Can a Kentucky water district commissioner also work as a county road foreman?

Plain-English summary

The Knott County Water District asked whether one of its board commissioners could also work as a county road foreman, or whether the two roles conflicted. Kentucky's incompatibility rules generally bar holding two public offices at once, but they hinge on whether each position is an "office." A job that is just public "employment" usually falls outside the rules.

The Attorney General concluded the two positions were compatible. The opinion explained that a water district is a special purpose governmental entity and a water district commissioner holds an office, so the question turned on the road foreman job. Applying the five "indispensable" elements of a public office from Howard v. Saylor, the opinion found the county road foreman was not an officer. The foreman position was not created by the Constitution or legislature, did not carry a delegated portion of sovereign power, had duties not defined by the legislature, was not performed independently (the foreman was hired by and reported to the county judge/executive and served at his pleasure), and so was an "employment," not an "office." Because the foreman job was not an office, the constitutional bar in Section 165 and the statutory bars in KRS 61.080 did not apply.

The opinion then addressed common-law functional incompatibility, which can bar holding a public office and public employment where one is subordinate to, or subject to the review of, the other. On the facts presented, neither position could appoint, remove, supervise, or set the salary of the other: the water district is run by its board of commissioners, while the road foreman coordinates road crews at the direction of the county judge and fiscal court. With no such interrelationship, the opinion found no functional incompatibility.

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 Section 165 of the Kentucky Constitution, KRS 61.080 (including KRS 61.080(5) and (6)), and the common law. A water district is a special purpose governmental entity (KRS 65A.010(9); KRS 74.070(5)), so a commissioner holds an office. To decide whether the road foreman was also an office, the opinion applied the five-element test from Howard v. Saylor (quoting United States v. Maurice on the point that not every employment is an office, as restated in Clark Cty. Att'y v. Thompson). On the facts represented (the foreman is salaried, hired by and reporting to the county judge/executive, and serves at his pleasure), the position failed each element and was an employment, not an office, so the constitutional and statutory bars did not apply. On common-law functional incompatibility, the opinion relied on LaGrange City Council v. Hall Bros. Co. and Webb v. Carter Cty. Fiscal Ct., and noted that a water district is administered by its board of commissioners with powers under KRS 74.020(1) and KRS 74.070, while the foreman answers to the county judge and fiscal court, with no appointment, removal, supervisory, or salary link between the two.

Citations and references

Constitution and statutes:
- Ky. Const. § 165; KRS 61.080 (incl. (5), (6))
- KRS 65A.010(9); KRS 74.070(5); KRS 74.020(1); KRS 74.070

Cases:
- Clark Cty. Att'y v. Thompson, 617 S.W.3d 427 (Ky. App. 2021)
- United States v. Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823)
- Howard v. Saylor, 204 S.W.2d 815 (Ky. 1947)
- 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%2021-05.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
May 7, 2021
OAG 21-05
Subject: Whether service as a commissioner on the Knott County Water District's Board of Commissioners is incompatible with the service as a county road foreman.
Requested by: Calvin R. Tackett, Attorney for Knott County Water District
Written by: Carmine G. Iaccarino, Assistant Attorney General; Charles A. English, Assistant Attorney General
Syllabus: Because there is no constitutional, statutory, or common law prohibition, service as a water district commissioner and county road foreman is not incompatible.

Opinion of the Attorney General

The Knott County Water District asks whether a commissioner on the Knott County Water District's Board of Commissioners may also serve as a county road foreman or if those positions are incompatible. For the reasons below, it is the Attorney General's opinion that, under the facts presented here, no incompatibility prevents the commissioner on the Knott County Water District's Board of Commissioners from simultaneous employment as a county road foreman.

Under Kentucky law, incompatibility arises under the Constitution, statutory law, and common law. First, Section 165 of the Kentucky Constitution delineates the scope of constitutional incompatibility:

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[.]

Ky. Const. § 165. The General Assembly also has enacted KRS 61.080, which makes certain offices incompatible with other offices. Among other things, KRS 61.080 prohibits any person appointed as an officer of a special governmental entity from serving concurrently in an appointed office of another special purpose governmental entity, KRS 61.080(5), or in a state office, KRS 61.080(6). And under Kentucky law, a water district is a "special purpose government entity."[1] A member of a water district's board of commissioners, therefore, may not serve concurrently in an "appointed office of another special purpose governmental entity" or in a "state office."

If the position of county road foreman is not an "office," an incompatibility analysis under these provisions is simple because there would be no constitutional or statutory incompatibility. "As Chief Justice John Marshall noted nearly two hundred years ago, although an office is 'an employment,' it does not follow that every employment is an office." Clark Cty. Att'y v. Thompson, 617 S.W.3d 427, 431 (Ky. App. 2021) (quoting United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823)). To determine whether an "employment is an office," there are five "indispensable" elements that must be considered. Howard v. Saylor, 204 S.W.2d 815, 817 (Ky. 1947). The position (1) "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.'" Id.

According to the Water District, Knott County's road foreman is salaried, is hired by and reports to the county/judge executive, and is tasked with maintaining all county roads and overseeing other county road employees. Considering the elements enunciated in Howard, the county road foreman at issue is not an "officer." The position is not created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature. The position does not possess a delegation of a portion of the sovereign power of government. The powers conferred, and the duties to be discharged, are not defined by the Legislature. Rather than performing the duties independently and without control of a superior power, the road foreman reports to the county judge/executive and serves at his pleasure. Howard, 204 S.W.2d at 817. For these reasons, the position of county road foreman, as described here, is an "employment" and not an "office." Thompson, 617 S.W.3d at 431 (recognizing that not every employment is an office). For this reason alone, the incompatibility analysis begins and ends with the conclusion that the road foreman position is not an office. Thus, simultaneous service in these positions is not barred by the Constitution or statute.

An incompatibility inquiry, however, does not end with the constitutional or statutory prohibitions. LaGrange City Council v. Hall Bros. Co. of Oldham Cty., Inc., 3 S.W.3d 765, 769 (Ky. App. 1999). The common law "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." Webb v. Carter Cty. Fiscal Ct., 165 S.W.3d 490, 493 (Ky. App. 2005). As the Court of Appeals has explained, "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)).

On the facts presented, there is no interrelationship that would render incompatible simultaneous service as a county water district commissioner and county road foreman. That is so because, as has been represented to this Office, neither position "has the power of appointment to or removal from the other." LaGrange City Council, 3 S.W.3d at 770. Water districts are administered by a board of commissioners, which controls and manages the affairs of a water district. KRS 74.020(1). On behalf of the district, the commission may, among other things, make contracts, prosecute and defend suits, and adopt bylaws. KRS 74.070. On the other hand, the county road foreman oversees and coordinates the work of road crews at the behest of the county judge and fiscal court. There is no indication that one position has any role in setting the salary of the other or supervising or controlling the other's duties.

For the reasons set forth above, it is the Attorney General's opinion that service as a water district commissioner is not functionally incompatible with the position of county road foreman.

Daniel Cameron
ATTORNEY GENERAL
Carmine G. Iaccarino
Charles A. English
Assistant Attorneys General

[1] See KRS 65A.010(9) (defining "special purpose government entity"); KRS 74.070(5) (requiring a water district's commission to comply with KRS 65A.010 to 65A.090).