Request By:
Honorable Roy Allison
Mayor, City of Harlan
P.O. Box 783
Harlan, Kentucky 40831
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 15 in which you present the following facts and questions concerning the appointment of a city attorney:
"A candidate for this post who has agreed to serve is a resident of the City and the only person we feel who meets the statutory requirements of being an attorney and a resident of the City. (Harlan is a fourth class city). This person also serves on the Harlan Independent School Board and was just elected by the Board to serve as its Chairman.
"Our questions follow:
"(1) Is it a conflict of interest to serve as both the City Attorney and on the Harlan Independent School Board or are the two offices deemed to be irreconcilable?
"(2) Even if your response to #1 is in the affirmative would the fact that he is the only person statutorily qualified allow us to use him anyway? In other words even if the two offices are irreconcilable, may the person in question still hold both since nobody else can be found to hold the post of City Attorney who would be qualified? (Attorney, resident of City and willing to do so)."
Our response to your initial question would be in the affirmative. The city attorney of a city of the fourth class, appointed pursuant to KRS 69.560, would be considered a municipal officer. On the other hand, membership on the Harlan Independent School Board would be considered a state office as held in many cases, among them being Runyon v. Commonwealth, Ky., 393 S.W.2d 877 (1965).
Section 165 of the Constitution and KRS 61.080 prohibit a state officerfrom holding a municipal office at the same time. As a consequence, no one can hold the office of city attorney and serve as a member of an independent school board at the same time since the two positions are incompatible one with the other.
Our response to your second question would be in the negative since, regardless of the circumstances involved, one cannot violate a constitutional prohibition. Thus, the fact that the attorney in question is the only one qualified, would not in any way relieve the incompatible situation under the constitution and the referred to statute.
We might mention here that KRS 69.560, relating to the appointment and qualifications for the office of city attorney in cities of the fourth class, provides, pursuant to an amendment enacted in 1978, that said city attorney may be a resident of the county wherein the city is located. This may open the way for possibly a nonresident attorney to qualify for the office of city attorney.
There is also an alternate procedure that can be followed by the city in order to get legal services, and that is to hire an attorney under a personal service contract to advise the city on legal matters, particularly where no qualifying attorney can be found that would accept the office. By engaging an attorney under a personal service contract and not naming him as city attorney, said attorney would in all probability merely be an independent contractor as held in the case of Hopson v. Howard, Ky., 367 S.W.2d 249 (1963). This procedure could possibly be utilized with respect to the attorney in question without creating an incompatible situation.