AGO 1989-076.

• Case Date: June 22, 1989
• Court: Kansas

Kansas Attorney General Opinions 1989. AGO 1989-076. June 22, 1989ATTORNEY GENERAL OPINION NO. 89-76Larry R. BaerHalstead City Attorney 713 N. Main Box 224 Newton, Kansas 67114 Re: Cities of the Second Class--Mayor -Council Form of Government--Incompatibility of Officers Doctrine Synopsis: The doctrine of incompatibility of offices precludes one person from holding the office of reserve police officer while at the same time serving as a city council member in a city of the second class having the mayor-council form of government. However, as stated in Attorney General Opinion No. 81-74, a person could hold the office of council member and still serve as a member of a volunteer fire department, as such volunteers are neither officers nor employees of the city for the purposes of the doctrine. * * * Dear Mr. Baer: You request our opinion concerning the simultaneous holding of two city offices by one person. Specifically, you ask whether the positions of reserve police officer and city council member are incompatible so as to preclude an individual from holding both positions. Additionally, you ask whether a person may simultaneously hold the positions of volunteer fire department member and city council member in the city of Halstead. The decisions of the Kansas Supreme Court do not permit an individual to hold more than one public office if there is an "incompatibility" between the offices. Dyche v. Davis, 92 Kan. 971 (1914); Congdon v. Knapp, 106 Kan. 206 (1920). The incompatibility doctrine applies in those cases where two public offices are held by the same individual at the same time. In Abry v. Gray, 58 Kan. 148 (1897), the Kansas Supreme Court adopted the essential language of 19 American and English Encyclopedia of Law, 562, as follows:

" 'The incompatibility which will operate to vacate the first office must be something more than the mere physical impossibility of the performance of the duties of the two offices by one person, and may be said to arise 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 retain both.' " Id. at 149.

Subsequently in Dyche v. Davis, supra the court held:

"Offices are incompatible when the performance of the duties of one in someway interferes with the performance of the duties of the other

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