Is a Kentucky Commonwealth detective a 'state officer' who can't also hold a city or county office?

Plain-English summary

A Commonwealth detective in the Eighth Judicial Circuit asked whether his job counts as a "state office." It matters because Section 165 of the Kentucky Constitution and KRS 61.080 say a person cannot at the same time be a state officer and also an officer or employee of a county, city, or town. If the detective is a state officer, he is barred from also holding a local position; if he is just a state employee, he is not.

The opinion says he is a state employee, not a state officer. Kentucky law uses a five-part test (from Howard v. Saylor) for whether a public job is an "office": it must be created by law, carry a piece of the sovereign power, have legislatively defined duties, be performed independently and without control of a superior other than the law, and have permanency. A Commonwealth detective clearly meets four of those: the position is created by statute (KRS 69.110), carries the sovereign power of arrest, has statutory duties, and is permanent. The whole case turns on the fourth element, independence. And here the statute itself says the detective is to "assist the Commonwealth's attorney . . . in the manner he designates." Because the detective works under the Commonwealth's attorney's supervision and direction, the opinion concludes he lacks the independent, autonomous authority that marks an officer, so he is an employee.

The opinion uses this question to clean up older law. A 1978 opinion (OAG 78-708) had said a Commonwealth detective was a state officer, but it reasoned only that the power of arrest made him a peace officer and therefore a public officer, without applying the Saylor elements. Citing the Court of Appeals' 2021 Thompson decision (which held a rank-and-file city police officer was not a public officer because the city had not created the office by ordinance), the opinion says that nomenclature-only approach is no longer good enough. It overrules OAG 78-708 to the extent it held otherwise, and says future incompatibility questions must use this fuller method.

What this means for you

Commonwealth detectives

Under this opinion, your position is a state employee role, not a state office, so the Section 165 / KRS 61.080 bar on simultaneously holding a county or city office does not apply to you. The opinion stresses that incompatibility questions are decided case by case, so it speaks to the Commonwealth detective position as defined in KRS 69.110.

Prosecutors (Commonwealth's attorneys)

The opinion leans on the supervisory relationship: because a detective acts "in the manner [the Commonwealth's attorney] designates," the detective lacks the independence that would make the job an office.

City and county attorneys, ethics officers

The opinion signals a broader analytical shift: after Thompson, deciding whether a law-enforcement position is an "officer" for Section 165 purposes requires applying the Saylor elements (and, for city positions, checking whether an office was created by ordinance under KRS 83A.080(1)), not just pointing to the power of arrest.

Local elected officials

If you are weighing whether someone can hold both a state law-enforcement role and a local office, this opinion's method (and its conclusion that a Commonwealth detective is an employee) is the current AG guidance.

Common questions

Q: What is the difference between a public "officer" and a public "employee" here?
A: The opinion uses the five Saylor elements. The decisive one is independence: an officer performs duties independently and without control of a superior other than the law, while an employee works under a superior's direction. A Commonwealth detective works under the Commonwealth's attorney, so he is an employee.

Q: Why does it matter for holding two jobs?
A: Because Section 165 and KRS 61.080 bar a state officer from also being a county or city officer or employee. If the detective is only a state employee, that constitutional and statutory bar does not apply to him.

Q: Didn't an earlier opinion say a Commonwealth detective was a state officer?
A: Yes, OAG 78-708 (1978) said so, but only because the detective had the power of arrest. This opinion says that reasoning skipped the required analysis and overrules OAG 78-708 to the extent it held the position was a state office.

Q: Does this mean any officer with arrest power is just an employee?
A: No. The opinion says these questions are decided case by case using the Saylor elements. The power of arrest makes someone a "peace officer," but that alone does not make the position a state office.

