KY OAG 21-08 2021-08-30

Can a Kentucky district health department official also sit on the state retirement systems board?

Short answer: Yes. The Attorney General concluded that serving as a public health department director (Wedco) or home health administrator (Green River) is not incompatible with serving on the Kentucky Retirement Systems' Board of Trustees. A district health department is a special purpose governmental entity, not a county, city, town, or municipality, so its officials are not local officers for purposes of Section 165 of the Kentucky Constitution, and the only bar that could apply (constitutional incompatibility) does not.

Disclaimer: This is an official Kentucky Attorney General opinion. AG opinions are persuasive authority in Kentucky courts but are not binding precedent like a court ruling. This summary is for informational purposes only and is not legal advice. Consult a licensed Kentucky attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

The Kentucky Public Pensions Authority asked whether two job-holders could sit on the Kentucky Retirement Systems' Board of Trustees while keeping their day jobs. One applicant was the public health director for the Wedco District Health Department; the other was a home health administrator for the Green River District Health Department. Both wanted to fill a vacant board seat and run in the next election. The question was whether holding one of those health-department jobs conflicts with serving on the board.

The Attorney General concluded there is no conflict. A statute, KRS 61.645(6)(a), says membership on the board is not incompatible with any other office unless a constitutional incompatibility exists, so the only thing to check was Section 165 of the Kentucky Constitution. Section 165 bars a person from being a state officer and at the same time an officer or employee of a county, city, town, or other municipality. A retirement board trustee is a state officer. So the answer turned on whether a district health department job is a county, city, town, or municipal job.

The opinion concluded it is not. A district health department is a special purpose governmental entity under KRS 65A.010(9), formed under state law to provide a limited set of services across multiple counties. The opinion relied on a prior opinion (OAG 18-001) holding that an officer of a special purpose governmental entity is not a state, city, or county officer for purposes of Section 165 or KRS 61.080. Because a district health department is not a county, city, town, or municipality, neither the health director nor the home health administrator is a local officer, and the Constitution does not bar either of them from also serving on the retirement board.

What this means for you

Public health officials

Under this opinion, holding a director or administrator position at a district health department does not, by itself, disqualify you from serving on the Kentucky Retirement Systems' Board of Trustees, because a district health department is a special purpose governmental entity rather than a county or municipal office.

Retirement system trustees and pension administrators

The opinion holds that the only incompatibility bar that can apply to a board trustee is constitutional incompatibility under Section 165, because KRS 61.645(6)(a) rules out statutory and common-law incompatibility analysis for board membership.

Government attorneys

The opinion treats district health departments as special purpose governmental entities under KRS 65A.010(9), distinguishing them from county boards of health (whose members are county officers under Vickers v. Sory). That distinction is what defeats the Section 165 bar here.

Common questions

Q: Can a district health department director serve on Kentucky's retirement board?
A: Yes, according to this opinion. The Attorney General found no constitutional incompatibility between the two roles.

Q: Why doesn't Section 165 block the dual service?
A: Section 165 bars a state officer from also being a county or municipal officer. The opinion concluded a district health department is a special purpose governmental entity, not a county or municipality, so its officials are not local officers under Section 165.

Q: Does the usual statutory or common-law incompatibility test apply?
A: No. The opinion explains that KRS 61.645(6)(a) makes board membership incompatible with another office only if a constitutional incompatibility exists, so it did not reach statutory or common-law analysis.

Q: Is a county board of health treated the same way?
A: Not necessarily. The opinion notes that a member of a county board of health is a county officer under Vickers v. Sory, but a district health department is a different kind of entity, a special purpose governmental entity formed under state law.

Background and statutory framework

The Kentucky Retirement Systems' Board of Trustees is created by KRS 61.645, with duties set out in KRS 61.650. KRS 61.645(6)(a) provides that board membership is not incompatible with any other office unless a constitutional incompatibility exists, which confined the analysis to Section 165 of the Kentucky Constitution. The opinion treated a board trustee as a state officer (citing OAG 00-7). District health departments are created under KRS 212.820 and KRS 212.840, carry out public health duties under KRS 212.880, and may receive and expend public funds under KRS 212.920. The opinion classified a district health department as a special purpose governmental entity under KRS 65A.010(9), and relied on OAG 18-001 (officers of such entities are not state, city, or county officers for Section 165 or KRS 61.080 purposes) and OAG 14-005, while distinguishing Vickers v. Sory (county board of health members are county officers).

Citations and references

Constitution and statutes:
- Ky. Const. § 165; KRS 61.645 (incl. (6)(a)); KRS 61.650; KRS 61.080
- KRS 212.820; KRS 212.840; KRS 212.880; KRS 212.920
- KRS 65A.010(9) (special purpose governmental entity)

Cases:
- Vickers v. Sory, 102 S.W. 272 (Ky. 1907)

Source

Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2021-08.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
August 30, 2021
OAG 21-08
Subject: Whether service as a public health department director for the Wedco District Health Department or as a home health administrator for the Green River District Health Department is incompatible with service as a member of the Kentucky Retirement Systems' Board of Trustees.
Requested by: Michael Board, Executive Director, Office of Legal Services, Kentucky Public Pensions Authority
Written by: Charles A. English, Assistant Attorney General
Syllabus: Because there is no constitutional prohibition, service as a public health department director for the Wedco District Health Department or home health administrator for the Green River District Health Department is not incompatible with service as a member of the Kentucky Retirement Systems' Board of Trustees.

