Request By:
Mr. Carl Edward Sizemore
Clay County Judge Executive
Courthouse
Manchester, Kentucky 40962
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On behalf of the Clay County Fiscal Court, you request our opinion as to whether or not a county deputy jailer can serve at the same time as an elected city official, i.e., as a city council member.
Your letter reads in part:
"At our regular court meeting, our County Attorney called to our attention that one of our county employees serving as deputy jailer is also an elected city official, a City Council member for the City of Manchester. He has also advised the fiscal court to stop payment to the deputy jailer.
"I would like to receive an answer in writing in behalf of the Clay County Fiscal Court on the following questions:
"(A) Can an elected city official serve as a county employee?
"(B) Can an elected county or city official serve as a paid worker?
"(C) Can an elected county official work or serve part-time as a consultant or advisor for the City of Manchester?"
In answer to Question (A), the city council member is prohibited by KRS 61.080(3) from serving at the same time as a deputy jailer. Here we assume the deputy jailer was appointed as a regular deputy jailer pursuant to KRS 71.060. A deputy jailer is an officer. See KRS 446.010(24), and
Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817, establishing five (5) requisites of a public "office". In addition, KRS 61.080(5)(g) prohibits a member of the council in cities of the fourth class (here, Manchester is a fourth class city under KRS 81.010(4)) from holding at the same time any other public office.
Concerning Question (B), a city council member could serve as a paid county employee (not officer), provided there is no practical or common law incompatibility. See
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917), which lays down the principle that offices are incompatible where both offices cannot be executed with care and ability, or where they cannot be executed with impartiality and honesty. The mere payment for the work performed as an "employee" is not significant in this context.
As relates to Question (C), if the deputy jailer serves as a city "officer", then such combination is prohibited by KRS 61.080(3). If the deputy jailer serves as a city "employee", then there is no statutory prohibition. It would be subject to evaluation in terms of the common law rule on incompatibility, above. If the deputy jailer is an independent contractor in doing work for the city, it would be subject to evaluation in terms of the common law rule on incompatibility.