Could a Lexington-Fayette council member also direct Kentucky's Cabinet ombudsman office?

Plain-English summary

The Attorney General concluded that a Lexington-Fayette Urban County Council member could not simultaneously serve as executive director of the Cabinet for Health and Family Services' Office of the Ombudsman. It reiterated the earlier conclusion that an urban county council member was a county officer. It classified the ombudsman director as a state officer because the Legislature established the office, prescribed its public duties, and gave its director continuing authority and discretion over matters including program evaluation, monitoring, and citizen complaints.

The opinion said OAG 04-012 was inapplicable because it addressed a position without the characteristics of the ombudsman director's position. The AG also noted that its opinion did not carry the force of law and the issue might ultimately require a court ruling.

Currency note

This opinion was issued in 2006. 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: Could a Lexington-Fayette council member direct the state ombudsman office at the same time? A: The AG said no. It viewed the two positions as county and state offices covered by the simultaneous-office prohibition.

Q: Why was the ombudsman director called a state officer?
A: The opinion relied on KRS 194A.030(8), which established the office, specified public functions, and placed an executive director at its head. The AG found continuing delegated government power in the role.

Q: Did OAG 04-012 control the ombudsman director's classification?
A: No. This opinion said the position addressed in OAG 04-012 lacked the characteristics of the ombudsman director's position.

Q: Was the AG's conclusion legally binding?
A: The opinion itself said an AG opinion in this context did not carry the force of law and a court might ultimately have to resolve the dispute.

Background and statutory framework

Section 165 of the Kentucky Constitution and KRS 61.080(1) barred the simultaneous offices described in the opinion. The AG applied public-office factors to the ombudsman director and quoted KRS 194A.030(8)'s description of the office's duties. It also cited KRS 61.090 for the rule that accepting an incompatible second office vacated the first.

Citations and references

Statutes: KRS 61.080(1); KRS 194A.030(8); KRS 61.090.

Related opinions: OAG 04-010; OAG 04-012.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_2bcff1bc-b4a7-4829-a330-d25ceec0e62d/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_2bcff1bc-b4a7-4829-a330-d25ceec0e62d

Original opinion text

OAG 06-002
April 27, 2006
Subject:

Whether a person may lawfully serve as a
member of
the Lexington-Fayette Urban County Council,
and, at the same time, hold the position of executive
director of the Office of the Ombudsman of the
Cabinet
for Health and Family Services.

Requested by:

Allison Connelly, Chair,
Lexington-Fayette Urban County Government
Ethics
Commission.

Written by:

Gerard Gerhard
Assistant Attorney General

Syllabus :

The position of executive director of the Office
of the Ombudsman of the Cabinet for Health
and
Family Services is a “state office,” and one who
holds that position is a “state officer,” such that
one cannot hold that position and lawfully remain
a member of the Lexington-Fayette Urban
County
Council.

Constitutional
Provisions
Construed:

Section 165, Constitution of Kentucky

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Statutes construed:

OAGs cited:

KRS 61.080(1); KRS 61.090; KRS 194A.030(8),
KRS 415.040.

04-010, 04-012.

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Page 3

Opinion of the Attorney General

The question has been posed whether a person may be a member of the Lexington-Fayette County Urban County Council, and, at the same time, serve as the executive director of the Office of the Ombudsman in the Cabinet for Health and Family Services. In our view, for reasons discussed below, the answer is no. This question arises because of Section 165 of the Constitution of Kentucky, which provides, in part pertinent here: No person shall, at the same time, be a State officer or a deputy officer or a member of the General Assembly, and an officer of any county, city, town, or other municipality . . . . The above quoted portion of the Constitution of Kentucky is implemented statutorily by Kentucky Revised Statutes (KRS) 61.080(1), the language of which parallels the language of the Constitution. George G. Myers, as we understand it, was elected to the Lexington- Fayette Urban County Council on November 4, 2004, and subsequently, without resigning the Council position, accepted appointment as the executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services. In Opinion of the Attorney General (OAG) 04-010, this office observed that, in our view, officers of the Lexington-Fayette Urban County are officers of a county, albeit one with an urban county form of government. We reiterate that view here: A member of the LexingtonFayette County Urban County Council is a county officer. This leaves the question of whether the position of executive director of the Office of the Ombudsman in the Cabinet for Health and

