Request By:
Mr. Claude L. Nutt
Secretary-Examiner
Jefferson County
Police Merit Board
705 Fiscal Court Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion concerning the following situation:
A police officer was discharged by the Chief of Police. He appealed to the Jefferson County Police Merit Board, and that Board refused to hear his appeal because he had not alleged that his dismissal was politically, religiously or prejudicially motivated (citing
O'Bryant v. Theobald, Ky., 421 S.W.2d 571 and KRS 78.455).
The dismissed officer then brought a libel action against the police chief and others in the Jefferson Circuit Court alleging that statements made by the police chief were deliberately untrue. This case is still pending in the Jefferson Circuit Court.
At some later time, the dismissed police officer filed a formal complaint against the police chief, stating among other things, that the police chief made false statements against the dismissed officer.
You now want to know whether the dismissed officer is a "citizen" as that term is used in KRS 78.450, who has standing to bring such a complaint.
You were good enough to forward all pleadings bearing on this matter, so that we could carefully determine whether we were in a position to consider writing an opinion thereon. Usually this office refuses to render opinions on matters being or about to be litigated. However, in this case, the circuit court litigation does not touch on the question of whether a police officer (once dismissed) is a "citizen" within the meaning of KRS 78.450.
That statute provides in subsection (1) as follows:
"The board shall also have the right to remove, reduce, suspend, lay off, fine or discipline any officer or employe covered by the provisions hereof on written charges of misconduct preferred on its own initiative or the initiative of any citizen, but only after reasonable notice to the accused and after a complete public hearing at which the officer or employe accused shall have the right to be present and represented by counsel and confronted by all of the witnesses preferring the charge against him. Every such employe or officer shall be given the right within ten days after charges are initiated by the board or a private citizen and before the public hearing prescribed herein, to file written answer to the charges preferred against him." (Emphasis supplied)
We have not found any case or previous opinion of this office which has interpreted what is meant by the term "citizen" as set out therein. The aforecited case of
O'Bryant v. Theobald, supra, did not reach that question. So, we are left only with the statute itself and related statutes to guide us.
Whereas, the first part of KRS 78.450(1) speaks of "citizen", the latter part of that section uses the term "private citizen" in determining who may reply to charges by the board or private citizen.
Thus, we believe that the Kentucky General Assembly contemplated here that the charges, if not instituted by the board, may be initiated by a private citizen and not a police officer.
In this case, the police officer was dismissed and the board refused to hear his appeal. There is no information that he appealed the board's decision pursuant to KRS 78.455. Thus, he is not in the position of a discharged police officer whose dismissal is pending a court appeal. His dismissal is now final and he is no longer a police officer. His circuit court suit is not an appeal per KRS 78.455, but is a libel action against the police chief and others. If he is not a police officer, he must be a private citizen and does have standing to bring charges permitted by KRS 78.450.
However, inasmuch as the officer's libel suit seeks to adjudicate some of the same issues (such as charges of untruthfulness of the police chief) which he has brought in his citizen's complaint, the board could administratively defer hearing the complaint until the civil court action is finally adjudicated. Otherwise, the board would find itself in the position of determining facts which a circuit court is also simultaneously called upon to determine. Such a deference of consideration by the board would prevent the possibility of inconsistent adjudication of the same issues of fact.
In short, the former officer is a citizen or private citizen and can bring the charges, but because he is also making some of those same charges in the circuit court by way of a libel suit, the board can postpone the hearing until the court litigation is finished.