Request By:
Honorable Robert L. Rose
Clark County Attorney
Courthouse
Winchester, Kentucky 40391
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter dated September 18 in which you relate the following facts and question:
"The 1980 General Assembly passed legislation that authorized the Division of Drivers Licensing to put into operation State Traffic Schools throughout the Commonwealth of Kentucky. The purpose of these schools was to permit the Court to send traffic offenders for minor violations to the schools in lieu of imposing a fine.
"My question concerns whether a Circuit Court Clerk who is an officer of the Court could be employed by the Commonwealth as an instructor in one of these schools. We would appreciate an opinion by your office if there is any conflict or impropriety involved with a Clerk being so employed."
The above question concerns incompatible offices. Your reference to the operation of state traffic schools for offenders apparently relates to KRS 186.574 which authorizes the Department of Transportation to establish driver improvement programs throughout the state. Instructors are employed to carry out these programs. Such instructors employed by the Department would, of course, be considered state employees.
The office of circuit court clerk has been held to be a state office in OAG 76-509 [copy attached]. Neither § 165 of the Constitution nor KRS 61.080 dealing with incompatible offices prohibit a person from holding two state offices or state employment and a state office at the same time. See also Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133 (1928).
As we have indicated above there would be no constitutional or statutory restriction on the circuit court clerk serving as an instructor in one of the state's driver improvement programs. There is always a possible common law conflict where the individual cannot perform the duties of both positions with care and ability or where one position controls the other. See Polley v. Forten-berry, 268 Ky. 369, 105 S.W.2d 143 (1937); and Hermann v. Lampe, 175 Ky. 109, 194 S.W.2d 122 (1917). Common law incompatibility is, however, a question of fact that only the courts can determine.
Though there may exist no statutory or common law conflict of interest, the question of impropriety has been raised in an Administrative Memorandum No. 4-80 dated October 1, 1980, sent to the employees of the Administrative Office of the Courts as well as an advisory memorandum sent to the Circuit Clerks by Mr. Charles D. Cole, Director, Administrative Office of the Courts, regarding instructors for the State Traffic School [copies attached]. As can be seen, Administrative Memorandum No. 4-80 agrees with the conclusion we have reached in this opinion to the effect that while there is no legal prohibition known to performing as both an employee of the court system and as an instructor for the Traffic School, the appearance of impropriety is very evident. Careful consideration should be given, we believe, to these circumstances.