1. Construction.

By virtue of this section, attorneys have no lien under KRS 30.200 (now repealed) for services rendered in an election contest case. Hallam v. Coulter, 115 Ky. 313 , 73 S.W. 772, 24 Ky. L. Rptr. 2200 , 1903 Ky. LEXIS 101 ( Ky. 1903 ).

2. Application.

This section should be read into every act creating an office and officer in which there is no conflicting provision. Sewell v. Bennett, 187 Ky. 626 , 220 S.W. 517, 1920 Ky. LEXIS 179 ( Ky. 1920 ).

3. Contracts.

4. — Against Public Policy.

Assignment of official fees in futuro to a trustee as security for debt is against public policy. Field v. Chipley, 79 Ky. 260 , 2 Ky. L. Rptr. 269 , 1881 Ky. LEXIS 12 (Ky. Ct. App. 1881).

Assignment of official salary in futuro to creditor is against public policy. Holt v. Thurman, 111 Ky. 84 , 63 S.W. 280, 23 Ky. L. Rptr. 92 , 1901 Ky. LEXIS 179 ( Ky. 1901 ); Schmitt v. Dooling, 145 Ky. 240 , 140 S.W. 197, 1911 Ky. LEXIS 830 ( Ky. 1911 ).

Contract and notes executed to candidate who agreed to employ obligors as attorneys to handle legal work of the office are against public policy and void. Campbell v. Offutt, 151 Ky. 229 , 151 S.W. 403, 1912 Ky. LEXIS 782 ( Ky. 1912 ).

Contract between nominees whereby one was to withdraw and be appointed a deputy and receive the income from the office for half the term, is void as against public policy after consummation, and a deposit with a third party guaranteeing resignation cannot be recovered, inasmuch as the void contract taints all collateral agreements. Martin v. Francis, 173 Ky. 529 , 191 S.W. 259, 1917 Ky. LEXIS 473 ( Ky. 1917 ) ( Ky. 1917 ).

Agreement by candidate, in return for support in election, to allow supporter to designate deputies is not a sale or farming of office under this section, but is void as against public policy. Fox v. Petty, 235 Ky. 240 , 30 S.W.2d 945, 1930 Ky. LEXIS 330 ( Ky. 1930 ).

Agreement by candidate, in return for support in election, to allow supporter to designate deputies, is against public policy and void. Fox v. Petty, 235 Ky. 240 , 30 S.W.2d 945, 1930 Ky. LEXIS 330 ( Ky. 1930 ).

5. — Not in Violation.

Change in methods of office management by county clerk on advice of his surety, coupled with advance by surety of money to cover prior shortage, is not a sale, farming or letting of office. Commonwealth v. Chinn, 110 Ky. 527 , 62 S.W. 7, 22 Ky. L. Rptr. 1921 , 1901 Ky. LEXIS 107 ( Ky. 1901 ).

Agreement of candidate to appoint rival as deputy, in consideration of rival’s withdrawal and support, is not a sale of the office or deputation thereof. Commonwealth ex rel. Layman v. Sheeran, 145 Ky. 361 , 140 S.W. 568, 1911 Ky. LEXIS 864 ( Ky. 1911 ).

6. — In Violation.

Contract between sheriff and deputy by which deputy was to collect all fees and pay part thereof to a third person violated this section. Oldham's Trustee v. Hume, 11 Ky. Op. 779, 4 Ky. L. Rptr. 355 , 1882 Ky. LEXIS 308 (Ky. Ct. App. Oct. 26, 1882).

Contract between nominees whereby one is to withdraw and be appointed a deputy, receive half of the income from the office, and jointly control the office, might violate this section, but does not violate the Corrupt Practice Act. Roberts v. Sturgill, 257 Ky. 194 , 77 S.W.2d 789, 1934 Ky. LEXIS 548 ( Ky. 1934 ).

Contract between nominees whereby a pending action under corrupt practice act is to be dismissed, and whereby the parties are to divide the fees and emoluments of the office and jointly supervise the office, is void under this section. Landrum v. Cockrill, 267 Ky. 397 , 102 S.W.2d 337, 1937 Ky. LEXIS 327 ( Ky. 1937 ).

7. Rights Under Void Contracts.

Violation of this section by sheriff and deputy does not preclude recovery by sheriff from deputy of moneys received officially. Oldham's Trustee v. Hume, 11 Ky. Op. 779, 4 Ky. L. Rptr. 355 , 1882 Ky. LEXIS 308 (Ky. Ct. App. Oct. 26, 1882); Eversole v. Holliday, 131 Ky. 202 , 114 S.W. 1195, 1909 Ky. LEXIS 11 ( Ky. 1909 ).

County court may not refuse approval of appointment of deputy sheriff appointed under a void contract when the appointee is honest and competent, and had no knowledge of the contract. Such approval may be enforced by mandamus. Fox v. Petty, 235 Ky. 240 , 30 S.W.2d 945, 1930 Ky. LEXIS 330 ( Ky. 1930 ).

Deputy appointed pursuant to a contract void under this section is not ineligible for the appointment when he had no knowledge of the contract. Fox v. Petty, 235 Ky. 240 , 30 S.W.2d 945, 1930 Ky. LEXIS 330 ( Ky. 1930 ).

8. Declaratory Judgment Act.

Disqualification of candidates under this section may not be had in a suit by electors under the Declaratory Judgment Act. Dietz v. Zimmer, 231 Ky. 546 , 21 S.W.2d 999, 1929 Ky. LEXIS 329 ( Ky. 1929 ).

Opinions of Attorney General.

Registered voters in an annexed area would automatically be entitled to vote in the special city primary for the mayor and the city commissioners. OAG 79-99 .

The creation of a new General Assembly district by enactment of redistricting legislation would not disqualify candidates living in the new district from meeting the residential requirements of Const., § 32, since this section provides that a person shall be deemed to meet the residency requirements if he resided within the geographic area encompassed by the district boundaries for the required length of time. OAG 81-424 .

Where a district is expanded due to redistricting during a commissioner’s term of office, there is no legal objection to said commissioner moving into that part of his district that has been added by virtue of redistricting and thereby continuing to remain a legal resident of the district, even though he no longer resides within the particular area of the district as constituted at the time of his election. OAG 82-230 .

If the number of magisterial districts are not changed by a reapportionment but the area is merely redistributed placing, for example, several magistrates in the same district, the magistrate elected for the district in which he no longer resides continues to represent the district. OAG 83-40 .

Where the magistrate dies or resigns and there is also a reapportionment of county magisterial districts, the person appointed and elected to fill the vacancy must reside in the vacated district having no representation by virtue of the redistricting procedure, irrespective of the fact that due to the boundary he may not possess the one-year residential qualification required by Const., § 100 as long as he has continued to reside in the area and has not changed his residence within the one-year period prior to his appointment or election. OAG 83-40 .

Research References and Practice Aids

Cross-References.

Books furnished to office, name of office to be written in, KRS 57.370 .

Bribery, KRS 521.010 to 521.040 .

City officers, election and term of office of, Const., §§ 107, 148, 160, 161.

Compensation of officers not to be changed during term, Const., §§ 161, 235.

Constitutional provisions as to officers generally, Const., §§ 23, 59(13), 59(18), 68, 93, 148, 150, 151, 160, 161, 197, 227, 228, 234, 235, 236, 239, 240, 246.

Contribution between persons jointly liable in official capacity, KRS 412.050 .

Election of officers, time of, Const., § 148; KRS 118.025 .

Fees: (See KRS Ch. 64.)

Change of during term forbidden, Const., §§ 161, 235.

Illegal, KRS 64.460 , 64.990 .

Local acts concerning forbidden, Const., § 59(18).

Fiduciary obligation, liability of persons dealing with fiduciaries for breach of, KRS 386.100 to 386.150 .

Forfeiture of office and penalties for failure of officers to perform duties:

City officers:

First-class cities, in, KRS 61.250 , 90.220 .

Removal of, generally, General Assembly to provide manner and causes for, Const., § 160.

Clerks, KRS 118.995 , 136.990 , 382.990 .

County court, KRS 178.990 , 179.990 .

County officers:

Bonds, failure to perform duty under law for issuance, KRS 66.990 .

Reports, false, and failure to make, KRS 64.990 .

Violation of county budget act, KRS 66.990 , 68.300 , 68.990 .

Finance and Administration Cabinet, KRS 66.990 .

Dog law, peace officers required to enforce, KRS 258.225 .

Election laws, violation of, KRS 119.015 to 119.335 .

Fiscal court, KRS 178.990 , 179.990 .

Free pass, officer accepting, Const., § 197.

Illegal fees, KRS 64.460 , 64.990 .

Labor inspectors, KRS 336.990 .

Officers and employes of charitable and penal institutions, KRS 196.230 , 196.990 .

Peace officers, KRS 63.130 , 63.140 , 63.990 , 189.520 , 422.990 .

Property valuation administrator, KRS 132.590 , 132.990 .

Removal of county seat, officer’s failure to perform duty in, KRS 67.990 .

School officers, KRS 156.990 .

School superintendent, KRS 136.990 .

Secretary of state, KRS 118.995 .

Sheriff, KRS 119.125 , 134.200 , 134.990 .

Impeachment of officers, Const., §§ 66 to 68.

Inter-city, inter-county and city-county compacts for purchasing and merit systems; retirement and disability plans for employes of counties and cities, KRS Ch. 79.

Invalid acts of officers, not to be legalized by local act, Const., § 59(13).

Local option law, officers to enforce, KRS 61.170 .

Oath of officers, Const., § 228.

Officer accepting or giving bribe, penalty for, Const., §§ 150, 151; KRS 432.350 , 521.020 .

Official misconduct, penalties, KRS 521.030 , 522.020 , 522.030 .

Person receiving bribe for vote excluded from office, KRS 119.025 .

Professional engineers, elective officers not affected by regulations for, KRS 322.030 .

Regents for state colleges or universities, not public officers, KRS 164.321 .

Salaries of officers: (See KRS Ch. 64.)

Attachment of, KRS 427.130 .

Change during term forbidden, Const., §§ 161, 235.

Maximum allowed, Const., § 246.

Term of office:

City and county, not to be extended, Const., § 161.

Limited to four years, county, district and inferior officers are, Const., §§ 93, 107.

Limited to term of years, Const., § 23.

Succeeding, officers elected from state at large are ineligible for, Const., § 93.

Trustees of University of Kentucky, not public officers, KRS 164.150 .

Workers’ compensation, KRS Ch. 342.

1. Construction.

Provision of this section that police judges shall be commissioned by the Governor did not give the Governor power to fill vacancies in the office or repeal statute providing that vacancies in any city office shall be filled by the city council. Dillon v. Stubbs, 267 Ky. 17 , 100 S.W.2d 823, 1937 Ky. LEXIS 266 ( Ky. 1937 ).

The mere fact that under this section the Governor issues commissions to police judges does not of itself vest in him exclusive power of appointment to fill vacancies and appointing power for office of police judge of city of the second class rested in the mayor and not the Governor even though the city had a city manager, and not a councilmanic, form of government. Heringer v. Rolf, 287 S.W.2d 149, 1956 Ky. LEXIS 442 ( Ky. 1956 ).

2. Commission.

Appointment of police judge of a sixth-class city by the council, when that authority was vested in the Governor, gave him no right to a commission. Willson v. Hahn, 131 Ky. 439 , 115 S.W. 231, 1909 Ky. LEXIS 31 ( Ky. 1909 ).

An appointee to fill a vacancy may be commissioned by the Governor although appointed by another officer or agency. Frost v. Johnston, 262 Ky. 592 , 90 S.W.2d 1045, 1936 Ky. LEXIS 82 ( Ky. 1936 ).

3. — Issuance.

It is the duty of the Governor to issue a commission to a police judge of a city of the fourth class properly appointed or elected. Traynor v. Beckham, 116 Ky. 13 , 74 S.W. 1105, 1903 Ky. LEXIS 167 (Ky. Ct. App. 1903); Jarvis v. Stanley, 176 Ky. 630 , 197 S.W. 183, 1917 Ky. LEXIS 94 ( Ky. 1917 ).

4. — — Refusal.

Possession of commission is not prerequisite to action to recover office, where officer required to issue same has refused to do so. Toney v. Harris, 85 Ky. 453 , 3 S.W. 614, 9 Ky. L. Rptr. 36 , 1887 Ky. LEXIS 62 ( Ky. 1887 ).

Governor may refuse to commission person presenting certificate of election only when election has been held void in a contest proceeding. McCreary v. Williams, 153 Ky. 49 , 154 S.W. 417, 1913 Ky. LEXIS 779 ( Ky. 1913 ).

5. — — Enforcement.

A justice of the peace appointed and commissioned by the Governor may by mandamus enforce his right to execute bond and qualify. Daugherty v. Arnold, 110 Ky. 1 , 60 S.W. 865, 22 Ky. L. Rptr. 1504 , 1901 Ky. LEXIS 54 ( Ky. 1 901 ).

Issuance of a commission is a ministerial act enforceable against the Governor by mandamus. Traynor v. Beckham, 116 Ky. 13 , 74 S.W. 1105, 1903 Ky. LEXIS 167 (Ky. Ct. App. 1903). See McCreary v. Williams, 153 Ky. 49 , 154 S.W. 417, 1913 Ky. LEXIS 779 ( Ky. 1913 ); Jarvis v. Stanley, 176 Ky. 630 , 197 S.W. 183, 1917 Ky. LEXIS 94 ( Ky. 1917 ).

6. Contest over Office.

In contest over office, plaintiff may sue although not holding a commission. Mullins v. Jones, 290 Ky. 796 , 162 S.W.2d 761, 1942 Ky. LEXIS 488 ( Ky. 1942 ).

Cited:

Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

Research References and Practice Aids

Cross-References.

Board of Embalmers and Funeral Directors, certificate of appointment, KRS 316.180 .

Board of Registration for Professional Engineers, certificate of appointment, KRS 322.250 .

County judge/executive, commission to be issued to, Const., § 140.

Creation of office for longer than term prohibited, Const., § 23.

Fee not to be charged for affixing state seal to commission, KRS 14.090 .

Justices of the peace, commission to be issued to, Const., § 142.

Railroad policemen, commission of, KRS 277.270 .

1. Application.

This section applies only to offices which are to be filled for the full constitutional or statutory terms. Jones v. Sizemore, 117 Ky. 810 , 79 S.W. 229, 25 Ky. L. Rptr. 1957 , 1904 Ky. LEXIS 248 ( Ky. 1904 ).

Cited:

Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

Research References and Practice Aids

Cross-References.

General Assembly to regulate time officers to enter upon discharge of duties, Const., § 236.

When officers to enter upon duties, Const., §§ 99, 236.

ALR

Employee or officer, status of person as, as affected by tenure of office. 53 A.L.R. 606; 93 A.L.R. 333; 140 A.L.R. 1076.

“Until” as word of inclusion or exclusion where term of office runs until a specified day. 16 A.L.R. 1100.

1. Construction.

The language in this section referring to the duties to be performed, and the acts permitted to be done, by a ministerial officer is intended to include only duties and acts which are ministerial only in character and such as are to be performed and done by the officer in his ministerial capacity, and does not refer to instances where a ministerial officer is clothed with powers to perform acts in their nature judicial or quasi judicial. Payton v. McQuown, 97 Ky. 757 , 31 S.W. 874, 17 Ky. L. Rptr. 518 , 1895 Ky. LEXIS 241 ( Ky. 1895 ).

2. Deputy Court Clerk.

A deputy Circuit Court Clerk cannot grant an injunction under this section. Payton v. McQuown, 97 Ky. 757 , 31 S.W. 874, 17 Ky. L. Rptr. 518 , 1895 Ky. LEXIS 241 ( Ky. 1895 ).

A guardian ad litem may be appointed by a deputy Circuit Court Clerk. Monroes' Guardian Ad Litem v. Monroe, 215 Ky. 440 , 285 S.W. 250, 1926 Ky. LEXIS 748 ( Ky. 1926 ).

A deputy county court clerk could administer the oath of the county court clerk to a statement of contribution and expenditures filed by the clerk subsequent to his nomination to that office, even though the deputy signed her principal’s name and certified the oaths to have been administered by the clerk through the deputy. Asher v. Sizemore, 261 S.W.2d 665, 1953 Ky. LEXIS 1045 ( Ky. 1953 ).

3. Omission of Principal’s Name.

A deputy should perform all of his official acts in the name of his principal but if he fails to do so and only signs as deputy without the use of his principal’s name, such omission will not invalidate his acts. Conner v. Parsley, 192 Ky. 827 , 234 S.W. 972, 1921 Ky. LEXIS 171 ( Ky. 1921 ).

4. Deputies to Determine Voter’s Rights.

It would conform with this section for the election commissioners and county clerk in counties where there were a large number of absentee voter registration applications to utilize deputies, appropriately apportioned according to party affiliation, to conduct, under supervision of the commissioners and the clerk, at least that part of the examination process required for the determination of “voter’s right to make application, as well as the validity of the form and method of submitting the application itself.” Hallahan v. Cranfill, 383 S.W.2d 374, 1964 Ky. LEXIS 45 ( Ky. 1964 ).

Cited:

McKenna v. Nichols, 295 Ky. 778 , 175 S.W.2d 121, 1943 Ky. LEXIS 311 ( Ky. 1943 ).

Opinions of Attorney General.

A deputy Circuit Court Clerk can serve as Circuit Court Clerk when Circuit Court is in session, when the Circuit Court Clerk is unable to attend. OAG 70-615 .

The act of the deputy may be said to be the act of the principal or clerk. OAG 72-84 .

Subsection (1) of KRS 67.120 provides that the county court clerk is the clerk of the fiscal court ex officio, but the county clerk has the authority to designate one of his lawful deputies to perform that function when such clerk is unable to attend. OAG 73-271 .

Under the authority of this section a county court clerk may designate, in writing, one of his deputies to countersign the checks where the county clerk is required to countersign all checks written on the county treasury. OAG 75-157 .

The circuit clerk is ex officio the librarian of the county law library, his duties as librarian may not be delegated to an outsider but may be performed by a regular deputy circuit clerk, and his salary as librarian is official income and must be counted as a part of his fees in considering his maximum statutory compensation. OAG 75-573 .

Where a sheriff is physically unable to receipt the county clerk for the tax bills and to mail out the tax bills, the sheriff should delegate those responsibilities to any one of his lawful deputies pursuant to this section. OAG 77-593 .

Since the deputy clerk has a general power, pursuant to this section, to bind the county clerk when performing the clerk’s statutory functions, the release of another deputy clerk’s bond may be executed by the chief deputy as a ministerial act binding on the clerk and need not be personally executed by the clerk. OAG 79-274 .

Since the circuit clerk has the positive duty to serve as the county law librarian, he is implicitly required to provide any personnel necessary to assist him in performing properly the function of county law librarian; this statutory responsibility really falls on the office of circuit clerk, regardless of who is clerk and thus the office staff (the clerk through use of his deputies) are held responsible for the librarian function. OAG 80-517 .

The county law librarian is a ministerial officer in connection with that function. OAG 80-517 .

The obvious intent of this section is to afford a principal officer the specific authority to delegate, where deemed necessary, any of his statutory functions of a ministerial nature to a deputy of his office. OAG 80-517 .

The circuit clerk is the ex officio librarian of the county law library and that function cannot legally be delegated to another person, except that the circuit clerk can delegate the clerk’s librarian function to the clerk’s deputies under this section. OAG 83-75 .

Research References and Practice Aids

ALR

Power of assistant or deputy prosecuting or district attorney to file information, or to sign or prosecute it in his own name. 80 A.L.R.2d 1067.

1. Time Vacancy Occurs.

Where officer who has been convicted of felony appeals to Court of Appeals, the judgment is suspended, and the office will not become vacant unless and until the judgment is affirmed. Pineville v. Collett, 294 Ky. 853 , 172 S.W.2d 640, 1943 Ky. LEXIS 543 ( Ky. 1943 ).

2. Remedies Against Removal.

3. — Injunction.

Action for injunction by city clerk to restrain mayor and city council from hearing charges against him and removing him from office became moot and was properly dismissed where city clerk was convicted of a felony and the conviction was affirmed on appeal since the office of city clerk became vacant by conviction of the felony. Brooks v. Collett, 296 Ky. 641 , 178 S.W.2d 48, 1944 Ky. LEXIS 602 ( Ky. 1944 ).

4. — Appeal.

Clerk of Circuit Court properly declined to accept supersedeas bond and properly refused to issue a supersedeas as requested by deputy sheriff who had been granted an appeal from a judgment ousting him from office because of a murder indictment, for even though the judgment was erroneous it was voidable only and the only remedy was an appeal from the judgment and not a mandamus proceeding to compel clerk of Circuit Court to accept tendered supersedeas bond and issue a supersedeas. Baker v. Wilson, 310 Ky. 692 , 221 S.W.2d 690, 1949 Ky. LEXIS 1272 ( Ky. 1949 ).

5. Improper Dismissal.

6. — Damages.

Where a police officer was dismissed as a result of being convicted of three (3) felonies, but his conviction was reversed on appeal and on retrial he was acquitted on all counts and immediately reinstated to his former position, his dismissal was improper and he was entitled to the damages he claimed, the difference between his lost wages and his actual earnings. Vaden v. Louisville Civil Service Bd., 701 S.W.2d 150, 1985 Ky. App. LEXIS 708 (Ky. Ct. App. 1985).

Opinions of Attorney General.

A county judge (now county judge/executive), who has been convicted and sentenced in a federal court on various charges of fraud, may legally continue in office pending his appeal to the Circuit Court. OAG 68-166 .

Although a person convicted of a felony is disqualified from holding office, removal of a county sheriff for disqualification could not be sought until the sheriff’s post-conviction procedures relating to appeal had been exhausted or abandoned, and during such interim period the sheriff could continue the pursuits of his office. OAG 76-232 .

Any public officer, whether he is appointed or elected, is disqualified from serving as a public officer upon conviction of a felony under the terms of Const., § 150, and this section provides that the office of the officer convicted of a felony shall be vacated by such conviction, but until the public officer is convicted and his possible conviction procedures relating to appeal have been exhausted or abandoned, the office does not become vacant. OAG 78-838 .

Research References and Practice Aids

Cross-References.

Disqualification from holding office:

Bribe, receiving or giving for vote, KRS 119.205 .

Dueling, Const., §§ 239, 240; KRS 61.100 .

Election laws, violation of, Const., §§ 150, 151, 239; KRS 119.205 .

Felony or high misdemeanor, conviction of, Const., § 150.

Official misconduct, KRS 522.010 to 522.040 .

Forfeiture of office for conviction of crime, Const., §§ 68, 150, 151, 197, 227, 246.

ALR

Conviction of offense under federal law or law of another state or country as vacating accused’s holding of state or local office or as ground of removal. 20 A.L.R.2d 732.

Constitutional office, power of legislature to prescribe qualifications for or conditions of eligibility to. 34 A.L.R.2d 155.

Elections, effect of conviction under federal law, or law of another state or county, on right to vote or hold public office. 39 A.L.R.3d 303.

Removal of public officers for misconduct during previous term. 42 A.L.R.3d 691.

What is an infamous crime or one involving moral turpitude constituting disqualification to hold public office. 52 A.L.R.2d 1314.

What constitutes conviction within statutory or constitutional provision making conviction of crime ground for disqualification for, removal from, or vacancy in, public office. 10 A.L.R.5th 139.

1. Application.

This section does not apply to officers of an election, whose action cannot be corrected by a court of equity either for fraud or mistake. Ramey v. Ratliffe, 81 Ky. 468 , 5 Ky. L. Rptr. 471 , 1884 Ky. LEXIS 1 ( Ky. 1884 ); Hodges v. Murray, 240 Ky. 127 , 41 S.W.2d 923, 1931 Ky. LEXIS 355 ( Ky. 1931 ), overruled, Johnson v. May, 305 Ky. 292 , 203 S.W.2d 37, 1947 Ky. LEXIS 785 ( Ky. 1947 ).

This section does not apply to certificate signed by one whose term had expired at the time of signature. Fitzgerald v. Milliken, 83 Ky. 70 , 7 Ky. L. Rptr. 11 , 1885 Ky. LEXIS 38 (Ky. Ct. App. 1885).

This section does not protect official statements not required by law to be made. Engle v. Bond-Foley Lumber Co., 173 Ky. 35 , 189 S.W. 1146, 1916 Ky. LEXIS 287 ( Ky. 1916 ); Hodges v. Murray, 240 Ky. 127 , 41 S.W.2d 923, 1931 Ky. LEXIS 355 ( Ky. 1931 ), overruled, Johnson v. May, 305 Ky. 292 , 203 S.W.2d 37, 1947 Ky. LEXIS 785 ( Ky. 1947 ).

Attack on clerk’s indorsement of execution of appeal bond is governed by this section. Commonwealth by State Highway Com. v. McIntire, 249 Ky. 555 , 61 S.W.2d 31, 1933 Ky. LEXIS 564 ( Ky. 1933 ).

This section has no application where defendant in a boundary line dispute is attempting to prove that a surveyor’s map, which had been recorded, was inaccurate. Bailey v. Hall, 295 Ky. 740 , 175 S.W.2d 512, 1943 Ky. LEXIS 345 ( Ky. 1943 ).

Report of a sheriff on the posting of notices of a local option election, even though not offered for filing until nearly 60 days after the election and 30 days after institution of contest suit, could be attacked only as prescribed in this section. Steele v. Perry County, 299 Ky. 827 , 187 S.W.2d 302, 1945 Ky. LEXIS 781 ( Ky. 1945 ).

In action attacking validity of deed, where the contention was that grantee had switched pages on two (2) deeds, taking page bearing signature and acknowledgment from a deed conveying only a life estate and attaching it to a deed conveying a fee, but where no attack was made upon the signature or the acknowledgment, this section had no application. Damron v. Damron, 301 Ky. 636 , 192 S.W.2d 741, 1945 Ky. LEXIS 757 ( Ky. 1945 ).

KRS 125.080 (repealed) does not require election officers to “certify” any fact and thus this section has no relevance to clerk’s notification that the ballot machines were ready or to the commissioner’s indorsement of approval of the ballot machines. Rives v. Pettit, 513 S.W.2d 475, 1974 Ky. LEXIS 371 ( Ky. 1974 ).

2. Direct Attack.

Action on bond is direct attack. Commonwealth use of Steinaugh v. Rothwell, 5 Ky. Op. 251, 1871 Ky. LEXIS 356 (Ky. Ct. App. Nov. 1, 1871).

Deed valid on its face, acknowledged and recorded, is open to question only in a suit against an immediate or other vendee with notice, or in a suit against the certifying officer. Godsey v. Virginia Iron, Coal & Coke Co., 82 S.W. 386, 26 Ky. L. Rptr. 657 , 1904 Ky. LEXIS 385 (Ky. Ct. App. 1904).

When the return is valid on its face, allegation that person making it was not an officer can be raised only in action against the officer, or on ground of fraud or mistake. Claryville, Grant's Lick & Butler Turnpike Co. v. Commonwealth, 107 S.W. 327, 108 S.W. 250, 32 Ky. L. Rptr. 1157 , 32 Ky. L. Rptr. 861 .

Motion to quash is a direct attack upon a return for mistake of the officer. Leabow v. Jones, 221 Ky. 509 , 299 S.W. 177, 1927 Ky. LEXIS 766 ( Ky. 1927 ).

Suit to vacate default judgment entered at same term alleging mistake in recital of service in return made on summons is essentially a direct attack on the return, whether regarded as an independent action or as a motion in the former suit. Holcomb v. Creech, 247 Ky. 199 , 56 S.W.2d 998, 1933 Ky. LEXIS 376 ( Ky. 1933 ).

Where a deputy sheriff stated in an affidavit that he served a summons on a judgment debtor’s wife rather than on the debtor himself even though he had stated on his return that he had served the debtor personally, this section does not bar a direct attack on the judgment if the debtor alleges fraud or mistake on the part of the deputy sheriff. R. F. Burton & Burton Tower Co. v. Dowell Div. of Dow Chemical Co., 471 S.W.2d 708, 1971 Ky. LEXIS 249 ( Ky. 1971 ).

3. Collateral Proceedings.

A certificate of acknowledgment of a deed cannot be collaterally attacked by parol evidence contradicting it showing that it was acknowledged elsewhere, that the husband was present or that the clerk failed to explain it to the wife. Cox v. Gill, 83 Ky. 669 , 7 Ky. L. Rptr. 720 , 1886 Ky. LEXIS 24 (Ky. Ct. App. 1886); Tichenor v. Yankee, 89 Ky. 508 , 12 S.W. 947, 11 Ky. L. Rptr. 712 , 1890 Ky. LEXIS 13 ( Ky. 1890 ).

Motion at same term to set aside judgment is not a collateral attack. Authority of court to set judgment aside at same term is not statutory but inherent. Holcomb v. Creech, 247 Ky. 199 , 56 S.W.2d 998, 1933 Ky. LEXIS 376 ( Ky. 1933 ); Gardner v. Lincoln Bank & Trust Co., 251 Ky. 109 , 64 S.W.2d 497, 1933 Ky. LEXIS 830 ( Ky. 1933 ).

Chapter 7 trustee was allowed to amend a complaint seeking to avoid a mortgage under 11 USCS § 544(a) where the case law on the application of KRS 61.060 demonstrated that a notary certificate could not be attacked without bringing an action directly against the notary, or by alleging fraud or mistake on the notary’s part. Kendrick v. Deutsche Bank Nat'l Trust Co. (In re St. Clair), 2006 Bankr. LEXIS 2449 (Bankr. E.D. Ky. Oct. 4, 2006).

Trustee was given an opportunity to amend a complaint seeking to avoid a mortgage under 11 USCS § 544(a) although he had neither brought a direct action against the notary, alleged fraud on the part of the party benefitted by the certificate of acknowledgement, or alleged mistake by the notary as required under KRS 61.060 . Rogan v. Countrywide Home Loans (In re Griffin), 2006 Bankr. LEXIS 2520 (Bankr. E.D. Ky. Oct. 5, 2006).

4. Valid Certificate.

Valid certificate adds nothing to fraudulent instrument. Aultman & Taylor Co. v. Frasure, 95 Ky. 429 , 26 S.W. 5, 16 Ky. L. Rptr. 6 , 1894 Ky. LEXIS 43 ( Ky. 1894 ).

Certificate of notary public that mortgage was signed and acknowledged before him imported verity to the instrument. Catron v. Jones, 281 Ky. 163 , 135 S.W.2d 419, 1939 Ky. LEXIS 27 ( Ky. 1939 ).

A genuine officer’s certificate imports absolute verity to the instrument. Conley v. Coburn, 297 Ky. 292 , 179 S.W.2d 668, 1944 Ky. LEXIS 703 ( Ky. 1944 ).

An officer’s certificate being in proper form, is prima facie evidence of the true execution of the deed. Conley v. Coburn, 297 Ky. 292 , 179 S.W.2d 668, 1944 Ky. LEXIS 703 ( Ky. 1944 ).

Where there was no allegation that sheriff failed to publish the required advertisements, sheriff’s return on back of printed notice certifying that the notice was printed and at least five (5) were placed in each of the voting precincts, was sufficient compliance with KRS 242.040 and since there was no allegation of fraud or mistake truth of sheriff’s return could not be questioned collaterally under this section. Donohue v. Swindler, 299 Ky. 119 , 184 S.W.2d 348, 1944 Ky. LEXIS 1031 ( Ky. 1944 ).

An officer’s certificate imports absolute verity unless attacked in a direct proceeding against the officer or his surety, or unless there is an allegation of fraud in the obtention of the certificate by the party benefited, or mistake upon the part of the officer and where there was no pleading attacking the officer’s certificate or charging fraud on the part of the grantee or mistake of the notary the deed must stand. Spicer v. Spicer, 314 Ky. 560 , 236 S.W.2d 474, 1951 Ky. LEXIS 692 ( Ky. 1951 ).

5. Returns.

Return may be questioned before judgment. Barbour v. Newkirk, 83 Ky. 529 , 7 Ky. L. Rptr. 555 , 1886 Ky. LEXIS 4 (Ky. Ct. App. 1886); Thompson v. Board of Drainage Comm'rs, 258 Ky. 68 , 79 S.W.2d 381, 1935 Ky. LEXIS 113 ( Ky. 1935 ).

Return on summons may not be attacked by parties to suit after judgment where plaintiff acted in good faith. Thomas v. Ireland, 88 Ky. 581 , 11 S.W. 653, 11 Ky. L. Rptr. 103 , 1889 Ky. LEXIS 78 ( Ky. 1889 ). See Foster v. Hill, 282 Ky. 327 , 138 S.W.2d 495, 1940 Ky. LEXIS 172 ( Ky. 1940 ).

Where answer alleged that sheriff’s return “was made by fraud or mistake on the part of” the officer, “and defendant does not know which,” it did not impeach the return under this section “upon an allegation of fraud in the party benefited thereby, or mistake on the part of the officer.” Lock v. Slusher, 102 Ky. 415 , 43 S.W. 471 ( Ky. 1897 ).

Amended petition in local option contest suit, alleging that sheriff’s return as to posting of election notices was not filed until after contest had been instituted, and attacking the return on the ground of fraud or mistake, was not demurrable, although proof developed that return had been filed before contest was instituted, and that the return was adequate. Hall v. Sturgill, 305 Ky. 445 , 204 S.W.2d 496, 1947 Ky. LEXIS 827 ( Ky. 1947 ).

6. Purchasers Without Knowledge.

Recorded certificate, regular on its face, is not open to assault by parol evidence so as to affect innocent purchasers. Aultman & Taylor Co. v. Frasure, 95 Ky. 429 , 26 S.W. 5, 16 Ky. L. Rptr. 6 , 1894 Ky. LEXIS 43 ( Ky. 1894 ); Godsey v. Virginia Iron, Coal & Coke Co., 82 S.W. 386, 26 Ky. L. Rptr. 6 57, 1904 Ky. LEXIS 385 (Ky. Ct. App. 1904).

A purchaser for value, at judicial sale, when the proceedings are regular on their face, is not affected by extrinsic facts, unknown to him, which might impeach the judgment. Ohio Oil Co. v. West, 284 Ky. 796 , 145 S.W.2d 1035, 1940 Ky. LEXIS 566 ( Ky. 1940 ).

7. Duress.

Wife of mortgagor was permitted to show by parol evidence that the acknowledgment was taken in the presence of her husband and by his coercion where the mortgagee, by its agent, was present when the acknowledgment was taken and was participating in the fraudulent efforts to overcome the wife’s refusal to mortgage her property. Aultman & Taylor Co. v. Frasure, 95 Ky. 429 , 26 S.W. 5, 16 Ky. L. Rptr. 6 , 1894 Ky. LEXIS 43 ( Ky. 1894 ).

A mortgage properly certified by the officer taking the acknowledgment cannot be avoided as to the wife on grounds she was induced to execute the mortgage under the duress of her husband, although it was not certain whether her husband was out of the room while the wife acknowledged the mortgage, where the mortgagee was innocent of any participation in the duress. Tackitt v. Tackitt's Adm'r, 127 S.W. 987, 1910 Ky. LEXIS 718 ( Ky. 1910 ).

Duress by husband cannot prevail against regularity of certificate, when fraud or mistake does not appear. Tackitt v. Tackitt's Adm'r, 127 S.W. 987, 1910 Ky. LEXIS 718 ( Ky. 1910 ).

8. Forgery.

Forgery of certificate is not affected by this section. Atkins' Guardian v. McCoy, 275 Ky. 117 , 120 S.W.2d 1019, 1938 Ky. LEXIS 377 ( Ky. 1938 ).

Forgery of the maker’s signature may not be shown until the certificate is attacked. Atkins' Guardian v. McCoy, 275 Ky. 117 , 120 S.W.2d 1019, 1938 Ky. LEXIS 377 ( Ky. 1938 ).

This section applies only to a certificate actually signed by the officer, and not to a forged certificate, which is a nullity. Park Hill Realty Co. v. Lykins, 290 Ky. 498 , 161 S.W.2d 602, 1942 Ky. LEXIS 407 ( Ky. 1942 ).

Execution return may be quashed for forgery, on motion having elements of a good petition, provided that notice must be given if the case has been off the docket. Park Hill Realty Co. v. Lykins, 290 Ky. 498 , 161 S.W.2d 602, 1942 Ky. LEXIS 407 ( Ky. 1942 ).

Where a defendant in an action to quiet title was a grantee in a deed a title bond covering the same real estate executed by plaintiff and her husband to grantor at a later date would inure to the defendant’s benefit so that notary’s acknowledgment on the title bond could be attacked under this section on an allegation that the entire title bond was forged and the notary’s certificate was made by the notary through mistake, “or as the result of fraud on the part of defendant.” Grigsby v. Mosley, 297 Ky. 571 , 180 S.W.2d 99, 1944 Ky. LEXIS 732 ( Ky. 1944 ).

Notary’s certificate that title bond had been acknowledged was not immune from attack and came within the exceptions to this section where pleading alleging the entire instrument was forged contained the charge that the certificate was made by the notary through mistake, “or as the result of fraud on the part of the defendant” whom the title bond would have benefited. Grigsby v. Mosley, 297 Ky. 571 , 180 S.W.2d 99, 1944 Ky. LEXIS 732 ( Ky. 1944 ).

This section cannot be pleaded as a shield against a prosecution for knowingly uttering a forged deed. Honeycutt v. Commonwealth, 245 S.W.2d 444, 1951 Ky. LEXIS 1258 ( Ky. 1951 ).

9. Fraud.

Fraud must relate to the obtaining of the certificate itself, not to the making of the instrument acknowledged, in order to open the certificate to collateral attack. Dowell v. Mitchell, 82 Ky. 47 , 5 Ky. L. Rptr. 746 , 1884 Ky. LEXIS 36 (Ky. Ct. App. 1884); Aultman & Taylor Co. v. Frasure, 95 Ky. 429 , 26 S.W. 5, 16 Ky. L. Rptr. 6 , 1894 Ky. LEXIS 43 ( Ky. 1894 ); Byers v. First State Bank, 159 Ky. 135 , 166 S.W. 790, 1914 Ky. LEXIS 748 ( Ky. 1914 ).

Fraud committed by one benefiting only incidentally from the transaction is insufficient to justify collateral attack. Thomas v. Ireland, 88 Ky. 581 , 11 S.W. 653, 11 Ky. L. Rptr. 103 , 1889 Ky. LEXIS 78 ( Ky. 1889 ); Hall v. Hall, 118 Ky. 656 , 82 S.W. 269, 26 Ky. L. Rptr. 553 , 1904 Ky. LEXIS 87 ( Ky. 1904 ); Long v. Branham, 99 S.W. 271, 30 Ky. L. Rptr. 552 (1907).

Fraud by officer alone is insufficient. Lock v. Slusher, 102 Ky. 415 , 43 S.W. 471 ( Ky. 1897 ).

Allegation of fraud must show that grantee participated in the fraud, or had knowledge or notice of it before the transaction was completed, the instrument being solely for his benefit. Hall v. Hall, 118 Ky. 656 , 82 S.W. 269, 26 Ky. L. Rptr. 553 , 1904 Ky. LEXIS 87 ( Ky. 1904 ); Long v. Branham, 99 S.W. 271, 30 Ky. L. Rptr. 552 (1907).

Fraud by certifying officer is sufficient where he negotiated the trade on behalf of the purchaser. Commonwealth v. Middleton, 205 Ky. 570 , 266 S.W. 37, 1924 Ky. LEXIS 163 ( Ky. 1924 ).

Officer is generally not an agent for either party to the instrument but when the obligee produces the instrument to him and causes him to leave his office and go to the home of the obligor in order to secure signature and acknowledgment, then fraud by the officer will be imputed to the obligee. Crace v. Morgan County Nat'l Bank, 258 Ky. 657 , 80 S.W.2d 823, 1935 Ky. LEXIS 216 ( Ky. 1935 ).

In the absence of allegations of fraud on the part of grantees in obtaining a notary certificate attached to a deed or of mistake on the part of the notary, party whose signature appears as executor of deed could not allege that he did not execute the deed. Skaggs v. Vaughn, 550 S.W.2d 574, 1977 Ky. App. LEXIS 686 (Ky. Ct. App. 1977).

Where Chapter 7 debtors were not present before the notary when they signed certificates of acknowledgment on a deed and mortgage, the trustee failed to allege that there was direct fraud committed by, or on behalf of, either of the creditors; rather, the trustee solely argued that the notary’s fraud was imputed to the creditors. Kendrick v. Deutsche Bank Nat'l Trust Co. (In re St. Clair), 380 B.R. 478, 2008 Bankr. LEXIS 37 (B.A.P. 6th Cir. 2008).

10. Mistake.

That clerk took acknowledgment in wrong county, or that he failed to read or explain the instrument to the wife, or that she did not consent that the instrument be recorded, or that her husband was present when she acknowledged it, are not the type of mistakes contemplated by this section, and parol evidence is not admissible to contradict the certificate. Cox v. Gill, 83 Ky. 669 , 7 Ky. L. Rptr. 720 , 1886 Ky. LEXIS 24 (Ky. Ct. App. 1886).

