Request By:
David E. Fleenor
General Counsel, Cabinet for Health and Family Services
Opinion
Opinion By: GREGORY D. STUMBO, ATTORNEY GENERAL; Gerard R. Gerhard, Assistant Attorney General
Opinion of the Attorney General
The question addressed in this opinion is whether a member of the Lexington-Fayette Urban County Council may also serve as a division director within the Cabinet for Health and Family Services.
For reasons expressed below, we believe one may not lawfully serve at the same time in the two positions in question.
The question here arises because of Section 165 of the Constitution of Kentucky, and Kentucky Revised Statutes (KRS) 61.080, which implements that section.
KRS 61.080(1) provides:
No person shall, at the same time, be a state officer, a deputy state officer or a member of the General Assembly and an officer of any county, city, consolidated local government, or other municipality, or an employee thereof.
Given Section 165 of the Constitution of Kentucky, and KRS 61.080(1), the first question here is whether the state position here concerned is that of a state "office," as distinguished from state "employment."
Division director with state agency is state "officer."
The state position is "class titled," for state personnel purposes, as "Division Director II."
As described in the request for this opinion, the Division Director will have "responsibility over the activities of service region administrators for human services programs in Kentucky."
In Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815, 817 (1947), the court cited five elements indispensable in any position of public employment in order to make it a public office of a civil nature:
It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. "
In our view, a division director within the Cabinet for Health and Family Services, with responsibility over the activities of service region administrators for human services programs in Kentucky, meets these requirements.
Having responsibility over the activities of service region administrators for human services programs in Kentucky appear to be the exercise of a portion of the sovereign power of government for the benefit of the public.
The power conferred and the duties to be discharged are defined. See, for example, the class specification for the position.
The duties are performed are those of a subordinate office created pursuant to legislative authority and under the general control of a cabinet secretary, commissioner or other similar superior officer.
The position appears to have some permanency and continuity, rather than one of a temporary or occasional nature.
For the reasons indicated, in our view, the division director position in question is clearly that of a state officer, rather than that of a state employee.
Urban county council member is a "county officer. "
There remains the question of whether a member of the Lexington-Fayette Urban County Council is an officer of a "county" within the meaning of KRS 61.080(1).
In Opinion of the Attorney General (OAG) 74-207, which we here overrule, this office indicated, citing the then unreported case of Holsclaw v. Stephens, Ky., 507 S.W.2d 462, (1974), that:
In view of the fact that members of the metropolitan police department cannot be considered either city or county officers, but officers of a new form of local government not contemplated by the Constitution nor within the terms of KRS 61.080, there would exist no constitutional or statutory incompatibility were a person, such as yourself, to hold the position of patrolman with the Lexington Metropolitan Police Department and at the same time serve as a part-time deputy sheriff, which is, of course, a county office pursuant to § 99 of the Constitution.
Upon review incident to this opinion, we believe the better view is that Fayette County is a county with an urban county form of government and not, as indicated in OAG 74-207, "a new form of local government not contemplated by the Constitution nor within the terms of KRS 61.080." In our view the officers of the Lexington-Fayette Urban County are officers of a county, albeit one with an urban county form of government.
In Holsclaw, supra, at 475, the court observed: Counties are basic subdivisions of the Commonwealth. They too may be abolished by the General Assembly (Section 63 of the Constitution) but in that event the territory comprising the county must be added to an adjoining county or counties. Fayette County has not been abolished. It remains as a geographic entity which shall hereafter be governed locally by urban county government.
In Lexington-Fayette Urban County Government v. Smolcic, et al., Ky., 142 S.W.3d 128, 131 (2004), the Kentucky Supreme Court indicated:
Jurdana, Meculj, and Vasicek argue that LFUCG is neither a county nor a county government; that, rather, LFUCG is a new and different form of local government not anticipated by the Kentucky Constitution. * * * A necessary premise for their argument that LFUCG is not a county is that Fayette County no longer exists. The premise is false. Further, the Supreme Court indicates: [W]e reaffirm our holding in Holsclaw that urban county governments constitute a new classification of county government.
Id. at 132.
Given our review of the cases cited above, we believe we must overrule the view of this office expressed in OAG 74-207, and in OAG 82-482 (finding the urban county government to be a "hybrid" form of government) . Officers of an urban county are county officers.
It follows that, in our view, a member of the Lexington-Fayette Urban County Council, a county officer, cannot lawfully serve, at the same time, as a division director within the Cabinet for Health and Family Services, as such position is a state office. To hold both positions at the same time would be in violation of KRS 61.080(1).