Background and statutory framework

Section 165 of the Kentucky Constitution and KRS 61.080 prohibit holding a state office and a local office at the same time; KRS 61.080(7) lists offices incompatible with any other public office. Whether a job is an "office" turns on the five indispensable elements in Howard v. Saylor, 204 S.W.2d 815 (Ky. 1947), applied case by case (Commonwealth ex rel. Hancock v. Clark, 506 S.W.2d 503 (Ky. 1974)). The General Assembly can change that analysis by statute, as with the city-office-by-ordinance requirement in KRS 83A.080(1) and the eight-element city-officer definition in KRS 83A.010(10). The Court of Appeals applied this in Clark Cnty. Atty. v. Thompson, 617 S.W.3d 427 (Ky. App. 2021), holding a rank-and-file city police officer was not a public officer, and questioning older cases like City of Lexington v. Rennick, 49 S.W. 787 (Ky. 1899) (see Bd. of Educ. of Graves Cnty. v. DeWeese, 343 S.W.2d 598 (Ky. 1960)) and police-chief cases such as McCloud v. Whitt, 639 S.W.2d 375 (Ky. App. 1982). The Commonwealth detective position is created by KRS 69.110 (with appointment numbers governed by KRS 15.760(2)); the power of arrest makes the detective a "peace officer" (KRS 446.010(31)). Because the detective acts "in the manner [the Commonwealth's attorney] designates," he lacks the independence element (Reynolds v. Bd. of Educ. of Lexington, 224 S.W.2d 442 (Ky. 1949)), so the opinion classifies him as a state employee and overrules OAG 78-708.

Citations and references

Constitution and statutes:
- Ky. Const. § 165; KRS 61.080, (1), (7) (incompatibility of offices)
- KRS 69.110 (Commonwealth detectives); KRS 15.760(2) (investigative positions)
- KRS 83A.080(1), KRS 83A.010(10) (city offices and definition); KRS 446.010(31) (peace officer); KRS 11A.010(7)(a) (ethics definition of officer)

Cases:
- Howard v. Saylor, 204 S.W.2d 815 (Ky. 1947), five indispensable elements of a public office
- Clark Cnty. Atty. v. Thompson, 617 S.W.3d 427 (Ky. App. 2021), and Commonwealth ex rel. Hancock v. Clark, 506 S.W.2d 503 (Ky. 1974), case-by-case officer analysis
- Reynolds v. Bd. of Educ. of Lexington, 224 S.W.2d 442 (Ky. 1949), independence element
- City of Lexington v. Rennick, 49 S.W. 787 (Ky. 1899); Bd. of Educ. of Graves Cnty. v. DeWeese, 343 S.W.2d 598 (Ky. 1960); McCloud v. Whitt, 639 S.W.2d 375 (Ky. App. 1982)

Prior opinions: OAG 78-708 (overruled in part); OAG 21-04; OAG 06-002; OAG 04-010

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2024-09%20Final.pdf

Original opinion text

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

October 8, 2024
OAG 24-09
Subject: Whether the position of Commonwealth detective under KRS 69.110 is considered a state office for the purpose of determining incompatibility under Section 165 of the Kentucky Constitution and KRS 61.080.
Requested by: Detective John S. Williams, Office of Commonwealth's Attorney, Eighth Judicial Circuit
Written by: Jeremy J. Sylvester, Assistant Attorney General
Syllabus: A Commonwealth detective is not a state officer for purposes of Section 165 of the Kentucky Constitution or KRS 61.080.

Opinion of the Attorney General

John S. Williams, a Commonwealth detective appointed by the Commonwealth's Attorney for the Eighth Judicial Circuit, asks whether his position is considered a state office for purposes of Section 165 of the Kentucky Constitution and KRS 61.080. Section 165 and KRS 61.080 prohibit a "state officer" from contemporaneously serving as an officer or employee of a municipality or county. Section 165 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" (emphasis added). See also KRS 61.080(1) (using language nearly identical to Section 165). Other enumerated offices are also statutorily incompatible with "any other public office." KRS 61.080(7). For the reasons below, it is the Attorney General's opinion that a Commonwealth's detective is not a "state officer" for the purpose of determining the constitutional or statutory incompatibility of offices.

"[T]he 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.'" Clark Cnty. Atty. v. Thompson, 617 S.W.3d 427, 433 (Ky. App. 2021) (quoting Commonwealth ex rel. Hancock v. Clark, 506 S.W.2d 503, 504 (Ky. 1974)) (emphasis added). Kentucky courts have acknowledged the difficultly in drawing the line between an ordinary public employee and an officer. But the law is clear that there are five "indispensable" elements of a public office:

(1) [i]t 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.

Howard v. Saylor, 204 S.W.2d 815, 817 (Ky. 1947); see also OAG 06-002, 2006 WL 1310251 (applying these elements when analyzing whether an executive director of the Office of Ombudsman was a state officer).

