Request By:
James G. Hodge, Esq.
808 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether two particular offices or positions are incompatible. The person with whom you are concerned has been elected as a trustee of a fire protection district organized pursuant to the terms and provisions of KRS Chapter 75. This same person also serves as a county police officer. You ask whether a person may serve at the same time as a trustee of a fire protection district and as a county police officer.
KRS 61.080 and Section 165 of the Kentucky Constitution deal with incompatible offices. Those provisions state in part that no person shall at the same time fill a county office and a municipal office. Furthermore, a person may not at the same time fill two municipal offices and he may not at the same time hold a state office and a county or city office or county or city employment.
Counties are authorized to establish a police force pursuant to KRS 70.540 and KRS 67.083(3)(u). As set forth in several opinions of this office, including OAG 73-783 and OAG 68-72, copies of which are enclosed, a county police officer is considered to be a county officer.
A member of the board of trustees of a fire protection district established pursuant to KRS Chapter 75 would not, for purposes of KRS 61.080 and Section 165 of the Kentucky Constitution, be considered a state, city or county officer. In OAG 73-711, copy enclosed, at page two, we said in part as follows:
". . . However, it is our opinion that there would be no constitutional or statutory incompatibility, since a board of trustee membership of the fire protection district does not involve a municipal office. The fire protection district is an independent organization, but it is not equivalent to a municipality under the constitutional and statutory sections mentioned. It is merely a separate taxing district. See KRS 75.040. Also see
City of Louisville M.H. Com'n v. Public Housing Admin., Ky., 261 S.W.2d 286 (1953), in which Judge Combs wrote that a municipal housing commission is 'neither fish nor fowl' within the definitive terms of §§ 177 and 179 of the constitution [relating to any county, city, town, political subdivision, etc.]. Here a fire protection district office simply does not fit the term 'municipal office. '"
Even if there is no statutory or constitutional incompatibility or conflict, there can still be common law conflicts of interest. Whether the common law conflict exists is primarily a matter for the courts to resolve. The concept of common law incompatibility is dealt with in
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) and
Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937).
Hermann v. Lampe, supra, which applies to offices and forms of employment, states in part as follows:
"'Offices are said to be incompatible and inconsistent so as to be exercised by the same person: First. When from the multiplicity of business in them, they cannot be exercised 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.'"
In
Polley v. Fortenberry, supra, the Court stated:
". . . '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.'"
In response to your specific question, it is our opinion that there is no statutory or constitutional prohibition against a person serving at the same time as a county police officer and as a member of the board of trustees of a fire protection district organized under KRS Chapter 75.