Kentucky Advisory Opinions May 17, 1994: OAG 94-033 (May 17, 1994)

OAG 94-033.

First, my apologies for the lengthy delay in responding to your request.

By letter of April 27, 1993, you asked that this office clarify Opinion of the Attorney General (OAG) 93-27, by responding to the following questions:

(1) Would a campaign organization for an individual be considered a political group under KRS 95.017?

(2) Would being a campaign manager, secretary, or treasurer of a candidate's campaign committee be considered a violation of subsection (1) of KRS 78.435 which prohibits directly or indirectly receiving contributions for a candidate for a political office?

(3) Could the merit board legally adopt regulations that require a county police officer to resign before he could run for political office?

As to your first question, KRS 95.017 provides:

Uniformed employes of any city or county police or fire department, while off duty and out of uniform, shall be entitled to:

* * *

(f) Become members of political groups.

Although a restrictive definition of the phrase "political groups" could be applied, we believe the better view, reading KRS 95.017 as a whole, is to define the phrase in accordance with common and approved usage of language, in keeping with KRS 446.080(4). In our view the phrase "political group," as used in KRS 95.017, applying common and approved usage to the phrase, means any organization of persons for a political purpose. Such an organization obviously would include a candidate's campaign organization.

Regarding your second question (above), KRS 78.435(1) provides that:

No officer or employe 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 for public office.

In our view, if an "officer or employee covered by the provisions of KRS 78.400 to 78.460" is the manager, secretary, or treasurer of a candidate's campaign committee, and such person's campaign "received, solicited or publicized any assessment, gift, subscription or contribution to or for any political party or candidate for public office," such officer or employee would at least be "concerned" (as by having an interest) in a matter in which being concerned is banned by KRS 78.435(1). One covered by KRS 78.400 to 78.460, in the circumstance described, we believe, would be in violation of KRS 78.435(1), in serving as the manager, secretary, or treasurer of a candidate's campaign for public office.

Your third question asks, in substance, whether a county police merit system board, created pursuant to KRS 78.405, may legally adopt regulations that require a county police officer to resign before he could run for office. In our view the answer is yes.

KRS 78.440(1) provides, in part pertinent to your question:

Every county police force merit system board created hereunder shall make, promulgate, and when necessary, amend rules for the qualifications, original appointment, promotion, demotion, transfer, layoff, reinstatement, suspension, fine and removal of the officers and employees covered by KRS 78.400 to 78.460. . . .

We believe a regulation requiring a county police officer covered by KRS 78.400 to 78.460 to resign before running for public office is within the scope of regulatory authority of a county police merit system board created pursuant to KRS 78.405, as provided by KRS 78.440(1) (above). Such a condition could be imposed under the board's authority to make regulations concerning "qualifications" or under the authority to make regulations concerning "removal."

A regulation requiring a covered officer to resign before running for political office, we believe, should contain a specific finding expressly setting forth the government's interest in imposing such condition. Such finding might state, for example, that in imposing such condition, the board finds that the candidacy of a police officer for political office might adversely affect the right of the government and the public to a police officer's judgment not colored by the effect of his actions on his political support, and that the candidacy of a police officer for political office might undermine public confidence in the police department by creating the impression that its actions, or the actions of its officers, are guided by political considerations. See Allen v. Board of Education of Jefferson County , Ky.App., 584 S.W.2d 408 (1979).

As to the validity of a governmental ban on a public employee being a candidate for political office, see 51 ALR4th §3, "Legitimate government interest," and cases therein cited.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General