Request By:
Hon. W. S. Greenwell
Crittenden County Attorney
P.O. Box 361
Marion, Kentucky 42064
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of March 26 in which you present the question as to whether or not a magistrate can, at the same time, serve as fire chief for the City of Marion without vacating his first office.
In connection with the above question, you relate that the fire department for the City of Marion is a volunteer fire department which we assume is under the control of the city and, in fact, a department thereof. You enclose a copy of an ordinance and a Personnel Classification which establish certain positions of employment as part time and seasonal which includes the fire chief. Also attached is a resume of responsibilities of the fire chief.
As pointed out in the attached letter addressed to Mr. Gerald Tamme, dated February 15, 1984, unless the position of fire chief is established as an office in the manner required under KRS 83A.080(1), it must be considered merely a form of employment. The referred to statute details certain things that the ordinance must specify when the office is established. Thus, based on the evidence submitted, it is clear that the city has not established the position as an office and consequently it can only be considered as a form of employment. This being the case, there would be no incompatibility under Section 165 of the Constitution and KRS 61.080 which prohibit a person from holding a county office and municipal office at the same time, but does not prohibit a person from holding a county office and city employment at the same time.
Under the circumstances, the magistrate can be appointed as fire chief of the city and continue to serve in both capacities provided a common law conflict does not exist, as for example where the individual cannot perform the duties of both positions at the same time with care and ability. However, as we have said many times, this is a question of fact that only the courts can determine. See
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917).
We might add that the OAGs to which you refer, namely OAG 68-197 and 66-469, do not address the question under the 1980 Municipal Code although basically follow our response above.