Request By:
Mr. Robert Scott Madden
Clay County Attorney
Courthouse
Manchester, Kentucky 40962
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written concerning OAG 83-466, in which we concluded that a regular deputy jailer cannot at the same time hold a city office.
A remaining question is whether or not the county must now take action, as you have advised, to recover the deputy salary paid during the period of holding the county and city offices.
Your specific questions read:
"1) Must the county take action to recapture monies paid to a duly appointed deputy jailer after said deputy jailer ran for, was elected to and thereafter sworn into office as a councilman in a city of the fourth class? If so, what method of recapture and form is to be used in that regard?
"2) If recapture of the salaries paid to a deputy jailer, after the deputy jailer was sworn into office as a councilman in a city of the fourth class is mandated, does the county attorney have an obligation to bring legal action against the affected employee and/or other parties seeking recapture of said salaries? If so, what parties defendant are to be included in that litigation and should the litigation include a demand for interest and/or penalties?"
We concluded in OAG 83-466 that KRS 61.080(3) expressly prohibits a person from filling at the same time a county office and a municipal office.
Under KRS 61.090, the acceptance by one in office of another office incompatible with the one he or she holds shall operate to vacate the first. Thus in the factual situation you present, the deputy jailer vacated her office of deputy jailer when she accepted the office of city councilman. Thus in continuing to hold her first office of deputy jailer after acceptance of the office of city councilman, she became a usurper of the first office. See
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917).
The jailer can remove the deputy jailer in question at any time. KRS 71.060. However, where the jailer will not effectively terminate her appointment, and she continues to usurp that office, it would be the duty of the commonwealth's attorney to institute an action in the local circuit court against the usurper, pursuant to KRS 415.040. See also
Adams v. Commonwealth, Ky., 268 S.W.2d 930 (1954).
Since the facts indicate that the deputy jailer is a usurper of that office upon assuming the office of city councilman, it is our opinion that the salary paid to her as deputy jailer out of the county treasury should be returned to the county from the beginning date of usurpation to the present. Our conclusion is based upon the fact that she cannot legally serve as a deputy jailer, from the time she assumed the office of city councilman, and thus has no right to receive the salary that goes with that office. In the eyes of the law her former office of deputy jailer has been vacant, a kind of non-existence.
Kash v. Day, Ky., 239 S.W.2d 959 (1951), held that an office was vacant in contemplation of law whenever it is not held by one who is legally qualified to do so, and who has a right to continue therein. Pursuant to §§ 3 and 171, Pursuant to § § 3 and 171, Kentucky Constitution, one can only be paid out of a public treasury in consideration of a public purpose, i.e., public service. Since the usurper cannot legally serve as deputy jailer, it follows that the constitutional requirement for public services cannot be met. In addition, it could be said that the usurper, in failing to qualify for the office of deputy jailer, has been violating KRS 61.120, which provides for deduction in salary of a state or county officer for failure to perform his duties. Here a vacancy in office is equivalent to a failure to legally perform her duties. Therefore the stopping of her salary as deputy jailer under KRS 61.120 was authorized. Legally it is just as if the usurper were out of the state or not working for the jailer. See
Whitworth v. Miller, 302 Ky. 24, 193 S.W.2d 470 (1946).
Importantly, our appellate court has held that mere de facto officers are not entitled to compensation. See
Brown v. Shannon, 280 Ky. 88, 132 S.W.2d 525 (1939); and
Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171 (1940). In Cottongim, above, the court held that while the acts of de facto officers are valid as to third persons, they cannot themselves acquire rights based upon their defective title. Thus it is well settled, the court wrote, that the de facto officer cannot maintain an action to recover the salary or compensation attached to that office. Here the usurper is merely a de facto officer.
Thus, it is our opinion that the county can sue in circuit court to recover the compensation paid out of the county treasury while she has been a usurper. See KRS 415.080 which explicitly provides for recovery of fees or emoluments paid out to a usurper.
As concerns your second question, we believe that as county attorney you have a responsibility of bringing such action for the county to recover the compensation illegally paid out to the usurper, (see KRS 69.210) if so directed by the fiscal court. The parties defendant should include the usurper. The parties defendant should also include the jailer and county treasurer, provided the proof shows that the jailer and county treasurer issued salary checks to the usurper after knowing that she was a usurper, a mere de facto officer. See KRS 441.008(2). The county should ask for the principal, i.e., the amount of salary illegally paid to her. In addition, KRS 360.040 provides that a judgment shall bear twelve percent (12%) interest compounded annually from its date. A judgment may be for the principal and accrued interest under that statute.