Could a Kentucky county police officer join a campaign, manage it, or run for office?

Plain-English summary

In 1994, Kentucky's Attorney General drew three lines for county police officers' political activity. An off-duty, out-of-uniform officer could join a candidate's campaign organization because the AG read it as a "political group" under KRS 95.017. Membership was different from serving as manager, secretary, or treasurer of a campaign that solicited, received, or publicized contributions. The AG said a county police officer covered by the merit-system statute would violate KRS 78.435(1) in those roles under the circumstances it described.

The AG also concluded that a county police merit board could adopt a rule requiring a covered officer to resign before running for political office. It located that authority in the board's power to regulate employee qualifications and removal, and said such a rule should expressly state the government's interest behind it.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Off-duty police officers and campaign membership

The AG interpreted "political groups" in KRS 95.017 by its ordinary meaning: an organization of people for a political purpose. That included a candidate's campaign organization. The quoted statutory permission applied to uniformed city or county police and fire employees while they were off duty and out of uniform.

Campaign managers, secretaries, and treasurers

The AG read KRS 78.435(1) as barring an officer or employee covered by the county police merit-system provisions from being involved in soliciting, receiving, or publicizing campaign contributions. If a covered person held one of those campaign offices and the campaign handled contributions, the AG said that person would at least be "concerned" in the prohibited activity and would violate the statute.

County police merit boards

The AG said KRS 78.440(1) gave a county police merit board authority over qualifications and removal. It viewed a resignation-before-candidacy rule for covered officers as within that authority. The opinion also said the rule should include a specific finding of the government's interest, suggesting concern about an officer's impartial judgment and public confidence in the department.

Common questions

Could an off-duty county officer join a candidate's campaign group?

The AG said yes, if the officer was out of uniform. It treated the campaign organization as a political group under the statute quoted in the opinion.

Could a covered officer manage a campaign that handled contributions?

The AG said no for the described campaign. It concluded that serving as manager, secretary, or treasurer would involve the officer in contribution activity barred by KRS 78.435(1).

Could a county police merit board require resignation before an officer ran for office?

The AG said yes under the board's authority over employee qualifications and removal. It said the rule should expressly state the government's interest in the restriction.

Background and statutory framework

The Oldham County Attorney asked the AG to clarify OAG 93-27 on campaign membership, campaign leadership, and police candidacy rules. The AG used KRS 95.017 for off-duty political-group membership, KRS 78.435(1) for contribution-related limits on covered employees, and KRS 78.440(1) for the county police merit board's rulemaking authority. Its third answer concerned a board-created rule, rather than an automatic resignation requirement imposed by the opinion itself.

Citations and references

• KRS 95.017: off-duty, out-of-uniform political-group membership.
• KRS 446.080(4): ordinary meaning of statutory language, used to interpret "political groups."
• KRS 78.435(1): contribution-related restriction on covered county police employees.
• KRS 78.405 and KRS 78.440(1): county police merit board and its rulemaking authority.
• Allen v. Board of Education of Jefferson County, Ky.App., 584 S.W.2d 408 (1979): cited for the suggested governmental-interest finding.
• OAG 93-27: the earlier opinion the requester asked the AG to clarify.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG94-033.htm

Original opinion text

OAG 94-33

May 17, 1994

Hon. John R. Fendley

Oldham County Attorney

P. O. Box 407

La Grange, Kentucky 40031

Re: County Police Merit System

Dear Mr. Fendley:

First, my apologies for the lengthy delay in responding to your request.

By letter of April 27, 1993, you asked that this office clarify Opinion of the Attorney General (OAG) 93-27, by responding to the following questions:

(1) Would a campaign organization for an individual be considered a political group under KRS 95.017?

(2) Would being a campaign manager, secretary, or treasurer of a candidate's campaign committee be considered a violation of subsection (1) of KRS 78.435 which prohibits directly or indirectly receiving contributions for a candidate for a political office?

(3) Could the merit board legally adopt regulations that require a county police officer to resign before he could run for political office?

As to your first question, KRS 95.017 provides:

Uniformed employes of any city or county police or fire department, while off duty and out of uniform, shall be entitled to:

(f) Become members of political groups.

Although a restrictive definition of the phrase "political groups" could be applied, we believe the better view, reading KRS 95.017 as a whole, is to define the phrase in accordance with common and approved usage of language, in keeping with KRS 446.080(4). In our view the phrase "political group," as used in KRS 95.017, applying common and approved usage to the phrase, means any organization of persons for a political purpose. Such an organization obviously would include a candidate's campaign organization.

Regarding your second question (above), KRS 78.435(1) provides that:

No officer or employe covered by the provisions of KRS 78.400 to 78.460 shall directly or indirectly solicit or receive or be in any manner whatever concerned in receiving, soliciting or publicizing any assessment, gift, subscription or contribution to or for any political party or candidate for public office.

In our view, if an "officer or employee covered by the provisions of KRS 78.400 to 78.460" is the manager, secretary, or treasurer of a candidate's campaign committee, and such person's campaign "received, solicited or publicized any assessment, gift, subscription or contribution to or for any political party or candidate for public office," such officer or employee would at least be "concerned" (as by having an interest) in a matter in which being concerned is banned by KRS 78.435(1). One covered by KRS 78.400 to 78.460, in the circumstance described, we believe, would be in violation of KRS 78.435(1), in serving as the manager, secretary, or treasurer of a candidate's campaign for public office.

Your third question asks, in substance, whether a county police merit system board, created pursuant to KRS 78.405, may legally adopt regulations that require a county police officer to resign before he could run for office. In our view the answer is yes.

KRS 78.440(1) provides, in part pertinent to your question:

Every county police force merit system board created hereunder shall make, promulgate, and when necessary, amend rules for the qualifications, original appointment, promotion, demotion, transfer, layoff, reinstatement, suspension, fine and removal of the officers and employees covered by KRS 78.400 to 78.460. . . .

We believe a regulation requiring a county police officer covered by KRS 78.400 to 78.460 to resign before running for public office is within the scope of regulatory authority of a county police merit system board created pursuant to KRS 78.405, as provided by KRS 78.440(1) (above). Such a condition could be imposed under the board's authority to make regulations concerning "qualifications" or under the authority to make regulations concerning "removal."

A regulation requiring a covered officer to resign before running for political office, we believe, should contain a specific finding expressly setting forth the government's interest in imposing such condition. Such finding might state, for example, that in imposing such condition, the board finds that the candidacy of a police officer for political office might adversely affect the right of the government and the public to a police officer's judgment not colored by the effect of his actions on his political support, and that the candidacy of a police officer for political office might undermine public confidence in the police department by creating the impression that its actions, or the actions of its officers, are guided by political considerations. See Allen v. Board of Education of Jefferson County, Ky.App., 584 S.W.2d 408 (1979).

As to the validity of a governmental ban on a public employee being a candidate for political office, see 51 ALR4th �3, "Legitimate government interest," and cases therein cited.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General