Even though these elements govern whether a public employee is an officer as a general matter, the General Assembly may "chang[e] the analytical equation by enacting [legislation]." Thompson, 617 S.W.3d at 433. For example, under KRS 83A.080(1), "[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." See id.; see also OAG 21-04, 2021 WL 1741087, at *2 (opining that a municipal police officer was not an "officer" for constitutional and statutory incompatibility purposes). Absent an ordinance creating the position of city police officer under KRS 83A.080, Thompson held that a police officer employed by the City of Winchester was not a "municipal officer" under either KRS 61.080 or Section 165. Thompson, 617 S.W.3d at 433. [Footnote: The General Assembly has provided a similar eight-element statutory definition of a city officer in KRS 83A.010(10), which provides: "'Officer' means any person elected to a position by the voters or any person appointed to a position which (a) is created by the Constitution, the General Assembly, or a city; (b) possesses a delegation of a portion of the sovereign power of government; (c) has powers and duties to be discharged which are conferred directly or by implication by the city; (d) has duties performed independently and without control of a superior power other than law; (e) has some permanency; (f) requires an official oath; (g) is assigned by a commission or other written authority; and (h) provides for an official bond if required by proper authority."]

After Thompson was decided, this Office revisited the issue of whether a city police officer was a municipal officer for purposes of Section 165. See OAG 21-04. The Office looked to several statutes that referred to city police officers as employees of the city and found that the city police officer at issue was not a municipal officer for incompatibility purposes. OAG 21-04, 2021 WL 1741087, at 1. Like Thompson, the Office noted that the city had not created a nonelected office of police officer by enacting an ordinance under KRS 83A.080(1). Id. at 2.

The General Assembly established the position of Commonwealth detective in KRS 69.110: [Footnote: Under KRS 15.760(2), the number of investigative positions the Commonwealth's attorneys may appoint, including Commonwealth detectives, is to be based on "real need" and determined with the advice and consent of the Prosecutors Advisory Council. Id.]

Commonwealth detectives shall have the power of arrest in the counties comprising their districts and the right to execute process statewide. They shall assist the Commonwealth's attorney in all matters pertaining to his office in the manner he designates and shall assist him in the preparation of all criminal cases in Circuit Court by investigating the evidence and facts connected with such cases.

Over four and a half decades ago, the Office opined that a Commonwealth detective was a state officer. See OAG 78-708, 1978 WL 26262. In its 1978 opinion, the Office did not consider, much less analyze, the indispensable elements of a state office under Saylor. Rather, the opinion merely stated that "the power of arrest places them in the category of peace officers and public officers." Id. Because a Commonwealth detective is appointed by a Commonwealth's attorney, a state officer, the opinion concluded that a Commonwealth detective is a state officer, as opposed to a city or county officer. Id. It is true that the power of arrest makes a Commonwealth detective a "peace officer." KRS 446.010(31). But this Office's 1978 opinion presumes, without any analysis, that this one fact alone makes a Commonwealth detective a state officer for purposes of Section 165 and statutory incompatibility of offices.

In addition to OAG 78-708, a number of this Office's other prior opinions found that police officers were public officers. [Footnote: The prior opinions of this Office are not necessarily incorrect and are not necessarily overruled by this opinion. After all, incompatibility questions must be decided on a case-by-case basis on a particular set of facts. Thompson, 617 S.W.3d at 433. But going forward, the question of whether a particular state employee is an "officer" for purposes of Section 165 of the Kentucky Constitution must be answered using the same method of analysis as in this opinion.] See, e.g., OAG 78-206 (concluding that "a city police officer is, of course, a municipal officer"); OAG 80-576 (concluding, without analysis, that a county police officer is a county officer); see also Thompson, 617 S.W.3d at 432-33; id. n.2 (collecting Attorney General opinions finding that a city police officer is a municipal officer). [Footnote: The analysis of these prior opinions rarely looked beyond nomenclature—i.e., assuming all law enforcement officers must be "officers" for purposes of Section 165—and the legal authority of law enforcement officers to effect arrests. After Thompson, this mode of analysis is, at best, incomplete.] But after Thompson, the analysis used in those prior opinions is, at a minimum, called into question.

