Request By:
Mr. Randall B. Herron
Executive Director
Lake Cumberland Emergency
Medical Services System, Inc.
221 East First Street
P.O. Box 280
Campbellsville, Kentucky 42718
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning a possible restriction to be imposed upon employes of the Lake Cumberland Emergency Medical Services System, Inc. which is a non-profit corporation providing emergency medical services to nine counties of the Lake Cumberland Area. The corporation operates on funds provided by local governments, the state government and the federal government.
Several employes of the corporation would like to become candidates for public office. The corporation's board of directors feels that conflicts of interest might exist if some of its employes were elected to public office, particularly the offices of magistrate, sheriff and coroner. You specifically refer to the office of coroner and are concerned that a coroner could be required to investigate a death case with which he had been involved as an employe of the EMS system.
Your question is whether the EMS system may require its employes to take a leave of absence during the time that they would be seeking the offices of or serving as magistrates, coroners or sheriffs in the counties which they serve as employes of the EMS system.
In Allen v. Board of Education of Jefferson County, Ky. App., 584 S.W.2d 408 (1979), the Court of Appeals considered a situation where the school board adopted a provision which required a mandatory leave of absence for all employes of the board who became candidates for public office. Two school teachers who were candidates for public office did not apply for leave and were involuntarily suspended by the school board.
The Court of Appeals said that while the school board may set reasonable standards for teacher activity the board's provision in question was inappropriate.
". . . The appellants, by running for the legislature, were exercising their rights of free speech and association. These rights are protected by the First Amendment to the United States Constitution and may not be abridged without proof of compelling state interest. 'Political belief and association constitute the core of those activities protected by the First Amendment. ' . . ."
The court further stated that the board's policy violated both the First and Fourteenth Amendments of the United States Constitution. There was no showing nor was there a single allegation that their political activity would affect their work as teachers. To be valid the board's provision should have included some individual determination that a teacher's participation in the political process would adversely affect him in the performance of his teaching duties. In order for any classification to be justified it must be rationally related to the interests which are sought to be protected. "There is no showing that seeking political office is an activity which hinders teachers in the performance of their duties.
The Allen case involved the attempted regulation of public employes by a public entity. In 16A Am.Jur.2d, Constitutional Law, § 723 the following appears:
"The United States Supreme Court has stated the inclusive principle that all the powers possessed by a state must be exercised consistently with the privileges and immunities granted or protected by the Constitution of the United States. The Fourteenth Amendment prohibits any act by a state which abridges the privileges and immunities of citizens of the United States, whether such act is by the legislative, executive, or judicial authorities of the state. The prohibitions of the amendment extend to every department of the state and every officer or agent by whom the powers of the state are exerted . . ."
"The general rule is firmly settled by authoritative decisions that the constitutional guaranties against the impairment of privileges or immunities operate only to inhibit impairment of such privileges and immunities by action of the states themselves. The prohibitions of the Fourteenth Amendment and of Article IV, § 2, have reference to state action exclusively, and not to any action of private individuals. Hence, these clauses in no wise affect the conduct of individual persons. . . . ."
From the information you have furnished it appears that the EMS system is not a state, regional or county governmental entity but, rather, a private non-profit corporation supported by governmental contributions in return for which the system supplies emergency medical services to various county governmental units. The principles set forth in the Allen case, supra, are not controlling and there are no state statutes or regulations affecting the right of an employe of a private non-profit corporation to run for the county offices of magistrate, sheriff or coroner. The EMS system, like any other private employer, may prescribe standards, responsibilities and requirements to be met by its employes. If there is an allegation that an employe's rights are being impaired by his non-governmental employer that is a private matter to be resolved between those parties and not by this office.