Mistake does not apply to the form or manner of acknowledgment. Cox v. Gill, 83 Ky. 669 , 7 Ky. L. Rptr. 720 , 1886 Ky. LEXIS 24 (Ky. Ct. App. 1886); Tichenor v. Yankee, 89 Ky. 508 , 12 S.W. 947, 11 Ky. L. Rptr. 712 , 1890 Ky. LEXIS 13 ( Ky. 1890 ); Bebout v. Old Kentucky Mfg. Co., 145 Ky. 756 , 141 S.W. 406, 1911 Ky. LEXIS 954 ( Ky. 1911 ).

Mistake in certificate of acknowledgment of deed may be pleaded only (1) when the certificate is invalid on its face, (2) when the parties named in the deed did not sign it, or (3) when they did not acknowledge it before an authorized officer. Cox v. Gill, 83 Ky. 669 , 7 Ky. L. Rptr. 720 , 1886 Ky. LEXIS 24 (Ky. Ct. App. 1886).

When the certificate is regular and proper on its face and admitted to be signed, and the deed acknowledged before one authorized to take the acknowledgment, what the clerk states as to when it was acknowledged and the manner of acknowledgment cannot be assailed on the idea that the clerk made a mistake and parol proof will not be allowed to contradict the legal effect of the certificate by showing that the clerk took the acknowledgment somewhere else, or that the husband was present when the deed was acknowledged by the wife, or that the clerk failed to read and explain the contents of the deed to her. Cox v. Gill, 83 Ky. 669 , 7 Ky. L. Rptr. 720 , 1886 Ky. LEXIS 24 (Ky. Ct. App. 1886); Tichenor v. Yankee, 89 Ky. 508 , 12 S.W. 947, 11 Ky. L. Rptr. 712 , 1890 Ky. LEXIS 13 ( Ky. 1890 ); Keith v. Silberberg, 29 S.W. 316, 16 Ky. L. Rptr. 588 (1895); Bebout v. Old Kentucky Mfg. Co., 145 Ky. 756 , 141 S.W. 406, 1911 Ky. LEXIS 954 ( Ky. 1911 ).

Recorded certificate though regular on its face may be attacked by parol evidence when affected party had knowledge at the time of a mistake. Aultman & Taylor Co. v. Frasure, 95 Ky. 429 , 26 S.W. 5, 16 Ky. L. Rptr. 6 , 1894 Ky. LEXIS 43 ( Ky. 1894 ).

Where through the failure of the official stenographer, who was the agent for the attorney for the defendant, and the trial court to follow the procedural law, the court was led into the mistake of attaching a certificate of approval and entering an order filing a nonexistent bill of exceptions, Court of Appeals sustained plaintiff’s motion to strike the bill from the record. Louisville & N. R. Co. v. Paul's Adm'r, 314 Ky. 473 , 235 S.W.2d 787, 1951 Ky. LEXIS 659 ( Ky. 1951 ).

Absent a direct proceeding for recovery against the officer and absent any substantial proof in the nature of fraud, any mistake disclosed by the proof was not the kind of mistake contemplated by this section and the statement of the officer was therefore not subject to attack. Fletcher v. Wilson, 500 S.W.2d 601, 1973 Ky. LEXIS 258 ( Ky. 1973 ).

Where Chapter 7 debtors were not present before the notary when they signed certificates of acknowledgment on a deed and mortgage, the facts alleged by the trustee did not constitute the “mistake” contemplated by KRS 61.060 because the debtors admitted that they signed the mortgage and deed and benefitted from it, they did not claim any harm occurred, and, on its face, the acknowledgment clause was valid, and for that reason it was accepted for recordation. Kendrick v. Deutsche Bank Nat'l Trust Co. (In re St. Clair), 380 B.R. 478, 2008 Bankr. LEXIS 37 (B.A.P. 6th Cir. 2008).

11. Pleadings.

Statement of facts constituting the mistake or fraud is a sufficient averment. Pryse v. McGuire, 81 Ky. 608 , 5 Ky. L. Rptr. 716 , 1884 Ky. LEXIS 19 (Ky. Ct. App. 1884); Riggs v. Stevens, 92 Ky. 393 , 17 S.W. 1016, 13 Ky. L. Rptr. 631 , 1891 Ky. LEXIS 175 ( Ky. 1891 ); Bingham v. Anderson, 199 Ky. 680 , 251 S.W. 973, 1923 Ky. LEXIS 919 ( Ky. 1923 ).

Mistake and fraud may be pleaded affirmatively, but each must be a complete and sufficient cause of action or ground of defense. Lock v. Slusher, 102 Ky. 415 , 43 S.W. 471 ( Ky. 1897 ).

Allegation in petition that grantee forged or caused to be forged name of notary public to certificate was sufficient plea of fraud in the party benefited thereby. Hoagland v. Fish, 238 S.W.2d 133, 1951 Ky. LEXIS 799 ( Ky. 1951 ).

Where date on summons was more than a year and a day after accrual of cause of action, and no evidence was introduced to prove issuing officer’s mistake, death action was barred, but plaintiff on subsequent trial would be allowed to amend pleadings to show action was not barred by statute of limitations. Clark v. Finch's Adm'x, 254 S.W.2d 934, 1953 Ky. LEXIS 1237 (Ky. Ct. App. 1953).

12. — Allegations.

Mistake or fraud must be pleaded before evidence thereof may be introduced. Dowell v. Mitchell, 82 Ky. 47 , 5 Ky. L. Rptr. 746 , 1884 Ky. LEXIS 36 (Ky. Ct. App. 1884); Davis v. Jenkins, 93 Ky. 353 , 20 S.W. 283, 14 Ky. L. Rptr. 342 , 1892 Ky. LEXIS 104 ( Ky. 1892 ); Keith v. Silberberg, 29 S.W. 316, 16 Ky. L. Rptr. 588 (1895); Doty v. Deposit Bldg. & Loan Ass'n, 103 Ky. 710 , 46 S.W. 219, 20 Ky. L. Rptr. 625 , 1898 Ky. LEXIS 120 ( Ky. 1898 ); Creech v. Board of Trustees, 102 S.W. 804, 31 Ky. L. Rptr. 379 (1907); Claryville, Grant's Lick & Butler Turnpike Co. v. Commonwealth, 107 S.W. 327, 108 S.W. 250, 32 Ky. L. Rptr. 1157 , 32 Ky. L. Rptr. 861 ; Commonwealth v. Slayer, 146 Ky. 453 , 142 S.W. 1015, 1912 Ky. LEXIS 91 ( Ky. 1912 ); S. B. Reese Lumber Co. v. Licking Coal & Lumber Co., 156 Ky. 723 , 161 S.W. 1124, 1914 Ky. LEXIS 186 ( Ky. 1914 ); Byers v. First State Bank, 159 Ky. 135 , 166 S.W. 790, 1914 Ky. LEXIS 748 ( Ky. 1914 ); Ramey v. Francis, Day & Co., 169 Ky. 469 , 184 S.W. 380, 1916 Ky. LEXIS 715 ( Ky. 1916 ); Wiser v. Shacklett, 208 Ky. 317 , 270 S.W. 754, 1925 Ky. LEXIS 276 ( Ky. 1925 ); Quinn-Marshall Co. v. Hurley, 209 Ky. 154 , 272 S.W. 402, 1925 Ky. LEXIS 449 ( Ky. 1925 ); Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ); Foster v. Hill, 282 Ky. 327 , 138 S.W.2d 495, 1940 Ky. LEXIS 172 ( Ky. 1940 ).

Pleading attacking validity of official act is bad unless it affirmatively shows that the act was not done or that some essential fact was omitted which goes to the validity of the act. Alexander v. Aud, 121 Ky. 105 , 88 S.W. 1103, 28 Ky. L. Rptr. 69 , 1905 Ky. LEXIS 185 ( Ky. 1905 ).

Petition pleading conspiracy, fraud and forgery by grantee, and lack of acknowledgment before clerk, held sufficient. Cornett v. Davidson, 282 Ky. 584 , 139 S.W.2d 72, 1940 Ky. LEXIS 210 ( Ky. 1940 ).

Plea of non est factum and allegation of forgery and fraud held sufficient. Clark v. Taylor, 289 Ky. 480 , 158 S.W.2d 961, 1941 Ky. LEXIS 34 ( Ky. 1941 ).

Report of sheriff that he had posted notices of local option election, as required by KRS 242.040 , could not be collaterally attacked without an allegation of fraud or mistake. Jackson v. Bolt, 292 Ky. 503 , 166 S.W.2d 831, 1942 Ky. LEXIS 92 ( Ky. 1942 ).

In action on note and mortgage, where mortgage bore certificate of acknowledgment by county clerk, defendant’s plea in answer that note and mortgage were not signed or acknowledged by him, but not alleging fraud or mistake in the execution of the certificate, was fatally defective. Hackworth v. Trimble, 293 Ky. 647 , 169 S.W.2d 843, 1943 Ky. LEXIS 682 ( Ky. 1943 ).

13. — Non Est Factum.

Party may plead lack of execution, or that he signed a blank which was afterward filled in by another without authority. Hager v. Sidebottom, 130 Ky. 687 , 113 S.W. 870, 1908 Ky. LEXIS 310 ( Ky. 1908 ).

Denial of execution may be made only under a plea of fraud or mistake. Byers v. First State Bank, 159 Ky. 135 , 166 S.W. 790, 1914 Ky. LEXIS 748 ( Ky. 1914 ); Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ); Morgan County Nat'l Bank v. Crace, 249 Ky. 461 , 61 S.W.2d 10, 1933 Ky. LEXIS 552 ( Ky. 1933 ); Commonwealth Life Ins. Co. v. Combs, 251 Ky. 540 , 65 S.W.2d 696, 1933 Ky. LEXIS 920 ( Ky. 1933 ); Christopher's Adm'r v. Miniard, 267 Ky. 484 , 102 S.W.2d 978, 1937 Ky. LEXIS 342 ( Ky. 1937 ); Bush v. Arnett, 271 Ky. 803 , 113 S.W.2d 442, 1938 Ky. LEXIS 58 ( Ky. 1938 ).

If forgery of the certificate is alleged and proved, non est factum may be pleaded against the instrument. Atkins' Guardian v. McCoy, 275 Ky. 117 , 120 S.W.2d 1019, 1938 Ky. LEXIS 377 ( Ky. 1938 ).

Except in an action against the officer or his surety, the effect of the certificate must be destroyed before non est factum is available. Atkins' Guardian v. McCoy, 275 Ky. 117 , 120 S.W.2d 1019, 1938 Ky. LEXIS 377 ( Ky. 1938 ).

14. Evidence.

Evidence of fraud or mistake should be clear, positive and convincing. Utter, Adams & Allen v. Smith, 80 S.W. 447, 25 Ky. L. Rptr. 2272 (1904); Duff v. Virginia Iron, Coal & Coke Co., 136 Ky. 281 , 124 S.W. 309, 1910 Ky. LEXIS 480 ( Ky. 1910 ); Rockcastle Mining, Lumber & Oil Co. v. Isaacs, 141 Ky. 80 , 132 S.W. 165, 1910 Ky. LEXIS 410 ( Ky. 1910 ); Banner v. Asher, 183 Ky. 24 , 207 S.W. 703, 1919 Ky. LEXIS 426 ( Ky. 1919 ); Eversole v. Kentucky River Coal Corp., 189 Ky. 471 , 225 S.W. 50, 1920 Ky. LEXIS 453 ( Ky. 1920 ); Slater v. Hatfield, 195 Ky. 281 , 242 S.W. 618, 1922 Ky. LEXIS 338 ( Ky. 1922 ); Ford v. Fischer, 202 Ky. 494 , 260 S.W. 20, 1924 Ky. LEXIS 745 ( Ky. 1924 ); Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ); Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ); McGuire v. Cope, 225 Ky. 521 , 9 S.W.2d 528, 1928 Ky. LEXIS 817 (Ky. 1928); Greene v. Cawood, 230 Ky. 823 , 20 S.W.2d 984, 1929 Ky. LEXIS 180 ( Ky. 1929 ); Kentucky West Virginia Gas Co. v. Maynard, 242 Ky. 490 , 46 S.W.2d 788, 1932 Ky. LEXIS 300 ( Ky. 1932 ); Muscovalley v. Horn, 246 Ky. 778 , 56 S.W.2d 354, 1932 Ky. LEXIS 826 ( Ky. 1932 ); Billingsly v. Pearcy, 251 Ky. 546 , 65 S.W.2d 699, 1933 Ky. LEXIS 921 ( Ky. 1933 ); Perry Bank & Trust Co.'s Liquidating Agent & Special Deputy Banking Comm'r v. Colwell, 252 Ky. 389 , 67 S.W.2d 465, 1934 Ky. LEXIS 777 ( Ky. 1934 ); Halcomb v. Creech, 255 Ky. 262 , 73 S.W.2d 21, 1934 Ky. LEXIS 213 ( Ky. 1934 ); Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ); Nicholson v. Thomas, 277 Ky. 760 , 127 S.W.2d 155, 1939 Ky. LEXIS 718 ( Ky. 1939 ); Cornett v. Davidson, 282 Ky. 584 , 139 S.W.2d 72, 1940 Ky. LEXIS 210 ( Ky. 1940 ); Ohio Oil Co. v. West, 284 Ky. 796 , 145 S.W.2d 1035, 1940 Ky. LEXIS 566 ( Ky. 1940 ); Newsome v. Hall, 290 Ky. 486 , 161 S.W.2d 629, 1942 Ky. LEXIS 419 ( Ky. 1942 ); Park Hill Realty Co. v. Lykins, 290 Ky. 498 , 161 S.W.2d 602, 1942 Ky. LEXIS 407 ( Ky. 1942 ).

To overthrow an official certificate, the court should have before it such evidence as will leave no doubt that the officer had been guilty of fraud or mistake. Duff v. Virginia Iron, Coal & Coke Co., 136 Ky. 281 , 124 S.W. 309, 1910 Ky. LEXIS 480 ( Ky. 1910 ). But see Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ).

Denial of execution, under issue of mistake, is affirmative testimony. Gardner v. Lincoln Bank & Trust Co., 251 Ky. 109 , 64 S.W.2d 497, 1933 Ky. LEXIS 830 ( Ky. 1933 ).

Even where the original summons has been lost, clear and convincing evidence is required in order to impeach an official entry on the docket showing that defendants have been summoned. Nicholson v. Thomas, 277 Ky. 760 , 127 S.W.2d 155, 1939 Ky. LEXIS 718 ( Ky. 1939 ); Nicholson v. Ausmus, 280 Ky. 99 , 132 S.W.2d 748, 1939 Ky. LEXIS 78 ( Ky. 1939 ).

In local option election contest, where charge of mistake in sheriff’s return as to posting of notices of election was sustained by the evidence, and there was no proof of fraud in connection therewith on the part of the contestants, it was proper for the court to receive evidence as to whether the notices were in fact posted. Hughes v. Ramey, 305 Ky. 128 , 203 S.W.2d 63, 1947 Ky. LEXIS 797 ( Ky. 1947 ).

When a party undertakes to invalidate signature on adoption papers, he must also prove fraud or mistake in the execution of the notary’s certificate. Jones v. Sutton, 255 S.W.2d 658, 1953 Ky. LEXIS 682 ( Ky. 1953 ).

15. — Presumptions.

A simple preponderance of evidence is not enough to overcome the presumption that the deed on file in the public records is a true and complete testimonial as to the terms of the conveyance. Hi Hat Elkhorn Coal Co. v. Kelly, 205 F. Supp. 764, 1962 U.S. Dist. LEXIS 4759 (E.D. Ky. 1962 ).

Sheriff’s return on execution recited execution of sale bond, but no bond was filed. While the return may be prima facie evidence, yet in a direct action against him he must prove execution of sale bond. Commonwealth use of Steinaugh v. Rothwell, 5 Ky. Op. 251, 1871 Ky. LEXIS 356 (Ky. Ct. App. Nov. 1, 1871).

Return is prima facie evidence of its own truth, but is not evidence of any other fact, and does not prove authority to act. Carlisle v. Carlisle, 9 Ky. Op. 174, 1876 Ky. LEXIS 383 (Ky. Ct. App. Oct. 17, 1876).

Certificate or return imports absolute verity as to whether officer did his duty, except for fraud or mistake. Dowell v. Mitchell, 82 Ky. 47 , 5 Ky. L. Rptr. 746 , 1884 Ky. LEXIS 36 (Ky. Ct. App. 1884); Davis v. Jenkins, 93 Ky. 353 , 20 S.W. 283, 14 Ky. L. Rptr. 342 , 1892 Ky. LEXIS 104 ( Ky. 1892 ); Keith v. Silberberg, 29 S.W. 316, 16 Ky. L. Rptr. 588 (1895); Everman v. Everman, 122 S.W. 135 ( Ky. 1909 ); Bebout v. Old Kentucky Mfg. Co., 145 Ky. 756 , 141 S.W. 406, 1911 Ky. LEXIS 954 ( Ky. 1911 ); Byers v. First State Bank, 159 Ky. 135 , 166 S.W. 790, 1914 Ky. LEXIS 748 ( Ky. 1914 ); Ramey v. Francis, Day & Co., 169 Ky. 469 , 184 S.W. 380, 1916 Ky. LEXIS 715 ( Ky. 1916 ); Slater v. Hatfield, 195 Ky. 281 , 242 S.W. 618, 1922 Ky. LEXIS 338 ( Ky. 1922 ); Combs' Adm'r v. Virginia Iron, Coal & Coke Co., 236 Ky. 524 , 33 S.W.2d 649, 1930 Ky. LEXIS 811 ( Ky. 1930 ); Atkins' Guardian v. McCoy, 263 Ky. 846 , 93 S.W.2d 839, 1936 Ky. LEXIS 242 ( Ky. 1936 ); Christopher's Adm'r v. Miniard, 267 Ky. 484 , 102 S.W.2d 978, 1937 Ky. LEXIS 342 ( Ky. 1937 ); Givens v. Turner, 272 Ky. 211 , 113 S.W.2d 1166, 1938 Ky. LEXIS 104 ( Ky. 1938 ); Park Hill Realty Co. v. Lykins, 290 Ky. 498 , 161 S.W.2d 602, 1942 Ky. LEXIS 407 ( Ky. 1942 ); White v. White, 294 Ky. 563 , 172 S.W.2d 72, 1943 Ky. LEXIS 482 ( Ky. 1943 ).

Mere alibi is not testimony of sufficient weight to overthrow presumption in favor of certificate. Birkhead v. Kyle, 13 Ky. Op. 42, 6 Ky. L. Rptr. 301 , 1884 Ky. LEXIS 123 (Ky. Ct. App. Oct. 25, 1884); Kentucky West Virginia Gas Co. v. Maynard, 242 Ky. 490 , 46 S.W.2d 788, 1932 Ky. LEXIS 300 ( Ky. 1932 ).

Presumption in favor of sheriff’s return does not arise when the return is made by a special bailiff. Barbour v. Newkirk, 83 Ky. 529 , 7 Ky. L. Rptr. 555 , 1886 Ky. LEXIS 4 (Ky. Ct. App. 1886); Simms v. Simms, 88 Ky. 642 , 11 S.W. 665, 11 Ky. L. Rptr. 131 , 1889 Ky. LEXIS 81 (Ky. Ct. App. 1889); Gardner v. Lincoln Bank & Trust Co., 251 Ky. 109 , 64 S.W.2d 497, 1933 Ky. LEXIS 830 ( Ky. 1933 ).

Certificate and return are presumed to be true as to all certified or necessary facts. Smith v. Ryan, 88 Ky. 636 , 11 S.W. 647, 11 Ky. L. Rptr. 128 , 1889 Ky. LEXIS 75 ( Ky. 1889 ); Board of Councilmen v. Mason & Foard Co., 100 Ky. 48 , 37 S.W. 290, 18 Ky. L. Rptr. 543 , 1896 Ky. LEXIS 144 ( Ky. 1896 ); Alexander v. Aud, 121 Ky. 105 , 88 S.W. 1103, 28 Ky. L. Rptr. 69 , 1905 Ky. LEXIS 185 ( Ky. 1905 ); Husbands v. Polivick, 128 Ky. 652 , 96 S.W. 825, 29 Ky. L. Rptr. 890 , 1906 Ky. LEXIS 250 ( Ky. 1906 ); Stephens v. Perkins, 209 Ky. 651 , 273 S.W. 545, 1925 Ky. LEXIS 569 ( Ky. 1925 ); Tackett v. Mayo, 210 Ky. 299 , 275 S.W. 866, 1925 Ky. LEXIS 662 ( Ky. 1925 ); Givens v. Turner, 272 Ky. 211 , 113 S.W.2d 1166, 1938 Ky. LEXIS 104 ( Ky. 1938 ); Kitchen, Whitt & Co. v. Fannin, 273 Ky. 62 , 115 S.W.2d 325, 1938 Ky. LEXIS 578 ( Ky. 1938 ).

Under KRS 134.570 and this section, the regularity of tax sales is presumed until the contrary is shown. Moseley v. Hamilton, 136 Ky. 680 , 124 S.W. 894, 1910 Ky. LEXIS 529 ( Ky. 1910 ). See Brown v. Harvey Coal Corp., 49 F.2d 434, 1931 U.S. Dist. LEXIS 1312 (D. Ky. 1931 ), aff'd, 61 F.2d 624, 1932 U.S. App. LEXIS 4359 (6th Cir. Ky. 1932 ); Kentucky Lands Inv. Co. v. Simmons, 146 Ky. 588 , 143 S.W. 43, 1912 Ky. LEXIS 137 ( Ky. 1912 ); Anderson v. Daugherty, 169 Ky. 308 , 183 S.W. 545, 1916 Ky. LEXIS 681 ( Ky. 1916 ); Stamps v. Frost, 179 Ky. 418 , 200 S.W. 609, 1918 Ky. LEXIS 214 ( Ky. 1918 ); Jones v. Johnson, 223 Ky. 478 , 3 S.W.2d 1064, 1928 Ky. LEXIS 353 ( Ky. 1928 ), limited, Brown v. Harvey Coal Corp., 49 F.2d 434, 1931 U.S. Dist. LEXIS 1312 (D. Ky. 1931 ).

Recitals in certificate are prima facie true. Eversole v. Kentucky River Coal Corp., 189 Ky. 471 , 225 S.W. 50, 1920 Ky. LEXIS 453 ( Ky. 1920 ).

Unless attacked for fraud or mistake, date of execution will be presumed to be as recited. Slater v. Hatfield, 195 Ky. 281 , 242 S.W. 618, 1922 Ky. LEXIS 338 ( Ky. 1922 ); Kentucky West Virginia Gas Co. v. Maynard, 242 Ky. 490 , 46 S.W.2d 788, 1932 Ky. LEXIS 300 ( Ky. 1932 ); Givens v. Turner, 272 Ky. 211 , 113 S.W.2d 1166, 1938 Ky. LEXIS 104 ( Ky. 1938 ).

Presumption is in favor of the validity of the officer’s act. Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ); Brown v. Elk Horn Coal Corp., 225 Ky. 288 , 8 S.W.2d 404, 1928 Ky. LEXIS 771 ( Ky. 1928 ); Francis v. Sturgell's Ex'x, 253 Ky. 261 , 69 S.W.2d 357, 1934 Ky. LEXIS 643 ( Ky. 1934 ); Kitchen, Whitt & Co. v. Fannin, 273 Ky. 62 , 115 S.W.2d 325, 1938 Ky. LEXIS 578 ( Ky. 1938 ); Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ).

Bare denial of execution, unsupported by other evidence, held insufficient to overcome presumption of validity of certificate. Marcum v. Wallace, 246 Ky. 726 , 56 S.W.2d 5, 1932 Ky. LEXIS 825 ( Ky. 1932 ); Muscovalley v. Horn, 246 Ky. 778 , 56 S.W.2d 354, 1932 Ky. LEXIS 826 ( Ky. 1932 ); Atkins' Guardian v. McCoy, 263 Ky. 846 , 93 S.W.2d 839, 1936 Ky. LEXIS 242 ( Ky. 1936 ).

Unless attack is made as provided in this section, both due acknowledgment and due execution will be presumed. Atkins' Guardian v. McCoy, 263 Ky. 846 , 93 S.W.2d 839, 1936 Ky. LEXIS 242 ( Ky. 1936 ).

Party’s claim that he was not served with summons was unavailing where sheriff’s return showed service. Hanks v. Hanks, 282 Ky. 236 , 138 S.W.2d 362, 1940 Ky. LEXIS 155 ( Ky. 1940 ).

When deputy sheriff executed process and indorsed copy “Ex Aug. 14,” and the sheriff made out completed return from the indorsement, there is a mere presumption of delivery and not a positive certification, since only the deputy’s indorsement can be considered, and there not being a positive certification, the proof necessary to overcome the presumption need not be clear, strong and convincing. Newsome v. Hall, 290 Ky. 486 , 161 S.W.2d 629, 1942 Ky. LEXIS 419 ( Ky. 1942 ).

In action to quiet title, in which a deed, bearing certificate of acknowledgment of deputy county court clerk, was introduced in evidence as part of chain of title, evidence attempting to establish the nonexecution of the deed was incompetent, since the certificate purported absolute verity to the deed in the absence of a direct attack based on allegations of fraud or mistake. Wells v. Butcher, 299 Ky. 332 , 185 S.W.2d 406, 1945 Ky. LEXIS 418 ( Ky. 1945 ).

Although one defendant claimed he had not been served with process in an action brought ten years later on a default judgment, from the sheriff’s return as indorsed upon the summons reading “executed by delivering a true copy to Arlie Igo, N. E. Greer and N. E. Greer, President of the Gross Motor Company. This June 1st, 1934. Fillmore McKintosh, S.P.C. By John Baker, D.S.” and sheriff’s charge for the service of three (3) copies, it could reasonably be inferred that a copy was delivered to each of the three (3) defendants and that the whole return taken together met the test of sufficiency although the word each or severally might have been more exact and would have rendered the return less indefinite and uncertain and would have prevented any liability toward misconstruction, yet, presuming that the sheriff did his duty, the whole return fairly, and with practical certainty, meant a several and not a joint service. Igo v. Berea Realty & Finance Co., 300 Ky. 526 , 189 S.W.2d 733, 1945 Ky. LEXIS 590 ( Ky. 1945 ).

Mere denial of party that he was served with summons is not sufficient to overcome presumption of validity of officer’s return. A party claiming nonservice of process must allege and prove fraud or mistake, and the proof must be clear, positive and convincing. Taylor v. Howard, 306 Ky. 407 , 208 S.W.2d 73, 1948 Ky. LEXIS 571 ( Ky. 1948 ).

16. — Conclusive.

Clerk’s indorsement of lodging is conclusive, but its effect may be lost when instrument is withdrawn by grantee and intermediate rights arise before actual recording takes place. Webb v. Austin, 58 S.W. 808, 22 Ky. L. Rptr. 764 , 1900 Ky. LEXIS 288 (Ky. Ct. App. 1900).

Certificate is conclusive as to date of acknowledgment. Weisiger v. Mills, 91 S.W. 689, 28 Ky. L. Rptr. 1208 (1906).

Record is not conclusiveness of its genuineness. It is prima facie valid, subject to showing of invalidity. Hager v. Sidebottom, 130 Ky. 687 , 113 S.W. 870, 1908 Ky. LEXIS 310 ( Ky. 1908 ).

Certificate is conclusive that party signed instrument, unless attacked for fraud or mistake. Everman v. Everman, 122 S.W. 135 ( Ky. 1909 ); Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ).

A deed duly certified by an officer under seal is conclusive, in the absence of fraud or mistake. Campbell v. Schorr, 224 Ky. 1 , 5 S.W.2d 278, 1927 Ky. LEXIS 965 ( Ky. 1 927); Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ).

Sheriff’s return of service of summons is not conclusive between the parties in the same proceeding after judgment is rendered. Falsity of return may be shown on motion to set aside judgment. Holcomb v. Creech, 247 Ky. 199 , 56 S.W.2d 998, 1933 Ky. LEXIS 376 ( Ky. 1933 ); Gardner v. Lincoln Bank & Trust Co., 251 Ky. 109 , 64 S.W.2d 497, 1933 Ky. LEXIS 830 ( Ky. 1933 ).

Deputy sheriff’s statement, in return on execution, that he had advertised execution sale as required by statute, was conclusive in absence of proof of fraud or mistake. Feltner v. Colwell, 294 Ky. 581 , 172 S.W.2d 219, 1943 Ky. LEXIS 494 ( Ky. 1943 ).

17. — Parol.

Where the clerk’s certificate shows that a mortgage was executed in the presence of two (2) subscribing witnesses, parol evidence to the effect that the mortgage was not so executed, or that the clerk failed to ask one of the subscribing witnesses if the mortgage was signed in his presence, is not admissible under an allegation of mistake on the part of the clerk. City Bank & Trust Co. v. Planters' Bank & Trust Co., 176 Ky. 500 , 195 S.W. 1124, 1917 Ky. LEXIS 87 ( Ky. 1917 ).

Parol evidence is not admissible to contradict return on search warrant except as provided in this section. Moore v. Commonwealth, 206 Ky. 779 , 268 S.W. 563, 1925 Ky. LEXIS 1050 ( Ky. 1925 ).

18. — Weight.

Certificate of acknowledgment is entitled to more weight than memory of witnesses after lapse of 16 years. Dukes v. Davis, 125 Ky. 313 , 101 S.W. 390, 30 Ky. L. Rptr. 1348 , 1907 Ky. LEXIS 299 ( Ky. 1907 ).

Recitals in commissioner’s deed, where the primary evidence has been destroyed, are more convincing than the mere recollection of witnesses after a long term of years. Eversole v. Baker, 217 Ky. 15 , 288 S.W. 758, 1926 Ky. LEXIS 2 ( Ky. 1926 ).

19. — Sufficiency.

Testimony, unsupported, ten years afterwards, is not sufficient to overcome the return of the officer in a collateral proceeding. Amos v. Massey, 140 Ky. 54 , 130 S.W. 950, 1910 Ky. LEXIS 172 ( Ky. 1910 ).

Where notary testified that defendant did sign and acknowledge deed, and he was not impeached, denial by defendant supported only to a limited extent by corroborating circumstances was not sufficient to prove forgery. Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ).

In absence of showing that officer taking acknowledgment knew the party actually acknowledging or the party named as having acknowledged, testimony that acknowledgment was not made by the person named in the certificate is sufficient to show mistake. Clark v. Taylor, 289 Ky. 480 , 158 S.W.2d 961, 1941 Ky. LEXIS 34 ( Ky. 1941 ).

The mere proof that the certificate of acknowledgment is false, along with the signature “by mark” and the death of the supposed signer, is as a matter of weighing evidence in and of itself sufficient to establish the fact that the grantor did not execute the instrument. Conley v. Coburn, 297 Ky. 292 , 179 S.W.2d 668, 1944 Ky. LEXIS 703 ( Ky. 1944 ).

In a collateral proceeding, testimony of defendant and his wife that defendant had been served only with a notice to take depositions, and not with a summons, was insufficient to establish mistake in sheriff’s return which recited service of the summons, particularly where deputy sheriff testified positively that he did serve the summons. Pardue v. Spillman, 304 Ky. 718 , 202 S.W.2d 414, 1947 Ky. LEXIS 720 ( Ky. 1947 ).

The mere fact that some of names on summons had a check mark opposite them, while others did not, was not sufficient evidence that the latter had not been served, to overcome officer’s official return. Taylor v. Howard, 306 Ky. 407 , 208 S.W.2d 73, 1948 Ky. LEXIS 571 ( Ky. 1948 ).

Where deed was executed 30 years prior to suit and recorded but land was held and used by grantor and heirs and grantee’s heirs had no knowledge of ownership, evidence was not sufficient to establish that person named in deed as grantee forged or caused to be forged name of notary public to certificate of acknowledgment. Hoagland v. Fish, 238 S.W.2d 133, 1951 Ky. LEXIS 799 ( Ky. 1951 ).

Where the sheriff, through a deputy, made a written report of posting notices of local option election in five (5) conspicuous places in each of three (3) precincts in the city for two (2) weeks before an election in accordance with KRS 242.040 and the report was attacked by pleading mistake in the report, evidence was not sufficiently clear to overcome the deputy’s positive identification of the date of posting and the record of posting. Ligon v. Beeny, 258 S.W.2d 454, 1953 Ky. LEXIS 828 ( Ky. 1953 ).

20. — Burden of Proof.

The extraordinary burden of proof required by Kentucky law to contravert deed on file in public records was not supplied by grantor’s introduction in evidence of what purported to be a carbon copy deed without some information from personal knowledge of the transaction that would establish that the carbon copy which was identical in all essential respects to the deed on file except that it contained a reservation of right to haul coal from other properties onto the conveyed land did in fact represent the conveyance. Hi Hat Elkhorn Coal Co. v. Kelly, 205 F. Supp. 764, 1962 U.S. Dist. LEXIS 4759 (E.D. Ky. 1962 ).

Burden of proof is on person attacking official act. Board of Councilmen v. Mason & Foard Co., 100 Ky. 48 , 37 S.W. 290, 18 Ky. L. Rptr. 543 , 1896 Ky. LEXIS 144 ( Ky. 1896 ); Stamps v. Frost, 179 Ky. 418 , 200 S.W. 609, 1918 Ky. LEXIS 214 ( Ky. 1918 ); Jones v. Johnson, 223 Ky. 478 , 3 S.W.2d 1064, 1928 Ky. LEXIS 353 ( Ky. 1928 ), limited, Brown v. Harvey Coal Corp., 49 F.2d 434, 1931 U.S. Dist. LEXIS 1312 (D. Ky. 1931 ); Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ); Brown v. Elk Horn Coal Corp., 225 Ky. 288 , 8 S.W.2d 404, 1928 Ky. LEXIS 771 (Ky. 1928); Kentucky West Virginia Gas Co. v. Maynard, 242 Ky. 490 , 46 S.W.2d 788, 1932 Ky. LEXIS 300 ( Ky. 1932 ); Billingsly v. Pearcy, 251 Ky. 546 , 65 S.W.2d 699, 1933 Ky. LEXIS 921 ( Ky. 1933 ); Francis v. Sturgell's Ex'x, 253 Ky. 261 , 69 S.W.2d 357, 1934 Ky. LEXIS 643 ( Ky. 1934 ); Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ).

Burden is not on party relying on certificate to prove that the person certifying was an officer, when official capacity is not denied. Crawford v. Crawford, 224 Ky. 535 , 6 S.W.2d 685, 1928 Ky. LEXIS 630 ( Ky. 1928 ).

21. Service.

Where, in an action for declaratory judgment involving a land sale contract, the buyer-defendant did not allege fraud on the seller-plaintiff’s part or mistake of any sort on the deputy sheriff’s part, the buyer-defendant could not claim that she was not served since she did not recall being served. Dressler v. Barlow, 729 S.W.2d 464, 1987 Ky. App. LEXIS 484 (Ky. Ct. App. 1987).

Cited:

Rand v. Rand, 234 F.2d 631, 1956 U.S. App. LEXIS 3734 (6th Cir. 1956); Coleman v. Greer, 343 S.W.2d 584, 1961 Ky. LEXIS 428 ( Ky. 1961 ); Rives v. Pettit, 513 S.W.2d 475, 1974 Ky. LEXIS 371 ( Ky. 1974 ).

1. Application.

Unpublished decision: KRS 61.060 did not apply to a mortgage when the notary acknowledgment was not facially valid under the requirements of KRS 423.130 . Wilson v. CIT Group/Consumer Fin., Inc. (In re Wilson), 318 Fed. Appx. 354, 2009 FED App. 0212N, 2009 U.S. App. LEXIS 6050 (6th Cir. Ky.), amended, reprinted, 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. 2009 ).

1. Construction.

The plain meaning of this section when construed as KRS 446.130 requires the court to construe it is that no person while serving as a member of a state administrative board or commission, including the state real estate commission, can become a candidate for public office. Fink v. Celletti, 616 S.W.2d 38, 1981 Ky. LEXIS 245 ( Ky. 1981 ).

Opinions of Attorney General.

Under KRS 61.080 no incompatibility exists between the office of State Railroad Commissioner and membership on the State Board of Ethics; but, if an election is required to be held for the unexpired term of the Railroad Commissioner pursuant to Const., § 152, an appointee to the Board of Ethics, in view of this section, would have to resign his position on the board if he became a candidate in the election. OAG 74-377 .

The “board or commission” referred to in this section does not refer to all such government positions, but only the Tax Commission, Workers’ Compensation Board, Board of Election Commissioners, Railroad Commission, State Racing Commission and the Public Service Commission as set out in the 1936 Reorganization Act. OAG 74-408 .

The 1982 amendment to this section to provide for equal pay for all board or commission members, governs over KRS 61.784(3) (now repealed), by implication, since it is the later legislation, and the amendment is to be applied prospectively only, as it contains no express declaration of retroactivity. OAG 82-367 .

Research References and Practice Aids

Cross-References.

Board for combined electric and water plant in city of third class, members not to have held public office for two years, KRS 96.172 .

Board for municipal electric plant, members not to have held public office for two years, KRS 96.740 .

City artificial gas commission members not to have held public office for two years, KRS 96.545 .

City recreational commissioners not to run for office during term, KRS 97.120 .

Civil service board in Louisville, members not to hold city office for one year after expiration of term, KRS 90.120 .

State administrative boards and commissions, qualification of members, KRS 12.070 .

1. Construction.

Subsections (1) to (4) of this section do not list all instances of incompatibility. Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ).

This section is the construction placed by the General Assembly on Ky. Const., § 165. O'Mara v. Mt. Vernon, 299 Ky. 401 , 185 S.W.2d 675, 1945 Ky. LEXIS 436 ( Ky. 1945 ).

2. Determination.

Power in incumbent of one office to appoint and remove the incumbent of the other creates incompatibility. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ); Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ).

Offices are incompatible when it is physically impossible to perform all the duties of both offices with care and ability, and when their relation induces a presumption that they cannot be executed with impartiality and honesty. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

There is no incompatibility of office except as prescribed by the Constitution or laws enacted pursuant thereto, or in cases where there is incompatibility of duties in the different positions. Coleman v. Hurst, 226 Ky. 501 , 11 S.W.2d 133, 1928 Ky. LEXIS 121 ( Ky. 1928 ); Talbott v. Park, 256 Ky. 534 , 76 S.W.2d 600, 1934 Ky. LEXIS 440 ( Ky. 1934 ).

The Constitution does not prohibit the same person holding more than one state office, unless the two (2) are incompatible in fact. Coleman v. Hurst, 226 Ky. 501 , 11 S.W.2d 133, 1928 Ky. LEXIS 121 ( Ky. 1928 ); Talbott v. Park, 256 Ky. 534 , 76 S.W.2d 600, 1934 Ky. LEXIS 440 ( Ky. 1934 ); Polley v. Fortenberry, 268 Ky. 369 , 105 S.W.2d 143, 1937 Ky. LEXIS 475 ( Ky. 1937 ).

Aside from any specific constitutional or statutory prohibitions, incompatibility depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them. 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 (2) are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest. Barkley v. Stockdell, 252 Ky. 1 , 66 S.W.2d 43, 1933 Ky. LEXIS 997 ( Ky. 1 933); Polley v. Fortenberry, 268 Ky. 369 , 105 S.W.2d 143, 1937 Ky. LEXIS 475 ( Ky. 1937 ).

Incompatibility exists when the duties of the offices are inconsistent, and where the nature and duties of same are such as to render it improper from consideration of public policy for one incumbent to retain both. Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ).

An important test of incompatibility is whether one office is subordinate to, or subject to supervision by, the other, or where contrariety or antagonism would result by the discharge by one person of the duties of both offices. Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ).

3. State Offices with County and Municipal Offices.

A master commissioner is not a state officer or deputy state officer. Goodloe v. Fox, 96 Ky. 627 , 29 S.W. 433, 16 Ky. L. Rptr. 653 , 1895 Ky. LEXIS 120 ( Ky. 1895 ).

Member of board of bar commissioners is not a state officer and is not ineligible to act as Commonwealth's Attorney. Talbott v. Park, 256 Ky. 534 , 76 S.W.2d 600, 1934 Ky. LEXIS 440 ( Ky. 1934 ).

The members of the board of commissioners of the state bar are not officers within the meaning of Ky. Const., § 165, this section and KRS 61.090 since the board acts merely in an administrative capacity and as an agency of the Court of Appeals, clothed, under its rules, with power to make investigations and return to the Court of Appeals its findings. Dreidel v. Louisville, 268 Ky. 659 , 105 S.W.2d 807, 1937 Ky. LEXIS 510 ( Ky. 1937 ).

The office of special circuit judge is not incompatible with the office of member of the General Assembly. O'Mara v. Mt. Vernon, 299 Ky. 401 , 185 S.W.2d 675, 1945 Ky. LEXIS 436 ( Ky. 1945 ).

