Request By:
Mr. J. Bruce Miller
Jefferson County Attorney
Twenty Seventh Floor
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your request for an opinion relates to the status of assistant county attorneys.
KRS 15.770(5) provides in part that "All salaries paid to personnel appointed under this section [which includes assistant county attorneys] shall be paid from the state treasury to the extent such personnel assist in prosecutorial duties."
The county attorney, although a county constitutional officer, has been given state duties as a prosecutor in district court, and county duties as relates to his civil function as an adviser to fiscal court. See KRS 15.725(2) and 69.210.
Your question reads:
"Specifically, are Assistant County Attorneys who prosecute considered State employees, State officers, County officers, or County employees? This determination is important for conflict of interest, and incompatibility of office questions."
The county attorney is a county constitutional officer, pursuant to Section 99 of the Kentucky Constitution. Two constitutional offices simply cannot be created out of one. However, under legislative flexibility in assigning duties, the General Assembly has assigned both prosecutorial and civil duties to the county attorney. His assistants follow that dichotomy of function. Thus the county attorney cannot under the constitution be both a state officer and a county officer. He remains a county constitutional officer as relates to this constitutional origin. Section 99 of the Constitution prescribes no specific duties. Consequently, it is up to the legislature to establish those duties. The court, in
Olive v. Coleman, 228 Ky. 127, 14 S.W.2d 404 (1929), observed at page 405 that "There is no provision of the constitution forbidding a change in the duties of public officers, and so the legislature may add to or take from official duties. . . ." (Emphasis added). It is also well settled that the legislature may change the duties of an office without violating the constitutional rights of the officer.
Wehrman v. Wegener, Ky., 264 S.W.2d 855 (1954).
Thus for the purposes of Section 165 of the Kentucky Constitution, the county attorney must be considered only a county officer, otherwise the dual system of statutory duties as measured by Section 165 [prohibits a state officer from being a county officer at the same time] would be unconstitutional.
The answer to your question is that since the office of county attorney involves only one office, i.e., a county constitutional office, the possibility of incompatibility of two or more offices held at the same time will not arise. Cf. KRS 61.080, which is patterned after Section 165 of the Constitution. It follows that the conclusion concerning the county attorney applies equally to the assistant county attorneys, who may be assigned only prosecutorial duties or only fiscal court civil duties or a combination of both, depending upon the needs of your office and your staff management. In other words, the assistant county attorney is a statutory county officer for the purpose of considering the general question of incompatibility. As was written in OAG 77-113, which you mentioned, the assistant county attorney is the alter ego of the county attorney and performs the same duties that the county attorney may perform, and is thus a county officer for purposes of the subject of incompatibility.
Should you have any question about any specific combinations of employment that extend beyond your office, we shall deal with that, if you wish.