Request By:
Mr. John F. McCauley
Commissioner
Department of Public Safety
Urban County Government
The Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter requesting an opinion concerning permissible off-duty employment of urban county policemen. You are concerned that certain types of off-duty employment may result in conflicts of interest prohibited by Article 16 of the Urban County Charter and the common law. Article 16 provides in part that no officer or employe of the government shall knowingly engage in any business or transaction or have a financial or other personal interest, direct or indirect, which is incompatible with the proper discharge of his official duties or would tend to impair his independence of judgment or action in the performance of his official duties. Furthermore, no officer or employe shall knowingly engage in or accept private employment or render services for a private interest when such employment or service is incompatible with the proper discharge of his official duties or would tend to impair his independence of judgment or action in the performance of his official duties.
Your questions are as follows:
"We request your opinion concerning whether a police officer may be employed by a law firm, insurance company or other private entity or individual to:
1. Investigate an incident in Fayette County which the Urban County Division of Police is required to investigate, but where criminal wrongdoing may or may not be present, e.g., missing persons, traffic accidents, etc.;
2. Investigate crimes committed in Fayette County; or
3. Investigate other matters arising in Fayette County which are not directly related to law enforcement, e.g., marital disputes, child custody cases, etc."
In connection with off-duty employment by police officers, we first direct your attention to KRS 95.015 which 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 policemen to seek and obtain outside employment during their off-duty hours without any restrictions or limitations being imposed by governmental units.
KRS 61.310 deals in part with compensation and other employment of peace officers and 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."
The statute clearly authorizes a peace officer to obtain private employment, even as a guard or watchman, provided such employment is after regular hours and so long as it does not interfere with the performance of his official duties. A policeman is a peace officer and, therefore, he is among those able to utilize the provisions of KRS 61.310. See KRS 446.010 (24); Arms and Short v. Denton, 212 Ky. 43, 278 S.W. 158 (1925); City of Lexington v. Rennick, 105 Ky. 779, 49 S.W. 787 (1899).
In OAG 76-621, copy enclosed, at page five, we concluded that KRS 95.015 and 61.310(4) permit police officers to seek and obtain outside employment during their off-duty hours without any restrictions or limitations being imposed by local governmental units so long as it does not interfere with the performance by the policemen of their official duties. Thus, even though the statutes permit off-duty employment and although there is no specific statutory provision dealing with conflicts of interest in this situation, the common law principles pertaining to conflicts of interest are applicable.
In 67 C.J.S., Officers, § 204, it is stated that a public office is a public trust and the office holder may not use it directly or indirectly for a personal profit or to further his own interest, since it is the policy of the law to keep an official so far from temptation as to insure his unselfish devotion to the public interest. See Katz v. Brandon, Conn., 245 A.2d 579 (1968). Officers are not permitted to place themselves in a position in which personal interest may come into conflict with the duty they owe to the public. In addition, the following appears in 67 C.J.S., supra, at page 668:
"Whether a particular interest is sufficient to disqualify is a factual question, depending upon the circumstances of the particular case, and the question is always whether the circumstances could reasonably be interpreted to show that they had the likely capacity to tempt the official to depart from the sworn public duty. "
In Bracey v. City of Long Branch, 73 N.J. Super. 91, 179 A.2d 63 (1962), it is stated that, "The public is entitled to have its representatives perform their duties free from any personal or pecuniary interest which might affect their judgments. 'The law tolerates no mingling of self interest; it demands exclusive loyalty.'" A public officer may not place himself in a position where his private interest conflicts with his public duty. Housing Authority of City of New Haven v. Dorsey, 164 Conn. 247, 320 A.2d 820 (1973); 63 Am.Jur.2d Public Officers and Employees §§ 280 and 281; McQuillin Mun. Corp. (3rd Ed.), Vol. 3, § 12.130.
Two Kentucky cases dealing with common law incompatibility are Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) and Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143 (1937). Hermann v. Lampe, supra, which applies to offices and forms of employment, states in part as follows:
"'Offices are said to be incompatible and inconsistent so as to be exercised by the same person: First. When from the multiplicity of business in them, they cannot be exercised with care and ability; or second, when, their being subordinate and interfering with each other, it induces a presumption that they cannot be executed with impartiality and honesty.'"
Polley v. Fortenberry, supra, states in part as follows:
". . . 'Aside from any specific constitutional or statutory prohibitions, incompatibility depends upon the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them. The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of the other or whether the functions of the two are inherently inconsistent of repugnant or whether the occupancy of both offices is detrimental to the public interest. '"
What further complicates the matter you have presented is the nature of police work which is more than an eight-hour a day job. In Spellman v. Fiscal Court of Jefferson County, Ky. App., 574 S.W.2d 342 (1978), the Court said policemen are considered under a duty to respond as policemen 24 hours a day and the position of police officer must be the person's primary occupation. In connection with police officers' off-duty status, see OAG 80-146, copy enclosed, at pages 2-3.
In McQuillin Mun.Corp. (3rd Ed.), Vol. 16, § 45.15, the following appears:
"One of the fundamental duties of the police department, from the chief of police to patrolmen, is to be on the lookout for infractions of the law, and to use diligence in discovering and reporting them. . . . Other fundamental duties, of course, are to arrest perpetrators and to lodge proper complaints. Furthermore, it is the duty of every police officer to protect a citizen from an unjustified and unprovoked assault even by a fellow officer. A police officer on 'off duty' status is nevertheless not relieved of his obligation as an officer to protect the lives and property of the citizens of the public in general."
In Green v. United States, 386 F.2d 953 (10th Cir. 1967), the Court said it is the duty of all law enforcement officers to investigate, detect and secure evidence of crime. It is the duty of the arresting officer to give testimony in the trial of the case and to aid the prosecution in other ways, State v. Stanley, 19 N.C. App., 684, 200 S.E.2d 223 (1973).
Conclusion
While municipal police officers have the statutory right to seek and obtain outside employment during their off-duty hours, such employment cannot be permitted to create a conflict with their official duties as police officers. Whether a particular outside interest is sufficient to create a conflict is a factual question depending upon the circumstances of the particular case.