Request By:
Honorable Challen P. McCoy
Attorney at Law
113 West Stephen Foster Avenue
Bardstown, Kentucky 40004
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 1 in which you relate the following facts and questions:
"Out of necessity I am resigning as Attorney for the City of Bardstown, and have so advised the Mayor and Council. The Council is now in the process of selecting a new City Attorney and have selected two individuals who may or may not be able to accept the position because of conflicts.
"One of the individuals is employed by the Commonwealth of Kentucky Department of Labor, as hearing officer for the Workmen's Compensation Board. The other individual is employed by the Commonwealth of Kentucky Department of Labor, as hearing officer for the wage and hour section.
"My question is, does the position held by these two individuals constitute a conflict of holding a State and City office so as to restrict them from accepting this later position?"
This office has previously taken the position that a hearing officer for the Wormen's Compensation Board must be considered a state officer pursuant to KRS 342.230 and 342.255 and we are enclosing copies of OAG's 76-281, 72-698 and 69-364 so holding. The office of city attorney is of course a city office, and § 165 of the Constitution and KRS 61.080 prohibit a person from holding a state office and a municipal office at the same time.
On the other hand, the position of "hearing officer" for the Wage and Hour Section of the Department of Labor is not referred to in the statutes. KRS 337.522, pertaining to hearings conducted in determining possible revisions in the prevailing wage schedule, appears to be the only statute relating to your question. It does not mention hearing officers but we assume you have reference to a person representing the commissioner who conducts the hearing which is simply a fact finding proceeding. Such proceeding would not appear to be in the same category as the judicial proceeding involving a hearing officer for the Workmen's Compensation Board under KRS 342.230. Therefore, we do not believe that there would be any constitutional or statutory incompatibility between the office of city attorney and the position of "hearing officer" for the Wage and Hour Section of the Department of Labor.