Can a Kentucky county magistrate also serve as a certified court security officer?

Plain-English summary

The Powell County Attorney asked whether one person could hold both the office of county magistrate and the office of certified court security officer. Kentucky's incompatibility rules come from three sources: the Constitution, statutes, and the common law. Magistrates are county officers. The opinion first worked out that a certified court security officer is also a county officer, because court security officers (like deputy sheriffs) are appointed by and serve at the pleasure of the county sheriff, who is a county officer, and they take an oath to perform the duties of their office.

The Attorney General concluded the two offices were functionally incompatible under the common law, so a person could not hold both at once. The constitutional bar in Section 165 and the statutory bars in KRS 61.080(1) and (2) did not list these two offices as incompatible. But the common law separately forbids holding two functionally incompatible offices, meaning offices where one is subordinate to the other or where there is a potential conflict of interest, such as salary negotiations or supervision. Here, a court security officer serves at the pleasure of the sheriff, and a magistrate, as a member of the fiscal court, votes on the sheriff's salary and participates in overseeing the sheriff. A magistrate who is also a court security officer would effectively be voting on the compensation and oversight of the very official who appointed (and can remove) him. That conflict was enough to make the offices functionally incompatible.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Magistrates are county officers (Ky. Const. § 99; see also § 142 on justice-of-the-peace districts). The opinion concluded a certified court security officer is likewise a county officer, reasoning from the sheriff's status as a county officer and the officer's appointment under KRS 70.030(1) and (2) and KRS 23A.090(1), the oath requirement, and the deputy-sheriff analogy in Harlan Cty. v. Browning (and KRS 61.080(2), Ky. Const. § 91). Neither Section 165 nor KRS 61.080(1) and (2) listed these offices as incompatible. Turning to the common law (LaGrange City Council v. Hall Bros. Co.; Polley v. Fortenberry quoting Barkley v. Stockdell), the opinion examined the duties of court security officers under KRS 70.280(1) and of magistrates as fiscal court members (KRS 67.040(1)), who consider county-officer salaries (Webb v. Carter Cnty. Fiscal Court; KRS 64.530(4)). Because a magistrate votes on the salary and oversight of the sheriff who appoints and can remove the court security officer, the opinion found the offices functionally incompatible.

Citations and references

Constitution and statutes:

• Ky. Const. §§ 99, 165, 91; KRS 70.030(1), (2)
• KRS 61.080(1), (2); KRS 70.280(1); KRS 67.040(1); KRS 64.530(4)

Cases:

• Harlan Cty. v. Browning, 2013 WL 657880 (Ky. App. Feb. 22, 2013)
• LaGrange City Council v. Hall Bros. Co. of Oldham Cnty., Inc., 3 S.W.3d 765 (Ky. App. 1999)
• Polley v. Fortenberry, 105 S.W.2d 143 (Ky. 1937)
• Barkley v. Stockdell, 66 S.W.2d 43 (Ky. 1933)
• Webb v. Carter Cnty. Fiscal Court, 165 S.W.3d 490 (Ky. App. 2005)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2020-19.pdf

Original opinion text

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

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
December 30, 2020
OAG 20-19
Subject: Whether the offices of certified court security officer and county magistrate are incompatible.
Requested by: Robert G. King, Powell County Attorney
Written by: Charles A. English, Assistant Attorney General
Syllabus: Because the offices of certified court security officer and county magistrate are functionally incompatible, an individual may not simultaneously hold both positions.

Opinion of the Attorney General

The Powell County Attorney asks whether the office of certified court security officer is incompatible with the office of county magistrate. For the reasons that follow, it is the Attorney General's opinion that these offices are incompatible.

First things first. Magistrates are county officers. See Ky. Const. § 99 (providing for the election of justices of the peace as county officers[1]). The tougher question is whether a court security officer under KRS 70.030(2) is a state officer or a county officer. This is an important initial determination because incompatibility—whether constitutional or statutory—turns, in part, on whether the officers are state or county officers.

The Attorney General concludes that a court security officer is also a county officer. That is because a sheriff is a county officer, Ky. Const. § 99, and appoints and revokes the appointments of deputy sheriffs and court security officers at his pleasure. KRS 70.030(1), (2); KRS 23A.090(1). "Before any deputy [sheriff] executes the duties of his or her office, he or she shall take the oath required to be taken by the sheriff." KRS 70.030(1). And although not explicit in Kentucky's Constitution, see Ky. Const. § 99, deputy sheriffs are clearly county officers and not state officers. See KRS 61.080(2) (grouping "deputy sheriff" with other county officers); Ky. Const. § 91 (enumerating specific State officers such as "Treasurer, Auditor of Public Accounts, Commissioner of Agriculture, Labor and Statistics, Secretary of State, and Attorney-General" and not including deputy sheriff). Moreover, deputy sheriffs are logically characterized as county officers because they are "employee[s] of the sheriff and act[] in an official capacity for that office." Harlan Cty. v. Browning, No. 2012-CA-000148, 2013 WL 657880, at *3 (Ky. App. Feb. 22, 2013) (citing KRS 70.030).

Deputy sheriffs and court security officers are analogous for two reasons. First, although not defined by the Constitution or statute as an "officer," a court security officer is indeed an "officer" because, like a deputy sheriff, the court security officer must "take an oath to faithfully perform the duties of his or her office[.]" KRS 70.030(2) (emphasis added). And second, like deputy sheriffs, court security officers are "employee[s] of the sheriff and [therefore] act[] in an official capacity for that office." Browning, No. 2012-CA-000148-MR, 2013 WL 657880, at *3; see also KRS 70.030(2) ("The sheriff may appoint his or her own certified court security officers and may revoke the appointment at his or her pleasure."). For these reasons, the Attorney General concludes that court security officers are county officers for purposes of this opinion's compatibility analysis.

