Request By:
Hon. Stephen L. Miller
City Attorney
Suite 200, First Farmers Bank Bldg.
P.O. Box 205
Owenton, Kentucky 40359
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of January 3 in which you raise the following questions:
"1. Under KRS 61.080 are the offices of
"1. Under KRS 61.080 are the offices to Deputy Coroner and City Councilman incompatible?
2. Does the qualification in the second office automatically vacate the first office, pursuant to KRS 61.090, or must additional steps be taken per the holding in
Trimble County Fiscal Court vs. Trimble County Board of Education, Ky. App., 587 S.W.2d 276 (1979)?
3. If the answer to Question #2 is to the effect that some additional steps must be taken in order to terminate the first office, what are the additional steps?"
In response to your initial question, the office of deputy coroner and that of city councilman are incompatible under the terms of KRS 61.080. A deputy coroner is, of course, a county officer with the same powers as those possessed by the coroner which includes peace officer powers. See KRS 72.405 and 72.415. KRS 61.080 prohibits a person from holding a county office and a municipal office at the same time.
In response to your second question, KRS 61.090 provides in effect that the acceptance by one in office of another office incompatible with the one he holds shall operate to vacate the first. However, the vacation of the office is not automatic, and if the individual refuses to vacate the office an ouster proceeding must be brought against such individual. As pointed out in the case of
Trimble Co. Fiscal Court v. Trimble Co. Bd. of Ed., Ky. App., 587 S.W.2d 276 (1979):
"KRS 61.090 does not function automatically to oust one from office. If the office is not voluntarily vacated or abandoned, some notification and ouster proceedings are necessary."
If an ouster proceeding is necessary, and in view of the fact that the individual in question assumed the office of city council as the second office thereby vacating his position as deputy coroner under the terms of KRS 61.090, it would be the duty of the Commonwealth's Attorney to institute the ouster proceeding pursuant to KRS 415.040. See
Williamson v. Hughes, 303 Ky. 735, 199 S.W.2d 125 (1947).
Your third question is answered above.