Request By:
Mr. Gene Peter
Deputy Secretary
Department for Natural Resources
and Environmental Protection
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether KRS 146.425(1)(b) would be violated if an employe of the University of Kentucky Community College System served as a member of the Kentucky Nature Preserves Commission.
You also ask that in the event the above mentioned situation violates KRS 146.425(1)(b), what effect the person's membership and participation will have on matters conducted by the Commission.
KRS 146.425(1)(b), dealing with the five members of the Kentucky Nature Preserves Commission, states as follows:
"Of the five (5) commission members, one shall be a representative from the Farm Bureau Association, one shall be a representative from the National Farmers Organization, and one shall be a representative from the State Association of Soil Conservation Districts. Each member shall be a resident of Kentucky, and not an employe or officer of the Commonwealth." (Emphasis supplied.)
In OAG 73-8, copy enclosed, we said in part as follows:
". . . The Henderson Community College is one created pursuant to KRS 164.575 to 164.600. This college is part of the University of Kentucky Community College System and is, as a consequence, a part of the University of Kentucky which is a state agency. Thus, professors, teachers, or other employees of the community college, must be considered state employees. . . ."
KRS 146.425(1)(b) specifically prohibits a member of the Kentucky Nature Preserves Commission from being an employe or officer of the Commonwealth. Since an employe of the University of Kentucky Community College System (KRS 164.575 to 164.600) is a state employe, such an employe is prohibited by statute from serving as a member of the Kentucky Nature Preserves Commission. See also OAG 76-563, copy enclosed, at page one.
If a state employe is serving as a member of the Kentucky Nature Preserves Commission he is serving in violation of KRS 146.425(1)(b) and is subject to removal from the commission. However, until the disqualified commission member either resigns or is removed from his position as a commission member, he serves as a de facto officer and his acts if otherwise authorized and permissible are considered valid. See Commonwealth Ex Rel. Breckinridge v. Winstead, Ky., 430 S.W.2d 647 (1968) and OAG's 76-381 and 75-722, copies enclosed.
We also direct your attention to Fidelity & Deposit Company of Maryland v. Combs, 176 F.Supp. 756, 758 (U.S. Dist. Ct., E.D. Ky., 1959), where a de facto officer is defined as follows:
"A de facto officer may be defined as one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper. When a person is found thus openly in the occupation of a public office, and discharging its duties, third persons having occasion to deal with him in his capacity as such officer are not required to investigate his title, but may safely act upon the assumption that he is a rightful officer."