Request By:
Mr. Edward J. Rudd
Bracken County Attorney
Brooksville, Kentucky 41004
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions, which you are submitting for an opinion of this office, read:
"A. Under KRS 61.080 and Kentucky Constitution Sec. 165, may a county attorney enter into a contractual agreement with a fifth class city which has not created the office of city attorney, under the terms of which contract:
"1. A monthly fee would be paid for attendance at council meetings, research and preparation of ordinances and orders and/or summaries of same for publication, where required.
"2. An hourly fee would be paid for in or out of court work representing said city in civil actions.
"3. Other legal assistance would be obtained by the city in the event of a conflict between the interests of the city and interests of the county.
"B. If, A, above, creates an incompatible situation would it be resolved by the county attorney rendering advice to the city on a per request, hourly rate basis."
Under the facts stated, your acting as an attorney for the city has not created an "office", as envisioned in § 165, Kentucky Constitution, and KRS 61.080.
An office contains five elements. They are set forth in
Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817:
"(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."
Keeping in mind that all five elements of an "office" must co-exist, and since you say the city has not created an "office" embracing the city attorney (see KRS 83A.010(9) and 83A.080 (creating a nonelective city office by ordinance), then you would merely be a contract attorney for the city. Under those circumstances § 165 of the Constitution and KRS 61.080, involving holding two offices at the same time, do not apply.
Thus we see no constitutional nor statutory incompatibility. No common law incompatibility would be involved if you can execute both functions with care and ability, and with impartiality and honesty. Where a city interest arises as well as a county interest, that could be resolved by the city's employing another attorney for that project. See
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917).
Under the above, it is not necessary to consider part "B" of your request.