Request By:
Mr. Kenneth E. Bland
c/o Rowan County Board of Education
118 University Boulevard
Morehead, Kentucky 40351
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 17 in which you relate that you are presently employed as Assistant Superintendent and Treasurer for the Rowan County Board of Education. You are at the same time seeking nomination to the office of magistrate of the third magisterial district of the county in the May primary. Under the circumstances, you raise the question as to whether or not the two offices are compatible.
The answer to your question would be in the negative. KRS 160.360 provides that each board of education may appoint as many assistant superintendents as it deems necessary. The Court of Appeals in a number of cases has indicated that an assistant superintendent stands in the same position as the superintendent since he has the same powers and duties as the superintendent. See
Knuckles v. Board of Education, 272 Ky. 431, 114 S.W.2d 511 (1938); and
Richardson v. Bell County Board of Education, 296 Ky. 520, 177 S.W.2d 871 (1944). A superintendent of a county school is a state officer pursuant to KRS 160.350 and as held in a number of cases, among them being
Whitley County Board of Education v. Rose, 267 Ky. 283, 102 S.W.2d 28 (1937); and
Board of Education of Graves County v. DeWeese, Ky., 343 S.W.2d 598 (1960). Since an assistant superintendent has essentially the same powers and duties as the superintendent, we believe that he would, in like manner, be classified as a state officer.
On the other hand, the office of magistrate or justice of the peace is a county office named in Section 99 of the Kentucky Constitution.
Section 165 of the Constitution and KRS 61.080 provide, in effect, that no state officer shall at the same time hold a county office. This being the case, the position you presently hold as Assistant Superintendent of the Rowan County School System would be incompatible with the office of magistrate, and if elected to the office of magistrate, you would automatically forfeit your position as assistant superintendent pursuant to KRS 61.090. This statute provides that the acceptance by one in office of another office incompatible to the one he holds shall operate to vacate the first office.