Request By:
Mr. Lyman V. Ginger
Executive Director
Governor's Task Force
on Welfare Reform
Fort Boone Plaza
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Rebert L. Chenoweth, Deputy Attorney General
As the Executive Director of the Governor's Task Force on Welfare Reform, you have asked the Office of the Attorney General for a formal advisory opinion as to whether your position as Executive Director of this Task Force presents a conflict of interest since you have recently been elected as a member of the Lexington-Fayette County Urban Council. For background you noted for our consideration that you are not mentioned in the Executive Order that established the Task Force but you were appointed as Executive Director. The Task Force is made up of approximately one hundred and thirty members, a steering committee of forty-two members, and an executive committee of the steering committee of seven members. You further added that the Task Force report represents the thinking of the group and is not the work of the staff, except that the staff put together from the minutes of each study group the recommendations of the citizens. Moreover, as Executive Director you indicated that you had no authority to change regulations, to administer any programs or to change any program. Your work has consisted of being a research person and coordinator of the activities of the Task Force group. It is the opinion of this Office that there is no incompatibility between your position as Executive Director of the Governor's Task Force on Welfare Reform and your present position as a member of the Lexington-Fayette County Urban Council.
KRS 61.080(1) reads as follows:
"No person shall, at the same time, be a state officer, a deputy state officer or a member of the general assembly, and an officer of any county, city or other municipality, or an employe thereof."
This statutory provision is nearly identical to that found in Section 165 of the Constitution of Kentucky. These constitutional and statutory provisions prohibit a person from holding a position as a state officer and at the same time a position as an officer of any county, city, town, or other municipality or an employe thereof. We do not believe an executive director of a task force established by the Governor of the Commonwealth places you in a position of being a "state officer. " In Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947), the Court of Appeals, now Kentucky Supreme Court, concluded that there existed five elements which are indispensable in any position of public employment in order to make it a public office of a civil nature. Those five elements were listed as follows:
"'(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.'"
We do not see that any of these elements are found in your position as an Executive Director of the Governor's Task Force on Welfare Reform. This Task Force, as we understand it, was established and charged generally with studying the welfare program in the Commonwealth and was requested to make recommendations to then Governor Julian Carroll and the Legislature regarding actions which could strengthen and improve the welfare system. Resulting from the work of the Governor's Task Force on Welfare Reform was a report and series of recommendations regarding welfare reform. Thus, we do not believe your position as Executive Director constitutes a position as a state officer within the meaning of KRS 61.080 and Section 165 of the Constitution. Therefore, we do not believe any incompatibility of offices exists.