OAG 79-359 | KOGC

Request By:

Mr. L. J. Slusher
Chief of Police
Mt. Sterling Police Department
36 Broadway
Mt. Sterling, Kentucky 40353

Opinion

Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General

This is in reply to your letter raising two questions concerning policemen and firemen in cities of the fourth and fifth class. Your first question deals with KRS 95.710 pertaining to the qualifications of members of the police and fire departments. You ask whether reinstatement of one's personal rights negates the "felony conviction" prohibition of the statute.

KRS 95.710, in setting forth the qualifications of members of the police and fire departments, states in part that, "No person who has been convicted of a felony is eligible for appointment. " Section 150 of the Kentucky Constitution provides in part as follows:

". . . All persons shall be excluded from office who have been, or shall hereafter be, convicted of a felony, or of such high misdemeanor as may be prescribed by law, but such disability may be removed by pardon of the governor . . . ."

Thus, as we said in OAG 72-602, copy enclosed, the disqualification referred to in KRS 95.710 would be removed if the person convicted of a felony has had his civil rights restored by the Governor under Section 150 of the Kentucky Constitution. If the person who had been convicted of a felony has had his right to hold office restored by the Governor under Section 150 of the Kentucky Constitution, that person then possesses such rights as though no conviction had ever occurred. See

Arnett v. Stumbo, 287 Ky. 433, 153 S.W.2d 889 (1941).

Your second question is as follows:

"Secondly, if a person is employed as a fireman, after stating on his application that he has been convicted of a felony, can he be dismissed after the employing body becomes aware of the statute barring the employment of a convicted felon?"

Among the statutory qualifications of police officers and firemen is the requirement that they not have been convicted of a felony. A person employed as a fireman who has been convicted of a felony and has not had his right to hold office restored by the Governor under Section 150 of the Kentucky Constitution does not possess all of the required statutory qualifications.

Meglemery v. Weissinger, 140 Ky. 353, 131 S.W. 40 (1910), the Court concluded that where the appointment of an officer was void for disqualification, it could not be validated either by ratification or recognition, but could only be cured by a new valid appointment. At page 41 of its opinion the Court said in part:

". . . A void appointment cannot be validated by either recognition or ratification. Mechem on Public Officers, § 531. There must be a new appointment. It may be conceded that, so far as the rights of the public are concerned, Meglemery would be treated as an officer de facto, and that his acts as such would be binding. . . ."

Thus, where the person who was appointed as a fireman did not possess the statutory qualifications required of the position, the appointment was void and the appointing body can remove that person and appoint a qualified person to fill the position.

LLM Summary

In OAG 79-359, the Attorney General addresses questions regarding the eligibility of individuals with felony convictions for positions in the police and fire departments in cities of the fourth and fifth class. The opinion clarifies that a felony conviction disqualifies an individual from such positions unless their civil rights have been restored by the Governor, as previously stated in OAG 72-602. The decision also discusses the implications of employing someone who does not meet the statutory qualifications, emphasizing that such an appointment is void and cannot be validated by recognition or ratification.

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