Request By:
Mr. L. Kenneth Roberts
District #2 Magistrate
P.O. Box 168
Garrett, Kentucky 41630
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You are currently serving as a magistrate of Floyd County, Kentucky, District No. 2. You request the opinion of this office as to whether or not it is legal for a magistrate on fiscal court to serve on the Floyd County Solid Waste, Inc. board as a member. Floyd County Solid Waste, Inc., is a nonprofit corporation and is run by the board of directors under the authority of the fiscal court.
A reading of the Articles of Incorporation, as amended in 1981, indicates that the purpose of the corporation is to act as the agency and instrumentality of Floyd County, and to finance and oversee public projects for the collection and disposal of solid waste for and on behalf of Floyd County. Article II of the amendment provides that any net revenues of the corporation will inure to the benefit of the Floyd Fiscal Court. We assume that the intended benefit is only for the county, and not for individual members of the fiscal court. Apparently the board of directors consist of four (4) magistrates and one person appointed at large. See KRS 273.167, authorizing charitable or nonprofit corporations to be organized for governmental purposes. See also KRS 58.180, permitting the creation of nonprofit corporations to act as an instrumentality of a governmental agency in the financing of public projects.
Your specific question is whether or not the county magistrates can legally serve on the board of directors of the subject corporation.
Although the corporation exists purely for the county's purposes, a board member is not holding a public or governmental office in the strict legal sense. Thus we find no incompatible offices under KRS 61.080. Even if the corporate board was considered a county office (which it is not), KRS 61.080 does not prohibit holding two county offices at the same time. See
Com. Ex. Rel. Hancock v. Bowling, Ky., 562 S.W.2d 311 (1978), holding that a member of the county hospital board was not a city or county officer.
Here the corporation is merely an arm of the county for a specific purpose, i.e., the financing of public projects for the collection and disposal of solid waste. See KRS Chapter 109. We assume, of course, that the fiscal court retains the ultimate authority in such county function. Thus the corporate hat and the fiscal court hat are two hats to be worn by members of the fiscal court.
It is our opinion that the magistrates' serving on the board of directors of the corportion is legal. We are unable to derive any statutory or common law incompatibility from this situation. As we said, when these men are working on a corporate problem, they are also the fiscal court, i.e., a majority of fiscal court. Whatever they do corporate wise is subject to the final approval of fiscal court, since it cannot delegate its ultimate authority. Cf.