Request By:
Honorable Brian Reeves
Attorney at Law
205 Milliken Building
Bowling Green, Kentucky 42101
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 19 in which you raise the following questions:
"The first question is: Does KRS 95.470, interpreted in light of KRS 95.017 and other applicable statutes, prohibit a member of a police department in a second class city from becoming a candidate for a nonpartisan office. (City Commissioner) in a citywide election?
"The second question, if the answer to the above question is in the affirmative, is: Would the member of the police department be required to resign or would it be sufficient for him to take a leave of absence? "
In reponse to your initial question we are enclosing a copy of OAG 79-211 in which we interpreted the provisions of KRS 95.470 in light of KRS 95.017 with respect to a fireman in a city of the third class becoming a candidate for city council. We concluded in this opinion that we believe the '78 amendment to KRS 95.470 controls in so far as a person's candidacy is concerned but concluded that it permitted a member of the fire department to become a candidate while off duty, if it was possible to do so, though in the long run the fireman could not hold the office and retain his position in the fire department under the common law.
Subsection (4) of KRS 95.470 reads as follows:
"(4) No member of either department shall be active in politics or work for the election of candidates while on duty."
The above referred to opinion, of course, did not deal with a candidate seeking a so-called nonpartisan office, such as city commissioner, if, in fact, it involves a nonpartisan election. Assuming however that it does, it is noted that subsection (4) of KRS 95.470, above quoted, contains the phrase "or work for the election of candidates while on duty." This phrase does not distinguish between a so-called partisan and nonpartisan election as does, for example, the State Merit Act under KRS 18.310(4) and we, therefore, believe that KRS 95.470(4) would apply to a candidate in a so-called nonpartisan election for the same reasons expressed in OAG 79-211 and case cited therein, but only during off duty hours.
Though the police officer in question could become a candidate for the office in question, he could not, if elected, serve as a member of the city commission and as a police officer as these two positions are incompatible under § 165 of the Constitution and KRS 61.080. The position of policeman is, as you know, a municipal office as held in a number of cases. City of Lexington v. Rennick, 105 Ky. 779, 79 S.W. 787 (1899).
In response to your second question, we believe that it would be up to the board of commissioners [which constitutes the city legislative body under KRS 95.430] to determine whether or not a member of the police department must resign or could, as an alternative, take a leave of absence to run full time for the office in question.