Request By:
Mr. James Clayton Miller
212 Central Avenue
Leitchfield, Kentucky 42754
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of February 28 in which you relate that you are employed by the city of Leitchfield as a dispatcher in the Leitchfield Police Department. At the same time you have filed for election to membership on the city council, and the question is raised as to whether or not you can, if elected, continue to serve as dispatcher with the police department.
To begin with, we might point out that under fourth class city law members of the police department, whether they are under civil service or not, may become a candidate for public office during their off duty hours as pointed out in OAG 80-536 and a letter to Ray F. Castle, dated November 24, 1980.
Next concerning the question of a possible incompatibility between the two positions, a person may, generally speaking, hold a municipal office and employment with the city at the same time without violating the provisions of KRS 61.080 and § 165 of the Constitution.
Where, however, a councilman and municipal employment are involved it is possible that a conflict of interest would exist under the terms of KRS 61.270 which provides, in effect, that no member of the city council shall become directly or indirectly interested in any contract with the city. We find no specific cases involving employment under the circumstances mentioned and it is possible that the legislature may not have intended to include employment contracts within the terms of the statutes. This would be a question for the courts to determine.
Next, the question of a common law conflict could arise where the office is superior to and controls the position of employment. This would induce a presumption that the two positions cannot be executed with impartiality and honesty and would, as a consequence, be against public policy. See
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917). Prior to the enactment of Senate Bill 26 of the 1980 legislative session, the city council controlled the appointment and removal of municipal employes generally and, more specifically, officers and employes of the police department under Ch. 95 KRS. However, under the terms of Senate Bill 26, particularly KRS 83A.080 and 83A.130 (9), the mayor has the authority to hire all city employes whose positions have been established by ordinance and fill them at his pleasure, unless the city legislative body requires, by ordinance, a hearing prior to the removal of city employes. We might add that officers are appointed by the mayor with the approval of the city council, however, they too can be removed by the mayor at will. Your position as "dispatcher" is apparently a form of employment since apparently you do not have the status of a police officer.
This office has taken the position in prior opinions before the enactment of Senate Bill 26 and when the city council controlled the hiring and firing of employes, that there would exist a common law conflict under the theory expressed in the case of
Hermann v. Lampe, supra.
However, since such authority no longer exists in the council, particularly with respect to city employes, we seriously doubt that a common law conflict would exist with respect to your factual situation. Again, however, this question would be one for the courts to determine in interpreting Senate Bill 26.