Request By:
Hon. James W. Lyon, Sr.
District Judge
Greenup County Courthouse
Greenup, Kentucky 41144
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
You have been requested to consider an appointment as trial commissioner of the District Court in Lewis County for a person who is currently serving as deputy circuit clerk.
You request our opinion on the following question:
"QUESTION: Are the positions of Trial Commissioner and Deputy Circuit Court Clerk compatible with one another?"
A trial commissioner is a state officer. KRS 24A.100. A deputy circuit clerk is likewise a state officer. KRS 30A.010(2).
Section 165 of the Kentucky Constitution and KRS 61.080 treat the subject of incompatible offices. Neitther section prohibits a person from holding two state offices at the same time.
However, we must consider the question from the standpoint of any possible common law or practical incompatibility.
The case of Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126, lays down the fundamental criteria as to common law incompatibility:
"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. "
Deputy circuit clerks, authorized by and under the direction of the circuit clerk, shall have full power to perform such duties as may be performed by the circuit clerk. Of course the circuit court clerk is at the same time the clerk of the District Court. KRS 30A.010(1).
In OAG 81-108, copy enclosed, we have outlined the specific duties of the trial commissioner. See § 113, Kentucky Constitution, KRS 24A.100, and Rule 5.030 of the Supreme Court of Kentucky. In performing the permissible judicial functions in District Court, the office of deputy clerk could be subordinate to the office of trial commissioner.
You cite the later case of Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937) 144, 145, which contains a reference to Barkley v. Stockdell:
"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.'"
Thus the doctrine of practical or common law incompatibility embraces two areas: (1) The question of whether both positions can be actually physically or literally accomplished in the manner required by law; and (2) The question of whether, in considering the interrelation between the two positions, both jobs can be executed with impartiality and honesty. We think these are questions which may be resolved by the Circuit Judge and yourself.