Kansas Attorney General Opinion 2016-013

August 25, 2016
ATTORNEY GENERAL OPINION NO. 2016-13
Craig S. Crosswhite
Ness County Attorney
118-1/2 Penn
P.O. Box 266
Ness City, KS 67560
Re: 	Counties 	and 	County 	Officers—County 	Commissioners—Eligibility 	to
Office of Commissioner; Incompatibility of Offices; Economic Development
Director
Synopsis: 	The common law doctrine of incompatibility of offices precludes a person
from concurrently serving as a County Commissioner for Ness County and
the Ness County economic development director. 	Cited herein: 	K.S.A.
19-101; 19-205; 19-4101.
* 	* 	*
Dear Mr. Crosswhite:
As Ness County Attorney, you ask our opinion on whether a person may concurrently
serve as a Ness County Commissioner and an economic development director who is
employed and supervised by the Board of County Commissioners.
In Attorney General Opinion No. 2016-12, we reviewed whether K.S.A. 19-205 or the
common law doctrine of incompatibility of offices precludes a person from concurrently
serving as a county commissioner and either a volunteer emergency medical technician
in the same county or facility coordinator for the county emergency medical services
system. 	The analysis set forth in that opinion is applicable in determining whether a
person 	may 	concurrently 	serve 	as 	a 	county 	commissioner 	and 	an 	economic
development 	director 	who 	is 	employed 	and 	supervised 	by 	the 	board 	of 	county
commissioners.

Craig S. Crosswhite
Page 2
Statutory Provisions
“The 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.”1 K.S.A. 19-205 states:
Except as provided by K.S.A. 12-344, 12-345, [ ] 12-363 and 12-365, and
amendments thereto, no person holding any state, county, township or city
office shall be eligible to the office of county commissioner in any county in
this state.
Nothing 	in 	this 	section 	shall 	prohibit 	the 	appointment 	of 	any 	county
commissioner to any state board, committee, council, commission or
similar body which is established pursuant to statutory authority, so long
as any county commissioner so appointed is not entitled to receive any
pay, compensation, subsistence, mileage or expenses for serving on such
body other than that which is provided by law to be paid in accordance
with the provisions of K.S.A. 75-3223, and amendments thereto.
As noted in Attorney General Opinion No. 2016-12, the exceptions listed in the opening
provision of K.S.A. 19-205 regard consolidation or unification of certain city and county
offices, 	functions, 	services 	and 	operations. 	Ness 	County 	is 	not 	attempting 	to
consolidate or unify any of its offices, functions, services and operations with those of a
city. 	Likewise, the position of economic development director for Ness County is not a
statutorily-created state board, committee, council, commission or similar body. 	Since
the exceptions set forth in K.S.A. 19-205 are not applicable, it must be determined
whether the position of Ness County economic development director is a state, county,
township or city office.
[T]he essential characteristics of public office are: (1) a position created by
statute or ordinance, (2) a fixed tenure, and (3) the power to exercise
some portion of the sovereign function of government. 	In addition, . . . an
officer 	has 	responsibility 	for 	results 	and 	the 	power 	of 	direction,
supervision, and control. 2
A county is authorized to “establish and conduct a program for its future economic
growth and development in accordance with the provisions of [K.S.A. 19-4101 et seq.].” 3
Further, the courts seem to recognize that county home rule 4 provides authority for
pursuing economic development. 5 	Regardless of the source of the authority, we can
find no references in the statutes to an economic development director. The position is
not one created by statute, nor does it appear to be one created by county resolution.
1 Unified School District No. 501, Shawnee County v. Baker, 269 Kan. 239, 243 (2000).
2 Attorney General Opinion No. 2016-12, quoting Attorney General Opinion No. 2013-19.
3 K.S.A. 19-4101.
4 K.S.A. 19-101 et seq.
5 See General Bldg. Contractors, L.L.C. v. Bd. of Shawnee County Comm’rs, 275 Kan. 525 (2003).

Craig S. Crosswhite
Page 3
There is no fixed tenure for the position. 	The duties of the Ness County economic
development director are established by the Board of County Commissioners for Ness
County. 	Any actions taken by the economic development director are subject to the
commission’s 	review. 	The 	economic 	development 	director 	is 	not 	performing 	a
sovereign function of government. 	The position of economic development director for
Ness County does not constitute a state, county, township or city office under K.S.A. 19-
205.
We have not located any other statutes that address whether a person is authorized to
or prohibited from concurrently serving as a county commissioner and an economic
development 	director 	who 	is 	employed 	and 	supervised 	by 	the 	board 	of 	county
commissioners. 	In the absence of the Legislature having provided by statute either
permission or prohibition on the simultaneous holding of the positions, we turn to the
common law as the legal authority that governs this situation.6
Common Law Prohibition
The common law doctrine of incompatibility of offices prohibits an individual from
holding more than one public office at the same time when there is an incompatibility
between the offices. 7 	“Offices are incompatible when the performance of the duties of
one in some way interferes with the performance of the duties of the other.”8 	This is
something more than a physical impossibility to discharge the duties of both offices at
the same time.9 It is an inconsistency in the functions of the two offices. 10 The Kansas
Supreme Court has determined the doctrine applies when a person concurrently holds a
public office and a position of public employment. 11 	“It is inimical to the public interest
for one in public employment to be both the employer and the employee or the
supervisor and the supervised.” 12
The economic development director for Ness County was hired by the Board of County
Commissioners of Ness County and is directly answerable to the Board.13 	The
director’s continued employment is determined by the Board. 14 	The budget for the
position is subject to annual review and approval by the Board. 15 	The economic
development 	director 	is 	subject 	to 	the 	same 	personnel 	policy 	manual 	as 	other
employees 	of 	the 	County. 16 	A 	person 	who 	concurrently 	serves 	as 	a 	County
6 See K.S.A. 77-109. See also Baker, 269 Kan. at 252 (“The legislature holds the trump card to resolve
the question before us today, either by specific authorization or prohibition. However, that card has not
been played. Until it has . . . [w]e are obligated to apply the common-law doctrine of incompatibility of
office in the absence of a specific legislative expression on dual office-holding.”).
7 Baker, 269 Kan. at 249.
8 Dyche v. Davis, 92 Kan. 971, 977 (1914).
9 Baker, 269 Kan. at 248.
10 Id.
11 Baker, 269 Kan. at 248-49.
12 Baker, 269 Kan.at 239, Syl. ¶ 6.
13 Correspondence, Craig S. Crosswhite, May 26, 2016.
14 Id.
15 Id.
16 Id.

Craig S. Crosswhite
Page 4
Commissioner for Ness County and the Ness County economic development director is
both the employer and the employee or the supervisor and the supervised. 	The
common law doctrine of incompatibility of offices precludes a person from concurrently
serving as a County Commissioner for Ness County and the Ness County economic
development director.
Sincerely,
Derek Schmidt
Attorney General
Richard D. Smith
Assistant Attorney General
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