Request By:
Mr. William B. Sturgill
Secretary, Department of Energy
Capital Plaza Tower
12th Floor
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question as to whether you can legally serve as Secretary of Energy and at the same time serve as Chairman of the Board of Trustees of the University of Kentucky. We are of the opinion that you can.
First, we find no constitutional nor statutory incompatibility involved in holding the two offices. See § 165, Kentucky Constitution, and KRS 61.080. Those sections do not prohibit the holding of two state offices at the same time. Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937) 144.
The courts have declared in a number of cases, among them being Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133 (1928), that there is no constitutional objection to the same person's holding more than one state office at the same time, unless the two are incompatible in fact. Incompatibility in fact refers to a practical or common law incompatibility, such that the two offices cannot be executed with care and ability and cannot be executed with impartiality and honesty. Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126. However, we do not perceive that your holding these two positions would involve a common law incompatibility.
In addition to the above analysis, we find that a member of the Board of Trustees of the University of Kentucky is a public officer only on narrow grounds. KRS 164.150 provides that "No member of the board of trustees shall be held to be a public officer by reason of his membership on the board except as provided in KRS 61.094 for the purpose of KRS 61.096." 1 The latter two statutes refer to prohibited conflicts of interest of public officers and employes. You can examine KRS 61.096, which details the prohibited areas of conflict, but which prohibited areas do not arise by the mere holding of these two positions.
In summary, there is no constitutional or statutory incompatibility in connection with your holding the two offices at the same time, neither can we see any common law incompatibility. See KRS 164.130, relating to qualifications for membership on the Board of Trustees of the University of Kentucky.
Footnotes
Footnotes
1 KRS 61.094 and 61.096 were replaced in the 1975 session by KRS 45A.335 and 45A.340, respectively, effective January 1, 1979.