dissenting.
I respectfully dissent from the majority opinion because the general order in question violates the police officers’ right to due process and equal protection under the law. I believe both orders as now promulgated are unconstitutional and unenforceable.
K.R.S. 95.015 and K.R.S. 61.310(4) relate to the rights and duties of police and firefighters. The majority opinion reaches the conclusion that if it is the will of the General Assembly that state law deprive local governments of the right to establish reasonable police regulations, that statutes at bar should be written in unmistakable terms. The statutes in question, however, are written in unmistakable terms. KRS 95.015 specifically guarantees police officers a right to engage in “any endeavor enjoyed by all other citizens of the city in which they reside.” K.R.S. 61.310(4) expressly authorizes police officers to "act in private employment as guard or watchman or in any other similar or private employment.”
As to the requirement of indemnification and insurance, the majority opinion concludes that local government has a perfectly legitimate interest in avoiding costs which might arise out of a police officer’s off-duty employment so long as the regulation is rational and in furtherance of this objective. The fallacy of the majority reasoning is that an off-duty officer, whether working part time for an employer or simply being off duty, is bound to invoke his police authority if a misdemeanor or felony is committed in the officer’s presence. Thus the fact that an officer is employed at the time the misdemeanor or felony is committed is of no consequence for in either case the police authority is invoked if the officer is working as an officer of the Lexington-Fayette Urban County Government.
The majority relies on Hopwood v. City of Paducah, Ky., 424 S.W.2d 134 (1968). K.R.S. 61.310(4) was passed by the General Assembly in response to Hopwood, supra. It is the clear legislative intent to statutorily overrule the decision of this Court in Hopwood. Little, if anything; is gained from trying to readopt the Hopwood rationale at this time.
As the author of the majority opinion in Commonwealth v. Do, Inc., Ky., 674 S.W.2d 519 (1984), I believe the majority in this case has misapplied the Do, supra, holding. Although that case did discuss the doctrine of preemption, the decision turned on the question of concurrent authority of state and local government. Do states in part that the true test of concurrent authority is the absence of conflict. In this case, one aspect of the guidelines *798prohibited an off-duty officer from working as a bouncer or security guard in establishments which serve alcohol as their primary business. However, K.R.S. 61.310(4) specifically provides that an off-duty officer may have private employment as a guard or watchman or in any other similar or private employment. Consequently, the local general order conflicts with K.R.S. 61.-310(4). In case of conflict, the state law is paramount and here it would appear that the state law occupies the field.
There can be no dispute that the regulations in question were enacted for a laudatory purpose and the best of intentions. No one, including the appellants, disputes that the police department has a need to maintain discipline and decorum. The point is that there are ample standards by which officers are judged and disciplined which apply across the board to accomplish this goal. There is no need on the part of the urban county government to deprive its officers of the statutory and constitutional rights premised on the possibility that a problem could develop in a given context. When a specific police officer conducts himself in an improper manner, whether on or off duty, the urban county governmental authorities may invoke the disciplinary process as it does in all other areas of its mission.
I believe this Court has misconceived the fact that the restrictions in question are exceptions to a general grant of a right. In such a situation, the General Assembly has fully addressed and defined the rights of the parties and the specific local legislation attempts to encroach on what the statute grants. As such the local regulations are void.
I would reverse the decision of the Court of Appeals in all respects.