[1993/oagheade.htm]

OAG 93-70

October 18, 1993

Earl Mackey

Executive Director

Legislative Ethics Commission

Room 318, Capitol Annex

Frankfort, Kentucky 40601

Dear Mr. Mackey:

You state that your office has received inquiries regarding the propriety of legislators serving on various boards and commissions. The answers to some of those questions have been provided by KRS 6.764, dealing with "Offices incompatible with being a legislator."

You ask this office whether a member of the General Assembly may concurrently serve in the following capacities without violating either the separation of powers doctrine in Sections 27 and 28 of the Kentucky Constitution or the incompatible offices provisions of Section 165 of the Kentucky Constitution and KRS 61.080:

1. As a member of the Board of Directors of an Area Development District, KRS Chapter 147A?

2. As a member of the Board of Directors of a Tourist and Convention Commission, KRS 91A.350 et seq.?

3. As a member of the Board of Directors of a Community Improvement District, KRS 107.310 et seq?

4. As a member of the Board of Directors of a City-County Housing Authority, KRS 80.262 et seq?

5. As a member of the Board of Directors of a Kentucky Heritage Land Conservation Fund, KRS 146.560 et seq? This statute calls specifically for two members of the General Assembly to be on the Board.

6. As a member of the Board of Directors of an Emergency Services District, KRS 39.830 et seq? Could a legislator work as a paid or unpaid director for such a district?

Section 27 of the Kentucky Constitution states that the powers of the government shall be divided into three distinct departments: the legislative, the executive, and the judicial.

Section 28 of the Kentucky Constitution provides that no person being of one of the departments of government shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

In Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907, 912-913 (1984), the court said in part as follows:

Moreover, it has been our view in interpreting Sections 27 and 28, that the separation of powers doctrine is fundamental to Kentucky's tripartite system of government and must be 'strictly construed.' Arnett v. Meredith, Ky., 275 Ky. 223, 121 S.W.2d 36, 38 (1938). In Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455 (1922), we expounded at some length on the history and purposes of Sections 27 and 28:

'Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our constitution, which history tells us came from the pen of the great declaimer of American independence, Thomas Jefferson. . . . 246 S.W. at 457.

. . . We conceive it to be the duty of the courts to adopt the construction most conducive . . . [to prevent] . . . the destruction of the edifice as contemplated.'

246 S.W. at 458. (Emphasis added.)

In OAG 85-33, at page four, we recognized that Sections 27 and 28 of the Kentucky Constitution establish the principle that persons of one branch of government cannot exercise any power properly belonging to either of the others except in permitted instances. At page five of that opinion we concluded that a state representative could serve as a member of the Governor's State Child Support Commission because the Commission operates in an advisory capacity only and it does not involve an exercise of executive or other power.

In OAG 80-291 this office said that a state representative could serve concurrently as a presidential elector without violating the separation of powers doctrine because of the limited function of presidential electors which is to cast, certify, and transmit the vote of the state for President and Vice-President of the United States.

This office concluded in OAG 79-483 that a state representative could not, under the separation of powers doctrine, serve at the same time as a member of a city-county human rights commission.

We said in OAG 74-315 that a state senator was not in violation of Sections 27 and 28 of the Constitution or Section 165 of the Kentucky Constitution and KRS 61.080, the incompatible offices provisions, because his agreement with the city was on the basis of an independent contractor in an attorney-client relationship.

An employee of the Legislative Research Commission is not prevented by Sections 27 and 28 of the Kentucky Constitution from serving as a trustee of the state retirement system because employees of the Legislative Research Commission are not employees of the Legislative Branch of government. OAG 73-817.

Sections 27 and 28 of the Kentucky Constitution prohibit a member of the General Assembly from serving as a member of the Board of Trustees of the Kentucky Retirement Systems. OAG 72-458, citing OAG 38,833.

Sections 27 and 28 prohibit a member of the General Assembly from serving concurrently as a Commonwealth's Detective (OAG 71-24), a member of the board of trustees of a library board (OAG 69-163), a member of the Kentucky Real Estate Commission (OAG 68-43), a Deputy Circuit Clerk (OAG 66-732), and a member of the Board of Review (to hear and determine bonus claims) (OAG 60-100).

In applying the principles and concepts discussed above relative to whether a member of the General Assembly is prohibited by Sections 27 and 28 of the Kentucky Constitution from holding various offices or positions we conclude as follows:

1. The powers of the board of directors of an Area Development District are set forth in KRS 147A.080. Board members engage in more than advisory functions and the District is a political subdivision. While OAG 78-534 concluded that a state legislator could serve on the board of an Area Development District without violating provisions pertaining to legislative ethics and incompatible offices, the opinion never considered the concept of separation of powers. On the basis of the materials mentioned and discussed in this letter Sections 27 and 28 of the Kentucky Constitution would preclude a member of the General Assembly from serving at the same time as a member of the Board of Directors of an Area Development District.

2. Members of a Tourist and Convention Commission established pursuant to KRS 91A.350 to KRS 91A.390 engage in more than advisory functions. Such entities are created by cities and counties acting independently or collectively. Sections 27 and 28 of the Kentucky Constitution would prohibit a member of the General Assembly from serving at the same time as a member of a Tourist and Convention Commission.

3. A Community Improvement District (KRS 107.320 to KRS 107.500) is authorized in counties containing a city of the first or second class. The Board of Commissioners controls and manages the affairs of such a District and among its powers is the power to levy an ad valorem tax. Other powers are set forth in KRS 107.370. Sections 27 and 28 of the Kentucky Constitution preclude a member of the General Assembly from serving at the same time as a member of the Board of Commissioners of a Community Improvement District.

4. The governing body of a joint city-county housing authority (KRS 80.262 to KRS 80.266) is a public body corporate and politic with authority to engage in various activities relative to the providing of adequate and sanitary living quarters for individuals or families. Sections 27 and 28 of the Kentucky Constitution prohibit a member of the General Assembly from serving concurrently as a member of the governing body of a joint city-county housing authority.

5. KRS 146.560 creates the Kentucky Heritage Land Conservation Fund Board to administer the land conservation fund established in KRS 146.570 and to review and approve all grants payable from the fund. The Board is composed of various executive branch officers and two members of the General Assembly named by the Legislative Research Commission. In view of the provisions of Sections 27 and 28 of the Kentucky Constitution, that portion of the statute requiring the appointment of two members of the General Assembly to a board whose duties pertain to the executive branch of government is unconstitutional.

6. While we are confused by your reference to the Board of Directors of an Emergency Services District in KRS 39.830 et seq., as those sections deal with emergency planning districts and committees, our general response is that Sections 27 and 28 of the Kentucky Constitution would prohibit a member of the General Assembly from serving on a board which involves the exercise of power or decision making outside of the legislative branch of government.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General