Having established that both positions are county officers, we turn to the incompatibility analysis. Incompatibility may arise under the Kentucky Constitution, the Commonwealth's statutes, and the common law. Section 165 of the Kentucky Constitution delineates the scope of constitutional incompatibility:

No person shall, at the same time, be a State officer or a deputy officer or member of the General Assembly, and an officer of any county, city, town, or other municipality, or an employee thereof; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities, except as may be otherwise provided in this Constitution[.]

Furthermore, the General Assembly has by statute made certain offices incompatible. KRS 61.080(1) provides that "[n]o person shall, at the same time, be a state officer, a deputy state officer, or a member of the General Assembly, and an officer of any county, city, consolidated local government, or other municipality, or an employee thereof." Next, KRS 61.080(2) provides that "[t]he offices of justice of the peace, county judge/executive, surveyor, sheriff, deputy sheriff, coroner, constable, jailer, and clerk or deputy clerk of a court, shall be incompatible, the one (1) with any of the others."

None of the constitutional or statutory provisions render the offices of magistrate and certified court security officer incompatible. That is apparent from merely reading the provisions of Section 165, KRS 61.080(1), and KRS 61.080(2). But an incompatibility analysis does not end with the constitutional and statutory text.

The lists of incompatible offices set forth in Section 165 and KRS 61.080 are not exhaustive. LaGrange City Council v. Hall Bros. Co. of Oldham Cnty., Inc., 3 S.W.3d 765, 769 (Ky. App. 1999) ("The constitutional and statutory enumerations of incompatible offices are not the exclusive instances of incompatibility."). In addition to constitutional and statutory incompatability, the common law also prohibits individuals from occupying "functionally incompatible" offices. Id. "The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest." Polley v. Fortenberry, 105 S.W.2d 143, 145 (Ky. 1937) (quoting Barkley v. Stockdell, 66 S.W.2d 43, 44 (Ky. 1933)). To determine whether the office of magistrate is functionally incompatible with the office of certified court security officer, we must examine the functions of those offices.

As made clear by its title and duties under KRS 70.280, a certified court security officer has one overarching task—providing security services to the courts. Specifically, a certified court security officer is charged with the following duties:

(a) Attending sessions of any court of the Court of Justice in the county in which he or she is sworn;
(b) Keeping order in the courts;
(c) Providing security services to the courts within the court facility or immediate area of the court facility;
(d) Guarding prisoners during court appearances;
(e) Serving warrants and other court papers on individuals physically present in the courtroom;
(f) Transporting prisoners;
(g) Arresting and taking individuals into custody who are in the court facility or immediate area of the court facility, or while transporting prisoners; and
(h) Service of process and other papers relating to civil matters on individuals physically present in the courtroom.

KRS 70.280(1). County magistrates, on the other hand, serve on the county fiscal court. KRS 67.040(1). As members of the fiscal court, county magistrates are "authorized and called upon to consider matters involving salary, tenure, and promotion of county employees." Webb v. Carter Cnty. Fiscal Court, 165 S.W.3d 490, 493 (Ky. App. 2005). In counties with a population of less than 75,000, which includes Powell County,[2] "county officers elected by popular vote" are compensated by the fiscal court. KRS 64.530(4). Thus, the Powell County Sheriff is compensated by the Powell County Fiscal Court.

"Two (2) offices or positions are incompatible whenever . . . there are any potential conflicts of interest between the two (2), such as salary negotiations, supervision and control of duties, and obligations to the public to exercise independent judgment." LaGrange City Council, 3 S.W.3d at 770. In considering the duties and relationship between a county magistrate and a court security officer, the incompatibility is apparent. A certified court security officer serves at the pleasure of the county sheriff. KRS 70.030. As a member of the fiscal court, a county magistrate considers matters involving the salary and oversight of the county sheriff. Webb, 165 S.W.3d at 493. Here, the close interrelationship between the positions clearly renders a county magistrate's concurrent employment with the county sheriff incompatible with his elected office. See Webb, 165 S.W.3d at 493. As a member of the fiscal court, a county magistrate could vote to decide the salary and participate in the oversight of the sheriff who appointed him as a court security officer. That is sufficient under the common law to render the two offices incompatible.

Although not incompatible under Section 165 of the Constitution or KRS 61.080, it is the Attorney General's opinion that the offices of certified court security officer and magistrate are functionally incompatible.

Daniel Cameron
ATTORNEY GENERAL
Charles A. English
Assistant Attorney General

[1] Section 142 of the Constitution requires each county to be divided into three to eight justice of the peace districts. Following the passage of the Judicial Article in 1976, which amended the Kentucky Constitution to, among other things, eliminate the judicial powers and duties of justices of the peace, the General Assembly and some counties use the terms "justice of the peace" and "magistrate" interchangeably to refer to the members of a county's fiscal court. See, e.g., KRS 67.042 (referring to justices of the peace in counties containing a city of the first class as "magistrate/representative"); KRS 67.705(3) (referring to magistrates who serve on fiscal courts). Five magistrates serve on the Powell County Fiscal Court.
[2] United States Census Bureau, QuickFacts Powell County, Kentucky, available at https://www.census.gov/quickfacts/powellcountykentucky (last accessed on Dec. 30, 2020).