Request By:
Allison Connelly, Chair,
Lexington-Fayette Urban County Government Ethics Commission
Opinion
Opinion By: GREGORY D. STUMBO, ATTORNEY GENERAL; Gerard Gerhard, Assistant Attorney General
Opinion of the Attorney General
The question has been posed whether a person may be a member of the Lexington-Fayette County Urban County Council, and, at the same time, serve as the executive director of the Office of the Ombudsman in the Cabinet for Health and Family Services.
In our view, for reasons discussed below, the answer is no.
This question arises because of Section 165 of the Constitution of Kentucky, which provides, in part pertinent here:
No person shall, at the same time, be a State officer or a deputy officer or a member of the General Assembly, and an officer of any county, city, town, or other municipality . . . .
The above quoted portion of the Constitution of Kentucky is implemented statutorily by Kentucky Revised Statutes (KRS) 61.080(1), the language of which parallels the language of the Constitution.
George G. Myers, as we understand it, was elected to the Lexington- Fayette Urban County Council on November 4, 2004, and subsequently, without resigning the Council position, accepted appointment as the executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services.
In Opinion of the Attorney General (OAG) 04-010, this office observed that, in our view, officers of the Lexington-Fayette Urban County are officers of a county, albeit one with an urban county form of government. We reiterate that view here: A member of the Lexington-Fayette County Urban County Council is a county officer.
This leaves the question of whether the position of executive director of the Office of the Ombudsman in the Cabinet for Health and Family Services is that of a state office, as distinguished from state employment.
Careful consideration has been given to points made in a June 3, 2005, letter from attorney D. Eric Lycan, regarding Mr. Myers' appointment as the executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services, as well as the June 1, 2005, affidavit of Mr. Myers that accompanied Mr. Lycan's letter.
The submissions of Mr. Lycan and Mr. Myers cite, in part, text excerpted from the website of the Cabinet for Health and Family Services, related to the Office of the Ombudsman, which indicates:
Office of the Ombudsman answers questions about CHFS programs, investigates client complaints and works with the CHFS management to resolve them. The Office of the Ombudsman advises CHFS management about patterns of complaints and recommends corrective action when appropriate.
The letter and affidavit mentioned above suggest, in substance, that the purpose of the Office of the Ombudsman is merely to advise, explain and act as a liaison between the public and the Cabinet, that the Office exercises no sovereign power or authority of government, and that the duties of the position do not constitute a delegation of a portion of the sovereign power of government, such that the position is not that of a "state office. "
OAG 04-012, cited in Mr. Lycan's letter, and Mr. Myers' affidavit, is inapplicable here. That opinion addressed a position that did not have the characteristics of the position to which Mr. Myers has accepted appointment.
Neither Mr. Lycan's letter, nor Mr. Myers' affidavit, mention Kentucky Revised Statutes (KRS) 194A.030(8), which expressly provides for the Office of the Ombudsman as a major organizational unit of the Cabinet for Health and Family Services, and provides that that office shall be headed by an executive director, who shall be appointed by the secretary with the approval of the Governor under KRS 12.050.
In several cases Kentucky's highest court has noted the difficulty of drawing the line between the position of a mere employee and that of an officer.
In
City of Lexington v. Thompson, 250 Ky. 96, 61 S.W.2d 1092, 1093 (1933), Kentucky's then highest court recited 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.
See also:
Taylor v. Commonwealth, 305 Ky. 75, 202 S.W.2d 992, 994 (1947), and
Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815, 817 (1947).
Comparing the position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services with the elements set forth above, we find the following:
KRS 194A.030(8), in creating the Office of the Ombudsman as a major organizational unit within the Cabinet for Health and Family Services, provides:
Office of the Ombudsman. The Office of the Ombudsman shall provide professional support in the evaluation of programs, including but not limited to quality improvement and information analysis and reporting, including contract monitoring, program monitoring, and the development of quality service delivery, and a review and resolution of citizen complaints about programs or services of the cabinet when those com plaints are unable to be resolved through normal administrative remedies. The Office of the Ombudsman shall place an emphasis on research and best practice and program accountability and shall monitor federal compliance. The Office of the Ombudsman shall be headed by an executive director who shall be appointed by the secretary with the approval of the Governor under KRS 12.050.
From a plain reading of KRS 194A.030(8) it may be seen that the position of executive director of the Office of the Ombudsman is created by the legislature.
In being statutorily designated as the head of an office having the duties and functions described in KRS 194A.030(8), the executive director of the Office of the Ombudsman possesses a delegation of a portion of the sovereign power of government to be exercised for the benefit of the public as provided by KRS 194A.030(8), which indicates that the Office of the Ombudsman shall:
provide professional support in the evaluation of programs, including but not limited to quality improvement and information analysis and reporting, including contract monitoring, and the development of quality service delivery, and a review and resolution of citizen complaints about programs or services of the cabinet when those complaints are unable to be resolved through normal administrative remedies. The Office of the Ombudsman shall place an emphasis on research and best practice and program accountability and shall monitor federal compliance.
The preceding language quoted from KRS 194A.030(8) defines the powers conferred and the duties to be performed.
The duties of the executive director of the Office of the Ombudsman are necessarily performed in the manner determined by the executive director, although the Office is an inferior one under the general control of the secretary of the Cabinet for Health and Family Services.
The executive director of the Office of the Ombudsman, given KRS 194A.030(8), is cloaked with power to be exercised for the benefit of the public as a continuing and permanent function, not as an incidental or transient authority.
From the analysis set forth above, it may be seen that the position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services possesses each of the elements of a state "office" as distinguished from a position of mere employment. City of Lexington, supra.
A review of the complete web page of the Office of the Ombudsman, and of KRS 194A.030(8), indicates the significant duties and discretion implicit in the position of the executive director of that office, and belies the contention that the position does not possess a delegation of a portion of the sovereign power of government to be exercised for the benefit of the public.
For the reasons indicated, in our view, the position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services is a "state office" and one holding such position is a "state officer" within the meaning of KRS 61.080(1).
Mr. Myers cannot, again in our view, lawfully be a member of the Lexington-Fayette Urban County Council, and, at the same time, hold the position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services. Constitution of Kentucky § 165, KRS 61.080(1).
It should be noted that an Opinion of the Attorney General, in this context, does not carry the force of law. The issue of concern here might ultimately have to be resolved in court.
KRS 61.090 provides that the acceptance by one in office of another office incompatible with the one he holds shall operate to vacate the first.
Should Mr. Myers not resign from the Urban County Council, the matter might be brought to the attention of the Commonwealth's Attorney for possible action pursuant to KRS 415.040.