Request By:
Honorable A.G. Pritchett
Henderson County Judge
Courthouse
Henderson, Kentucky 42420
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You seek our opinion as to whether a trial commissioner appointed by the county judge may at the same time be employed by a county riverport authority to act as legal counsel for the riverport authority. The trial commissioner for county court is a state officer. KRS 25.280. In the Judicial Article, amending the constitution [see S.B. 183, Ch. 84, 1974 Session, Section 2, paragraph 5], it is stated that county and quarterly courts remain in existence until January 2, 1978. It further provides that during the interim period prior to January 2, 1978, those courts shall continue to be governed by the present constitution and none of the provisions of the amendment shall apply to them, "except that those courts shall be deemed a part of the unified judicial system and shall be subject to the general control and rule-making power of the Supreme Court." (Emphasis added). Thus the trial commissioner of county court is a state officer, since the county judge, for whom he acts, is a state officer in the constitutional sense.
A riverport authority is a public agency exercising certain powers for governmental and public purposes. The legal counsel is employed by the riverport authority pursuant to KRS 65.570(2), but he is not a public officer in that capacity.
We know of no statute or section 1 prohibiting the trial commissioner from being at the same time legal counsel for the riverport authority. Cf. KRS 61.080 and § 165, Kentucky Constitution, relating to incompatible offices and employments. KRS 61.080 and § 165, Constitution, prohibit a person from being a state officer and an employee of "other municipality. " However, we do not believe a riverport authority is a "municipality" as mentioned in the statute and in the constitution.
In
City of Louisville M.H. Com'n v. Public Housing Admin., Ky., 261 S.W.2d 286 (1953) 288, Justice Combs pointed out that the municipal housing commission created by statute was a hybrid, conceived for a purpose never contemplated by the framers of our constitution. The same can be said about a riverport authority. Since it was not in the contemplation of the framers of the constitution, its inclusion under the term "other municipality" , as found in § 165, Constitution, would be wholly illogical and against the original intent of the framers of the constitution. This position is buttressed by certain cases involving legislatively created "districts."
Judge Settle, in Gleason v. Weber, 155 Ky. 431, 159 S.W. 976 (1913) 979, recognized that the court in
City of Covington v. District of Highlands, 113 Ky. 612, 68 S.W. 669 (1902) had held that the District of Highlands came within the phrase "other municipalities" as contained in § 157 of the Constitution, the court holding that the term "other municipalities" contemplated the continued existence of certain municipalities [created before the 1891 constitution] in the Commonwealth which could not be classified as "cities" or "towns", but are embraced by the phrase "other municipalities. " These districts all had certain powers of self government. A "municipality" is defined in Black's Dictionary, p. 1170, as "a legally incorporated or duly authorized association of inhabitants of limited area for local governmental or other public purposes." However, we do not believe that a riverport authority was in contemplation of the constitutional framers in writing § 165 in 1891, and the riverport authority legislation was first enacted in 1964.
If it is correctly assumed that the trial commissioner can perform in both capacities with care and ability and with impartiality and honesty, then no common law incompatibility would be involved. See
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126.
Footnotes
Footnotes
1 Constitutional