Request By:
Mr. Thomas E. Morris
Christian County Clerk
Hopkinsville, Kentucky 42240
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 14 in which you present the following facts and question:
"HB 515 passed by the General Assembly in 1978 states that a policeman or fireman shall have the right of (A) (B) (C) (D) (E) (F) (G).
"In the initial paragraph of the bill it is stated that these entitlements are contingent upon his being 'off duty'.
"If a fireman were elected to the city council, would he be prevented from participation in regular council meetings if said meetings were held on his night to work?"
House Bill 515, enacted in 1978, has been coded as KRS 95.017, which reads as follows:
"Uniformed employes of any city or county police or fire department, while off duty and out of uniform, shall be entitled to:
"(a) Place political bumper stickers on their privately owned vehicles;
"(b) Weat Political buttons;
"(c) Contribute money to political parties, political candidates and political groups of their choice;
"(d) Work at the polls on election days;
"(e) Aid in registration or purgation of voters;
"(f) Become members of political groups; and
"(g) Hold office in political groups and carry out the mandates of that group." (Emphasis added).
At the same session of the legislature, KRS 95.470, applicable to police and firemen of cities of the third class [to which Hopkinsville belongs], was amended as follows pursuant to subsection (4):
"(4) No member of either department shall be active in politics or work for the election of candidates while on duty." (Emphasis added).
Prior to the '78 amendment to KRS 95.470 all police and firemen were prohibited from being active in politics or working for the election of candidates for office. A similar statute was held to prohibit a member of the police force from becoming a candidate for public office in 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). If KRS 95.470 had not been amended as above indicated, we believe that it would still prohibit a policeman or fireman from becoming a candidate for public office in spite of the permissive activities authorized by KRS 95.417; however, due to the amendment which appears to remove the prohibition against political activities and the right to become a candidate during off duty hours, we now believe that the fireman in question can run for the office of city councilman without jeopardizing his civil service position, provided he conducts his candidacy while off duty which may, of course, be difficult to do. This question naturally would be one for the courts to decide.
However, regardless of a policeman's or fireman's right to become a candidate under the above circumstances, the real question to determine is whether or not, if elected, he could continue to serve as city fireman, and we seriously doubt that he can in view of the common law prohibition as expressed in OAG 71-219, a copy of which we are attaching. We refer you to Page 3 of this opinion from which we quote the following applicable to your question:
"On the other hand, if the fire department is of a municipal nature, firemen are not generally considered municipal officers except the chief of the fire department, [McQuillin, Municipal Corporations, Vol. 16, § 45.11 and City of Lexington v. Thompson, 250 Ky. 96, 61 S.W.2d 1092 (1933)] though there is some case law to the contrary. Schmitt v. Dooling, 145 Ky. 240, 140 S.W. 197 (1911).
"If the ordinary fireman is merely an employee of the city and we think that he is, there would be no statutory or constitutional incompatibility under the sections above referred to. However, there would still be a strong possibility that the positions would be incompatible under the common law. In the case of Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) we find the court laying down certain principles relating to common law incompatibility involving an office and employment. The court, in this instance said:
"'. . . The inconsistency, which at common law makes offices incompatible, does not consist in the physical impossibility to discharge the duties of both offices; but rather in a conflict in interest, as where the incumbent of one office has the power to remove the incumbent of another, or to audit the accounts of another, or to exercise a supervision over another, as in the case of a judicial officer and his subordinate ministerial officer.'
"'It has, however, been held, as in State v. Butt, 9 S.C. 156, that where it is physically impossible for one holding an office to perform the duties of another office, which he has accepted, that the offices are incompatible. In People v. Green, 46 Howard's Practice Reports 169, the court announced the following rule:
"'Offices are said to be incompatible and inconsistent so as to be exercised by the same person: 1st. Whent from the multiplicity of business in them they can not be executed with care and ability; or, 2nd, When their being subordinate and interfering with each other, it induces a presumption that they can not be executed with impartiality and honesty.'"
"The position of city fireman is, of course, subordinate to some extent to the position of city councilman in that the latter has a vote in the appointment, removal, etc., of the fireman. However, there is a real question of whether or not this is sufficient to constitute an incompatibility under the rules laid down in the above cited case.
"In any event, it would not appear to be good public policy for a councilman to serve on the municipal fire department regardless of whether or not the position would constitute an office or merely a form of employment."
As you will note from the above, the real answer to your question concerning the fireman serving on the city council does not basically concern the merit statutes referred to, but on the other hand involves a common law incompatibility. But here again we have a question that only the courts can decide.