Request By:
Mr. John J. Andris, Jr.
Counsel
Kentucky Occupational Safety and Health
Review Commission
Airport Bldg., Louisville Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of March 5 in which you raise the following question:
"May a hearing officer of the Kentucky Occupational Safety and Health Review Commission, who serves by contract pursuant to KRS 338.071 and KRS 338.081, and who is authorized to conduct proceedings pursuant to 803 KAR 50:010, continue to serve as a hearing officer after declaring his candidacy in a primary election for the office of State Representative to the General Assembly? "
As a general rule, the question of incompatibility only arises when an officer or employee assumes the office for which he is a candidate. See KRS 61.090, 61.080 and Section 165 of the Constitution. You will particularly note the language under KRS 61.090 to the effect that the acceptance by one in office of another office or employment incompatible with one he holds shall operate to vacate the first.
There are, of course, certain statutory exceptions to the general rule to the effect that simply becoming a candidate for public office, even though one holds another office or employment considered incompatible with the one he holds, does create a conflict or incompatibility. One exception we might mention is where a school board member becomes a candidate for public office other than school board membership in which event he becomes disqualified from continuing to serve on the board. See KRS 160.180.
We also refer to KRS 61.070 as amended in 1982 which states in part that a person may be a candidate for election to the general assembly and at the same time be a member of a state administrative board or commission.
Upon reviewing KRS 338.071 and 338.081 dealing with the employment of hearing officers, we find nothing under these or related statutes that would prohibit a member of the commission or any employee thereof, whether under contract or otherwise, from becoming a candidate for public office and at the same time retaining his position. This being the case, and in view of what we have outlined previously, we find no constitutional or statutory objection to a hearing officer appointed by the commission pursuant to KRS 338.081 from becoming a candidate for nomination and election to the office of State Representative.
Since your question is limited to the right of an individual becoming a candidate to public office while retaining his position, we will not attempt to answer the question that may arise in the event he is elected concerning his right to hold both positions at the same time.