Request By:
Honorable William S. Howard
Attorney at Law
111 Cheapside
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of July 16 in which you raise the following question:
"In view of KRS 61.080, can the Executive Director of the Department for Community Development for a city in the Commonwealth, which position is a department head level position, neither elected, appointed nor considered a merit position, serve as magistrate of the County Court of the county in which the city is located?"
You fail to give us sufficient facts to determine definitely the nature of the position of Executive Director of the Department of Community Development of a city. It is certainly not a statutory office and, in all probability, it is merely a form of employment within a department of the city, created by ordinance. If this is the case, there would be no statutory incompatibility under KRS 61.080 which prohibits a person from holding a municipal office and a county office, such as that of magistrate, at the same time, but does not prohibit a person from holding municipal employment and a county office at the same time.
For your information, the elements that constitute an office are now detailed in Senate Bill 26, enacted at the 1980 General Assembly. See KRS 83A.010 (9), which reads as follows:
"(9) 'Officer' means any person elected to a position by the voters or any person appointed to a position which (a) is created by the constitution, the general assembly, or a city; (b) possesses a delegation of a portion of the sovereign power of government; (c) has powers and duties to be discharged which are conferred directly or by implication by the city; (d) has duties performed independently and without control of a superior power other than law; (e) has some permanency; (f) requires an official oath; (g) is assigned by a commission or other written authority; and (h) provides for an official bond if required by proper authority."
Thus, unless the position falls within the terms of the above quoted statute, it is not an office but merely a form of employment, and the person in question could serve in both of the positions at the same time without violating KRS 61.080. The question of a common law incompatible situation is always present, but this is a matter that only the courts can determine based on the duties involved in the operation of both positions.