Kansas Attorney General Opinion 2017-008

June 16, 2017
ATTORNEY GENERAL OPINION NO. 2017-8
Barry R. Wilkerson, County Attorney
Riley County Attorney’s Office
Carnegie Building, 105 Courthouse Plaza
Manhattan, Kansas 66502-0106
Re: 	Schools—Organization, Powers and Finances of Boards of Education—
Board of Education; General Powers
Synopsis: 	The common law doctrine of incompatibility of offices does not preclude a
person from concurrently serving as a victim-witness coordinator employed
by a County Attorney’s Office and as a member of the board of education
of a unified school district in the same county. Cited herein: K.S.A. 19-248;
19-702; 25-4318 et seq.; 60-1202 et seq.; 72-8123; K.S.A. 2016 Supp. 72-
8205 and Kan. Const., Art. 6, § 5.
* 	* 	*
Dear Mr. Wilkerson:
As County Attorney, you request our opinion on whether the doctrine of incompatibility of
offices or conflict of interest prevents a victim-witness coordinator employed by the
County Attorney’s Office from concurrently serving as a member of the board of education
of a unified school district in the same county.1
1 We note that your request references a “conflict of interest,” which also may be construed to be a question
about governmental ethics laws. 	The Kansas Governmental Ethics Commission is the agency that is
authorized to administer, interpret and enforce laws related to conflict of interests and to issue advisory
opinions on the State Governmental Ethics Law, K.S.A. 46-215 et seq. and Local Governmental Conflict of
Interest Laws, K.S.A. 75-4301a, et seq. We limit our opinion to a “conflict of interest” related to the doctrine
of incompatibility of offices.

Barry R. Wilkerson
Page 2
Incompatibility of offices is a common law doctrine that precludes a person from
concurrently serving in two offices 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.”2 Specifically, “[o]ffices are incompatible when the performance of the duties of one
in some way interferes with the performance of the duties of the other. This is something
more than a physical impossibility to discharge the duties of both offices at the same time.
It is an inconsistency in the functions of the two offices.”3 	Kansas has adopted the
doctrine of incompatibility, and extended its application to situations where one position
is a public office and one is public employment.4 Notwithstanding this common law
prohibition, “[t]he legislature decides who may qualify for public office. . . . If the legislature
has spoken, the statement supersedes common law, and the doctrine of incompatibility
of office does not apply.”5
There is no constitutional or statutory provision that we have found which prevents a
victim-witness coordinator employed by the County Attorney’s Office from concurrently
serving as a member of the local board of education. 	Neither are there any provisions
specifically authorizing the simultaneous performance of both functions. 	Therefore, we
turn to the common law doctrine of incompatibility of offices to determine if the two
positions are incompatible.
You state, “[t]here are no situations where [the employee’s] position as a school board
member would overlap with responsibilities of the County Attorney’s Office.” For instance,
a victim-witness coordinator employed by the County Attorney’s Office is hired by the
County Attorney and is directly answerable to the County Attorney. 	Such employee’s
continued employment is determined by the discretion of the County Attorney. Where the
County has a County Counselor, as Riley County does, it is the responsibility of the
County Attorney’s Office to prosecute all criminal actions and proceedings in the county. 6
Thus, the duty and function of such public employment is to assist and support the County
Attorney in prosecuting all criminal actions and proceedings in the county.
Local school board members are elected. 7 	Such public official is subject to involuntary
removal by recall 8 or ouster.9 	It is the duty and function of the local school boards “to
prescribe courses of study for each year of the school program and to adopt rules and
regulations for teaching in the school district and general government thereof, and to
approve and adopt suitable textbooks and study material for use therein subject to the
2 Unified School District No. 501, Shawnee County v. Baker, 269 Kan. 239, 248 (2000), quoting Abry v.
Gray, 58 Kan. 148, 149 (1897).
3 Dyche v. Davis, 92 Kan. 971, 977 (1914).
4 Dyche, 92 Kan. at 971-977.
5 Baker, 269 Kan. at 243.
6 K.S.A. 19-702 and K.S.A. 19-248.
7 K.S.A. 72-8123.
8 K.S.A. 25-4318 et seq.
9 K.S.A. 60-1202 et seq.

Barry R. Wilkerson
Page 3
plans, methods, rules and regulations of the state board of education.” 10 Thus, the duty
and function of such public office is to operate local schools subject to the general
supervisory power of the State Board of Education.11
It is clear that neither position unduly interferes with the duties of the other. The primary
functions of each position are wholly separate and distinct from the other and neither
supervises or controls any of the functions of the other.
Because there is no interference with the performance of the duties of the two positions,
it is our opinion that there is no incompatibility with the position of a victim-witness
coordinator in a County Attorney’s Office and the public office of local board of education
board member.
Sincerely,
Derek Schmidt
Kansas Attorney General
Athena E. Andaya
Deputy Attorney General
DS:AA:sb
10 K.S.A. 2016 Supp. 72-8205.
11 Kan. Const., Art. 6, § 5.