Kansas Attorney General Opinion 2016-012

July 7, 2016
ATTORNEY GENERAL OPINION NO. 2016-12
Thomas H. Sullivan
Phillips County Counselor
773 3rd Street
Phillipsburg, Kansas 67661
Re: 	Counties 	and 	County 	Officers—County 	Commissioners—Eligibility 	to
Office of Commissioner; Incompatibility of Offices; Volunteer Emergency
Medical Technician; Facility Coordinator for County Emergency Medical
Services System
Public Health—Emergency Medical Services—Establishment, Operation
and Maintenance of Emergency Medical Services; Powers of Governing
Board of Municipality; Emergency Medical Technician; Incompatibility of
Offices; County Commissioner
Synopsis: 	Whether the common law doctrine of incompatibility of offices precludes a
person from concurrently serving in a position of public official and public
employment is dependent on specific facts regarding the relationship of
the two roles. 	Based on the facts presented, a person is precluded 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. 	Cited herein: 	K.S.A.
19-205; K.S.A. 2015 Supp. 65-6112, as amended by L. 2016, ch. 35, § 3;
K.S.A. 	65-6113; 	65-6116; 	K.S.A. 	2015 	Supp. 	65-6119; 	65-6120 	as
amended by L. 2016, ch. 35, § 4; 65-6121, as amended by L. 2016, ch.
35, § 5; 65-6123; K.S.A. 77-109.
* 	* 	*
Dear Mr. Sullivan:
As Phillips County Counselor, you ask our opinion in determining whether the common
law doctrine of incompatibility of offices precludes one person from concurrently serving
as county commissioner and either a volunteer emergency medical technician in the

Thomas H. Sullivan
Page 2
same county or facility coordinator for the county emergency medical services (EMS)
system.
Statutory Provisions
Before determining whether the common law doctrine of incompatibility of offices
precludes serving in the dual positions, it must be determined whether such service is
governed by state statute. “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.
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 that are
not applicable to the situation you present. 	Likewise, the positions of volunteer
emergency medical technician in a county and facility coordinator for a county EMS
system are not appointments to any statutorily-created state board, committee, council,
commission or similar body. 	Therefore, it must be determined whether a volunteer
emergency medical technician in a county or a facility coordinator for a county EMS
system is serving in a state, county, township or city office.
In Attorney General Opinion No. 2013-19, we stated:
The Kansas Supreme Court addressed the distinction between officers
and other employees in Durflinger v. Artiles. 2 	As summarized by Attorney
General 	Opinion 	No. 	99-11, 	Durflinger 	concluded 	that 	the 	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, Durflinger cited an
earlier case holding that an officer has responsibility for results and the
power of direction, supervision, and control.3
1 Unified School District No. 501, Shawnee County v. Baker, 269 Kan. 239, 243 (2000).
2 234 Kan. 484 (1983) (disapproved on other grounds by Boulanger v. Pol, 258 Kan 289, 298 (1995)).
3 Durflinger, 234 Kan. at 502.

Thomas H. Sullivan
Page 3
Attorney 	General 	Opinion 	No. 	99-11 	applied 	Durflinger 	to 	determine
whether the Public Works Director for the City of Liberal was a city officer.
The opinion noted that while an ordinance created the Public Works
Department, no statute or ordinance specifically created the position of
Public Works Director or dictated the position's duties and responsibilities.
In addition, the Public Works Director reported to the City Manager (who is
a city officer in a city with a commission-manager form of government) and
worked under the City Manager's guidance and direction. 	For these
reasons, the opinion concluded that the Public Works Director was not a
city officer.4
You state that the county, utilizing its authority under K.S.A. 65-6113, has established
and operates and maintains an emergency medical service or ambulance service.
Under the statute:
[The county commission] may contract with any person, other municipality
or board of a county hospital for the purpose of furnishing emergency
medical services or ambulance services within or without the boundaries
of 	the 	municipality 	upon 	such 	terms 	and 	conditions 	and 	for 	such
compensation as may be agreed upon which shall be payable from the
general fund of such municipality or from a special fund for which a tax is
levied under the provisions of this act.5
Statutes within K.S.A. 65-6101 et seq., which govern emergency medical services,
recognize 	several 	categories 	of 	technicians, 	including 	mobile 	intensive 	care
technicians, 6 	emergency 	medical 	technicians-intermediate, 	advanced 	emergency
medical 	technicians 	and 	emergency 	medical 	technicians-intermediate/defibrillator,7
emergency medical technicians 8 and emergency medical technicians-defibrillator. 9 	The
statutes set out the medical activities that may be performed by each classification of
technician. 	The statutes, however, do not establish a fixed term during which the
services may be performed 10 or authorize the technicians to exercise some portion of
the sovereign function of the county. 	There are no references in state statutes to a
“facility coordinator” for a county EMS system. 	The technician positions and the facility
coordinator position are not created by statute or ordinance, do not have a fixed tenure,
or do not possess the power to exercise some portion of the sovereign function of the
county. 	Therefore, neither the technician position nor the facility coordinator position
constitutes an office within the meaning of K.S.A. 19-205.
4 Internal quotation marks omitted.
5 K.S.A. 65-6113(a). See also K.S.A. 65-6116.
6 K.S.A. 2015 Supp. 65-6119.
7 K.S.A. 2015 Supp. 65-6120, as amended by L. 2016, ch. 35, § 4.
8 K.S.A. 2015 Supp. 65-6121, as amended by L. 2016, ch. 35, § 5.
9 K.S.A. 2015 Supp. 65-6123.
10 The individual must be properly certified when performing the services. 	See K.S.A. 2015 Supp. 65-
6112, as amended and 65-6119 through 65-6123.

