Kansas Attorney General Opinion 2022-008

September 14, 2022
ATTORNEY GENERAL OPINION NO. 2022- 8
Harry Joe Pratt, County Attorney
Sheridan County, Kansas
736 Main, P.O. Box 565
Hoxie, KS 67740
Re: 	Counties and County Officers—County Commissioners—Eligibility to Office
of Commissioner; State, County, Township or City Office; County Hospital
Clinic Director; Incompatibility of Offices
County and County Officers—Hospitals and Related Facilities—County
Hospitals; Management of Hospital; Hospital Board; Powers and Duties of
Board; Clinic Director; County Commissioner; Incompatibility of Offices
Synopsis: 	Sheridan County has established a hospital and provided for its governance
by an elected board pursuant to K.S.A. 19-4601 et seq. K.S.A. 19-205 does
not preclude a person employed in the hospital as a clinic director from
serving 	as 	a 	county 	commissioner. 	The 	common 	law 	doctrine 	of
incompatibility of offices does not preclude a person from concurrently
serving as Sheridan County commissioner and clinic director. Cited herein:
K.S.A. 19-205; 19-4601; 19-4605; 19-4606; 19-4607; 19-4610; 77-109.
* 	* 	*
Dear Mr. Pratt:
As Sheridan County Attorney, you request our opinion regarding whether K.S.A. 19-205
precludes a person who is employed as a clinic director in a county hospital from eligibility
to the office of county commissioner. If it is determined that the person is not precluded
under K.S.A. 19-205, you ask whether the common law doctrine of incompatibility of
offices would preclude a person from concurrently serving as county commissioner and
as the clinic director.

Harry Joe Pratt, County Attorney
Page 2
BACKGROUND
Exercising its authority under K.S.A. 19-4601 et seq., Sheridan County operates a
hospital. 1 The hospital includes the Sheridan County Health Complex, which consists of
the Sheridan County Hospital, Hoxie Medical Clinic, Long Term Care Unit and Assisted
Living Unit. 2 	The Sheridan County Commission has provided for the management and
control of the hospital by an elected board. 3 The board is authorized to prepare a budget 4
and adopt bylaws, rules and regulations for the management and control of the hospital. 5
The board has selected a chief executive officer who oversees employment issues and
operation of the hospital. 6 A director is employed to oversee daily operation of the Hoxie
Medical Clinic in accordance with the board’s policies and procedures. 7
We are asked to determine whether a person who is employed as the director of the Hoxie
Medical Clinic may seek the office of Sheridan County Commissioner, and, if elected,
may concurrently serve in both positions. 	We addressed similar situations in Attorney
General Opinions No. 2016-12 and No. 2016-13. 	The following analysis is largely
incorporated from those opinions.
ANALYSIS
Statutory Prohibition
“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.” 8 K.S.A. 19-205 establishes who is eligible to serve as county commissioner.
(a) Except as provided by K.S.A. 12-344 and 12-345, and amendments
thereto, and K.S.A. 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.
1 “‘[H]ospital’ means a medical care facility as defined in K.S.A. 65-425, and amendments thereto, and
includes within its meaning any clinic, school of nursing, long-term care facility, limited care residential
facility, child-care facility and joint enterprises for the provision of health care services operated in
connection with the operation of the medical care facility. . . .” K.S.A. 19-4601(c).
2 Harry Joe Pratt, Correspondence, May 27, 2022; https://schcmed.com/ (accessed July 31, 2022).
3 Harry Joe Pratt, Correspondence, July 22, 2022. 	K.S.A. 19-4605 authorizes a county commission to
provide for management and control of the hospital by a board, the members of which are appointed by the
commission or elected by the county’s qualified electors on a nonpartisan basis.
4 K.S.A. 19-4607. An elected board submits its budget to the county clerk, apparently putting it outside the
review of the county commission. See also K.S.A. 19-4606 (elected board may levy a tax for the purpose
of operating, maintaining, equipping and improving a hospital).
5 K.S.A. 19-4610.
6 Harry Joe Pratt, Correspondence, May 27, 2022; https://schcmed.com/ (accessed July 31, 2022). See
K.S.A. 19-4610.
7 Harry Joe Pratt, Correspondence, July 22, 2022.
8 Unified School District No. 501 v. Baker, 269 Kan. 239, 243 (2000). See also Stanley v. Sullivan, 300
Kan. 1015, 1018 (2014) (“As a general rule, statutory law supersedes common law.”).

