Was the Kentucky cabinet division director in OAG 04-010 a state officer or a state employee?

Plain-English summary

The Attorney General revisited one part of OAG 04-010 after receiving more information about the specific Division Director II position. The earlier opinion had treated that job as a state office because it understood the director to exercise delegated government power over service region administrators. The new account described general guidance, leadership support, and administrative assistance under a commissioner's direct supervision. On those facts, the AG concluded that the director did not independently exercise delegated sovereign power and classified the position as state employment.

OAG 04-012 modified OAG 04-010 only on that position's classification. It expressly limited the new view to the particular position and facts supplied.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG reverse its finding that this division director was a state officer? A: Yes, for this position. After receiving new facts about the duties and supervision, the AG classified it as state employment and modified that part of OAG 04-010.

Q: What changed between the two opinions? A: The AG said the earlier record suggested responsibility over service region administrators and sovereign power. Later information described guidance and support under direct supervision, without independent exercise of that power.

Q: Was every Division Director II job classified as employment? A: No. The AG expressly confined its conclusion to the position and facts presented.

Background and statutory framework

KRS 61.080(1) and Section 165 of the Kentucky Constitution made the office-versus-employment distinction important for simultaneous service. The opinion described independent exercise of delegated sovereign power as essential to a state-office classification and found that element missing from the revised description of this job. Its operative statement was: “OAG 04-010 is hereby modified, only in relation to the classification of the position in question.”

Citations and references

Statute: KRS 61.080(1).

Earlier opinion modified: OAG 04-010.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_087db204-b55f-4fea-9c29-80c26c0dab36/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_087db204-b55f-4fea-9c29-80c26c0dab36

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Subject:

Requested by:
Written by:

Syllabus:

OAG 04-012
December 2, 2004

Whether a particular Division Director II position in the

Cabinet for Health Services should be classified as one of state “employment,” rather than as a state “office,” for purposes of KRS 61.080(1).

D. Eric Lycan
Gerard R. Gerhard

Limited to the specific position involved, state posi- tion

carried out under direct supervision, and which does not

exercise a delegated portion of the sovereign power of government, is a position of state “employ- ment” rather than a state “office.”

Statutes construed: KRS 61.080(1).

OAGs cited:

OAG 04-010 (Modified).

Opinion of the Attorney General

In Opinion of the Attorney General (OAG) 04-010, this office con- cluded, in part, based upon information that had been presented to this office, that a given Division Director II position, within the Cabinet for Health Services, was that of a state “office,” as distinguished from a position of state “employment.”

OAG 04-012
Page 2

For reasons explained below, we here modify OAG 04-010, only in relation to our previous determination that the specific state posi- tion in question is that of an “office.” Based upon information fur- nished to us after issuance of OAG 04-010, it appears that the state po-

sition in question is that of state “employment,” rather than a state “office.”

OAG 04-012
Page 2

The distinction between a position classified as a state “office,” and one classified as state “employment,” is important because of Section 165 of the Constitution of Kentucky, and Kentucky Revised Statutes (KRS) 61.080(1), which indicate, in part, that one may not, at the same time, be a state officer and an officer of any county.

A key element relied upon in OAG 04-010, in concluding that the position was a state “office,” was our understanding, based upon infor- mation then available, that the position would have “responsibility over the activities of service region administrators for human services pro- grams in Kentucky, and that such responsibility appeared to constitute an exercise of the sovereign power of government ....”. Such element is essential to classifying a state position as an “office,” as distin- guished from state “employment.” See Howard v. Saylor, 305 Ky. 504, 204 S.W. 2d 815, 817 (1947).

Information furnished to this office subsequent to the issuance of OAG 04-010 indicates that the position involved merely provides “gen- eral guidance,” “leadership support,” and “administrative support and assistance,” to service regions, with such duties being performed un- der the direct supervision of the cognizant commissioner, rather than being performed independently. It thus appears that the particular Di- vision Director II position within the Cabinet for Health Services does not independently exercise a delegated portion of the sovereign power of government. Howard, supra. Such position, therefore, should be classified as one of state “employment,” rather than as a state “office.” Accordingly, OAG 04-010 is hereby modified, only in relation to the classification of the position in question.

The view expressed in this opinion, regarding the classification of the specific state position here addressed, is limited to that position, and the facts provided to this office in relation to that position.

GREGORY D. STUMBO
ATTORNEY GENERAL

Gerard R. Gerhard
Assistant Attorney General

OAG 04-012
Page 4

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