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We have been unable to locate any other statute that might prohibit a person from
simultaneously holding the office of county commissioner and serving as either a
volunteer emergency medical technician in the same county or facility coordinator for
the county EMS system. 	Further, we have not located any statute that authorizes a
county commissioner to simultaneously hold either the technician position or the facility
coordinator position. Thus, 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. 11
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.12 “Offices are incompatible when the performance of the duties of
one in some way interferes with the performance of the duties of the other.”13 This is
something more than a physical impossibility to discharge the duties of both offices at
the same time. 14 It is an inconsistency in the functions of the two offices. 15 “A person
holding both offices is confronted with the duty of faithfully, impartially and efficiently
discharging 	the 	duties 	of 	these 	offices 	in 	the 	best 	interests 	of 	the 	respective
constituencies,” a duty that may be impossible when the constituencies served by the
public officer have competing interests.16 The Kansas Supreme Court long has applied
the doctrine “where 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.” 17
In Dyche v. Davis, 18 the Kansas Supreme Court determined the doctrine applies when a
person concurrently holds a public office and another position of public employment. 19
“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.”20 	Other state courts applying
the common law doctrine to circumstances in which an office holder attempts to serve
simultaneously as an employee in the same unit of government have reached the same
conclusion. 21 	The doctrine applies irrespective of whether the person draws two
11 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.”).
12 Baker, 269 Kan. at 249.
13 Dyche v. Davis, 92 Kan. 971, 977 (1914).
14 Baker, 269 Kan. at 248.
15 Id.
16 Attorney General Opinion No. 2014-03.
17 Baker, 269 Kan. at 248, quoting Abry v. Gray, 58 Kan. 148, 149 (1897).
18 92 Kan. 971 (1914).
19 Baker, 269 Kan. at 248-49.
20 Baker, 269 Kan.at 239, Syl. ¶ 6.
21 See, e.g., Township of Belleville v. Fornarotto, 228 N.J. Super. 412 (1988) (elected office of township
commissioner is incompatible with simultaneous position of housing inspector); Rogers v. Village of Tinley
Park, 116 Ill.App.3d 437 (1983) (elected office of village trustee incompatible with employment as village
police officer); Kaufman v. Pannuccio, 121 N.J. Super. 27 (1972) (office of city council member
incompatible with employment as city police officer); Otradovec v. City of Green Bay, 118 Wis.2d 393

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salaries. 22 	Abstaining from participating as a public official in actions that potentially
would 	affect 	the 	person’s 	role 	as 	public 	employee 	is 	not 	a 	legally 	satisfactory
resolution. 23
In your letter requesting assistance, you explain the organizational structure of the
county EMS system. The following points are taken from that explanation:
 	The county EMS system is largely a volunteer organization, but has a full-time
EMS director and full-time office staff.
 	The county commission hires the EMS director. 24
 	The EMS director has the authority and responsibility to hire and fire employees
of the EMS system without the approval or prior authorization of the county
commission.
 	The 	EMS 	director 	must 	also 	make 	professional 	judgments 	about 	which
emergency medical technicians are qualified to be on call.
 	All volunteers are certified emergency medical technicians and work under the
supervision of the EMS director.
 	Ambulances owned by the county are stationed in either a county-owned building
that is manned by a part time “facility coordinator” or in local municipal facilities
that are manned by “community coordinators.”
 	The facility coordinator and the community coordinators are employed and
supervised solely by the EMS director.
 	The facility coordinator is responsible for maintaining the county-owned building,
which includes training facilities and administrative offices, and the ambulances
stationed therein, and is responsible for scheduling the emergency medical
technicians who will be on call in the Logan area.
 	The county commission does not directly supervise any of the EMS personnel.
(1984) (office of alderman on city common council incompatible with employment as residential appraiser
in city assessor’s office). We have previously reached the same conclusion in opining on an analogous
circumstance. See Attorney General Opinion No. 2012-15 (position of county commissioner incompatible
with trustee for county hospital).
22 Baker. 269 Kan.at 239, Syl. ¶ 5. We note, however, that in your letter requesting our opinion you state
that a volunteer EMT in Phillips County is in fact paid a stipend whenever called out on an ambulance run
and that a facility coordinator receives a monthly payment from the county.
23 See Baker, 269 Kan. at 251.
24 You do not so state in your letter, but we assume the county commission also has authority to
terminate the employement of the EMS director.

