Kansas Attorney General Opinion 2016-020

December 2, 2016
ATTORNEY GENERAL OPINION NO. 2016-20
Brian J. Murphy
Allen County Sheriff
P.O. Box 433
1 N. Washington Street
Iola, KS 66749
Re: 	Counties 	and 	County 	Officers—County 	Commissioners—Eligibility 	to
Office of Commissioner; City Office; Police Officer
Synopsis: 	As determined in Attorney General Opinion No. 82-8, a person who serves
as a police officer holds a city office. Therefore, a person who serves as a
city police officer is prohibited by K.S.A. 19-205 from serving as a county
commissioner. 	Cited herein: 	K.S.A. 14-201; 14-205; 14-302; 19-205;
Kan. Const., Art. 12, § 5; Kan. Const., Art. 15, § 2; K.S.A. 13-2903
(repealed).
* 	* 	*
Dear Sheriff Murphy:
As Sheriff for Allen County, you ask our opinion regarding whether a person may
concurrently serve as a member of a board of county commissioners and a police
officer for a city of the second class having the mayor/council form of government that is
located in the county governed by the board. 	You request our assistance after the
county attorney and the county counselor provided differing opinions regarding whether
such service is precluded by K.S.A. 19-205 and whether the common law doctrine of
incompatibility of offices is applicable.
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

Brian J. Murphy
Page 2
retain both.” 1 	Applicability of the doctrine, however, is subject to provisions in the state
constitution and 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[s] does not apply.”2
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.3
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 and are
not applicable to the situation you present. 	Therefore, it must be determined whether
the position of city police officer is a state, county, township or city office.
The test for determining whether a position is a public office or public employment has
been summarized in previous Attorney General opinions.
The Kansas Supreme Court addressed the distinction between officers
and other employees in Durflinger v. Artiles. 4 	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.5
1 Unified School District No. 501, Shawnee County v. Baker, 269 Kan. 239, 248 (2000), quoting Abry v.
Gray, 58 Kan. 148, 149 (1897).
2 Baker, 269 Kan. at 243 (internal citation omitted).
3 Emphasis added.
4 234 Kan. 484 (1983), overruled in part by Boulanger v. Pol, 258 Kan. 289, 298 (1995).
5 Attorney General Opinion Nos. 2016-13; 2016-12; 2013-19.

Brian J. Murphy
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The Kansas Supreme Court determined in Haney v. Cofran6 that a city police officer
holds a public office for purposes of tenure under Article 15, § 2 of the Kansas
Constitution. 7
Does a policeman hold an office created by law? The Legislature has not
actually descended into such details, but it has created municipalities and
defined their powers and in general terms has authorized the creation of
the position of a policeman in the cities of this state.
In many respects a policeman is a municipal officer, but in other and
important respects the Legislature and the courts have raised him out of
the class of a mere subordinate or employé like a field man of a local
department of health or a cellhouse man at the penitentiary.
A policeman is a conservator of the peace and exercises many of the
functions of sovereignty, and important duties are imposed upon him by
the Legislature.
This court has frequently recognized police officers as exercising the
functions of sovereignty; and, being clothed with such extensive powers,
they must be considered public officers. 	There is no end of authority that
a policeman is a public officer.8
The Kansas Supreme Court’s finding is in accord with the majority of the cases heard in
other jurisdictions that have reviewed whether members of law enforcement hold
positions of public office or public employment.9
The 	finding 	in 	Haney 	was 	applied 	in 	Attorney 	General 	Opinion 	No. 	82-8, 	which
addresses whether K.S.A. 19-205 precludes a person from serving as both a county
commissioner and a part-time police officer for a city of the third class.
The City of Rose Hill is a city of the third class. Police officers are
appointed by the mayor with the consent of the council pursuant to K.S.A.
6 94 Kan. 332, modified at 95 Kan. 335 (1915).
7 In 1915, Article 15, § 2 of the Kansas Constitution stated, “The tenure of any office not herein provided
for may be declared by law; when not so declared such office shall be held during the pleasure of the
authority making the appointment, but the Legislature shall not create any office the tenure of which shall
be longer than four years.” According to Haney, the civil service act had the effect of extending a police
officer’s term to the entire period of good behavior, potentially extending it beyond the four-year limitation.
The dissent was not convinced that a constitutional amendment was necessary before policemen could
be placed under civil service regulations. Article 15, § 2 was amended in 1940 to exempt appointments
under a merit system.
8 Haney, 94 Kan. at 334 (internal citations omitted).
9 16A McQuillins, Municipal Corporations, § 45:18 (2016) (“A majority of the cases announce that
members of a police department, including . . . the chief of police, police captains, police sergeants, . . .
police officers, . . . and patrol officers, are public officers. Thus, police officers have been considered to
be officers, and not employees, with respect to qualifications, compensation, tenure, dismissal, tort
liability, and within the meaning of a workers’ compensation act.”).

