Kansas Attorney General Opinion 1992-139

ROBERT T. STEPHAN
ATTORNEY GENERAL November 3, 1992
ATTORNEY GENERAL OPINION NO. 92- 139
Harold T. Walker
Kansas City City Attorney
Ninth Floor, Municipal Office Building
701 North Seventh Street
Kansas City, Kansas 66101
Re: Cities of the First Class; Government by Mayor and
Council and General Laws--Public Utilities; Board
of Public Utilities--Incompatibility of Offices;
Assistant City Treasurer Serving as Member of Board
of Public Utilities
Synopsis: Based upon the facts presented, the doctrine of
incompatibility of offices precludes a person from
serving concurrently as assistant city treasurer for
the city of Kansas City and as a member of the board of
public utilities for Kansas City. Cited herein:
K.S.A. 13-1220.
*
Dear Mr. Walker:
As city attorney for the city of Kansas City, you ask our
opinion whether the position of assistant city treasurer is
incompatible with membership on the board of public utilities.
Although K.S.A. 13-1220 allows Kansas City to establish a
board of public utilities, Kansas City has opted out of the
statutory board by charter ordinance and has created and
defined its own board of public utilities. Kansas City
Charter Ordinance No. 106, section 3, establishes a six person
board with three members elected at-large and three members

elected by district. The board's duties are to "exclusively
manage, operate, maintain and control the daily operation of
the water plant and the electric-light plant of the city. . .
Section 16 provides:
"The city treasurer shall be ex officio
treasurer of the board. Except as
otherwise authorized, all funds and
property in the treasurer's hands
belonging to the water and light
department shall be subject to the control
of the boards, and it shall be the duty of
the treasurer to receive and receipt for
daily the money collected by the board,
and to pay out the same when ordered by
the governing body of the city or the
board upon warrants signed by the mayor
and administrator or president or
vice-president of the board and
countersigned by the general manager,
certifying that such warrant is issued by
authority of the governing body of the
city or the board. The ex officio
treasurer shall give a surety bond to the
board in such amount as it may deem
necessary, the bond to be approved and
paid for by the board."
You inform us that the Kansas City personnel department job
description for an assistant city treasurer includes the tasks
of auditing pledges and withdrawal forms to cover operating
accounts and investments for the city and Board of Public
Utilities." The job description also says: "In the absence
of the city treasurer the assistant city treasurer will assume
responsibility for the treasurer's office." Thus the
assistant city treasurer acts as the ex officio treasurer for
the board in the city treasurer's absence.
The decisions of the Kansas Supreme Court do not permit an
individual to hold more than one public office if there is an
"incompatibility" between the offices. Dyche v. Davis, 92
Kan. 971 (1974); Congdon v. Knapp, 106 Kan. 206 (1920). The
incompatibility doctrine applies in those cases where two
public offices are held by the same individual at the same
time. In Abry v. Gray, 58 Kan. 148 (1897), the Kansas Supreme

elected by district. The board's duties are to "exclusively
manage, operate, maintain and control the daily operation of
the water plant and the electric-light plant of the city. .
Section 16 provides:
"The city treasurer shall be ex officio
treasurer of the board. Except as
otherwise authorized, all funds and
property in the treasurer's hands
belonging to the water and light
department shall be subject to the control
of the boards, and it shall be the duty of
the treasurer to receive and receipt for
daily the money collected by the board,
and to pay out the same when ordered by
the governing body of the city or the
board upon warrants signed by the mayor
and administrator or president or
vice-president of the board and
countersigned by the general manager,
certifying that such warrant is issued by
authority of the governing body of the
city or the board. The ex officio
treasurer shall give a surety bond to the
board in such amount as it may deem
necessary, the bond to be approved and
paid for by the board."
You inform us that the Kansas City personnel department job
description for an assistant city treasurer includes the tasks
of auditing pledges and withdrawal forms to cover operating
accounts and investments for the city and Board of Public
Utilities." The job description also says: "In the absence
of the city treasurer the assistant city treasurer will assume
responsibility for the treasurer's office." Thus the
assistant city treasurer acts as the ex officio treasurer for
the board in the city treasurer's absence.
The decisions of the Kansas Supreme Court do not permit an
individual to hold more than one public office if there is an
"incompatibility" between the offices. Dyche v. Davis, 92
Kan. 971 (1974); Congdon v. Knapp, 106 Kan. 206 (1920). The
incompatibility doctrine applies in those cases where two
public offices are held by the same individual at the same
time. In Abry v. Gray, 58 Kan. 148 (1897), the Kansas Supreme

Court adopted the essential language of 19 American and
English Encyclopedia of Law, 562, as follows:
"'The incompatibility which will operate
to vacate the first office must be
something more than the mere physical
impossibility of the performance of the
duties of the two offices by one person,
and may be said to arise when the nature
and duties of the two offices are such as
to render it improper, from considerations
of public policy, for one person to retain
both.'" Id. at 149.
Subsequently in Dyche v. Davis, supra the court held:
"Offices are incompatible when the
performance of the duties of one in
someway interferes with the performance of
the duties of the other . . . it is an
inconsistency in the functions of the two
offices." Id. at 977.
And, in Congdon v. Knapp, supra, the Court ruled that "if one
person holds two offices, the performance of the duties of
either of which does not in any way interfere with the duties
of the other, he is entitled to the compensation for both."
Id. at 207.
General authorities also provide practical guidance on the
types of interference which gives rise to incompatibility.
For example:
"A conflict of interest exists where one
office is subordinate to the other, and
subject in some degree to the supervisory
power of its incumbent, or where the
incumbents of one of the offices has the
power of appointment as to the other
office, or has the power to remove the
incumbent of the other, as to punish the
other. Furthermore, a conflict of
interest may be demonstrated by the power
to regulate the compensation of the other,
or to audit his accounts." 67 C.J.S.
Officers § 27.
In a previous opinion this office said,

"When an office is designed to operate as
a check upon another, the holding of two
offices by a single person is generally
forbidden, the duties of one being
fundamentally incompatible with the
other." Attorney General Opinion No.
75-446.
Because the assistant city treasurer potentially acts as
treasurer for the board and his duties include auditing the
board's expenditures, and acting as a check on expenditures,
the duties are fundamentally incompatible.
You argue that the position of assistant city treasurer is not
a public office and that the doctrine of incompatibility of
office only applies to offices. While other states may limit
the doctrine to offices, Kansas extends the doctrine to public
employees. See Dyche v. Davis 92 Kan. 971, 977 (1914).
We believe that based on the facts presented to us, the
position of assistant city treasurer for the city of Kansas
City and the office of member of the Kansas City board of
public utilities are incompatible and holding both is
precluded by common law.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Steve Phillips
Assistant Attorney General
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