Request By:
Taylor Payne,
Assistant Attorney General
Opinion
Opinion By: ANDY BESHEAR,ATTORNEY GENERAL;Taylor Payne,Assistant Attorney General
Opinion of the Attorney General
Michael Huffman, a trustee of the Mount Washington Fire Protection District (the "District"), has requested an opinion as to whether a person may simultaneously hold the offices of a trustee of the District and a member of the Bullitt County Fiscal Court (the "Fiscal Court"). We advise that the offices of a trustee of the District and member of the Fiscal Court are incompatible at common law.
Kentucky law does not permit the same person to occupy two incompatible offices at the same time.
LaGrange City Council v. Hall Bros. Co. of Oldham County, Inc., 3 S.W.3d 765, 769 (Ky. App. 1999) (citation omitted). Offices may be incompatible if so declared by the Kentucky Constitution or legislative enactment. Id. Offices may also be incompatible at common law "when the two offices are inherently inconsistent or repugnant, or when the occupancy of the two offices is detrimental to the public interest. " Id. (citing
Polley v. Fortenberry, 105 S.W.2d 143, 144-45 (Ky. 1937);
Barkley v. Stockdell, 66 S.W.2d 43, 44 (Ky. 1933)).
The Kentucky Constitution prohibits a person from being a state officer "and an officer of any county, city, town or other municipality, or an employee thereof[.]" KY. CONST. § 165. It also prohibits a person from occupying two municipal offices. Id. Kentucky Revised Statute 61.080 sets forth additional incompatible offices. It states that "[n]o person shall, at the same time, fill a county office and a municipal office." KRS 61.080(3). The statute also states that "[n]o person shall, at the same time, fill any two (2) appointed offices of special purpose governmental entities, as defined in KRS 65A.010, that each have the authority to levy taxes." KRS 61.080(5). It also precludes a person from filling a state office and an appointed office of a special purpose governmental entity that has the authority to levy taxes. KRS 61.080(6).
A member of the Fiscal Court is a county officer. See OAG 77-8. See generally KRS Chapter 67. A member of the District is an appointed officer of a special purpose governmental entity. KRS 65A.010(9)(a) and (c). As such, a member of the District is not considered a state, city or county officer for purposes of Section 165 of the Kentucky Constitution or KRS 61.080. OAG 82-304. In OAG 73-711, this office stated, "[t]he fire protection district is an independent organization, but it is not equivalent to a municipality under the constitutional and statutory sections mentioned. It is merely a separate taxing district." (citation omitted). Therefore, neither Section 165 of the Kentucky Constitution nor KRS 61.080 preclude a person from, at the same time, holding a county office and a special purpose governmental entity office.
Nevertheless, the offices may still be functionally incompatible at common law. "Functional incompatibility depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them." LaGrange City Council, 3 S.W.3d at 769. When considering a functional incompatibility, courts consider "whether one office is subordinated to the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest. " Id. at 769-770 (citations omitted). Reflecting on those considerations, this office has stated, "[p]ublic policy demands that a public officer must be able to deal objectively with the public's business." OAG 78-651 (citing Barkley, 66 S.W.2d at 44; and
Commonwealth v. Withers, 98 S.W.2d 24, 25-26 (Ky. 1936)).
In the case at hand, the Board of Trustees (the "Board") conducts the affairs of the District. See KRS 75.031(1)(a). The Board consists of seven (7) members, four (4) of which are elected by the members of the District and three (3) appointed by the County Judge/Executive of Bullitt County, subject to approval by the Fiscal Court. See id. If any trustee's term is vacated prior to its expiration, the County Judge/Executive of Bullitt County, subject to approval of the Fiscal Court, appoints a trustee for the remainder of the term. See id. Furthermore, the County Judge/Executive of Bullitt County, subject to approval of the Fiscal Court, may remove an appointed trustee pursuant to the provisions of KRS 65.007, and may remove an elected firefighter trustee pursuant to KRS 75.031(1)(d) and (e). See KRS 75.031(1)(b), (d) and(e).
In OAG 78-651, this office addressed whether the offices of a member of the Hardin County Fiscal Court and a member of the board of commissioners of a water district organized in Hardin County were incompatible. Water districts are organized under KRS Chapter 74. Its members are appointed by the County Judge/Executive subject to approval of the fiscal court. KRS 74.020. Additionally, the County Judge/Executive sets the salary of the water district members, subject to approval of the fiscal court. Id. Based on this statutory structure, this office concluded that neither the County Judge/Executive nor any member of the Hardin County Fiscal Court could serve as a commissioner on the board of the water district because the offices are incompatible as a matter of public policy. OAG 78-651. This office reasoned that "[t]he fiscal court would be finally approving the appointment of one of its members as a water commissioner and approving the salary thereof [and that as a result] [t]he fiscal court would simply not be able to deal objectively with the water commissioner subject." Id.
The District is structured similarly to water districts under Kentucky law. Although the Board establishes its trustees' salaries, the Fiscal Court must approve appointments to the Board. Additionally, the Fiscal Court must approve the removal of any appointed trustee or elected firefighter trustee and any appointment that fills a vacated term of office. As with water district boards, this final approval authority held by the Fiscal Court over appointment and removal decisions prevents a member of the Fiscal Court who also held office as a member of the Board from dealing objectively with the Board. As a result, this office opines that the offices of a trustee of the Mount Washington Fire Protection District Board of Trustees and member of the Bullitt County Fiscal Court are incompatible.
Having said that, this opinion is this office's interpretation of the law; we recognize that "Nike existence of a common law incompatibility is, ultimately a question for the courts to decide." OAG 77-712. See also OAG 77-8, OAG 79-211, OAG 81-427, OAG 82-491, and OAG 84-101. If a court were to find these offices incompatible, KRS 61.090 mandates that a person's acceptance of the office that caused the incompatibility operates to vacate the first office.