Request By:
Honorable John M. Keith, Jr.
Attorney at Law
4 Market Street
Cynthiana, Kentucky 41031
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
You have written to the Office of the Attorney General asking whether the holding of the office of Commonwealth Attorney and that of membership on the Eastern Kentucky University Board of Regents creates an incompatible office situation. You stated in your letter you are serving as a member of the Eastern Kentucky University Board of Regents by appointment of former Governor Julian Carroll and that on June 27, 1980, you were appointed by Governor John Y. Brown, Jr., as Commonwealth Attorney for the 18th Judicial Circuit. It is the opinion of this office that no incompatibility exists.
A Commonwealth Attorney is considered to be a state officer, as held in a number of cases, among them being
Miller v. Robinson, 306 Ky. 653, 209 S.W.2d 977 (1948). At the same time, a member of the Board of Regents of Eastern Kentucky University, established pursuant to KRS 164.320, would be considered a state officer. This office considered nearly an identical situation as you have presented in OAG 79-645, copy attached.
There is no constitutional or statutory objection under either Section 165 of the Kentucky Constitution or KRS 61.080 governing incompatible offices that would prohibit a person from holding two state offices, or a state office and state employment at the same time. See
Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133 (1928) and
Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937). In addition, it should be pointed out that KRS 164.320(3) specifically states as follows:
"Membership on the board shall not be incompatible with any other state office. "
We believe it is clear there is no incompatibility of offices under the State Constitution or statutory law.
We also note, lest it be questioned later, that in our opinion the holding of the two offices is not incompatible under common law or functionally incompatible. The test for common law incompatibility is given in
Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43, 44 (1933):
"Aside from any specific constitutional or statutory prohibitions, incompatibility depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them. The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest. McQuillen on Municipal Corporations, § 469; 22 R.C.L. 412;
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122."
Thus, it is the opinion of this office there is no incompatibility in law or fact in holding at the same time the positions of Commonwealth Attorney and membership on the Eastern Kentucky University Board of Regents.