Thomas H. Sullivan
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The Kansas Supreme Court in Unified School District No. 501, Shawnee County v.
Baker25 	reviewed 	whether 	the 	common 	law 	doctrine 	of 	incompatibility 	of 	offices
precludes one person from concurrently serving as a school board member and a
teacher in the same school district.
As we focus on the agreed facts before us, the inescapable conclusion is
that Baker's positions are incompatible. 	By assuming the role of teacher
and Board member, Baker occupies one position that is subordinate to the
other. 	As Board member she is the employer and as teacher, the
employee. In her capacity as Board member she sits on a policy-making
body 	that 	negotiates 	with 	the 	teachers' 	collective 	bargaining
representative, who is also her representative as a teacher. This is a clear
conflict of interest. Similarly, Baker is subject to discipline by the Board.
She may, under certain circumstances, be fired by it. 	The principal who
must evaluate Baker's performance as a teacher indirectly answers to
Baker as a board member. 	As Baker discharges her Board duties, her
actions, no matter how well-intentioned, will be colored by the conflict
inherent in her two positions. 26
K.S.A. 	65-6113(a) 	authorizes 	a 	county 	to 	“establish, 	operate 	and 	maintain 	an
emergency medical service or ambulance service” and to “contract with any person,
other municipality or board of a county hospital for the purpose of furnishing emergency
medical 	services 	or 	ambulance 	services 	within 	or 	without 	the 	boundaries 	of 	the
municipality upon such terms and conditions and for such compensation as may be
agreed upon.” However, we have not located any statutes that address the supervisory
roles of persons participating in a county EMS system. 	Given the lack of a statutory
organizational 	system, 	we 	assume 	that 	the 	organizational 	system 	utilized 	in 	the
scenario you present is established by county resolution or policy or through agreement
by the county commission and persons participating in the county EMS system.
Without a statutory organizational system, the supervisory role of the EMS director
could be modified by the county commission to meet any new concerns or desires of
the county commission. In addition, the costs of operating the EMS system are payable
from the county’s general fund or from a special fund for which a tax is levied by county
commission action. 27 	If the costs prove to be too high for the county commission’s
comfort, the county commission may seek to rein in costs by directing the EMS director
to lower payments to the volunteer emergency medical technicians or the facility
coordinator; similarly, the county commission holds authority to raise and expend more
public money to increase payments to the volunteer emergency medical technicians or
the facility coordinator. If the county commission has concerns regarding the actions or
performance of a volunteer emergency medical technician or the facility coordinator, it
may direct the EMS director to omit the person from further assignments. 	Even though
the EMS director currently possesses extensive authority in operating and maintaining
the 	county 	EMS 	system, 	the 	EMS 	director 	remains 	answerable 	to 	the 	county
25 269 Kan. 239 (2000).
26 Baker, 269 Kan. at 251 (emphasis added).
27 See K.S.A. 65-6113.

Thomas H. Sullivan
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commission, which includes a person whom the EMS director supervises. 	Given these
and similar factors, we determine the common law doctrine of incompatibility of offices
precludes one 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 EMS system.
Remedy to the Incompatibility
Having found the offices incompatible, we turn to your final question that asks, “[W]hich
office should be forfeited?” As a general matter, courts applying the common-law
doctrine of incompatibility of office have held that a person’s acceptance of the later-in-
time office operates to vacate the office previously held. 28 Strictly applying that general
rule to the facts as you have presented them would result in the conclusion that the
positions of both volunteer emergency medical technician and facility coordinator for the
county EMS system already have been forfeited upon the assumption by the same
individual 	of 	the 	office 	of 	county 	commissioner. 	However, 	we 	note 	that 	in
circumstances, such as presented here, in which the first-held of the incompatible
offices is a position of employment other than a public office, courts have sometimes
exercised their equitable authority to require that a choice be made between the two
offices rather than holding that the first-held position of employment is forfeited as a
matter of law. 29 	The Kansas Supreme Court has followed that equitable approach. 30
Thus, we think Kansas courts would find the incompatibility cured either by resignation
as 	county 	commissioner 	or 	by 	resignation 	as 	both 	volunteer 	emergency 	medical
technician and as facility coordinator.
Sincerely,
Derek Schmidt
Attorney General
Richard D. Smith
Assistant Attorney General
DS:AA:RDS
28 See Baker, 269 Kan. at 252 (citing Gilbert, 67 Kan. at 362-63 (1903)).
29 See, e.g., City of Wildwood v. DeMarzo, 412 N.J. Super. 105,124 (permitting dual office-holder to elect
which office he or she wishes to retain); Otradovec, 118 Wis.2d at 3395,397 (same).
30 Baker, 269 Kan. at 252 (disqualifying district employee from serving on school board, rather than as
teacher, to avoid “inequitable” result).