KY OAG 22-02 2022-02-02

Can the same person serve as a Kentucky city commissioner and on a county waste management district board at the same time?

Short answer: Yes. The Attorney General concluded that, on the facts presented, serving as a Parkway Village city commissioner is not incompatible with serving as a director on a county waste management district board. Neither Section 165 of the Kentucky Constitution nor the incompatibility statute (KRS 61.080) bars it, because a waste management district is a 'hybrid' special-purpose governmental entity rather than a state, county, or city office. And the common-law functional-incompatibility test was not met: neither position controls, supervises, audits, or sets the pay of the other.

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 AG opinions are persuasive authority in Kentucky courts but are not binding precedent like a court ruling.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 Mayor of Douglass Hills asked the Attorney General a dual-office-holding question: can one person be a Parkway Village city commissioner and at the same time sit on the board of the county waste management district? Kentucky has rules against holding incompatible offices, and the question was whether these two positions clash.

The opinion walked through the three sources of incompatibility law. First, Section 165 of the Kentucky Constitution bars holding a state office and a local office at once, and bars holding two municipal offices at once. But a waste management district board seat is neither a state office nor a second municipal office; the district is a "special purpose governmental entity," so Section 165 does not apply. Second, the statute KRS 61.080 lists certain incompatible offices, but Kentucky authority treats special-purpose districts as "hybrid agencies" outside that statute, so it does not bar the combination either.

Third, even when the constitution and statute do not list two offices as incompatible, the common law adds a functional test: two offices are incompatible if one is subordinate to the other, or subject to the other's audit or review, or if their duties are inherently inconsistent or holding both harms the public interest. The opinion compared the duties of a Parkway Village commissioner (running city government, enforcing ordinances, setting city revenue) with those of the waste management district board (overseeing solid-waste laws, investigating violations, setting licensing and fees). It found no overlap that creates a conflict: neither position appoints, removes, supervises, or sets the salary of the other. So on the facts presented, the two are compatible.

What this means for you

City officials and special district board members

Under this opinion, holding a Parkway Village city commission seat and a waste management district board seat at the same time is not, on the facts presented, barred by Section 165, KRS 61.080, or the common-law incompatibility doctrine.

Local government attorneys

The opinion treats a waste management district as a special-purpose governmental entity / "hybrid agency" outside Section 165 and KRS 61.080, then applies the common-law functional test, finding no subordination, audit relationship, salary control, or inherent conflict between the two offices.

County officials and ethics officers

The opinion is fact-specific. It rests on the particular duties of these two offices and the absence of any appointment, removal, or supervisory relationship between them, so a different pairing of offices could come out differently.

Common questions

Q: Can someone hold a city commission seat and a county waste district board seat at the same time in Kentucky?
A: On the facts in this opinion, yes. The Attorney General found no constitutional, statutory, or common-law incompatibility between serving as a Parkway Village commissioner and as a waste management district director.

Q: Why doesn't Section 165 of the constitution bar it?
A: The opinion explains that a waste management district board seat is not a state office or a second municipal office; the district is a special-purpose governmental entity, so Section 165's bars do not reach it.

Q: What is the common-law incompatibility test?
A: The opinion describes it as whether one office is subordinate to the other, subject to the other's audit or review, inherently inconsistent with it, or whether holding both harms the public interest. None of those applied here.

Q: Does this opinion apply to any two offices?
A: No. It is specific to these offices and these facts. A different combination, or facts showing one office supervises or audits the other, could lead to a different result.

Background and statutory framework

Parkway Village is a home-rule city governed under the commission plan in KRS 83A.140, so a commissioner holds a municipal office. A waste management district is created under KRS 109.115(1) (using the procedures of KRS 65.182) and managed by a board of directors under KRS 109.115(2). The opinion classified the district as a "special purpose governmental entity" under KRS 65A.010(9)(a), with waste management listed as a covered public service in KRS 65A.010(9)(c)7. It analyzed Section 165 of the Kentucky Constitution and KRS 61.080, concluding neither reaches a special-purpose district, then applied the common-law functional-incompatibility test drawn from LaGrange City Council, Webb, Polley, and Barkley, finding the two offices compatible on the facts presented.

Citations and references

Statutes and constitution:
- Ky. Const. § 165 (constitutional incompatibility)
- KRS 61.080 (statutory incompatibility); KRS 83A.140 (commission plan)
- KRS 109.115(1), (2) (waste management district); KRS 65.182 (creation procedures)
- KRS 65A.010(9)(a), (9)(c)7 (special purpose governmental entity)

Cases:
- Louisville/Jefferson Cnty. Metro Gov't Waste Mgmt. Dist. v. Jefferson Cnty. League of Cities, Inc., 626 S.W.3d 623 (Ky. 2021)
- LaGrange City Council v. Hall Bros. Co. of Oldham Cnty., Inc., 3 S.W.3d 765 (Ky. App. 1999)
- Webb v. Carter Cnty. Fiscal Ct., 165 S.W.3d 490 (Ky. App. 2005)
- Polley v. Fortenberry, 105 S.W.2d 143 (Ky. 1937)
- Barkley v. Stockdell, 66 S.W.2d 43 (Ky. 1933)

Source

Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2022-02.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
February 2, 2022
OAG 22-02
Subject: Whether service as a Parkway Village Commissioner is incompatible with service as a director on a waste management district board established under KRS Chapter 109.
Requested by: Bonnie Jung, Mayor, Douglass Hills
Written by: Jeremy J. Sylvester, Assistant Attorney General
Syllabus: Because there is no common law, statutory, or constitutional prohibition, service as a Parkway Village Commissioner is not incompatible with service as a director on a waste management district board established under KRS Chapter 109.

