Request By:
Ms. Patty Arnold
Prosecutors Advisory Council
909 Leawood Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; By: John S. Gillig, Assistant Attorney General
The resignation of the Commonwealth's attorney in one of the judicial districts has created a vacancy in that position. The Attorney General, pursuant to KRS 15.715(4), appointed the county attorney as the designee of the Attorney General to "perform the duties of that office [Commonwealth's attorney] until such time as the successor of that Commonwealth's attorney . . . shall be appointed or elected as elsewhere provided by law or until the Commonwealth's attorney or county attorney resumes the duties of his office as provided by law." KRS 15.715(4).
You have raised a question as to whether there is a conflict in so designating the county attorney to perform the duties of the Commonwealth's attorney on a temporary basis. You have referenced the Kentucky Constitution, Section 165, which prohibits a person from being a county and a state officer at the same time. See also, KRS 61.080(1).
Initially, it should be noted that both the Commonwealth's attorney and the county attorney, under certain circumstances, have statewide powers and are authorized by the legislature to perform such duties as the Attorney General may request. KRS 15.730 states:
Each regular Commonwealth's attorney and county attorney shall be, ex officio, a special prosecutor of the Commonwealth, and as such shall perform such duties and render such services, at such time and places, coextensive with the Commonwealth as may be required by the Attorney General. The duties and services may include, but are not limited to, prosecution of or participation in action outside of his judicial circuit or judicial district when directed by the Attorney General and assisting the Attorney General in preparation and presentation of the Commonwealth's position in criminal cases appealed to Circuit Court, Court of Appeals, and the Supreme Court.
The county attorney is a hybrid officer -- state prosecutor and county government attorney. The county attorney has always been empowered to prosecute cases not being prosecuted by the Commonwealth's attorney. See
James v. Helm, 129 Ky. 323, 111 S.W. 335 at 337, 339-340 (1908);
Commonwealth v. Euster, 237 Ky. 162, 35 S.W.2d 1 at 3 (1931). In any event, the constitutional history of the county attorney's office is clear that the county attorney has always performed the dual function of state prosecutor and county government attorney. The Kentucky Constitution of 1890-91 did not intend to eliminate that duality since it permits the General Assembly to abolish Commonwealth's Attorneys and transfer their duties to county attorneys. See Kentucky Constitution, Section 108.
It should also be noted that no appointment as "special prosecutor" is required under KRS 15.730, except to designate duties. All county attorneys and all Commonwealth's attorneys are at all times special prosecutors, except that most have no duties assigned to them. KRS 15.725(3) provides that the Commonwealth's attorney and the county attorney shall cooperate and assist each other in the performance of the other's duties.
KRS 15.730 also provides that the county attorney has prosecutorial duties which go beyond a particular county, as well as handling county attorney functions which are exclusive to the county that the county attorney represents. This has led this office to issue several opinions on the subject. It has previously been argued that to perform the duties of both offices violates Section 165 of the Kentucky Constitution and KRS 61.080, prohibiting the holding of both a state and local office. There are at least two opinions of the Attorney General which address this problem. The first, OAG 76-497, states:
There is a remaining question as to whether or not § 165 of the Constitution and KRS 61.080, which prohibit a person's being a county and a state officer at the same time, applies to the county attorney. The simple answer is "no", since the "county attorney" is one constitutional office, although the legislature may prescribe duties for that office pertaining to county functions as well as to state court functions. The legislature cannot actually create another "office" out of the present constitutional one.
The second opinion of the Attorney General, OAG 80-341, states:
The county attorney is a county constitutional officer, pursuant to Section 99 of the Kentucky Constitution. Two constitutional offices simply cannot be created out of one. However, under legislative flexibility in assigning duties, the General Assembly has assigned both prosecutorial and civil duties to the county attorney. His assistants follow that dichotomy of function. Thus the county attorney cannot under the constitution be both a state officer and a county officer. He remains a county constitutional officer as relates to this constitutional origin. Section 99 of the Constitution prescribes no specific duties. Consequently, it is up to the legislature to establish those duties. The court, in
Olive v. Coleman, 228 Ky. 127, 14 S.W.2d 404 (1929), observed at page 405 that "There is no provision of the constitution forbidding a change in the duties of public officers, and so the legislature may add to or take from official duties. . . ." (Emphasis added). It is also well settled that the legislature may change the duties of an office without violating the constitutional rights of the officer.
Wehrman v. Wegener, Ky., 264 S.W.2d 855 (1954).
Thus for the purposes of Section 165 of the Kentucky Constitution, the county attorney must be considered only a county officer, otherwise the dual system of statutory duties as measured by Section 165 [prohibits a state officer from being a county officer at the same time] would be unconstitutional.
As already noted, the Attorney General is given specific authority by the legislature to either personally fulfill the duties of a vacant office, to assign another prosecutor to perform these duties, or to designate an eligible individual to perform the duties of that office until a successor is appointed or elected as elsewhere provided by law. The purpose of this legislation, passed by the General Assembly in 1990, was to ensure that the duties of the office are continually performed and that an emergency vacancy, caused, for example, by the death of an incumbent, does not result in an interruption of services.
Under present law a vacancy in the office of Commonwealth's or county attorney automatically passes the power to perform the duties of the office to the Attorney General or his designee. This is a temporary or interim power. However, until a successor is appointed or elected, the Attorney General exercises all of the duties of the office. See OAG 92-101. This would include hiring and firing assistant Commonwealth's attorneys and all other duties relating to not only the prosecution of cases but also the administrative running of the office. If the statute were narrowly read to include only the power to prosecute cases, then only a partial solution would have been achieved. There would then, in theory, be no authority for the Attorney General or his designee to hire new attorneys, to take administrative action regarding purchasing of supplies, authorizing repairs to equipment or any of the many other things which would be necessary to keep an office (particularly a large office) running. Although the time of the interim appointment will differ from case to case, it is possible for many months to go by before a new election is held or the Governor makes an appointment, making it critical that all duties of the vacant office are performed. This statute was designed to prevent such an interregnum.
In our opinion, therefore, the county attorney does not lose his status as a county officer simply by taking on prosecutorial and other duties involving the commonwealth's attorney's office. This result logically is the same whether the county attorney takes on one duty, ten duties, or all duties of the Commonwealth's attorney. The individual who is county attorney remains, for purposes of the Constitution, the county attorney throughout.
In conclusion, while it would be incompatible for a county attorney to hold, at the same time (either through election or appointment) the office of Commonwealth's attorney, it is not a conflict under Section 165 of the Kentucky Constitution or under KRS 61.080 for the county attorney, on a temporary basis, to assume the duties of the Commonwealth's attorney for an interim period until another person can be either appointed or elected to fill the office. During the time that the county attorney is acting as commonwealth's attorney, even if all duties are performed, the county attorney is not holding the office. He does not become the "Commonwealth's attorney." For this simple reason, I conclude that there is no conflict.