Request By:
Ms. Ann E. Ross
Vice-Mayor
Lexington-Fayette
Urban County Council
The Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of August 31, 1982 in which you relate that the Executive Director of the Kentucky Municipal League has nominated you, along with Mayor Gus Wilson of Bardstown and City Manager Charles Coats of Bowling Green, to the Governor for consideration in filling certain vacancies on the Enterprise Zone Authority created by a 1982 Legislative Act.
Subsequent to these selections made by the League, you have received information to the effect that OAG 82-429, recently issued by this office, has expressed the opinion that city and county officers are ineligible for appointment to the Authority under the provisions of Section 165 of the Constitution and KRS 61.080.
Now you raise the question as to whether or not the holding in the referred to opinion would equally apply to officials of the Urban County Government, citing OAG 74-207 as authority for holding that such officers are not city or county officers within the meaning of the referred to section of the Constitution and statute. You request review of this matter.
As pointed out in OAG 82-429, the Enterprise Zone Authority established by the legislature is a state agency. On the other hand, as pointed out in OAG 74-207, the Urban County Government, which is a combination of the powers of both cities of the second class and the county, is neither a city nor county government, but is in effect a hybrid form of government not contemplated by the Constitution or statute referred to governing incompatible offices. OAG 74-207 cites the case of Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974) from which we quoted the following:
". . . The new form of government is neither a city government nor a county government as those forms of government presently exist but it is an entirely new creature in which are combined all the powers of a county government and all of the powers possessed by that class of cities to which the largest city in the county belongs."
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"For this reason we think a new classification of local government having both county and municipal powers is a reasonable and valid classification based upon a bona fide need which now exists but which was not contemplated in the days when the Constitution was drafted."
Due to the fact that the Urban County Government is a hybrid form of government not contemplated by Section 165 of the Constitution or KRS 61.080, the officers of such government cannot be considered either county or city officers, and as a consequence there would exist no constitutional or statutory incompatibility where an officer or employee of such government appointed to the Enterprise Zone Authority. What, if any, common law incompatibility may exist is a question of fact for the courts to decide.
We also might refer you to OAG 66-777, copy attached, which relates to this basic question involving members of a joint city-county planning commission serving on the Capital Plaza Authority, also a state agency. OAG 82-429 is modified insofar as urban county government officers and employees are concerned.