Request By:
Bonnie Jung
Mayor, Douglass Hills
Opinion
Opinion By: Daniel Cameron, ATTORNEY GENERAL; Jeremy J. Sylvester, Assistant Attorney General
Opinion of the Attorney General
Douglass Hills Mayor Bonnie Jung, asks whether service as a Parkway Village Commissioner is incompatible with service as a director on the Waste Management District 109 Board. For the reasons below, it is the Attorney General's opinion that, under the facts presented here, service as a Parkway Village Commissioner is not incompatible with simultaneous service as a director on a waste management district board established under KRS Chapter 109.
Background . Parkway Village is a home-rule city in Jefferson County, Kentucky. According to Parkway Village's Code of Ordinances, 1the city is governed under the commission plan found in KRS 83A.140. Parkway Village Code of Ordinances § 30.01. As such, Parkway Village has a legislative body composed of a mayor and four commissioners. Id. at § 30.02. Each commissioner is elected at large by the voters of the city at a regular election. Id. at § 32.01(A). A Parkway Village commissioner therefore holds a municipal office.
A waste management district may be created by "[a] single county, or two (2) or more counties . . . in accordance with the procedures of KRS 65.182." KRS 109.115(1). Here, the Jefferson County Fiscal Court adopted a waste management district in December 1990.
Louisville/Jefferson Cnty. Metro Gov't Waste Mgmt. Dist. v. Jefferson Cnty. League of Cities, Inc. , 626 S.W.3d 623, 626 (Ky. 2021). "Waste management districts . . . have all powers and authority set forth in KRS 109.041," KRS 109.115(1), and are controlled and managed by a board of directors. KRS 109.115(2). The directors of the board are appointed by the mayor of a consolidated local government, like Louisville, or the county judge/executive and the mayor of the most populous city in the county, with the approval of the local government. KRS 109.115(3) (governing counties without consolidated local governments); KRS 109.115(4) (governing counties with consolidated local governments). A waste management district is properly characterized as a "special purpose governmental entity" under KRS 65A.010(9)(a). It is (1) an entity created by statute, (2) which exercises less than statewide jurisdiction, (3) is governed by a board with policy-making authority that's separate from the state and the governing body of the county in which it operates, and (4) receives and expends public funds from the county. KRS 65A.010(9). Moreover, the General Assembly has characterized "waste management" as an example of the type of public service that may be provided by special purpose governmental entities. KRS 65A.010(9)(c)7.
Analysis . Section 165 of the Kentucky Constitution provides the scope of constitutional incompatibility:
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[.]
Ky. Const. § 165. Based on the text of the Constitution, Section 165 does not prohibit a municipal officer from also serving on a special purpose governmental entity.
The General Assembly has by statute also made certain offices incompatible. See KRS 61.080. But like Section 165, KRS 61.080 does not prohibit a municipal officer from also serving on a special purpose governmental entity. These entities have been held to be "hybrid agencies" that do not fall within the scope of this statute. See, e.g. , OAG 82-635 (member of a county water district was serving in a hybrid agency and was thus not serving as state, county, or city officer); OAG 76-257 (noting that hybrid agencies are not contemplated by KRS 61.080).
As Kentucky law makes clear, however, an incompatibility analysis does not end with the constitutional and statutory text because 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 Cnty., 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."). Along with constitutional and statutory incompatibility, the common law "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."
Webb v. Carter Cnty. Fiscal Ct. , 165 S.W.3d 490, 493 (Ky. App. 2005). In other words, the common law prohibits individuals from occupying "functionally incompatible" offices. LaGrange City Council , 3 S.W.3d at 769. "The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of 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."
Polley v. Fortenberry , 105 S.W.2d 143, 145 (Ky. 1937) (quoting
Barkley v. Stockdell , 66 S.W.2d 43, 44 (Ky. 1933)). To determine whether the office of Parkway Village Commissioner is functionally incompatible with service as a director on a waste management district board, we must examine the functions of those offices.
The powers and duties of the Parkway Village Commission are found in state law and repeated in Section 32.03 of its Code of Ordinances. See generally KRS 83A.140. Among other duties, the Commission enforces Parkway Village's ordinances; provides for sufficient revenue to operate city government; supervises all departments of city government; maintains liaison with related units of local government respecting interlocal contracting and joint activities; reports to the public on the condition and needs of the city government; and promulgates procedures to ensure the orderly administration of the function of city government.
According to Section 51.107(B) of the Louisville Metro Code of Ordinances (LMCO), 2the duties of the Waste Management District include supervising the execution of all applicable laws, rules, and regulations pertaining to solid waste management; investigating all violations and grievances reported; issuing orders for corrections of violations; instituting necessary proceedings to prosecute those violations; and establishing procedures and enforcing regulations concerning matters pertaining to licensing and fees.
On the facts presented, this Office discerns no interrelationship that would render incompatible simultaneous service as a Parkway Village Commissioner and a director on the Waste Management District 109 Board. Neither position "has the power of appointment to or removal from the other." LaGrange City Council , 3 S.W.3d at 770. Waste management districts are administered by a board of directors, which controls and manages the affairs of the district. KRS 109.115(2). Here, none of the duties of the Louisville/Jefferson County Metro Government Waste Management District conflict with the position of Parkway Village Commissioner. In addition, there is no indication that one position has any role in setting the salary of the other or supervising or controlling the other's duties.
Conclusion . For the reasons set forth above, it is the Attorney General's opinion that neither the common law, KRS 61.080, nor Section 165 of the Kentucky Constitution prohibit simultaneous service as a Parkway Village Commissioner and a director on the Waste Management District 109 Board.
Footnotes
Footnotes