Opinion of the Attorney General

Douglass Hills Mayor Bonnie Jung, asks whether service as a Parkway Village Commissioner is incompatible with service as a director on the Waste Management District 109 Board. For the reasons below, it is the Attorney General's opinion that, under the facts presented here, service as a Parkway Village Commissioner is not incompatible with simultaneous service as a director on a waste management district board established under KRS Chapter 109.

Background. Parkway Village is a home-rule city in Jefferson County, Kentucky. According to Parkway Village's Code of Ordinances, the city is governed under the commission plan found in KRS 83A.140. Parkway Village Code of Ordinances § 30.01. As such, Parkway Village has a legislative body composed of a mayor and four commissioners. Id. at § 30.02. Each commissioner is elected at large by the voters of the city at a regular election. Id. at § 32.01(A). A Parkway Village commissioner therefore holds a municipal office.

A waste management district may be created by "[a] single county, or two (2) or more counties . . . in accordance with the procedures of KRS 65.182." KRS 109.115(1). Here, the Jefferson County Fiscal Court adopted a waste management district in December 1990. Louisville/Jefferson Cnty. Metro Gov't Waste Mgmt. Dist. v. Jefferson Cnty. League of Cities, Inc., 626 S.W.3d 623, 626 (Ky. 2021). "Waste management districts . . . have all powers and authority set forth in KRS 109.041," KRS 109.115(1), and are controlled and managed by a board of directors. KRS 109.115(2). The directors of the board are appointed by the mayor of a consolidated local government, like Louisville, or the county judge/executive and the mayor of the most populous city in the county, with the approval of the local government. KRS 109.115(3) (governing counties without consolidated local governments); KRS 109.115(4) (governing counties with consolidated local governments). A waste management district is properly characterized as a "special purpose governmental entity" under KRS 65A.010(9)(a). It is (1) an entity created by statute, (2) which exercises less than statewide jurisdiction, (3) is governed by a board with policy-making authority that's separate from the state and the governing body of the county in which it operates, and (4) receives and expends public funds from the county. KRS 65A.010(9). Moreover, the General Assembly has characterized "waste management" as an example of the type of public service that may be provided by special purpose governmental entities. KRS 65A.010(9)(c)7.

Analysis. 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. Based on the text of the Constitution, Section 165 does not prohibit a municipal officer from also serving on a special purpose governmental entity.

The General Assembly has by statute also made certain offices incompatible. See KRS 61.080. But like Section 165, KRS 61.080 does not prohibit a municipal officer from also serving on a special purpose governmental entity. These entities have been held to be "hybrid agencies" that do not fall within the scope of this statute. See, e.g., OAG 82-635 (member of a county water district was serving in a hybrid agency and was thus not serving as state, county, or city officer); OAG 76-257 (noting that hybrid agencies are not contemplated by KRS 61.080).

As Kentucky law makes clear, however, an incompatibility analysis does not end with the constitutional and statutory text because 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 Cnty., 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."). Along with constitutional and statutory incompatibility, 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 Cnty. Fiscal Ct., 165 S.W.3d 490, 493 (Ky. App. 2005). In other words, the common law prohibits individuals from occupying "functionally incompatible" offices. LaGrange City Council, 3 S.W.3d at 769. "The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of 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." Polley v. Fortenberry, 105 S.W.2d 143, 145 (Ky. 1937) (quoting Barkley v. Stockdell, 66 S.W.2d 43, 44 (Ky. 1933)). To determine whether the office of Parkway Village Commissioner is functionally incompatible with service as a director on a waste management district board, we must examine the functions of those offices.

The powers and duties of the Parkway Village Commission are found in state law and repeated in Section 32.03 of its Code of Ordinances. See generally KRS 83A.140. Among other duties, the Commission enforces Parkway Village's ordinances; provides for sufficient revenue to operate city government; supervises all departments of city government; maintains liaison with related units of local government respecting interlocal contracting and joint activities; reports to the public on the condition and needs of the city government; and promulgates procedures to ensure the orderly administration of the function of city government.

According to Section 51.107(B) of the Louisville Metro Code of Ordinances (LMCO), the duties of the Waste Management District include supervising the execution of all applicable laws, rules, and regulations pertaining to solid waste management; investigating all violations and grievances reported; issuing orders for corrections of violations; instituting necessary proceedings to prosecute those violations; and establishing procedures and enforcing regulations concerning matters pertaining to licensing and fees.

On the facts presented, this Office discerns no interrelationship that would render incompatible simultaneous service as a Parkway Village Commissioner and a director on the Waste Management District 109 Board. Neither position "has the power of appointment to or removal from the other." LaGrange City Council, 3 S.W.3d at 770. Waste management districts are administered by a board of directors, which controls and manages the affairs of the district. KRS 109.115(2). Here, none of the duties of the Louisville/Jefferson County Metro Government Waste Management District conflict with the position of Parkway Village Commissioner. In addition, 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.

Conclusion. For the reasons set forth above, it is the Attorney General's opinion that neither the common law, KRS 61.080, nor Section 165 of the Kentucky Constitution prohibit simultaneous service as a Parkway Village Commissioner and a director on the Waste Management District 109 Board.

Daniel Cameron
ATTORNEY GENERAL
Jeremy J. Sylvester
Assistant Attorney General