Request By:
Mr. Roy Turner
R.R. 850
David, Kentucky 41616
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether a county judge-executive may legally function at the same time as the manager of an RECC in an adjoining county in view of the fact that the Grand Jury stated all county officials are obligated to spend full time in their respective offices.
The qualifications, requirements, powers, duties and responsibilities associated with the office of county judge-executive are set forth in constitutional provisions and statutory enactments of the General Assembly. We are not aware, however, of a statutory or constitutional provision which automatically prohibits a county judge-executive from holding, at the same time, any and all other positions and forms of employment. If the two positions with which you are concerned are incompatible or constitute a conflict of interest, it will be because of constitutional or legislative enactments or decisions of the courts.
A county judge-executive is, of course, a county officer and we presume the position of manager of an RECC to which you refer involves a Rural Electric Cooperative Corporation organized pursuant to KRS 279.010 et seq. Whether the manager is considered an officer of the corporation or merely an employe, the corporation is a Kentucky nonprofit corporation and is not a part of the state, city or county government. KRS 61.080 and Section 165 of the Kentucky Constitution set forth various governmental offices and employments or positions which are incompatible with each other. Those provisions are not applicable to your fact situation as it involves only one governmental office or employment.
The next question to consider is whether the situation you have presented involves a common law conflict of interest. We first direct your attention to the case of Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122, 126 (1917), which applies to offices as well as forms of employment, where the Court said in part:
"'The inconsistency, which at common law makes offices incompatible, does not consist in the physical impossibility to discharge the duties of both offices; but rather in a conflict in interest, as where the incumbent of one office has the power to remove the incumbent of another, or to audit the accounts of another, or to exercise a supervision over another, as in the case of a judicial officer and his subordinate ministerial officer.'"
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"'Offices are said to be incompatible and inconsistent so as to be executed by the same person: First. When from the multiplicity of business in them, they cannot be executed with care and ability; or second, when, their being subordinate and interfering with each other, it induces a presumption that they cannot be executed with impartiality and honesty. '"
In Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143, 144 (1937) the Court said:
". . . 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 Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43, 44, 'Aside from any specific constitutional or statutory prohibitions, incompatibility depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them. The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest. '"
Basically, the question of whether a common law incompatibility or conflict of interest exists is a matter to be resolved by a court of law. See OAG 76-622, copy enclosed, at page two. There is no constitutional or statutory incompatibility involved where a person serves, at the same time, as county judge-executive and manager of a Rural Electric Cooperative Corporation. However, to avoid a conflict of interest problem and a common law incompatibility, the person holding both positions would have to demonstrate that his employment as manager of an RECC does not prevent him from performing the functions of the office of county judge-executive with the necessary care and ability and impartiality and honesty. Furthermore, the positions cannot be so related that one is subordinated to the other; the performance of the private job cannot interfere with the performance of the public office, and the public interest cannot be compromised because of the holding, concurrently, of the two jobs.