Request By:
D. Eric Lycan
Opinion
Opinion By: GREGORY D. STUMBO, ATTORNEY GENERAL; Gerard R. Gerhard, Assistant Attorney General
Opinion of the Attorney General
In Opinion of the Attorney General (OAG) 04-010, this office concluded, in part, based upon information that had been presented to this office, that a given Division Director II position, within the Cabinet for Health Services, was that of a state "office," as distinguished from a position of state "employment."
For reasons explained below, we here modify OAG 04-010, only in relation to our previous determination that the specific state position in question is that of an "office." Based upon information furnished to us after issuance of OAG 04-010, it appears that the state position in question is that of state "employment," rather than a state "office."
The distinction between a position classified as a state "office," and one classified as state "employment," is important because of Section 165 of the Constitution of Kentucky, and Kentucky Revised Statutes (KRS) 61.080(1), which indicate, in part, that one may not, at the same time, be a state officer and an officer of any county.
A key element relied upon in OAG 04-010, in concluding that the position was a state "office," was our understanding, based upon information then available, that the position would have "responsibility over the activities of service region administrators for human services programs in Kentucky, and that such responsibility appeared to constitute an exercise of the sovereign power of government ...." Such element is essential to classifying a state position as an "office," as distinguished from state "employment." See Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815, 817 (1947).Information furnished to this office subsequent to the issuance of OAG 04-010 indicates that the position involved merely provides "general guidance," "leadership support," and "administrative support and assistance," to service regions, with such duties being performed under the direct supervision of the cognizant commissioner, rather than being performed independently. It thus appears that the particular Division Director II position within the Cabinet for Health Services does not independently exercise a delegated portion of the sovereign power of government. Howard, supra. Such position, therefore, should be classified as one of state "employment," rather than as a state "office." Accordingly, OAG 04-010 is hereby modified, only in relation to the classification of the position in question.
The view expressed in this opinion, regarding the classification of the specific state position here addressed, is limited to that position, and the facts provided to this office in relation to that position.