Request By:
Mr. Billy G. Wellman
Major General, KyNG
The Adjutant General
Department of Military Affairs
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A county judge/executive has asked you to determine whether either of two individuals might be eligible for appointment as a county disaster and emergency services coordinator. One of the individuals under consideration is the county coroner. The other is a member of the school board and an employee of the U.S. Postal Service.
Under KRS 39.415, the county judge/executive of each county and the chief executive of each city or urban county government are required to appoint a director, who shall have direct responsibility for the organization, administration and operation of the local organization for disaster and emergency preparedness, response and recovery, subject to the direction and control of the appointing officer. This director is the coordinator you mention.
The county coroner is a county officer. The local director or coordinator is a county employee while performing that role. Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817.
Under Saylor, above, an "office" involves five elements, one of which is that the position must have some permanency and continuity, and not be only temporary or occasional. There is nothing in KRS 39.415 suggesting a definite tenure. We thus entertain a serious doubt that the position of coordinator is an "office". Thus there is no constitutional or statutory incompatibility. Cf. § 165, Kentucky Constitution, and KRS 61.080.
However, a common law or practical incompatibility may arise between two positions when, their being subordinate and interfering with each other, a presumption is induced that they cannot be executed with impartiality and honesty. Knuckles v. Board of Education of Bell County, 272 Ky. 431, 114 S.W.2d 511 (1938) 514. On the face of it, we can see no practical incompatibility, except that when the coroner's jurisdiction must be invoked under KRS 72.020 or 72.030, and an inquest conducted, it is our opinion that the coroner could not carry on both functions in the manner required by Chapters 72 and 39. In view of the probability of the coroner's having to conduct inquests as to deaths occurring during a great disaster or emergency [fire, flood, tornado, etc.], it is our view that such an appointment as director would not be wise.
The second person considered for the emergency appointment is a school board member and a mail carrier or postal employee. Section 237 of the Kentucky Constitution prohibits a person from holding an office of trust or profit under the United States and an office of trust or profit under the Kentucky Constitution and statutes. However, Lasher v. Commonwealth, Ky., 418 S.W.2d 416 (1967), held that a position of mail carrier was not an "office" under our constitution. The same would apply to a postal employee.
Since a school board member is a state officer, and since the county emergency director is a county employee, § 165 of the Kentucky Constitution and KRS 61.080 expressly prohibit this person from holding such office and employment at the same time. See Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937) 144. It is not necessary to consider any common law incompatibility as to this person.
We conclude that both persons should be considered ineligible for reasons given.