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Family Services is that of a state office, as distinguished from state employment. Careful consideration has been given to points made in a June 3, 2005, letter from attorney D. Eric Lycan, regarding Mr. Myers’ appointment as the executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services, as well as the June 1, 2005, affidavit of Mr. Myers that accompanied Mr. Lycan’s letter. The submissions of Mr. Lycan and Mr. Myers cite, in part, text excerpted from the website of the Cabinet for Health and Family Services, related to the Office of the Ombudsman, which indicates: Office of the Ombudsman answers questions about CHFS programs, investigates client complaints and works with the CHFS management to resolve them. The Office of the Ombudsman advises CHFS management about patterns of complaints and recommends corrective action when appropriate. The letter and affidavit mentioned above suggest, in substance, that the purpose of the Office of the Ombudsman is merely to advise, explain and act as a liaison between the public and the Cabinet, that the Office exercises no sovereign power or authority of government, and that the duties of the position do not constitute a delegation of a portion of the sovereign power of government, such that the position is not that of a “state office.” OAG 04-012, cited in Mr. Lycan’s letter, and Mr. Myers’ affidavit, is inapplicable here. That opinion addressed a position that did not have the characteristics of the position to which Mr. Myers has accepted appointment. Neither Mr. Lycan’s letter, nor Mr. Myers’ affidavit, mention Kentucky Revised Statutes (KRS) 194A.030(8), which expressly provides for the Office of the Ombudsman as a major organizational unit of the Cabinet for Health and Family Services, and provides that that office shall

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be headed by an executive director, who shall be appointed by the secretary with the approval of the Governor under KRS 12.050. In several cases Kentucky’s highest court has noted the difficulty of drawing the line between the position of a mere employee and that of an officer. In City of Lexington v. Thompson, 250 Ky. 96, 61 S.W.2d 1092, 1093 (1933), Kentucky’s then highest court recited five elements indispensable in any position of public employment in order to make it a public office of a civil nature: It 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. See also: Taylor v. Commonwealth, 305 Ky. 75, 202 S.W.2d 992, 994 (1947), and Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815, 817 (1947). Comparing the position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services with the elements set forth above, we find the following: KRS 194A.030(8), in creating the Office of the Ombudsman as a major organizational unit within the Cabinet for Health and Family Services, provides:

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Office of the Ombudsman. The Office of the Ombudsman shall
provide professional support in the evaluation of programs,
including but not limited to quality improvement and information analysis and reporting, including contract monitoring, program monitoring, and the development of quality service delivery, and a review and resolution of citizen complaints about programs or services of the cabinet when those com plaints are unable to be resolved through normal administrative remedies. The Office of the Ombudsman shall place an emphasis on research and best practice and program accountability and shall monitor federal compliance. The Office of the Ombudsman shall be headed by an executive director who shall be appointed by the secretary with the approval of the Governor under KRS 12.050. From a plain reading of KRS 194A.030(8) it may be seen that the position of executive director of the Office of the Ombudsman is created by the legislature. In being statutorily designated as the head of an office having the duties and functions described in KRS 194A.030(8), the executive director of the Office of the Ombudsman possesses a delegation of a portion of the sovereign power of government to be exercised for the benefit of the public as provided by KRS 194A.030(8), which indicates that the Office of the Ombudsman shall: provide professional support in the evaluation of programs, including but not limited to quality improvement and information analysis and reporting, including contract monitoring, and the development of quality service delivery, and a review and resolution of citizen complaints about programs or services of the cabinet when those complaints are unable to be resolved through normal administrative remedies. The Office of the Ombudsman shall place an emphasis on research and best practice and program accountability and shall monitor

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federal compliance.
The preceding language quoted from KRS 194A.030(8) defines
the powers conferred and the duties to be performed.
The duties of the executive director of the Office of the Ombudsman are necessarily performed in the manner determined by the executive director, although the Office is an inferior one under the general control of the secretary of the Cabinet for Health and Family Services. The executive director of the Office of the Ombudsman, given KRS 194A.030(8), is cloaked with power to be exercised for the benefit of the public as a continuing and permanent function, not as an incidental or transient authority. From the analysis set forth above, it may be seen that the position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services possesses each of the elements of a state “office” as distinguished from a position of mere employment. City of Lexington, supra. A review of the complete web page of the Office of the Ombudsman, and of KRS 194A.030(8), indicates the significant duties and discretion implicit in the position of the executive director of that office, and belies the contention that the position does not possess a delegation of a portion of the sovereign power of government to be exercised for the benefit of the public. For the reasons indicated, in our view, the position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services is a “state office” and one holding such position is a “state officer” within the meaning of KRS 61.080(1). Mr. Myers cannot, again in our view, lawfully be a member of the Lexington-Fayette Urban County Council, and, at the same time, hold the position of executive director of the Office of the Ombudsman of

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the Cabinet for Health and Family Services. Constitution of Kentucky
§165, KRS 61.080(1).
It should be noted that an Opinion of the Attorney General, in this
context, does not carry the force of law. The issue of concern here
might ultimately have to be resolved in court.
KRS 61.090 provides that the acceptance by one in office of another office incompatible with the one he holds shall operate to vacate the first. Should Mr. Myers not resign from the Urban County Council, the matter might be brought to the attention of the Commonwealth’s Attorney for possible action pursuant to KRS 415.040.

GREGORY D. STUMBO
ATTORNEY GENERAL

Gerard Gerhard
Assistant Attorney General
#373