Request By:
Mr. Fred H. Porterfield
Department of Housing
and Urban Development
Louisville Area Office
539 River City Mall
Louisville, Kentucky 40201
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your request concerning a possible conflict of interest or incompatibility where the executive director of the community development agency of a fifth class city has been elected to the office of mayor of said city and continues to function in both capacities. We requested and received additional information concerning the nature of the community development agency of the city from Mr. Robert D. Kuhnle, Area Counsel for the Department of Housing and Urban Renewal Development in the Louisville Area. Mr. Kuhnle furnished the following information:
"I spoke to Mr. Becvar, the Mayor/CD Director, and was told that since this resolution was passed, the County has withdrawn from any involvement in a joint city-county agency. The City has chosen to not go with the KRS 99 agency as anticipated, but created a CD Office within City Government. This CD office is presently operating as a staff office within the Executive Branch of City Government and there is no active CD entity separate from City Government."
The referred to resolution would in fact create an independent renewal agency authorized under KRS 99.350. However, since the city, according to the facts related, decided not to establish the independent agency but to create the CD office within the city government, we assume that the resolution was repealed. Based on this assumption, it would appear that though no statutory or constitutional conflict or incompatibility would exist since a person can theoretically hold a municipal office and employment at the same time under § 165 of the Constitution and KRS 61.080, a common law conflict would nevertheless exist in view of the fact that the mayor of the city has complete supervision and control over all city officers and employes with certain exceptions not applicable here, under the terms of Senate Bill 26, particularly KRS 83A.130. The mayor also has the power to appoint and remove all city employes under KRS 83A.130 (9), unless their position of employment is protected by law. One of the guiding principles establishing a common law incompatibility between an office and employment is where the office holder has the power to supervise or remove the employe. In this respect we refer to the case of
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917), wherein the court said:
"'The inconsistency, which at common law makes offices incompatible, does not consist in the physical impossibility to discharge the duties of both offices; but rather in a conflict in interest, as where the incumbent of one office has the power to remove the incumbent of another, or to audit the accounts of another, or to exercise a supervision over another, as in the case of a judicial officer and his subordinate ministerial officer.'
"It has, however, been held, as in
State v. Buttz, 9 S. C. 156, that where it is physically impossible for one holding one office to perform the duties of another office, which he has accepted, that the offices are incompatible. In
People v. Green, 46 How. Prac. (N. Y.) 169, the court announced the following rule:
"'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.'"
Under the circumstances, we believe that the mayor of the city in question cannot continue to hold the position of executive director of the city's community development agency without creating a common law incompatibility and conflict of interest, since he is presumed to possess the power under Senate Bill 26 to not only hire but also fire, the executive director.