Request By:
Ted L. Igleheart, Esq.
506 Main, Courthouse Square
Shelbyville, Kentucky 40065
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning incompatibility of offices or positions. You are the Democratic nominee for Commonwealth's Attorney in the November election (there is no Republican nominee for the office) and you also work on a retainer basis for the Shelbyville Municipal Water and Sewer Commission as their attorney.
Your specific question is whether the positions of Commonwealth's Attorney and adviser to a municipal water and sewer commission of a city of the fourth class are incompatible. You refer to Section 165 of the Kentucky Constitution and KRS 61.080 dealing with incompatible offices. While you have no doubt that a Commonwealth's Attorney is a state officer, your primary concern is the status of the private attorney who is on retainer to represent the water and sewer commission and whether such a person is a city employe or an independent attorney for the water and sewer commission.
Section 165 of the Kentucky Constitution and KRS 61.080 (1) provide that no person shall, at the same time, be a state officer, a deputy state officer of a member of the General Assembly, and an officer of any county, city or other municipality, or an employe thereof. A Commonwealth's Attorney is a state officer. See OAG 77-487 and OAG 76-563, copies enclosed. Note also that KRS 15.755(3) provides in effect that in judicial circuits containing a city of the fourth class, the Commonwealth's Attorney shall not be prohibited from engaging in the private practice of law.
As to the status of an attorney working on retainer as the attorney for the city's water and sewer commission, we believe that his legal representation of the commission places him in the position of an independent contractor. In
Hobson v. Howard, Ky., 367 S.W.2d 249 (1963), the County Board of Education had employed an attorney to represent it at the salary of $125.00 per month. The Board subsequently decided to discharge the attorney and a question was raised as to the Board's authority to do so on the grounds that the attorney, as a public school employe, could not be arbitrarily dismissed. The court concluded that the attorney is a professional person and an independent contractor. The County Board of Education was only one of his numerous clients. The traditional relationship of attorney and client existed and since the attorney was an independent contractor he was not a public school employe. See also OAG 76-347, copy enclosed, discussing other cases involving the concept of "independent contractor. "
Thus, while a Commonwealth's Attorney is a state officer, an attorney working on a retainer for the water and sewer commission of a fourth class city is neither a city officer nor a city employe but, rather, an independent contractor. The constitutional and statutory provisions dealing with incompatible offices are not applicable and a person may, at the same time, serve as Commonwealth's Attorney and retained counsel for the city's water and sewer commission. Furthermore, if the person involved can perform both jobs with care and ability and with impartiality and honesty, no common law incompatibility would be involved either. See