Request By:
Honorable Byron Lee Hobgood
City Attorney
City of Madisonville
P.O. Box 195
Madisonville, Kentucky 42431
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 7 in which you relate that the city of Madisonville has elected to operate its civil service program for its police department pursuant to KRS 95.761, etc. A tentative plan to combat shoplifting in certain shopping centers has been proposed which provides that off duty policemen will be paid a certain amount of money by any business establishment in which a shoplifter is apprehended by an off duty officer. Under the circumstances, you raise the following questions:
1. Would any reward or payment no matter how characterized be legal?
2. Would it have to be contributed to the police pension fund under KRS 95.768?
3. Would the plan work if the off duty policemen became employees of the merchant's association and they were paid on the basis as outlined in the plan?
In response to your questions, we initially refer you to KRS 95.015, otherwise known as the "moonlighting" statute, which permits members of the police and fire departments in the various cities to be employed in any endeavor during their off duty hours. KRS 61.310 (4) permits any peace officer, while in office, and during hours other than regular or scheduled duty hours, to act in any private employment as a guard or watchman.
In view of the fact that a police officer may be privately employed during off duty hours in any capacity, including that of a guard or watchman, he is certainly entitled to any compensation that may result from such employment whether it be in the form of an award or basic compensation. In connection however with private employment as a security guard or special local peace officer, we believe that the provisions of KRS 61.360 should be considered in connection with the anticipated employment, as pointed out in OAG 75-631 [copy attached].
Though the police department is operating under KRS 95.768, we do not believe that this section requiring all awards, fees, or emoluments paid or given to the police officer, be paid into the pension fund would apply to compensation received from private employment during off duty hours since the awards referred to are a result of extraordinary service by a member of the department in the performance of his duties as a member.