Request By:
Honorable Edward D. Hays
Attorney at Law
111 South Fourth Street
Danville, Kentucky 40422
Opinion
Opinion By: Robert E. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
As counsel for the city of Danville, you relate that Mr. Harold McKinney is currently a candidate for city commissioner and at the same time he is also serving as Boyle County Health Administrator. The question is raised as to whether or not Mr. McKinney can legally, ethically or otherwise occupy both positions at the same time.
Your question is one of compatibility. KRS 61.080 prohibits a person from holding a county office and a city office at the same time. As you know, of course, members of county boards of health are county officers as held in the case of City of Bardstown v. Nelson County, 25 KLR 1478, 78 S.W. 169 (1904). Of course, the position of city commissioner is a city office under Ch. 89 KRS, particularly KRS 89.430. On the other hand, a position of county health administrator would appear to be merely a form of county employment that is nonstatutory and established by the county board, unless at the same time he has, in fact, been appointed as a health officer pursuant to KRS 212.170 to 212.190 which would in our opinion establish him as a county officer.
As we said, the position of county health administrator is not mentioned in Ch. 212 KRS and, as a consequence, would not appear to possess the five elements constituting a county office as held in numerous cases as for example, Commonwealth v. Howard Ky., 379 S.W.2d 475 (1964).
As a consequence, the position of county health administrator would in our opinion constitute merely a form of county employment and no statutory incompatibility would exist between it and the position of city commissioner.
On the other hand, the question of a common law conflict of interest is always a possibility but is, of course, a question of fact that can only be decided by the courts; however, offhand, we see no such conflict arising unless and until some dispute and disagreement developed involving the city commission and the county health administrator, or, for that matter, the county board of health, in which case, the commissioner in question should refrain from participating.