Three Metro Council members have taken sworn oaths nearly identical to the one Democrat David James is being scrutinized about as a University of Louisville police officer.
James has sworn to the Kentucky Constitution as a council member and as a major with the campus police department, which both include saying he has not “fought a duel with deadly weapons” among similar pieces of language.
The Jefferson County attorney’s office is arguing that James is holding incompatible public offices, and must relinquish one of the two.
It’s a controversial legal question that has been sent to the Commonwealth Attorney for further review, but some worry that could apply to other elected officials.
“There’s a lot of strange grey area there,” says Councilman Brent Ackerson, D-26, a practicing attorney, adding he doesn’t see much difference in the oath UofL police officers and members of the state bar association take.
Before joining the council Ackerson, along with David Tandy, D-4, and David Yates, D-25, took the following oath:
Here is the oath James took as a UofL police officer:
“We’ve got judges who’ve taken the oath as lawyers and as also the oath as judge. Our county attorney is a lawyer and at the same time took an oath of office to be the county attorney,” says Ackerson. “We’ve got part-time prosecutors who work for the city in the morning in traffic court and their own law practice in the afternoon. We’ve got state legislators who are out there.”
Asked if council members who are practicing attorneys should be concerned about the same jobs conflict as James, a spokesman declined to make Jefferson County Attorney Mike O’Connell available for an interview.
But O’Connell’s offices does argues those oaths do not apply to their legal opinion.
“Both Section 165 of the Kentucky Constitution and (state law) provide that no person shall, at the same time, be a state officer and an officer of any county, city or other municipality or an employee thereof. Merely being licensed as a practicing attorney in the Commonwealth does not establish one as a state or local officer,” said county attorney spokesman Bill Patteson.
O’Connell’s office cites several legal opinions rendered by the attorney general’s office in years past on what constitutes a “public office.”
In 2000, it was asked if Kentucky Retirement System trustees are state officers. The attorney general’s office outlined a five-part test in response.
It said the office must be created by the Constitution, state legislature, or a municipality with conferred legislative authority; must possess a portion sovereign power of the government to be exercised by the office holder for the benefit of the public; and the powers and duties of the office must be defined by the authority creating it.
The legal opinion went on to say that the duties of the office must be performed independently and without control of any “superior” public power and the office itself is one of permanency and continuity until the law creating it is repealed.
James’ defense will center more on which offices are compatible rather than the oaths taken, but his legal counsel adds the county attorney’s opinion is still incorrect.
“There is an old doctrine in Kentucky—the notion of what offices are compatible and not compatible—so it is an analysis of the offices more so than just whether someone took an oath or not,” says attorney Todd Lewis, who is representing James. “But I will tell you that our position is that the county attorney was absolutely, one-hundred percent dead wrong about his legal analysis and he was dead wrong about his motives too.”