Request By:
Patrick M. Stanley, Grant County Constable
Opinion
Opinion By: ANDY BESHEAR, ATTORNEY GENERAL; Sarah Ellen Eads Adkins, Assistant Attorney General
Opinion of the Attorney General
Patrick M. Stanley, Grant County Constable, has requested an opinion of this office to address whether an elected constable may also serve as deputy coroner. We find no incompatibility exists between the two offices.
According to Kentucky law, an individual may not occupy two incompatible offices simultaneously.
LaGrange City Council v. Hall Bros. Co. of Oldham Cty., Inc., 3 S.W.3d 765, 769 (Ky. App. 1999) (citation omitted). Kentucky Constitution Section 165 prohibits an individual from being a state officer "and an officer of any county, city, town or other municipality, or an employee thereof[[.]" It also prohibits an individual from occupying two municipal offices. KY. CONST. § 165. In relevant part, KRS 61.080(2) provides that, "[t]he offices of justice of the peace, county judge/executive, surveyor, sheriff, deputy sheriff, coroner, constable, jailer, and clerk or deputy clerk of a court, shall be incompatible, the one (1) with any of the others." Offices may also be incompatible according to common-law "when the two offices are inherently inconsistent or repugnant, or when the occupancy of the two offices is detrimental to the public interest."
Webb v. Carter Ctij. Fiscal Court, 165 S.W.3d 490, 492-93 (Ky. App. 2005) (citing
Polley v. Fortenberry, 105 S.W.2d 143, 144-45 (Ky. 1937);
Barkley v. Stockdell, 66 S.W.2d 43, 44 (Ky. 1933).).
The office of constable and deputy coroner are neither statutorily nor constitutionally incompatible. A general rule of statutory construction is that the enumeration of particular things excludes other items not specifically mentioned. See OAG 91-632. Where the legislature specified that a deputy of certain offices was incompatible with certain other county offices, but did not specify that the office of deputy coroner was incompatible with other county offices, no statutory incompatibility exists between the office of deputy coroner and another county office. See OAG 85-149. It follows that there is no incompatibility under KRS 61.080(2) between the office of constable and deputy coroner.
Additionally, two offices can be incompatible at common-law or functionally incompatible, which "depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them." LaGrange City Council, 3 S.W.3d at 769. "[W]henever one has the power of appointment to or removal from the other and whenever there are any potential conflicts of interest between the two . . . , such as salary negotiations, supervision and control of duties, and obligations to the public to exercise independent judgment." Id.
The office of coroner and constable are established under Section 99 of the Kentucky Constitution and both are county-elected constitutional officers. See also OAG 17-107. A deputy coroner may be appointed by the coroner pursuant to KRS 72.010. A survey of the relevant statute and constitutional provisions relating to coroners and constables indicates no overlap in duties and no "potential conflicts of interest between the two" positions. See LaGrange City Council, 3 S.W.3d at 769. 1 Further, neither has power to appoint or remove the other position. Accordingly, the office opines that no incompatibly at common law exists.
However, we recognize that "[t]he existence of a common law incompatibility is, ultimately a question for the courts to decide." OAG 77-712. See also OAG 77-8, OAG 79-211, OAG 81-427, OAG 82-491, and OAG 84-101. If a court were to find these offices incompatible, KRS 61.090 mandates that a person's acceptance of the office that caused the incompatibility operates to vacate the first office.
Footnotes
Footnotes
1 The duties of coroners are found in KRS Chapter 72. See, e.g. , KRS 72.020; KRS 72.025; KRS 76.026; KRS 72.029; KRS 72.410; KRS 72.415; KRS 72.440; KRS 72.450; KRS 72.465. The duties of constables are found in KRS Chapter 70. See, e.g. , KRS 70.350; KRS 70.370; KRS 70.390; KRS 70.430.