Request By:
Honorable Harold Kirby
Madison County Judge/Executive
Courthouse
Richmond, Kentucky 40475
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of April 5 in which you seek an opinion concerning the fiscal court's appointment of an individual to serve on the budget committee to help prepare the budget in Madison County for the fiscal year July 1, 1979 through July 1, 1980. Your questions are as follows:
"#1. Is the appointed member of the Budget Committee disqualified to serve if he files to become a candidate for elective office?
"#2. As only 6 candidates filed, it will not be necessary to have a primary election on May 29, 1979. Would the appointed member be eligible to serve on the Budget Committee until the November general election? And, would he be qualified to serve on the Budget Committee, if he wins the November election until he takes office on January 1, 1980?"
Concerning the member's right to become a candidate without affecting his position, our response would be in the affirmative, assuming that he holds no other public office at the time of his appointment as prohibited under KRS 68.230. The fact that the member desires to become a candidate for another elective office creates no incompatibility until he assumes the second office which is incompatible with the first. See KRS 61.090, § 165 of the Constitution and KRS 61.080.
Thus, the appointed member of the budget commission can continue to serve as a member thereof while being a candidate for public office.
As to such member's right to continue as a member of the budget commission and serve in another public office if elected, we believe that such would be prohibited not only under the terms of KRS 68.230 but also under KRS 61.080. KRS 68.230 contains the provision previously referred to stating that the appointed member shall not hold any other public office at the time of appointment, the intent of which we believe would at the same time prohibit such appointee from holding any public office that he assumes after his appointment. In other words, he is not to hold any other public office during his term as a member of the budget commission.
Also, as indicated, an incompatibility would exist under KRS 61.080 were he elected to the office of city commissioner [the office for which he is a candidate per our phone conversation of this date] since said office is a municipal office while his position as a member of the county budget commission under the terms of KRS 68.230 to 68.240 would be considered in our opinion a county office. As you know, no person can hold a municipal office and a county office at the same time under KRS 61.080 as they are incompatible, one with the other.