Kentucky Advisory Opinions March 16, 1993: OAG 93-027 (March 16, 1993)

OAG 93-027.

By letter dated January 8, 1993 (probably actually 1993), received by this office on February 9, 1993, you ask whether it is legal for Oldham County Police Officers, who are under a county police merit system, to be candidates for County Judge/Executive and Sheriff, while remaining on duty as county police officers.

For reasons discussed below, we cannot provide a definitive answer regarding the present circumstances in Oldham County. Points made below, however, may be of assistance.

First, the general rule is that unless a given activity is properly banned, the activity can be engaged in.

There is no absolute statutory ban in Kentucky on a county police officer under a county police merit system being a candidate for public office while employed as a police officer. See the discussion below, however, regarding on duty activity as distinguished from off duty activity.

Your letter gives rise to certain questions that we would need to know the answer to, in order to provide a definitive view regarding the question you have posed.

(A) Is the Oldham County Police Force covered by a merit system established pursuant to KRS 78.405?

(B) Has the county police merit board promulgated a rule or regulation pursuant to KRS 78.405 regarding political activity of Oldham County Police officers? If so, what is the substance of such rule or regulation?

(C) In asking whether county police officers may be candidates for certain county offices "while remaining on duty as county police officers," do you mean can police officers "campaign" for, or in relation to, a public office during actual on-duty work time?

(D) If the answer to the question immediately above is "yes," what does the word "campaign" include in the circumstances you are concerned with?

Unless we have answers to the questions posed above, and perhaps others that may arise from those answers, we cannot provide a definitive view regarding how Oldham County Police officers might be affected by the county police merit system if they are candidates for the offices you have mentioned.

KRS 78.435 (copy enclosed) bans certain political activities by county police officers covered by KRS 78.400 to 78.460 (the county police merit system provisions). The provisions of KRS 78.435 most directly related to an officer's candidacy for public office are subsections (1) and (4), which provide:

(1) No officer or employee covered by the provisions of KRS 78.400 to 78.460 shall directly or indirectly solicit or receive or be in any manner whatever concerned in receiving, soliciting or publicizing any assessment, gift, subscription or contribution to or for any political party or candidate of public office.

(4) No officer or employee covered by KRS 78.400 to 78.460 shall foster, promote, or be concerned with any actions involving political or religious controversies or prejudices while in uniform.

(Emphasis added.)

While KRS 78.435 does not contain an express ban on candidacy for public office by county police officers covered under the provisions of KRS 78.400 to 78.460, subsection (1) of KRS 78.435 appears to prohibit a county police officer covered under the provisions of KRS 78.400 to 78.460, whether on or off duty, from soliciting or receiving campaign contributions. Further, in view of KRS 78.435(4), an officer could not directly campaign for public office while in uniform. See Opinion of the Attorney General (OAG) 81-97 (copy enclosed).

KRS 95.017 (copy enclosed) establishes certain "entitlements" of "uniformed" county police officers while off duty and out of uniform. KRS 95.017 does not establish an "entitlement" of a county police officer to be a candidate for public office while employed as a county police officer, but on the other hand, there is no express ban on an officer being a candidate.

In sum, we believe a county police officer covered under a KRS 78.400 to 78.460 county police merit system can be a candidate for public office (assuming there is no proper local merit system rule or regulation, or as noted a statute, which would ban such activity). Such an officer cannot, however, directly campaign for public office while in uniform. KRS 78.435(4) (above). Further, a county police officer covered under a KRS 78.400 to 78.460 county police merit system, whether on or off duty, cannot participate in political fund raising activities as described in KRS 78.435(1)(above). Such an officer thus cannot solicit or receive, directly or indirectly, campaign contributions for his or her own campaign.

Concerning the promulgation of local rules or regulations regarding candidacy for public office by public employees, you might find Allen v. Board of Education of Jefferson County , Ky. App., 584 S.W.2d 408 (1979) of interest. A copy of that case is enclosed for your information.

You might want to consult with the county attorney regarding the specific circumstances in Oldham County in light of views expressed in this opinions.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General

(502) 564-7600

Enclosures