Request By:
Representative Bill Donnermeyer
Co-Chairman
Interim Joint Committee on Cities
Legislative Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your recent letter to this office presents the following question:
May a person simultaneously hold a state office and an office in a de jure municipal corporation?
You state that the General Assembly has created several de jure municipal corporations such as the Kentucky Housing Corporation and the Kentucky Higher Education Student Loan Corporation. Those enactments provide for the appointment of various state officials to the boards of directors of the corporations.
Your committee is attempting to clarify whether these de jure municipal corporations are "municipalities" under Section 165 of the Kentucky Constitution relative to incompatible offices and employments.
You are apparently concerned with provisions of 165 of the Kentucky Constitution and KRS 61.080(1) stating that no person shall, at the same time, serve as a state officer and as an officer or employee of any county, city, or other municipality.
KRS 198A.015 provides in part that the Kentucky Housing Corporation is a de jure political subdivision of the Commonwealth of Kentucky. KRS 198A.030(3) states in part that the Housing Corporation shall be governed by a board of directors, consisting of fourteen members, six of whom are specifically designated state officers or their duly appointed designees.
KRS 164A.050(1) provides in part that the Kentucky Higher Education Student Loan Corporation is an independent de jure municipal corporation and political subdivision of the Commonwealth of Kentucky. KRS 164A.050(3) states in part that the corporation shall be governed by a board of directors consisting of seven members, three of whom are specifically named state officers.
The basic solution or answer to your inquiry, as set forth in OAG 76-459, copy enclosed, is that where a statute provides for the appointment of specifically designated public officers to hold another public office, these public officers hold their second public office in an "ex officio" capacity, which eliminates the possibility of a constitutional or statutory incompatibility. This office dealt with this concept in more detail in OAG 66-586, copy enclosed, where we said in part that an officer may be an ex officio incumbent of another public office without involving unconstitutional dual office holding. This opinion cited several instances where public officers, by statute, are authorized to hold another public office or position.
We also direct your attention to 3 McQuillin, Mun . Corp ., § 12.66 (3rd ed. 1990).
The analysis, references, and citations set forth above should resolve the basic question you have posed. However, even if it were necessary to determine the status of the two boards of directors mentioned in your letter, it appears that those boards would not involve city, county or state offices for purposes of the provisions relative to incompatible offices. Positions on those boards would be hybrids as they are not city, county, or state offices as contemplated by KRS 61.080 and Section 165 of the Constitution. See OAG 79-452 and OAG 79-610, copies of which are enclosed.
Thus, from the standpoint of the incompatible offices provisions of Section 165 of the Kentucky Constitution and KRS 61.080, state officers are not prohibited from holding positions on the boards of directors of the Kentucky Housing Corporation and the Kentucky Higher Education Student Loan Corporation when those officers are holding positions specifically authorized by KRS 198A.030(3) and KRS 164A.050(3).