Request By:
Mr. James W. Pike
Oldham County Attorney
104 North Second Street
LaGrange, Kentucky 40031
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Two questions are raised in your letter for our opinion. First, you ask whether off-duty county police officers can wear their county police uniforms while employed as private security guards. See KRS 70.540, relating to a county police force.
Assuming the county police officers are also employed off-duty as special local peace officers pursuant to KRS 61.360, it is our opinion that subsection (3) of that statute prohibits such county officers from wearing the county police uniform while serving as special local peace officers. That subsection (3) provides:
"(3) The duties of the officer shall be confined to the premises of the property to be protected, except while in pursuit of a person fleeing from the property after committing an act of violence or destruction of the property. In that case, the officer may pursue the person and make arrest anywhere within this state. He may wear such badges and insignia as will plainly indicate to the public that he is a special local peace officer, but he shall not, in any event, wear any uniform, or any part thereof, of any public police officer; nor shall he in any way impersonate a public police officer or represent himself to any person or persons as being a public police officer; nor shall he perform any of the duties of a public police officer, except those specifically herein granted and at the places herein specifically designated."
We know of no statute prohibiting a fiscal court's forbidding, by ordinance, a county policeman's engaging in off-duty security work. We assume, in your problem, that the Fiscal Court of Oldham County has not so forbidden the county police to hold off-duty security positions. 70 Am.Jur.2d, Sheriffs, Police, and Constables, § 22, page 148; and Croft v. Lambert, 228 Or. 76, 357 P.2d 513, 88 ALR 2d 1227.
It is our opinion that under KRS 61.360(3) off-duty county police officers cannot wear county police uniforms while employed (actually on duty) as private security guards. However, should the occasion arise, while he is working as a private security guard, during which the off-duty county policeman believes that he should utilize his powers of arrest as a county policeman (a peace officer) , he may do so, provided he fully informs the person arrested that he is also a county policeman as well as a private security guard. In that way no deception will be practiced. KRS 61.360(3) merely prohibits actual deception, and especially where the security guard is not a public peace officer. See OAG 75-631, copy enclosed. See KRS 446.010(24) and 431.005, relating to the general powers of arrest of a "peace officer. " The arresting powers of a special local peace officer are very limited.
Also note the legislative policy expressed in KRS 95.015, in providing that the constitutional rights and privileges pertaining to city and urban county police while off-duty must be observed. Thus municipal officers have the right under KRS 95.015 and 61.310(4) 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 of their official duties.
The second question is whether a regular full-time county policeman is a "peace officer at all times."
As we indicated above, a regular county policeman is a "peace officer" (under KRS 446.010(24) and 431.005) at all times. When he goes to bed at night, as a county policeman, while off-duty, he is still a peace officer under the statutes. He cannot change this basic status by merely taking off one hat and putting on another. The proper administration of law enforcement will not permit such diversification.
We believe the construction of KRS 70.540 and 61.360(3) is a practical one and designed to preserve the purpose of the statutes. Neutzel v. Will, 210 Ky. 453, 276 S.W. 137 (1925).