Request By:
Mr. Leonard Gray
Assistant Director
Department of Personnel
and Employee Relations
City of Louisville
701 W. Jefferson, Third Floor
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 2 in which you relate that you are currently employed as Assistant Director for the City of Louisville Personnel Department. Under the circumstances you raise the following questions:
"1. If appointed to the County Board of Elections, would I have to resign my present job as Assistant Director of Personnel?
"2. If there are grounds for a conflict of interest in me holding my present position, could I enter into a personal service contract with the City of Louisville to run a Manpower Program?"
Your questions of course raise the possibility of incompatible offices. The Court of Appeals has not determined whether or not the office of county election commissioner is a county or state office. It must be one or the other as indicated in the case of Adams v. Commonwealth, Ky., 268 S.W.2d 930 (1954). This office however has taken the position in the past that it is a county office in view of the fact that the work performed is indeed exclusively in and for the county in spite of the fact that the members are appointed by the state board. See OAG 62-390 and OAG 77-650.
On the other hand, we cannot determine the status of your position of Assistant Director of Personnel without certain unrelated facts. If the position is merely a form of city employment and there is no ordinance against personnel employees holding other positions, there would be no constitutional or statutory incompatibility since one can hold a county office and municipal employment at the same time. See § 165 of the Constitution and KRS 61.080. On the other hand, a person cannot hold a county office and a city office at the same time under KRS 61.080, and, as a consequence, if the position in question is a city office, then incompatibility would exist and you could not serve in both capacities at the same time. We might point out that there are four or five elements that create an office as held in a number of cases beginning with the City of Lexington v. Thompson, 250 Ky. 96, 61 S.W.2d 1092 (1933). This case held that the following elements must be present in order to create a public office:
"After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without contro and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. In addition, in this state, an officer must take and file an official oath, hold a commission or other written authority, and give an official bond, if the latter be required by proper authority."
See also Commonwealth v. Howard, Ky., 379 S.W.2d 475 (1964).
Thus, in order to determine whether your present position is in fact a municipal office or employment, reference must be made to the municipal ordinance creating and establishing this position.
Our response to your second question would be in the affirmative unless a common law conflict of interest exists which is a question to be determined from the facts which only the courts can decide. For example, the common law conflict would exist where the person cannot perform the duties of both positions with care and ability or where one is superior to the other as held in a number of cases, among them being Herman v. Lampe, 175 Ky. 109, 194 S.W.2d 122 (1917).
The fact that you may be operating under a personal service contract would appear to remove the possibility of you serving as an officer or employee of the city as you would probably be considered as an independent contractor as held in Hobson v. Howard, Ky., 367 S.W.2d 249 (1963).