Request By:
J.E.B. Pinney
Acting General Counsel
Public Service Commission
Opinion
Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General
Opinion of the Attorney General
The Public Service Commission ("Commission") asks whether a member of a Board of Education may also serve as a commissioner of a water district created under KRS Chapter 74 or whether those positions are incompatible. For the reasons below, it is the Attorney General's opinion that membership on a Board of Education is not incompatible with membership on a water district board under Section 165 of the Kentucky Constitution, KRS 61.080, or the common law.
Under Section 165 of the Kentucky Constitution and KRS 61.080(1), no person may simultaneously serve as an officer or employee of any city or county and as a state officer, deputy state officer, or member of the General Assembly. A member of a board of education is considered a state officer under Kentucky law. See
Bd. of Ed. of Louisville v. Society of Alumni of Louisville Male High Sch. , 239 S.W.2d 931, 933 (Ky. 1951). But a water district is neither a city nor a county. Instead, a water district is a political subdivision created by statute. See
Louisville Extension Water Dist. v. Diehl Pump & Supply Co. , 246 S.W.2d 585, 586 (Ky. 1952). Thus, a commissioner of a water district is neither a city officer nor a county officer. See OAG 82-635 (finding that a city council member may serve on a county water board); OAG 80-234 (finding that service on a water board is not incompatible with employment by a public school district). Thus, the dual board membership would not violate Section 165 or KRS 61.080(1).
KRS 61.080(6) also provides that "[n]o person shall, at the same time, fill any state office and an appointed office of a special purpose governmental entity that has the authority to levy taxes," unless specifically required by statute. A water district is a special purpose governmental entity authorized to charge rates for water service. See KRS 278.010(3)(d) (defining "utility" to include entities furnishing water to the public for compensation); KRS 278.030(1) (authorizing a utility to charge "fair, just and reasonable rates for the services rendered"). But water rates and other utility rates are not taxes. "A tax is universally defined as an enforced contribution to provide for the support of government, whereas a fee is a charge for particular service."
Long Run Baptist Ass'n, Inc. v. Louisville & Jefferson Cnty. Metropolitan Sewer Dist. , 775 S.W.2d 520, 522 (Ky. App. 1989) (citing
Dickson v. Jefferson Cnty. Bd. of Ed. , 225 S.W.2d 672 (Ky. 1950)); see also
Veail v. Louisville & Jefferson Cnty. Metropolitan Sewer Dist. , 197 S.W.2d 413, 418 (Ky. 1946) ("Charges for sewer service are not taxes, any more than . . . water rents"). So KRS 61.080(6) does not prohibit a school board member from serving as a water district commissioner.
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."). Besides constitutional and statutory incompatibility, the common law also prohibits individuals from occupying functionally incompatible positions. Id . Positions are functionally incompatible when they are "subordinate[d] to each other in a way that would produce a presumption that the duties of one could not be executed with impartiality and honesty" or when "the multiplicity of business [is] such that [one person] could not execute both [functions] . . . with care and ability."
Hermann v. Lampe , 194 S.W. 122, 126 (Ky. 1917). Stated otherwise, functional incompatibility exists "when the two offices are inherently inconsistent or repugnant, or when the occupancy of the two offices is detrimental to the public interest."
Adams v. Com. ex rel. Buckman , 268 S.W.2d 930, 931 (Ky. 1954).
There is no indication that service as a member of a school board and as a commissioner of a water district are incompatible at common law. The positions are not subordinated to each other. And there is no suggestion that an individual could not execute the functions of both boards with the requisite "care and ability." Hermann , 194 S.W. at 126. A member who serves on both boards should, however, refrain from voting or otherwise participating in any matter arising between the school board and the water district. See OAG 82-635 (observing that it "would be against public policy" for a person serving on a city council and a water district board to participate in any matter arising between the two entities).