Request By:
Melissa Fannin Phelps, Martin County Attorney
Opinion
Opinion By: ANDY BESHEAR,ATTORNEY GENERAL;Sarah Ellen Eads Adkins,Assistant Attorney General
Opinion of the Attorney General
Melissa Fannin Phelps, Martin County Attorney, has requested an opinion of this office to address whether an elected coroner may also work as an employee in the County Sheriff's Department. In the scenario presented, the Coroner would work as an administrative assistant and possibly an evidence custodian/clerk. We advise that an elected coroner potentially should not simultaneously be employed by the County Sheriff's Department due to possible incompatibility at common law.
According to Kentucky law, an individual may not occupy two incompatible offices simultaneously.
LaGrange City Council v. Hall Bros, Co. of Oldham County, Inc. , 3 S.W.3d 765, 769 (Ky. App. 1999) (citation omitted). Constitutionally and statutorily incompatible offices are detailed in Ky. CONST. § 165 and KRS 61.080. The Kentucky Constitution prohibits an individual 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 an individual from occupying two municipal offices. Id. In relevant part, KRS 61.080(2) holds that, "[t]he offices of justice of the peace, county judge/executive, surveyor, sheriff, deputy sheriff, coroner, constable, jailer, and clerk or deputy clerk of a court, shall be incompatible, the one (1) with any of the others." Offices may also be incompatible according to 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."
Webb v. Carter Cty. Fiscal Court , 165 S.W.3d 490, 492-93 (Ky. App. 2005) (citing
Polley v. Fortenberry , 105 S.W.2d 143, 144-45 (Ky. 1937) and
Barkley v. Stockdell , 66 S.W.2d 43, 44 (Ky. 1933)). Incompatibility at common-law, or 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. "[W]henever one has the power of appointment to or removal from the other and whenever there are any potential conflicts of interest between the two . . . , such as salary negotiations, supervision and control of duties, and obligations to the public to exercise independent judgment." LaGrange City Council , 3 S.W.3d at 769.
The office of coroner and an employee in the Sheriff's Department are not incompatible under either the Kentucky Constitution or Kentucky statutes. However, they may still be incompatible under common law because they may be functionally incompatible, which is ultimately a question for the courts to decide. See OAG 77-712; OAG 77-8; OAG 79-211; OAG 81-427; OAG 82-491; and OAG 84-101.
In OAG 92-116, we determined that though the offices of deputy sheriff and deputy coroner are not statutorily nor constitutionally incompatible, "serious common law incompatibility or conflict of interest questions may be present, or may arise, where a deputy sheriff is also appointed as a deputy coroner." Section 99 of the Kentucky Constitution defines the separate offices of the sheriff and the coroner. OAG 92-116 summarizes how the two offices interact:
A deputy sheriff, in exercising the powers of the sheriff as a general law enforcement officer (KRS Chapter 70), has a duty to respond if called in connection with a death, and to initiate an investigation under the jurisdiction of the sheriff. At the same time, a coroner, or deputy thereof, has a responsibility pursuant to KRS Chapter 72 to carry out an independent investigation of a death under the jurisdiction of the coroner. A deputy coroner might well be in the position of evaluating the findings of sheriff's personnel in connection with a death investigation.
Because of this parallel but independent relationship, OAG 92-116 held specifically that the two offices were incompatible because "employing a deputy sheriff also as a deputy coroner potentially compromises the independence of a coroner's inquiry in a death case." Id.
Here, using the same reasoning, we believe that the two offices in question are potentially incompatible because of each office's "obligations to the public to exercise independent judgment." LaGrange City Council , 3 S.W.3d at 769. Though in this fact pattern, the coroner would be an administrative assistant at the Sheriff's Office and not a Deputy Sheriff as in OAG 92-116, an administrative assistant (and certainly an evidence custodian/ clerk) would have access to evidence relating to cases being investigated by both offices. The risk contemplated by OAG 92-116 is that being exposed to that evidence might compromise "the independence of a coroner's inquiry in a death case," which is not resolved in the current fact pattern. OAG 92-116. For that reason, we advise there is a potential common law incompatibility when the same individual serves as coroner while employed by the Sheriff's Department.
Having said that, this opinion is this office's interpretation of the law; we recognize that "[t]he 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.