Request By:
Mr. Mark Dobbins
Assistant Director of Law
Department of Law
City Hall
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of September 9, in which you seek an opinion with respect to the interpretation of two conflicting statutes. These statutes are KRS 90.220 and 95.017, pertaining to political activity on the part of civil service employees. Your particular question involves uniformed employees of the police and fire departments.
Before attempting to respond to your question, we quote the following excerpt from your letter with respect to the conflicting contents of said statutes:
"KRS 90.220 lists certain political activities in which classified, or civil service, employees of cities of the first class are forbidden to participate. Such activities include contributing money to political parties and candidates, working at the polls on election day, and aiding in the registration or purgation of voters.
KRS 95.017, on the other hand, provides that '[u]niformed employees of any city or county police or fire department, while off-duty and out of uniform. . ." are entitled to engage in certain activities specifically proscribed by KRS 90.220, e.g., contributing money, working at the polls, and aiding in the registration or purgation of voters. "
Our interpretation of the two statutes in question would be that the provisions of KRS 95.017 superseded and modified any conflicting provisions found under KRS 90.220 as applied to police and firemen for the reasons hereinafter related. Chapter 128 of the 1978 Legislature was entitled "An Act relating to political activities of members of the city or county police departments." It specifically refers to the uniformed employees of any city or county. True, it was coded as KRS 95.017; however, we believe it was intended to apply to all police and fire employees, irrespective of whether or not they are under a civil service program other than that found in KRS Chapter 95. The fact that KRS 90.220 was amended at the same legislative session would not alter this conclusion as it merely changed the word "fireman" to "firefighter." The Act amending KRS 90.220 also made the same change in various sections of Chapter 95 as well as other KRS chapters. Thus, this amendment in no way related to or affected those provisions governing political activity on the part of public officers and employees. True, the amendment to KRS 90.220 was in fact enacted one day after the enactment of KRS 95.017, and normally a later statute prevails where the conflict between the two cannot be reconciled. However, this rule refers to the enactment of a later statute or amendment where it is more specific than the earlier statute, which is not the case here. See
Shannon v. Burke, 276 Ky. 773, 125 S.W.2d 238 (1939). In addition, you will note the rule that when the Legislature enacts a subsequent statute to repeal a former one, it will clearly so express itself.
Oldham County v. Arvin, 251 Ky. 317, 64 S.W.2d 907 (1933). Also, as held in
Hallahan v. Moody, Ky., 419 S.W.2d 770 (1967), re-enacted legislation does not repeal inconsistent legislation where there is a complete absence of any language to reflect legislative intent to amend or repeal the pre-existing statutory law.
Additional law on this subject is found in 73 Am.Jur.2d, § 409, from which we quote the following excerpt:
"A later law which is merely a reenactment of a former law does not repeal an intermediate act which has qualified or limited the first one, but the intermediate act will be deemed to remain in force and to qualify or modify the new act in the same manner as it did the first."
We also quote the following excerpts from Sections 415, 416 and 417:
"As a general rule, however, to the extent of any irreconcilable conflict, the special or specific provision modifies, qualifies, limits, restricts, excludes supersedes, controls, and prevails over the general or broad provision.
* * *
"The presumption that a special act is intended to remain in force as an exception to a later general act is especially applicable where both laws are enacted at the same time, or about the same time."
* * *
"Hence, a statute enacted for the primary purpose of dealing with a particular subject, prescribing terms and conditions covering the subject matter, supersedes a general statute which does not refer to that subject, although broad enough to cover it."
* * *
"Hence, it is a canon of statutory construction that a later statute general in its terms and not expressly repealing a prior special or specific statute will be considered as not intended to affect the special or specific provisions of the earlier statute, unless the intention to effect the repeal is clearly manifested or unavoidably implied by the irreconcilability of the continued operation of both."
As we mentioned in the beginning, and based upon the above-cited legal principles of statutory construction, we conclude that the provisions of KRS 95.017 granting all police and firemen the right to participate in specifically named political activities while off duty, modifies the provisions of KRS 90.220 in conflict therewith.