Even if acceptance of office as member of General Assembly, by a person holding the office of special circuit judge, vacated the latter office on the ground of incompatibility, defendant in civil suit against whom judgment was rendered by special judge could not complain where special judge was qualified and eligible at the time he began the trial, and no objection was raised by defendant until after judgment had been rendered. O'Mara v. Mt. Vernon, 299 Ky. 401 , 185 S.W.2d 675, 1945 Ky. LEXIS 436 ( Ky. 1945 ).

Under a permissible construction of the terms of Ky. Const., § 165, this section and KRS 61.090 , the office of Senator and deputy sheriff are incompatible and the acceptance of the second office vacates the first but where, being faced with the question, the Senate adopted a resolution recognizing the deputy sheriff as a duly qualified Senator the adoption did not constitute such a clear violation of the Constitution that the courts should rectify the error and the deputy sheriff is entitled to the compensation and allowances withheld by the state treasurer but the judiciary must assume the Senate in good faith will not knowingly permit violations of other constitutional provisions. Raney v. Stovall, 361 S.W.2d 518, 1962 Ky. LEXIS 246 ( Ky. 1962 ).

4. Two County Offices.

Offices of special tax collector and county judge (now county judge/executive) are incompatible. Barkley v. Stockdell, 252 Ky. 1 , 66 S.W.2d 43, 1933 Ky. LEXIS 997 ( Ky. 1 933 ).

Offices of special tax collector and jailer are incompatible. Nichols v. Land, 288 Ky. 693 , 157 S.W.2d 303, 1941 Ky. LEXIS 192 ( Ky. 1941 ).

Offices of special tax collector and sheriff are not incompatible. Nichols v. Land, 288 Ky. 693 , 157 S.W.2d 303, 1941 Ky. LEXIS 192 ( Ky. 1 941). See Barkley v. Stockdell, 252 Ky. 1 , 66 S.W.2d 43, 1933 Ky. LEXIS 997 ( Ky. 1933 ).

There is no constitutional or statutory incompatibility under this section unless the office of member of the county board of election commissioners is in law a local office as distinguished from a state office and it is unnecessary to pass on this question where it is clear that the office of county school board member and county election commissioner are functionally incompatible in that occupancy of both offices by the same person is detrimental to the public interest. Adams v. Commonwealth, 268 S.W.2d 930, 1954 Ky. LEXIS 931 ( Ky. 1954 ).

There is no incompatibility in the offices of regular and special judge insofar as it concerns the incompatibility of duties or the character and relationship of offices or as being in conflict with Ky. Const., §§ 165 or 237 or with this section. Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ).

5. County Offices with Municipal Offices.

Offices of city tax collector and deputy sheriff are incompatible. Keating v. Covington, 35 S.W. 1026, 18 Ky. L. Rptr. 245 (1896).

Offices of city councilman and member of county board of health are incompatible. Vickers v. Sory, 102 S.W. 272, 31 Ky. L. Rptr. 277 (1907).

That a constable is also a city employee does not violate this section. Walling v. Commonwealth, 260 Ky. 178 , 84 S.W.2d 10, 1935 Ky. LEXIS 425 ( Ky. 1935 ).

A member of county board of health who became a city trustee did not automatically forfeit and vacate her board membership, and, at the very least, she was a de facto member and was entitled to perform her duties while in possession of the office. Trimble County Fiscal Court v. Trimble County Bd. of Health, 587 S.W.2d 276, 1979 Ky. App. LEXIS 469 (Ky. Ct. App. 1979).

A deputy circuit clerk is clearly a “deputy (state) officer” and is, thus, precluded from simultaneously serving as an officer of a city. Court of Justice v. Oney, 34 S.W.3d 814, 2000 Ky. App. LEXIS 96 (Ky. Ct. App. 2000).

6. Two Municipal Offices.

Offices of clerk and assessor in the same city are incompatible. Blades v. Falmouth, 124 Ky. 259 , 98 S.W. 1017, 30 Ky. L. Rptr. 420 , 1907 Ky. LEXIS 179 ( Ky. 1907 ).

Offices of school trustee and postmaster are incompatible. Johnson v. Sanders, 131 Ky. 537 , 115 S.W. 772, 1909 Ky. LEXIS 54 ( Ky. 1909 ).

Offices of city councilman and city treasurer in the same city are incompatible. Taylor v. Johnson, 148 Ky. 649 , 147 S.W. 375, 1912 Ky. LEXIS 506 ( Ky. 1912 ).

Offices of city commissioner in one city and statutory city engineer in another city are incompatible. Commonwealth ex rel. Steller v. Livingston, 171 Ky. 52 , 186 S.W. 916, 1916 Ky. LEXIS 298 ( Ky. 1916 ).

Whether office of city commissioner and employment as civil engineer in another city are incompatible in question of fact. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

7. School Offices and Employees.

Offices of school trustee and school teacher are incompatible. Ferguson v. True, 66 Ky. 255 , 1867 Ky. LEXIS 179 ( Ky. 1867 ).

School officials are state officers. Hoskins v. Ramsey, 197 Ky. 465 , 247 S.W. 371, 1923 Ky. LEXIS 663 ( Ky. 1923 ); Commonwealth v. Louisville Nat'l Bank, 220 Ky. 89 , 294 S.W. 815, 1927 Ky. LEXIS 478 ( Ky. 1927 ); Fidelity & Deposit Co. v. Christian County Board of Education, 228 Ky. 362 , 15 S.W.2d 287, 1929 Ky. LEXIS 572 ( Ky. 1929 ); Commonwealth ex rel. Baxter v. Burnett, 237 Ky. 473 , 35 S.W.2d 857, 1931 Ky. LEXIS 623 ( Ky. 1931 ); Tipton v. Commonwealth, 238 Ky. 111 , 36 S.W.2d 855, 1931 Ky. LEXIS 188 ( Ky. 1931 ); Middleton v. Middleton, 239 Ky. 759 , 40 S.W.2d 311, 1931 Ky. LEXIS 847 (Ky. 1931); Board of Education v. Trustees of Buena Vista School, 256 Ky. 432 , 76 S.W.2d 267, 1934 Ky. LEXIS 428 ( Ky. 1934 ); Board of Trustees v. Renfroe, 259 Ky. 644 , 83 S.W.2d 27, 1935 Ky. LEXIS 370 ( Ky. 1935 ); Polley v. Fortenberry, 268 Ky. 369 , 105 S.W.2d 143, 1937 Ky. LEXIS 475 ( Ky. 1937 ).

Offices of graded school board member and city trustee are incompatible. Middleton v. Middleton, 239 Ky. 759 , 40 S.W.2d 311, 1931 Ky. LEXIS 847 ( Ky. 1931 ).

Office of school board member is not incompatible with position of highway maintenance supervisor. Polley v. Fortenberry, 268 Ky. 369 , 105 S.W.2d 143, 1937 Ky. LEXIS 475 ( Ky. 1937 ).

The offices of assistant county school superintendent and teacher or principal of a county school in the same county are incompatible. Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ).

Where same person was appointed county superintendent of schools in two (2) counties, he could, before commencement of terms, resign one appointment; incompatibility of appointments would not be ground for rescinding either appointment before commencement of term. Chestnut v. Reynolds, 291 Ky. 231 , 163 S.W.2d 456, 1942 Ky. LEXIS 201 ( Ky. 1942 ).

Kentucky Revised Statute 164.130 (now repealed) as enacted by the Legislature permitted the Governor to make appointments to the Board of Trustees of the University of Kentucky. There was no limitation in that statute which prohibited the Governor from being a board member or from appointing himself; the Legislature made no exception to the qualified persons whom the Governor could appoint to the at large seats on the Board of Trustees. It would seem apparent that the General Assembly did not intend any such exception to be applicable to the Governor because the Legislature had enacted other statutes to prohibit certain office holders from holding a second office. Commonwealth v. Wilkinson, 828 S.W.2d 610, 1992 Ky. LEXIS 111 ( Ky. 1992 ), overruled in part, Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 2009 Ky. LEXIS 290 ( Ky. 2009 ).

8. Hospital Board Membership.

A member of the hospital board was not a city or county officer or employee thereof within the meanings of this section, KRS 160.180(1)(d) (now (2)(f)), or Ky. Const., § 165. Commonwealth ex rel. Hancock v. Bowling, 562 S.W.2d 310, 1978 Ky. LEXIS 323 ( Ky. 1978 ).

9. Withdrawal of Nomination Required.

Once a candidate has filed papers seeking nomination for public office, that candidate cannot then file papers seeking nomination or election to an incompatible office unless the candidate has first withdrawn his nomination in accordance with KRS 118.212 . Klein v. Doll, 777 S.W.2d 602, 1989 Ky. App. LEXIS 164 (Ky. Ct. App. 1989).

Cited:

Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Young v. Grauman, 278 Ky. 197 , 128 S.W.2d 549, 1939 Ky. LEXIS 394 ( Ky. 1939 ); Somerset v. Caylor, 241 S.W.2d 990, 1951 Ky. LEXIS 1033 ( Ky. 1951 ).

Opinions of Attorney General.

The position of probation and parole officer in the State Department of Welfare must be considered a state office or deputy state office which would make it incompatible with the office of mayor, which is a municipal office. OAG 60-57 .

There are no statutory or constitutional prohibitions against a person holding a county office and state employment at the same time, but they may be incompatible under the common law. OAG 60-106 .

There is no constitutional or statutory incompatibility in a person’s holding two (2) county offices. OAG 60-337 .

Although there is no statutory or constitutional prohibition against a person holding a municipal office and state employment at the same time, there is the possibility that there may be a common law incompatibility where it is physically impossible to perform the duties of both positions with care and ability. OAG 60-443 .

The offices of sheriff and state representative are incompatible. OAG 60-455 .

The fact that the two (2) offices are incompatible would not prevent the present sheriff from becoming a candidate for state representative. OAG 60-455 .

Membership on the McLean County board of education is not incompatible with the position of teacher of vocational agriculture in Muhlenberg County. OAG 60-901 .

Although the positions of county director of pupil personnel and city director of pupil personnel are not incompatible as such, they are incompatible in fact because KRS 159.140(1) requires that a director of pupil personnel must devote his entire time to his duties which he could not do in two (2) such positions. OAG 60-1027 .

There is no statutory or constitutional incompatibility between the position of teacher and the office of county commissioner, but there may be a common law incompatibility. OAG 61-292 .

There is no incompatibility between the office of magistrate and driving a school bus for the county board of education under Ky. Const., § 165 or this section, but there may be a common law incompatibility. OAG 61-390 .

The offices of mayor and police judge in a city of the fifth class cannot be combined. OAG 61-455 .

One person cannot hold two (2) elected offices in a city of the fifth class. OAG 61-455 .

Holding the offices of deputy sheriff and deputy county court clerk at the same time is specifically prohibited. OAG 61-533 .

The offices of treasurer of the school board and city clerk are incompatible. OAG 61-823 .

There was no conflict of interests where a state employee presented a bill for acting as a court reporter and taking and transcribing hearings for the sole use of her department when such work was done outside of the employee’s salaried hours. OAG 61-845 .

The secretary and treasurer of the city board of education and the treasurer of the county board of education were disqualified from serving on the electric plant board. OAG 61-846 .

There is no constitutional or statutory provision which would prohibit a person from serving as a public officer in the state of Ohio and occupying the position of magistrate in this state since Ky. Const., § 165 and this section apply only to the holding of two (2) incompatible offices in this state. OAG 61-948 .

The law prohibits a person from being a state representative and at the same time a deputy sheriff of a county. OAG 61-1001 .

Since a deputy jailer stands in the same position as the jailer insofar as his powers and duties are concerned, the incompatibility between the office of justice of the peace and jailer would likewise apply to the deputy jailer. OAG 62-21 .

One would be prohibited from serving on the county board of health and on the county board of education at the same time since the two (2) offices are incompatible. OAG 62-617 .

Serving in the office of magistrate and as a member of the board of supervisors at the same time would be detrimental to the public interest, in that the board of supervisors executes a quasi judicial function in the review of protested tax assessments. OAG 62-636 .

There is no statutory or constitutional incompatibility in membership on a city-county board of health and membership on the city board of aldermen. OAG 62-684 .

There is no constitutional nor statutory prohibition against persons holding the office of county attorney and county treasurer and at the same time serving as a member of the county building commission. OAG 62-1169 .

A common law incompatibility would exist between the office of county treasurer and the office of county auditor. OAG 63-32 .

It is legal for a soil conservation district to employ a person as an aide although such person was also a member of the fiscal court which levied a tax for the benefit of the district. OAG 63-87 .

The office of magistrate and membership on the county registration and purgation board are incompatible. OAG 63-130 .

There is no constitutional or statutory incompatibility between serving as the civil defense director of a county and being a city councilman at the same time. OAG 63-273 .

The police judge of a city could not be appointed to a state office or a deputy state office without creating an incompatible situation under Ky. Const., § 165 and this section since no person can hold a city office and a state office at the same time. OAG 63-625 .

The provisions of Ky. Const., § 165 and this section do not prohibit a person from holding a city office and state employment at the same time providing there is no common law incompatibility. OAG 63-625 .

The mayor of a fifth class city cannot legally also be a member of the board of water commissioners, receiving a salary for each position. OAG 64-795 .

The office of magistrate and full-time employment as manager of the muncipal utilities commission of the city, a municipal office, are incompatible offices. OAG 65-50 .

Actions taken as a school board member after filing for nomination for the office of sheriff and thus disqualifying himself, would be valid until the school board member resigned or was removed from office. OAG 65-211 .

A member of the school board who files for nomination for the office of sheriff disqualifies himself from serving on the school board. OAG 65-211 .

One city could not contract with another city for the furnishing of police services since it would involve the policemen holding incompatible offices in the two (2) cities. OAG 65-718 .

The offices of county judge (now county judge/executive) and master commissioner do not present incompatibility of office. OAG 65-816 .

The offices of constable and city policeman are incompatible. OAG 65-833 .

A constitutional incompatibility would exist between the position of chief of police and that of chief of the fire department. OAG 66-10 .

There is no incompatibility between holding the office of magistrate and at the same time serving as county democratic chairman. OAG 66-11 .

There is no constitutional or statutory incompatibility between membership on the county fiscal court and membership on the county board of health. OAG 66-87 .

Although no statutory or constitutional incompatibility exists, the office of county commissioner and employment in the county road department would be incompatible under the common law. OAG 66-110 .

The fiscal court could appoint, as the county dog warden, a deputy sheriff who is presently serving in this capacity without there existing an incompatible situation. OAG 66-398 .

No constitutional or statutory incompatibility exists between membership on the school board and membership on the municipal housing commission. OAG 66-673 .

The offices of deputy sheriff, county election commissioner, and jury commissioner are not incompatible under the terms of Ky. Const., § 165 and this section, but there is a possibility of common law incompatibility between the offices of deputy sheriff and jury commissioner. OAG 66-741 .

The office of treasurer of the county board of education and the office or employment of county finance officer are incompatible. OAG 66-754 .

A county treasurer cannot be appointed deputy property valuation administrator and serve in both capacities without creating an incompatible situation. OAG 66-759 .

A county treasurer may not serve simultaneously as county school treasurer. OAG 67-5 .

There is no constitutional nor statutory incompatibility in the holding of the office of county judge (now county judge/executive) and commissioner of a water district at the same time although there would be a common law incompatibility. OAG 67-68 .

The position of housing inspector of a city is incompatible with the office of state representative. OAG 67-81 .

Employment as director of pupil personnel for a district board of education is not incompatible with the position of member on the board of trustees of a public library district. OAG 67-83 .

Holding the office of trustee of the library board and at the same time being a member of the city council creates an incompatible situation. OAG 67-104 .

There is no incompatibility for a member of a city council to serve as campaign manager for a candidate for state office. OAG 67-121 .

The holding of the position of public schoolteacher and the position of member of the board of city commissioners, at the same time, is not constitutionally nor statutorily incompatible. OAG 67-163 .

There is no incompatibility in the holding of the offices of member of the board of education of an independent school district and stenographic reporter for a judicial district. OAG 67-177 .

The offices of member of a city independent board of education and member of the county library board are incompatible. OAG 67-186 .

The offices of member of the county board of education and member of the county library board of trustees are incompatible. OAG 67-186 .

If a city employs a county attorney on a special part-time basis to advise it in certain civil matters, no incompatibility exists. OAG 67-245 .

If a city attempted to employ the county attorney to advise it in all legal matters pertaining to the business of the city, the county attorney would become in fact the city attorney, which in turn would create an incompatible situation. OAG 67-245 .

To be a member of a library district board and a member of a city library board at the same time creates an incompatible situation. OAG 67-458 .

Holding the office of city council member and radio operator for the city police department at the same time creates an incompatible situation. OAG 67-469 .

The office of city attorney and that of state senator are incompatible. OAG 67-517 .

A person may hold the office of Circuit Court Clerk and at the same time be a probation and parole officer. OAG 67-542 .

No incompatibility exists where the Commonwealth’s Attorney is also the master commissioner of a Circuit Court. OAG 67-542 .

A city commissioner may be appointed and hold the office of supervisory head of the Department of Public Safety (now the Department of Justice) while he is a city commissioner, but he may not hold the office of Commissioner of Public Safety (now Secretary of Justice). OAG 67-554 .

To serve in the office of city commissioner and at the same time to be a member of the auxiliary police force creates an incompatible situation. OAG 67-554 .

Membership on the board of regents of a state university is a state office and the Commissioner of the Department of Banking and Securities (now Department of Financial Institutions) is also a state office. OAG 67-557 .

An incompatible situation exists where a constable of a county holds, at the same time, the position of auxiliary police officer. OAG 68-12 .

There is no prohibition against a person being a member of the county board of education and at the same time holding a position with the Commonwealth. OAG 68-21 .

A member of the Council on Public Higher Education (now Council on Higher Education) must resign his position at the time he becomes a member of the Louisville board of aldermen. OAG 68-22 .

The position of assistant commissioner of insurance and that of city councilman are compatible. OAG 68-30 .

A night watchman with the state may hold the office of justice of the peace. OAG 68-33 .

The office of Commonwealth’s Attorney and that of referee of the Workmen’s (now Workers’) Compensation Board are not incompatible. OAG 68-56 .

Since the position of county policeman is a county office and the position of city councilman is a city office, an incompatibility would exist if an individual would hold both offices at the same time. OAG 68-72 .

Although there is no constitutional or statutory incompatibility between the office of county judge (now county judge/executive) and county treasurer, there is incompatibility in fact or under common law between the two (2) offices since the office of county treasurer is subordinated to the office of county judge (now county judge/executive). OAG 68-80 .

A city councilman cannot serve at the same time as an auxiliary deputy sheriff without vacating his position on the city council pursuant to KRS 61.090 . OAG 68-195 .

An incompatible situation exists if a member of a volunteer police department also served, at the same time, as a deputy sheriff. OAG 68-197 .

An incompatible situation would exist if a member of a city police department were deputized and sworn in as a sheriff’s deputy. OAG 68-197 .

There is no statutory or constitutional incompatibility against a person holding the position of secretary to the superintendent of the district board of education and at the same time holding the position of secretary-bookkeeper for the head start program of that school district. OAG 68-200 .

The office of county school board member is incompatible with employment as county road supervisor. OAG 68-210 .

If water, gas and sewer commission members are also members of the city council, an incompatible situation is created. If the members of the utility commission are mere employees, there is no incompatibility. OAG 68-228 .

Because of the incompatibility involved, the employment and compensation of an assistant Commonwealth’s Attorney in connection with his furnishing legal advice in criminal matters to the city would not be legal. OAG 68-290 .

A city attorney cannot be appointed at the same time an assistant county attorney since the latter would constitute a county office. OAG 68-309 .

A county attorney could be employed to represent a city within the county in annexation proceedings so long as he was not hired as city attorney on a full-time basis. OAG 68-400 .

Since the office of county treasurer is a county office and the position of a police judge of a city of the sixth class is a municipal office, the two (2) offices are incompatible and no individual can hold both offices at the same time without violating the provisions of this section. OAG 68-403 .

A person who is the Commonwealth’s Attorney may at the same time be employed on a part-time basis by the board of veterinary examiners. OAG 68-447 .

The office of chairman of the board of trustees of a sixth class city is incompatible with the office of police judge. OAG 68-453 .

If a member of a city council is appointed or elected to the office of sheriff, constable, coroner, jailer, marshal or policeman, or appointed as a deputy in such office, an incompatible situation is created. OAG 68-550 .

There is no statutory or constitutional incompatibility between the position of member of the board of trustees of a public library district and the position of head officer of a state university community college. OAG 68-568 .

The position of executive director or assistant executive director of a municipal housing commission is state employment and there is no incompatibility between these positions and the office of school board member. OAG 68-599 .

A school teacher may legally serve at the same time as an election officer. OAG 68-601 .

There is no constitutional nor statutory prohibition against a school teacher holding the office of magistrate but a common law incompatibility would exist. OAG 68-607 .

A vacancy on a county purgation board may be filled by appointing an employee of the Commonwealth, since the membership on the county purgation board constitutes a state office. OAG 69-11 .

The office of county clerk is incompatible with membership on the Commission on Higher Education. OAG 69-15 .

Membership on a municipal housing commission is a state office, and, as such, there would be no constitutional nor statutory incompatibility involved in also holding at the same time membership on the Commission on Higher Education. OAG 69-15 .

While membership on the Council on Public Higher Education (now Council on Higher Education), established pursuant to KRS 164.010 (now repealed), would constitute the holding of a state office, membership on a consolidated planning and zoning commission is neither a city, county nor a state office as contemplated by either Ky. Const., § 165 or this section, so that no constitutional or statutory incompatibility exists that would prohibit a person from holding both offices at the same time. OAG 69-19 .

If a state employee was under the merit system he would be prohibited from becoming a candidate for any paid political office, but no such restriction would pertain to a nonmerit system employee. OAG 69-89 .

An employee of the school system may seek and hold the office of county commissioner. OAG 69-94 .

There are no constitutional nor statutory provisions that make the position of highway employee and the position of member on the county registration and purgation board incompatible. OAG 69-136 .

A member of a state university faculty and staff may hold at the same time the office of county commissioner. OAG 69-147 .

A school teacher may hold at the same time the office of property valuation administrator. OAG 69-158 .

Neither a policeman nor a town marshal can serve at the same time as a deputy sheriff. OAG 69-162 .

The auditor of public accounts may be at the same time a stockholder or director in private businesses and charitable organizations. OAG 69-164 .

There is no incompatibility between the office of state auditor and membership on the local air board. OAG 69-164 .

An employee of a county road department may hold at the same time the office of county constable. OAG 69-186 .

Since the office of master commissioner is an office of the court and therefore, neither a state nor county office, there is no incompatibility between this office and that of Circuit Court Clerk. OAG 69-221 .

A city policeman cannot serve at the same time as a deputy sheriff. OAG 69-303 .

The office of mayor and that of city commissioner are incompatible. OAG 69-358 .

Since the office of hearing officer or examiner for the Workmen’s (now Workers’) Compensation Board is a state office and the office of county judge (now county judge/executive) pro tem is a county office, they are incompatible, one with the other. OAG 69-364 .

A person serving a city municipal water and sewer commission as their attorney for the past four years pursuant to a contract based on a monthly retainer may serve at the same time as county attorney. OAG 69-420 .

The holding of the office of county judge (now county judge/executive) and the holding of the office of property valuation administrator at the same time would present a statutory and constitutional incompatibility. OAG 69-432 .

There is no provision under the Kentucky statutes or Constitution prohibiting a school teacher or principal from serving on a city commission. OAG 69-448 .

The holding of the offices of county attorney and member of the Kentucky Zoning Commission at the same time would present a constitutional and statutory incompatibility. OAG 69-454 .

There is no constitutional or statutory provision prohibiting a member of the housing commission from being employed on a part-time basis by the commission. OAG 69-483 .

There is no constitutional or statutory provision that prohibits a teacher in the public schools from running for the nomination of city commissioner and serving as such if elected. OAG 69-485 .

A department head at a state university not only may become a candidate for the office of city commissioner but also may serve as such. OAG 69-486 .

A member of the fiscal court may, at the same time, serve as master commissioner. OAG 69-491 .

A school teacher or principal of a school may serve at the same time on the city commission. OAG 69-519 .

A conservation officer is a state officer and cannot be at the same time a deputy sheriff. OAG 69-545 .

An incompatibility would exist if an individual was the county treasurer and at the same time was a member of the county purgation board. OAG 69-556 .

A member of the volunteer fire department may be at the same time a member of the city council. OAG 69-558 .

The office of county chief of police and that of county election commissioner are not incompatible. OAG 69-565 .

As between the office of county judge (now county judge/executive) and the position of school district transportation officer, there is no incompatibility. OAG 69-601 .

A field supervisor for the welfare department may be at the same time an election officer. OAG 69-608 .

A member of the police department in a city of the second class could neither become a candidate for membership on the local school board nor hold such office and retain his position on the city police force. OAG 69-634 .

A member of the city council may at the same time hold the office of master commissioner or deputy commissioner of the Circuit Court. OAG 69-637 .

A member of the state Legislature may represent the municipal water company in legal matters when the occasion arises because he would be considered an independent contractor. OAG 69-653 .

A county constable may legally lease and operate the county poor farm. OAG 69-671 .

An individual may hold the position of special prosecutor in a city of the fifth class and at the same time hold the office of police judge in another city. OAG 69-685 .

A person could hold the position of public health nurse and at the same time serve as deputy jailer in an adjoining county without creating an incompatible situation. OAG 69-694 .

A magistrate may be employed as a school bus driver by the county board of education while he is serving as magistrate. OAG 70-2 .

A county treasurer may hold at the same time the office of cashier of the food stamp program for such county. OAG 70-10 .

The office of city attorney is a city office and the office of trial commissioner is a county office, hence there is an incompatibility. OAG 70-27 .

The director of pupil personnel for a county board of education may serve at the same time as deputy coroner of that same county. OAG 70-31 .

The mayor of a city may serve as fire chief or as fireman of a volunteer fire department even though the city has a contract with the volunteer fire department for fire protection under KRS 75.050 . OAG 70-32 .

A radio dispatcher for the police department not possessing the powers of a police officer, such as making arrests, serving warrants, etc., may hold at the same time the office of pro tem judge of the police court. OAG 70-53 .

No person can serve at the same time as a county officer and a municipal officer. OAG 70-143 .

A city elementary school principal may at the same time hold the office of city councilman in a city of the fourth class. OAG 70-183 .

A member of the county planning and zoning commission may at the same time, serve as police court judge pro tem of a city. OAG 70-186 .

Since the deputy jailer and jailer have the same powers and duties, the offices of constable and deputy jailer are incompatible. OAG 70-256 .

A member of the city council may not serve at the same time as city tax assessor. OAG 70-311 .

Nothing statutorily nor constitutionally prohibits a member of the municipal housing commission from serving at the same time on the state board of elections. OAG 70-315 .

No incompatibility would exist were a person to serve as coroner and election officer at the same time. OAG 70-325 .

An individual can legally serve on the city-county youth commission and at the same time run for and hold membership on the local school board. OAG 70-391 .

The position of secretary-treasurer of the Louisville sinking fund, a municipal office, and membership of the Kentucky Authority for Educational Television, a state office, are incompatible. OAG 70-409 .

The position of dog warden and county patrolman are county offices and there would be no constitutional or statutory provision that would prohibit a person from holding both offices at the same time. OAG 70-431 .

Any county official, except a member of the fiscal court, may be appointed to the joint riverport authority and no statutory nor constitutional incompatibility would exist. OAG 70-432 .

A member of the municipal housing commission can serve at the same time as a member of the local school board. OAG 70-444 .

A justice of the peace cannot be appointed county judge (now county judge/executive) pro tem. OAG 70-446 .

There is no constitutional or statutory prohibition against a highway employee as a night watchman serving as a deputy sheriff. OAG 70-457 .

A school board member could not be hired by the county judge (now county judge/executive) to operate, manage or drive a county ambulance. OAG 70-478 .

No constitutional or statutory incompatibility exists between holding the offices of both dog warden and county constable. OAG 70-492 .

There is no statutory or constitutional incompatibility in a fiscal court employing the sheriff and/or his deputies to operate a county ambulance but there may be a common-law or practical incompatibility. OAG 70-544 .

A person can become a candidate for school board membership and at the same time continue to serve on the city commission. OAG 70-558 .

An elected constable of a county could not legally accept and hold a position as police officer for a city. OAG 70-583 .

Accepting a commission as a Kentucky colonel while holding a state or local office would not create an incompatible situation. OAG 70-607 .

No incompatibility would exist if a notary public were to hold another public office. OAG 70-607 .

A member of the fiscal court cannot also serve as county judge (now county judge/executive) pro tem. OAG 70-621 .

A person would be prohibited from serving on a county board of health and on the board of education at the same time without forfeiting the first office he held. OAG 70-632 .

If a police commission was established by ordinance wherein the commissioners were established as minor officers of the city, incompatibility would exist if members of the city council were appointed to the police commission. OAG 70-642 .

No incompatibility would exist where a person served on both the city council and the police commission if the police commission was simply established by resolution as an advisory body only and without specific powers. OAG 70-642 .

The positions of police judge and policeman would be incompatible. OAG 70-652 .

An individual may not at the same time hold the office of school board member and hold employment with a city. OAG 70-663 .

There is no constitutional or statutory provision that would prohibit a member of the county board of education from being appointed as a director or member of a water district. OAG 70-723 .

Membership on a joint recreational commission established pursuant to KRS 97.035 would constitute neither a city nor county office but would be a hybrid office not contemplated by either Ky. Const., § 165 or this section. OAG 70-731 .

There would be no constitutional or statutory provision that would prohibit one from serving as city attorney and at the same time serving on a joint recreational commission. OAG 70-731 .

A member of the board of trustees of a sixth-class city could not serve as deputy marshal of the city at the same time. OAG 70-804 .

There appears to be no constitutional or statutory incompatibility nor any conflict with merit system law in the holding of the office of board member in an independent school district and a position of employment with the Department of Corrections. OAG 70-811 .

A city may not employ a part-time deputy from another city to serve as such on a part-time basis because this section prohibits a person from holding two (2) municipal offices at the same time. OAG 71-12 .

A deputy marshal serving as such in two (2) different cities would be in violation of the statute. OAG 71-12 .

There is no statutory or constitutional incompatibility between being a member of the city council and holding a position with the state as a car inspector. OAG 71-56 .

There is no statutory or constitutional incompatibility between being a school principal and serving on the city council. OAG 71-56 .

There is no statutory or constitutional incompatibility between serving as mayor of a city and holding a position as county road foreman with the state Department of Highways. OAG 71-56 .

There is no constitutional or statutory incompatibility in a deputy sheriff being at the same time an employee of the state highway department. OAG 71-65 .

Although a fifth-class city and a sixth-class city could not hire the same policemen, under the Interlocal Cooperation Act, they could form a joint system of police protection. OAG 71-85 .

There is no constitutional or statutory incompatibility between holding a position of schoolteacher and holding the office of police judge at the same time. OAG 71-108 .

Where a city policeman is appointed a deputy sheriff, an incompatibility would exist under this section and under KRS 61.090 he vacated his office as city policeman; however, if he refused to vacate his office as policeman, a proceeding in court might be necessary to oust him. OAG 71-153 .

The offices of city treasurer and county soil and water conservation district supervisor under KRS 262.200(2) are not incompatible. OAG 71-230 .

No person can serve as a policeman for two (2) different cities at the same time without creating an incompatible situation. OAG 71-236 .

There is no statutory prohibition against a person serving as county judge (now county judge/executive) and at the same time being employed by the county board of education and the county clerk’s office. OAG 71-247 .

There would be no incompatibility between a principal and director of pupil personnel, which is a form of state employment, serving on a municipal civil service commission. OAG 71-305 .

There would be no constitutional or statutory incompatibility to prevent a city policewoman from being hired by the county fiscal court to search female prisoners. OAG 71-306 .

A city clerk-treasurer could not be appointed to serve as police judge pro tem in the absence of the regular police judge because it would constitute holding two (2) municipal offices. OAG 71-343 .

There is no constitutional or statutory objection to an employee of the city water and sewer department also serving as a part-time police officer for the city. OAG 71-343 .

Although there is no statutory or constitutional incompatibility between serving as police court judge and in the appointed position of railroad policeman, a common-law incompatibility may exist. OAG 71-427 .

No constitutional or statutory incompatibility exists between the positions of the paying public office of city commissioner and a paying professorship at Western Kentucky University. OAG 71-443 .

A person could not serve as a member of the city council and also serve as a member of the city parks commission. OAG 71-462 .

For libraries created pursuant to KRS 173.300 to 173.410 , membership on the library board would be incompatible with membership on the city council. OAG 71-462 .

There would be no incompatibility between serving as city councilman and membership on the county riverport authority. OAG 71-462 .

There is no constitutional or statutory conflict to prevent a state representative, as a major stockholder or an agent for a corporation in which he is a stockholder in a rest home, to operate that rest home and accept indigent patients under contract from the county fiscal court. OAG 71-463 .

If a volunteer fire department is a municipal fire department governed by KRS Ch. 95, the fire chief would be prohibited from also serving as a member of the city council. OAG 71-488 .

The position of city councilman of a city of the fourth class and the position of police chief of a city of the fifth class are incompatible under the statute. OAG 71-502 .

This section does not prohibit the mayor from being a member of a city-county hospital board. OAG 72-18 .

There would be an incompatibility under this section if the city solicitor of Newport was appointed city attorney of Highland Heights pursuant to KRS 69.580 (now repealed). OAG 72-61 .

The offices of mayor of a fourth-class city and deputy sheriff of the county containing the said fourth-class city are incompatible under this section. OAG 72-105 .

If the position of superintendent of a state park is considered a state office then a person holding such office may not also be a deputy sheriff, however, if this position is regarded only as a form of state employment, then a person may hold both this position and that of deputy sheriff at the same time. OAG 72-259 .

If, in part, the position of state park ranger is a state office there is a conflict in a person holding such office and also holding the office of city policeman and in such case KRS 61.090 would provide that a person holding both offices would vacate his first office as city policeman by acceptance of the position as a ranger. OAG 72-276 .

There is no incompatibility under this section in appointing a special local peace officer as a deputy sheriff. OAG 72-315 .

This section would not prohibit a special police officer appointed under KRS 61.360 from also simultaneously holding a municipal office of town marshal in a city of the fourth class. OAG 72-321 .

There is no violation of this section where the mayor is also an employee of the Commonwealth of Kentucky. OAG 72-350 .

There is no violation of this section where a county jailer also serves as the county dog warden. OAG 72-351 .

A policeman, who is considered a municipal officer, may not at the same time hold the position of constable. OAG 72-364 .

Where a mayor also operates the water and sewer system for the city he may not hold both offices if the management of the sewer system is a minor city office but he may hold both offices if his management position is merely a form of employment. OAG 72-364 .

There is no violation of this section where a city policeman is employed in his off duty hours as a special local peace officer. OAG 72-391 .

Under this section a city jailer may not fill in as a city policeman. OAG 72-399 .

This section would not prevent a deputy sheriff or deputy county clerk from serving as an election officer. OAG 72-403 .

City councilman could not serve as city police judge when the regular police judge cannot attend court. OAG 72-414 .

There is no incompatibility between the office of city councilman and employee of the housing commission. OAG 72-467 .

This section would not prohibit the appointment of a member of the board of levee commissioners to the Hickman-Fulton county riverport authority, as both entities constitute independent bodies politic and corporate entities. OAG 72-518 .

This section would prohibit the appointment of a member of the city council to the city playground and recreation board. OAG 72-528 .

There would be no incompatibility if a member of the municipal housing authority were appointed housing inspector by the urban renewal agency. OAG 72-589 .

A person could not at the same time serve on the city’s park and recreation board and be a member of the local board of education. OAG 72-618 .

This section would not apply to a situation where a county attorney has made a contract with a city to advise the city on matters of a civil nature on a month to month basis. OAG 72-634 .

There is no violation of this section where a member of a city board of aldermen is a part-time paid faculty member of the University of Louisville. OAG 72-654 .

A school board member may serve on an agricultural stabilization conservation committee. OAG 72-683 .

A member of a city council could not serve at the same time as a member of the board of electrical control. OAG 72-690 .

An employee of the office of the auditor of public accounts may serve as a member of an independent school board. OAG 72-692 .

A city attorney may not also serve as a hearing officer for the Workmen’s (now Workers’) Compensation Board. OAG 72-698 .

A member of the fiscal court may be appointed to serve on a joint city-county planning commission simultaneously. OAG 72-704 .

A county property valuation administrator may not act as city tax assessor within the county in which the administrator has been elected. OAG 72-736 .

A mayor may not at the same time hold a part-time position as a juvenile probation officer. OAG 72-761 .

A person may hold the office of mayor while holding a job under a federally financed school program. OAG 72-796 .

A position on the state game and fish commission would be incompatible with a position on a city civil service commission. OAG 72-808 .

The position of city judge pro tem is incompatible with membership on a city civil service commission. OAG 72-808 .

The position of county coroner and that of membership of the Kentucky State Board of Chiropractic Examiners would be incompatible. OAG 72-839 .

An assistant county attorney may not serve at the same time as a judge pro tem in the city police court in the same county. OAG 73-29 .

There is no conflict where a person serves at the same time as county juvenile court judge and attorney for a public school board of education within the same county. OAG 73-35 .

Although a school board employee is a state employee, he is not one under the merit system as established by KRS Chapter 18 (now repealed) and neither this section nor Ky. Const., § 165, which define incompatible officers, forbids a school board employee from serving as a city councilman. OAG 73-144 .

There is no constitutional provision under Ky. Const., § 165, or statutory provision prohibiting a person from holding a county office and county employment at the same time and any possible common-law conflict of interest where the person could not perform the duties of both offices at the same time with care and ability would be a question of fact for the courts to decide. OAG 73-166 .

There is no apparent common-law conflict when a magistrate drives a school bus as driving a school bus is state employment and a magistrate is a county officer; thus there is no constitutional or statutory conflict. OAG 73-212 .

A member of the Fish and Wildlife Commission holds a state office, and may not hold the office of deputy sheriff at the same time. OAG 73-224 .

If a superintendent of parks has been made a state park ranger as authorized by KRS 148.056 , he would become a minor state officer, and would thus be ineligible to continue with the office of deputy sheriff. OAG 73-224 .

If an election officer is a county officer and if he holds municipal office while serving as an election officer, the two (2) positions are incompatible. OAG 73-256 .

Although Ky. Const., § 165 and this section prohibit a person from holding two (2) municipal offices at the same time, so that holding a municipal office and city employment is permissible, anyone can serve as city judge while being employed in a nonelective capacity for which a salary is paid by the same city. OAG 73-256 .

A fifth-class city policeman on a monthly salary could continue to hold his position until he assumes the office of sheriff insofar as this section and Ky. Const., § 165, are concerned. OAG 73-346 .

No constitutional or statutory provision prohibits a person from holding a city office and state employment at the same time. OAG 73-440 .

Auxiliary police officer of city could not at the same time hold the position of county juvenile officer. OAG 73-468 .

Commonwealth detective would be considered a state officer, and such office is not compatible with position of auxiliary or reserve policeman of a city. OAG 73-468 .

The mayor of a fifth-class city is a municipal officer and may not at the same time hold a position of county judge (now county judge/executive) pro tem or be a member of the county board of health. OAG 73-548 .

Although a city alderman clearly holds a municipal office, this section does not preclude his appointment for compensation as a county road viewer under KRS 178.070 , his appointment as a commissioner in a condemnation action under KRS 416.020 (repealed), or his employment to appraise real estate or to act as an agent for the county in acquiring land for a public project, since none of these employments amounts to filing a county office nor do they comprise the holding of public office as defined in Howard v. Saylor, 305 Ky. 504 , 204 S.W.2d 815, 1947 Ky. LEXIS 852 (1947). OAG 73-555 .

Although this section and Ky. Const., § 165 prohibit a person from holding two (2) municipal offices at the same time, the term municipal office must be distinguished from municipal employment and where a chief of police of a city is also employed as manager of the city’s sanitation and street department, two (2) municipal offices are not involved (affirming OAG 38-504 and OAG 71-343 ). OAG 73-556 .

A common-law incompatibility would exist if a person were to serve as magistrate and at the same time serve as assistant doorkeeper during the legislative session, because the office of magistrate requires that he be accessible at all times to those who need warrants issued and who desire to bring civil suits in the magisterial district which he serves. OAG 73-661 .

Where a county and a city through a joint operation create a garbage and refuse disposal district, the board of directors composed of four members of which one is a mayor of the city and another is a member of the city council there is no incompatibility as to these two (2) board members because the two (2) municipal officers are not county officers in the strict sense. OAG 73-667 .

