Request By:
Mr. G. Henry Ott
6408 Six Mile Lane
#179
Louisville, Kentucky 40218
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of January 27 in which you relate that you are currently employed as a Sergeant on the Louisville Division of the Fire Arson Squad for the city of Louisville and as part of this job you have taken the oath as a sworn police officer. It further appears that you are under the jurisdiction of the Louisville Civil Service Board which apparently operates under Chapter 90 KRS, and particularly KRS 90.220. We thus presume from your letter that you are a covered employee under the referred to Civil Service Act and more specifically KRS 90.220 which prohibits persons in a classified service from engaging in political activities.
YYou raise the question as to whether or not in view of the terms of the referred to statute you can become a candidate for public office without being in violation of same.
Our response to your question would be in the negative as KRS 90.220 has been interpreted by the courts as precluding a covered employee from becoming a candidate under the prohibited political activities provision which is subsection (2) of said statute.
However, further clarification of this conclusion is deemed necessary. In 1975 the case of Louisville Lodge #6 Fraternal Order of Police v. Burton, 518 S.W.2d 777, Ky. App., 421 U.S. 1016, 95 S.C. 2424, 44 L. Ed. 2d 684 (1975) declared that KRS 90.220(2) prohibiting political activity on the part of civil service employees included their candidacy for public office. In OAG 75-246, copy attached, the Burton case was cited in reaching the conclusion that civil service employees under the referred to statute could not become candidates for public office. There was also a later case reiterating the holding in the Burton case styled City of Louisville v. FitzGerald, Ky., 600 S.W.2d 456 (1978). However, in OAG 81-339, copy attached, this Office took the position that by virtue of the enactment of KRS 95.017 in 1978 that the political activity restriction including candidacy impliedly repealed KRS 90.220(2) with respect to police officers and firemen since the latter statute, although amended later at the 1978 session, did not amend subsection (2). However, a recent 1984 opinion issued by the Court of Appeals styled Bogard v. Commonwealth (not yet reported), cited in OAG 85-2, copy attached, declared that the later amendment to KRS 95.440(2) dealing with residency requirements and other qualifications prevailed over KRS 15.335 even though the language actually amended did not specifically relate to the subject. Thus the basis for the holding in this decision would nullify our position taken in OAG 81-339 since KRS 90.220 was amended subsequent to the enactment of KRS 95.017.
As a consequence, the decision in Burton, supra, cited in OAG 75-246 continues to prevail and as a consequence we must conclude that you are prohibited under the terms of KRS 90.220 (2) from becoming a candidate for any public office. OAG 81-339 is, therefore, withdrawn.
We note that you refer to OAG 81-230. However, this opinion dealt basically with the provisions of KRS 95.470 which by virtue of a 1978 amendment authorizes police and firemen in cities of the third and fourth classes to engage in political activities during off-duty hours. Thus this opinion is not applicable to your factual situation.