Request By:
John Marshall
Beattyville Police Officer
Opinion
Opinion By: Daniel Cameron,ATTORNEY GENERAL; Charles A. English,Assistant Attorney General
Opinion of the Attorney General
John Marshall, a Beattyville police officer, asks whether the office of Breathitt County magistrate is compatible with his employment as a police officer. For the reasons below, it is the Attorney General's opinion that the two positions are not incompatible.
Two offices may be incompatible under the Kentucky Constitution, the Commonwealth's statutes, or the common law. As this Office has stated previously, magistrates are county officers. See OAG 20-19; see also Ky. Const. § 99 (providing for the election of justices of the peace as county officers 1). The tougher question, however, is whether a Beattyville police officer is a municipal officer or a municipal employee . This is an important initial determination because, under KRS 61.080(3), "[n]o person shall, at the same time, fill a county office and a municipal office." See also
Clark Cty. Attorney v. Thompson , 617 S.W.3d 427, 431 (Ky. App. 2021) ("That distinction is crucial because the prohibition bars serving as both a municipal officer and county officer, not against being a municipal employee and a county officer."). Statutory incompatibility here, then, turns on whether the Beattyville police officer is a municipal officer or a municipal employee.
Although the "[t]he Attorney General has consistently stated in multiple OAG decisions . . . that municipal police officers are municipal officers," 617 S.W.3d at 432, the Thompson Court has instructed that "the determination of whether a government employee is an officer 'has to be on a case-by-case basis , depending on the nature and importance of the office in question.'" Thompson , 617 S.W.3d at 433 (quoting
Commonwealth ex rel. Hancock v. Clark , 506 S.W.2d 503, 504 (Ky. 1974)) (emphasis added). Therefore, following the holding in Thompson , "we address only whether [a Beattyville police officer] is an officer, not whether all municipal police officers are, or are not, municipal officers." Id.
The eight-element definition of "officer" normally used in an incompatibility analysis is found in KRS 83A.010(10). But because police officers are not elected, that provision is inapplicable to our analysis. Thompson , 617 S.W.3d at 434. Rather, KRS 83A.130 governs our analysis because Beattyville is organized under "the mayor-council plan." See Beattyville Ordinance § 30.01.
Under the mayor-council plan form of government, "[t]he mayor shall be the appointing authority with power to appoint and remove all city employees, including police officers." KRS 83A.130(9); see also KRS 95.015 (providing that members of police departments are employed). Here, KRS 83A.130(9) explicitly refers to police officers as city "employees." And as the Supreme Court of Kentucky has noted, "[t]he text is the law." Owen v. Univ. of Ky. , 486 S.W.3d 266, 272 (Ky. 2016). Beattyville police officers are therefore municipal employees, not officers.
This conclusion finds more support in KRS 83A.080(1), which provides that "[a]ll nonelected city offices shall be created by ordinance which shall specify: (a) Title of office; (b) Powers and duties of office; (c) Oath of office; and (d) Bond, if required." But there is no Beattyville ordinance that specifies the title, powers, oath, and bond (if required) for city police officers. 2In short, there is no indication that any Beattyville ordinance creating the position of Beattyville city police officer satisfies the mandatory nonelected city officer requirements of KRS 83A.080(1). Thus, the police officer here is not a nonelected city officer. "And since police officers are not elected, that means they cannot be city officers at all." Thompson , 617 S.W.3d at 434. For these reasons, the Attorney General finds that Beattyville police officers are municipal employees, and not municipal officers. Thus, the positions are compatible with each other under KRS 61.080(3).
Turning to constitutional incompatibility, Section 165 of the Kentucky Constitution provides:
No person shall, at the same time, be a State officer or a deputy officer or member of the General Assembly, and an officer of any county, city, town, or other municipality, or an employee thereof; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities, except as may be otherwise provided in this Constitution[.]
There is no constitutional incompatibility between Marshall's two positions. Marshall does not hold a state office, and as explained above, does not hold a municipal office. As
Walling v. Commonwealth , 84 S.W.2d 10, 12 (Ky. 1935), noted, Section 165 "do[es] not forbid a county officer being an employee of a city or town." Thus, the Attorney General finds that the positions of Breathitt County magistrate and Beattyville police officer are not constitutionally incompatible.
Finally, an incompatibility analysis does not end with the constitutional and statutory text. The lists of incompatible offices set forth in Section 165 and KRS 61.080 are not exhaustive.
LaGrange City Council v. Hall Bros. Co. of Oldham Cty., Inc. , 3 S.W.3d 765, 769 (Ky. App. 1999) ("The constitutional and statutory enumerations of incompatible offices are not the exclusive instances of incompatibility."). In addition to constitutional and statutory incompatibility, the common law also prohibits individuals from occupying "functionally incompatible" offices. Id. at 770.
As the Court of Appeals has explained, "[t]he question is 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 769-70. "For example, two positions would be incompatible 'whenever one has the power of appointment to or removal from the other and whenever there are any potential conflicts of interest between the two (2), such as salary negotiations, supervision and control of duties, and obligations to the public to exercise independent judgment.'" Thompson , 617 S.W.3d at 435. (citing LaGrange City Council , 3 S.W.3d at 770 (footnote omitted)); see also
Webb v. Carter Cty. Fiscal Ct. , 165 S.W.3d 490, 493 (Ky. App. 2005) ("The doctrine of incompatibility bars an individual from holding both public office and public employment where one position is subordinate to the other or is subject to the audit or review of the other.").
The office of Breathitt County magistrate and the position of Beattyville police officer cannot be "functionally incompatible" because the two positions are in different counties. See LaGrange City Council , 3 S.W.3d at 770. Beattyville is in Lee County. Thus, because the positions are in different counties--Lee and Breathitt--it is inconceivable that one position is subordinated to the other. Id. at 769-70. For example, the office of Breathitt County magistrate does not have "the power of appointment to or removal from," LaGrange City Council , 3 S.W.3d at 770, the position of Beattyville police officer because Beattyville police officers are appointed by the mayor of Beattyville. See Beattyville Ordinance § 37.02(C). As such, there would be no conflict 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 770. The Attorney General therefore concludes that the office of Breathitt County magistrate and the position of Beattyville police officer are not functionally incompatible under the common law.
For all of these reasons, it is the Attorney General's opinion that the office of Breathitt County magistrate is not incompatible with the position of Beattyville police officer under the Commonwealth's Constitution, statutes, or common law.
Footnotes
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