OAG 93-66

October 4, 1993

Hon. Vic Hellard, Director

Legislative Research Commission

Capitol Building, Room 300

Frankfort, Kentucky 40601

Re: Whether a County Jail Guard May be a Candidate for Constable, and, If Elected, also Hold Office as Constable.

Dear Mr. Hellard:

By letter of September 22, 1993, you ask, in substance, (1) whether a person employed as a county jail guard may run for the office of constable without resigning his position at the jail, and (2) whether one may simultaneously be employed as a county jail guard and serve as a constable.

Your letter does not mention whether the jail guard you refer to is covered by any local program which might affect the answer we provide to your first question.

In our view a county jail guard (deputy jailer), absent a proper local rule, is not banned from candidacy for the 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. Discussion follows.

(1) County Jail Guard Not Banned From Candidacy for Constable

There appears to be no statute, or other express state imposed prohibition which bans one who is employed as a county jail guard from being, while so employed, a candidate for constable. We presume the county jail guard you refer to would be legally classified as a deputy jailer appointed pursuant to KRS 71.060(2), and that no proper local rule (as by a local ordinance) bans such candidacy. KRS 71.060(2) provides that the fiscal court shall establish education and training requirements. It does not, however, direct the fiscal court to ban jail personnel from running for office. We have not located any other state statute which would impose such a ban.

Any local provision that did purport to ban a deputy jailer from being a candidate for public office would presumably have to be based upon an express showing that the political activity of a deputy jailer, as a candidate for constable, would have adverse effects upon such person's performance or responsibilities as a deputy jailer. See, for example, Allen v. Board of Ed. of Jefferson County, Ky.App., 584 S.W.2d 408 (1979).

(2) County Jail Guard Also Serving as Constable

Holding two governmental positions at the same time involves two questions. The first is statutory incompatibility of offices. KRS 61.080 is the statute to be first examined in such regard. While KRS 61.080(2) bans one from being, at the same time a constable and a "jailer," no mention is made in such provision of a "deputy jailer" (which, as indicated above, we presume the county jail guard you have asked about would be).

KRS 61.080(2) provides, in part pertinent here:

The 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.

(Emphasis added.)

It will be noticed that the above quoted language of KRS 61.080(2) makes specific reference to certain deputies, but not to a "deputy jailer." In this circumstance we believe the rule expressed in Smith v. Wedding, Ky., 303 S.W.2d 322, 323 (1957), controls. In that case the court indicated:

It is a primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned.

KRS 61.080 makes two specific deputy positions, but not that of "deputy jailer," incompatible with the office of constable.

Having listed certain "deputy" positions as being incompatible with the office of constable, but not having listed "deputy jailer" as incompatible with the office of constable, we believe the office of deputy jailer is not statutorily incompatible with the office of constable under the rule expressed in Wedding, supra, which we discussed in Opinion of the Attorney General (OAG) 85-149 (copy enclosed), and follow here. OAG 91-175, is hereby modified to the extent it cites OAG 70-256, which was withdrawn by OAG 85-149.

Aside from statutory incompatibility, a concern that sometimes appears where one seeks to hold two governmental positions simultaneously, is the matter of "common law" incompatibility of offices, i.e., an incompatibility of offices or positions recognized by the courts. Such incompatibility arises where one cannot properly perform both functions at the same time, as where one position must supervise the other, or where overlapping responsibilities or work hours would conflict with proper performance of both functions. See Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143, 144-145 (1937).

In OAG 91-175 (copy enclosed, modified here as noted above), we indicated that because the duties of a constable (see for example, Constitution of Kentucky � 99, and 101, and KRS 70.310 et seq.) do not require performance at specified times, we doubted that a practical incompatibility would exist between the duties of a constable, and one being also employed to transport or guard prisoners.

We note that in the circumstance of a constable also acting as a county jail guard, 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 (see for example, OAG 92-84).

We note also that obviously a county jail guard cannot 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 section 171 of the Constitution of Kentucky, and would presumably involve official misconduct. See KRS chapter 522.

Yet further, if a deputy jailer's campaign activity adversely affected the deputy jailer's job performance, such fact might form the basis for the deputy's dismissal.




Gerard R. Gerhard

Assistant Attorney General