a central role in connection with water districts, to appoint himself as a water commissioner [though the fiscal court has to approve] and serve as water commissioner. Public policy demands that a public officer must be able to deal objectively with the public's business. Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43 (1933) 44; and Commonwealth v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936) 25, 26.
It is also our opinion that none of the other members of fiscal court [that is, the magistrates or commissioners on the fiscal court] can legally serve as commissioners of a water board. The reason is the same as given above in connection with the county judge/executive. The holding of the two posts would involve a common law incompatibility and would be against public policy. The fiscal court would be finally approving the appointment of one of its members as a water commissioner and approving the salary thereof. The fiscal court would simply not be able to deal objectively with the water commissioner subject.
The holding of the two posts would not involve a constitutional or statutory incompatibility, since the water district is a separate political subdivision. Louisville Extension Water Dist. v. Diehl Pump & Supply Co., Ky., 246 S.W.2d 585 (1952). Cf. § 165, Kentucky Constitution, and KRS 61.080.