Can a Kentucky county magistrate also work as a city police officer?

Plain-English summary

A Beattyville police officer who was also a Breathitt County magistrate asked whether holding both positions was allowed. Kentucky law bars one person from holding a county office and a municipal office at the same time (KRS 61.080(3)), so the answer depended on whether a city police officer counts as a municipal "officer" or merely a municipal "employee." That distinction is decisive, because the bar reaches officers, not employees.

The Attorney General concluded the two positions were not incompatible. Magistrates are county officers. But following the Court of Appeals decision in Clark County Attorney v. Thompson, the opinion analyzed this particular police officer rather than declaring a blanket rule about all police officers. Because Beattyville uses the mayor-council form of government, KRS 83A.130(9) made the mayor the appointing authority over city employees "including police officers," and the statute calls them employees. The opinion also noted that nonelected city offices must be created by ordinance specifying the title, powers, oath, and bond (KRS 83A.080(1)), and no Beattyville ordinance did that for police officers. So a Beattyville police officer was a municipal employee, not an officer, and KRS 61.080(3) did not bar the dual service.

The opinion then checked constitutional incompatibility under Section 165 (no conflict, because the officer held no state or municipal office) and common-law functional incompatibility. It found no functional conflict because the two positions were in different counties, Beattyville being in Lee County and the magistrate office being in Breathitt County. Neither position could appoint, remove, supervise, or set the salary of the other, so there was no inherent conflict of interest.

Currency note

This opinion was issued in 2021. 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.

Background and statutory framework

Incompatibility can arise under the Kentucky Constitution, statutes, or common law. The opinion treated magistrates as county officers (Ky. Const. § 99; see also § 142 on justice-of-the-peace districts) and analyzed whether a Beattyville police officer was a municipal officer under KRS 61.080(3). Relying on Clark Cty. Attorney v. Thompson (and its instruction, drawn from Commonwealth ex rel. Hancock v. Clark, to decide officer status case by case), the opinion concluded the eight-element officer test in KRS 83A.010(10) did not apply because police officers are not elected. Instead, KRS 83A.130(9) (mayor-council plan) and KRS 95.015 treat police officers as city employees, and KRS 83A.080(1) requires nonelected city offices to be created by ordinance specifying title, powers, oath, and bond, which Beattyville had not done for police officers. The opinion found no constitutional incompatibility under Section 165 (citing Walling v. Commonwealth) and no common-law functional incompatibility (citing LaGrange City Council v. Hall Bros. Co. and Webb v. Carter Cty. Fiscal Ct.), because the positions sat in different counties (Lee and Breathitt) with no appointment, removal, or supervisory link between them.

Citations and references

Constitution and statutes:
- Ky. Const. §§ 99, 165; KRS 61.080(3)
- KRS 83A.010(10); KRS 83A.130(9); KRS 95.015; KRS 83A.080(1)

Cases:
- Clark Cty. Attorney v. Thompson, 617 S.W.3d 427 (Ky. App. 2021)
- Commonwealth ex rel. Hancock v. Clark, 506 S.W.2d 503 (Ky. 1974)
- Owen v. Univ. of Ky., 486 S.W.3d 266 (Ky. 2016)
- Walling v. Commonwealth, 84 S.W.2d 10 (Ky. 1935)
- LaGrange City Council v. Hall Bros. Co. of Oldham Cty., Inc., 3 S.W.3d 765 (Ky. App. 1999)
- Webb v. Carter Cty. Fiscal Ct., 165 S.W.3d 490 (Ky. App. 2005)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2021-04.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
April 21, 2021
OAG 21-04
Subject: Whether the office of Breathitt County magistrate and the position of Beattyville police officer are incompatible.
Requested by: John Marshall, Beattyville Police Officer
Written by: Charles A. English, Assistant Attorney General
Syllabus: The position of Beattyville police officer is not incompatible with the office of Breathitt County magistrate because a Beattyville police officer is a municipal employee and not a municipal officer.

Opinion of the Attorney General

John Marshall, a Beattyville police officer, asks whether the office of Breathitt County magistrate is compatible with his employment as a police officer. For the reasons below, it is the Attorney General's opinion that the two positions are not incompatible.

Two offices may be incompatible under the Kentucky Constitution, the Commonwealth's statutes, or the common law. As this Office has stated previously, magistrates are county officers. See OAG 20-19; see also Ky. Const. § 99 (providing for the election of justices of the peace as county officers[1]). The tougher question, however, is whether a Beattyville police officer is a municipal officer or a municipal employee. This is an important initial determination because, under KRS 61.080(3), "[n]o person shall, at the same time, fill a county office and a municipal office." See also Clark Cty. Attorney v. Thompson, 617 S.W.3d 427, 431 (Ky. App. 2021) ("That distinction is crucial because the prohibition bars serving as both a municipal officer and county officer, not against being a municipal employee and a county officer."). Statutory incompatibility here, then, turns on whether the Beattyville police officer is a municipal officer or a municipal employee.

