Request By:
Mr. Robert E. Taylor
City Attorney
107 S. Main Street
P.O. Box 368
Franklin, Kentucky 42134
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of March 13, in which you seek an opinion at the request of the City Council of the City of Franklin to ascertain the legality of an action heretofore taken by the council. The facts are as follows:
"At a meeting held on January 10, 1983, the City Council passed an order directing that no water or sewer employee shall work outside their job as a water/sewer employee for another. It being the intent of this order that said employees would not be competing with private plumbers or contractors."
Unless the city can show that the outside employment involving these employees' same field of endeavor during their off duty hours adversely affects their performance in their positions with the City Water and Sewer Department, we believe such a restriction against off duty employment such as you have indicated, would violate their constitutional rights of equal protection under Section 3 of our Kentucky Constitution and the First and Fourteenth Amendments of the Federal Constitution. A somewhat parallel situation developed in the case of Allen v. Board of Education of Jefferson County, Ky.App., 584 S.W.2d 408 (1979) in which the court held that a policy of the Board of Education requiring school teachers to take a leave of absence in order to become candidates for public office without an individual determination as to whether political activity on the part of said teachers would adversely affect the performance of their duties, violated the First and Fourteenth Amendments of the Constitution of the United States as well as Section 3 of the Kentucky Constitution.
We also refer you to the provisions of KRS 95.015 as an illustration of this principle as it relates to rights of police officers and fire fighters to perform without restriction whatever work they choose during their off duty hours.
Thus assuming that the sole reason for restricting the outside activity of the water and sewer employees from gainful employment in the private field of plumbing and contracting during their off duty hours, is simply to prevent them from competing with private plumbers, we believe this action on the part of the city, would be unconstitutional.