While both Ky. Const., § 165, and this section prohibit a person from holding two (2) municipal offices at the same time, there would be no incompatibility if a member of the town council served as a member of the board of trustees of a fire prevention district since the latter is not equivalent to a municipality but is merely a separate taxing district under KRS 75.040 . OAG 73-711 .

As the office of county attorney is a county office under the Constitution and the office of master commissioner has been held to be an office of the court and therefore neither a state nor county office, there would be no statutory or constitutional incompatibility were a person to serve in both capacities. OAG 73-783 .

Sheriff is a county office under the Constitution and under KRS 70.540 , counties are authorized to establish a county police department, the personnel of which would be considered county officers and, while there would be no incompatibility under this section, it is doubtful that the sheriff could at the same time serve as chief of the county police department and perform the duties of both offices with care and ability. OAG 73-783 .

A town marshal is a city peace officer and a deputy sheriff is a county officer therefore one person could not serve in these offices at the same time. OAG 73-795 .

A deputy county coroner may not serve simultaneously as a city commissioner of a fourth-class city operating under the commission form of government. OAG 73-807 .

As there is no prohibition against a person holding a municipal office and at the same time serving as an employee of the city or performing services as an independent contractor, a prosecuting attorney could contract with the city to perform those legal services normally assigned to the city attorney until a qualified attorney could be appointed to that position. OAG 73-815 .

The offices of constable and deputy sheriff are incompatible so that a person elected constable could not legally hold the office of deputy sheriff at the same time. OAG 73-834 .

As this section prohibits a person from holding the office of deputy sheriff and constable at the same time, it is illegal for a sheriff-elect to hire the incumbent sheriff who has been elected a constable, also Ky. Const., § 99, specifically prohibits an outgoing sheriff from being a deputy sheriff for the succeeding term. OAG 73-836 .

As no person can fill two (2) municipal offices, either in the same or different municipalities, individual would be prohibited from membership on the board of trustees of a sixth-class city while acting as city attorney of a fifth-class city but where a city had no attorney qualified to be appointed city attorney, such individual could contract as special counsel to perform the duties of the city attorney in which case he would be considered either an employee of the city or an independent contractor and not an officer of the city so there would be no incompatibility. OAG 73-838 .

Incompatibility exists where a person is a member of the General Assembly and also holds the office of city attorney. OAG 73-851 .

Person assuming the office of county attorney may not simultaneously hold the office of city attorney, but may furnish legal services to the city on a contract basis. OAG 73-852 .

While it is possible for a sixth-class city to employ the county attorney on a contract basis, there may exist a question of legal ethics which should be resolved by the Kentucky Bar Association where there is another attorney living in the county. OAG 73-852 .

As members of the state athletic commission are state officers and the position of assistant director of buildings and maintenance for Jefferson County constitutes a form of county employment and as a person is prohibited from holding a state office and county employment at the same time, these positions are incompatible. OAG 74-4 .

Positions as state parole officer and part-time alcoholic beverage control agent for the city of Louisville on Sunday are incompatible, one being a state office, the other being a municipal office. OAG 74-24 .

As the position of sanitarian for the county health department is county employment, there is no conflict in holding this job and the position of county deputy sheriff simultaneously. OAG 74-46 .

City council member may serve concurrently as the city alcoholic beverage commissioner if such duties are assigned by the city council to one of the council members as provided by KRS 241.160 , but if the office is created by ordinance the office is a municipal office and this section and Ky. Const., § 165, prohibit a person from filling two (2) municipal offices at the same time. OAG 74-82 .

While county election board member and county judge (now county judge/executive) pro tem are both county officers, there is no provision that would prevent a person from holding both of these offices at the same time as section sets out the county offices that can’t be held simultaneously. OAG 74-91 .

As it appears from KRS 179.020 and KRS 179.060 that the county engineer is not a county officer and neither this section nor Ky. Const., § 165, prohibit a person from holding a form of county employment and a city office, there is no incompatibility nor conflict of interest with the city hiring as city engineer the person presently serving as county engineer. OAG 74-92 .

Although KRS 26.270 (repealed) provides that the legislative body of a sixth-class city shall provide by ordinance who shall act in the place of the police judge, the legislative body cannot designate a councilman to act in the place of the police judge since both a city councilman and a city police judge are municipal officers and both subsection (4) of this section and Ky. Const., § 165 state that no person, shall at the same time, fill two (2) municipal offices, either in the same or different municipalities. OAG 74-124 .

Although Ky. Const., § 165 and this section state that no person shall at the same time fill two (2) municipal offices, either in the same or different municipalities, there are no legal prohibitions against holding the position of police chief and the position of city manager at the same time since a police chief is a city officer and according to KRS 89.560 (now repealed) a city manager is an employee of the city rather than a city officer. OAG 74-125 .

There is no violation where one man is employed by the Lexington police department and serves part-time as a deputy sheriff for Clark County since the new form of local government embracing Lexington and Fayette County was not contemplated within the terms of this statute. OAG 74-207 .

Where a man was a city fireman and a member of a county volunteer fire department, no incompatibilities arose under this section by holding the office of county constable. OAG 74-240 .

Where councilman was assigned duties of city alcoholic beverage control administrator pursuant to KRS 241.160 , such assignment did not result in the councilman occupying two (2) offices in violation of this section, since no new city office had been created. OAG 74-292 .

An attorney-client agreement between a senator and a city, acting through its mayor, is not in violation of this section or Ky. Const., §§ 27, 28 and 165, since the senator would not be an officer or employee of the city but merely an independent contractor in an attorney-client relationship. OAG 74-315 .

Under this section no incompatibility exists between the office of State Railroad Commissioner and membership on the state board of ethics; but, if an election is required to be held for the unexpired term of the railroad commissioner pursuant to Ky. Const., § 152, an appointee to the board of ethics, in view of KRS 61.070 , would have to resign his position on the board if he became a candidate in the election. OAG 74-377 .

Since director of pupil personnel of a county school district is a state office and county judge (now county judge/executive) pro tem is a county office, the two (2) offices are incompatible. OAG 74-382 .

A city marshal of one city cannot be employed as a part time deputy marshal, police officer, or patrolman of another city without creating an incompatible situation and thereby vacating the former office unless it is through an interlocal agreement pursuant to KRS 65.210 to 65.300 . OAG 74-537 .

An off-duty fireman employed to act as an auxiliary policeman to control traffic and a public works street sweeper employee employed as an auxiliary policeman to issue parking tickets to cars unlawfully blocking his path are simply holding a position of employment and an office at the same time which is not incompatible under Ky. Const., § 165 or subsection (4) of this section. OAG 74-543 .

A member of a town board of trustees can be legally assigned the duties of the office of alcoholic beverage control administrator under authority of KRS 241.160 as the board member would not be holding another municipal office in violation of Ky. Const., § 165 and this section. OAG 74-576 .

Neither the sheriff nor any of his deputies may serve as the nonsalaried county police chief as the police chief should only be answerable to the county court and while this section and Ky. Const., § 165 do not prohibit such appointments, a practical incompatibility could arise in the serving in the two (2) capacities. OAG 74-581 .

Members of a city council of a city of the fourth class cannot serve on park boards created pursuant to KRS 97.550 without violating subsection (5)(g) of this section. OAG 74-608 .

The office of magistrate on a county fiscal court is not incompatible under this section or KRS 61.220 with a position as employee of a hospital being operated as a county hospital under KRS 216.040 (repealed), but it may be incompatible under the common-law rule of Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 (1917). OAG 74-609 .

An unclassified employee of a state university is eligible to run for and serve on a county school board as there is no general prohibition against holding a state office and state employment at the same time and Ky. Const., § 165 and this section deal only with holding incompatible offices not the holding of a state office and state employment simultaneously. OAG 74-646 .

The treasurer of a county school board is considered a state officer and may not at the same time serve as commissioner of a municipal public utility, which office in all probability constitutes a municipal office and, even if not, constitutes municipal employment. OAG 74-707 .

Although no constitutional or statutory conflict of interest or incompatibility exists between the offices of county commissioner and that of administrative head of a department of county government, since the latter office would be under the supervision of the county commissioners and since the two (2) positions possibly could not be performed at the same time with the requisite care and ability there would appear to exist a common-law incompatibility. OAG 74-737 .

A conflict of interest or incompatibility between offices comes into existence at the time the second office is assumed, not when the holder of the first office becomes a candidate for the second. OAG 74-737 .

A school guard made a member of the county police force is a county officer and could not be made a member of the city police department. OAG 74-738 .

As this section and Ky. Const., § 165 prohibits a person from holding a state office and a county office or city office at the same time, the office of an auxiliary police officer of a city of the third class, created under KRS 95.445 is incompatible with the office of deputy sheriff, a county office, and a conservation officer, a state officer under KRS 150.090 . OAG 74-909 .

As this section prohibits the holding of a county office and a city or municipal office at the same time, the acceptance of a city council office by a deputy sheriff creates an incompatibility which, though not automatic, shall operate to vacate the first office held and the city council may, pursuant to a hearing and good cause, remove the deputy sheriff from office by a vote of three-fourths of its members. OAG 74-917 .

The office of master commissioner is not an office within the meaning of this section or Ky. Const., § 165 and is not, therefore, incompatible with the office of county attorney unless a common-law incompatibility arises where the duties of both offices cannot be performed by the same incumbent with care and ability, which would involve a question of fact only the courts can decide. OAG 75-57 .

Since a city-county airport board is an independent corporate entity, neither a city nor county agency, membership on such board is not an office contemplated by this section or Ky. Const., § 165 and is not incompatible with the office of Commonwealth’s Attorney. OAG 75-72 .

City prosecutor may not serve on county park board as this violates the prohibition against filling a county office and a city office at the same time. OAG 75-138 .

A member of the Louisville police department may not hold a position as a city trustee of a city of the sixth class since this section prohibits the holding of two (2) municipal offices at the same time. OAG 75-246 .

Since the office of master commissioner is not a state, county or city office but an office of the court, it is not incompatible with the office of magistrate under this section or Ky. Const., § 165, although a common-law conflict might arise if the duties of both offices could not be performed by the same incumbent with care and ability. OAG 75-255 .

There is no incompatibility between the offices of county judge (now county judge/executive) pro tem and clerk of the quarterly court. OAG 75-263 .

Although the offices of common councilman in a city of the third class and Circuit Court Clerk are incompatible in view of this section, there is no constitutional or statutory provision which would prohibit a council member from becoming a candidate for circuit clerk since the incompatibility would not exist, in view of KRS 61.090 , until the council member assumes the office of circuit clerk. OAG 75-292 .

Since the office of deputy jailer is a county office under KRS 71.060 , although an appointive rather than an elective office, it is incompatible with the office of member of the common council of a city of the third class. OAG 75-292 .

No statutory or constitutional conflict of interest or incompatibility exists by virtue of the fact that a member of the county board of education serves at the same time on the Cumberland River Mental Health-Mental Retardation Board, Inc., a private nonprofit corporation. OAG 75-337 .

A person appointed director of pupil personnel, a state office created by KRS 159.080 , could not at the same time serve as magistrate or justice of the peace, a county office, as the two (2) are incompatible under this section and Ky. Const., § 165. OAG 75-414 .

Since service on the planning and zoning commission by an officer of a political party would not constitute or involve a pecuniary interest, no conflict of interest would exist under KRS 100.133 and as the position of county chairman of either political party is not a constitutional or statutory office, there would be no incompatibility between said position and service on the zoning and planning commission created pursuant to Ky. Const., § 165 and this section. OAG 75-436 .

There is no statutory or constitutional incompatibility or conflict where a person is a state employee and holds a county office at the same time and therefore, one may hold the position as magistrate while still an employee of the state property valuation administrator’s office and any question of common-law incompatibility must be decided by the courts. OAG 75-526 .

A city councilman appointed as chief of police pursuant to KRS 95.720 (now repealed) is holding two (2) incompatible offices under this section and Ky. Const., § 165 but where the councilman is merely appointed as police commissioner to oversee the police department there is incompatibility. OAG 75-564 .

Since the offices of employee of the state highway commission and election officer or member of the board of elections are not incompatible under this section or Ky. Const., § 165 and since the State Merit System Act has no provision prohibiting a state employee from serving in either capacity an employee of the highway commission may legally do so. OAG 75-565 .

Under Ky. Const., § 165 and this section the office of city fire chief is not incompatible with employment by the greater Cincinnati airport fire department. OAG 75-568 .

Serving as a member of the environmental quality commission while at the same time being employed by an interlocal planning and development agency does not violate this section. OAG 75-674 .

As the position of chief deputy commissioner of the Department of Insurance is a state office pursuant to KRS 304.2-060 and 304.2-090 , and being a member of a public library district board constitutes holding a municipal office, the offices are incompatible under Ky. Const., § 165 and this section. OAG 75-696 .

The position of master commissioner is a public office within the meaning of subsection (5)(g), but is not a state, county or city office under this section. OAG 75-700 .

Since the position of district health office is not a county nor a state office, there is no statute prohibiting the district health officer from being at the same time the county coroner, provided that he can carry on and perform his duties as district health officer as required by KRS 212.900 . OAG 75-703 .

Although there is no statutory incompatibility between the position of district health officer and the office of county coroner, there may be common-law incompatibility if the health officer could not execute both positions with care, ability, impartiality, and honesty. OAG 75-703 .

Although the office of school board member and that of master commissioner of the Circuit Court are constitutionally and statutorily compatible offices, there could exist common-law conflict where the duties of both offices cannot be performed at the same time with care and ability. OAG 75-715 .

Since the office of master commissioner does not constitute a state, city or county office, but merely an office of the court, no incompatibility would exist between the office of school board member and the position of master commissioner for the Circuit Court. OAG 75-715 .

If a city of the third class, pursuant to KRS 92.150 (now repealed), has by ordinance consolidated the offices of tax collector and city clerk into one office the holder of that office could probably perform the duties of the tax collector utilizing the personnel of the consolidated offices. OAG 75-723 .

A duly elected constable cannot serve as a salaried police officer in a city of the sixth class since this section prohibits the holding of a county office (constable) and a municipal office (police officer) at the same time. OAG 75-781 .

This section does not prohibit the holding of two (2) county offices at the same time and thus, one person may hold both the office of Circuit Court Clerk and commissioner of the city-county recreational, tourist and convention commission since both are county offices. OAG 76-3 .

The offices of county treasurer and fiscal program coordinator for the county are not incompatible as this section does not prohibit the holding of two (2) county offices at the same time. OAG 76-8 .

This section would not prohibit a mayor from also acting as city planner if the latter office is a form of city employment, rather than a municipal office. OAG 76-16 .

As the position of superintendent of city waterworks is merely a form of employment and not a municipal office, it is not incompatible with the office of police judge pro tem. OAG 76-34 .

The position of deputy sheriff and that of a precinct judge are not incompatible insofar as this section and Ky. Const., § 165 are concerned as a deputy sheriff is a county officer and election officers would appear to be local or county officers. OAG 76-91 .

A person may, at the same time, hold the municipal office of judge pro tem and a position of municipal employment as a management planning administrator provided that the two (2) positions can be performed with care and ability. OAG 76-134 .

A person is not prohibited from being a member of the county police merit board and, at the same time, a member of the county board of tax supervisors, if the situation does not involve a common-law incompatibility. OAG 76-195 .

Since the position of electric plant superintendent is nothing more than a form of employment, a person could serve at the same time as city manager and as plant superintendent of the electric plant board. OAG 76-211 .

There is no prohibition against a person holding two (2) positions of municipal employment at the same time, or a municipal office and municipal employment, thus a person could serve as the administrative officer of a city planning commission and at the same time serve as city manager of the city. OAG 76-212 .

Although there would be no constitutional or statutory provision prohibiting a person from holding the office of magistrate, a county office, and at the same time serving on the county school board staff, which would constitute a form of state employment, there could be a common-law incompatibility since a magistrate must be accessible at all times to persons desiring to serve warrants and to those desiring to bring civil actions. OAG 76-216 .

There is no statutory or constitutional incompatibility or conflict of interest between membership on a county school board and employment as a full time mental health worker for a nonprofit corporation which administers a community mental health program. OAG 76-227 .

Since a city-county air board is a separate political entity from the creating agency, a member of the city council could be appointed to the air board by the mayor. OAG 76-257 .

There is no constitutional nor statutory incompatibility between the positions of hearing officer for the workmen’s compensation board, special commissioner for the Circuit Court, or assistant public defender (now public advocate) for the quarterly court. OAG 76-281 .

In a sixth-class city the fact that the police judge is the father of the deputy marshal, who presents evidence in the city police court against an alleged violator of a city ordinance or state law, would not create a conflict of interest. OAG 76-345 .

There is no constitutional or statutory incompatibility between the position of secretary of the county police merit board and a position as a data processing contract accountant in the county clerk’s office. OAG 76-346 .

A person cannot serve as chairman of the state athletic commission, a state office, and at the same time enter into a personal service contract for management services with the county court clerk since in reality the person under such contract would be serving as a deputy county clerk and thus be holding a county office. OAG 76-352 .

The mayor of the city of Glasgow can at the same time legally serve as principal of the local school. OAG 76-402 .

There is no statutory, constitutional or common-law incompatibility in a person serving as a deputy county coroner and an emergency medical technician. OAG 76-429 .

A member of the board of supervisors of a conservation district is a local, subdivisional officer and may potentially receive per diem and expenses for serving as such and a state officer could not hold the supervisor’s position because of the prohibition of subsection (1) of this section and Ky. Const., § 165, but were he not a state officer but a state employee the dual positions would not violate these sections; however, since a member of the board of supervisors receives a per diem it constitutes a paid public officer and a person serving as both a member of the board of supervisors and as a state officer or employee would be in violation of KRS 18.310(4) (now repealed). OAG 76-430 .

A person cannot serve as a member of the school board and at the same time hold a position of city manager of a city without violating this section and Ky. Const., § 165 since these sections prohibit a state officer from holding a municipal office or employment at the same time. OAG 76-433 .

A person who holds the position of director of the city’s recreation program could not continue to serve as such and the same time serve as a member of the local board of education. OAG 76-434 .

Since the economic development council is an agency of the city, county and chamber of commerce and the administrator serves at the same time the city, county and chamber of commerce, the position of assistant administrator is of a so called hybrid nature, that is neither a city or county position as contemplated in Ky. Const., § 165, this section and KRS 160.180(1)(d) (now (2)(f)) and therefore no incompatibility would exist between the position of assistant administrator of the economic development council and membership on a county school board. OAG 76-495 .

While under Ky. Const., § 113 a county judge (now county judge/executive) or justice of the peace could be appointed as a trial commissioner of the District Court if: (1) the county is one having no resident district judge (2) they are residents of such county (3) it is shown that there is no resident attorney who is available, Ky. Const., § 165 and this section would prohibit a county judge (now county judge/executive) and justice of the peace, as county officers, from being at the same time a trial commissioner of a District Court. OAG 76-497 .

Inasmuch as the position of maintenance supervisor for a local board of education is a form of state employment, a person would not be prohibited from holding that position and also serving as a member of the county commission. OAG 76-533 .

A man may serve on both the urban renewal and community development agency of Elsemere and the Kenton County and municipal planning and zoning commission since there would exist no incompatible situation under Ky. Const., § 165 and this section since the individual in question would not be holding two (2) municipal offices or a municipal and a county office at the same time. OAG 76-562 .

Since there is nothing under the terms of Ky. Const., § 165 and this section to prohibit a person from holding a state office and state employment at the same time, a person could hold the office of Commonwealth’s Attorney, a state office, and a teaching position at a state university, a form of state employment, at the same time. OAG 76-563 .

A person cannot, at the same time, hold the offices of mayor and police chief without violating subsection (4) of this section and Ky. Const., § 165, since both offices are city offices and the fact that the mayor would not receive additional compensation for serving as the head of the police department is not determinative as to whether such position is a city office and there is no authority whereby the mayor of a fifth-class city may exercise the same powers as city police officers. OAG 76-570 .

There is no statutory or constitutional provision that would prohibit a person from serving as a member of the fiscal court and at the same time as deputy coroner, appointed pursuant to KRS 72.040 (repealed). OAG 76-642 .

An employee of an area development district would not be prohibited from becoming a candidate for and holding a county or city office and at the same time continuing his employment with the district. OAG 76-662 .

A person could not serve as the county coroner and as a member of the state board of funeral directors and embalmers at the same time. OAG 76-669 .

Membership on a county school board and the position of county director of civil defense are incompatible. OAG 76-687 .

A member of the city council of a fifth-class city could at the same time serve in the nonpaying position of police surgeon. OAG 76-689 .

There would be no incompatibility between the position of staff attorney for a nonprofit legal aid corporation and that of state representative. OAG 76-737 .

There is no provision under Ky. Const., § 165 or this section relating to incompatible offices that would prohibit a person from holding a position on a county board of education which is a form of state employment and serving on the fiscal court which is a county office, nor is there any prohibition to a person serving as a member of a county board of education and as mayor of a fourth class city. OAG 77-8 .

An individual who is a member of an independent school board could not at the same time serve as member of a county board of health as these positions are incompatible. OAG 77-39 .

A member of the board of optometric examiners who is running for the office of county commissioner could continue to serve on the board up until he assumed the office of county commissioner without violating the prohibition against a state officer’s holding a county office at the same time. OAG 77-79 .

A person who is the mayor of a fifth-class city cannot at the same time hold the position of superintendent of county schools since position of mayor is a municipal office and the position of superintendent is a state office and the fact that the mayor may not receive a salary is of no consequence in determining incompatibility. OAG 77-107 .

An assistant county attorney may, generally, represent the special fund as a contract attorney in proceedings before the Workmen’s (now Workers’) Compensation Board. OAG 77-113 .

Where an assistant county attorney who is required to defend the interests of the county before the Workmen’s (now Workers’) Compensation Board is under contract with the Department of Labor as a special fund attorney and under such contract he would be assigned to represent the interests of the Department of Workmen’s (now Workers’) Compensation hearings and he could refuse such assignments, there would be no constitutional or common-law incom- patibility, because while the assistant county attorney is an officer of a county, he is not a state officer or a deputy state officer, since he is under contract with the state, and thus is in fact an independent contractor performing services for the state. OAG 77-113 .

The principal of an elementary school, a state employee, can become a candidate for the office of magistrate and if elected continue to retain his position as principal unless there would be some common-law conflict of interest where the individual could not perform the duties of both positions at the same time with care and ability or unless there is some local regulation promulgated by the county board of education prohibiting school employees from becoming candidates for public office without resigning or taking leave of absence. OAG 77-146 .

It would not be an incompatible situation for the husband of the county treasurer to be a candidate for the office of property valuation administrator. OAG 77-162 .

A state employee under the merit system would not be prohibited from serving in an appointive position as a deputy in the office of county clerk. OAG 77-163 .

Since a university professor is not a state officer or a deputy state officer, there would be no incompatibility if a city councilman became a law professor at a state university. OAG 77-174 .

There is no statutory incompatibility in an individual holding the office of mayor of a third-class city, a municipal office, while retaining a faculty position at a regional university, a form of state employment. OAG 77-204 .

If a person who was chairman of urban renewal and a member of the board of directors of the housing project were to be elected to city council regardless of whether or not an incompatibility or conflict of interest would exist, if the person in question were elected to city council, the fact that he holds the positions mentioned would in no way affect his right to become a candidate for a public office in the primary and general election and any incompatibility that might exist would not occur until he assumed the office of city council; however, if elected he would become disqualified from serving as a member of the housing commission pursuant to KRS 80.040 and also on the urban renewal agency, if it is operated by the city, since it would constitute a municipal office and this section and Ky. Const., § 165 prohibit a person from holding two (2) municipal offices at the same time; but if the urban renewal agency was created as an independent agency under KRS Chapter 99 no incompatibility would exist. OAG 77-244 .

Members of county board of education are state officers and at the same time the position of state ABC officer is one authorized pursuant to KRS 241.090 and such representatives have full police powers which may or may not place their position in the category of a state officer; and although subsection (1)(d) (now (2)(f)) of KRS 160.180 prohibits a school board member from holding and discharging the duties of any local office or agency under the city or county of his residence, it would not prohibit a school board member from holding employment or an appointive office with the state and of course a board member could not become a candidate for any public office, local or state; however, Ky. Const., § 165 and this section do not prohibit a person from holding two (2) state offices or employment at the same time. OAG 77-245 .

Neither this section nor Ky. Const., § 165 prevent a person from, at the same time, being a member of the board of an air pollution control district and a member of the board of a sewer construction district, neither of which is a state, city or county agency, and if the person involved is able to perform the functions of both positions with care and ability and with impartiality and honesty, no common-law incompatibility would exist. OAG 77-249 .

There is no statutory or constitutional prohibition against a member of the General Assembly serving, at the same time, as a commissioner of a sewer construction district and if the person involved can perform in both capacities with care and ability and with impartiality and honesty, no common-law incompatibility would be involved in either. OAG 77-249 .

No incompatibility would exist where the city clerk is appointed to the position of zoning administrator for the city, if the latter position does not constitute a municipal office. OAG 77-369 .

There would be no incompatibility or conflict of interest where the staff attorney for the board of ethics of the General Assembly serves, at the same time, as a county attorney. OAG 77-402 .

A university safety and security officer appointed and holding his position pursuant to KRS 164.950 to 164.980 is a state officer and as a state officer he is precluded by Ky. Const., § 165 and subsection (1) of this section from serving, at the same time, as either a city officer or a county officer. OAG 77-521 .

No incompatibility would exist where a member of the Legislature is involved in part-time advisory work under a personal service contract with a city or a county. OAG 77-536 .

Since a member of a board created to administer a city’s recreational facilities is a municipal officer, a city councilman could not be appointed to serve on that recreational board. OAG 77-539 .

A member of the Legislature or his law firm would not be prohibited from contracting with a city for legal services OAG 77-589 .

There is no constitutional or statutory restriction which would prohibit an employee of a city sewer department from serving as county magistrate. OAG 77-639 .

Where a city is operating an urban renewal and community development agency, a member of the county board of elections could not serve on the urban renewal agency. OAG 77-650 .

A member of a city council would be prohibited from serving as a deputy sheriff for the county. OAG 77-661 .

A person employed as assistant director of a city’s department of personnel and employee relations would not be prohibited from contracting with a county to write an affirmative action plan for divisions of the county government. OAG 77-672 .

There would be no incompatibility between the office of city attorney and the position of hearing officer for the wage and hour section of the Department of Labor (now Labor Cabinet). OAG 77-680 .

A person could not hold the position of fire chief of a fifth-class city and at the same time hold the office of city councilman. OAG 77-682 .

Although justices of the peace no longer have judicial functions, a person would be prohibited from being a justice of the peace and a deputy sheriff at the same time. OAG 77-686 .

Membership on the board of trustees of a city’s public library would be incompatible with membership on the local school board. OAG 77-697 .

Since this section does not prohibit a person from holding a county office and municipal employment at the same time, a person who holds the position of captain of a city fire department could be employed as a part-time deputy sheriff. OAG 77-698 .

Inasmuch as a person is prohibited from holding two (2) municipal offices at the same time, a member of the board of trustees of a sixth-class city could not be appointed to the office of city treasurer. OAG 77-710 .

Inasmuch as a membership in an educational association does not constitute a state, county or city office, a person could retain his membership in such an association while serving on a local school board. OAG 77-712 .

An individual appointed trial commissioner could not at the same time serve as city attorney for a city of the fourth class. OAG 77-744 .

The zoning administrator does not fill a municipal office such as would be incompatible with a county office. OAG 77-765 .

For the purposes of the conflict of interest provision, the office of county attorney, while involving both state and county functions, is a county office. OAG 77-779 .

The office of magistrate and state employee are not incompatible under this section. OAG 78-2 .

Under the terms of this section, an individual cannot serve as both county judge/executive pro tem and as a member of the city civil service commission as the two (2) offices would be incompatible. OAG 78-44 .

Membership on an area development board and a municipal housing commission is not incompatible inasmuch as both agencies are hybrid political entities and are not a county or subdivision of a county, city, or town. OAG 78-47 .

Since the position of fire chief in a fourth class city is a form of municipal employment rather than a municipal office, there is no statutory prohibition against a person holding the office of county jailer and, at the same time, holding the position of city fire chief; however, there may be a common-law incompatibility. OAG 78-86 .

The county sheriff cannot at the same time serve as a city police officer as those two (2) offices are incompatible. OAG 78-107 .

The mayor of a fourth-class city could not serve at the same time as a member of the city’s utility commission. OAG 78-111 .

A riverport authority is an independent governmental agency which is not a state, county or city agency contemplated under this section. OAG 78-125 .

Since a riverport authority is an independent agency from that of the city, no incompatibility or conflict of interest would exist where a city commissioner served as a port manager. OAG 78-125 .

Nothing in this section prevents a person from serving at the same time as a county building inspector and a member of a county planning and zoning commission. OAG 78-137 .

A member of the city council who is a municipal officer could not hold the position of assistant county attorney which would be considered a county office in the same category as the county attorney. OAG 78-236 .

There is no statutory or constitutional incompatibility between the office of county attorney-prosecutor and membership on a municipal housing commission. OAG 78-291 .

Assuming that hospital board members of a county hospital controlled by the fiscal court qualify as county officers, there is nothing in the Constitution and in the statutes that would prohibit the county attorney from holding the two (2) county offices at the same time. OAG 78-324 .

An elected county official, except a commissioner of the fiscal court of a county containing a first-class city, may serve on the board of a library formed under KRS 173.450 to 173.650 or 173.710 to 173.800 . OAG 78-331 .

A person could not hold the office of deputy sheriff and membership on the city council at the same time since these two (2) offices are incompatible, under Ky. Const., § 165 and this section. OAG 78-361 .

If a postmaster is one of the fourth class, there would be no incompatibility between that position and membership on a city council, but if it is a federal office, there would be a prohibition under Ky. Const., § 237 holding, in effect, that no person can serve at the same time as a federal officer and a state or local officer. OAG 78-361 .

Police officers are officers of the governmental entity in which they serve but under an interlocal agreement, for example, police officers involved in a cooperative undertaking between a city and a county or two (2) cities can avoid the prohibitions in this section and Ky. Const., § 165 against a person being, at the same time, a county officer and a city officer or an officer in two (2) different cities. OAG 78-364 .

An incompatibility situation would exist where a named individual at the same time serves on the environmental quality commission and as mayor of the City of Hazard. OAG 78-377 .

The holding of the positions of superintendent of schools and members of a local school board does not by itself present a statutory or constitutional incompatibility, under this section and Ky. Const., § 165. OAG 78-413 .

The holding of the legislative membership on a tourist board would not constitute a violation of Ky. Const., § 165 or this section. OAG 78-475 .

Subsection (3) of this section prohibits an ex-sheriff from being a deputy sheriff and a deputy marshal of a city and the member of the fiscal court could be potentially liable in connection with civil rights actions filed against the ex-sheriff resulting from his unlawful occupancy of the county office of deputy sheriff and the city office of deputy marshal; therefore the fiscal court should take positive action by appropriate resolution, disavowing any recognition of the ex-sheriff as a deputy sheriff of the county and specifically prohibiting the ex-sheriff’s use of county vehicles and assistance of county employees, and provide that the funding of the ex-sheriff’s position as a deputy out of the sheriff’s fees or out of the county treasury should stop immediately. OAG 78-558 .

There is no statutory incompatibility of offices between the jobs of county road supervisor and deputy county judge/executive. OAG 78-581 .

Since the transit authority of River City is neither a state, city or county entity, no incompatible situation would develop within the meaning of this section and Ky. Const., § 165 where an officer of the Jefferson County police department (a county officer), or for that matter the Louisville police department (a city officer), was employed part-time by TARC. OAG 78-618 .

Section 165 of the Constitution and this section prohibit a state officer (county school board member) from holding a county office (deputy sheriff) at the same time since they are incompatible. OAG 78-622 .

While nothing in the law prevents an incompatibility between the office of assistant city administrator and candidate for school board, both Ky. Const., § 165, and this section prohibit one from holding a city position and at the same time serving as a school board member, which is a state office. OAG 78-631 .

Neither the Constitution, § 165, nor this section would prohibit the county attorney from also being deputy county judge/executive, since the county attorney is the legal advisor for the county and the fiscal court, this would constitute a common-law incompatibility, and in such situation the county attorney could not honestly, impartially and objectively carry out both jobs. OAG 78-642 .

If one is not an employee of a county school board but serves, for example, as an employee of the State Department of Education, there would be no constitutional or statutory conflict under Ky. Const., § 165 and this section since a person can hold two (2) state positions at the same time, whether they be in the form of an office or employment. OAG 78-645 .

One may serve as a member of the Bowling Green board of education of the Bowling Green independent school district while at the same time being employed as an administrator of the Bowling Green-Warren County health department pursuant to appointment by the joint city-county board of health which is, in turn, approved by the Kentucky Department of Human Resources (now Cabinet for Human Resources), since the joint city-county health department would be considered a hybrid agency not contemplated by the Constitution or statute relating to incompatible offices, namely Ky. Const., § 165 and this section. OAG 78-646 .

A member of the city council cannot serve at the same time as an auxiliary policeman at the annual salary of one dollar, because no person can hold at the same time two (2) municipal offices as this is prohibited under Ky. Const., § 165 and this section, since a member of the city council is a municipal officer and a member of the auxiliary police force having the same powers as a regular policeman is also a municipal officer, and compensation is not a factor in determining whether or not the two (2) offices are incompatible. OAG 78-675 .

There is nothing under Ky. Const., § 165 or this section that would prohibit an employee of the University of Kentucky extension specialist department, poultry division, from holding a state office at the same time (such as the school board position), and this would be true even if the employee was under the state merit system in view of KRS 18.310(4) (now repealed). OAG 78-706 .

Section 165 of the Constitution and this section prohibit a person from holding a state office and municipal office at the same time which means that the position of commonwealth detective would be incompatible with that of city policeman. OAG 78-708 .

The office of mayor and that of membership in the General Assembly are of course incompatible under Ky. Const., § 165 and this section, but the incompatibility does not occur until the person assumes the second office, in which case he vacates the first office pursuant to KRS 61.090 . OAG 78-711 .

A person could hold office on the county board of education and at the same time serve as state conservation officer. OAG 78-773 .

One may hold both the office of railroad commissioner and the position of trial assistant to the district judge of Floyd County since both are state offices. OAG 78-825 .

A person holding the position of membership on the Marshall County board of education cannot at the same time serve as city treasurer of Calvert City. OAG 79-1 .

Neither Ky. Const., § 165 nor this section prohibit an employee of a city from becoming a candidate for another public office and this would be equally applicable to the employees of the City of Louisville unless said employees are under the city’s civil service program pursuant to KRS 90.220 which prohibits any person in the classified service in cities of the first class from becoming a candidate for public office. OAG 79-2 .

Where one is made a deputy sheriff without the proper legislative action authorizing such a position, such action is purely illusory and, despite the clear prohibition of this section, the person could also hold the office of deputy county judge/executive. OAG 79-17 .

Section 165 of the Constitution and this section prohibit a state officer from holding a municipal office at the same time; therefore, no one can hold the office of city attorney and serve as a member of an independent school board at the same time since the two (2) positions are incompatible. OAG 79-44 .

The position of campaign manager is not an office under either Ky. Const., § 165 or this section. OAG 79-53 .

A person could legally hold the office of county judge/executive and at the same time enter into a personal service contract with the state to provide legal services to the Kentucky Public Service Commission. OAG 79-86 .

While a person may hold a municipal office and employment with the city at the same time without violating this section and § 165 of the Constitution, where the office of councilman and a municipal employment are involved KRS 61.270 and the common-law rule would create a conflict of interest. OAG 79-143 .

There is no conflict between the positions of superintendent of county schools and a supervisor of a county conservation district. OAG 79-149 .

The position of policeman is a municipal office. OAG 79-225 .

Though a police officer could become a candidate for city council, he could not, if elected, serve as a member of a city commission and as a police officer as these two (2) positions are incompatible under Ky. Const., § 165 and this section. OAG 79-225 .

The fact that one desires to become a candidate for another elective office creates no incompatibility until he assumes the second office which is incompatible with the first. OAG 79-248 .

The position of county health administrator would constitute merely a form of county employment and no statutory incompatibility would exist between it and the position of city commissioner. OAG 79-300 .

Since a county coroner is a county officer, while a local coordinator of county disaster and emergency services is a county employee, there is no constitutional or statutory incompatibility. OAG 79-319 .

Since a school board member is a state officer, and since a county emergency director is a county employee, Ky. Const., § 165 and this section expressly prohibit one person from holding such office and employment at the same time. OAG 79-319 .

Section 165 of the Constitution and this section do not prohibit the holding of two (2) county offices at the same time. OAG 79-398 .

There is no conflict of interest if a county commissioner were appointed as a deputy county court clerk for the purpose of helping the clerk process the 1979 tax appeals. OAG 79-398 .

This section does prohibit a commissioner of fiscal court in counties containing a city of the first class from holding any other public office. OAG 79-398 .

A state employee, such as an employee of the State Department of Transportation (now Transportation Cabinet) or Bureau of Highways (now Department of Highways), can legally serve as a district commissioner for the State Department of Fish and Wildlife Resources insofar as any questions concerning incompatibility under Ky. Const., § 165 and this section. OAG 79-438 .

Neither Ky. Const., § 165 nor this section prohibit a person from holding state employment in multiple positions. OAG 79-438 .

Since a member of the county board of elections is a county officer and membership on the city council constitutes a municipal office, this section clearly prohibits a person from holding both at the same time. OAG 79-443 .

Section 165 of the Constitution and this section prohibit a state officer from holding a county office at the same time; however, there is no prohibition against a state employee holding a county office except where such person is under the state merit system and cannot run for such office which would not be applicable with respect to school teachers since they do not come under the state system. OAG 79-459 .

The position of county court clerk is a county office under the Constitution, particularly Ky. Const., § 99, and a school teacher, part-time or otherwise, is a state employee. OAG 79-459 .

There is no constitutional nor statutory prohibition which would prohibit a local board from hiring a county clerk as a substitute teacher. OAG 79-459 .

Although neither this section nor Ky. Const., § 165 would prevent a state representative from also serving on a local city-county human rights commission, the separation of powers doctrine under Ky. Const., §§ 27 and 28 prevent a person serving in one branch of government from exercising powers in another. OAG 79-483 .

It is not incompatible for a full-time county employee to also serve as a trustee of a sixth-class city located in that county. OAG 79-493 .

There is nothing in Ky. Const., § 165 or this section which would create an incompatibility between the jobs of deputy sheriff and part-time school bus driver. OAG 79-537 .

There is no constitutional or statutory incompatibility for an elected official, such as a member of the city council, to hold at the same time an office in a privately incorporated association, such as the N.A.A.C.P. OAG 79-603 .

Since the office of director of an emergency ambulance service district is neither a county nor city office, nothing in Ky. Const., § 165 nor in this section would prevent a city or county officer from lawfully serving on that board. OAG 79-607 .

There is no incompatibility either under Ky. Const., § 165 or this section between the office of coroner and a member of the board of directors of an emergency ambulance service district. OAG 79-610 .

There is no incompatibility, under either Ky. Const., § 165, this section or the common law, between the state offices of secretary of energy and chairman of the board of trustees of the University of Kentucky. OAG 79-624 .

Nothing in Ky. Const., § 165 or this section would prohibit an employee of a Commonwealth’s Attorney’s office from also being a member of a state university’s board of regents. OAG 79-645 .

Since the offices of city clerk and city treasurer are separate and distinct city offices, no person can, at the same time, hold either of these offices and another city office, such as that of city councilman, in view of Ky. Const., § 165 and this section. OAG 80-20 .

Section 165 of the Constitution and this section do not prohibit a person from holding a municipal office, such as city clerk-treasurer, and at the same time municipal employment, such as the position of police dispatcher. OAG 80-82 .

Since membership on the city board of adjustment constitutes a municipal office and membership on the local board of appeals under the Kentucky Building Code also constitutes a municipal office, the two (2) are incompatible, one with the other, and no person can hold both at the same time. OAG 80-91 .

The office of city school board member and that of county comptroller are incompatible. OAG 80-92 .

The office of commissioner of the Department of Public Information is not incompatible with a position on the Kentucky Heritage Commission or the Kentucky Historic Preservation Review Board. OAG 80-96 .

Inasmuch as the executive director had no authority to change regulations, to administer any programs or to change any programs, but instead the work consisted of being a research person and coordinator of the activities of the task force group, there was no incompatibility between the position as executive director of the Governor’s task force on welfare reform and a position as a member of a county urban council. OAG 80-60 .

A person cannot hold the office of city clerk and city treasurer at the same time in a city of the sixth class. OAG 80-73 .

A city clerk can run for the office of magistrate but if elected the clerk cannot continue to hold the office of city clerk, because the office of city clerk is a municipal office and the office of magistrate is a county office and this section prohibits a person from holding a municipal and a county office at the same time. OAG 80-104 .

