Request By:
Honorable Clay Gay
House of Representatives
Box 990
Hyden, Kentucky 41749
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask two questions about the county judge/executive.
Question No. 1:
"Can a County Judge Executive serve as chairman of his party?"
We find nothing in the constitution or statutes expressly prohibiting this. While the county judge/executive fills vacancies in certain county offices under KRS 63.220, there is no statute prohibiting him from engaging in this partisan political office, even though one could assume that the county judge/executive would name persons who are members of his own party to fill vacancies, regardless of whether the county judge/executive is chairman of his political party or not. As you know, Kentuckians in political matters are often not noted for objectivity. As to whether the courts would rule as a matter of common law that public policy would require that the county judge/executive not be chairman of his political party is purely speculative.
Cf. KRS 18.310, relating to state personnel, which expressly prohibits taking part in the management or affairs of any political party.
Question No. 2:
"If so how must he be chosen?"
He must be chosen under the rules and party laws adopted by his major political party. For example, see Article III, Section 3 of the Rules of the Democratic party, relating to the election of members of the county executive committee and the chairman of that committee. Of course the party rules provide that a committee member must support the nominees of the Democratic party and must avow allegiance to that party, otherwise their office shall become vacant after a hearing on charges that such requirements have not been met.
Finally, we do not believe the common law principle of incompatible offices would be involved here, since only one governmental office is involved. Cf. Knuckles v. Board of Education of Bell County, 272 Ky. 431, 114 S.W.2d 511 (1938) 514; and 63 Am.Jur.2d, Public Officers and Employees, § 62, p. 668, and § 73, p.p. 674-675.
Under the common law principle of incompatibility, offices are incompatible where the officer cannot faithfully and impartially perform the duties of both offices. Ibid., § 73, p. 675. However, here we are not dealing with two governmental offices. One of the offices is merely a partisan political office.
The Supreme Court of Pennsylvania in Duffy v. Cooke, Pa., 86 A. 1076 (1913), upheld the constitutionality of a statute prohibiting political activity of office holders in certain cities. However, Kentucky has no similar statute covering the situation you mention.