Request By:
Honorable Rocco J. Celebrezze
Attorney at Law
1803 Louisville Trust Building
One Riverfront Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 6 in which you, as City Attorney for the city of Wildwood [a city of the sixth class], seek an opinion with respect to the following:
"The Board desires to appoint, as City Marshal for the City of Wildwood, a person who is presently head of security for Jefferson Community College, a State Agent in Louisville, Kentucky. KRS 61.300 provides that one shall not serve as non-elected peace officer, if he has (§ d) within a period of two years . . . received any compensation from any private source for acting as a . . . policeman, guard, peace officer or otherwise . . . The prospective appointee, is presently employed as a peace officer, however, as stated above, for the Commonwealth."
In response to your question, we believe that the city can legally appoint the individual in question to the office of city marshal for two reasons. First, we agree that his present employment as head of security for the Jefferson Community College, a state agency, would remove him from the disqualification section under KRS 61.300(d) since his compensation for his police work would be derived from the state and not from any private source. Secondly, and aside from this, we have previously held that subsection (d) of KRS 61.300 has been repealed by implication in view of a 1968 amendment to KRS 61.310 (4) as explained in OAG 72-232, a copy of which we are attaching. It is true that this latter statute has been subsequently amended in 1974 and 1976, however, the '74 amendment was purely for technical corrections in the wording of the statute, and the '76 amendment was purely for the purpose of deleting a phrase in subsection (1) (c), neither of which has any affect on the original terms of subsection (1) (d). We also might call your attention to KRS 95.015, not mentioned in OAG 72-232, which is known as the "Moonlighting Statute" and is very similar to the '68 amendment to KRS 61.310(4). This statute was also amended in '74 to include urban county governments.
Under the circumstances, we are of the opinion that the Board of Trustees of the city of wildwood can legally appoint the Board of Trustees of the city of wildwood can legally appoint as city marshal the person who has been serving as head of security of Jefferson Community College.