Harry Joe Pratt, County Attorney
Page 3
(b) 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.
(c) Any county commissioner may serve as a volunteer in any capacity for
an emergency medical service or ambulance service or as a volunteer fire
fighter and may receive the usual compensation or other remuneration for
such volunteer services.9
The exceptions listed in K.S.A. 19-205(a) regard consolidation or unification of certain city
and county offices, functions, services and operations. Sheridan County is not pursuing
such consolidations or unifications. 	Since the exceptions are not applicable, it must be
determined whether the position of clinic director is a state, county, township or city office.
The Kansas Supreme Court addressed the distinction between officers and other
employees in Durflinger v. Artiles. 10 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. 11
Clinic director is not a position created by statute or ordinance. 	The director does not
serve a fixed term or tenure, but rather may have his or her status modified or terminated
as determined by the hospital board or administrator. Any actions taken by the director
must be in accordance with the hospital board’s policies and procedures. 	The director
does not exercise independent authority regarding the direction, supervision, and control
of the hospital or clinic. As such, the clinic director fills a position of employment, rather
than a public office. Based on the facts presented, the position of clinic director is not a
state, county, township or city office.
Likewise, 	the 	position 	of 	clinic 	director 	is 	not 	a 	state 	board, 	committee, 	council,
commission or similar body. 	Therefore, K.S.A. 19-205 does not preclude a person
employed as a clinic director from serving as a county commissioner.
We have been unable to locate any other statute that might prohibit a person from
concurrently holding the office of county commissioner and serving as the clinic director
9 K.S.A. 19-205 (emphasis added).
10 234 Kan. 484 (1983), overruled in part by Boulanger v. Pol, 258 Kan. 289, 298 (1995).
11 Attorney General Opinion Nos. 2016-13; 2016-12; 2013-19.

Harry Joe Pratt, County Attorney
Page 4
for a hospital established pursuant to K.S.A. 19-4601 et seq. Further, we have not located
any statute that authorizes a person to hold both positions. Thus, because the Legislature
has neither prohibited nor authorized the simultaneous holding of the positions, we turn
to the common law as the legal authority that governs this situation.12
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. 13
Offices 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. 14
“‘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.” 15 The Kansas Supreme Court has long 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.”16
As noted above, the position of clinic director does not constitute a public office. 	The
determination, however, does not end our review of the applicability of the common law
doctrine of incompatibility of offices.
In Dyche v. Davis, 17 the Kansas Supreme Court determined the doctrine applies when a
person concurrently holds a public office and a position of public employment.18 	“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.” 19 	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
12 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.”).
13 Baker, 269 Kan. at 249.
14 Dyche v. Davis, 92 Kan. 971, 977 (1914). See also Baker, 269 Kan. at 248.
15 Attorney General Opinion No. 2014-03.
16 Baker, 269 Kan. at 248, quoting Abry v. Gray, 58 Kan. 148, 149 (1897).
17 92 Kan. 971 (1914).
18 92 Kan. at 977-79. See also Baker, 269 Kan. 248-49 (summarizing Dyche).
19 Baker, 269 Kan. at 239, Syl. ¶ 6.

Harry Joe Pratt, County Attorney
Page 5
conclusion. 20 	The doctrine applies irrespective of whether the person draws two
salaries. 21 	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. 22
The Kansas Supreme Court in Unified School District No. 501, Shawnee County v.
Baker 23 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. 24
The concerns expressed in Baker do not exist in the current situation. 	The elected
hospital board, rather than the county commission, employs the clinic director. 	The
hospital board develops the policies and procedures that the clinic director must follow.
Any kind of supervision or discipline of the clinic director may be conducted by the
administrator, 	at 	the 	discretion 	of 	the 	hospital 	board, 	independent 	of 	the 	county
commission. 	The clinic director will not as county commissioner be in a position of
supervising the supervisor. Given these facts, the common law doctrine of incompatibility
20 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 (1984) (office of
alderman on city common council incompatible with employment as residential appraiser in city assessor's
office). Following Baker, we have reached the same conclusion in opining on analogous circumstances.
See Attorney General Opinion No. 2016-13 (person precluded from concurrently serving as county
commissioner and economic development director); 2016-12 (person is precluded from concurrently
serving as county commissioner and either a volunteer emergency medical technician in the same county
or facility coordinator for the county emergency medical services system); 2012-15 (position of county
commissioner incompatible with trustee for county hospital).
21 Baker, 269 Kan. at 239, ¶ 5.
22 See Baker, 269 Kan. at 251.
23 269 Kan. 239 (2000).
24 269 Kan. at 251.

Harry Joe Pratt, County Attorney
Page 6
of offices does not preclude a person from concurrently serving as Sheridan County
commissioner and clinic director in the hospital established pursuant to K.S.A. 19-4605.
CONCLUSION
Sheridan County has established a hospital and provided for its governance by an elected
board pursuant to K.S.A. 19-4601 et seq. 	K.S.A. 19-205 does not preclude a person
employed in the hospital as clinic director from serving as a county commissioner. 	The
common law doctrine of incompatibility of offices does not preclude a person from
concurrently serving as Sheridan County commissioner and clinic director.
Sincerely,
Derek Schmidt
Kansas Attorney General
Richard D. Smith
Assistant Attorney General
DS:RCH:RDS:sb