Request By:
Daniel R. Braun, Esq.
Newport City Attorney
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Statute construed: KRS 95.470(4), KRS 95.017
Opinion of the Attorney General
In his capacity as city attorney, Daniel R. Braun has inquired whether members of the Newport Fire Department may, consistently with KRS 95.470(4), conduct certain activities during their union meetings held in city facilities while they are in uniform and on duty. He has indicated that during these union meetings, "on occasion, they personally interview and then vote to endorse candidates for City Commission races."
KRS 95.470(4) applies to members of the police and fire departments of cities of the second or third class, and states: "No member of either department shall be active in politics or work for the election of candidates while on duty." Since the firefighters are on duty at the time, the question is whether interviewing or voting to endorse candidates amounts to "be[ing] active in politics" or "work[ing] for the election of candidates. "
Any interpretation of the negative provisions of KRS 95.470(4) must be made in light of the positive provisions of KRS 95.017, which enumerates political activities in which local police and firefighters may engage while off duty:
Uniformed employees 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) Wear 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.
The qualifier in KRS 95.017, "while off duty and out of uniform," indicates that these political activities could be considered inappropriate for members of a police or fire department to perform while on duty or in uniform.
In OAG 81-230, we construed KRS 95.470(4) in harmony with KRS 95.017, so as to make KRS 95.017 "extend to all forms of political activity ? to the effect that "what [police and fire employees] cannot do 'on duty,' they may do off duty." Thus, the activities listed in KRS 95.017 are properly seen as specific examples of "be[ing] active in politics" or "work[ing] for the election of candidates. "
Comparing the examples in KRS 95.017 with the activities occasionally engaged in by members of the Newport Fire Department, we conclude that making an endorsement of candidates is as political as wearing a button or contributing money to a candidate's campaign, in terms of "be[ing] active in politics" or "work[ing] for the election of candidates. " Therefore, voting to make such endorsements while on duty and in uniform would be incompatible with KRS 95.470(4).
In OAG 02-2, this office was asked whether a city could constitutionally restrict its employees "during their working hours from discussing their job functions with political candidates. " We advised that this "minimal" restriction on free speech was outweighed by "legitimate and significant interests" including the "desire to operate city government on an apolitical basis." Although the question presented here does not address any constitutional implications of KRS 95.470(4), it is noteworthy in that opinion that we considered it potentially politicizing for city employees to discuss their job duties with candidates during work hours. We therefore consider it a fair construction of KRS 95.470(4) that interviewing political candidates for City Commission while on duty, with a view to making an endorsement, constitutes "be[ing] active in politics."
It is worth noting that the Supreme Court of Kentucky in 1992 declared unconstitutionally overbroad, in part, some language in KRS 161.164(1) prohibiting local school district employees from taking part in the "management or activities of any political campaign for school board." Specifically, the Court held that the word "activities" was "vague, ambiguous and far too general" because it might chill non-prohibited expressions of personal opinion such as bumper stickers or yard signs. State Board for Elementary and Secondary Education v. Howard, 834 S.W.2d 657, 662 (Ky. 1992).
We find this case distinguishable, however, because KRS 95.470(4) expressly limits the prohibition on political activity to time "on duty." It is clear that units of local government have considerable leeway under the First Amendment to restrict the political speech activities of their employees in a content-neutral manner. Cron v. Chandler, 25 F.3d 1047 (unpublished disposition), 1994 WL 256704 (6th Cir. 1994). "Even when off duty and out of uniform, public employees may be restricted in their public political activity in the interests of an efficient government free from hints of corruption, influence, and connection." Id. at *4 (citing United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 565-66 (1973)) (emphasis and internal quotation omitted); see also Horstkoetter v. Dept. of Public Safety, 159 F.3d 1265 (10th Cir. 1998) (policy prohibiting highway patrol troopers from displaying political yard signs was facially constitutional). But the authority to regulate employees' political activities is especially comprehensive in the workplace.
"The government 'may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large.'" Breyley v. City of North Royalton, Ohio , No. 1:04CV1956 (N.D. Ohio, September 14, 2005) (unpublished disposition), 2005 WL 2233231, *4 (emphasis added) (quoting United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 465 (1995)). Thus, a county could rightfully prohibit its employees from placing "political insignia" on their private vehicles if parked on county property. International Brotherhood of Electrical Workers, AFL-CIO, Local # 1 v. St. Louis County, 117 F.Supp.2d 922, 925 (E.D. Mo. 2000); accord, Breyley, supra . With its inherent limitation to activities performed on duty, KRS 95.470(4) would certainly be constitutional as construed herein.
This opinion is solely addressed to the situation where firefighters conduct the described activities while on duty. Furthermore, it is limited to a construction of KRS Chapter 95 and is not meant to derogate from any specific rights firefighters might possess under any other statute, under valid ordinances, or by lawful agreement.