Request By:
Mr. Horace Stahl
Magistrate
Route #1, Box 378
Rockfield, Kentucky 42274
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise two questions for our opinion:
"(1) If a locally elected official (member of county fiscal court (a) should apply and receive a job as a Full Time Merit System Employee, would said person then be required to resign as a member of the said Fiscal Court, or would this person be allowed to finish out the unexpired term to which he has already been elected?
"(b) If said person were to be appointed to a non-merit position, would he then be required to resign or would he be allowed to finish out the term?
"(2) Would an employee of the Merit System, be allowed to enter the race for local elected official? If so and said person won this election, would he then be required to resign as a Merit System Employee?"
We assume the merit system employment is with your county, i.e., such person would be a county employee. Cf. KRS 61.080, relating to incompatible offices by statute.
Under the facts given and assumed, it is our opinion that such merit employment would constitute an incompatible and inconsistent situation, since a county employee serves under the management authority of the fiscal court. In Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126, such incompatible positions, as a matter of common law, are described as being subordinate and interfering with each other, it inducing a presumption that both positions cannot be executed with impartiality and honesty.
In Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126, we find this:
"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. "
To put it simply, such official simply cannot be the employer and the subordinate employee at the same time. That situation would be detrimental to the public interest. Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43 (1933) 44. We do not believe being a non-merit employee would change the rule.
In any event, if such person wants to continue as a merit county employee, he or she should be required to resign as a member of fiscal court. He cannot have both at the same time. However, it is possible that where the fiscal court member does not participate in any fiscal court decision relating to his employment in any way (absents himself from the fiscal court meeting), it is possible that the courts might hold that no incompatibility exists. But that is up to the courts.
In addition, KRS 61.220 prohibits a member of fiscal court from being interested, directly or indirectly, in a claim against the county treasury (except for his own salary as a member of fiscal court). See that statute for penalties arising out of an infraction under that statute. Here as a county employee, he would have a direct claim against the county treasury. See Knox Fiscal Court v. Davis, 267 Ky. 155, 101 S.W.2d 409 (1936) 413. Here again, it would be up to the courts to determine precisely the applicability of KRS 61.220 in this factual situation.
In your second question, you ask whether a county employee can run for the office of a member of fiscal court. We know of no prohibition in that regard. We assume the county merit system regulations contain no such prohibition. However, his holding both positions at the same time is fraught with the dangers described above as to incompatibility and extra claims.