Request By:
Honorable Al Frank
Assistant Director of Law
Department of Law
City of Louisville
City Hall
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of April 14 in which you request an opinion as to whether or not a particular individual can hold full-time employment with the city of Louisville as its building inspector and at the same time serve as a part-time building inspector for the city of Shively which does not have sufficient work in this field to justify hiring a full-time inspector.
The State Uniform Building Code which must be adopted by local municipalities requires each local government to employ a building inspector to enforce the building code. See KRS 198B.060 and Article 1, Section 8, of the Kentucky Building Code adopted pursuant to Ch. 198B KRS. The position of city building inspector employed pursuant to the code would appear to be merely a form of employment rather than a municipal office since the position would not, we believe, constitute the latter under the definition of the term expressed in Commonwealth v. Howard, Ky., 379 S.W.2d 475 (1964), and we might add Senate Bill 26, Section 1, recently enacted by the legislature.
KRS 61.080 and § 165 of the Constitution prohibit a person from holding two municipal offices at the same time, however, there is no such prohibition with respect to a person holding two forms of municipal employment, either in the same or different municipalities at the same time. There is of course a possibility that a common law incompatibility would exist, particularly in this situation, and we refer you to the case of Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917), which would apply to forms of employment as well as offices, wherein the court said:
"'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.'
"It has, however, been held, as in State v. Buttz, 9 S.C. 156, that where it is physically impossible for one holding one office to perform the duties of another office, which he has accepted, that the offices are incompatible. In People v. Green, 46 How. Prac. (N.Y. 169), the court announced the following rule:
"'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.'"
Under the circumstances, we do not believe any constitutional or statutory incompatibility would exist where the individual in question is employed in the manner referred to by the cities of Louisville and Shively; however, we cannot answer the question of whether or not a common law incompatibility exists since such is based on facts concerning which we have no knowledge. This is a matter that only the courts can determine.