Request By:
Honorable H. B. Quinn
Attorney at Law
108 West Main
Princeton, Kentucky 42445
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 27 in which you, as city attorney for Princeton, Kentucky, raise the question as to whether or not a police court judge of the city, appointed by the city council, could at the same time serve as counsel for the utility commission and receive compensation paid by said commission. The police judge's advice to the commission would relate to civil matters, such as rate regulations, etc.
A person cannot hold two municipal offices at the same time, but on the other hand, he can hold a municipal office and a form of city employment without violating § 165 of the Constitution or KRS 61.080. However, the police judge's employment as counsel for the utility commission [which we assume is an independent agency] would in all probability be in the nature of a personal service contract thereby placing him in the category of an independent contractor, particularly in view of the professional nature of the advice. In this respect we refer you to the case of City of Glasgow v. Burchett, Ky., 419 S.W.2d 544 (1967), wherein the court held that a police judge was not prohibited from being employed by a city to advise the city on legal matters since the judge was not serving in the capacity of city attorney and, therefore, not holding two municipal offices at the same time. We also refer you to the case of Hobson v. Howard, Ky., 367 S.W.2d 249 (1963), in which it was held that an attorney employed by the Floyd County Board of Education was not considered a school employee but merely an independent contractor.
Since you are serving as city attorney, obviously the police judge could not be considered as such with respect to his serving as counsel for the utility commission. At most, he would be considered an employee of the city, but actually we feel that he would be an independent contractor.
Under the circumstances, we find no constitutional or statutory provisions that would prohibit the police judge from serving as special counsel to the utility commission nor do we find any common law incompatibility, which, however, is always a question of fact that only the courts can determine.