Thompson noted that the case on which this Office relied for many of those opinions, City of Lexington v. Rennick, 49 S.W. 787 (Ky. 1899), was somewhat nebulous and failed to consider relevant statutory text concerning the position at issue. Thompson, 617 S.W.3d at 432-33. In particular, the Court of Appeals noted that Rennick never addressed whether a city's police officers were city officers or merely employees; rather, Rennick assumed sub silentio that they were. Id. at 432 (citing Bd. of Educ. of Graves Cnty. v. DeWeese, 343 S.W.2d 598, 602 (Ky. 1960)). The court speculated that the parties may have presumed police officers were considered public officers and therefore did not raise the issue. Id. Thompson also noted that other cases cited by this Office's prior opinions, including Arms & Short v. Denton, 278 S.W.158 (Ky. 1925), Thomas v. Thompson, 102 S.W 849 (Ky. 1907), and McCloud v. Whitt, 639 S.W.2d 375 (Ky. App. 1982), involved police chiefs, not rank-and-file patrol officers like the plaintiff in Thompson. Id. at 432-33. Thompson ultimately held that a rank-and-file city police officer was not a public officer for incompatibility purposes because the city had not created a nonelected city office for police officers through an ordinance under KRS 83A.080(1).

Even though a Commonwealth detective is not a city police officer, Thompson requires the Office to revisit OAG 78-708 and offer a more robust analysis concerning whether a Commonwealth detective is a state officer. This Office cannot rely on Rennick's silent assumption that a police officer is a public officer. Nor can it rely on Denton, McCloud, and Thomas, all of which involved city police chiefs. Rather, the Office must examine the relevant statutory text as it did for city police officers in OAG 21-04, as well as the indispensable elements of a public office under Saylor, for clues regarding whether the position is an office.

The only Kentucky statute that specifically mentions the position of Commonwealth detective is KRS 69.110. That statute, however, does not refer to Commonwealth detectives as either state employees or state officers. Cf. KRS 83A.130(9) (granting a mayor the "power to appoint and remove all city employees, including police officers"); KRS 83A.080(1) (prescribing process for establishing nonelective city offices). Thus, the statutory text does is not dispositive of the question.

Turning to the five indispensable elements of public officers under Saylor, the position of Commonwealth detective meets the first, second, third, and fifth elements. The position is established by statute, Commonwealth detectives possess the sovereign power to arrest individuals, and the General Assembly has defined the position's powers and authority in KRS 69.110. And the position has sufficient permanency, as its existence is codified in the permanent statutes of the Commonwealth. Thus, determinative here is the fourth Saylor element, namely, whether a Commonwealth detective's "duties must be performed independently and without control of a superior power, other than the law." Saylor, 204 S.W.2d at 817.

A Commonwealth detective's duties do not "require the exercise of independent initiative" or "autonomous action" sufficient to find that this position is a state office. Reynolds v. Bd. of Educ. of Lexington, 224 S.W.2d 442, 443-44 (Ky. 1949) (discussing the independence element in the context of a school superintendent and assistant superintendent). Nor does this position "carr[y] with it the performance of significant executive duties." Id. at 444. Rather, the statute creating the position states the duties of a Commonwealth detective are to "assist the Commonwealth's attorney . . . in the manner he designates and . . . assist him in the preparation of all criminal cases." KRS 69.110 (emphasis added). Because the Commonwealth's attorney supervises and directs the performance of a Commonwealth detective's duties, and a Commonwealth detective may only perform his duties "in the manner [the Commonwealth's attorney] designates," a Commonwealth detective is properly categorized as a state employee, and not a state officer. See Thompson, 617 S.W.3d at 438 (Maze, J., concurring) (noting a city police officer was not a public officer because he "was subject to authority of his superiors"); OAG 04-010, 2004 WL 2515865 (finding a Division Director II in the Cabinet for Health and Family Services is an employee "under direct supervision of the cognizant commissioner"); see also KRS 11A.010(7)(a) (generally defining "officer" to mean "major management personnel" for purposes of the Executive Branch Code of Ethics).

For these reasons, it is the opinion of the Attorney General that Commonwealth detectives are state employees, and not state officers for the purposes of KRS 61.080 and Section 165 of the Kentucky Constitution. To the extent OAG 78-708 held otherwise, it is overruled.

Russell Coleman
ATTORNEY GENERAL
Jeremy J. Sylvester
Assistant Attorney General