October 8, 2024
OAG 24-09
Subject:
Whether the position of Commonwealth detective under KRS
69.110 is considered a state office for the purpose of determining
incompatibility under Section 165 of the Kentucky Constitution
and KRS 61.080.
Requested by:
Detective John S. Williams
Office of Commonwealth’s Attorney, Eighth Judicial Circuit
Written by:
Jeremy J. Sylvester, Assistant Attorney General
Syllabus:
A Commonwealth detective is not a state officer for purposes of
Section 165 of the Kentucky Constitution or KRS 61.080.
Opinion of the Attorney General
John
S.
Williams,
a
Commonwealth
detective
appointed
by
the
Commonwealth’s Attorney for the Eighth Judicial Circuit, asks whether his position
is considered a state office for purposes of Section 165 of the Kentucky Constitution
and KRS 61.080. Section 165 and KRS 61.080 prohibit a “state officer” from
contemporaneously serving as an officer or employee of a municipality or county.
Section 165 provides, “No person shall, at the same time, be a State officer or a deputy
officer or member of the General Assembly, and an officer of any county, city, town,
or other municipality, or an employee thereof” (emphasis added). See also KRS
61.080(1) (using language nearly identical to Section 165). Other enumerated offices
are also statutorily incompatible with “any other public office.” KRS 61.080(7). For
the reasons below, it is the Attorney General’s opinion that a Commonwealth’s
detective is not a “state officer” for the purpose of determining the constitutional or
statutory incompatibility of offices.
“[T]he determination of whether a government employee is an officer ‘has to be
on a case-by-case basis, depending on the nature and importance of the office in
question.’” Clark Cnty. Atty. v. Thompson, 617 S.W.3d 427, 433 (Ky. App. 2021)
(quoting Commonwealth ex rel. Hancock v. Clark, 506 S.W.2d 503, 504 (Ky. 1974))Opinion of the Attorney General 24–09
October 8, 2024
Page 2
2
(emphasis added). Kentucky courts have acknowledged the difficultly in drawing the
line between an ordinary public employee and an officer. But the law is clear that
there are five “indispensable” elements of a public office:
(1) [i]t must be created by the Constitution or by the Legislature or
created by a municipality or other body through authority conferred
by the Legislature;
(2) it must possess a delegation of a portion of the sovereign power of
government, to be exercised for the benefit of the public;
(3) the powers conferred, and the duties to be discharged, must be
defined, directly or impliedly, by the Legislature or through
legislative authority;
(4) the duties must be performed independently and without control of
a superior power, other than the law, unless they be those of an
inferior or subordinate office, created or authorized by the
Legislature, and by it placed under the general control of a superior
officer or body;
(5) it must have some permanency and continuity, and not be only
temporary or occasional.
Howard v. Saylor, 204 S.W.2d 815, 817 (Ky. 1947); see also OAG 06-002, 2006 WL
1310251 (applying these elements when analyzing whether an executive director of
the Office of Ombudsman was a state officer).1
Even though these elements govern whether a public employee is an officer as
a general matter, the General Assembly may “chang[e] the analytical equation by
enacting [legislation].” Thompson, 617 S.W.3d at 433. For example, under KRS
83A.080(1), “[a]ll nonelected city offices shall be created by ordinance which shall
specify: (a) Title of office; (b) Powers and duties of office; (c) Oath of office; and (d)
Bond, if required.” See id.; see also OAG 21-04, 2021 WL 1741087, at *2 (opining that
a municipal police officer was not an “officer” for constitutional and statutory
incompatibility purposes). Absent an ordinance creating the position of city police
officer under KRS 83A.080, Thompson held that a police officer employed by the City
1
The General Assembly has provided a similar eight-element statutory definition of a city officer in
KRS 83A.010(10), which provides: “‘Officer’ means any person elected to a position by the voters or
any person appointed to a position which (a) is created by the Constitution, the General Assembly, or
a city; (b) possesses a delegation of a portion of the sovereign power of government; (c) has powers and
duties to be discharged which are conferred directly or by implication by the city; (d) has duties
performed independently and without control of a superior power other than law; (e) has some
permanency; (f) requires an official oath; (g) is assigned by a commission or other written authority;
and (h) provides for an official bond if required by proper authority.”Opinion of the Attorney General 24–09
October 8, 2024
Page 3
3
of Winchester was not a “municipal officer” under either KRS 61.080 or Section 165.
