Puckett v. Miller

STEPHENS, Chief Justice,

concurring in part, dissenting in part.

I concur with the majority opinion in finding arbitrary and thus invalid the first provision of General Order 73-15/E, requiring officers to obtain prior written approval from the Chief of Police before obtaining off-duty employment. But I am in disagreement with the majority concerning the seventh provision requirement of indemnification and insurance. Because this provision unreasonably interferes with an officer’s statutory right to obtain outside employment as provided under KRS 61.-310(4) and KRS 95.015, it should also be severed from the ordinance, as the majority directed concerning the prior approval requirement. KRS 446; Commonwealth v. Beasy, 386 S.W.2d 444 (1965); City of Owensboro v. Board of Trustees, 301 Ky. 113, 190 S.W.2d 1005, 1008 (1945). KRS 61.310(4) and KRS 95.015 permit officers to seek and obtain outside employment during their off-duty hours without restrictions or limitations being imposed by local governmental units so long as it does not interfere with the performance of their official duties. It is unreasonably burdensome to require officers to provide a certificate of insurance establishing that the officer or his off-duty employer has workers’ compensation insurance, general liability insurance, and will agree to indemnify the Urban County Government against all losses arising out of their off-duty employment (up to limits of the policy insurance required by the Division of Police.) The city has no liability for injuries incurred outside employment and has no right to indemnity from the officer except where law would otherwise require it.

The General Assembly has granted local police officers the right to obtain off-duty employment within reasonable parameters through KRS 61.310(4) and KRS 95.015. Because the seventh provision unduly inhibits officers from pursuing statutorily protected off-duty employment, it should be severed from the ordinance. KRS 446.090, Beasy, supra; City of Owensboro, supra.

Therefore, while I concur with the majority’s opinion mandating severance of the first ordinance provision, I also find the necessity to expunge the requirement of indemnification and insurance.

I thus concur in part and dissent in part with the majority opinion upholding the validity of General Order 73.15/E.

LEIBSON, J., concurs in this opinion.