Request By:
A. Dale Bryant, Esq.
Citizens Bank Building
Jackson, Kentucky 41339
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking:
"May a State, County or City law enforcement officer lawfully be engaged in other employment with compensation if such employment does not conflict with the performance of his duties as such law enforcement officer? "
You also ask whether a state, county or city law enforcement officer or his wife may be the owner of a business if such business duties would not conflict with the performance of his duties as a police officer.
KRS 95.015, dealing with police officers in cities, states:
"Members of the police and fire departments in cities and urban-county governments shall abide by and adhere to the rules, regulations and laws set forth by the Kentucky Revised Statutes, and the legislative body of the city in which they are employed, provided, that no such rule, regulation or law shall apply that alters, abridges or otherwise restricts the constitutional rights of said members and said members, except when on duty, shall not be restrained from exercising their rights and privileges or from entering into any endeavor enjoyed by all other citizens of the city in which they reside."
The above quoted statute has been called a "moonlighting" statute and it permits city policemen to seek and obtain outside employment during their off-duty hours without any restrictions or limitations being imposed by local governmental units.
KRS 61.310 deals in part with the compensation and other employment of peace officers. Subsection (1) thereof states that "Peace officer" as used in this statute means any sheriff, deputy sheriff, constable, deputy constable, patrol or any other peace officer or deputy peace officer except those appointed pursuant to KRS 61.360 or 227.270 and those employed by a board of education. Subsection (4) provides:
"A peace officer may, while in office, and during hours other than regular or scheduled duty hours, act in any private employment as guard or watchman or in any other similar or private employment. However, he may not participate directly or indirectly, in any labor dispute during his off-duty hours. Any peace officer who violates this subsection may be removed from office under the provisions of KRS 63.170."
KRS 61.310 clearly authorizes a peace officer to obtain private employment provided such employment does not interfere with the performance of his duties. A city policeman is a peace officer and he would be included among those able to utilize the provisions of KRS 61.310. See KRS 446.010(24) and OAG 76-621, copy enclosed, and the authorities cited therein. A county policeman is also a peace officer subject to the provisions of KRS 61.310 permitting outside employment during off-duty hours. See KRS 70.570, KRS 446.010(24) and OAG 76-620, copy enclosed.
In regard to the Bureau of State Police and Kentucky State Troopers, KRS 16.060 states in part that the commissioner and each officer of the bureau is individually vested with the powers of a peace officer. In
Parrott v. Commonwealth, Ky., 408 S.W.2d 614 (1966), a state trooper served a warrant directed "to any Sheriff, Constable, Jailer, Marshal, or Policeman, of Harlan County." The court said in part that the state trooper was acting as a police officer when he served the warrant and he falls within the designation of "Policeman. " "Even if he was not technically a 'policeman, ' he was certainly a peace officer who could have been directed to serve this warrant." Note also that the definition of "Peace Officer" in KRS 424.010(24) includes sheriffs, constables, coroners, jailers, marshals, policemen and other persons with similar authority to make arrests.
The Bureau of State Police presently operates under a "General Order" concerning "Outside Employment," a photostatic copy of which is enclosed. The order provides in part that every member of the bureau who engages in employment other than his regular job must have written authority to do so. Authorization for such employment may be granted by the Commissioner provided there is no conflict of interest or unreasonable burden imposed which would reduce the effectiveness of the employe. We can find no reported case involving the construction and interpretation of this specific order in connection with the provisions of KRS 61.310 nor can we find any reported case dealing with off-duty employment by state troopers generally. Obviously a departmental regulation or order cannot be inconsistent or conflict with a state statute. See
Franklin County v. Webster, Ky., 400 S.W.2d 693 (1966). Portions of the "General Order" may conflict with the provisions of KRS 61.310 and if they, in fact, do the conflicting portions of the order are invalid.
Thus, in conclusion, city police officers, pursuant to KRS 95.015, and city, county and state police officers, pursuant to KRS 61.310, may seek and obtain outside employment during their off-duty hours so long as it does not interfere with the performance of their official duties and does not involve their participation, directly or indirectly, in any labor dispute.