Request By:
Mr. Charles Baesler, Jr.
Fayette County Clerk
Courthouse
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question was written as follows:
"Would there be any conflict of interest if a county commissioner of Fayette County, Kentucky were appointed as a deputy county court clerk for the purpose of helping the clerk process the 1979 tax appeals? Of course you are aware that Fayette County has the Lexington-Fayette County Urban County Government and the county commissioners meet about once a year for the purpose of dealing with the county road program."
We find no constitutional nor statutory incompatibility. KRS 61.080(2) prohibits the holding of the offices of justice of the peace and the deputy clerk of a court. But now the county clerk is not the clerk of the court. The statute does prohibit a commissioner of fiscal court in counties containing a city of the first class from holding any other public office. Section 165 of the Kentucky Constitution and KRS 61.080 do not prohibit the holding of two county offices at the same time.
The powers of fiscal court in an urban county government are described in § 11.02 C. of the charter of the Lexington-Fayette Urban County Government:
"The Fiscal Court shall retain: 1) its powers to levy the ad valorem tax and such other taxes as may be provided by law for public schools as specificed by the Fayette County School District; and 2) its powers under KRS 179.420 to advise the Kentucky Department of Highways concerning the construction and maintenance of roads to be funded under the State Rural Secondary Highway Fund and the State Rural Highway Fund; and 3) its power to appoint one person to serve along with the County Judge and the County Attorney on the County Budget Commission. The Fiscal Court is hereby deprived of the power to levy taxes other than those specifically mentioned in this section, to approve or disapprove local acts or otherwise administer the governmental affairs of the Merged Government. Said powers are hereby transferred to the Urban County Government."
Even though there is no constitutional or statutory incompatibility, it is always wise, where two public offices are proposed, to consider any common law incompatibility. That principle is described in
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126:
"'Offices are said to be incompatible and inconsistent so as to be executed by the same person: First. When, from the multiplicity of business in them, they cannot be executed with care and ability; or, second, when, their being subordinate and interfering with each other, it induces a presumption that they cannot be executed with impartiality and honesty.'"
On the facts given there appears to be no common law or practical incompatibility in the holding of the two offices.