Constitution, § 165 and this section prohibit a state officer or deputy state officer from holding a county office; however, there is no provision prohibiting a state employee, such as a school principal, who is not under the state merit system from becoming a candidate for a county office, such as a county magistrate, and serving as such at the same time he holds his state position. OAG 80-131 .

Although neither Ky. Const., § 165 nor this section prohibits a person from holding the positions of city councilman and civil defense director at the same time, there may be a common-law conflict of interest depending on who appoints the civil defense director pursuant to KRS 39.415 ; if the city legislative body appoints the civil defense director, then a conflict of interest would exist since the councilman in question would be directly involved in his own appointment; on the other hand, if the mayor is authorized to make the appointment, then no such conflict would appear to exist. OAG 80-141 .

Since the position of city councilman is a city office and that of deputy sheriff is a county office, these positions are incompatible under this section which prohibits a person from holding a city and county office at the same time. OAG 80-141 .

No conflict of interest would exist under Ky. Const., § 165 or this section if a county deputy jailer were permitted to join the county auxiliary police force. OAG 80-222 .

An individual holding the office of magistrate can at the same time serve on the county board of elections, since no constitutional or statutory provisions prohibit a person from holding two (2) county offices at the same time and KRS 117.035 specifically permits a person who holds another county office to serve on the county board of elections. OAG 80-263 .

Since the position of trial commissioner is a state office and membership on the county election board is a county office, an individual would be prohibited from holding both positions at the same time. OAG 80-266 .

Assuming no factual circumstances that would give rise to a common-law conflict of interest, a member of a county fiscal court while serving in office may also be employed, full-time or part-time, as an instructor at the University of Louisville, or any other state institution of higher learning. OAG 80-277 .

A member of the Kentucky General Assembly can at the same time serve as a presidential elector since the Constitution does not prohibit a person from holding two (2) state offices at the same time, unless there exists a common-law incompatibility. OAG 80-291 .

A county attorney is a county constitutional officer, pursuant to Ky. Const., § 99, and, therefore, an assistant county attorney is a statutory county officer for the purpose of considering the general question of incompatibility of offices; since the office of assistant county attorney involves only one office, a county constitutional office, no incompatibility exists even though the county attorney has been given state duties as a prosecutor (KRS 15.725(2)) and county duties as an adviser to fiscal court (KRS 69.210 ). OAG 80-341 .

Insofar as constitutional and statutory provisions governing incompatible offices are concerned, there is no restriction preventing a pretrial release officer, presumably appointed by the administrative office of the courts under RCr 4.06, from becoming a candidate for a political office and there is no statutory restriction preventing the release officer from calling attention to his position during the campaign. OAG 80-360 .

There is no incompatibility in law or fact in holding at the same time the positions of Commonwealth’s Attorney and membership on the Eastern Kentucky University board of regents. OAG 80-402 .

There is no constitutional or statutory provision prohibiting an individual from holding a real estate license and the office of county judge/executive at the same time, although a common-law incompatibility might exist. OAG 80-478 .

An individual serving on the Crime Victims Compensation Board and as a member of the Board of Claims is a nonmerit state employee, and would not be prohibited from continuing to hold the two (2) state positions while at the same time serving as a paid coordinator with a presidential campaign. OAG 80-488 .

There is no incompatibility between serving as an employee of the Department of Human Resources and as a school board member since both positions are with the state, one being a form of state employment and the other (school board) a state office. OAG 80-505 .

Since the position of property valuation administrator is a state office, if and when an employee of the county ambulance service assumed the office of property valuation administrator, he must resign from his position with the county. OAG 80-523 .

There would be no constitutional or statutory restriction on a Circuit Court Clerk serving as an instructor in one of the state’s driver improvement programs. OAG 80-548 .

A person may not, at the same time, serve as clerk of the District Court and an auxiliary police officer for a city of the fourth class. OAG 80-552 .

An employee of a county ambulance service, which is comprised of two (2) counties, could run for the elective office of coroner while still employed. OAG 80-563 .

A deputy state fire marshal (paid a monthly salary) may not also serve as a county police officer at night. OAG 80-576 .

Since a deputy Circuit Court Clerk is a state officer and a county treasurer is a county officer, the same person cannot, at the same time, fill both offices as they are incompatible with each other. OAG 80-608 .

Where sixth class city sought to appoint the chief of police as city treasurer and as director of the city water department, the same person would be prohibited from holding two (2) municipal offices at the same time under this section and Ky. Const., § 165; however, the city under the appropriate ordinance could assign the duty of collecting city taxes to the chief of police and make it part of his overall responsibility. OAG 81-8 .

A county school teacher can be elected to the office of magistrate without violating Ky. Const., § 165 and this section since a person may hold both state employment such as a school teacher and at the same time hold a county office such as magistrate. OAG 81-13 .

An assistant Commonwealth’s Attorney may accept a night teaching position with a community college without creating a conflict of interest since Ky. Const., § 165 and this section do not prohibit a person from holding a form of state employment and a state office at the same time. OAG 81-17 .

A dispatcher with the city police department may run for and, if elected, serve as a city council member without violating the provisions of this section and Ky. Const., § 165. OAG 81-91 .

A master commissioner may also be appointed trial commissioner since there is no statutory prohibition under this section or constitutional prohibition under Ky. Const., § 165, and neither position is subordinate to the other since the master commissioner serves in the Circuit Court and the district commissioner serves in the District Court. OAG 81-108 .

An assistant Commonwealth’s Attorney may be employed by a city under a personal service contract since the attorney would be considered an independent contractor; thus, there would not be a conflict under Ky. Const., § 165, and this section between holding state office and municipal office simultaneously. OAG 81-114 .

The positions of deputy circuit clerk, a state officer under KRS 30A.010 , and trial commissioner of the county District Court, a state officer under KRS 24A.100 , since neither Ky. Const., § 165, nor this section, both of which treat the subject of incompatible offices, prohibits a person from holding two (2) state offices at the same time; however, they may be incompatible under the doctrine of practical or common law. OAG 81-124 .

Where the executive director of a community development agency, which was not created as an independent agency under KRS 99.350 , is elected to the office of mayor of the same city, there is no constitutional or statutory conflict pursuant to Ky. Const., § 165, or this section since a person can theoretically hold a municipal office and employment at the same time; however, the mayor could not continue to hold the executive director’s position without creating a common law incompatibility or conflict of interest since he is presumed to possess the power under KRS 83A.130 to not only hire, but also fire, the executive director. OAG 81-179 .

Where an attorney is on retainer for a municipal water and sewer commission and runs for the position of Commonwealth’s Attorney, he could hold both positions without violating this section and Ky. Const., § 165, since the retainer position is held as an independent contractor rather than as a city officer or city employee. OAG 81-214 .

A director of county parks and recreation board, which is a joint city-county board created by KRS 97.035 , can also be elected to the city council, since the joint board is a hybrid whose members are neither city nor county officers and thus, there would be no violation of this section or Ky. Const., § 165, which prohibit a person from holding two (2) municipal offices or a municipal and a county office at the same time. OAG 81-240 .

Under Kentucky law a city policeman is considered to be a municipal officer and thus a city cannot employ as a part-time police officer a person who is presently serving as a police officer in another city without creating an incompatibility prohibited by subsection (4) of this section and Ky. Const., § 165. OAG 81-307 .

The employment of a county attorney as attorney for the county board of education does not violate this section and Ky. Const., § 165, since employment as the school board attorney would be that of an independent contractor rather than an employee, and since such employment would at most be a form of state employment rather than constituting a state office. OAG 81-308 .

A person who is the master commissioner of the county Circuit Court can lawfully be appointed to serve as a member of the water commission, since the office of master commissioner is, under KRS 31A.010 , merely a position filled by and under the jurisdiction of, the Circuit Court, rather than a state, county or city office; thus, no incompatibility exists under this section and Ky. Const., § 165, between the two (2) positions. OAG 81-313 .

An employee of a city or county can act as a court commissioner appointed to appraise real estate pursuant to KRS 416.580 and receive compensation therefor, since the court commissioner position is an office of the court at most and thus not a state, county or municipal office; the holding of both positions does not violate this section or Ky. Const., § 165. OAG 81-368 .

The appointment by a Circuit Court Judge of a city comptroller to the position of court commissioner to appraise real estate pursuant to KRS 416.580 would at most constitute appointment to an office of the court which is not a state, county or municipal office; accordingly, the holding of both offices would violate neither this section nor Ky. Const., § 165. OAG 81-368 .

An ordinance which created the office of city alcoholic control administrator in a fourth class city and vested the powers and duties of the administrator in the mayor was in violation of KRS 241.160 , which provides that such office may either be created or its duties assigned to an existing office, and also violated subsection (3) of this section and Ky. Const., § 165 which prohibit any person from filling two (2) municipal offices at the same time; however, the city council could amend or revise the ordinance to state that the duties of the administrator should be assigned to the office of the mayor, thereby avoiding the creation of a separate municipal office. OAG 81-390 .

Constitution, § 165 and this section do not prohibit a county judge/executive from appointing a firefighter from one fire department to serve on the board of trustees of a fire protection district which does not include that department, since city and county firefighters are considered employees of their employing entity rather than governmental officers, and trustees of a fire protection district are district officers rather than state, county or city officers. OAG 81-427 .

The position of master commissioner for the Circuit Court is not a municipal, state or county office within the meaning of Ky. Const., § 165 or KRS 61.080 ; accordingly, a city councilman in a fourth-class city can simultaneously serve as a master commissioner. OAG 82-7 .

A local industrial development authority would constitute an independent political subdivision or hybrid state-corporate agency under subsection (2) of KRS 154.50-316 ; accordingly, an assistant Commonwealth’s Attorney may simultaneously hold membership in a local industrial development authority without violating Ky. Const., § 165 and this section. OAG 82-11 .

Since a metropolitan sewer district is a hybrid agency not contemplated by Ky. Const., § 165 or this section, a property valuation administrator can also serve as a member of the board of a sewer district without violating such provisions. OAG 82-81 .

Since the positions of county director of disaster emergency services and a fire fighter for a city located within the county are mere forms of employment, an individual can legally hold both positions without creating an incompatible situation, so long as he can perform the duties of both positions with care and ability, thereby avoiding a possible common-law conflict, which is a question of fact that only the courts can determine. OAG 82-127 .

Constitution, § 165 and this section, involving holding two (2) offices at the same time, do not apply to a situation where a county attorney enters into a contractual agreement to act for a city which has not created an “office” embracing the city attorney. OAG 82-150 .

An unpaid city council member who is also employed by the Kentucky Higher Education Assistance Authority as executive director, and by virtue of his position as executive director of the Kentucky Higher Education Assistance Authority, is also the executive director of the Kentucky Higher Education Student Loan Corporation, is holding a municipal office and state employment, concerning which there is no constitutional or statutory objection. OAG 82-282 .

The executive director of the Kentucky Higher Education Authority must be considered a state employee within the meaning of Ky. Const., § 165 and this section; the same would be true with respect to his serving as executive director to the Kentucky Higher Education Student Loan Corporation pursuant to KRS 164A.050(7). OAG 82-282 .

There is no statutory or constitutional prohibition against a person serving at the same time as a county police officer and as a member of the board of trustees of a fire protection district organized under KRS Ch. 75. OAG 82-304 .

There would be no legal objection to the appointment of a state employee serving in the Department (now Cabinet) for Human Resources, child welfare section, to the electric plant board of a city. OAG 82-318 .

The office of city councilman and that of deputy circuit clerk are incompatible and no one can hold both positions at the same time without violating Ky. Const., § 165 and this section. OAG 82-351 .

Although one of the city commissioners is required to be appointed mayor pro tem pursuant to KRS 83A.140(4), he can only serve as such and in the place of the mayor when the mayor is unable to attend to the duties of the office, and as a consequence he cannot serve as mayor pro tem when a vacancy has occurred. Thus, when a member of the commission is appointed to fill the office of mayor, he automatically vacates his position on the commission, as no person can hold two (2) municipal offices at the same time under Ky. Const., § 165 and this section. OAG 82-397 .

Fire protection district trustees and officers are not state, city or county officers for purposes of this section and Ky. Const., § 165, but would be considered district officers; not only are there no statutory or constitutional prohibitions against a fire district fire chief serving at the same time as a member of the fire district’s board of trustees, but, KRS 75.031(1)(a) requires that two (2) members of the board be elected by the members of the volunteer fire fighters of the district and be members thereof. The General Assembly obviously intended that the interests of the fire fighters be represented on the board since two (2) board members must be members of the district’s fire department. OAG 82-409 .

The fire chief of a fire protection district organized pursuant to KRS Ch. 75 is not prevented by statutory or constitutional provisions from serving at the same time as one of the two (2) required members of the fire department on the fire district’s board of trustees. On those particular occasions where a conflict does occur, the fire chief should remove himself from the proceedings rather than merely abstaining or passing on the matter. OAG 82-409 .

Since the terms of KRS 154.45-001 to 154.45-100 clearly indicate that members of the Enterprize Zone Authority possess the five basic elements required in order to establish their position as a public office and a state office, the Governor cannot appoint county and city officers to the Authority without violating Ky. Const., § 165 and this section; therefore the Kentucky Municipal League and the Kentucky Association of Counties must submit the names of persons who do not hold a city or county office. OAG 82-429 .

There is no legal impediment in connection with the appointment of the secretary of a county judge/executive as deputy county judge/executive. OAG 82-438 .

Being a jailer and a school bus driver at the same time involves no statutory incompatibility. However, it is possible that such dual roles will, in a particular county, present a common law incompatibility in that the jailer may not be able to execute both functions in the manner required by law. OAG 82-452 .

Since employment as a school bus driver is not an office, this section has no application in determining whether or not the office of jailer and the employment as a regular high school bus driver are incompatible. OAG 82-452 .

Due to the fact that the urban county government is a hybrid form of government not contemplated by Ky. Const., § 165 or this section, the officers of such government cannot be considered either county or city officers, and, as a consequence, there would exist no constitutional or statutory incompatibility where an officer or employee of such government was appointed to the enterprise zone authority. OAG 82-482 .

If a city has either established a position of legal advisor as a form of city employment or created the office of city attorney, no one could, at the same time, serve in state office of trial commissioner and serve in the office of city attorney or as a city employee without violating Ky. Const., § 165 and this section. However, if an attorney is employed on a personal service contract basis, he would be considered an independent contractor and there would be no constitutional or statutory objection to his serving as trial commissioner of the District Court. OAG 82-502 .

Since members of the water district commission are neither state, county or city officers, no incompatibility would exist where a person serves as a member of the commission and at the same time serves on the city council; of course where any business develops between the water district and the city concerning which a vote must be taken, the councilman in question should refrain from participating or voting on the matter as this would be against public policy. OAG 82-635 .

No conflict of interest or incompatibility existed where an auxiliary police officer of a city was at the same time a full-time instructor-coordinator of the Department of Training at Eastern Kentucky University; an auxiliary police officer of a city has the same powers as a regular police officer and is, therefore, considered a municipal officer while the position of instructor-coordinator for a department at Eastern Kentucky University would at most be considered a form of state employment. Neither Ky. Const., § 165 nor this section prohibits a state employee from holding a municipal office. OAG 83-29 .

There is no statute prohibiting a night deputy in a jail from serving both as a deputy and radio dispatcher. OAG 83-34 .

While there is nothing in Kentucky law which would prevent a full-time county employee from seeking the office of railroad commissioner, Ky. Const., § 165 and this section and KRS 61.090 would clearly prohibit a county employee from holding both his county position and the office of railroad commissioner simultaneously; it would, therefore, be necessary for the employee to resign the county position in order to assume the office of railroad commissioner if he is elected. OAG 83-66 .

The position of financial secretary to a zoning and planning commission would not constitute a municipal office since there is no statutory authority for creating such position as an office under KRS Chapter 100 which governs planning and zoning; consequently, neither Ky. Const., § 165 nor this section prohibits a municipal officer from holding municipal employment and serving as financial secretary at the same time and receiving compensation from both sources. OAG 83-72 .

The mayor of a city could legally serve as financial secretary to the planning and zoning commission whether it was strictly a city commission or a joint city-county commission. OAG 83-72 .

There was no statutory conflict of interest where a member of the county fiscal court served as a director on the board of a nonprofit corporation with which the county had a contractual arrangement for the contribution of county funds for the operation of a park system, except that KRS 61.220 prohibits members of fiscal court from being interested in claims against the county. OAG 83-98 .

If a municipal utility commission is simply an agency of the city, the city attorney should probably represent both the city and the commission since the utility commission is an agency of the city; if the commission is an independent agency, the attorney could be employed by the commission under a personal service contract which would make him an independent contractor. In neither event would the question of his holding two (2) municipal offices at the same time be involved. OAG 83-119 .

If a member of county fiscal court should apply for and receive a job as a full-time merit system employee, he would be required to resign as a member of the fiscal court since a county employee serves under the management authority of the fiscal court and since KRS 61.220 prohibits a member of fiscal court from being interested, directly or indirectly, in a claim against the county treasury (except for his own salary as a member of fiscal court) and as a county employee, he would have a direct claim against the county treasury. OAG 83-252 .

An employee of a county department of correction does not possess peace officer powers; therefore, there would be no constitutional or statutory objection to his holding the office of chief of police of a city at the same time since he would be a county employee. OAG 83-291 .

Since a private, nonprofit corporation is not a public agency, no statutory or constitutional incompatibility would exist if a member of a city council and a member of the board of directors of an urban renewal agency also served on the board of directors of a nonprofit corporation established to operate a community center in the same city. OAG 83-317 .

Membership on a school board constitutes a state office. OAG 83-318 .

Membership on a county fair board does not constitute a public office, in the sense of being established by or pursuant to a specific statute or the Constitution, which would involve this section or Ky. Const., § 165. OAG 83-318 .

A member of the board of education can at the same time serve as a member of a county fair board. OAG 83-318 .

There is no statutory or constitutional conflict of interest involved where an elected magistrate serves as a special deputy. OAG 83-448 .

A city council member could serve as a paid county employee other than an officer, provided there was no practical or common-law incompatibility; the mere payment for the work performed as an “employee” is not significant in this context. OAG 83-466 .

A city council member is prohibited by subsection (3) of this section from serving at the same time as a deputy jailer. OAG 83-466 .

The offices of city attorney and county attorney are incompatible under the terms of subsection (3) of this section; accordingly, where a city had in fact created the office of city attorney pursuant to the terms of KRS 83A.080(1), and assuming that the individual appointed thereafter to the position of city attorney was in fact the present county attorney, he could continue to legally serve as city attorney but would vacate his position as county attorney under the terms of KRS 61.090 . OAG 83-495 .

The office of deputy coroner and that of city councilman are incompatible under the terms of this section, because a deputy coroner is a county officer with the same powers as those possessed by the coroner which includes peace officer powers. OAG 84-23 .

Where a regular deputy jailer continued to hold her office as a deputy jailer after accepting the office of city councilman, she became a usurper of the office of deputy jailer and the salary paid to her as deputy jailer out of the county treasury should be returned to the county from the beginning date of usurpation to the present. Thus, if she refuses to return the money the county can sue in Circuit Court to recover the compensation paid out of the county treasury while she has been a usurper; the parties defendant should include the usurper, the jailer, and the county treasurer, provided the proof shows that the jailer and county treasurer issued salary checks to the usurper after knowing that she was a usurper, a mere de facto officer. OAG 84-25 .

There was no conflict of interest or incompatibility of offices where the fiscal court magistrates served on the board of directors of a county solid waste corporation which was a nonprofit corporation run under authority of the fiscal court. OAG 84-42 .

There is no incompatibility under this section where the county judge/executive serves on county boards, especially since this section does not prohibit holding at the same time two (2) county offices. OAG 84-46 .

Neither Ky. Const., § 165 nor this section dealing with incompatible offices prohibits a person, who holds a particular office that may or may not be incompatible with the one he seeks, from becoming a candidate for public office; it is only when the person is elected and holds an office that is incompatible with one to which he is elected that Ky. Const., § 165 and this section are affected. OAG 84-101 .

Where a city which had a volunteer fire department had not established the position of fire chief as an office, the position of fire chief could only be considered as a form of employment; accordingly, there was no constitutional or statutory conflict involved when the county magistrate was appointed as fire chief of the city. OAG 84-150 .

While this section does not prohibit the holding of two (2) county offices at the same time, subsection (2) of this section explicitly provides in part that the offices of deputy sheriff and constable are incompatible. OAG 84-171 , modifying OAG 84-31 .

There is no statutory prohibition that would prevent an employee of a county hospital district, established pursuant to KRS 216.310 and related statutes, from becoming a candidate for the General Assembly. OAG 84-204 .

The county judge/executive’s secretary may also hold positions as finance officer or, deputy county judge/executive as well as secretary without violating any statutes; however, the triple function would be subject to the common-law rule which prohibits holding more than one office where the other office and the additional work will not permit the proper performance of all the jobs. OAG 84-253 .

Since an airport board is a joint board, it is a hybrid agency authorized by statute between the cities and county; thus, a municipal officer could be appointed to such board without violating the prohibition against a municipal officer holding any other municipal, county or state office at the same time, as contained in this section and Ky. Const., § 165, provided the appointment is made jointly by the mayor of the other city and the county judge/executive, and the appointee is not present during the voting. OAG 84-384 , modifying OAG 74-755 .

Section 165 of the Constitution and this section do not prohibit a person from holding a state office and state employment at the same time unless the duties are incompatible; thus, the position of member of local board of education would not be incompatible with a position as an instructor at the Hazard Area Vocational School since the local board would have no control over the appointment of the instructor. OAG 85-23 .

A person is not prohibited by subsection (2) of this section from holding at the same time the offices of county coroner and deputy jailer. OAG 85-149 .

A constable may also serve as part-time deputy jailer. OAG 91-84 .

As no statutory incompatibility is established as between the office of deputy jailer, and another county office, it follows that there is no incompatibility under subsection (2) of this section as between the office of constable and that of deputy jailer, assuming that there is no overlapping of governmentally established working hours or pay. OAG 91-84 .

Fiscal court not prohibited from hiring, as a county employee, one also holding the office of constable, to assist in transporting or guarding prisoners as long as there is no statutory incompatibility between the two (2) positions. OAG 91-175 .

One who holds the office of constable cannot simultaneously be employed as either a deputy jailer or deputy sheriff. OAG 91-175 .

The office of deputy sheriff is incompatible with that of constable. OAG 91-181 .

Subject to a constable’s employment being within the scope of approval of the fiscal court pursuant to KRS 64.530 , a proper mechanism for a sheriff’s employment of a constable to assist in patrolling the county could be established. OAG 91-181 .

From the standpoint of the incompatible offices provisions of Ky. Const., § 165 and this section, state officers are not prohibited from holding positions on the boards of directors of the Kentucky Housing Corporation and the Kentucky Higher Education Student Loan Corporation when those officers are holding positions specifically authorized by KRS 198A.030(3) and KRS 164A.050(3), because where a statute provides for the appointment of specifically designated public officers to hold another public office, these public officers hold their second public office in an “ex officio” capacity, which eliminates the possibility of a constitutional or statutory incompatibility. OAG 91-208 .

There is neither statutory nor constitutional incompatibility between the office of deputy sheriff and that of deputy coroner. However, the office of deputy sheriff appears to be incompatible under common law with the office of deputy coroner. Employing a deputy sheriff also as a deputy coroner potentially compromises the independence of a coroner’s inquiry in a death case. OAG 92-116 .

While it would be incompatible for a county attorney to hold, at the same time (either through election or appointment) the office of Commonwealth’s Attorney, it is not a conflict under Ky. Const., § 165 or under this section for the county attorney, on a temporary basis, to assume the duties of the Commonwealth’s Attorney for an interim period until another person can be either appointed or elected to fill the office. OAG 92-162 .

A mayor of a city of the third class is not prohibited by KRS 76.030 , this section or Ky. Const., § 165 from serving on the board of the Louisville and Jefferson County Metropolitan Sewer District. OAG 93-43 .

Since a state motor vehicle enforcement officer is a state officer and a special deputy sheriff is a county officer and since subsection (1) of KRS 61.080 bans one from serving at the same time as a state officer and as an officer of any county, selected motor vehicle enforcement officers may not be appointed as special deputy sheriffs. OAG 93-61 .

A county jail guard (deputy jailer), absent a proper local rule, is not banned from candidacy for office of constable while holding the office of deputy jailer, and a deputy jailer (county jail guard) may also serve as a constable while holding the office of deputy jailer. OAG 93-66 .

Since this section makes two (2) specific deputy positions, but not that of deputy jailer, incompatible with the office of constable, the offices of constable and county jail guard are not incompatable and one could serve as a constable and a county jail guard; however, a constable must not be, on one hand, the arresting officer as constable, and on the other, the booking deputy jailer, of one he has arrested, as conflicting concerns would be present. OAG 93-66 .

While the office of constable and deputy jailer (county jail guard) are not incompatible, a county jail guard could not lawfully use time for which he or she is being paid as a jail guard, or the resources of the jail, to conduct his or her political campaign as such would involve direction of public resources for other than public purposes in violation of Ky. Const., § 171, and would presumably involve official misconduct. OAG 93-66 .

A person employed by an entity, such as the Louisville Waterfront Development Corporation, established jointly by a city, a county and the state, while a public officer or employee, would not for purposes of the incompatible offices provisions be considered a state, county, or city officer or employee; thus, the imcompatible offices provisions would not preclude a person from serving concurrently as a member of the Kentucky General Assembly and as an officer or employee of the Louisville Waterfront Development Corporation. OAG 95-24 .

The position of trustee of the Kentucky Retirement Systems Board is a “State Office” and, therefore, Section 165 of the Kentucky Constitution and KRS 61.080 apply in determining the qualifications of potential board members. OAG 00-7 .

An urban county is a county with an urban county form of government, such that officers of an urban county are county officers for purposes of Section 165 of the Constitution of Kentucky and KRS 61.080 . Therefore, a member of the Lexington-Fayette Urban County Council may not also serve as a division director within the Cabinet for Health and Family Services. OAG 2004-10 .

A state position which is carried out under direct supervision, and which does not exercise a delegated portion of the sovereign power of government, is a position of state “employment” rather than a state “office.” Therefore, the particular Division Director II position in the Cabinet for Health Services (now Health and Family Services) should be classified as one of state “employment,” rather than as a state “office,” for purposes of KRS 61.080(1). OAG 2004-12 .

The position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services is a “state office,” and one who holds that position is a “state officer,” such that one cannot hold that position and lawfully remain a member of the Lexington-Fayette Urban County Council. OAG 2006-02 .

Research References and Practice Aids

Cross-References.

Adjutant general’s office not incompatible with commission in national guard, KRS 36.030 .

County or regional housing member, KRS 80.440 .

Extension board members, except county judge/executive, KRS 164.660 .

Incompatible offices, Ky. Const., §§ 165, 237.

Militia, officer in may hold civil office, Ky. Const., § 165.

Notary public may hold other office, Ky. Const., § 165.

Regents for state colleges may hold other public office, KRS 164.321 .

Representative, state, Ky. Const., §§ 44, 165.

Restrictions on the right of certain officers to hold other offices:

Artificial gas commission members, KRS 96.545 .

Board for municipal electric plant, KRS 96.740 .

Cities of the first class:

Building commissioners, KRS 98.060 .

Civil service board members, KRS 90.120 .

Waterworks, member of board of, KRS 96.240 .

Cities of the second class:

Bridge commissioner, KRS 181.600 .

Cities of the third class:

Electric and water plant board members, KRS 96.172 .

Generally, Ky. Const., § 165.

Recreational commissioners, KRS 97.120 .

Senator, state, Ky. Const., §§ 44, 165.

Soil and water resources division, director of, KRS 146.100 .

Trustees of University of Kentucky may hold other public office, KRS 164.150 .

ALR

Incompatibility, under common-law doctrine, of office of state legislator and position or post in local political subdivision. 89 A.L.R.2d 632.

1. Employment.

Employments are incompatible for the same reasons that offices are incompatible. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

Incompatibility of employment is a question of fact. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

2. Vacation of Office or Employment.

Vacancy in first office resulting from acceptance of incompatible office is not automatic, but must be declared either in a judicial proceeding to which the officer is a party or in a proceeding by the authority who has statutory power to declare and fill the vacancy, of which proceeding the officer must have notice and in which he must have opportunity to be heard. Commonwealth ex rel. Steller v. Livingston, 171 Ky. 52 , 186 S.W. 916, 1916 Ky. LEXIS 298 ( Ky. 1916 ). See Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

A person who continues to hold the first office after acceptance of the incompatible office is a usurper of the first office. Commonwealth ex rel. Steller v. Livingston, 171 Ky. 52 , 186 S.W. 916, 1916 Ky. LEXIS 298 ( Ky. 1916 ); Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

The members of the board of commissioners of the state bar are not officers within the meaning of Const., § 165, this section and KRS 61.080 since the board acts merely in an administrative capacity and as an agency of the Court of Appeals, clothed, under its rules, with power to make investigations and return to the Court of Appeals its findings. Dreidel v. Louisville, 268 Ky. 659 , 105 S.W.2d 807, 1937 Ky. LEXIS 510 ( Ky. 1937 ).

The actual entering upon the performance of the duties of an office is the best evidence of the intent to choose that office. Adams v. Commonwealth, 268 S.W.2d 930, 1954 Ky. LEXIS 931 ( Ky. 1954 ).

Membership on a county board of education was incompatible with the office of county election commissioner, and a school board member who had accepted the office of county election commissioner vacated his membership on the board by the acceptance of the latter office. Adams v. Commonwealth, 268 S.W.2d 930, 1954 Ky. LEXIS 931 ( Ky. 1954 ).

Under a permissible construction of the terms of Const., § 165, this section and KRS 61.080 , the office of Senator and deputy sheriff are incompatible and the acceptance of the second office vacates the first but where, being faced with the question, the Senate adopted a resolution recognizing the deputy sheriff as a duly qualified Senator the adoption did not constitute such a clear violation of the Constitution that the courts should rectify the error and the deputy sheriff is entitled to the compensation and allowances withheld by the state treasurer but the judiciary must assume the Senate in good faith will not knowingly permit violations of other constitutional provisions. Raney v. Stovall, 361 S.W.2d 518, 1962 Ky. LEXIS 246 ( Ky. 1962 ).

3. — Time.

The mere qualifying for an office, the term of which has not yet begun, does not vacate a prior office. Taylor v. Johnson, 148 Ky. 649 , 147 S.W. 375, 1912 Ky. LEXIS 506 ( Ky. 1912 ).

Where person appointed to office of county superintendent of schools in Jackson County accepted appointment to same office in Laurel County, taking of office upon commencement of term in Laurel County would vacate Jackson County office. Chestnut v. Reynolds, 291 Ky. 231 , 163 S.W.2d 456, 1942 Ky. LEXIS 201 ( Ky. 1942 ).

The incompatibility arises and is determined at the time the second office is assumed, the result being that no person becomes ineligible because of the incompatibility of offices “before election.” Commonwealth ex rel. Buckman v. Miller, 272 S.W.2d 468, 1954 Ky. LEXIS 1109 ( Ky. 1954 ).

4. — Notice.

Notice shall be given to affected officer of intention to declare vacancy unless the particular statute renders it unnecessary or the officer fails to perform a condition precedent necessary to his assuming or continuing in office. Renshaw v. Cook, 129 Ky. 347 , 111 S.W. 377, 33 Ky. L. Rptr. 860 , 33 Ky. L. Rptr. 895 , 1908 Ky. LEXIS 165 (Ky. Ct. App. 1908).

5. — Remedies on Refusal to Vacate.

The acceptance of an incompatible office amounts to a resignation of the first office, and an election may be held to fill the vacancy without any judicial proceeding declaring the vacancy to exist but a judicial proceeding may be necessary to oust the incumbent as a usurper, if he refuses to surrender the office. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ). See Commonwealth ex rel. Steller v. Livingston, 171 Ky. 52 , 186 S.W. 916, 1916 Ky. LEXIS 298 ( Ky. 1916 ).

Where a member of a county board of education was an unsuccessful candidate for his party’s nomination to the office of county tax commissioner (now property valuation administrator) for his county and an action was brought to oust him from membership on the board on the grounds that under the terms of KRS 160.180 his office was vacated when he became a candidate, the trial court erred in sustaining a motion to dismiss the complaint, even though the office of tax commissioner is a state office and is not specifically enumerated in KRS 160.180 (1)(d) (now (2)(f)). Commonwealth ex rel. Buckman v. Miller, 272 S.W.2d 468, 1954 Ky. LEXIS 1109 ( Ky. 1954 ).

6. — Acts after Vacation.

Even if acceptance of office as member of General Assembly, by a person holding the office of special circuit judge, vacated the latter office on the ground of incompatibility, defendant in civil suit against whom judgment was rendered by special judge could not complain, where special judge was qualified and eligible at the time he began the trial, and no objection was raised by defendant until after judgment had been rendered. O'Mara v. Mt. Vernon, 299 Ky. 401 , 185 S.W.2d 675, 1945 Ky. LEXIS 436 ( Ky. 1945 ).

7. De Facto Membership.

A member of county board of health who became a city trustee did not automatically forfeit and vacate her board membership, and, at the very least, she was a de facto member and was entitled to perform her duties while in possession of the office. Trimble County Fiscal Court v. Trimble County Bd. of Health, 587 S.W.2d 276, 1979 Ky. App. LEXIS 469 (Ky. Ct. App. 1979).

Cited:

Commonwealth ex rel. Baxter v. Burnett, 237 Ky. 473 , 35 S.W.2d 857, 1931 Ky. LEXIS 623 ( Ky. 1931 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Commonwealth ex rel. Breckinridge v. Winstead, 430 S.W.2d 647, 1968 Ky. LEXIS 407 ( Ky. 1968 ).

Opinions of Attorney General.

Incompatibility is determined at the time the second office is assumed. OAG 60-455 .

The city commissioner running for election as mayor, if defeated, would resume his position as city commissioner until the elected mayor took office. OAG 60-636 .

A member of a board of education vacates his office on said board of education when he qualifies and assumes the office of deputy sheriff. OAG 61-942 .

Incompatibility is determined at the time the second office is assumed unless the Legislature has provided otherwise with respect to the qualifications to hold a particular office. OAG 63-130 .

A magistrate vacated his post as magistrate when he accepted full-time employment as manager of the municipal utilities commission of the city, an incompatible office. OAG 65-50 .

An individual may file and run as a candidate for sheriff and still hold the position as chief of police. OAG 68-595 .

The office of circuit clerk and that of city clerk are incompatible when the city clerk assumes the office of circuit clerk but such city clerk may run for the office of circuit clerk and at the same time retain the office of city clerk. OAG 69-88 .

An incompatibility exists when a county district library trustee assumes the office of state representative. OAG 69-163 .

A member of the city commission running for membership on a board of education would not become ineligible for city council until he assumed the school board office. OAG 70-558 .

A person would be prohibited from serving on a county board of health and on the board of education at the same time without forfeiting the first office he held. OAG 70-632 .

Where a city policeman is appointed a deputy sheriff, an incompatibility would exist under KRS 61.080(3) and under this section he would have vacated his office as city policeman; however, if he refused to vacate his office as policeman, a proceeding in court might be necessary to oust him. OAG 71-153 .

Incompatibility is determined at the time the second office is assumed. OAG 71-222 .

Whether or not a city councilman’s acceptance of employment for the city would vacate his office for incompatibility is not a matter for the city council to decide. OAG 71-301 .

A police judge of a city could be a candidate for county judge (now county judge/executive) in the May primary without resigning his office as police judge. OAG 71-378 .

A city councilman-elect could not accept appointment as police chief without resigning or vacating the position of councilman-elect. OAG 71-502 .

Where person holds two (2) incompatible offices vacancy is created in office first held unless that is a federal position over which state is without control but where first office is state or local attorney general could institute KRS 415.050 removal action if person refused to resign. OAG 72-67 .

Incompatibility does not exist until the second office is assumed. OAG 72-426 , 72-459.

Nothing under statute or Constitution prevents a municipal officer from campaigning for another public office whether or not incompatible with the one he holds; the present city tax assessor can continue in office while campaigning for the office of county judge (now county judge/executive) since there would be no incompatibility between the two (2) offices until the assumption of the second office. OAG 73-95 .

Present city prosecuting attorney can continue in office while seeking nomination for the office of state senator since there would be no incompatibility until the assumption of the second office. OAG 73-95 .

Under the Kentucky Constitution and related statutes county policeman can become a candidate for sheriff without incompatibility existing until the office of sheriff is assumed but, if a portion of policeman’s salary is paid by federal funds then the federal civil service commission should be contacted to determine if the candidacy would effect such employment. OAG 73-102 .

Where appointed assistant commonwealth’s attorney campaigns for prosecuting attorney of police court or appointed trial commissioner campaigns for judge of police court, incompatibility or conflict of interest arises only at the time the second office is assumed. OAG 73-165 .

The offices of county deputy coroner and city commissioner of a fourth-class city operating under the commission form of government are incompatible and cannot be held by the same person. OAG 73-807 .

A conflict of interest or incompatibility between offices comes into existence at the time the second office is assumed not when the holder of the first office becomes a candidate for the second. OAG 74-737 .

A deputy sheriff is a county officer and a city councilman is a municipal officer and KRS 61.080 prohibits a person from holding a county office and a city office at the same time and the acceptance by one in office of another office incompatible with the one he holds shall operate to vacate the first but such vacation is not automatic and the city council by a vote of three-fourths of its members, may pursuant to a hearing and for good cause, remove him from office. OAG 74-917 .

Although the offices of common councilman in a city of the third class and circuit court clerk are incompatible in view of KRS 61.080 , there is no statutory or constitutional provision which would prohibit a council member from becoming a candidate for circuit clerk since the incompatibility would not exist, in view of this section, until the council member assumes the office of circuit clerk. OAG 75-292 .

Since membership on a county school board constitutes a state elective office, a person could not hold such position and at the same time continue to serve on the board of supervisors of a soil conservation district. OAG 76-227 .

A person who is employed by a county school board as an elementary supervisor and who is considering running for election to the school board would not be required under constitutional or statutory law to resign the school employment until he assumes the school board office. OAG 76-258 .

Since an incompatibility does not exist until a person assumes the second office and since the office of police judge will be abolished January 2, 1978, there is nothing that would prohibit a police judge from becoming a candidate for the office of sheriff and at the same time continuing to serve in his capacity as police judge. OAG 77-136 .

If a person who was chairman of urban renewal and a member of the board of directors of the housing project were to be elected to city council regardless of whether or not an incompatibility or conflict of interest would exist, if the person in question were elected to city council, the fact that he holds the positions mentioned would in no way affect his right to become a candidate for a public office in the primary and general election and any incompatibility that might exist would not occur until he assumed the office of city council; however, if elected he would become disqualified from serving as a member of the housing commission pursuant to KRS 80.040 and also on the urban renewal agency, if it is operated by the city, since it would constitute a municipal office and KRS 61.080 and Const., § 165 prohibit a person from holding two municipal offices at the same time; but if the urban renewal agency was created as an independent agency under KRS Chapter 99 no incompatibility would exist. OAG 77-244 .

A person would be entitled to retain his position as commonwealth detective while campaigning for sheriff, but if he is elected the initial office would become vacant. OAG 77-284 .

An individual’s candidacy for the District Court would have no legal effect on his continuing to serve as assistant commonwealth attorney up to the time of assuming the judicial office. OAG 77-538 .

There could be no incompatibility between the positions of an employee of an area development district and a candidate for county judge/executive, only between the employee position and the actual office of county judge/executive. OAG 79-727 .

A city council member would not have to resign from his or her position as a council member prior to running for the office of mayor since the incompatibility between the two (2) offices would not exist until the city council member assumed the office of mayor. OAG 80-405 .

An individual employed by a city as director of its community development agency would not be barred from becoming a candidate for the office of mayor because the question of incompatibility does not exist until the person assumes the second office which would be incompatible with his present position. OAG 80-520 .

Since the position of property valuation administrator is a state office, if and when an employee of the county ambulance service assumed the office of property valuation administrator, he must resign from his position with the county. OAG 80-523 .

There is no constitutional or statutory requirement that a county employee resign or take a leave of absence while running for public office since a conflict or incompatibility would not exist until such person assumed the second office that was incompatible with the office or employment that he already held. OAG 80-523 .

Where as a result of redistricting, a senator who was elected from an even-numbered district in 1981 resides in the same, but odd-numbered, district as a senator whose term ends in 1983, nothing precludes the first senator from running in the primary and general elections for the new odd-numbered district seat without first resigning his senate seat; however, if elected in the general election, he must either resign his present office before assuming the new office or refuse the new office on the first day of January. OAG 81-424 .

While there is nothing in Kentucky law which would prevent a full-time county employee from seeking the office of railroad commissioner, Const., § 165 and KRS 61.080 and this section would clearly prohibit a county employee from holding both his county position and the office of railroad commissioner simultaneously; it would, therefore, be necessary for the employee to resign the county position in order to assume the office of railroad commissioner if he is elected. OAG 83-66 .