Although the "[t]he Attorney General has consistently stated in multiple OAG decisions . . . that municipal police officers are municipal officers," 617 S.W.3d at 432, the Thompson Court has instructed that "the 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.'" Thompson, 617 S.W.3d at 433 (quoting Commonwealth ex rel. Hancock v. Clark, 506 S.W.2d 503, 504 (Ky. 1974)) (emphasis added). Therefore, following the holding in Thompson, "we address only whether [a Beattyville police officer] is an officer, not whether all municipal police officers are, or are not, municipal officers." Id.

The eight-element definition of "officer" normally used in an incompatibility analysis is found in KRS 83A.010(10). But because police officers are not elected, that provision is inapplicable to our analysis. Thompson, 617 S.W.3d at 434. Rather, KRS 83A.130 governs our analysis because Beattyville is organized under "the mayor-council plan." See Beattyville Ordinance § 30.01.

Under the mayor-council plan form of government, "[t]he mayor shall be the appointing authority with power to appoint and remove all city employees, including police officers." KRS 83A.130(9); see also KRS 95.015 (providing that members of police departments are employed). Here, KRS 83A.130(9) explicitly refers to police officers as city "employees." And as the Supreme Court of Kentucky has noted, "[t]he text is the law." Owen v. Univ. of Ky., 486 S.W.3d 266, 272 (Ky. 2016). Beattyville police officers are therefore municipal employees, not officers.

This conclusion finds more support in KRS 83A.080(1), which provides that "[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." But there is no Beattyville ordinance that specifies the title, powers, oath, and bond (if required) for city police officers.[2] In short, there is no indication that any Beattyville ordinance creating the position of Beattyville city police officer satisfies the mandatory nonelected city officer requirements of KRS 83A.080(1). Thus, the police officer here is not a nonelected city officer. "And since police officers are not elected, that means they cannot be city officers at all." Thompson, 617 S.W.3d at 434. For these reasons, the Attorney General finds that Beattyville police officers are municipal employees, and not municipal officers. Thus, the positions are compatible with each other under KRS 61.080(3).

Turning to constitutional incompatibility, Section 165 of the Kentucky Constitution 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; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities, except as may be otherwise provided in this Constitution[.]

There is no constitutional incompatibility between Marshall's two positions. Marshall does not hold a state office, and as explained above, does not hold a municipal office. As Walling v. Commonwealth, 84 S.W.2d 10, 12 (Ky. 1935), noted, Section 165 "do[es] not forbid a county officer being an employee of a city or town." Thus, the Attorney General finds that the positions of Breathitt County magistrate and Beattyville police officer are not constitutionally incompatible.

Finally, an incompatibility analysis does not end with the constitutional and statutory text. 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 Cty., 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."). In addition to constitutional and statutory incompatibility, the common law also prohibits individuals from occupying "functionally incompatible" offices. Id. at 770.

As the Court of Appeals has explained, "[t]he question is whether one office is subordinated to the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest." Id. at 769-70. "For example, two positions would be incompatible 'whenever one has the power of appointment to or removal from the other and whenever there are any potential conflicts of interest between the two (2), such as salary negotiations, supervision and control of duties, and obligations to the public to exercise independent judgment.'" Thompson, 617 S.W.3d at 435. (citing LaGrange City Council, 3 S.W.3d at 770 (footnote omitted)); see also Webb v. Carter Cty. Fiscal Ct., 165 S.W.3d 490, 493 (Ky. App. 2005) ("The doctrine of incompatibility bars an individual from holding both public office and public employment where one position is subordinate to the other or is subject to the audit or review of the other.").

The office of Breathitt County magistrate and the position of Beattyville police officer cannot be "functionally incompatible" because the two positions are in different counties. See LaGrange City Council, 3 S.W.3d at 770. Beattyville is in Lee County. Thus, because the positions are in different counties—Lee and Breathitt—it is inconceivable that one position is subordinated to the other. Id. at 769–70. For example, the office of Breathitt County magistrate does not have "the power of appointment to or removal from," LaGrange City Council, 3 S.W.3d at 770, the position of Beattyville police officer because Beattyville police officers are appointed by the mayor of Beattyville. See Beattyville Ordinance § 37.02(C). As such, there would be no conflict of interest between the two, such as salary negotiations, supervision and control of duties, and obligations to the public to exercise independent judgment. LaGrange City Council, 3 S.W.3d at 770. The Attorney General therefore concludes that the office of Breathitt County magistrate and the position of Beattyville police officer are not functionally incompatible under the common law.

For all of these reasons, it is the Attorney General's opinion that the office of Breathitt County magistrate is not incompatible with the position of Beattyville police officer under the Commonwealth's Constitution, statutes, or common law.

Daniel Cameron
ATTORNEY GENERAL
Charles A. English
Assistant Attorney General

[1] Section 142 of the Constitution requires each county to be divided into three to eight justice of the peace districts. Following the passage of the Judicial Article in 1976, which amended the Kentucky Constitution to, among other things, eliminate the judicial powers and duties of justices of the peace, the General Assembly and some counties use the terms "justice of the peace" and "magistrate" interchangeably to refer to the members of a county's fiscal court. See, e.g., KRS 67.042 (referring to justices of the peace in counties containing a city of the first class as "magistrate/representative"); KRS 67.705(3) (referring to magistrates who serve on fiscal courts).
[2] The Beattyville Police Department was created by Beattyville Ordinance § 37.02.