Request By:
Walter L. Cato, Jr., Esq.
300 Old Portland Building
539 W. Market Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter in which you, in your capacity as attorney for the sixth class city of Green Spring, raise a question concerning incompatible offices. You state that the city presently employs part-time policemen who are also employed part-time by at least one other city. The employment stems from a written contract between the city and the employed policemen. You ask whether a policeman employed under such circumstances is a city officer pursuant to KRS 61.080(4) which states that, "No person shall, at the same time, fill two (2) municipal offices, either in the same or different municipalities." A prohibition, identical to that found in KRS 61.080(4) is set forth in section 165 of the Kentucky Constitution.
In McQuillin Mun. Corp. (3rd Ed.), Vol. 16, § 45.06, the following appears:
". . . The term 'policeman' has been defined to mean a person who is a member of an organized force for maintaining peace and order, preventing and detecting crime, and enforcing the law; a policeman of a city is a person who has been authorized and empowered by a city to perform duties which relate to its governmental function of maintaining peace and order. The term 'policeman' is often a comprehensive one, and generally includes every member of the police force. . . ."
Furthermore, in McQuillin Mun. Corp. (3rd Ed.), Vol. 16, § 45.11, the author states:
"At common law a policeman is not an officer and the office exists only when created by statute or municipal ordinance. It has been said that policemen may be either officers or employees, as the local legislative department may determine. A majority of the cases announce that members of the police department, including commissioners, superintendents, the chief of police, police captains, police sergeants, watchmen, constables policemen, special policemen, and patrolmen, are public officers. Thus, policemen have been held to be officers, and not employees, with respect to qualifications, tenure, dismissal, and within the meaning of a workmen's compensation act."
In Kentucky a city marshal, policeman or patrolman is considered to be a municipal officer. See City of Lexington v. Rennick, 105 Ky. 779, 49 S.W. 787 (1899) and Arms & Short v. Denton, 212 Ky. 43, 278 S.W. 158 (1925) as well as OAG 74-537, copy enclosed, where we concluded that the city marshal of one city could not be employed, at the same time, as a part-time deputy marshal, policeman or patrolman in another city without creating an incompatible situation under the statute.
Although KRS 95.790 and 95.800, authorizing a city of the sixth class to appoint a city marshal and employ police officers, have been repealed, such a city may, pursuant to the municipal home-rule provisions (KRS 82.082), create a police department. In OAG 81-48, copy enclosed, we said that the establishment of a police department is a legislative matter of a permanent nature which must be accomplished by the enactment of an appropriate ordinance, setting forth the number of members, qualifications, duties and powers, grades, compensation, oath, etc., which meet the basic criteria for establishing an office under KRS 83A.010(9).
Under Kentucky law a city policeman is considered to be a municipal officer and thus a city cannot employ as a part-time police officer a person who is presently serving as a police officer in another city without creating an incompatibility prohibited by KRS 61.080(4).
The last paragraph of your letter states that the city is considering the possibility of entering into a inter-city compact relative to police protection and you seek a copy of the form for such agreements.
Assuming that you are referring to the Interlocal Cooperation Act (KRS 65.210 to 65.300), there is no specific form for such an agreement. This office is required to approve such agreements [KRS 65.260(2)] and they must satisfy the provisions of KRS 65.250 (required contents of an interlocal agreement). Note particularly the provisions of KRS 65.255 which, in effect, permit a police officer of one city to exercise his powers in another city. The Interlocal Cooperation Act as it relates to joint police protection is discussed in OAG 74-410 and 75-25, copies of which are enclosed; and it is the only device which can be utilized to permit a police officer of one city to exercise his powers in more than one city concurrently.