The offices of city attorney and county attorney are incompatible under the terms of KRS 61.080(3); accordingly, where a city had in fact created the office of city attorney pursuant to the terms of KRS 83A.080(1), and assuming that the individual appointed thereafter to the position of city attorney was in fact the present county attorney, he could continue to legally serve as city attorney but would vacate his position as county attorney under the terms of this section. OAG 83-495 .

This section provides in effect that the acceptance by one in office of another office incompatible with the one he holds shall operate to vacate the first; however, the vacation of the office is not automatic, and if the individual refuses to vacate the office an ouster proceeding must be brought against such individual. OAG 84-23 .

Where a regular deputy jailer continued to hold her office as a deputy jailer after accepting the office of city councilman, she became a usurper of the office of deputy jailer and the salary paid to her as deputy jailer out of the county treasury should be returned to the county from the beginning date of usurpation to the present. Thus, if she refuses to return the money the county can sue in circuit court to recover the compensation paid out of the county treasury while she has been a usurper; the parties defendant should include the usurper, the jailer, and the county treasurer, provided the proof shows that the jailer and county treasurer issued salary checks to the usurper after knowing that she was a usurper, a mere de facto officer. OAG 84-25 .

The position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services is a “state office,” and one who holds that position is a “state officer,” such that one cannot hold that position and lawfully remain a member of the Lexington-Fayette Urban County Council. OAG 2006-02 .

Research References and Practice Aids

Cross-References.

Vacancies, KRS 63.190 to 63.220 .

1. Public Employees.

Where a state agency employee blew the whistle internally under KRS 61.102 by informing the employer’s in-house counsel that a supervisor was throwing confidential and proprietary files in a dumpster that was accessible to the public in violation of KRS 341.190 , the employer was not entitled to partial summary judgment; however, because KRS 61.101(2) did not impose individual liability, the individual defendants were entitled to partial summary judgment. Gaines v. Workforce Dev. Cabinet, 2005 Ky. App. LEXIS 241 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 1099 (Ky. Ct. App. Nov. 10, 2005), aff'd, 276 S.W.3d 789, 2008 Ky. LEXIS 300 ( Ky. 2008 ).

District court properly dismissed former local government employee’s claims against local government officials under the Kentucky Whistleblower Act because KRS 61.101(2) did not impose individual civil liability under the Act for reprisal against public employees of the Commonwealth of Kentucky and its political subdivisions. Miller v. Admin. Office of the Courts, 448 F.3d 887, 2006 FED App. 0176P, 2006 U.S. App. LEXIS 12600 (6th Cir. Ky. 2006 ).

Under KRS § 147.660(1), area planning commissions were created as political subdivisions of the Commonwealth and subjected to the Whistleblower Act, KRS 61.101(2); because the Northern Kentucky Area Planning Commission was entitled to governmental immunity, the deputy director enjoyed its protections as well. N. Ky. Area Planning Comm'n v. Cloyd, 332 S.W.3d 91, 2010 Ky. App. LEXIS 7 (Ky. Ct. App. 2010).

Terminated employee failed to state a claim under the Kentucky Whistleblower Act because that Act's protections are limited to employees of public entities and the employee here worked for a private company. Charles v. Print Fulfillment Servs., LLC, 2015 U.S. Dist. LEXIS 132517 (W.D. Ky. Sept. 30, 2015).

In a case in which plaintiff alleged that she was wrongfully terminated from her employment with a university, in violation of the Kentucky Whistleblower Act, a reasonable juror could have found that plaintiff’s supervisor was aware of plaintiff’s criticism and was influenced by them to recommend to a vice president the elimination of plaintiff’s position as retaliation for her whistleblower disclosures. Even if the vice president were personally unaware of the disclosures, they could have reasonably been a factor that influenced the decision to eliminate plaintiff’s position. Harper v. Univ. of Louisville, 559 S.W.3d 796, 2018 Ky. LEXIS 437 ( Ky. 2018 ).

2. Employer.

City employee who alleged that he had been terminated in retaliation for reporting safety issues was not protected by Kentucky’s Whistleblower Act, KRS 61.101 et seq., because the city was not a political subdivision for purposes of KRS 61.101 (2) and therefore was not an employer within the scope of the prohibition against reprisal in KRS 61.102(1). Wilson v. City of Cent. City, 372 S.W.3d 863, 2012 Ky. LEXIS 43 ( Ky. 2012 ).

City employees are not protected by Kentucky’s Whistleblower Act, KRS 61.101 et seq., because cities are not political subdivisions and thus are not employers under KRS 61.101 (2). Wilson v. City of Cent. City, 372 S.W.3d 863, 2012 Ky. LEXIS 43 ( Ky. 2012 ).

Trial court erred in denying a development district's directed verdict motion as to its status under the Kentucky Whistleblower Act where although its statutory origin, Ky. Rev, Stat. Ann. § 65.005(2)(a), defined it as a political subdivision of the state, the employee had not presented sufficient evidence as to what state functions it performed. 2015 Ky. App. LEXIS 18 .

Cited:

Thomas v. Grange Mut. Cas. Co., 2004 Ky. App. LEXIS 163 (Ky. Ct. App. 2004), review denied, 2005 Ky. LEXIS 174 ( Ky. 2005 ); Consol. Infrastructure Mgmt. Auth., Inc. v. Allen, 269 S.W.3d 852, 2008 Ky. LEXIS 295 ( Ky. 2008 ); Harris v. Camp Taylor Fire Prot. Dist., 303 S.W.3d 479, 2009 Ky. App. LEXIS 80 (Ky. Ct. App. 2009); Sietsema v. Adams, 2015 Ky. App. LEXIS 116 (Aug. 14, 2015).

1. Employer.

Unpublished decision: Since the employees were employed by a municipal corporation, and they were fired after reporting alleged violations committed by that employer, the employees sought to enforce the Kentucky Whistleblower Act, KRS 61.102 against the municipal corporation that fired them. Because the employees engaged in precisely the type of behavior that the Whistleblower Act was designed to protect, and the Kentucky Supreme Court indicated that the statute was enforceable against municipal corporations, the employees could proceed with their claim under the Kentucky Whistleblower Act against the city; therefore, the district court erred in holding that a municipality was not a political subdivision of the state, and, therefore, was not an employer for purposes of Kentucky’s Whistleblower Act, KRS § 61.101-103. Kindle v. City of Jeffersontown, 374 Fed. Appx. 562, 2010 FED App. 0159N, 2010 U.S. App. LEXIS 5320 (6th Cir. Ky. 2010 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Simon, Blowing the Whistle in the Commonwealth, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 28.

1. Constitutionality.

Subsection (1) is not written in such broad sweeping terms as to make it constitutionally vague; a person of ordinary intelligence can understand the intended meaning of the language as well as its appropriate application. Commonwealth Dep't of Agric. v. Vinson, 30 S.W.3d 162, 2000 Ky. LEXIS 129 ( Ky. 2000 ).

2. Inapplicability.

This section was not applicable where a lawsuit filed on behalf of former employee’s son was not intended as a report of information regarding any alleged mismanagement or endangerment of public health and safety, but was rather a simple negligence action. Boykins v. Housing Authority of Louisville, 842 S.W.2d 527, 1992 Ky. LEXIS 159 ( Ky. 1992 ).

Employees of the City of Jeffersontown police department did not have an actionable claim for an alleged violation of the Kentucky Whistleblower Act, KRS 61.102 , because the City was not an employer as defined by the Act since the City was not a political subdivision or agency of the Commonwealth of Kentucky. Kindle v. City of Jeffersontown, 2009 U.S. Dist. LEXIS 1481 (W.D. Ky. Jan. 7, 2009), vacated, 374 Fed. Appx. 562, 2010 FED App. 0159N, 2010 U.S. App. LEXIS 5320 (6th Cir. Ky. 2010 ).

City employee who alleged that he had been terminated in retaliation for reporting safety issues was not protected by Kentucky’s Whistleblower Act, KRS 61.101 et seq., because the city was not a political subdivision for purposes of KRS 61.101 (2) and therefore was not an employer within the scope of the prohibition against reprisal in KRS 61.102(1). Wilson v. City of Cent. City, 372 S.W.3d 863, 2012 Ky. LEXIS 43 ( Ky. 2012 ).

In a teacher’s employment dispute with a school board, summary judgment granted to the school board was erroneously reversed by finding a fact issue as to whether the teacher stated a whistleblower claim because the teacher (1) never alleged such a claim by alleging the teacher’s discharge was retaliatory in violation of public policy, and (2) presented no evidence to support such a claim. Knott County Bd. of Educ. v. Patton, 415 S.W.3d 51, 2013 Ky. LEXIS 636 ( Ky. 2013 ).

Employee's report to the IRS of his status for clarification under current tax law did not meet the criteria for protection under the Whistleblower Act where the information he provided was public and the tax laws were known. 2015 Ky. App. LEXIS 18 .

Employee was not entitled to whistleblower protection because the employee's disclosure that the employee had been performing jury pool management duties in addition to being a court administrator did not reveal information that was not publicly known, as the employee had been performing these functions for 25 years. Admin. Office of the Courts v. Miller, 468 S.W.3d 323, 2015 Ky. LEXIS 1750 ( Ky. 2015 ).

Teacher who erroneously reported to a newspaper that a dangerous student was allowed to remain in school was properly terminated since the whistleblower statute protecting persons reporting illegal activity from termination only applied to reports to public bodies and did not apply to the report to the newspaper. Pacheco v. Waldrop, 84 F. Supp. 3d 606, 2015 U.S. Dist. LEXIS 13865 (W.D. Ky. 2015 ).

3. Elements of Crime.

Four (4) elements must necessarily be met in order for the crime to have occurred: (1) the employer must be an officer of the state or one of its political subdivisions; (2) the employee must be a state employee or an employee of a political subdivision; (3) the employee must make a good faith report of a suspected violation of state or local statute or administrative regulation to an appropriate body or authority; and (4) the defendant must be shown to act to punish the employee for making this report or to act in such a manner so as to discourage the making of this report. Woodward v. Commonwealth, 984 S.W.2d 477, 1998 Ky. LEXIS 168 ( Ky. 1998 ).

4. Evidence.

Evidence was sufficient to show that the demotion of a county employee who reported the improvement of a road on privately owned property was a reprimand for his report where the employee had never been disciplined by the county and was considered by others to be a good employee, shortly after the report was made, the employee’s supervisor was ordered by the defendant to order his employees to remain silent about the matter, and, as the issue progressed, the defendant ordered the demotion of the employee and all records from the road department brought to his office. Woodward v. Commonwealth, 984 S.W.2d 477, 1998 Ky. LEXIS 168 ( Ky. 1998 ).

5. University Employee.

Graduate student, who had received a stipend and a fellowship, and who was dismissed from graduate program, was not an employee of the university, even though the university required her to perform extra duties to receive fellowship. Stewart v. Univ. of Louisville, 65 S.W.3d 536, 2001 Ky. App. LEXIS 77 (Ky. Ct. App. 2001).

Where a university professor was engaged by a state agency to perform a research project, the professor’s supervisors within the agency could be considered to be his employers for purposes of the whistleblower statutes, considering the definition of a proper party defendant in KRS 61.103(2) as a “person,” and considering the definition of an employer in KRS 61.101(2) as including “any person.” Cummings v. Cabinet for Families & Children, 2002 Ky. App. LEXIS 1658 (Ky. Ct. App. Aug. 23, 2002).

State university was entitled to summary judgment on a former employee's whistle-blower claim because the employee's complaints regarding unfair treatment by the employee's boss amounted to nothing more than disagreements with a supervisor, and were not actionable. Moreover, the employee's report of the impossible task of reconciling the university's financial accounts was not an initial report and was not protected. Moss v. Ky. State Univ., 465 S.W.3d 457, 2014 Ky. App. LEXIS 179 (Ky. Ct. App. 2014).

In a case in which plaintiff alleged that she was wrongfully terminated from her employment with a university, in violation of the Kentucky Whistleblower Act, a reasonable juror could have found that plaintiff’s supervisor was aware of plaintiff’s criticism and was influenced by them to recommend to a vice president the elimination of plaintiff’s position as retaliation for her whistleblower disclosures. Even if the vice president were personally unaware of the disclosures, they could have reasonably been a factor that influenced the decision to eliminate plaintiff’s position. Harper v. Univ. of Louisville, 559 S.W.3d 796, 2018 Ky. LEXIS 437 ( Ky. 2018 ).

6. Disclosures Covered by Whistleblower Act.

Where a former state employee alleged that the hearing procedures of a state agency were an abuse of authority and violated state law, as both were types of disclosures protected by the Kentucky Whistleblower Act, KRS 61.102 , to the extent that the Circuit Court based its summary judgment in favor of the employer on the belief that KRS 61.102 categorically excluded disclosures made in the course of litigation from protection under the Act, it erred. Davidson v. Commonwealth, 152 S.W.3d 247, 2004 Ky. App. LEXIS 311 (Ky. Ct. App. 2004).

Where a former state employee reported to a Circuit Court that the hearing procedures for a state agency were an abuse of authority and violated state law, but did not report anything about the procedures that was not already known, the Circuit Court properly granted the state employer summary judgment and dismissed the employee’s suit under the Kentucky Whistleblower Act, KRS 61.102 . Davidson v. Commonwealth, 152 S.W.3d 247, 2004 Ky. App. LEXIS 311 (Ky. Ct. App. 2004).

Where a state agency employee blew the whistle internally under KRS 61.102 by informing the employer’s in-house counsel that a supervisor was throwing confidential and proprietary files in a dumpster that was accessible to the public in violation of KRS 341.190 , the employer was not entitled to partial summary judgment; however, because KRS 61.101(2) did not impose individual liability, the individual defendants were entitled to partial summary judgment. Gaines v. Workforce Dev. Cabinet, 2005 Ky. App. LEXIS 241 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 1099 (Ky. Ct. App. Nov. 10, 2005), aff'd, 276 S.W.3d 789, 2008 Ky. LEXIS 300 ( Ky. 2008 ).

The employee’s letter to superiors, tendered prior to the employee’s dismissal, in which the employee reported on safety violations to the superiors and expressed the employee’s intention to contact the Kentucky Occupational Safety and Health Administration if the problems were not addressed, constituted a disclosure within the meaning of KRS 61.102 and 61.103 . Consol. Infrastructure Mgmt. Auth., Inc. v. Allen, 269 S.W.3d 852, 2008 Ky. LEXIS 295 ( Ky. 2008 ).

The phrase “any other appropriate body or authority,” as provided in KRS 61.102(1), should be read to include any public body or authority with the power to remedy or report a perceived misconduct, including a public employee’s own agency where a public employee is a whistle-blower. Workforce Dev. Cabinet v. Gaines, 276 S.W.3d 789, 2008 Ky. LEXIS 300 ( Ky. 2008 ).

Where a local government employee reported to her superiors that her direct supervisor committed numerous administrative violations, breaches of client confidentiality, and falsified employee records, the employee argued that she was then terminated in violation of Kentucky’s Whistleblower Act, KRS 61.101 et seq. At trial, the jury correctly determined that the employee had reported a violation to an “appropriate body or authority” for purposes of KRS 61.102(1); however, the jury found that the report was not a material factor in her termination, based on a letter from the mayor showing that the employee was terminated because her services were no longer needed. Powers v. Lexington-Fayette Urban County Gov't, 2009 Ky. App. LEXIS 208 (Ky. Ct. App. Oct. 30, 2009).

Pursuant to Kentucky’s Whistleblower Act, KRS 61.101 et seq., “any other appropriate body or authority,” as used in KRS 61.102(1), should be read to include any public body or authority with the power to remedy or report the perceived misconduct. This interpretation serves the goals of liberally construing the Whistleblower Act in favor of its remedial purpose, and of giving words their plain meaning; the most obvious public body with the power to remedy perceived misconduct is the employee’s own agency. Powers v. Lexington-Fayette Urban County Gov't, 2009 Ky. App. LEXIS 208 (Ky. Ct. App. Oct. 30, 2009).

Summary judgment in favor of the employer on the employee’s claim that she was terminated for reporting that her supervisor committed third degree trespass on her property was subject to reversal because there is no rule that government employees are insulated from employer reprisals under the Whistleblower Act, KRS 61.102 , only when they report items that impact issues of public concern. Rogers v. Pennyrile Allied Cmty. Servs., Inc., 2012 Ky. App. LEXIS 288 (Ky. Ct. App.), sub. op., 2012 Ky. App. Unpub. LEXIS 1047 (Ky. Ct. App. Dec. 14, 2012).

Supreme Court of Kentucky concludes that Ky. Rev. Stat. Ann. § 61.102 does not require an employee's report or disclosure to touch on a matter of public concern. Pennyrile Allied Cmty. Servs. v. Rogers, 459 S.W.3d 339, 2015 Ky. LEXIS 7 ( Ky. 2015 ).

Supreme Court of Kentucky concludes that the protections afforded by Ky. Rev. Stat. Ann. § 61.102 are limited only by the language of the statute and there is no requirement limiting the protections of § 61.102 to disclosures that touch on a matter of public concern. Pennyrile Allied Cmty. Servs. v. Rogers, 459 S.W.3d 339, 2015 Ky. LEXIS 7 ( Ky. 2015 ).

Otherwise at-will employee cannot gain whistleblower status, and the protections that come with that status, by simply complaining to her boss about what she perceives as his misconduct. Pennyrile Allied Cmty. Servs. v. Rogers, 459 S.W.3d 339, 2015 Ky. LEXIS 7 ( Ky. 2015 ).

At-will employee's inquiry, directed to the sheriff's office, for an opinion on the legality of a supervisor's behavior did not constitute a report, disclosure, or divulgence triggering the whistleblower protections of Ky. Rev. Stat. Ann. § 61.102 . Pennyrile Allied Cmty. Servs. v. Rogers, 459 S.W.3d 339, 2015 Ky. LEXIS 7 ( Ky. 2015 ).

At-will employee's confrontation with a supervisor at a staff meeting, expressing her objection to the employee's entry upon her property did not constitute a report, disclosure, or divulgence triggering the whistleblower protections of Ky. Rev. Stat. Ann. § 61.102 where the supervisor's comments comported with neither the statutory language of § 61.102 , nor the purpose underlying the statute, as stated in case law, to discourage wrongdoing in government, and protect those who make such wrongdoing public. Pennyrile Allied Cmty. Servs. v. Rogers, 459 S.W.3d 339, 2015 Ky. LEXIS 7 ( Ky. 2015 ).

District court properly dismissed the employee’s claim under the Kentucky Whistleblower Act because the employee’s complaint to his supervisor about the supervisor’s own misconduct was not protected activity under that statute. Bogart v. Univ. of Ky., 766 Fed. Appx. 291, 2019 U.S. App. LEXIS 7850 (6th Cir. Ky. 2019 ).

District court correctly granted summary judgment in favor of the School Board on the nurses’ whistleblower claims because the nurses only alleged that they reported D.M.’s mother of possible neglect. Critically, they did not allege that they reported any violation of law by the School Board (i.e., their employer) to a state agency; therefore, their whistleblower claims failed under current Kentucky law. Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Schs, 2020 FED App. 298P, 2020 U.S. App. LEXIS 28242 (6th Cir. Ky. Sept. 4, 2020).

7. Practice and Procedure.

In a suit under the Kentucky Whistleblower Act, KRS 61.102 , as plaintiff asserted his employer’s investigation of him was done in retaliation for whistleblowing because it was baseless and was designed just to punish him, and he disputed the findings of the investigation, there were genuine issues of material fact regarding the matter; therefore, basing summary judgment on the ground that the employee’s reassignment was justified by the employer’s investigation was error. Davidson v. Commonwealth, 152 S.W.3d 247, 2004 Ky. App. LEXIS 311 (Ky. Ct. App. 2004).

Termination of an EMT did not violate the Kentucky Whistleblower Act, KRS 61.102 , or KRS 205.8465 , as the EMT admitted in his deposition that his reports of alleged Medicare and Medicaid fraud were limited to oral complaints to the director of the county emergency medical services organization and other hospital personnel; because the EMT admittedly made no timely report of the alleged fraud or abuse to a statutorily-designated authority, he did not fall within the whistleblower exception to the terminable at-will doctrine. Miracle v. Bell County Emergency Med. Servs., 237 S.W.3d 555, 2007 Ky. App. LEXIS 235 (Ky. Ct. App. 2007).

Employees were not required to exhaust administrative remedies before bringing a cause of action under the Kentucky Whistleblower Act, KRS 61.102 . Kindle v. City of Jeffersontown, 2009 U.S. Dist. LEXIS 1481 (W.D. Ky. Jan. 7, 2009), vacated, 374 Fed. Appx. 562, 2010 FED App. 0159N, 2010 U.S. App. LEXIS 5320 (6th Cir. Ky. 2010 ).

Trial court properly dismissed a police officer’s retaliation claim because the officer could not satisfy the public disclosure element of the Kentucky Whistleblower statute where he conceded that the city’s new overtime policy had been publicly disclosed and approved and had been widely known prior to the date of his grievance, and any alleged illegality with regard to the city’s policy was readily redressable by means of a declaratory action. Helbig v. City of Bowling Green, 371 S.W.3d 740, 2011 Ky. App. LEXIS 294 (Ky. Ct. App. 2011).

8. Good Faith.

Because an employee’s statements were not based on actual knowledge, because no one at the office knew that the employee had reported the alleged misconduct to public officials, and because the employee’s actions did not support, aid, or substantiate a co-worker’s actions, the employee failed to show good faith and did not comply with KRS 61.102 , 61.103 . Thornton v. Office of the Fayette County Atty., 292 S.W.3d 324, 2009 Ky. App. LEXIS 133 (Ky. Ct. App. 2009).

Former employee raised a factual dispute as to whether defendants violated the Kentucky Whistleblower Act because there were unresolved issues of fact regarding whether the employee made her report in good faith. Pacheco v. Waldrop, 72 F. Supp. 3d 738, 2014 U.S. Dist. LEXIS 169824 (W.D. Ky. 2014 ), different results reached on reconsid., 84 F. Supp. 3d 606, 2015 U.S. Dist. LEXIS 13865 (W.D. Ky. 2015 ).

9. Issue Preclusion.

Former employee’s whistleblower claim relating to her termination was not barred by issue preclusion because the merits of the claim were not reached by a federal circuit court. A federal district court judge’s findings on whether the employee’s conduct was protected were not necessary to the opinion of the federal circuit court, which was instead based on Cabinet for Families & Children v. Cummings, 163 S.W.3d 425, 2005 Ky. LEXIS 168 (2005).Miller v. Admin. Office of the Courts, 361 S.W.3d 867, 2011 Ky. LEXIS 171 ( Ky. 2011 ).

Cited:

Harris v. Camp Taylor Fire Prot. Dist., 303 S.W.3d 479, 2009 Ky. App. LEXIS 80 (Ky. Ct. App. 2009); Sietsema v. Adams, 2015 Ky. App. LEXIS 116 (Aug. 14, 2015).

1. Practice and Procedure.

Unpublished decision: Since the employees were employed by a municipal corporation, and they were fired after reporting alleged violations committed by that employer, the employees sought to enforce the Kentucky Whistleblower Act, KRS 61.102 against the municipal corporation that fired them. Because the employees engaged in precisely the type of behavior that the Whistleblower Act was designed to protect, and the Kentucky Supreme Court indicated that the statute was enforceable against municipal corporations, the employees could proceed with their claim under the Kentucky Whistleblower Act against the city; therefore, the district court erred in holding that a municipality was not a political subdivision of the state, and, therefore, was not an employer for purposes of Kentucky’s Whistleblower Act, KRS 61.101-103. Kindle v. City of Jeffersontown, 374 Fed. Appx. 562, 2010 FED App. 0159N, 2010 U.S. App. LEXIS 5320 (6th Cir. Ky. 2010 ).

3. Elements of Crime.

Unpublished decision: District court erred when it dismissed the former employee's whistleblower claim, under the Kentucky Whistleblower Act, because the complaint adequately alleged facts supporting the requisite causation because, at the very least, the timeline of events the employee set forth in his pleadings, and which was detailed in the letters attached as exhibits, suggested that it was plausible that his employment was terminated as a result of his disclosure and subsequent litigation. Cope v. Gateway Area Dev. Dist., Inc., 624 Fed. Appx. 398, 2015 U.S. App. LEXIS 15240 (6th Cir. Ky. 2015 ).

Opinions of Attorney General.

Since Chapter 4 of Acts 1993 (1st Ex. Sess.) contained an emergency clause [§ 92] it became effective as a whole when the Governor tendered the bill, which he had signed, to the Secretary of State on February 18, 1993. However, section 87 (13) of Ch. 4 of Acts 1993 (1st Ex. Sess.), provided that, except as provided in §§ 88, 89, and 90, §§ 1-84 of the Act should become effective two hundred ten (210) days after the effective date of the Act, September 16, 1993; other subsections within § 87 establish a transition schedule with other specific dates calculated from the effective date of the Act. Such schedule is actually a listing of deadlines within which certain actions called for in § 87 of the Act are to be completed. Such schedule is as follows: “within 45 days of the effective date of the act” = on or before April 5, 1993; “within 60 days of the effective date of the act” = on or before April 19, 1993; “within 75 days of the effective date of the act” = on or before May 4, 1993; “within 90 days of the effective date of the act” = on or before May 19, 1993; “within 150 days of the effective date of the act” = on or before July 19, 1993; “within 180 days of the effective date of the act” = on or before August 17, 1993; “two hundred ten (210) days after the effective date of the act” = September 16, 1993. OAG 93-25 .

Research References and Practice Aids

Kentucky Bench & Bar.

Simon, Blowing the Whistle in the Commonwealth, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 28.

Northern Kentucky Law Review.

Hawkins and MacGillivray, A Summary of Kentucky Employment Law Decisions, 21 N. Ky. L. Rev. 357 (1994).

Bales & Burns, A Survey of Kentucky Employment Law, 28 N. Ky. L. Rev. 219 (2001).

Burns & Fischesser, A Survey of Kentucky Employment Law., 31 N. Ky. L. Rev. 85 (2004).

Kentucky Survey Issue: Article: Off-Duty Privacy: How Far Can Employers Go?, 37 N. Ky. L. Rev. 287 (2010).

1. Applicability.

Employee’s whistle-blower claim was not barred by the statute of limitations under KRS 61.103(2) because the limitation applied only to claims for punitive damages and injunctive relief, not to claims for compensatory damages. Claims for compensatory damages and other relief, as made available through KRS 61.990(4), were not subject to this limitation. Consol. Infrastructure Mgmt. Auth., Inc. v. Allen, 269 S.W.3d 852, 2008 Ky. LEXIS 295 ( Ky. 2008 ).

Kentucky Whistleblower Act’s waiver of sovereign immunity applies only in Kentucky state courts and does not waive immunity in federal courts. Akers v. County of Bell, 498 Fed. Appx. 483, 2012 FED App. 0903N, 2012 U.S. App. LEXIS 17384 (6th Cir. Ky. 2012 ).

In a case in which plaintiff alleged that she was wrongfully terminated from her employment with a university, in violation of the Kentucky Whistleblower Act, a reasonable juror could have found that plaintiff’s supervisor was aware of plaintiff’s criticism and was influenced by them to recommend to a vice president the elimination of plaintiff’s position as retaliation for her whistleblower disclosures. Even if the vice president were personally unaware of the disclosures, they could have reasonably been a factor that influenced the decision to eliminate plaintiff’s position. Harper v. Univ. of Louisville, 559 S.W.3d 796, 2018 Ky. LEXIS 437 ( Ky. 2018 ).

2. Qualified Immunity.

Because fired state employee’s state law claims for damages under this section did not invoke any federal law whatsoever, qualified immunity was not an available defense for state-employed defendants responsible for the firing. Gossman v. Allen, 950 F.2d 338, 1991 U.S. App. LEXIS 28984 (6th Cir. Ky. 1991 ).

Where a university professor who had been engaged by a state agency to perform a research project claimed a violation of the whistleblower statutes by the agency and his supervisors within the agency, neither the agency nor the supervisors were entitled to sovereign immunity, as the plain language of the whistleblower law, in KRS 61.103(2), waived such immunity. Cummings v. Cabinet for Families & Children, 2002 Ky. App. LEXIS 1658 (Ky. Ct. App. Aug. 23, 2002).

3. Punitive Damages.

Punitive damages may be awarded separately or in addition to equitable relief and may be awarded in the absence of compensatory damages. Commonwealth Dep't of Agric. v. Vinson, 30 S.W.3d 162, 2000 Ky. LEXIS 129 ( Ky. 2000 ).

4. Amendments to Statute.

The 1993 amendments to the statute, which changed the substantive rights of employees and the obligations of employers, changed the causation and weight of evidence components as to what an employee is required to prove successfully to support a claim under the act, and also required a new burden of proof from the employer in order to successfully defend a claim under the law, did not apply to an action arising from conduct by the defendant that occurred before the effective date of the statute. Commonwealth Dep't of Agric. v. Vinson, 30 S.W.3d 162, 2000 Ky. LEXIS 129 ( Ky. 2000 ).

5. Defendants.

Where a university professor was engaged by a state agency to perform a research project, the professor’s supervisors within the agency could be considered to be his employers for purposes of the whistleblower statutes, considering the definition of a proper party defendant in KRS 61.103(2) as a “person,” and considering the definition of an employer in KRS 61.101(2) as including “any person.” Cummings v. Cabinet for Families & Children, 2002 Ky. App. LEXIS 1658 (Ky. Ct. App. Aug. 23, 2002).

6. Disclosure.

The employee’s letter to superiors, tendered prior to the employee’s dismissal, in which the employee reported on safety violations to the superiors and expressed the employee’s intention to contact the Kentucky Occupational Safety and Health Administration if the problems were not addressed, constituted a disclosure within the meaning of KRS 61.102 and 61.103 . Consol. Infrastructure Mgmt. Auth., Inc. v. Allen, 269 S.W.3d 852, 2008 Ky. LEXIS 295 ( Ky. 2008 ).

Because an employee’s statements were not based on actual knowledge, because no one at the office knew that the employee had reported the alleged misconduct to public officials, and because the employee’s actions did not support, aid, or substantiate a co-worker’s actions, the employee failed to show good faith and did not comply with KRS 61.102 , 61.103 . Thornton v. Office of the Fayette County Atty., 292 S.W.3d 324, 2009 Ky. App. LEXIS 133 (Ky. Ct. App. 2009).

Plaintiffs were denied partial summary judgment on their Kentucky Whistleblower Act claim because plaintiffs pointed to no evidence whatsoever to establish that their report was made in good faith under KRS 61.103(3). Kindle v. City of Jeffersontown, 2011 U.S. Dist. LEXIS 40911 (W.D. Ky. Apr. 13, 2011).

Former Kentucky university employee did not make protected disclosure under the Kentucky Whistleblower Act because the alleged disclosures were made as part of her job in the university/s personnel department. Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 2015 U.S. Dist. LEXIS 2312 (W.D. Ky. 2015 ).

Where a former Kentucky university employee did not make protected disclosure under the Kentucky Whistleblower Act since the alleged disclosures were made as part of her job in the university's personnel department, in any event, none of the disclosures was within such a limited period of time so that a reasonable person could conclude that the disclosure was a factor in the personnel action. Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 2015 U.S. Dist. LEXIS 2312 (W.D. Ky. 2015 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Simon, Blowing the Whistle in the Commonwealth, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 28.

1. Common Law Rule Discarded.

Common law rule that right of compensation is incidental to title to public office and not to performing functions of same, thereby entitling officer to receive emoluments under the office even though he performs no duties or services providing he does not abandon the office, was discarded upon adoption of the present Constitution and the enactment of this section and KRS 64.410 . Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

2. Service in Armed Forces.

In light of this section and KRS 64.410 as enacted in conformity to Const., §§ 42, 97, 98, 106, 108, and 235, Commonwealth’s attorney was not entitled to receive emoluments of office while absent therefrom in Army. Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

3. Payment of Officer Performing Duty.

Where members of the city police force provided security services to the District Court the intent of the legislature in enacting this section, KRS 24A.140 , 24A.175 and 64.092 was to pay the person or agency performing the service, and thus the city was entitled to receive the funds held by the clerk of the Circuit Court. Baskett v. Radcliff, 709 S.W.2d 463, 1986 Ky. App. LEXIS 1131 (Ky. Ct. App. 1986).

Cited:

Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ).

Opinions of Attorney General.

Even though the jailer’s work is considered unsatisfactory, as long as he attempts to perform the duties in some manner, and as long as he remains in office, his salary cannot be changed during his term. OAG 64-399 .

An affidavit filed by another party after the regular judge’s death to the effect that his absence was caused by incapacitating illness would not be sufficient. OAG 69-660 .

Where a pro tem judge was appointed to serve during the regular judge’s statutory vacation and continued to serve due to the regular judge’s incapacitating illness, the fiscal court was legally responsible for paying the county judge (now county judge/executive) pro tem for his services in that capacity for the period of time he served. OAG 69-660 .

Where, due to incapacitating illness, the regular judge was unable to return to his duties following his statutory vacation and a pro tem judge served in his place, if the regular judge continued to receive his salary during his illness his estate was liable to the county for the money except for that received for the vacation period. OAG 69-660 .

Where a county attorney had been suspended from the practice of law he no longer possessed the qualifications of a county attorney and he must be deemed to have failed to perform his duties under this section and thus the stopping of his salary for such disqualification is authorized under this section. OAG 78-279 .

Where a property valuation administrator fails to perform his duties by working only 40% of the work week, his salary can be reduced pursuant to KRS 132.620 and this section for the period of time for which he is being paid but is not working. OAG 81-197 .

Research References and Practice Aids

Cross-References.

General Assembly to regulate deductions from salaries of officers for neglect, Const., § 235.

1. Common Law Rule Discarded.

Common law rule that right of compensation is incidental to title to public office and not to performing functions of same, thereby entitling officer to receive emoluments under the office even though he performs no duties or services providing he does not abandon the office, was discarded upon adoption of the present Constitution and the enactment of this section and KRS 64.410 . Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

2. Service in Armed Forces.

In light of this section and KRS 64.410 as enacted in conformity to Const., §§ 42, 97, 98, 106, 108, and 235, Commonwealth’s Attorney was not entitled to receive emoluments of office while absent therefrom in Army. Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

3. Payment of Officer Performing Duty.

Where members of the city police force provided security services to the District Court the intent of the Legislature in enacting this section, KRS 24A.140 , 24A.175 and 64.092 was to pay the person or agency performing the service, and thus the city was entitled to receive the funds held by the Clerk of the Circuit Court. Baskett v. Radcliff, 709 S.W.2d 463, 1986 Ky. App. LEXIS 1131 (Ky. Ct. App. 1986).

Cited:

Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ); Commonwealth v. Bradley, 516 S.W.2d 644, 1974 Ky. LEXIS 134 ( Ky. 1974 ).

Opinions of Attorney General.

An affidavit filed by another party after the regular judge’s death to the effect that his absence was caused by incapacitating illness would not be sufficient. OAG 69-660 .

Where, due to incapacitating illness, the regular judge was unable to return to his duties following his statutory vacation and a pro tem judge served in his place, if the regular judge continued to receive his salary during his illness his estate was liable to the county for the money except for that received for the vacation period. OAG 69-660 .

Where a pro tem judge was appointed to serve during the regular judge’s statutory vacation and continued to serve due to the regular judge’s incapacitating illness, the fiscal court was legally responsible for paying the county judge (now county judge/executive) pro tem for his services in that capacity for the period of time he served. OAG 69-660 .

1. Governor’s Office.

Governor’s office may close on Saturday afternoon. Cammack v. Harris, 234 Ky. 846 , 29 S.W.2d 567, 1930 Ky. LEXIS 283 ( Ky. 1930 ).

Opinions of Attorney General.

County offices are required to remain open only five (5) days per week. OAG 61-1021 .

The 1960 amendment permits the closing of public offices on any work day of any week, but said day cannot be divided into two (2) one-half days to be taken on Wednesday and Saturday afternoon. (Decision prior to 1976 amendment.) OAG 61-1021 .

In essence, a five-day work week is required for public offices generally including that of the county treasurer. OAG 69-32 .

The fiscal court has no statutory authority to designate legal holidays. OAG 69-406 .

A circuit clerk may close his office any one work day of the week (Monday through Saturday being a work week). The fiscal court has no authority to enter an order requiring a circuit clerk to keep his office open Monday thru Friday and on Saturday from 8:00 a.m. until 12:00 noon. OAG 70-218 .

Each public officer is to determine the work week schedule by deciding the particular full day that his office may be closed. OAG 70-684 .

Neither the county judge (now county judge/executive) nor the fiscal court has the authority to determine the workweek schedule for county officers. OAG 70-684 .

The closing day cannot be divided into two (2) half days to be taken on different days of the workweek. OAG 70-684 .

County public officials may designate the working day of the week their offices will be closed and the fiscal court has no authority to designate the closing day for such offices. OAG 73-560 .

Each county officer must observe this section and determine the specific closing day for his own office which is then legally closed and no business is required to be conducted on that day. OAG 74-67 .

No statute requires publication of the closing day but publication would be in the public interest. (Decision prior to 1976 amendment) OAG 74-663 .

A work day of any week means every day except Sunday. OAG 74-663 .

Whichever day is chosen, the closing must be for the whole or full day. OAG 74-663 (Decision prior to 1976 amendment).

A closing on Wednesday and Saturday afternoon violates this section. OAG 74-663 (Decision prior to 1976 amendment).

The closing day under this section is left to the discretion of each public official maintaining an office and is not a matter within the discretion of the fiscal court under KRS 67.080(6) (now 67.080(1)(c)) thus any fiscal court ordinance purporting to set the closing day for particular county offices would be wholly illegal and void, even if the ordinance were based upon KRS 67.083 , it would be invalid as being totally in conflict with this section. (Decision prior to 1976 amendment) OAG 74-663 .

Although the statutes do not set out the specific number of hours each week the county treasurer’s office should remain open, under this section and KRS 68.020 the office should be open five (5) days a week and keep reasonable business hours during those days. OAG 75-280 .

This section, when read with KRS 28.030 (repealed), makes it clear that the offices of the circuit and county clerks must remain closed on Sundays and, out of the six-day workweek remaining, each office may close one full working day so that the practical effect of the two (2) sections is to guarantee a five-day workweek for all county offices. OAG 75-464 .

Where county offices are open on a day or portion of a day of the workweek not permitted by this section, the usual proceedings and functioning of such offices will not be rendered invalid by virtue of such statutory violation. OAG 75-499 .

A circuit clerk may at his discretion, if his office is kept open Monday through Friday, close his office on Saturday regardless of the fact that other circuit court offices are kept open on Saturday. OAG 75-573 .

The 1976 amendment expressly permits county offices to elect to close on two (2) half days in one workweek rather than for one whole day. OAG 76-303 .

The official who holds the office determines whether an office will be open on Saturdays. OAG 77-504 .

Since a county office is permitted to close one day a week it can be closed one-half day on two (2) different days. OAG 77-504 .

Where the county dog pound is located on the private premises of the county dog warden pursuant to subsection (1) of KRS 258.195 , the dog warden, as a minor county officer, is required to make his facilities available to the public for the transaction of legitimate business activities at least five (5) days a week for seven (7) to eight (8) hours per day as required by this section. OAG 81-251 .

A county clerk had the authority to authorize his deputies to work in excess of a 40-hour work week, where it was reasonably necessary to carry out his statutory duties. KRS 337.285 mandates the payment of overtime (time and a half) where the deputy works longer than a 40-hour week and the overtime payment must come from the same source that the regular salary comes from; in the case of the county clerk, such payment would come from the fees of the office, or from the county treasury, or from a combination of both sources. OAG 82-478 .

All county offices are on a five-day work week basis under this section. OAG 82-478 .

Research References and Practice Aids

Cross-References.

Sheriff’s office to be kept open, when, KRS 134.160 .

ALR

Vacations and holidays, right of public employees as regards. 134 A.L.R. 195.

1. Malfeasance.

Failure of justice of the peace to report or account for fines constitutes malfeasance. Short v. Commonwealth, 187 Ky. 279 , 219 S.W. 165, 1920 Ky. LEXIS 111 ( Ky. 1920 ).

“Malfeasance” is the doing of an act which a person ought not to do. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ); Robbins v. Commonwealth, 232 Ky. 115 , 22 S.W.2d 440, 1929 Ky. LEXIS 403 ( Ky. 1929 ).

Trial court did not abuse its discretion in overruling motion for a continuance made by a justice of peace charged with malfeasance in office where an affidavit of the justice of peace containing the substance of the testimony of the two absent witnesses was permitted to be read to the jury as the testimony of the two absent witnesses without requiring the Commonwealth to admit the truth of such affidavit. Fannin v. Commonwealth, 331 S.W.2d 726, 1960 Ky. LEXIS 128 ( Ky. 1960 ).

