Request By:
Honorable Frank A. Wichmann
Attorney at Law
500 First National Bank Building
Sixth and Madison Avenue
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 31 in which you on behalf of the city of Erlanger, a city of the third class, raise the following question:
"Does KRS 61.080 prevent the same persons from serving on the Board of Adjustment of the City of Erlanger, pursuant to KRS 100.217, and the local Board of Appeals required by Section 22 of the Kentucky Building Code 815 KAR 7:020?"
The city board of adjustment is created pursuant to KRS 100.217. The duties and powers of the board are set forth in subsequent sections of the planning and zoning act and members thereof are clearly municipal officers.
Under the Kentucky Building Code, Article 1 (815 KAR 7:010), § 22, a local board of appeals is authorized to be established by the local legislative body composed of three (3) persons appointed by the mayor. As to whether or not the board member; constitute municipal officers is more difficult to determine than in the case of membership on the board of adjustments; however, we have so concluded based on the guidelines constituting a public officer outlined in the case of
Commonwealth v. Howard, Ky., 379 S.W.2d 275 (1964). The five (5) elements to be considered in determining whether a position constitutes a public office are as follows:
"'(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.'"
With the above elements in mind and referring to § 22 establishing local boards of appeal, we find of course that this board is created by law, namely § 22 of the code. It possesses certain delegated powers which are to hear and decide appeals from decisions of local building officials, which decision is final with no appeal permitted. Of course, the duties are defined, as we have indicated, and they are performed independently and without control of any superior authority other than the law [in this case the code itself], and finally, it appears that said board has permanency though the term of its members are not actually stated and therefore indefinite.
Section 165 of the Constitution as well as KRS 61.080 prohibit a person from holding two municipal offices at the same time. Therefore, since we believe that membership on the city board of adjustment constitutes a municipal office and membership on the local board of appeals under the Kentucky Building Code also constitutes a municipal office, the two are incompatible, one with the other, and no person can hold both at the same time.