Request By:
Mr. Robert A. Coleman
Kentucky Crime Commission
622 Jetton Blvd.
Paducah, Kentucky 42001
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 30 in which you request an opinion concerning the following questions:
"1. May civil service employees of second class cities in Kentucky, such as Paducah, operating under K.R.S. chapter #90 file for and seek an elective position such as City Commissioner? The position of City Commissioner is a salaried position.
"2. May civil service employees of second class cities in Kentucky operating under K.R.S. chapter #90 file petitions seeking the elective position of City Commissioner (a salaried position, while maintaining their employment and civil service status?
"3. If civil service employees of second class cities in Kentucky operating under K.R.S. chapter #90 are not permitted to seek an elective position such as City Commissioner and such employee files a petition without first removing himself from the coverage of K.R.S. chapter #90, is such a petition legally filed?"
Our response to your initial question would be in the negative as held in OAG 67-91 [copy attached] . KRS 90.390 (2) prohibits a civil service employe of a city of the second class from actively participating in any election or to cause others to do so. Even an election under the city manager form of government, which is considered to be a nonpartisan election, is no exception. For example, a nonpartisan election is specifically exempt under the Federal Hatch Act but not under the terms of KRS 90.390. We might also point out that such an election would not be exempt under the state merit system since the office carries compensation other than a per diem payment. See OAG 77-143 [copy attached] . In addition, we also refer you to the case of Louisville Lodge No. 6, Fraternal Order of Police v. Burton, Ky., 518 S.W.2d 777 (1975), affirmed by the Supreme Court of the United States in 44 L. Ed. 2d 684 (1976). This case involved a similar statute governing cities of the first class, namely KRS 90.220.
Your second question has been answered above.
In response to your third question, a violation of KRS 90.390 by a merit employe who files for city commissioner would not affect the legality of his filing, and the clerk would have to accept the candidate's papers and place him on the special city primary ballot in accordance with the requirements of KRS 89.440. The civil service employe on the other hand would be subject however to possible dismissal under the terms of KRS 90.360 and would appear to be also subject to the penalties provided for under KRS 90.990.