Evidence was sufficient to sustain conviction of justice of peace for malfeasance in office where he admitted he retained money paid in settlement of a case in court to offset an accumulated debt of court costs owing by plaintiff in several other cases filed in his court but presented no documentary evidence of any indebtedness owed him by the plaintiff and the Commonwealth offered a receipt which was strong proof that some of the costs had actually been collected from the persons sued. Fannin v. Commonwealth, 331 S.W.2d 726, 1960 Ky. LEXIS 128 ( Ky. 1960 ).

Malfeasance, as a ground for the removal of a public officer, has reference to evil conduct or an illegal deed, the doing of that which one ought not to do, the performance of an act by an officer in his official capacity that is wholly illegal and wrongful. Fannin v. Commonwealth, 331 S.W.2d 726, 1960 Ky. LEXIS 128 ( Ky. 1960 ).

The general term “malfeasance” means the wrongful or unjust doing of some act which the doer has no right to perform. However, the more specific term “malfeasance in office” means the wrongful or unjust doing of some official act, which the doer, a public official, has no right to perform and has done so with gross negligence or evil intent. Bailey v. Commonwealth, 790 S.W.2d 233, 1990 Ky. LEXIS 52 ( Ky. 1990 ).

The definition of malfeasance does not require a showing of evil intent. Woodward v. Commonwealth, 984 S.W.2d 477, 1998 Ky. LEXIS 168 ( Ky. 1998 ).

Evidence was sufficient to show malfeasance by a county judge executive where he directed the county road department supervisor to improve a road on a citizen’s property, even after the supervisor told him that the road was not part of the county system. Woodward v. Commonwealth, 984 S.W.2d 477, 1998 Ky. LEXIS 168 ( Ky. 1998 ).

2. — Indictment.

Impeachment under Const., § 68 is not prerequisite to indictment for malfeasance. Commonwealth v. Rowe, 112 Ky. 482 , 66 S.W. 29, 23 Ky. L. Rptr. 1718 , 1902 Ky. LEXIS 183 ( Ky. 1902 ).

Indictment for malfeasance charges but one offense although several acts constituting malfeasance are mentioned therein, each of which might have constituted a separate offense had the Commonwealth so elected. Short v. Commonwealth, 187 Ky. 279 , 219 S.W. 165, 1920 Ky. LEXIS 111 ( Ky. 1920 ).

Indictment charging that after judge had been duly elected and properly inducted into office he unlawfully, willfully, corruptly, and maliciously issued a warrant of arrest without a proper affidavit on which to base said warrant and that such warrant was without foundation of law was sufficient to charge acts constituting malfeasance. Robbins v. Commonwealth, 232 Ky. 115 , 22 S.W.2d 440, 1929 Ky. LEXIS 403 ( Ky. 1929 ).

Indictment charging coroner with wrongfully, corruptly, knowingly and feloniously holding an inquest when under the circumstances he had no right under the statutes to hold such an inquest sufficiently charged the offense of malfeasance in office. Fuson v. Commonwealth, 241 Ky. 481 , 44 S.W.2d 578, 1931 Ky. LEXIS 135 ( Ky. 1931 ).

3. — Punishment.

Prosecutor may elect whether to prosecute under statute or for common-law offense; but, if elements are identical, punishment is limited by the statute. Commonwealth v. Rowe, 112 Ky. 482 , 66 S.W. 29, 23 Ky. L. Rptr. 1718 , 1902 Ky. LEXIS 183 ( Ky. 1902 ).

4. — Change Not Substantiated.

Court erroneously convicted a county judge executive of malfeasance and official misconduct in the first degree for making very personal and admittedly false accusations against a county attorney during a fiscal court meeting presided over by the judge. Bailey v. Commonwealth, 790 S.W.2d 233, 1990 Ky. LEXIS 52 ( Ky. 1990 ).

5. Misfeasance.

“Misfeasance in office” refers only to misconduct in connection with official duties. Commonwealth v. Williams, 79 Ky. 42 , 1 Ky. L. Rptr. 316 , 1880 Ky. LEXIS 85 ( Ky. 1880 ).

“Misfeasance in office” is the performance of a lawful act in an unlawful manner. Commonwealth v. Williams, 79 Ky. 42 , 1 Ky. L. Rptr. 316 , 1880 Ky. LEXIS 85 ( Ky. 1880 ); Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

Intention to do a wrong is an essential ingredient of this offense. Mere ignorance, inadvertence or mistake is not sufficient. Commonwealth v. McPeek, 20 S.W. 220, 14 Ky. L. Rptr. 215 (1892); Commonwealth v. Chinn, 110 Ky. 527 , 62 S.W. 7, 22 Ky. L. Rptr. 1921 , 1901 Ky. LEXIS 107 ( Ky. 1901 ); Lynch v. Commonwealth, 115 Ky. 309 , 73 S.W. 745, 24 Ky. L. Rptr. 2180 , 1903 Ky. LEXIS 96 ( Ky. 1903 ); Commonwealth v. Wood, 116 Ky. 748 , 76 S.W. 842, 25 Ky. L. Rptr. 1019 , 1903 Ky. LEXIS 243 ( Ky. 1903 ); Quinn v. Hendren, 187 Ky. 283 , 218 S.W. 1022, 1920 Ky. LEXIS 112 ( Ky. 1920 ); Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ); Robbins v. Commonwealth, 232 Ky. 115 , 22 S.W.2d 440, 1929 Ky. LEXIS 403 ( Ky. 1929 ).

“Misfeasance in office” is the wrongdoing of an official act with an evil intent, or accompanied by such gross negligence as to be equivalent to fraud. Commonwealth v. Wood, 116 Ky. 748 , 76 S.W. 842, 25 Ky. L. Rptr. 1019 , 1903 Ky. LEXIS 243 ( Ky. 1903 ); Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

Procuring by justice of the peace of a false affidavit constitutes misfeasance. Black v. Commonwealth, 250 Ky. 547 , 63 S.W.2d 598, 1933 Ky. LEXIS 727 ( Ky. 1933 ).

6. Willful Neglect.

Failure of fiscal court to keep roads in repair constitutes willful neglect. Commonwealth v. Boyle County Fiscal Court, 113 Ky. 325 , 68 S.W. 116, 24 Ky. L. Rptr. 234 , 1902 Ky. LEXIS 47 ( Ky. 1902 ).

Evidence of drunkenness and disorderly conduct is competent so far as it may affect willful neglect. Sanders v. Commonwealth, 249 Ky. 225 , 60 S.W.2d 586, 1933 Ky. LEXIS 502 ( Ky. 1933 ). See Commonwealth v. Williams, 79 Ky. 42 , 1 Ky. L. Rptr. 316 , 1880 Ky. LEXIS 85 ( Ky. 1880 ).

Repeated absence from place of duty is willful neglect. Sanders v. Commonwealth, 249 Ky. 225 , 60 S.W.2d 586, 1933 Ky. LEXIS 502 ( Ky. 1933 ).

Failure of justice of peace to prepare search warrant as requested by complaining officers was not willful neglect of duty under this section since KRS 242.370 makes it the duty of the justice of peace to file the affidavit when presented and the evidence showed that no affidavit was presented to him to be filed. Wells v. Commonwealth, 329 S.W.2d 210, 1959 Ky. LEXIS 154 ( Ky. 1959 ).

7. — Indictment.

That indictment for wilful neglect charges several instances of neglect is not fatal. Sanders v. Commonwealth, 249 Ky. 225 , 60 S.W.2d 586, 1933 Ky. LEXIS 502 ( Ky. 1933 ).

8. Fiscal Court.

Fiscal court members are not punishable criminally for the exercise of judicial discretion in passing on claims, even though they act erroneously. Henry v. Commonwealth, 126 Ky. 357 , 103 S.W. 371, 31 Ky. L. Rptr. 760 , 1907 Ky. LEXIS 52 ( Ky. 1907 ).

9. Local Option Laws.

Statement by sheriff to deputy in local option area that liquor was being stored on plaintiff’s premises and was being illegally sold thereon, followed by issuance of search warrant and unsuccessful search for liquor, was an absolute privileged communication barring plaintiff’s action for slander, since the subject to which the slanderous words related was the local option law, which the officers had the duty of vigorously enforcing. Catron v. Jasper, 303 Ky. 598 , 198 S.W.2d 322, 1946 Ky. LEXIS 908 ( Ky. 1946 ).

10. Appeal.

A convicted officer may appeal to the Court of Appeals, and supersede the judgment both as to the fine and the forfeiture of office, which superseding is effective as of the date of execution of bond, as a result the officer may continue the performance of his duties pending the outcome of the appeal. Hazelrigg v. Douglass, 126 Ky. 738 , 104 S.W. 755, 31 Ky. L. Rptr. 1121 , 1907 Ky. LEXIS 94 ( Ky. 1907 ).

Cited:

Hughes v. Ramey, 305 Ky. 128 , 203 S.W.2d 63, 1947 Ky. LEXIS 797 ( Ky. 1947 ); Goodman v. Commonwealth, 301 S.W.2d 2, 1957 Ky. LEXIS 478 ( Ky. 1957 ); Shearer v. Hall, 399 S.W.2d 701, 1965 Ky. LEXIS 31 ( Ky. 1965 ); Whitaker v. Commonwealth, 487 S.W.2d 901, 1972 Ky. LEXIS 78 ( Ky. 1972 ); Woodward v. Commonwealth, 949 S.W.2d 599, 1997 Ky. LEXIS 75 ( Ky. 1997 ).

Opinions of Attorney General.

County road equipment may not work on private roads, with or without compensation, as the fiscal court is only authorized to provide for the good condition of highways and the responsibility for such illegal use rests upon the individual members of the fiscal court. OAG 68-86 ; OAG 73-290 .

The fiscal court cannot grant leave of absence to a county coroner who voluntarily accepts employment overseas with the department of the army as a civilian embalmer as the prolonged absence might subject the coroner to claims of abandonment or neglect of his office and no statutory authority exists for granting such leave. OAG 69-239 .

A prolonged absence of the coroner from the state could subject her to a claim of abandonment or neglect of office. OAG 71-446 .

Absent indictment, there is no statutory authority for a grand jury report on misfeasance, malfeasance and negligence of fiscal court members regarding courthouse and road repair. OAG 72-88 .

Where the jailer failed to arrest a drunk who was then run over by a car, the duty to arrest is to the public and not to the drunk, so that jailer may be indicted for wilful neglect in discharge of his official duties under this section or Const., § 227. OAG 73-163 .

If a judge refuses to hear the evidence before dismissing a charge against a juvenile, he may be guilty of misfeasance and subject to indictment upon presentment of the evidence to the grand jury by the police officers together with their testimony as to the misconduct of the judge. OAG 74-394 .

If a fiscal court fails to furnish an adequate jail, its members are subject to a mandamus action in Circuit Court and the members of fiscal court are subject to an indictment for willful neglect in the discharge of official duties if they fail, after a reasonable period of time elapses within which they should have taken action, to secure a sufficient jail. OAG 78-129 .

If the department for local government’s investigation and supervision of a county’s fiscal affairs discloses the possible commission of crime on the part of those local officials responsible for carrying on the fiscal affairs of the county, the department should disclose it to the local prosecutorial officers, for any action they deem proper, including possible prosecutions under this section or KRS Chapter 522. OAG 80-139 .

This section requires an indictment by a Circuit Court grand jury in order to charge that offense; but since KRS 24A.110 vests exclusive jurisdiction of misdemeanor cases, generally, in the district court, the Circuit Court in which such an indictment is returned has necessarily, because of the jurisdictional statute, the authority and duty to refer the indictment for trial or other appropriate disposition to the district court of that county. OAG 80-152 .

The failure of fiscal court to adopt rules for the jail operation under KRS 441.010 (now KRS 441.045 ) could possibly subject the members of that body to an indictment for willful neglect in the discharge of their duties, as prescribed in this section. OAG 80-154 .

The prosecution of an indictment against a jailer or a deputy jailer under this section is a matter for the grand jury of the Circuit Court, not the district court; likewise, any indictment framed around some penal code offense would come under the jurisdiction of the Circuit Court. OAG 80-154 .

If a member of a county fiscal court, who was operating a cable television system in that county, engages in an easement contract with the county on a county right-of-way, the member could be subject to an action for malfeasance under this section. OAG 80-194 .

The jailer was required to operate a community center which had been designated as the place for prisoners to perform community service work by the county judge/executive; if he refused to operate the center, he could be subjected to an action of claimed malfeasance in office or willful neglect in the discharge of official duties, pursuant to this section. OAG 83-245 .

The failure of a county official to perform an act mandated by statute provides a basis for charges being brought under this section. OAG 88-45 .

Sheriffs do not have the manpower to enforce all the laws of the Commonwealth in each county; at the same time, however, they have no general discretion to refrain from enforcement of certain laws, or to fail to take reasonable action in relation to a complaint regarding violation of a statutory provision. Should a sheriff willfully refrain from enforcement of statutory provisions, he or she might be exposed to a claim of willful neglect of duty under this section. OAG 92-61 .

Research References and Practice Aids

Cross-References.

Abuse of public office, KRS 522.010 to 522.040 .

Bonds, failure to perform duty in issuance of, KRS 66.040 , 66.990 .

Clerks, failure to perform duties under election laws, KRS 118.995 ; failure to perform duties under revenue laws, KRS 136.020 , 136.190 , 136.990 .

Constitutional provisions, Const., § 227.

County and city officials making illegal expenditures and contracts, KRS 68.110 , 68.990 .

County budget law, officer violating, KRS 66.990 , 68.300 , 68.990 .

Criminal proceeding, removal of peace officer not bar to, KRS 63.130 .

Fiscal failure to perform duty under road laws, KRS 178.990 , 179.990 .

Illegal fee-bills, KRS 64.460 , 64.990 .

Joint liability in official capacity, KRS 412.050 .

Misfeasance and malfeasance, officers liable to indictment for, Const., § 227.

Motor vehicle laws, failure of peace officers to enforce, KRS 189.520 .

Obstructing examination of office, KRS 43.990 .

Official misconduct, KRS 522.010 to 522.040 .

Peace officer, failure to prevent mob from taking prisoner, KRS 63.140 , 63.990 ; motor vehicles, KRS 189.520 .

Removal of county seat, failure of officers to perform duty, KRS 67.990 .

Reports, false and failure to make, KRS 64.990 .

Sheriffs, failure to perform election duties, KRS 119.125 .

Sheriffs retaining deputy’s compensation, KRS 134.200 , 134.990 .

Warehouse inspector, misfeasance or malfeasance, KRS 359.070.

Kentucky Law Journal.

Bivin, The Historical Development of the Kentucky Courts, 47 Ky. L.J. 465 (1959).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Indictment for Willful Neglect in Discharge of Official Duty, Form 10.07.

ALR

Conduct contemplated by statute which makes neglect of duty by public employe a punishable offense. 134 A.L.R. 1250.

Personal liability of policeman, sheriff, or similar peace officer or his bond for injury suffered as a result of failure to enforce law or arrest lawbreaker. 41 A.L.R.3d 700.

Removal of public officers for misconduct during previous term. 42 A.L.R.3d 691.

1. Construction.

The offense covered by this section is that of disabling oneself by drunkenness from performing his duties, not becoming drunk while performing a duty. Johnson v. Commonwealth, 111 Ky. 630 , 64 S.W. 467, 23 Ky. L. Rptr. 856 , 1901 Ky. LEXIS 235 ( Ky. 1901 ).

1. Pleadings.

Officer prosecuted for benefiting from road contract is estopped from pleading that he had not qualified by taking oath. Commonwealth v. Pate, 110 Ky. 468 , 61 S.W. 1009, 22 Ky. L. Rptr. 1890 , 1901 Ky. LEXIS 102 ( Ky. 1901 ).

Magistrates of a county court do not have the authority to contract with themselves for road work or to do the work personally and receive payment and petition alleging that magistrates while acting as members of the county fiscal court, allowed certain claims to themselves for work allegedly done for the county, caused lumber to be sold to a bank which was used in construction of bridges and for other purposes under the management and control of the fiscal court and that although the lumber was delivered directly by the magistrates to the county, the payment was made directly to the bank by the county, and the bank either credited the amount to the magistrates or paid the money directly to them stated a cause of action since it alleges facts which if proven, showed that this section was violated during the years in question. Trimble County v. Moore, 275 S.W.2d 50, 1955 Ky. LEXIS 341 ( Ky. 1955 ).

2. Contracts.

A “contract” may be written or verbal. Commonwealth v. Lane, 125 Ky. 725 , 102 S.W. 313, 31 Ky. L. Rptr. 311 , 1907 Ky. LEXIS 338 ( Ky. 1907 ).

Contracts of public officers with themselves as individuals, either for services or materials to be used by county, are void, and not merely voidable. Logan County v. Edwards, 206 Ky. 53 , 266 S.W. 917, 1924 Ky. LEXIS 280 ( Ky. 1924 ).

3. Prohibited Employment.

A justice of the peace may not be employed or rent teams in the construction of a road in his county. Commonwealth v. Lane, 125 Ky. 725 , 102 S.W. 313, 31 Ky. L. Rptr. 311 , 1907 Ky. LEXIS 338 ( Ky. 1907 ).

4. Recovery of Payments.

Since payments made to members of county fiscal court for actual labor performed by them on roads were in violation of this section and KRS 61.220 county could not be estopped from recovering them. Trimble County by Shaver v. Moore, 312 S.W.2d 623, 1958 Ky. LEXIS 236 ( Ky. 1958 ).

Where during their term of office five (5) county magistrates ordered the payment of certain claims to themselves, allegedly for work done and for supplies furnished to the county in connection with the roads and bridges, all sums were illegally received under this section and appellant representing county taxpayers was entitled to recover in behalf of the county from each magistrate the amount of money paid each. Fannin v. Davis, 385 S.W.2d 321, 1964 Ky. LEXIS 158 ( Ky. 1964 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

Opinions of Attorney General.

In a county where the position of road engineer or road supervisor had not been established, the magistrate could be reimbursed for mileage expenses out of the county treasury for actual mileage traveled in supervising the county road system. OAG 66-57 .

Inasmuch as the county judge (now county judge/executive) appoints the board of directors of a garbage disposal district and that board may contract with a private agency to perform garbage disposal work this section would prohibit a county judge (now county judge/executive) from leasing his joint interest in real estate to the private agency which has the garbage disposal contract. OAG 72-402 .

Where the city of Louisa and Lawrence County leased land for a landfill dump from a justice of the peace who is a member of the fiscal court with consideration of the construction and maintenance of a county road, construction of a bridge for ingress and egress to lessor’s property, fence construction and maintenance of said dump, the justice has violated this section by contracting with the county and he has violated KRS 61.220 which prohibits a lease contract which involves a claim against the county. OAG 73-265 .

Where justice of peace submitted $200 claim against county for gas purchased from his station, this section was violated and prosecution is in quarterly court, in addition KRS 61.220 was violated and would be prosecuted in Circuit Court pursuant to KRS 25.010 (repealed). OAG 73-699 .

Although this section and KRS 61.220 prohibits a magistrate from becoming interested in any contract let by the fiscal court, an airport board is neither a city nor county board but a separate corporate entity not contemplated by the Constitution and there would be no conflict of interest in the magistrate furnishing supplies to the contract operator of the airport. OAG 74-253 .

There is no conflict of interest under this section if a corporation whose president is county magistrate has a contract with a county airport board established under KRS 183.132 as the airport authority is neither a city nor a county board but a separate corporate entity. OAG 74-253 .

The interest of a fiscal court member who is a main stockholder in a company distributing oil products to a local dealer, in whom he has no pecuniary or proprietorship interest, who in turn contracts with the county for the sale of fuel oil products would be too remote to be covered by this section. OAG 74-316 .

A fiscal court may, without advertising for bids, purchase from the county clerk materials and supplies not in excess of $2500. OAG 75-98 .

The county cannot contract with magistrates to pay them additional county money for supervising persons in local government employment programs as this is prohibited by KRS 61.220 and this section. OAG 75-410 .

A fiscal court could award a contract to haul gravel for the county road department to the son of a member of the fiscal court, where the magistrate has no direct or indirect interest in either the contract or his son’s business. OAG 76-253 .

There would be no constitutional or statutory restriction on the right of an individual employed on a month to month basis by the county from running for the office of magistrate; however, if elected he could not continue in his employment. OAG 77-367 .

Where the fiscal court is legally required to place a legal advertisement in the county newspaper in which a member of the fiscal court has a pecuniary interest, there would be no violation of this section. OAG 77-405 .

Since no member of the fiscal court may become interested in any claims against the county, an insurance agency owned by the county judge (now county judge/executive) could not write the workmen’s compensation insurance for the county. OAG 77-453 .

“Internal improvements” includes railroads, public roads, bridges and improvement of rivers. OAG 78-232 .

Where the fiscal court received a federal grant to build a center for the aged and the building was partially built when one of the county magistrates was hired to do some interior painting for $200, he had not acquired an interest in a contract involving an internal improvement within this section, but he did violate KRS 61.220 even though the paint contract in no way clouded his sound judgment at the time he participated in letting the original prime contract. OAG 79-137 .

Public policy dictates that the deputy county judge/executive must avoid participating, directly or indirectly, in any proceeding involving a county contract with her spouse. OAG 80-296 .

The county judge/executive and other members of fiscal court may work on county roads for free, but not for pay since this section and KRS 61.220 prohibit the members of fiscal court from being financially interested in county road improvements or other claims against the county and since the justices of the peace on the fiscal court could not allow certain claims to themselves for work done for the county. OAG 81-186 .

Research References and Practice Aids

Cross-References.

Misuse of confidential information, Penal Code, KRS 522.040 .

Kentucky Law Journal.

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

1. Purpose.

This section was intended to prevent members of the fiscal court from entering into contracts with the county for the salutary purpose of protecting the county against the sinister influences and purposes of its fiscal agencies who might for the purpose of gain enter into contracts much to their own advantage and greatly to the detriment of the county. Knox Fiscal Court v. Davis, 267 Ky. 155 , 101 S.W.2d 409, 1936 Ky. LEXIS 758 ( Ky. 1936 ).

2. Actions Prohibited.

The county judge (now county judge/executive) and supervisor of roads should be different persons, although it is provided that the fiscal court instead of appointing the supervisor, may authorize the county judge (now county judge/executive) to let out the working of roads, the other duties of the office being discharged by road overseers in which case the county judge (now county judge/executive) acts as judge, and not as supervisor and is entitled to no additional compensation for his services. Daviess County v. Goodwin, 116 Ky. 891 , 77 S.W. 185, 25 Ky. L. Rptr. 1081 , 1903 Ky. LEXIS 260 ( Ky. 1903 ).

Where fiscal court did not appoint a road supervisor but entered an order of court investing the county judge (now county judge/executive) with the general supervision of the roads of the county and attempted to invest the justices of the magisterial districts with powers as assistants and the justices were allowed a sum in payment for their services, the fiscal court attempted to create a different office or perhaps the same office with a different name and then attempted to fill it by electing themselves and voting themselves pay for their services which was invalid and the county was not liable to pay for their services. Pulaski County v. Sears, 117 Ky. 249 , 78 S.W. 123, 25 Ky. L. Rptr. 1381 , 1904 Ky. LEXIS 185 ( Ky. 1904 ).

The fiscal court which is made up of the magistrates cannot appoint themselves as road supervisors in their respective districts since the interests of the county might seriously suffer because the person who is required by law to protect the county’s interests as between the county and the supervisor would himself be a supervisor. Boyd County v. Arthur, 118 Ky. 932 , 82 S.W. 613, 26 Ky. L. Rptr. 906 , 1904 Ky. LEXIS 121 ( Ky. 1904 ).

The fiscal court may not appoint a magistrate who is a member of the fiscal court to construct a bridge or contract for its construction. Millikin v. George L. Gillum & Son, 135 Ky. 280 , 122 S.W. 151, 1909 Ky. LEXIS 286 ( Ky. 1909 ).

An oral authorization by other members of the fiscal court for a county judge (now county judge/executive), a member of the fiscal court, to cultivate county poor farm land was an illegal contract with the county under this section. Black v. Davenport, 189 Ky. 40 , 224 S.W. 500, 1920 Ky. LEXIS 371 ( Ky. 1920 ).

Indictment charging offense denounced by this section need not allege the exception created by another statute since it is a matter of defense to be proven by defendant that his acts come without such exception. Sigmon v. Commonwealth, 207 Ky. 786 , 270 S.W. 40, 1925 Ky. LEXIS 186 ( Ky. 1925 ).

Orders of fiscal court for county judge (now county judge/executive) to act as commissioner to settle with the sheriff for which the county judge (now county judge/executive) was paid $50 annually were void and not merely voidable since there was not only no authority for the fiscal court either to employ or pay for such services, but it was expressly prohibited from so doing. Breathitt County v. Hagins, 211 Ky. 391 , 277 S.W. 469, 1925 Ky. LEXIS 885 ( Ky. 1925 ).

The authority given the fiscal court to employ themselves as road committees is limited to instances where the court had not provided for a county engineer. Knox Fiscal Court v. Davis, 267 Ky. 155 , 101 S.W.2d 409, 1936 Ky. LEXIS 758 ( Ky. 1936 ).

3. — Exception.

Without a provision in the law providing that the fiscal court in a county with a free turnpike system could elect one or more of its members as a committee to supervise and control the roads and to pay each member a per diem compensation it was illegal for any member of the fiscal court to receive compensation for service on such a committee. Flowers v. Logan County, 138 Ky. 59 , 127 S.W. 512, 1910 Ky. LEXIS 41 ( Ky. 1910 ); Thomas v. O'Brien, 138 Ky. 770 , 129 S.W. 103, 1910 Ky. LEXIS 132 ( Ky. 1910 ); O'Connor v. Weissinger, 142 Ky. 447 , 134 S.W. 1126, 1911 Ky. LEXIS 252 ( Ky. 1911 ).

A magistrate or justice of the peace and by virtue thereof a member of a fiscal court who accepts for compensation employment from the fiscal court to superintend work on the public roads of a county unless the county maintains a “free turnpike” system violates this section. Commonwealth v. Stepp, 193 Ky. 469 , 236 S.W. 1049, 1922 Ky. LEXIS 36 ( Ky. 1922 ).

4. Contracts and Orders.

A “contract” under this section may be either oral or written. Commonwealth v. Lane, 125 Ky. 725 , 102 S.W. 313, 31 Ky. L. Rptr. 311 , 1907 Ky. LEXIS 338 ( Ky. 1907 ).

Contracts and orders of a fiscal court contrary to this section are not merely voidable, but are void. Logan County v. Edwards, 206 Ky. 53 , 266 S.W. 917, 1924 Ky. LEXIS 280 ( Ky. 1924 ).

Contracts and orders of a fiscal court contrary to this section are not merely voidable, but are void and subject to collateral attack, and the county may recover in an independent action. Breathitt County v. Hagins, 211 Ky. 391 , 277 S.W. 469, 1925 Ky. LEXIS 885 ( Ky. 1925 ).

5. Bad Faith or Fraud.

Validity of the official’s acts does not necessarily depend on his good faith. Black v. Davenport, 189 Ky. 40 , 224 S.W. 500, 1920 Ky. LEXIS 371 ( Ky. 1920 ).

Bad faith or fraud is not an element of the offense charged in this section, and good faith is not a defense in a criminal action thereunder. Sigmon v. Commonwealth, 207 Ky. 786 , 270 S.W. 40, 1925 Ky. LEXIS 186 ( Ky. 1925 ).

6. Civil Liability to Innocent Third Parties.

An officer violating this section is civilly liable to innocent third parties on warrants received by him in the transaction and discounted to them, to the extent that they are unable to recover from the county. Millikin v. George L. Gillum & Son, 135 Ky. 280 , 122 S.W. 151, 1909 Ky. LEXIS 286 ( Ky. 1909 ).

7. Recovery of Amounts Paid.

If the thing done is illegal and not warranted by law, the county may deny its validity, though it be beneficial. If the thing done is authorized, but it is proposed to do it in an unauthorized manner, the officers will be compelled to do it properly, upon seasonable complaint. But where the thing is authorized to be done, and is done by the proper party, but in a manner contrary to statute, the courts will not require refund of the money while letting the public enjoy the benefits of the expenditure. Flowers v. Logan County, 138 Ky. 59 , 127 S.W. 512, 1910 Ky. LEXIS 41 ( Ky. 1910 ); Clark v. Logan County, 138 Ky. 676 , 128 S.W. 1079, 1910 Ky. LEXIS 119 ( Ky. 1910 ).

Where payments, though made to a member of the fiscal court, were for the benefit of and disbursed to nonmembers in good faith, and the public received that to which it was entitled, and the practice had long been acquiesced to, the county was estopped from recovering the amount of the payments from the fiscal court member, but the burden of proof was on the member to show proper expenditure of funds. Flowers v. Logan County, 138 Ky. 59 , 127 S.W. 512, 1910 Ky. LEXIS 41 ( Ky. 1910 ).

County judge (now county judge/executive) could not legally be employed as commissioner of the county poorhouse and the county was entitled to recover all compensation paid that was not barred by the statute of limitations. Clark v. Logan County, 138 Ky. 676 , 128 S.W. 1079, 1910 Ky. LEXIS 119 ( Ky. 1910 ).

Where a county judge (now county judge/executive), while acting as presiding judge and performing duties as a member of the fiscal court, voted on numerous claims which were paid to him and to a firm of which the judge was the principal owner, the county could recover the sums since they were in violation of this section. Logan County v. Edwards, 206 Ky. 53 , 266 S.W. 917, 1924 Ky. LEXIS 280 ( Ky. 1924 ).

Where justice of the peace, who was a member of the county fiscal court, purchased claims against the county which were allowed by the fiscal court of which he was a member and paid by the county treasurer, the county could recover the amounts paid. Logan County v. Head, 206 Ky. 97 , 266 S.W. 883, 1924 Ky. LEXIS 258 ( Ky. 1924 ).

A fiscal court member may recover moneys advanced the county as an accommodation. Logan County v. Head, 206 Ky. 97 , 266 S.W. 883, 1924 Ky. LEXIS 258 ( Ky. 1924 ).

Since payments made to members of county fiscal court for actual labor performed by them on roads were in violation of this section and KRS 61.210 county could not be estopped from recovering them. Trimble County by Shaver v. Moore, 312 S.W.2d 623, 1958 Ky. LEXIS 236 ( Ky. 1958 ).

8. Applicability.

Because attorneys’ representation of city employees was not an “interest” in a claim against the city, the statute was not applicable, and the city’s remedy was to disqualify the attorneys, who were members of the city council, due to their conflicts of interest; subsection (1) did not address a situation where a member of a fiscal court or consolidated local government was a practicing attorney who sought to represent a client with a claim affecting the county. Louisville/Jefferson Cty. Metro Gov't v. Ackerson, 2020 Ky. App. LEXIS 46 (Ky. Ct. App. Apr. 24, 2020).

Cited:

Lemon v. Fiscal Court of Casey County, 291 S.W.2d 572, 1956 Ky. LEXIS 396 ( Ky. 1956 ).

Opinions of Attorney General.

A fiscal court may enter into a contract with a corporation whose president is the county court clerk and also the clerk of the fiscal court. OAG 60-774 .

Where a county judge (now county judge/executive) appointed his wife to serve as juvenile officer at a salary although she performed no services, the judge had an indirect interest in a contract or claim against the county contrary to this section. OAG 61-527 .

Where a proposed lease between the county and the wife of a magistrate would be void because of the indirect interest of the magistrate, the execution of the contract would make the magistrate subject to criminal prosecution. OAG 64-466 .

Where the wife of a magistrate and member of the fiscal court was one of the applicants for the lease and operation of the county home for the indigent, such a lease would be void since the magistrate would be at least indirectly involved in such contract. OAG 64-466 .

Where the wife of a magistrate and member of the fiscal court was one of the applicants for the lease and operation of the county home for the indigent, the contract would be void because of the magistrate’s indirect interest even if it were awarded to the wife on the basis of competitive bidding. OAG 64-466 .

A member of a fiscal court who is also the owner of a licensed retail liquor store would be prohibited from selling liquor to a county hospital. OAG 65-80 .

A magistrate would be disqualified under the statute from entering into a contract with the state or any of its departments or agencies, in view of the fact that the contract would eventually lead to a claim against the state. OAG 65-126 .

A member of the fiscal court renting office space owned by himself to be used as a magistrate’s courtroom for himself, with the rent to be a credit against excess fees, would be a violation of the statute. OAG 66-221 .

The wife of a magistrate could not serve as county treasurer while her husband was a member of the fiscal court that hired her. OAG 66-412 .

A school district is not embraced in the term “district” as contained in the statute. OAG 66-564 .

Where the construction of a school building and later lease back to the school district was to be assumed by the county, a company in which the county judge (now county judge/executive) was the principal stockholder would be prohibited from selling materials to private contractors building the school. OAG 66-564 .

A magistrate may be legally reimbursed for his actual expenses in hauling surplus food commodities for the county on the basis of mileage provided the mileage rates only provide reimbursement of actual expenses and no contract for hauling is involved and the expenses are properly documented. OAG 68-614 .

The indirect interest of the county judge (now county judge/executive) in his wife’s property would be such that his wife’s operation of the county rest home would produce a conflict of interest. OAG 69-375 .

A person whose insurance agency handles a portion of the insurance on the courthouse and county jail would be disqualified for a conflict of interests from being appointed county judge (now county judge/executive) pro tem since he might have to preside over the fiscal court. OAG 69-626 .

This statute would prohibit the magistrate of a county fiscal court from selling oil to the school board. OAG 69-627 .

Sale of gasoline at a county airport by a magistrate to private individuals or corporations does not violate this section. OAG 70-84 .

The employment by the fiscal court of the son-in-law of a magistrate as a regular member of the county road department would not constitute a prohibited direct or indirect interest. OAG 71-32 .

The statutes do not contemplate supervisory work being done by the fiscal court on a district-member basis. OAG 71-315 .

This section is broad enough to prohibit the county judge (now county judge/executive) from appointing his wife as pro tem judge or trial commissioner, since either job would involve a money claim against the county for services performed, and the county judge (now county judge/executive) has such a beneficial interest in his wife’s property and affairs as to be indirectly interested in any contract to which she is a party. OAG 72-167 .

Where the city of Louisa and Lawrence County leased land for a landfill dump site from a justice of the peace who is a member of the fiscal court with consideration of the construction and maintenance of a county road, construction of a bridge for ingress and egress to lessor’s property, fence construction, and maintenance of said dump, the justice has violated KRS 61.210 by contracting with the county and he has violated this section which prohibits a lease contract which involves a claim against the county. OAG 73-265 .

Where a justice of the peace submitted a $200 claim against the county for gas purchased from his gas station, this section was violated and prosecution is in quarterly court; in addition this section was violated and would be prosecuted in Circuit Court pursuant to KRS 25.010 (repealed). OAG 73-699 .

Where a county commissioner was associated with an insurance agency doing business with the county, a prohibited conflict of interest would arise unless the only remuneration from the insurance agency is for nonstate business that he refers to the agency. OAG 73-806 .

There is no violation of this section where a corporation, whose president is county magistrate, has a contract with a county airport board established under KRS 183.132 as the airport authority is neither a city nor a county board but a separate corporate entity. OAG 74-253 .

There was no conflict of interest where one member of the fiscal court voted to transfer county funds from one bank to another bank of which he was a director. OAG 74-269 .

The interest of a fiscal court member who is a main stockholder in a company distributing oil products to a local dealer, in whom the member has no pecuniary or proprietary interest, who in turn contracts with the county for the sale of fuel oil products would be too remote to be covered by this section. OAG 74-316 .

This section prohibits any member of the fiscal court from selling his land to or buying land from the county. OAG 74-466 .

The office of magistrate on a county fiscal court is not incompatible under KRS 61.080 or this section with a position as employee of a hospital being operated as a county hospital under KRS 216.040 (repealed), but it may be incompatible under the common-law rule of Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 (1917). OAG 74-609 .

A fiscal court may, without advertising for bids, purchase from the county clerk materials and supplies not in excess of $2500. OAG 75-98 .

A fiscal court could award a contract to haul gravel for the county road department to the son of a member of the fiscal court, where the magistrate has no direct or indirect interest in either the contract or his son’s business. OAG 76-253 .

The purchase of gasoline and oil by county truck drivers from a service station owned by the county sheriff and a county judge (now county judge/executive) would be prohibited by this section. OAG 76-265 .

Although a county judge (now county judge/executive) pro tem may have to preside over the fiscal court in the absence of the county judge (now county judge/executive), the mere potentiality of service on the fiscal court would not prohibit the county judge (now county judge/executive) pro tem from serving as a dispatcher of a dispatching service which is operated out of county funds. OAG 76-518 .

A magistrate, as an officer of the fiscal court, may not also set up and service voting machines for the county. OAG 78-42 .

A member of fiscal court voting on a matter concerning a brother or sister should not participate in the vote although the member has no pecuniary interest in the matter in accordance with the public policy consideration that the public is entitled to have its representatives perform their duties free from personal bias or interest. OAG 78-153 .

The furnishing of concrete by a fiscal court member to a new county hospital would probably be construed as a “furnishing of concrete to the county” and the funding of the construction by a bond issue would not alter the county’s dominant and controlling role in the construction of a county hospital. OAG 78-232 .

If a county magistrate, a member of the fiscal court, accepted a job as manager of a local quarry from which the county purchased its crushed stone, and if the manager had any pecuniary interest in those sales, this section would be violated. OAG 79-37 .

This section makes no distinctions between a prime contract and a later-executed subcontract. OAG 79-137 .

Where the fiscal court received a federal grant to build a center for the aged and the building was partially built when one of the county magistrates was hired to do some interior painting for $200, he had not acquired an interest in a contract involving an internal improvement within KRS 61.210 , but he did violate this section even though the paint contract in no way clouded his sound judgment at the time he participated in letting the original prime contract. OAG 79-137 .

Although this section suggests a technical conflict of interest where a fiscal court member owns a share of stock in a funeral home corporation which billed the county for the burial expense of a pauper, it is possible that, upon the testimony of an accountant that the fiscal court member’s monetary interest in the burial transaction is nominal or of no meaningful value, such as to involve an interest remote or speculative, the courts might hold that this section would not apply. OAG 80-230 .

If a share of stock, in a company with which a county deals, is owned, not by a member of the fiscal court, but by a family relative not his wife, there would be no conflict of interest under this section. OAG 80-230 .

Where a member of a fiscal court serves concurrently on the board of directors of a nonprofit corporation managing a geriatric facility which it has leased from the fiscal court, there is no violation of this section since the fiscal court member would not be acquiring an interest in a contract with the county or in a claim against the county. OAG 81-130 .

The county judge/executive and other members of the fiscal court may work on county roads for free, but not for pay since KRS 61.210 and this section prohibit the members of fiscal court from being financially interested in county road improvements or other claims against the county and since justices of the peace on the fiscal court could not allow certain claims to themselves for work done for the county. OAG 81-186 .

Where the son of a fiscal court commissioner owned and operated a travel agency which handled the purchase of airline tickets for county officials traveling on county business on a contract basis and he received a commission from the airline for performing the service, this section was not violated, since the contract was not between the travel agency and an individual member of the fiscal court and there was no showing that the father of the travel agent either directly or indirectly had a pecuniary interest in the contract. OAG 81-360 .

There was no statutory conflict of interest where a member of the county fiscal court served as a director on the board of a nonprofit corporation with which the county had a contractual arrangement for the contribution of county funds for the operation of a park system, except that this section prohibits members of fiscal court from being interested in claims against the county. OAG 83-98 .

If a member of county fiscal court should apply for and receive a job as a full-time merit system employee, he would be required to resign as a member of the fiscal court since a county employee serves under the management authority of the fiscal court and since this section prohibits a member of fiscal court from being interested, directly or indirectly, in a claim against the county treasury (except for his own salary as a member of fiscal court) and as a county employee, he would have a direct claim against the county treasury. OAG 83-252 .

A county may lease or rent a surplus county building to a fiscal court member’s son, who will own and operate a restaurant in the building, provided the rental is fairly arrived at, based largely upon the appraised value of the property. The real property should be appraised by two competent appraisers, and the rental should be largely based upon the average appraised value (as between the two appraisals). OAG 83-417 .

Where a county borrowed money from a bank at which the county judge/executive served on the board of directors, the county judge/executive would be involved in a conflict of interest since the borrowing contract would involve a claim against the county treasury. OAG 84-9 .

A fiscal court cannot legally buy materials from an auto parts store, which is owned and operated by a member of the fiscal court and his brother. OAG 84-270 .

The wife of a county judge/executive and the wife of a magistrate may be hired by the fiscal court of which the county judge-executive and the magistrate are members without violating the conflict of interest provisions set forth in this section. OAG 91-110 .