Thompson, 617 S.W.3d at 433.2
After Thompson was decided, this Office revisited the issue of whether a city
police officer was a municipal officer for purposes of Section 165. See OAG 21-04. The
Office looked to several statutes that referred to city police officers as employees of
the city and found that the city police officer at issue was not a municipal officer for
incompatibility purposes. OAG 21-04, 2021 WL 1741087, at *1. Like Thompson, the
Office noted that the city had not created a nonelected office of police officer by
enacting an ordinance under KRS 83A.080(1). Id. at *2.
The General Assembly established the position of Commonwealth detective in
KRS 69.110:3
Commonwealth detectives shall have the power of arrest in the counties
comprising their districts and the right to execute process statewide.
They shall assist the Commonwealth’s attorney in all matters
pertaining to his office in the manner he designates and shall assist him
in the preparation of all criminal cases in Circuit Court by investigating
the evidence and facts connected with such cases.
Over four and a half decades ago, the Office opined that a Commonwealth detective
was a state officer. See OAG 78-708, 1978 WL 26262. In its 1978 opinion, the Office
did not consider, much less analyze, the indispensable elements of a state office under
Saylor. Rather, the opinion merely stated that “the power of arrest places them in the
category of peace officers and public officers.” Id. Because a Commonwealth detective
is appointed by a Commonwealth’s attorney, a state officer, the opinion concluded
that a Commonwealth detective is a state officer, as opposed to a city or county officer.
Id. It is true that the power of arrest makes a Commonwealth detective a “peace
officer.” KRS 446.010(31). But this Office’s 1978 opinion presumes, without any
analysis, that this one fact alone makes a Commonwealth detective a state officer for
purposes of Section 165 and statutory incompatibility of offices.
In addition to OAG 78-708, a number of this Office’s other prior opinions found
that police officers were public officers.4 See, e.g., OAG 78-206 (concluding that “a city
2
Because the city did not enact an ordinance under KRS 83A.080(1), the Court of Appeals found it
unnecessary to address whether the police officer position would satisfy the eight-element definition
of a city officer in KRS 83A.010(10). Thompson, 617 S.W.3d at 433.
3
Under KRS 15.760(2), the number of investigative positions the Commonwealth’s attorneys may
appoint, including Commonwealth detectives, is to be based on “real need” and determined with the
advice and consent of the Prosecutors Advisory Council. Id.
4 The prior opinions of this Office are not necessarily incorrect and are not necessarily overruled by
this opinion. After all, incompatibility questions must be decided on a case-by-case basis on a particular
set of facts. Thompson, 617 S.W.3d at 433. But going forward, the question of whether a particularOpinion of the Attorney General 24–09
October 8, 2024
Page 4
4
police officer is, of course, a municipal officer”); OAG 80-576 (concluding, without
analysis, that a county police officer is a county officer); see also Thompson, 617
S.W.3d at 432–33; id. n.2 (collecting Attorney General opinions finding that a city
police officer is a municipal officer).5 But after Thompson, the analysis used in those
prior opinions is, at a minimum, called into question.
Thompson noted that the case on which this Office relied for many of those
opinions, City of Lexington v. Rennick, 49 S.W. 787 (Ky. 1899), was somewhat
nebulous and failed to consider relevant statutory text concerning the position at
issue. Thompson, 617 S.W.3d at 432–33. In particular, the Court of Appeals noted
that Rennick never addressed whether a city’s police officers were city officers or
merely employees; rather, Rennick assumed sub silentio that they were. Id. at 432
(citing Bd. of Educ. of Graves Cnty. v. DeWeese, 343 S.W.2d 598, 602 (Ky. 1960)). The
court speculated that the parties may have presumed police officers were considered
public officers and therefore did not raise the issue. Id. Thompson also noted that
other cases cited by this Office’s prior opinions, including Arms & Short v. Denton,
278 S.W.158 (Ky. 1925), Thomas v. Thompson, 102 S.W 849 (Ky. 1907), and McCloud
v. Whitt, 639 S.W.2d 375 (Ky. App. 1982), involved police chiefs, not rank-and-file
patrol officers like the plaintiff in Thompson. Id. at 432–33. Thompson ultimately
held that a rank-and-file city police officer was not a public officer for incompatibility
purposes because the city had not created a nonelected city office for police officers
through an ordinance under KRS 83A.080(1).
