Request By:
Robert G. King
Powell County Attorney
Opinion
Opinion By: Daniel Cameron,ATTORNEY GENERAL;Charles A. English,Assistant Attorney General
Opinion of the Attorney General
The Powell County Attorney asks whether the office of certified court security officer is incompatible with the office of county magistrate. For the reasons that follow, it is the Attorney General's opinion that these offices are incompatible.
First things first. Magistrates are county officers. See Ky. Const. § 99 (providing for the election of justices of the peace as county officers 1). The tougher question is whether a court security officer under KRS 70.030(2) is a state officer or a county officer. This is an important initial determination because incompatibility--whether constitutional or statutory--turns, in part, on whether the officers are state or county officers.
The Attorney General concludes that a court security officer is also a county officer. That is because a sheriff is a county officer, Ky. Const. § 99, and appoints and revokes the appointments of deputy sheriffs and court security officers at his pleasure. KRS 70.030(1), (2); KRS 23A.090(1). "Before any deputy [sheriff] executes the duties of his or her office, he or she shall take the oath required to be taken by the sheriff." KRS 70.030(1). And although not explicit in Kentucky's Constitution, see Ky. Const. § 99, deputy sheriffs are clearly county officers and not state officers. See KRS 61.080(2) (grouping "deputy sheriff" with other county officers); Ky. Const. § 91 (enumerating specific State officers such as "Treasurer, Auditor of Public Accounts, Commissioner of Agriculture, Labor and Statistics, Secretary of State, and Attorney-General" and not including deputy sheriff). Moreover, deputy sheriffs are logically characterized as county officers because they are "employee[s] of the sheriff and act[] in an official capacity for that office."
Harlan Cty. v. Browning , No. 2012-CA-000148, 2013 WL 657880, at *3 (Ky. App. Feb. 22, 2013) (citing KRS 70.030).
Deputy sheriffs and court security officers are analogous for two reasons. First, although not defined by the Constitution or statute as an "officer," a court security officer is indeed an "officer" because, like a deputy sheriff, the court security officer must "take an oath to faithfully perform the duties of his or her office [.]" KRS 70.030(2) (emphasis added). And second, like deputy sheriffs, court security officers are "employee[s] of the sheriff and [therefore] act[] in an official capacity for that office." Browning , No. 2012-CA-000148-MR, 2013 WL 657880, at *3; see also KRS 70.030(2) ("The sheriff may appoint his or her own certified court security officers and may revoke the appointment at his or her pleasure."). For these reasons, the Attorney General concludes that court security officers are county officers for purposes of this opinion's compatibility analysis.
Having established that both positions are county officers, we turn to the incompatibility analysis. Incompatibility may arise under the Kentucky Constitution, the Commonwealth's statutes, and the common law. Section 165 of the Kentucky Constitution delineates the scope of constitutional incompatibility:
Furthermore, the General Assembly has by statute made certain offices incompatible. KRS 61.080(1) provides that "[n]o person shall, at the same time, be a state officer, a deputy state officer, or a member of the General Assembly, and an officer of any county, city, consolidated local government, or other municipality, or an employee thereof." Next, 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."
None of the constitutional or statutory provisions render the offices of magistrate and certified court security officer incompatible. That is apparent from merely reading the provisions of Section 165, KRS 61.080(1), and KRS 61.080(2). But an incompatibility analysis does not end with the constitutional and statutory text.
The lists of incompatible offices set forth in Section 165 and KRS 61.080 are not exhaustive.
LaGrange City Council v. Hall Bros. Co. of Oldham Cnty., Inc. , 3 S.W.3d 765, 769 (Ky. App. 1999) ("The constitutional and statutory enumerations of incompatible offices are not the exclusive instances of incompatibility."). In addition to constitutional and statutory incompatability, the common law also prohibits individuals from occupying "functionally incompatible" offices. Id. "The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest."
Polley v. Fortenberry , 105 S.W.2d 143, 145 (Ky. 1937) (quoting
Barkley v. Stockdell , 66 S.W.2d 43, 44 (Ky. 1933)). To determine whether the office of magistrate is functionally incompatible with the office of certified court security officer, we must examine the functions of those offices.
As made clear by its title and duties under KRS 70.280, a certified court security officer has one overarching task--providing security services to the courts. Specifically, a certified court security officer is charged with the following duties:
KRS 70.280(1). County magistrates, on the other hand, serve on the county fiscal court. KRS 67.040(1). As members of the fiscal court, county magistrates are "authorized and called upon to consider matters involving salary, tenure, and promotion of county employees."
Webb v. Carter Cnty. Fiscal Court , 165 S.W.3d 490, 493 (Ky. App. 2005). In counties with a population of less than 75,000, which includes Powell County, 2"county officers elected by popular vote" are compensated by the fiscal court. KRS 64.530(4). Thus, the Powell County Sheriff is compensated by the Powell County Fiscal Court.
"Two (2) offices or positions are incompatible whenever . . . there are any potential conflicts of interest between the two (2), such as salary negotiations, supervision and control of duties, and obligations to the public to exercise independent judgment." LaGrange City Council , 3 S.W.3d at 770. In considering the duties and relationship between a county magistrate and a court security officer, the incompatibility is apparent. A certified court security officer serves at the pleasure of the county sheriff. KRS 70.030. As a member of the fiscal court, a county magistrate considers matters involving the salary and oversight of the county sheriff. Webb , 165 S.W.3d at 493. Here, the close interrelationship between the positions clearly renders a county magistrate's concurrent employment with the county sheriff incompatible with his elected office. See Webb , 165 S.W.3d at 493. As a member of the fiscal court, a county magistrate could vote to decide the salary and participate in the oversight of the sheriff who appointed him as a court security officer. That is sufficient under the common law to render the two offices incompatible.
Although not incompatible under Section 165 of the Constitution or KRS 61.080, it is the Attorney General's opinion that the offices of certified court security officer and magistrate are functionally incompatible.
Footnotes
Footnotes
1 Section 142 of the Constitution requires each county to be divided into three to eight justice of the peace districts. Following the passage of the Judicial Article in 1976, which amended the Kentucky Constitution to, among other things, eliminate the judicial powers and duties of justices of the peace, the General Assembly and some counties use the terms "justice of the peace" and "magistrate" interchangeably to refer to the members of a county's fiscal court. See, e.g. , KRS 67.042 (referring to justices of the peace in counties containing a city of the first class as "magistrate/representative"); KRS 67.705(3) (referring to magistrates who serve on fiscal courts). Five magistrates serve on the Powell County Fiscal Court.
2 United States Census Bureau, QuickFacts Powell County, Kentucky, available at https://www.census.gov/quickfacts/powellcountykentucky (last accessed on Dec. 30, 2020).