Request By:
Mr. James R. Pursifull
Chief, Middlesboro Police Department
P.O. Box 601
Middlesboro, Kentucky 40965
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising numerous questions concerning the city's police officers and their pension plan. You also present several questions pertaining to civil service and police officers. You state that Middlesboro is a city of the third class operating under the "Alternative Police and Fireman's Pension Fund in Third Class Cities." (KRS 95.621 to 95.629).
Your first series of questions ask:
"Is there a statutory limit on the probationary period that police officers must serve before being placed under Civil Service by cities of the 3rd Class; does the placing of the police officers under Civil Service by the Common Council of cities of the 3rd Class automatically entitle the officer for benefits under the Alternate Pension Plan; or, does the Pension Board make the determination as to whom they will accept."
Your questions, actually, are dealing with two separate statutory sections. KRS 95.621 to 95.629 deal with the police pension system while KRS 95.430 to 95.510 pertain to the police department in a city of the third class. The last mentioned provisions do not specifically set up a civil service system for police officers in a third class city nor do they authorize the inclusion of police officers under a civil service system established pursuant to KRS Chapter 90. They do, however, provide a type of mini civil service plan in that, for example, they establish specific provisions protecting police officers from arbitrary dismissal. Under KRS 95.450(1) a police officer in a third class city shall not be reprimanded, dismissed, suspended or reduced in grade or pay for any reason except inefficiency, misconduct, insubordination or violation of law or of the rules adopted by the legislative body, and only after charges are preferred and a hearing conducted.
In City of Middlesboro v. Harrell, Ky., 268 S.W.2d 430 (1954), the Court concluded that a city civil service commission established pursuant to KRS Chapter 90 does not have jurisdiction over police officers in a police department operating under KRS 95.430 et seq. In City of Middlesborough v. Grubbs, Ky., 363 S.W.2d 95 (1962), the Court said that a merit system established for the police department by a city ordinance, to be valid, must not conflict with KRS 95.430 et seq. and it must work in conformity with those statutes.
There is no statutory provision expressly authorizing the creation of probationary status for police officers in cities of the third class. While we have serious doubts as to the validity of such probationary status, for purposes of removing police officers from the force it is immaterial whether or not they are working under a probationary status. KRS 95.450 does not differentiate between police officers who are on probation and those officers who are not in setting forth the reasons and procedure for the dismissal of a police officer. That statute must be observed by a city of the third class if it dismisses a police officer.
As previously indicated, the pension statutes are separate from those pertaining to any type of civil service plan or protection. A person hired as a police officer must participate in the pension fund and he cannot be excluded therefrom by the pension fund trustees. See OAG 74-788, copy enclosed.
Your next set of questions ask:
"Could a recruit in the police department of cities of the 3rd Class after serving their probationary period at which time they pay Social Security rather than pension payments be kept on the same status after going under Civil Service and still pay Social Security and not contribute to the Pension Fund, therefore not being entitled to the benefits thereof."
"Would it be legal under the statutes relating to Alternate Pension Plans of the 3rd Class cities for the city or the officer involved to request or be permitted to pay Social Security in lieu of pension payments and therefore forfeit his benefits under the pension plan yet to be under Civil Service and have the job protection to which he is entitled under statutes."
We do not deal with interpretations of the Federal social security provisions and your specific questions in that area will have to be directed to the appropriate Federal officals. As far as the provisions of the Alternate Police Pension Fund for cities of the third class are concerned (KRS 95.621 to 95.629), there is no distinction between police officers on or off of any type of probationary status. As previously indicated, all persons hired as police officers must participate in the pension fund and at the rate of payment prescribed in KRS 95.627 (police officers contribute the same rate as social security from their salary). Probationary status (even assuming it is lawful) has nothing to do with when a police officer must begin contributing to the policemen's pension fund. When a city adopts the provisions of KRS 95.621 to 95.629, all the provisions therein are mandatory.
Your third question is as follows:
"Would it be legal under KRS for a member of the Police or Fire Department in 3rd Class cities who are operating under an Alternate Pension Plan to pay into Social Security and into the Pension Fund and receive benefits from both Social Security and the Police and Firemen's Pension Fund. "
There is nothing in KRS 95.621 to 95.629 to prevent such a situation as you have described in your question. We would suggest, however, that you consult with the Federal officials who administer the Social Security provisions for an analysis of those provisions.
Your fourth question asks:
"Would it be possible for the Police and Firemen's Alternate Pension Fund of cities of the 3rd Class to accept payment from and provide benefits for any person other than members of the Police and Fire Departments, even to include the City Jailer."
The pension fund adopted pursuant to KRS 95.621 to 95.629 is limited to the officers and employes of the lawfully created police and fire departments in cities of the third class. It does not apply to other city employes, officers or personnel. The city attorney can advise you as to what retirement plan, if any, the city has for personnel outside the city police and fire departments.