Can a doctor who works at a Kansas county hospital also sit on that hospital's board of trustees?

Plain-English summary

Southwest Medical Center's chief legal counsel and the Seward County counselor jointly asked whether a physician could keep sitting on the hospital's board of trustees after becoming a salaried employee of that same hospital. The physician had been appointed to the seven-member board in 2022 and then joined the medical staff as an employee in September 2024, raising the question of whether holding both roles at once was legally permissible.

The Attorney General concluded it was not, applying the common law doctrine of incompatibility of office. Because no Kansas statute directly addresses whether a person can be both a county hospital trustee and a hospital employee, the common law doctrine fills the gap, and Kansas courts have already applied that doctrine to bar a school board member from also working as a teacher in the same district, reasoning that one role would be effectively subordinate to and supervised by the other. The opinion found the same structural conflict here: as a trustee, the physician sits on the body that oversees the hospital's chief executive officer, who in turn is the physician's own supervisor as an employee. That circular relationship, where the employee effectively helps oversee his own boss, and the trustee's duty of independent judgment on hospital matters like salary and staffing collides with his personal financial stake as an employee, made the two positions incompatible regardless of anyone's good intentions.

What this means for you

County hospital boards and hospital administrators: the opinion holds that a hospital employee cannot also serve as a trustee of that same hospital's governing board, because the trustee role's oversight of hospital management (including the chief executive who supervises staff) is structurally incompatible with also being one of the employees under that same management chain.

Physicians or other hospital staff currently serving on their own hospital's board: the opinion signals that accepting hospital employment while remaining a trustee (or vice versa) creates a legal incompatibility problem under Kansas common law, even without a specific statute addressing the situation, and the conflict exists regardless of whether any actual misconduct has occurred.

Common questions

Is there a specific Kansas statute that bans a hospital employee from serving as a trustee?
No, according to the opinion; no statute directly addresses the situation, which is why the common law doctrine of incompatibility of office fills the gap.

Why does it matter that the trustee board oversees the hospital's CEO?
Because the CEO is also responsible for supervising hospital employees, including the physician-trustee, the opinion found the same person would effectively be helping oversee, as a trustee, the very executive who supervises him as an employee, a direct conflict the incompatibility doctrine is designed to prevent.

Does this rule only apply to physicians, or any hospital employee who becomes a trustee?
The opinion's reasoning is not limited to physicians; it turns on the structural conflict between being a trustee who helps govern the hospital and being an employee supervised within that same hospital's management chain, so the same logic would likely extend to other hospital employees serving as trustees.

Background and statutory framework

Under K.S.A. 19-4601 et seq., a county may own and operate a hospital governed by a board of trustees, either elected by county voters or, as in Seward County, appointed by the board of county commissioners. K.S.A. 19-4605 establishes how the board is selected, and K.S.A. 19-4610 gives the board authority to adopt bylaws, control hospital expenditures, and hire hospital administrators, among other management powers. Article 2, Section 18 of the Kansas Constitution empowers the Legislature to provide for the election or appointment of public officers not otherwise addressed in the Constitution, and Kansas courts have held that when the Legislature does provide for a particular officer's appointment without addressing dual officeholding, the common law doctrine of incompatibility of office fills that silence under K.S.A. 77-109.

The Kansas Supreme Court's decision in Unified School District No. 501 v. Baker held that a school board member could not simultaneously work as a teacher in the same district, because the two roles created a subordinate relationship and conflicts over salary negotiations, supervision, and the duty to exercise independent judgment. The opinion applied that same framework to the hospital setting: the physician's role as an employee subordinate to the hospital's CEO conflicts with his role as a trustee overseeing that same CEO, producing the kind of built-in tension the incompatibility doctrine exists to prevent, regardless of the individuals' intentions.

Citations and references

Statutes and constitutional provisions:
- K.S.A. 19-4601 et seq.; 19-4605; 19-4610
- K.S.A. 77-109
- Kan. Const., Art. 2, § 18

Cases:
- Unified School District No. 501 v. Baker, 269 Kan. 239, 6 P.3d 848 (2000)
- Dyche v. Davis, 92 Kan. 971, 142 P. 264 (1914)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/22894/638745211919670000

Original opinion text

February 6, 2025

ATTORNEY GENERAL OPINION NO. 2025-3

Shirla McQueen
Sharp McQueen, P.A.
419 N. Kansas Ave – P.O. Box 2619
Liberal, KS 67905-2619
Chief Legal Counsel for Southwest Medical Center

Nathanial Foreman
Tate, Kitzke & Foreman LLC
1024 S. Trindle St – P,O, Box 909
Hugoton, KS 67951-0909
County Counselor for Seward County

Re: Counties and County Officers—Hospitals and Related Facilities—
Hospital Board

Synopsis: The common law doctrine of incompatibility of office precludes a person
from concurrently holding the positions of a county hospital board
member and a physician in the same hospital. Cited herein: K.S.A. 19-
4605; 19-4610; Kan. Const., Art. 2, § 18.

                       *            *            *

Dear Ms. McQueen and Mr. Foreman:

As Chief Legal Counsel for Southwest Medical Center and County Counselor for
Seward County, respectively, you request our opinion on whether an employee of a
county hospital may simultaneously serve on that hospital's board of trustees.

