Request By:
Ms. Wanda Marcum
City Clerk
City Hall
Manchester, Kentucky 40962
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of December 6 in which you relate that the city of Manchester has recently enacted an ordinance, presumably in compliance with the 1980 Municipal Code, establishing the office of city attorney. It so happens that the present city attorney is also the county attorney and has a case in progress on behalf of the city. The question is raised as to whether or not the county attorney can at the same time serve as city attorney, and, if not, can the city continue to use the services of this individual in the litigation in progress.
The offices of city attorney and county attorney are incompatible under the terms of KRS 61.080(3) which states in effect that no person shall at the same time fill a county office and a municipal office. KRS 61.090 further provides that the acceptance by one in office of another office incompatible with the one he holds shall operate to vacate the first office. However, the office does not automatically become vacant if the individual fails or refuses to resign. See
Trimble Co. Fiscal Court v. Trimble County Bd. of Health, Ky. App., 587 S.W.2d 276 (1979).
If the city of Manchester has in fact created the office of city attorney pursuant to the terms of KRS 83A.080(1), 080(1), and assuming that the individual appointed thereafter to the position of city attorney was in fact the present county attorney, he could continue to legally serve as city attorney but would vacate his position as county attorney under the terms of KRS 61.090.
We are enclosing a copy of OAG 81-403 which points out three methods by which a city may, under the 1980 Code, obtain legal services. The city may create the office of city attorney, establish it as a form of employment, or enter into a personal service contract with an attorney. As a position of employment or if of the nature of a personal service contract, the question of a possible conflict or incompatibility would not exist.
We trust the above answers your questions. However, if we can be of further service, please advise us.