Request By:
Mr. Gerald T. Kemper
Attorney at Law
Owenton, Kentucky 40359
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise several questions concerning the new judicial system.
Question 1:
"Are County Attorneys considered, for all purposes, state employees? "
The county attorney, effective January 2, 1978, must attend district court in his county and prosecute all violations of criminal and penal laws within the jurisdiction of that court. KRS 15.725(2). His salary is paid by the state. KRS 15.765(1). In carrying out this function he would be properly called a state officer. However, under KRS 69.210 he has certain duties in furnishing civil advice to fiscal court. In this dimension he is a county officer. As pointed out in
Barnes v. Barnes, Ky., 241 S.W.2d 993 (1951) 994, there can be no absolute or clear line of distinction drawn between some offices as being wholly state or wholly county by considering the conditions of the election of the officers or their functions. In most instances their services are for both the state and county. In Barnes, the circuit clerks were held to be state officers for purposes of social security. However, keep in mind that the county attorney is actually one constitutional office, although the General Assembly has given him both state and county duties.
Question No. 2:
"Are secretaries of county attorneys also considered state employees? "
The answer in No. 1 applies equally to the secretaries.
Question No. 3:
"Is the county attorney required to regularity to keep office hours? If so, please define those obligations."
He is required to keep office hours which are sufficient to discharge properly his state and county obligations.
Question No. 4:
"Please define any limitations placed upon the county attorney in the practice of law?
There is no prohibition against the county attorney's engaging in private practice, provided he adequately meets his public and official responsibilities. KRS 15.765(4). Generally he cannot act as defense counsel in any criminal prosecution in any state or federal court in Kentucky. KRS 15.740.
Question No. 5:
"Is the county attorney entitled to use his office and his secretary, telephone and other supporting equipment, supplied by the state or the county as a part time real estate office or as for other similar part time businesses?"
The answer is yes, provided that such office upkeep, i.e., the allocable share, for private purposes is borne solely by the county attorney. Suppose 30% of his working time involves private practice. Then 30% of the office costs, including the rental cost, should be borne by the county attorney out of his personal financial accounts.
Question No. 6:
"Is the county attorney entitled to use his office and secretary to receive clients and to converse or interview matters not that of the Commonwealth or the county?"
The answer is yes, except that such time must be figured in the computation of percentage of time spent on private matters.
Question No. 7:
"Is the county attorney privileged to use his secretary for general purposes of private practice i.e. preparing deeds, mortgages, estates and other similar matters while not in the business of the Commonwealth or the county?"
The answer is yes, except that such use must be figured in the computation of percentage of time spent on private matters, which office cost must be borne by the county attorney personally.
In connection with the conflict of interest provisions of § 165, Kentucky Constitution, and KRS 61.080, we point out that under § 99, Constitution, the office of county attorney is technically and constitutionally one office only and is not a duality of offices, although, as we mentioned above, the General Assembly has given the county attorney both state and county functions. This one office is a county office under the constitution for the purposes of conflict of interest.