Background

Southwest Medical Center (SWMC) is a hospital facility owned by Seward County,
Kansas under K.S.A. 19-4601 et seq.1 Once a county hospital has been created under
this act, the entity managing hospital affairs is a board that is either elected by
county voters or appointed by the county commissioners.2 In the case of Seward
County, the Board of County Commissioners appoints the members of the board.3 The
Board of Trustees is authorized to adopt bylaws and rules and regulations for the
management and control of the hospital; control the expenditures of hospital; enter
into contracts for insurance and the employment of hospital administrators; obtain
letters of credit; and establish and fund a pension fund for hospital employees.4 The
SWMC Board of Trustees has exercised its authority and hired a chief executive
officer responsible for the employees of SWMC.5

The SWMC Board of Trustees consists of seven members, one of whom is a physician.6
The physician was appointed to the Board of Trustees in 2022.7 The same physician
became a salaried employee of SWMC in September 2024.8

Analysis

The Kansas Constitution empowers the Legislature to provide for the election and
appointment of all public officers not otherwise provided for in the Constitution.9 If
the Legislature provides for the election and appointment of a public officer, then that
decision supersedes common law, which includes the doctrine of incompatibility of
office.10 However, in the absence of a statute authorizing a person to hold more than
one public office, Kansas courts apply the common law doctrine of incompatibility of
office.11

1 Shirla McQueen and Nathanial Foreman, Correspondence, October 21, 2024.
2 K.S.A. 19-4605.
3 Shirla McQueen and Nathanial Foreman, Correspondence, October 21, 2024.
4 K.S.A. 19-4610.
5 Shirla McQueen and Nathanial Foreman, Correspondence, October 21, 2024.
6 Shirla McQueen and Nathanial Foreman, Correspondence, October 21, 2024.
7 Shirla McQueen and Nathanial Foreman, Correspondence, October 21, 2024.
8 Shirla McQueen and Nathanial Foreman, Correspondence, October 21, 2024.
9 Kan. Const., Art. 2, § 18.
10 Unified School District No. 501 v. Baker, 269 Kan. 239, 243, 6 P.3d 848 (2000).
11 K.S.A. 77-109; 269 Kan. at 252.

The common law doctrine of incompatibility of office prohibits an individual from
holding two offices that are incompatible with each other as a matter of public
policy.12 "Offices are incompatible when the performance of the duties of one in some
way interferes with the performance of the duties of the other."13

The Kansas Supreme Court has held that the incompatibility of office doctrine applies
to a person holding a public office and a position of public employment.14 "It is
inimical to the public interest for one in public employment to be both the employer
and the employee or the supervisor and the supervised."15 "[T]wo offices or positions
are incompatible if there are many 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."16

The Kansas Supreme Court in Unified School District No. 501, Shawnee County v.
Baker17 found that the common law doctrine of incompatibility of office precludes a
person from concurrently serving as a school board member and a teacher in the same
school district. The Court noted that Baker occupied a position, a teacher, that was
subordinate to her other position, a board member.18

There is no Kansas statute that expressly allows or prohibits a person to concurrently
hold the positions of county hospital trustee and hospital employee.19 Accordingly,
the common law doctrine of incompatibility of office applies to determine whether the
concurrent holding of such offices is permissible.

In our judgment, the role of county hospital trustee and physician in the same
hospital are incompatible. By assuming the role of physician and trustee, the
individual occupies one position that is subordinate to the other. In his capacity as
trustee, the physician sits on a body charged with managing the hospital where he is
employed. The chief executive officer responsible for the physician's employment
answers to the same physician as a trustee. There are too many potential conflicts of
interest between the two positions, such as supervision, control of duties, and
exercising independent judgment.

12 269 Kan. at 249.
13 Dyche v. Davis, 92 Kan. 971, 977, 142 P. 264 (1914).
14 Baker, 269 Kan. at 239 Syl. ¶ 4. This distinguishes Eldridge v. Sierra View Local Hospital District,
224 Cal. App. 3d 311, 273 Cal. Rptr. 654 (Ct. App. 1990), where the California Court of Appeal, Fifth
Appellate District found that the doctrine of incompatibility of office did not apply to a nurse's
employment and position as a member of the local hospital district's board of directors. Id. at 319.
California case law restricts the application of the doctrine to two public offices and has no
application when one of the positions is employment rather than a public office. Id.
15 269 Kan. at 239, Syl. ¶ 6.
16 63C Am. Jur. 2d Public Officers and Employees § 58.
17 269 Kan. 239 (2000).
18 269 Kan. at 251.
19 See, e.g., K.S.A. 19-4605.

No matter how well-intended, a county hospital trustee serving concurrently as a
physician of the same hospital is colored by the conflict inherent in the two positions.
Therefore, we opine that the positions of trustee and physician for SWMC are
incompatible, and may not be held concurrently by the same person.

                                    Sincerely,

                                    /a/ Kris W. Kobach

                                    Kris W. Kobach
                                    Attorney General

                                    /s/ Andrew J. Lohmann

                                    Andrew J. Lohmann
                                    Assistant Solicitor General