OAG 93-43


May 18, 1993




Walter L. Cato, Jr., Esq.

Cato and VanArsdale

455 South Fourth Avenue

510 Starks Building

Louisville, KY 40202-2509

Dear Mr. Cato:

Your recent letter asks whether the mayor of the city of Shively, a city of the third class located in Jefferson County (KRS 81.010(3)), may be appointed to a position on the board of the Louisville and Jefferson County Metropolitan Sewer District without violating Section 165 of the Kentucky Constitution, KRS 61.080, and KRS 76.030.

KRS Chapter 76 deals with "Metropolitan Sewer Districts." KRS 76.010 in part authorizes a city of the first class and the county in which that city is located to create and establish a joint metropolitan sewer district. Presumably, the city of Louisville and Jefferson County have utilized this provision to create and establish the Louisville and Jefferson County Metropolitan Sewer District.

KRS 76.030(2), relative to the composition of the board of a metropolitan sewer district, provides in part that, "No officer or employe of such city or county, whether holding a paid or unpaid position, shall be eligible for appointment as a member of such board."

The Louisville and Jefferson County Metropolitan Sewer District was created by the city of Louisville and Jefferson County. The provision in KRS 76.030(2) concerning membership on the board and the prohibited conflicts and incompatibilities refers, in our opinion, to officers and employees of the city and county establishing the joint metropolitan sewer district. It does not apply to an officer of a city not involved in the creation and establishment of the metropolitan sewer district and thus does not apply to an officer of the city of Shively.

Section 165 of the Kentucky Constitution and KRS 61.080 deal with incompatible offices and the various combinations of state, county and city offices and employments which are incompatible with one another. While a mayor of a third class city is obviously a city officer, a board member of a metropolitan sewer district is harder to define.

In OAG 82-81, copy enclosed, we said in part, at page one, as follows:

The Louisville and Jefferson County Metropolitan Sewer District is an independent public body corporate and political subdivision of the state as referred to in KRS 76.010 and so held in the case of Rash v. Louisville & Jefferson County Metropolitan Sewer District, 309 Ky. 442, 217 S.W.2d 232 (1949) and Gnau v. Louisville and Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961).

We further stated in OAG 82-81 that a metropolitan sewer district is a hybrid agency not contemplated by Section 165 of the Kentucky Constitution and KRS 61.080 dealing with incompatible offices. A metropolitan sewer district is in the same category as a municipal housing commission which has been held to be a hybrid agency and neither a state, county nor city agency. See City of Louisville Municipal Housing Commission v. Public Housing Administration, Ky., 261 S.W.2d 286 (1953). Thus, the provisions of Section 165 of the Kentucky Constitution and KRS 61.080 are not applicable to a member of the board of a metropolitan sewer district as such a person is neither a state, county nor city officer or employee.

In conclusion it is our opinion that a mayor of a city of the third class is not prohibited by KRS 76.030, KRS 61.080 or Section 165 of the Kentucky Constitution from serving on the board of the Louisville and Jefferson County Metropolitan Sewer District.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL





Thomas R. Emerson

Assistant Attorney General

(502) 564-7600

TRE:res

Enclosures