[1995/oagheade.htm]

OAG 95-24

June 16, 1995

Question: Whether a member of the Kentucky General Assembly may concurrently hold the position of executive director with the Louisville Waterfront Development Corporation.

Written By: Thomas R. Emerson

Requested By: The Honorable Barbara Gregg

Syllabus: 1) A state legislator may serve as the executive director of the Waterfront Development Corporation, an entity jointly created by a city, county and the state government, without violating the incompatible offices provisions.

2) A state legislator may serve as the executive director of the Waterfront Development Corporation without violating the separation of powers doctrine if the position of executive director constitutes a form of employment rather than an office, a director or a policy maker for the government created corporation.

OAGs cited: OAG 80-291, 80-219, 93-70

Statutes and State Constitutional Provisions Considered: KRS 58.180, KRS 61.080, KRS Chapter 6 and Sections 165, 27, 28

OPINION OF THE ATTORNEY GENERAL

Your recent letter asks whether a member of the Kentucky General Assembly may serve concurrently as executive director of the Louisville Waterfront Development Corporation. You mention in part KRS 61.080 and sections 165, 27, and 28 of the Kentucky Constitution.

You describe the Louisville Waterfront Development Corporation as a joint agency of the city of Louisville, Jefferson County, and the Commonwealth of Kentucky.

We have enclosed a copy of a miscellaneous letter from the Attorney General's Office to David F. Karem, dated May 29, 1987, in which the Waterfront Development Corporation was described as an entity jointly established, pursuant to KRS 58.180, by the city of Louisville, Jefferson County, and the Commonwealth of Kentucky to encourage economic development along the Ohio River in the Louisville-Jefferson County area. KRS 58.180 deals in part with the creation of a nonprofit corporation to act as an instrumentality of a governmental agency in the financing of a public project.

KRS 61.080 and Section 165 of the Kentucky Constitution relative to incompatible offices provide in part that no person shall, at the same time, serve as a state officer and as an officer or employee of any county or city.

A member of the General Assembly is, of course, a state officer. See OAG 80-291.

A person employed by an entity 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. See OAG 80-219.

Thus the incompatible 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 an entity jointly created by a city, a county, and the state.

Sections 27 and 28 of the Kentucky Constitution deal with the concept of separation of powers. Section 28 provides that no person being of one of the departments of government shall exercise any power properly belonging to either of the other departments, except in those instances expressly directed or permitted. These constitutional sections are discussed in Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984), at pages 912-914 of the opinion. A member of the General Assembly is a member of the legislative branch of government and the question is whether a legislator may hold a position in another branch of government. If the legislator exercises power in another branch of government he or she could not hold both that position and the legislative position.

This office, in OAG 93-70, dealt with members of the General Assembly and whether or not they could hold various other governmental positions under the separation of powers doctrine. A legislator obviously exercises legislative powers, and resolution of the matter presented by your letter and Sections 27 and 28 of the Kentucky Constitution requires an understanding of precisely what the duties and responsibilities are of the executive director of the Waterfront Development Corporation.

If the executive director is merely an employee of the nonprofit corporation formed by the city, county, and state governments and follows policies and directives established by the corporation's board or officers he is probably not exercising powers in another branch of government. If, however, the executive director is an officer of the government created corporation or has been made a member of the group that controls and directs the operations of the corporation or formulates policy or makes decisions as to corporate operations he would be in a position inconsistent with his office as a member of the General Assembly.

It is the understanding of this office that the executive director of the Waterfront Development Corporation is not in a policy making position. The executive director works at the direction of a 15 member board, follows the policies and directives established and enacted by the corporate board, and functions in the role of an employee of the corporation and not as a corporate officer or director. Under the particular circumstances involved here, the legislator who works for the government created corporation is not in violation of the separation of powers doctrine.

Your letter also refers to various sections of KRS Chapter 6 pertaining to legislative ethics and the conduct of legislators. This office does not handle such inquiries and those matters will have to be directed to the Legislative Ethics Commission, 318 Capitol Annex, Frankfort, Kentucky 40601, for an interpretation and determination.

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General