Opinion of the Attorney General

The Kentucky Public Pensions Authority asks whether a public health department director for the Wedco District Health Department or a home health administrator for the Green River District Health Department may also serve as a member of the Kentucky Retirement Systems' Board of Trustees ("Board"). For the reasons below, it is the Attorney General's opinion that, under the facts presented here, no incompatibility prevents the public health department director for the Wedco District Health Department or a home health administrator for the Green River District Health Department from simultaneous membership on the Board.

Background. The Board oversees the Kentucky Employees Retirement System and the State Police Retirement System. See KRS 61.645 and KRS 61.650 (providing for the creation of the Board of Trustees and its duties). Two applicants are seeking to fill one vacant position on the Board and to be placed on the ballot for the next election. The Board consists of nine members, six of whom are appointed by the Governor. KRS 61.645(1)(c). The remaining three members are nominated and elected by the Board. KRS 61.645(4)(a). But when a vacancy occurs, the position is filled for the duration of the unexpired term via appointment by a majority vote of the remaining elected trustees. KRS 61.645(5)(a).

One applicant is the public health director for the Wedco District Health Department. The other applicant is a home health administrator for the Green River District Health Department. The statutory provisions allowing for the creation of district health departments "enable counties within various areas of the state to join together in the formation of a district health department to improve the delivery of health services to the people." KRS 212.820. District health departments generally administer and enforce all applicable public health laws, implement policies to safeguard the health of the people, and conduct studies and reports. See KRS 212.880. The Wedco District Health Department serves the public health needs of Harrison, Nicholas, Scott, and Bourbon Counties. Likewise, the Green River District Health Department serves the public health needs of Daviess, Hancock, Henderson, McLean, Ohio, Union, and Webster Counties.

Applicable law. Section 165 of the Kentucky Constitution provides 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. This Office need not address a statutory or common law incompatibility analysis because KRS 61.645(6)(a) explicitly provides that "[m]embership on the board of trustees shall not be incompatible with any other office unless a constitutional incompatibility exists." There can thus be no statutory or common law incompatibility in this case.

Analysis. A member of the Kentucky Retirement Systems' Board of Trustees is a state officer. See, e.g., OAG 00-7. Thus, whether there is a constitutional incompatibility in this context turns on: (a) whether a public health department director for the Wedco District Health Department is an officer or employee of any county, city, town, or other municipality; and (b) whether a home health administrator for the Green River District Health Department is an officer or employee of any county, city, town, or other municipality.

As an initial matter, "[a] member of a county board of health is a county officer." Vickers v. Sory, 102 S.W. 272, 272 (Ky. 1907). A district health department, however, is a special purpose governmental entity under KRS 65A.010(9)—not a "county, city, town, or other municipality" as those terms are used in Section 165 of the Kentucky Constitution. That is because a district health department is formed pursuant to state law under KRS 212.840, see KRS 65A.010(9)(b), and because it exercises less than statewide jurisdiction, exists to provide one or a limited number of services, is governed by a board, KRS 212.880, and may receive and expend public funds, grants, awards, and appropriations from the state, KRS 212.920. KRS 65A.010(9)(a); see also KRS 65A.010(9)(c)5 ("[E]xamples of the types of public services that may be provided by special purpose governmental entities include but are not limited to [p]ublic health, public mental health, and public hospital services[.]"); OAG 14-005.

That the district health department is a special purpose governmental entity is dispositive here because this Office has determined that an officer of a special purpose governmental entity "is not considered a state, city or county officer for purposes of Section 165 of the Kentucky Constitution or KRS 61.080." OAG 18-001, at *1. A special purpose governmental entity is considered an "independent organization, but it is not equivalent to a municipality under the constitutional and statutory sections mentioned." Id. Because a district health department is not a "county, city, town, or other municipality," a public health department director for a district health department is not an "officer" or an "employee" of a "county, city, town, or other municipality" under the Constitution. The Constitution, therefore, does not prohibit simultaneous service as a public health department director for the Wedco District Health Department and membership on the Kentucky Retirement Systems' Board of Trustees.

The same is true for a home health administrator for the Green River District Health Department. Because a district health department is not a county, city, town, or other municipality, the Constitution does not prohibit simultaneous service as a home health administrator for the Green River District Health Department and membership on the Kentucky Retirement Systems' Board of Trustees.

Conclusion. For the reasons set forth above, it is the Attorney General's opinion that Section 165 of the Kentucky Constitution does not prohibit membership on the Kentucky Retirement Systems' Board of Trustees because of an individual's employment as a public health department director for the Wedco District Health Department or as a home health administrator for the Green River District Health Department.

Daniel Cameron
ATTORNEY GENERAL
Charles A. English
Assistant Attorney General