Request By:
Mr. Dale Roberts
Owsley County Judge/Executive
P.O. Box 294
Booneville, Kentucky 41314
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You presently have an employee, a county road supervisor, whom you would like to appoint as your deputy county judge/executive. You would like for this employee to continue as the county road supervisor at the same salary and with the same job responsibilities, but who would also serve as your deputy judge. You ask whether there would be any restrictions or difficulties in connection with these two jobs.
Section 15 of H.B. 152 [Ch. 118, 1978 Acts] provides that notwithstanding the provisions of KRS 67.710(7) the county judge/executive of any countymay appoint a deputy who shall serve at his pleasure. Such depouty may exercise all administrative serve at his pleasure. Such deputymay exercise all administrative powers, duties and responsibilities of that office, and may assume such other responsibilities as shall be prescribed in the administrative code of the county. Clearly the deputy county judge/executive involves a county office. The county road supervisor involves county employment. In other words, the county road supervisor is not a county officer. See KRS 179.020, which provides in part that the county judge/executive of each county, with the consent of the fiscal court, may "employ" a county road engineer or supervisor.
In this factual situation we see no incompatibility in terms of Section 165 of the Kentucky Constitution and KRS 61.080.
Usually we must consider the possibility of a common law incompatibility. Offices are said to be incompatible and inconsistent so as to be executed by the same person: when, from the multiplicity of business in them, they cannot be executed with care and ability; or, when, their being subordinate and interfering with each other, it induces a presumption that they cannot be executed with impartiality and honesty. Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126.
While we realize that such a person's being county road supervisor and deputy county judge/executive would mean that he would undoubtedly be substantially influenced by the county judge/executive, we see nothing unusual about that observation since the deputy judge is really the deputy of the county judge/executive and must follow the instructions of the county judge/executive as to his duties under the statute and considering that the county road supervisor, under the statute, is nominated by the county judge/executive, although approved by the fiscal court as a body. However, the county judge/executive is the chief executive officer of the county and is responsible for the proper administration of the affairs of the county placed in his charge. See KRS 67.710. Further, he has the role of the administrative supervision of the road program. See KRS 67.710 and 67.722. Also note that KRS 67.083 as amended by H.B. 152 (Ch. 118, 1978 Acts, Section 3(3)(t)) provides in part that the fiscal court may legislate concerning roads and bridges. Section 3(4) provides that the county judge/executive is empowered to exercise all of the executive powers pursuant to this section [i.e. the home rule statute, KRS 67.083]. Considering that the county judge/executive supervises the county road supervisor, there would be a practical or common law incompatibility where the deputy is required to fill in for an ailing or absent county judge/executive especially since the deputy would be supervising himself as road supervisor. This, under Hermann v. Lampe, above, induces the presumption that he could not execute both jobs with impartiality and honesty.
Conceivably in many counties in Kentucky the deputy county judge/executive's role will be a full time job, since the deputy cannot only fill in for the county judge/executive when he is absent or ill or is otherwise unable to perform his statutory functions, but he can assist the county judge/executive daily in the carrying out of his statutory functions. There would be a common law incompatibility if this person could not perform both jobs as required by statute. Only the courts could determine such factual situation.
Since these two jobs are two separate and distinct functions of government, it is our opinion that the job of county judge/executive should also be properly salaried as compensation for the specific role of the county judge/executive deputy. The salary of the county road supervisor is entirely another and distinct matter.