Request By:
Ms. Judith G. Richardson
Attorney at Law
Brandenburg, Kentucky 40108
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of recent date in which you raise the question as to whether or not the office of city policeman in a city of the fifth class and the position of commonwealth detective are incompatible.
Our response to your question would be in the affirmative and this has been our position in previous opinions, particularly OAG 73-488. This opinion was based upon the terms of KRS 69.110 which has subsequently been amended to change the term "district detectives" to "circuit detectives" , however the power of arrest and right to execute process as sheriffs is retained. The detectives so appointed are required to assist the commonwealth attorney in all matters pertaining to his office in the manner he designates. The specific power to appoint these detectives given to the commonwealth attorney in KRS 69.110 has however been removed as well as any reference to the length of their term of office. However, the General Assembly, in its enactment of the unified prosecutors system, has [pursuant to KRS 15.760] authorized the commonwealth attorney, with the advice and consent of the prosecutors advisory council, to appoint necessary personnel for the conduct of his office, including investigators, which would include circuit detectives referred to in KRS 69.110 otherwise considered commonwealth detectives. The fact that these detectives would [pursuant to KRS 69.110] have the power of arrest places them in the category of peace officers and public officers. Also, the fact that they are appointed by the commonwealth attorney when authorized by the council under KRS 15.760 would make them state officers.
The position of city policeman is of course a municipal office as held in numerous cases, among them being City of Lexington v. Rennick, 105 Ky. 779, 49 S.W. 787 (1899).
As you know, § 165 of the Constitution and KRS 61.080 prohibit a person from holding a state office and a municipal office at the same time. This means that in our opinion the position of commonwealth detective, appointed pursuant to the referred to statutes, would be incompatible with that of city policeman.