Request By:
Robert E. Bathalter, Esq.
City Attorney, City of Falmouth
Falmouth, Kentucky 41040
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter requesting an opinion as to whether the county jailer may, at the same time, serve as the fire chief for the City of Falmouth.
Falmouth is a city of the fourth class with a volunteer fire department. The city's fire department was created by a city ordinance enacted many years ago and thus it, apparently, exists pursuant to KRS Chapter 95. Equipment is furnished by the city and, other than the fire chief and the assistant chiefs, salaries are not paid to members of the department.
The county jailer is a constitutional officer and a county officer. See Sections 99 and 100 of the Kentucky Constitution, KRS Chapter 71 and OAG 77-446, copy enclosed.
KRS 61.080(3) states that, "No person shall, at the same time, fill a county office and a municipal office. " Thus, in answering your question it must be determined whether the fire chief of a city of the fourth class is a city officer, subject to the statutory prohibition, or whether he is merely a municipal employe.
KRS Chapter 95 deals with "City Police and Fire Departments" but the only specific statutes dealing with fire departments in cities of the fourth class are KRS 95.710 (qualifications of members) and KRS 95.715 (hours off duty). KRS 86.160 provides in part that the city council may establish and regulate fire companies and provide for or elect firemen, prescribe their duties and fix their compensation. In the provisions applicable to fourth class cities there are no provisions that we can find dealing specifically with fire chiefs. Compare this with KRS 87.170, applicable to cities of the fifth class where the position of fire chief is established as a minor city office. See OAG 77-682, copy enclosed.
In
City of Lexington v. Thompson, 250 Ky. 96, 61 S.W.2d 1092, 1093 (1933), the Court said that five elements are indispensable in any position of public employment in order to make it a public office of a civil nature:
"(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. In addition, in this state, an officer must take and file an official oath, hold a commission or other written authority, and given an official bond, if the latter be required by proper authority."
In OAG 66-469, copy enclosed, we said that firemen should be considered mere employes of the city with the possible exception of chief of the fire department, particularly the fire chief in a city of the fifth class. While KRS 87.170 establishes the position of fire chief in a fifth class city as a minor city office, there is no statutory provision even mentioning the fire chief of a fourth class city. Furthermore, in our opinion, the position of fire chief in a fourth class city does not satisfy the five basic elements necessary to establish a position of public employment as a public office and the position would, therefore, be a form of municipal employment rather than a municipal office.
If the position of fire chief of a fourth class city is considered municipal employment rather than a municipal office, there is no statutory prohibition against a person holding the office of county jailer and, at the same time, holding the position of city fire chief. However, there may be a common law incompatibility if the same person holds both positions at the same time.
In OAG 77-446, copy enclosed, we said that the office of a county jailer is a full-time job and the jailer's engaging in an additional job might constitute a practical or common law incompatibility. While the question of whether an incompatibility exists is for the courts to determine, we would suggest that you examine two cases discussing the matter,
Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937) and
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917). Note the language of the Court, in Polley, supra, at pages 144-145 of that opinion:
". . . The two employments not being incompatible under the Constitution or statute, the case turns on whether the two offices or employments are incompatible under the common law. As said in