Request By:
Mr. Malcolm Endicott
P.O. Box 423
Midway, Kentucky 40347
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising several questions concerning police officers and the police department in Midway, a city of the fifth class. Since you state that the police department is governed by the provisions of KRS 95.700 to 95.760, we assume that the police officers are not covered by civil service provisions.
Your first question concerns the extent to which the city council must have knowledge of the hiring or firing of police officers and whether such personnel actions are to be approved by the council or whether they can be granted to an individual or a council committee.
KRS 95.700, as amended in 1972, states:
"(1) The city legislative body in cities of the fourth and fifth class may, by ordinance, establish a police department, appoint its members, and provide for their number, grades, compensation and regulation.
(2) Except in cities of the fourth class which have accepted and adopted KRS 95.761 to 95.784, the term of office of members of the police department appointed by the city legislative body shall not exceed two years. The city legislative body shall reappoint to their office, members of the police department who have not yet reached the age of retirement unless sufficient cause be shown for the failure to reappoint them. They shall be subject to removal for cause."
The statute specifically provides that the city legislative body appoints the police officers and that the city legislative body shall remove the police officers for cause. See OAG 76-522, copy enclosed, at page two. Thus, the city council, as a body, appoints and removes, for cause, the city's police officers. See also KRS 95.720 and OAG 76-80, copy enclosed, concerning the chief of police. While an individual council member or a subcommittee of the council may be appointed by the council to advise the council on matters pertaining to police personnel, such an individual or subcommittee acts in a purely advisory capacity and cannot bind the council or act for the council in an area where the statute dictates that action be taken by the city legislative body. See OAG 76-257, copy enclosed, at page one.
Your second question asks whether the police chief, an individual council member, a committee of the council, or the council as a body has the authority to appoint part-time policemen who will remain on the city payroll for an unspecified period of time.
The police officers appointed by the city council pursuant to KRS 95.700 are regular, permanent, full time and salaried officers. KRS 95.445 provides in part, however, that the legislative body of a fifth class city may, by ordinance, provide for the establishment of an auxiliary police force to perform special duties within the city on terms it deems proper. The ordinance, among other things, shall prescribe the manner of appointment, and the rules and regulations governing the powers and duties of members of such force. An auxiliary police force is designed to work with and assist the regular police force, not to replace the regular police force.
KRS 95.740(4) provides:
"The chief of police may appoint special or extra police, by and with the advice of the mayor. These special or extra police, appointed for less than a week, shall take the oath prescribed by law but shall not be required to execute bond."
The police officers appointed pursuant to KRS 95.740(4) do not constitute regular police officers as those officers are appointed by the city council pursuant to KRS 95.700. These special or extra police officers serve for a very limited time to assist or supplement the regular police force. The police chief could not appoint a special policeman for a given time and then reappoint him from time to time for the purpose of keeping him in the regular service of the city as a policeman. See
City of Maysville v. Purnell, 103 Ky. 344, 45 S.W. 101 (1898) and OAG 72-311, copy enclosed.
Your third question asks whether a policeman's employment may be legally terminated based on a policy which suggests that termination was justified since he was a temporary employe and subject to removal at any time.
A police officer appointed to his position by the city council pursuant to KRS 95.700 can only be removed from office for cause by the city council. See OAG 76-435, copy enclosed, at page two.
Your fourth question asks whether a policeman's employment may be legally terminated based on a policy which suggests that his termination was justified since he was fulfilling a probationary period of employment and subject to removal at any time.
Again, a police officer appointed to his position by the city council under KRS 95.700 can only be removed from office by the city council for cause. There is no statutory provision authorizing the creation of a probationary status for police officers in a fifth class city not operating under a civil service program. While we have some doubt as to the validity of a probationary status in the situation you have presented, for purposes of removing police officers from the force it is immaterial whether or not they are working under a probationary status. KRS 95.700 does not differentiate between police officers on probation and officers who are not.
Your fifth question refers to KRS 15.440 and the requirement that police officers successfully complete a basic training course of at least 400 hours within one year of the date of employment if the city is to be eligible to share in the distribution of funds from the law enforcement foundation program fund (LEFPF). You ask whether a policeman is classified as part time, temporary, experimental or probationary until he has completed his training under the statute and therefore subject to dismissal without cause.
KRS 15.420(2) defines a "police officer" in part as a full-time member of a lawfully organized force responsible for the prevention and detection of crime and the enforcement of the general criminal laws of the state. A police officer appointed to his position by the city council pursuant to KRS 95.700 is a full-time, permanent, regular police officer and not subject to dismissal, except for cause, whether he is on regular duty with the city police department or undergoing a training program in connection with the LEFPF.
Your last question asks:
"Is it within the intention of KRS 95.700 - 95.760 and KRS 15.440 for a classified city to regularly depend on the services of part time policemen under the conditions that these time policemen have no desire to attend the 400 hour policemen have no desire to attend the 400 hour training course, and, furthermore, the city has no intentions of enrolling them in such course."
Whether your city and its police officers participate in the LEFPF is a matter for the city council to decide. The city's participation or lack of same in the LEFPF is not going to change the legal status of the city's police officers appointed pursuant to KRS 95.700. Participation in the LEFPF is open to full-time police officers and police officers appointed pursuant to KRS 95.700 are full-time, regular, permanent police officers. There are methods whereby the city can supplement its regular police force (auxiliary police and special or extra police) but such personnel are in addition to, not in place of, the regular police force.