Unless the facts of a given case demonstrate a significant interest on the part of a fiscal court member in the court’s procurement of goods or services from a firm owned or controlled by a spouse, there would not be a violation of this section or §§ 61.190 (now repealed) or 61.210 . OAG 92-39 .

Where a spouse of a fiscal court member owns or controls a business from which the fiscal court would purchase goods or services, the fiscal court member might have a marital interest in economic benefits flowing to the spouse through the county’s purchases. Accordingly, depending upon the specific facts involved, a fiscal court’s purchase of goods or services from the spouse of a court member might place the member in violation of this section or KRS 61.190 (now repealed) or 61.210 . OAG 92-39 .

Research References and Practice Aids

Cross-References.

Misuse of confidential information, Penal Code, KRS 522.040 .

1. Purchase of County Warrants.

A sheriff speculating in county warrants is liable not only for the original principal, but the profits arising therefrom. The county or its creditors may recover the profits. The officer may be compelled to perform his duty by mandamus or mandatory injunction. Breathitt County v. Cockrell, 250 Ky. 743 , 63 S.W.2d 920, 1933 Ky. LEXIS 764 ( Ky. 1933 ).

Sheriff, who was illegally trafficking in county warrants, would ordinarily not be entitled to credit, on settlement, for overpayment made on settlement for prior year, where overpayment consisted of warrants. Fidelity & Casualty Co. v. Breathitt County, 276 Ky. 173 , 123 S.W.2d 250, 1938 Ky. LEXIS 538 ( Ky. 1938 ).

Sheriff who used tax money to purchase county warrants at a discount, and tendered warrants in settlement of his accounts, was not entitled to credit for interest on warrants and was liable to county for any profit made. Fidelity & Casualty Co. v. Breathitt County, 276 Ky. 173 , 123 S.W.2d 250, 1938 Ky. LEXIS 538 ( Ky. 1938 ).

Research References and Practice Aids

Cross-References.

Misuse of confidential information, Penal Code, KRS 522.040 .

1. Application.

This section prevents the officers named from speculating in county claims on their own account or on the account of anyone else. Moore v. Lawson, 102 Ky. 126 , 42 S.W. 1136, 19 Ky. L. Rptr. 1104 , 1897 Ky. LEXIS 76 ( Ky. 1897 ).

2. Enforcement.

Enforcement of this section is the duty of the Commonwealth’s Attorney, and the double fine, if recovered, inures to the benefit of the state. The fine cannot be recovered in a taxpayers’ suit against the clerk on behalf of the county. Herd v. Lyttle, 310 Ky. 788 , 222 S.W.2d 834, 1949 Ky. LEXIS 1026 ( Ky. 1949 ).

Opinions of Attorney General.

A fiscal court may enter into a contract with a corporation whose president is the county court clerk and also the clerk of the fiscal court. OAG 60-774 .

Research References and Practice Aids

Kentucky Law Journal.

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

1. Contracts.

Fact that councilman, after expiration of his term, became a member of the contracting firm which then completed the contract, did not void the contract, in absence of conspiracy or criminal understanding. Collinsworth v. Catlettsburg, 236 Ky. 194 , 32 S.W.2d 982, 1930 Ky. LEXIS 714 ( Ky. 1930 ).

Loan by councilman to firm contracting with city did not violate law regarding prohibition against city officer being interested in contract with city. Collinsworth v. Catlettsburg, 236 Ky. 194 , 32 S.W.2d 982, 1930 Ky. LEXIS 714 ( Ky. 1930 ).

2. — Void.

A resolution of the council appointing a member to settle with the tax collector, the member accepting the appointment and making the settlement, is a contract impliedly importing consideration for the value of the work performed, and is void under law regarding prohibition against city officer being interested in contract with city. City of Winchester v. Frazer, 43 S.W. 453, 19 Ky. L. Rptr. 1366 (1897).

Contract between city and an individual, in which the real party in interest was a councilman, was void. Wilson v. Smith, 215 Ky. 504 , 284 S.W. 1102, 1926 Ky. LEXIS 719 ( Ky. 1926 ).

Fact that contract was fully performed, or that there was no evidence of fraud, collusion or unreasonable prices, was immaterial. Wilson v. Smith, 215 Ky. 504 , 284 S.W. 1102, 1926 Ky. LEXIS 719 ( Ky. 1926 ).

It was not necessary that the contract be fully performed. Napier v. Gay, 264 Ky. 359 , 94 S.W.2d 682, 1936 Ky. LEXIS 321 ( Ky. 1936 ).

3. Vacation of Office.

A proceeding to declare the office of a member of the city council vacant because the city utility commission, while the city council member was an ex officio member of the utility commission, purchased a motor vehicle from a corporation in which the member was the principal stockholder could not be brought by the remaining members of the city council but must have been instituted by the person claiming title to the office or by the Commonwealth. Jones v. Robinson, 351 S.W.2d 185, 1961 Ky. LEXIS 154 ( Ky. 1961 ).

4. Evidence.

Where the testimony was to the effect that although councilman had once been partner of subcontractors, at the time the contracts were let to them such partnerships had terminated, the evidence of the councilman’s interest in the contract was held insufficient. Beshear v. Dawson Springs, 214 Ky. 102 , 282 S.W. 764, 1926 Ky. LEXIS 265 ( Ky. 1926 ).

Where there was not sufficient testimony to show that councilman was interested in the contract and most of such testimony came from persons opposed to the councilman the evidence of interest was held insufficient. Beshear v. Dawson Springs, 214 Ky. 102 , 282 S.W. 764, 1926 Ky. LEXIS 265 ( Ky. 1926 ); Wilson v. Blanton, 226 Ky. 518 , 11 S.W.2d 127, 1928 Ky. LEXIS 119 ( Ky. 1928 ).

5. Recovery for Services.

City could not recover from third person money for services rendered by a councilman working under contract with the city. Bardstown v. Nelson County, 121 Ky. 737 , 90 S.W. 246, 28 Ky. L. Rptr. 710 , 1906 Ky. LEXIS 254 ( Ky. 1906 ).

6. Franchise.

Franchise let by city to firm, one of whose members was marshal of the city, was void, both as to the officer and his partner, since the good could not be separated from the bad. Arms & Short v. Denton, 212 Ky. 43 , 278 S.W. 158, 1925 Ky. LEXIS 1070 ( Ky. 1925 ).

7. Bank Deposits.

The deposit of money by a city of the fifth class with a bank where certain city officers are directors does not violate law regarding prohibition against city officer being interested in contract with city, since the possibility of benefit is too speculative and remote to suggest a conflict of interest. McCloud v. Cadiz, 548 S.W.2d 158, 1977 Ky. App. LEXIS 646 (Ky. Ct. App. 1977).

Research References and Practice Aids

Cross-References.

Bridge commissioner not to be financially interested in building bridge, KRS 181.600 .

Misuse of confidential information, Penal Code, KRS 522.040 .

ALR

Removal of public officers for misconduct during previous term. 42 A.L.R.3d 691.

1. Application.

The trial court properly ruled that the factual basis of the complaint did not state a claim of arbitrary and discriminatory conduct, as this section and KRS 196.037 apply to all former felons, not just black felons. Leonard v. Corrections Cabinet, 828 S.W.2d 668, 1992 Ky. App. LEXIS 75 (Ky. Ct. App. 1992).

2. De Facto Peace Officers.

Where the alleged peace officers did not file their photographs or the affidavits required by this section with the county clerk they were at least officers de facto, and, therefore, had the right to make an arrest of the defendant who was allegedly drunk on a public highway. Layne v. Commonwealth, 254 S.W.2d 724, 1953 Ky. LEXIS 612 ( Ky. 1953 ).

3. Appointment by Ordinance Prohibited.

Ordinance creating office of merchant policeman was in derogation of this section and KRS 61.360 . Walker v. Rosser, 309 S.W.2d 754, 1958 Ky. LEXIS 355 ( Ky. 1958 ).

4. Residency Requirement.

The county residency requirement of subsection (2) of this section, does not apply to city police officers and does not conflict with or repeal by implication KRS 15.335 , but merely carves out an exception. City of Ashland v. Ashland F.O.P. #3, 888 S.W.2d 667, 1994 Ky. LEXIS 114 ( Ky. 1994 ).

Cited:

Baker v. Wilson, 310 Ky. 692 , 221 S.W.2d 690, 1949 Ky. LEXIS 1272 ( Ky. 1949 ); Smiddy v. Commonwealth, 247 S.W.2d 215, 1952 Ky. LEXIS 678 ( Ky. 1952 ); Blevins v. Commonwealth, 2014 Ky. App. LEXIS 107 (Ky. Ct. App. 2014).

Opinions of Attorney General.

The attempt to personate a registered voter is a crime involving moral turpitude within the meaning of subsection (1)(c) (now clause (3)) of this section and a person convicted of such crime is ineligible to serve as one of the peace officers enumerated in this section. OAG 64-397 .

A city must retain an officer who was charged with assault and battery and flourishing a deadly weapon and who is awaiting an indictment by the grand jury unless action is taken under KRS 95.450 . OAG 67-468 .

Investigators employed by the Kentucky state humane federation who are sworn in as peace officers under KRS 436.605 must serve in the county of their appointment and they do not have statewide authority to enforce KRS 436.180 (now repealed) and 436.590 to 436.597 (now repealed) and KRS 436.600 . OAG 67-484 .

A deputy sheriff must be a continuous resident of the county for two years next preceding his appointment as deputy sheriff. OAG 69-597 .

The provisions of KRS 15.335 repeal by implication the residential requirements with respect to a deputy sheriff; thus a deputy sheriff is no longer required to meet the qualifications as to residence. OAG 70-34 .

A person who was convicted of auto theft but subsequently pardoned by the Governor is not ineligible for the position of deputy sheriff. While larceny of an automobile is a form of moral turpitude, Const., § 150 (which provides that pardon by the Governor removes the disability of exclusion from office) controls. OAG 70-99 .

A deputy constable is not disqualified from serving in that capacity because of his residing in a district other than that in which the constable resides. OAG 70-187 .

Police officers are no longer required, subsequent to KRS 15.335 , to reside within their respective cities nor are they required to have any specific length of residence in the county. OAG 71-246 .

The filing of a photograph and affidavit with the county clerk is applicable to police officers. OAG 71-246 .

The fiscal court of a county does not have authority to establish by resolution standards for merchant police since standards are established by statute. OAG 71-321 .

KRS 61.310(4) to the extent that it conflicts with (1)(d) (now clause (4)) of this section regarding outside employment repeals the restrictions found in subsection (1)(d) (now clause (4)) of this section. OAG 72-232 ; 76-621.

Deputy city marshal, which office is included within the definition of “peace officer” by KRS 446.010(24), to meet the requirement of subsection (1)(a) (now clause (1)) of this section must be 21 years of age or over and OAG 73-10 is, therefore, erroneous and must be withdrawn. OAG 73-10 3.

As provided by subsection (1)(a) (now clause (1)) of this section, a deputy sheriff must be at least twenty-one years of age or over. OAG 73-142 .

As provided by subsection (1)(c) (now clause (3)) of this section, a city council could hire a policeman who was under indictment as long as it was a crime not involving moral turpitude, and such person could be appointed chief of police if he is not disqualified under the terms of this section, although Const., § 150, provides that conviction of a felony or high misdemeanor that would prevent a person from holding high office may be removed by pardon of the Governor. OAG 73-184 .

Although as indicated in OAG 73-103 this section would preclude the appointment of a person under the age of 21 as a city marshal or deputy marshal, the age requirement would not apply to individuals appointed as cadets or trainees since they would not be nonelected peace officers or deputy peace officers and would not possess the power of arrest, the right to carry a concealed deadly weapon, or other similar powers and immunities granted only to peace officers. OAG 73-420 .

A police officer is not required to be a resident of the city in which he is employed (affirming OAG 73-461 ). OAG 73-556 .

The county judge (now county judge/executive) is not involved in the appointment of merchant policemen or special local police officers who are distinguished from members of a county police force. OAG 73-800 .

KRS 2.015 authorizes the employment of an eighteen-year-old dog warden unless he is a deputy sheriff or some other nonelective peace officer in which event he must be twenty-one as provided by this section. OAG 74-320 .

A county police officer is not a constitutional officer for the purpose of residency under the Constitution; thus, pursuant to KRS 15.335 , limiting residency and voting qualifications to constitutional officers, the residency requirements of this section and KRS 70.540 do not apply. OAG 74-581 .

This section applies to county police officers as by definition under KRS 446.010(24) peace officer includes policemen which would include county policemen. OAG 74-581 .

The residence requirements of this section were repealed by implication by KRS 15.335 and, since a deputy sheriff is not an officer named and designated in the text of the Constitution, he is not required by Const., § 234 to reside in the county in which he serves. OAG 75-52 .

In order for a former jailer or other nonpeace officer to serve as a school security guard he must meet the qualifications of this section and be appointed in accordance with this section. OAG 75-631 .

Where a deputy sheriff had directed security guards at a work stoppage within two years of his appointment, the appointment was in violation of this section, but the alleged violations would not affect the deputy’s candidacy or eligibility to hold the office of sheriff. OAG 77-344 .

An individual presently employed as head of security for a community college, which is a state agency, would not be disqualified from serving as a nonelective peace officer because his compensation for his police work is derived from the state and not any private source and because subsection (1)(d) (now clause (4)) of this section has been repealed by implication by the 1968 amendment to KRS 61.310 . OAG 78-156 .

The prohibition of subsection (1)(d) (now clause (4)) of this section is not a prohibition against serving as a private security guard or policeman, per se, but it is a prohibition against serving as such while an active participant in any labor dispute. OAG 78-456 .

As long as KRS 196.037 designates personnel of the Bureau of Corrections (now Corrections Cabinet) as having the powers of peace officers when they perform custodial duties over prisoners, such personnel must meet the age requirement for peace officers, set forth in this section, which requires all such officers to be 21 years of age. OAG 78-486 .

Since a state policeman is not appointed in a particular county, is not inevitably destined to serve in a particular county, his jurisdiction is statewide, and he is subject to duty in any county in Kentucky, the qualifications of a nonelective peace officer under this section were not designed to fit or apply to state policemen. OAG 78-836 .

Nothing in this section requires that peace officers be bonded. OAG 79-400 .

KRS 15.335 remains effective irrespective of the subsequent amendments to KRS 63.180 , 95.710 and this section and consequently controls the residency requirements for police officers in cities of the fifth class. OAG 79-505 .

This section setting the qualifications for nonelective peace officers and KRS 95.710 which required city residency, if possible, or at least county residency, were impliedly repealed by the enactment of KRS 15.335 , to the extent of the conflict. OAG 79-505 .

If an applicant for a regular deputy position has within a period of two years hired himself out, performed any service, or received any compensation from any private source for being an active participant in any labor dispute, the applicant would be disqualified. OAG 80-72 .

A county ordinance requiring deputy sheriffs to complete a two-week peace officer course at the Kentucky Bureau of Training (now Department of Criminal Training) within six (6) months of appointment, qualify on a pistol range and purchase a minimum of $100,000 professional liability insurance as minimum qualifications for deputy sheriffs is invalid since it conflicts with the various requirements of KRS 70.030 , this section, and KRS 15.335 which preempt the field of deputy qualifications. OAG 81-35 .

Where a 19-year-old office clerk was hired for the county sheriff’s office as a county employee, under the CETA program, she could not be retained as an office clerk hired by the sheriff’s office because she was not a sworn deputy who had been appointed by the fiscal court by the first Monday in May pursuant to KRS 64.530 and since she was not 21 years of age as required by this section. OAG 81-219 .

A deputy jailer must be at least 21 years of age. OAG 82-463 .

Where the matron qualifies as a deputy jailer under this section, the fiscal court can approve the jailer’s appointment of the former matron as a third regular deputy under KRS 71.060(1). OAG 83-34 .

A jail matron is a deputy and must meet the qualifications of a peace officer under this section. OAG 83-34 .

Any person who has been convicted of a crime involving moral turpitude may not act in any capacity entailing the maintenance of custody over prisoners. OAG 83-205 .

The Corrections Cabinet may employ ex-offenders to perform duties which do not entail the maintenance of custody over prisoners; if ex-offenders are hired to serve in a capacity involving the maintenance of custody over prisoners, however, such ex-offenders must meet the qualifications set forth in this section. OAG 83-205 .

In view of the fact that those persons afforded peace officer status by virtue of KRS 196.037 , governing corrections personnel, are clearly nonelective peace officers, such persons must meet the qualifications mandated for such officers by this section. OAG 83-205 .

A deputy sheriff under subdivision (2) must be a continuous resident of the county of his appointment for two (2) years next preceding his appointment as deputy sheriff. OAG 83-269 .

Subdivision (2) of this section, which establishes a two-year residency requirement for certain peace officers, repeals by implication KRS 15.335 , which waives the residency requirements for peace officers, to the extent of their conflict; thus a deputy sheriff is required to have resided in the county of appointment for a period of at least two (2) years. OAG 83-491 .

The requirement of residency as used in subdivision (2) of this section refers to living in the county and participation in the life of the county. OAG 86-9 .

By virtue of KRS 70.045(1) a special deputy appointed pursuant to KRS 70.045(1) is not subject to the residential requirements imposed by this section. OAG 90-51 .

An employing entity could probably dismiss from the force those officers who failed to obtain the instruction required pursuant to KRS 15.333 within the time authorized. OAG 91-61 .

Nonelective peace officers are required to receive, on an annual basis, the training program concerning HIV and AIDS. Such instruction is one of the required qualifications of persons holding those positions. If a person does not obtain the required instruction, his employment and peace officer powers are not automatically terminated, although the employing entity should be certain that its officers have received the required training, as the validity of an arrest may be challenged if the officer does not have the qualifications required of a nonelective peace officer. OAG 91-61 .

A person appointed pursuant to KRS 454.145 , having the same power as a sheriff in connection with the execution of a given process under KRS 70.180 , is in the status of an “other nonelective peace officer” within the meaning of this section. OAG 95-4 .

Research References and Practice Aids

Cross-References.

Deputies, appointment of not to be authorized by local or special act, Const., § 59(18).

Peace officers, removal not bar to criminal proceedings, KRS 63.130 .

Removal of nonelective peace officer, KRS 63.180 .

Northern Kentucky Law Review.

2008 Criminal Law Issue: Note: Kentucky’s Statutory Collateral Consequences Arising From Felony Convictions: A Practitioner’s Guide, 35 N. Ky. L. Rev. 413 (2008).

1. Other Employment Regulations.

Prohibition of certain types of employment is one means of preventing conflicts of interest and a decline in community respect for the police; therefore, although most off-duty employment would not contravene this policy and thus would be immune from regulation, two types of off-duty employment, direct involvement with the sale of alcoholic beverages and employment by persons with a criminal reputation, were determined by the local legislative body to constitute conduct which would inevitably result in a violation of departmental policy; this conduct was inherently conflicting with police duties and as a result, the prohibitions did not violate this section or KRS 95.015 . Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

Regulations which require officers engaged in off-duty employment to provide insurance and indemnity for benefit of the Urban County Government did not violate this section or KRS 95.015 . Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

The prior authorization by the Chief of Police requirement for officers to accept outside employment was held invalid but was separate from the general restrictions upon off-duty employment, as the restrictions were not essentially and inseparably connected with and dependent upon the prior authorization requirement and were complete and capable of standing alone; severance of the prior authorization provision did not affect the intent of the legislative body in enacting the remainder of the county police regulations. Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

Opinions of Attorney General.

A chemical company that hired a deputy sheriff as a full-time supervisor of watchmen and guards may be in violation of the statute. OAG 61-490 .

A deputy sheriff may not obtain private employment in a position in which he acts as a watchman or guard, or supervises watchmen and guards. OAG 61-490 .

A sheriff who continues the appointment of a deputy sheriff who is also employed full time as the supervisor of watchmen and guards for a chemical plant is acting contrary to the provisions of the statute. OAG 61-490 .

A city policeman who is a peace officer cannot serve as a guard for a coal mine company, which would be a form of private employment, without violating the statute. OAG 62-1160 .

The operation of a commissary in the jail by the county sheriff would not constitute a violation of the statute. OAG 64-309 .

A suit would lie to compel disclosure of the disposition of profits from a commissary operated by the sheriff in a county jail or to enjoin personal enrichment. OAG 64-309 .

Public policy would require the sheriff-jailer to disclose fully the operations of a commissary operated by him at the jail and to make public the recipients of management fees and commissary profits. OAG 64-309 .

KRS 64.720 specifically authorizes a fiscal court to pay the constable a salary out of the county treasury, not to exceed $7200 pursuant to Const., § 246. OAG 65-71 .

A city may not enact an ordinance to restrict or limit all nonelected peace officers and city firemen from seeking and obtaining outside employment during their off hours. OAG 68-378 .

Members of the auxiliary police force of a county may exercise their powers of arrest, while engaged in guard duty for pay for private concerns, without violating subsection (7) of this section since the policeman is being paid for his private guard duty and not any public duty. OAG 69-516 .

A duly elected constable may while constable and during hours other than regularly scheduled duty hours serve as a night watchman for a hospital. OAG 70-104 .

A peace officer is a peace officer 24 hours a day, and he has a continuing right and duty to act in behalf of the people generally even during his off-duty hours. OAG 70-726 .

A peace officer’s right of arrest is not diminished by accepting private employment during his off-duty hours. OAG 70-726 .

A city chief of police could accept employment in his off-duty hours from a person in the county to act as a parking supervisor and keeper of the peace at functions for profit. OAG 71-327 .

Deputy county jailer may serve as a special peace officer for the University of Kentucky with no resulting constitutional or statutory incompatibility, since a special local peace officer is not a peace officer under subsection (24) of KRS 446.010 and because subsection (4) of this section allows a deputy jailer to carry on such employment during hours other than regular or scheduled duty hours. OAG 72-140 .

Subsection (4) of this section to the extent that it conflicts with KRS 61.300 (1)(d) (now KRS 61.300 (5)) regarding outside employment, repeals the restrictions found in KRS 61.300 (1)(d) (now KRS 61.300(5)). OAG 72-232 ; 76-621.

In view of this section and KRS 95.015 and pursuant to KRS 95.800 (now repealed), a sixth-class city may through its marshal appoint a policeman who is also an employe of a private police organization. OAG 73-431 .

A constable may be appointed under KRS 61.360 as a security guard at a school during his off-duty hours. OAG 75-631 .

County police officers, pursuant to the provisions set forth in this section, may obtain outside employment during off-duty hours as security guards. OAG 76-620 .

Subsection (4) of this section and KRS 95.015 permit police officers to seek and obtain outside employment during their off-duty hours without any restrictions or limitations being imposed by local governmental units so long as it does not interfere with the performance of their official duties. OAG 76-620 .

Pursuant to this section, city, county and state police officers may seek and obtain outside employment during their off-duty hours as long as it does not interfere with the performance of their official duties and does not involve their participation, directly or indirectly, in any labor dispute. OAG 77-347 .

The qualification provision under KRS 61.300 (1)(d) (now KRS 61.300 (5)) has been repealed by implication by the enactment of the 1968 amendment authorizing a peace officer, while in office, to act in any private employment as a guard or watchman so that a person who served as a privately paid policeman within two (2) years of his becoming a nonelected peace officer would be qualified to serve as such. OAG 72-232 ; 78-156.

In order that the phrase “… either as a gift or donation or for the performance of any public duty …” of subsection (7) of this section would not proscribe a gift or donation to peace officers for legitimate purposes, the second disjunctive “or” should be deleted from the phrase so that it would read “… either as a gift or donation for the performance of any public duty …” thus obviating the literal inconsistency in the subsection. OAG 78-276 .

In view of the fact that a police officer may be privately employed during off duty hours in any capacity, including that of a guard or watchman, he is certainly entitled to any compensation that may result from such employment whether it be in the form of an award or basic compensation. OAG 80-555 .

While municipal police officers have the statutory right under KRS 95.015 and subsection (4) of this section to seek and obtain outside employment during their off-duty hours, such employment cannot be permitted to create a conflict with their official duties as police officers and whether a particular outside interest, such as investigating crimes or noncriminal matters for law firms, insurance companies or other private entities, is sufficient to create a conflict is a factual question depending upon the circumstances of the particular case. OAG 81-358 .

There is no legal basis whereby a sheriff may directly receive donations from private persons or corporations for the purpose of funding the sheriff’s office. OAG 82-433 .

The fiscal court may accept donations from any private or corporate sector for the purpose of such funds being used to assist, where necessary, in the funding of the sheriff’s office, provided that the gift agreement makes it clear that the fiscal court will retain its usual statutory discretion in the detailed disbursement of such funds for the sheriff’s office, and with the express understanding that the gift is not for any particular or specific performance of any public duty by the sheriff, his deputies or matrons. So long as the gift of a particular donor cannot be traced directly as specifically funding the statutory work of the sheriff, or of a particular deputy or matron, the legislative policy described somewhat vaguely in this section will not be violated. OAG 82-433 .

There was no violation of this section where fiscal court advertised for bids for the furnishing of repair service for certain radio equipment and police officer, who during his off-duty time owned and operated a radio repair service, submitted a sealed bid to perform the requested work, which bid was accepted as the lowest and best bid. OAG 83-86 .

This section, as supported by the policy expressed in KRS 95.015 , permits a county police officer to serve in private employment or in his own private business endeavor, provided that it is after regular hours and so long as it does not interfere with the performance of his regular duties as a county policeman. OAG 83-86 .

Municipal officers have the right, under KRS 95.015 and subsection (4) of this section, to seek and obtain outside employment during their off-duty hours without any restrictions or limitations being imposed by local governmental units, so long as it does not interfere with the performance of their official duties. OAG 83-90 .

1. Liability of Sureties.

Clerk’s sureties are not liable for their principal’s failure to obey this section, their bond binding them only for the performance of his duties while in office. Trammell v. Myrick, 165 Ky. 399 , 176 S.W. 1185, 1915 Ky. LEXIS 532 ( Ky. 1915 ).

1. Appointment by Ordinance Prohibited.

Ordinance creating office of merchant policeman was in derogation of this section and KRS 61.300 . Walker v. Rosser, 309 S.W.2d 754, 1958 Ky. LEXIS 355 ( Ky. 1958 ).

2. Right to Carry Weapon.

A special local police officer, like any other person, had the legal right under any circumstances to carry a pistol so long as it was not concealed on or about his person. Smith's Adm'r v. Corder, 286 S.W.2d 512, 1956 Ky. LEXIS 412 ( Ky. 1956 ).

3. Employers.

Guards furnished by incorporated private police service for protection of industrial plants, and appointed and paid in accordance with the provisions of this section, were employes of the private police service and not of the state, and were entitled to the benefits of the federal fair labor standards act. Walling v. Merchants Police Service, Inc., 59 F. Supp. 873, 1945 U.S. Dist. LEXIS 2472 (D. Ky. 1945 ).

A partnership which contracted with property owners to furnish guards for such property, which guards were made special local police officers and paid as provided by this section, was an employer of such guards within the meaning of KRS 341.050 and as such liable for unemployment compensation taxes. Commonwealth v. Potts, 295 Ky. 724 , 175 S.W.2d 515, 1943 Ky. LEXIS 346 ( Ky. 1943 ).

4. Liability of Employer.

The jurisdiction of a special local police officer appointed by the Governor under this section was confined to the company’s premises and where said officer was four miles from his place of employment when he shot a man while intoxicated under circumstances having no relation to his employment except the mere fact his appointment authorized him to carry a pistol in the discharge of his official duties under KRS 435.230 (repealed), the employer was not liable for the homicide since, even if it would be regarded as negligence to have procured the appointment of a person of the characteristics attributed to the special officer to be a police officer with authority to go armed when on duty, the consequences in this case were too remote to impose liability therefor. Smith's Adm'r v. Corder, 286 S.W.2d 512, 1956 Ky. LEXIS 412 ( Ky. 1956 ).

Opinions of Attorney General.

A person may, without being appointed a special local police officer by the Governor, act as a night watchman or security guard, wear a uniform, carry an unconcealed weapon and display a badge or insignia indicative of his control over the property he is protecting, but it must be plainly indicated that he is not a public police officer and neither the uniform, badge, or insignia, nor any combination thereof may indicate that he is a public police officer. Furthermore, the badge or insignia of such a guard may not carry the inscription “security police,” or use such terms as police, policeman, peace officer, or officer, or conservator of the peace and such a guard in his contacts with persons on the property he is protecting, must act so that he does not in any way indicate that he may be a public police officer. OAG 61-360 .

A special police officer appointment under this section would not give such officer the power to arrest a shoplifter. He would only have the power of detention under KRS 433.236 ; and he would have the same detention authority as any other employe of the establishment. OAG 68-498 .

Conservation officers may not be appointed special local peace officers. OAG 69-545 .

The position of special industrial policeman is not a municipal office and no incompatibility would exist if such person also held the office of mayor. OAG 69-649 .

Where two persons wish to operate as special policemen at multiple locations, they must receive a separate commission for each property they are employed to protect. OAG 79-350 .

If county police officers are also employed off duty as special local peace officers pursuant to this section, subsection (3) of this section prohibits such county officers from wearing the county police uniform while serving as special local peace officers. OAG 83-90 .

Under subsection (3) of this section, off-duty county police officers cannot wear county police uniforms while employed (actually on duty) as private security guards; however, should an occasion arise, while he is working as a private security guard, in which the off-duty county policeman believes that he should utilize his powers of arrest as a county policeman (a peace officer), he may do so, provided he fully informs the person arrested that he is also a county policeman as well as a private security guard since, in that way, no deception will be practiced. Subsection (3) merely prohibits actual deception, and especially where the security guard is not a public peace officer. OAG 83-90 .

Under the broad powers of a school board, pursuant to KRS 160.160 and 160.290 , it could employ a security guard to look after its properties; such security guard, to be effective, should be a special local peace officer commissioned according to this section. OAG 84-107 .

Vehicles used by special local peace officers cannot lawfully be equipped with flashing lights for use in attempting to cause motorists to stop or yield the right-of-way. OAG 91-186 .

Research References and Practice Aids

Cross-References.

Railroad police, KRS 277.270 to 277.290 .

Sheriffs, constables, patrols and guards, KRS Ch. 70.

Special law enforcement officers, KRS 61.900 to 61.930 .

Kentucky Law Journal.

Warsoff, The Judicial Veto, 27 Ky. L.J. 45 (1938).

1. Teacher.

Where the plaintiff was employed as a teacher in this commonwealth at the time he was inducted into military service, he was entitled to service credit for his military service, even though he was not reemployed by the same school system. Watkins v. Oldham, 731 S.W.2d 829, 1987 Ky. App. LEXIS 503 (Ky. Ct. App. 1987).

Opinions of Attorney General.

The state is under no compulsion to re-employ a veteran, who was a seasonal employee employable from season to season at the mere option of the state, because such seasonal employee is not entitled to restoration. OAG 69-550 .

A teacher returning to employment with a board of education after being discharged from military service is entitled to those increments which normally would have accrued if employment with the board had not been interrupted by military service. OAG 70-709 .

The principles applicable to reinstatement of veterans in employment by the central branch of state government are equally applicable to employment with a board of education. OAG 70-709 .

When a teacher is relieved from military service and makes proper application to be reemployed, the school district is required to promptly reinstate said teacher with all the rights and benefits provided by statute in KRS 61.371 to 61.379 even though the day of his return is after the school year has begun. OAG 74-258 .

1. Political Subdivision.

A county school district is a political subdivision of the state, the members of which are state officers and an indictment drawn under KRS 434.240 (now repealed) for submitting a false claim to county board of education charged a public offense. Runyon v. Commonwealth, 393 S.W.2d 877, 1965 Ky. LEXIS 248 ( Ky. 1965 ), cert. denied, 384 U.S. 906, 86 S. Ct. 1341, 16 L. Ed. 2d 359, 1966 U.S. LEXIS 1852 (U.S. 1966).

Cited:

International Brotherhood of Firemen & Oilers v. Board of Education, 393 S.W.2d 793, 1965 Ky. LEXIS 245 ( Ky. 1965 ).

Opinions of Attorney General.

A special tax collector selected by an independent school district pursuant to KRS 160.500(2) is an officer of the school district and an employee of the school district under the definition of that term in the social security act and enabling legislation enacted by the Kentucky General Assembly. OAG 67-95 .

The Gateway Area Development District, Inc. is not a “political subdivision” within the meaning of KRS 61.410 to 61.500 and must report wages and pay taxes for social security purposes directly to the United States Internal Revenue Service. OAG 70-226 .

Mental health-mental retardation boards, when considered in light of KRS 210.380 clearly are instrumentalities of the Commonwealth and therefore a political subdivision for the purposes of this section. OAG 73-203 .

Where a city and county establish an ambulance board, such board is merely an arm or instrumentality of the city and county and is a political subdivision, as defined in subsection (5), for social security coverage purposes. OAG 73-790 .

The state active duty pay of national guard units ordered into active state service in connection with tornadic storms is excluded by subsection (2) from social security coverage and not subject to the FICA tax. OAG 74-278 .

Only specifically isolated expenses which are actual reimbursements for actual official expenses may be deducted from the subject state expense allowances money in the case of the county judge (now county judge/executive), county attorney and county sheriff, in determining the wage amount for social security purposes and the remainder of such allowance would constitute wages up to the maximum compensation base of $13,200 per year for 1974 or $14,100 for 1975. OAG 75-48 (modifying OAG 71-266 and 66-416).

Based upon the literal wording of this section and the fact that the subject corporation was created solely for the eight county governments, the Jackson Purchase Local Officials Organization, Inc., is an instrumentality of the eight (8) county governments and thus the corporation is a “political subdivision” for social security purposes and this construction promotes the centralized administration of the social security program applied to such public employees, otherwise the administration would have to be broken into eight (8) different county units. OAG 75-497 .

Where the ordinance making the city attorney position elective was repealed and the office became appointive, the city attorney would no longer be excluded from social security coverage. OAG 76-740 .

Since a county and city are clearly political subdivisions as provided by subsection (5) of this section, if they, pursuant to KRS 79.110 to 79.180 or KRS 65.210 to 65.300 , agree to provide for the joint operation of a city-county ambulance service and create a board to govern the program, that board or entity could be an arm or instrumentality of the city and county and, therefore, a “political subdivision” for social security purposes. OAG 79-104 .

Until such time that this section is amended by the General Assembly, the city of Louisville has no authority under KRS 83.520 to provide for any treatment of sick leave benefits in any other way than that which is set out in KRS 61.410 to 61.500 . OAG 79-267 .

Since East Kentucky Utilities Inc. was performing the function of an instrumentality of Floyd County in providing utility services to the county, using the county’s own plant, its employees were covered for social security purposes through Floyd County. OAG 79-583 .

Where a city of Louisville ordinance stated a sick leave policy for its employees, where the amounts appropriated for sick pay payments were budgeted and accounted for separately, where the worksheets for each agency showed a separate account for sick leave from which payments for sick leave were deducted as paid, and where the amount of sick leave paid was separately stated on the employee’s paycheck stub, the method of providing for sick leave to employees of the city was sufficiently definite to constitute a “plan or scheme” under 42 USCS § 409(b) and 26 USCS § 3121(a)(2), and, therefore, the sick leave payments would be excluded from wages for determining the amount deducted as social security contributions. OAG 80-220 .

Although the articles of incorporation of an entity purported to show that the apparent purpose of the corporation was to perform governmental activity, specifically to assist those political subdivisions of the state of Kentucky located in Campbell County in performing their municipal functions, the articles did not fully comply with KRS 65.250 and there was no indication that it had complied with KRS 65.260 ; therefore, since the entity had no formal statutory authority that would make it an instrumentality of a political subdivision as defined in subsection (5) of this section for social security purposes, social security should be paid by the entity directly to the social security administration as any other nonprofit corporation would do. OAG 80-348 .

Acts 1980, Ch. 275, accomplishes a statutory change which authorizes sick leave with pay as an exclusion to the term wages for determining an employee’s wages from which social security payments are to be deducted; however, the mere passage of the amendatory language per se does not permit the deduction of sick pay from being considered as wages without some additional administrative acts, including making the needed changes in an employer’s personnel rules dealing with sick leave, and getting the federal social security administration’s approval of the new plan. OAG 80-366 .

A county hospital district is a political subdivision of Kentucky pursuant to this section and KRS 216.320 so that its employees are “employees” under subsection (3) of this section and thus subject to the jurisdiction of the state agency for social security. OAG 81-196 .

Where a city passes an ordinance creating a personal service contract with an attorney to advise the city in legal matters, the attorney is an independent contractor rather than a nonelected city officer appointed under KRS 83A.080 or an employee under subsection (3) of this section thus, he would not be subject to social security as a result of his contract. OAG 81-225 .

The Boone County Planning Commission is a separate political subdivision consisting of members representative of other political subdivisions in a cooperative, joint effort to provide consolidated planning and zoning activities for the various political subdivisions which make up the entity. Therefore, the Commission is a separate political subdivision for purposes of the definition of a political subdivision found in subdivision (5) of this section governing social security for public employees and is not part of Boone County which is governed by Boone County Fiscal Court. OAG 82-278 .

The Office of Social Security is an office to handle public employees’ social security matters; the definition of office in subsection (7) of KRS 12.010 applies to the office for social security. OAG 82-593 .

Where the membership of a local officials’ organization was composed of the county judge/executive of each of the participating counties, the mayors of the largest incorporated city within each county (voting members) and other mayors of smaller communities (nonvoting members) and where the organization’s purpose was to operate an emergency medical service for eight counties and certain other services to benefit the local units of government, such unit was a governmental subdivision or instrumentality of such a subdivision. OAG 83-227 .

Where a training center created by a local officials’ organization was separated from such organization and was incorporated as a nonprofit corporation, where its membership was not exclusively composed of governmental officials and where the center could not carry on propaganda, influence legislation, or engage in any political campaign, the training center as it had evolved was no longer an instrumentality of a subdivision or other governmental unit, but was an independent, nonprofit corporation operated for charitable, educational, and scientific purposes and was no longer subject to the State Office of Social Security. OAG 83-227 .

Research References and Practice Aids

ALR

Judicial questions regarding federal social security act or state legislation adopted to set up “state plan” contemplated by it. 100 A.L.R. 697; 106 A.L.R. 243; 108 A.L.R. 613; 109 A.L.R. 1346; 118 A.L.R. 1220; 121 A.L.R. 1002.

1. Constitutionality.

Under Kentucky Supreme Court precedents, H.B. 389(4) 2000 Reg. Sess. ( Ky. 2000 ), which amended a provision of the Judicial Retirement Act, KRS 21.450(3), was clearly an unconstitutional delegation, as the unintelligible statute had neither “an intelligible principle,” nor standards controlling the exercise of administrative discretion, and the Kentucky Supreme Court concluded that Ky. H.B. 389(4), subsequently codified at KRS 21.450(3), was unconstitutional because it violated the nondelegation doctrine embodied in Ky. Const. §§ 27, 28, 29 and 60. Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ).

2. Legislative Intent.

In an action for a declaratory judgment by the Kentucky Board of Trustees of the Judicial Form Retirement System, if, the legislative intent in amending KRS 21.450 by H.B. 389(4), 2000 Reg. Sess. ( Ky. 2000 ), was to amend KRS 61.510(13), that fact was certainly not apparent, or even vaguely discernible, from the language of the bill. Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ).

3. Agencies.

Regional mental health-mental retardation boards are not state agencies within the meaning of this section even though they may receive and administer state and federal grants. Kentucky Region Eight v. Commonwealth, 507 S.W.2d 489, 1974 Ky. LEXIS 709 ( Ky. 1974 ).

Determination rendered by the Kentucky Retirement System that an employee’s purchase of non-qualified service time had to be based on the full actuarial cost as determined by the system was correct; but, it clearly factually and legally erred in basing the purchase cost upon a full-time annual salary when the employee was employed as a permanent part-time, and not a full-time, employee. Ky. Ret. Sys. v. Heavrin, 172 S.W.3d 808, 2005 Ky. App. LEXIS 24 (Ky. Ct. App. 2005).

4. Objective Medical Evidence.

Patient’s treating physicians provided detailed records of the patient’s course of treatment; while other physicians’ records were mostly cumulative of those provided by the primary treating physicians, they confirmed the observations and reports of the primary treating physicians. These records constituted “objective medical evidence” within the meaning of KRS 61.510(33). Ledford v. Ky. Ret. Sys., 2007 Ky. App. LEXIS 237 (Ky. Ct. App.), sub. op., 2007 Ky. App. Unpub. LEXIS 936 (Ky. Ct. App. July 27, 2007).

Since incapacity sufficient to warrant disability retirement benefits is to be based on objective medical evidence pursuant to KRS 61.600(3), and under KRS 61.510(33) pain is subjective, any failure of the government’s physicians to comment on the employee’s pain was harmless to the claim. Claxon v. Ky. Ret. Sys., 2008 Ky. App. LEXIS 25 (Ky. Ct. App. Feb. 1, 2008), vacated, 2009 Ky. LEXIS 172 (Ky. June 17, 2009).

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