Request By:
Mr. Kenneth B. Hobday
Route #2
Cynthiana, Kentucky 41031
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written that you hold an associate broker and salesman real estate license, pursuant to KRS 324.045. You ask whether there would be any conflict in holding your real estate license and holding the position of county judge/executive at the same time.
In applying for an associate broker's or salesman's license, such applicant shall set forth the name and place of business of the company with whom he is to be associated. Under KRS 324.080 the license of each associate broker or salesman shall be delivered or mailed to the real estate broker with whom such associate broker or salesman is associated and shall be kept in the custody and control of such broker. KRS 324.010(1)(a) defines in part an "associate broker" as a person who for compensation or valuable consideration is associated directly or indirectly with a broker to perform all the functions authorized by a broker's license only for and on behalf of such principal broker, etc.
KRS 324.115 requires "every real estate broker" to maintain a definite and active place of business. However, that language refers only to a principal broker, not an associate broker. See
Sims v. Reeves, Ky., 261 S.W.2d 812 (1953) 815.
We can find no constitutional nor statutory prohibition in carrying on both activities. See KRS 61.080 and Section 165, Kentucky Constitution.
However, it is possible that a common law or practical incompatibility might exist. Concerning a common law incompatibility, the court, in
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126, wrote this:
"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."
While two public offices are not involved here, the common law incompatibility principle would apply in the sense that if you could not carry out a full work schedule as county judge/executive, at least a five day work week, while carrying on, at the same time, the real estate business, you would have a practical conflict. See KRS 61.160, providing a five day work week.
Thus if your real estate work in no way impinges upon your official work schedule as county judge/executive, there would seem to be no legal problem.
The county judge/executive, like other constitutional officers, is required to perform the statutory duties of his office "honestly, faithfully, and to the best of his ability." 63 Am.Jur.2d, Public Officers and Employees, § 275, page 791. Under KRS 61.120 there shall be deducted from the salary of the officer such an amount as represents the total number of days he fails or neglects to discharge his duties, without a good excuse. That provision shall be enforced by the fiscal court against a county judge/executive. KRS 61.130. See also KRS 64.410, providing that an officer can get paid for only the work he actually performs. Thus a public officer is "under a legal obligation to perform the duties attached" to the office. 63 Am.Jur.2d, Public Officers and Employees, § 399, p.p. 872-873.
The duties of the county judge/executive, as the county's chief executive officer, are rather extensive. For example, see KRS 67.710, 67.715, 67.720, and 67.722. While the General Assembly has not expressly provided in a statute that he devote his "entire working time" to his office, the nature and range of his duties and the above cited statutes by the strongest implication so require him to devote a full work week to his statutory duties. The work week of five days is well established for such local public officials in KRS 61.160, since it provides that public offices in all counties may close any one full day or any two half days of any week.
Board of Education of London Ind. Sch. Dist. v. Miller, Ky., 299 S.W.2d 626 (1957).
Thus the official work of the county judge/executive can only be viewed in the frame of the five day work schedule.
Historically such local county officials as the county clerk, sheriff, and county judge have been considered to be full time officers. There is no room for their moonlighting except outside the frame of the five day work week.
It appears that you could carry on real estate work, so long as it is not done on "county time", as mentioned above.
You would be prohibited by KRS 61.220 from selling any real estate to the county.