Even though a Commonwealth detective is not a city police officer, Thompson
requires the Office to revisit OAG 78-708 and offer a more robust analysis concerning
whether a Commonwealth detective is a state officer. This Office cannot rely on
Rennick’s silent assumption that a police officer is a public officer. Nor can it rely on
Denton, McCloud, and Thomas, all of which involved city police chiefs. Rather, the
Office must examine the relevant statutory text as it did for city police officers in
OAG 21-04, as well as the indispensable elements of a public office under Saylor, for
clues regarding whether the position is an office.
The only Kentucky statute that specifically mentions the position of
Commonwealth detective is KRS 69.110. That statute, however, does not refer to
Commonwealth detectives as either state employees or state officers. Cf. KRS
83A.130(9) (granting a mayor the “power to appoint and remove all city employees,
including police officers”); KRS 83A.080(1) (prescribing process for establishing
state employee is an “officer” for purposes of Section 165 of the Kentucky Constitution must be
answered using the same method of analysis as in this opinion.
5
The analysis of these prior opinions rarely looked beyond nomenclature—i.e., assuming all law
enforcement officers must be “officers” for purposes of Section 165—and the legal authority of law
enforcement officers to effect arrests. After Thompson, this mode of analysis is, at best, incomplete.Opinion of the Attorney General 24–09
October 8, 2024
Page 5
5
nonelective city offices). Thus, the statutory text does is not dispositive of the
question.
Turning to the five indispensable elements of public officers under Saylor, the
position of Commonwealth detective meets the first, second, third, and fifth elements.
The position is established by statute, Commonwealth detectives possess the
sovereign power to arrest individuals, and the General Assembly has defined the
position’s powers and authority in KRS 69.110. And the position has sufficient
permanency, as its existence is codified in the permanent statutes of the
Commonwealth. Thus, determinative here is the fourth Saylor element, namely,
whether a Commonwealth detective’s “duties must be performed independently and
without control of a superior power, other than the law.” Saylor, 204 S.W.2d at 817.
A Commonwealth detective’s duties do not “require the exercise of independent
initiative” or “autonomous action” sufficient to find that this position is a state office.
Reynolds v. Bd. of Educ. of Lexington, 224 S.W.2d 442, 443–44 (Ky. 1949) (discussing
the independence element in the context of a school superintendent and assistant
superintendent). Nor does this position “carr[y] with it the performance of significant
executive duties.” Id. at 444. Rather, the statute creating the position states the
duties of a Commonwealth detective are to “assist the Commonwealth’s attorney . . .
in the manner he designates and . . . assist him in the preparation of all criminal
cases.” KRS 69.110 (emphasis added). Because the Commonwealth’s attorney
supervises and directs the performance of a Commonwealth detective’s duties, and a
Commonwealth detective may only perform his duties “in the manner [the
Commonwealth’s attorney] designates,” a Commonwealth detective is properly
categorized as a state employee, and not a state officer. See Thompson, 617 S.W.3d at
438 (Maze, J., concurring) (noting a city police officer was not a public officer because
he “was subject to authority of his superiors”); OAG 04-010, 2004 WL 2515865
(finding a Division Director II in the Cabinet for Health and Family Services is an
employee “under direct supervision of the cognizant commissioner”); see also KRS
11A.010(7)(a) (generally defining “officer” to mean “major management personnel” for
purposes of the Executive Branch Code of Ethics).
For these reasons, it is the opinion of the Attorney General that
Commonwealth detectives are state employees, and not state officers for the purposes
of KRS 61.080 and Section 165 of the Kentucky Constitution. To the extent OAG 78-
708 held otherwise, it is overruled.
Russell Coleman
ATTORNEY GENERAL
Jeremy J. Sylvester
Assistant Attorney General