Request By:
Mr. Bob McReynolds, III
Secretary
Lewisburg Rural Fire Department, Inc.
Lewisburg, Kentucky 42256
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising two questions, the first of which concerns the use of flashing or oscillating red lights and sirens. You refer to KRS 189.950 authorizing members of a fire department to use such red lights and sirens on their private vehicles when authorized to do so in writing by the chief of the fire department. You ask whether members of the fire department need to have the written permission of each subsequent chief or if they can continue to operate with the lights and sirens, relying upon the written authority of the person who was chief when permission was first granted.
KRS 189.950(4) states as follows:
"Any person who is a regular or voluntary member of any fire department furnishing fire protection for a political subdivision of the state or any person who is a regular or voluntary member of a rescue squad may equip his vehicle with red flashing, rotating, or oscillating lights and a siren, bell or exhaust whistle if he has first been given permission, in writing, to do so by the chief of the fire department or rescue squad. He may use such lights and equipment only while proceeding to the scene of a fire or other emergency in the performance of his official duties as a member of a fire department or rescue squad. "
The term "permission" as discussed in 70 C.J.S. Permission (p. 564) implies consent but gives no right. It imports power or authority of refusal and is something which may be granted or withheld, affecting the conduct of another. It implies control existing somewhere and, therefore, a right existing solely through permission must rest on the consent of the control. "The word has a negative, rather than an affirmative, implication; that is, a permitted act may be one not specifically prohibited as contrasted with an act affirmatively and specifically authorized."
Under KRS 189.950(4) the chief of the fire department has within his discretion the authority to permit members of the fire department to equip their personal vehicles with flashing red lights and sirens. Such a determination, if made, must be made by the chief of the fire department while he is acting as the authorized fire chief. After he ceases to function as the chief he cannot make decisions affecting members of the fire department. Such discretionary determinations are then within the authority of his successor as fire chief.
Thus, where a fire chief has exercised his discretionary authority pursuant to KRS 189.950(4) and permitted, in writing, members of his fire department to equip their personal vehicles with flashing red lights and sirens for use while proceeding to the scene of a fire or other emergency, that permission to so act terminates when he ceases to be fire chief. Permission must be obtained in writing from the successor as fire chief if the members of the fire department are to continue to use flashing red lights and sirens on their private vehicles.
Your second question involves KRS 432.570 (possession or use of a radio capable of sending or receiving police messages) . You ask whether a volunteer fireman may install such a radio in his private vehicle for use in the performance of his official duties if he has been authorized to do so in writing by the chief of his department.
KRS 432.570(1) provides in part as follows:
"It shall be unlawful for any person except a member of a police department or police force or an official with written authorization from the head of a department which regularly maintains a police radio system authorized or licensed by the federal communications system, to have in his or her possession, or in an automobile or other vehicle, or to equip or install in or on any automobile or other vehicle, any mobile radio set or apparatus capable of either receiving or transmitting radio or other messages or signals within the wave length or channel now or which may hereafter be allocated by the federal communications system, or its successor, for the purpose of police radios, or which may in any way intercept or interfere with the transmission of radio messages by any police or other peace officers and it shall be unlawful for any car, automobile or other vehicle other than one publicly owned and entitled to an official license plate issued by the state issuing a license for said car, to have, or be equipped with such sets or apparatus even though said car is owned by an officer. . . ."
There is an exemption in the statute for the vehicles owned or operated by members of a sheriff's department authorized by the fiscal court to operate a radio system licensed by the federal communications system. In addition, KRS 432.570(4) states that possession of such radios is not prohibited by a person who is a retailer or wholesaler and in the regular course of business offers such radios for sale; a radio or television station, licensed by the federal government, at its place of business; a person who possesses such a radio, provided it can only receive transmissions and is at his place of residence; licensed commercial auto towing trucks; newspaper reporters and photographers; peace officers authorized in writing by the head of their law enforcement agencies; commonwealth's attorneys and county attorneys and their assistants.
As KRS 432.570 clearly indicates, the possession or use of a radio capable of receiving or transmitting police messages is rather restricted. After examining the statutory provisions and considering the factual material you have presented, we find no authority for the chief of the fire department to permit firemen within his department and under his command to install radios in their private vehicles for use in the performance of their official duties if those radios are capable of receiving or transmitting police messages. Only those persons and organizations who can bring themselves within the exemptions and exceptions set forth in KRS 432.570 are permitted to use or possess such radios.