Request By:
Honorable Raymond R. Vincent
City Attorney
City of Florence
P.O. Box 457
Florence, Kentucky 41042
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of May 10 in which you relate that a member of the city council who was elected for a term ending on December 31, 1979 desires to resign and be appointed as the city's public works director. Your question is whether or not he can be appointed to this position in view of KRS 85.060(3) which provides that no councilman shall be eligible to hold any other city office during the period for which he was elected.
In connection with your question you enclose a copy of Ordinance No. 0-23-71 establishing the position of director of public works and fixing the compensation for this position. You also specify the main duties of the director which you state have been established by custom.
The answer to your question depends of course on whether or not the position established by the referred to ordinance creates, in effect, a minor city office.
In determining whether a particular position, established by statute or by ordinance, constitutes a public office, the courts have laid down certain elements that must be present. These elements are set forth in a number of cases, among them being Commonwealth v. Howard, Ky., 379 S.W.2d 475 (1964), from which we quote the following:
"'(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 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.'
"This definition has been reaffirmed. Nicholas v. Marks, 308 Ky. 863, 215 S.W.2d 1000; Love v. Duncan, Ky., 256 S.W.2d 498. . . ."
In reviewing the city ordinance in question we find that it simply establishes the position of director of public works for the city which carries a salary of $6,680 per year. There are no powers or duties defined, either directly or by implication; neither do we find any term of office mentioned. As a consequence, the position established does not meet the elements necessary to establish it as a public office. The fact that certain duties have been established by custom would not be sufficient to comply with the requirement that the duties be defined in the establishing ordinance.
As a consequence, we would be of the opinion that the position of director of public works is merely a form of city employment which would, in turn, make the councilman in question, who may resign during his term, legally eligible to be appointed to this position without violating the terms of KRS 85.060(3).