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15–204 which provides for the appointment of all city officers. 	In addition,
the Kansas Supreme Court has characterized police officers as “city
officers” in Haney v. Cofran, 94 Kan. 332 (1915). 	In that case, the Court
found the statutory creation of the office, the sovereign functions exercised
by police officers and the public nature of their duties as persuasive in
determining 	that 	policemen 	are 	“officers” 	and 	not 	mere 	employees.
Therefore, since police officers are recognized as city officers, a county
commissioner would be prevented from holding said office by K.S.A. [ ]
19–205, even though the position is only part-time with a nominal salary. 10
Opinions of three previous Attorneys General that address statutory prohibitions similar
to K.S.A. 19-205 likewise followed Haney in deciding that the designated positions of
law enforcement are public offices under the statutes, resulting in disqualification of the
law enforcement officer from concurrently serving on the governing body of a city or
county. 11
We note that “[s]ince the adoption of the home rule amendment 12 in 1960, the Kansas
legislature has repealed a number of statutory provisions describing in some detail the
powers of governing bodies of cities of the second class, precisely because a statutory
enumeration of those powers was no longer necessary.”13 	The Legislature’s view of
whether a police officer holds public office, however, is reflected in two statutes that
continue to exist. K.S.A. 14-201 and 14-205 are applicable to a city of the second class
having the mayor/council form of government. The statutes provide:
[T]he mayor shall appoint, by and with the consent of the council, a
municipal judge of the municipal court, a city marshal-chief of police, city
clerk, city attorney, and may appoint police officers and any other officers
deemed necessary. 	Any officers appointed and confirmed shall hold an
initial term of office of not to exceed one year and until their successors
are appointed and qualified. 	Any officers who are reappointed shall hold
their offices for a term of one year and until their successors are appointed
and qualified. 	The council shall by ordinance specify the duties and
10 Attorney General Opinion No. 82-8 (internal citation omitted).
11 See Attorney General Opinion Nos. 96-46 (K.S.A. 13-2903 [repealed]; relatives by blood or marriage of
the mayor or any commissioner disqualified from holding any city office during the term of mayor or
commissioners; city police officer holds a city office; son of a city commissioner disqualified from being
appointed as a police officer during his father's term of office); 91-98 (K.S.A. 14-1302; city commissioners
precluded from holding any office of profit under the laws of any state or the United States, or any county
or other city office; deputy sheriff holds county office; person may not concurrently serve as city
commissioner and deputy sheriff); 77-130 (K.S.A. 13-2903 [repealed]; position of a police officer is a
public office; spouse of commissioner may serve as police department dispatcher if the person is a
civilian employee and not a police officer). See also Attorney General Opinion No. 89-76 (reserve police
officer holds public office for purposes of the common law doctrine of incompatibility of offices; offices of
city councilmember and reserve police officer are incompatible).
12 Kan. Const., Art. 12, § 5.
13 Attorney General Opinion No. 2014-10, quoting Attorney General Opinion No. 78-336.

Brian J. Murphy
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compensation of the office holders, and by ordinance may abolish any
office created by the council whenever deemed expedient. 14
All officers elected or appointed shall be qualified electors of said city,
except that the city may appoint nonresidents as city attorney, municipal
judge and as law enforcement officers when deemed necessary, including
the 	appointment 	of 	nonresidents 	who 	also 	serve 	as 	city 	attorney,
municipal judge or law enforcement officers of another municipality or
public 	agency: 	Provided, 	That 	nothing 	herein 	shall 	authorize 	the
appointment of nonresidents of this state. 	The city attorney shall be a
qualified elector of the county in which said city is located or of an
adjoining county. The removal from such city of any officer required to be
a qualified elector shall occasion a vacancy in such office. The clerk shall
enter every appointment to office, and the date thereof, on the journal of
proceedings. 	The 	council 	may 	require 	all 	city 	officers, 	elected 	or
appointed, to take and subscribe an oath and give bonds and security for
the faithful performances of their duties.15
When reading these provisions in their entirety, it is clear the Legislature, at least in the
appointment procedure, views a police officer as an officer, rather than an employee, of
the city.16
As determined in Attorney General Opinion No. 82-8, we believe that a person who
serves as a police officer holds a city office. 	Therefore, a person who serves as a city
police officer is prohibited by K.S.A. 19-205 from serving as a county commissioner.
Sincerely,
Derek Schmidt
Attorney General
Richard D. Smith
Assistant Attorney General
DK:AA:RDS:sb
14 K.S.A. 14-201 (emphasis added).
15 K.S.A. 14-205.
16 See Attorney General Opinion No. 79-68 (“In accordance with K.S.A. 14–201, policemen in cities of the
second class are ‘officers' as opposed to ‘employees' of such cities. . . .”).