Request By:
Hon. John M. McCarty
Attorney at Law
P.O. Box 189
Hawesville, Kentucky 42348
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of June 22, in which you on behalf of the City of Hawesville relate that a member of the city council died on April 13, 1982, having been elected at the previous November election. Following the death of this councilman the mayor appointed a person to fill the office for the unexpired term. This individual is currently employed as a part-time deputy circuit clerk. The question is raised as to whether or not there would be any incompatibility by virtue of the individual serving in both capacities at the same time.
To begin with, the mayor has no authority to fill a vacancy on the city council. This can only be done by the city council itself pursuant to KRS 83A.040(4). Aside from the fact that only the council can fill the existing vacancy, it cannot be for the unexpired term unless there is no regular election this fall embracing the City of Hawesville. If there is such an election as, for example, a school board election or an election for the Supreme Court, then Section 152 of the Constitution would require this vacancy to be filled at that time for the unexpired term. If there is no qualifying election under the terms of the Constitution mentioned, then the appointee would serve for the remainder of the term.
Concerning the question of incompatibility, the circuit clerk is a state officer as provided by KRS 30A.010 and so are his deputy clerks, whether employed part-time or full-time, as the deputy clerk is given the same powers and duties of the clerk under KRS 30A.050(2) and must take the oath of office and execute bond pursuant to KRS 30A.020 and 30A.030. This is in spite of the fact that subsection (2) of KRS 30A.050 indicates deputies, along with other employees, are employees of the state. See OAG 80-608, copy enclosed.
Section 165 of the Constitution and KRS 61.080 prohibit a person from holding a state office and a municipal office at the same time. Thus, the office of city councilman and that of deputy circuit clerk are incompatible and no one can hold both positions at the same time without violating the Constitution and statute referred to.