Request By:
Roger R. Cantrell, Esq.
205 Harrison Street
P.O. Box 704
Greenup, Kentucky 41144
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to your letter, in your capacity as city attorney, for the city of Raceland, in which you raise several questions concerning that city's police force and its police chief. We have also received a letter from Mr. Joseph Nutz dealing with the same general subject matter. Since his question is similar to one of those you have presented, we are sending him a copy of this letter.
You state that in January of 1978 the city council of Raceland (a city of the fifth class) decided to reorganize its police department. Prior to reorganization the city had a police chief, a police sergeant and several patrolmen. The city had maintained a full-time police department. The reorganization involved the abolishment of the office of chief of police. The former chief of police was appointed to the office of sergeant in charge, this office being second in command to the city's mayor. The former sergeant was reduced to patrolman and that position plus those of all other patrolmen were reduced to a part-time basis. The position of sergeant in charge does involve a forty hour per week schedule and the salary is the same as that previously received by the chief of police.
No charges were made against any of the members of the police department in connection with the department's reorganization and the officers' changes in status and rank. The police officers were given prior notice of the reorganization and were told that it was occurring primarily because of a reduction in municipal revenues.
Your specific questions are as follows:
"1. Did the city have the authority to reorganize its police department and abolish the position of chief of police, considering that this was a uniform reduction in the size and structure of its entire police department?
2. Did the city violate provisions of KRS 95.765 by reappointing the former chief of police to the position of sergeant-in-charge for the sole reason of the uniform reduction of all personnel in the police department and a complete restructuring of the department?
3. Since the position of chief of police in a 5th class city is an officer of the city, is the person holding that position entitled to an automatic reappointment to the position of chief of police at the expiration of his ordinary term, per se?"
In your second question you refer to KRS 95.765 which provides in part that no member of the police department shall be removed from the department or reduced in grade upon any reason except inefficiency, misconduct, insubordination or violation of law, or violation of the rules adopted for the department. That particular statute is part of a series of statutes, beginning with KRS 95.761, which deal with the adoption of civil service and a policemen's pension plan by fourth or fifth class cities. Note also that the chief of police is among those positions which may be excluded from the classified service.
You have advised by telephone that the city has not adopted the provisions of KRS 95.761 et seq. and that the city does not have a civil service program for its police officers. Therefore, the provisions of KRS 95.765 do not cover the police officers in your city and are not applicable to them. See OAG 77-702, copy enclosed.
In response to your third question, asking whether the chief of police is entitled to an automatic reappointment to the position of police chief, we first direct your attention to KRS 95.720(3). That statute states that the chief of police in a fifth class city shall hold office for a term of not longer than two years and until his successor is appointed and qualified. He shall be subject to removal at any time for good cause. The statute does not provide for the continued reappointment of the police chief and, therefore, he need not be reappointed at the end of his two-year term. See OAG 76-80, copy enclosed, at page two, and OAG 76-435, copy enclosed. Compare the provisions of KRS 95.720 with KRS 95.700 where it states in part that police officers (other than the police chief) shall be reappointed to their office unless they have reached the age of retirement or sufficient cause can be shown for the failure to reappoint them.
As to your first question concerning the reorganization of the police department and the abolishment of the position of chief of police, we would first emphasize that the city's police department must be organized and maintained pursuant to the applicable provisions of KRS Chapter 95. KRS 95.700 deals with the establishment of the police department and the appointment of its members. The city council may provide for the number, grades, compensation and regulation of the police officers.
KRS 95.720(2) does state that the legislative body of a fifth class city may appoint a chief of police. However, KRS 95.730(1) provides that in a fifth class city, the chief of police shall be in command of the police department. The chief of police of a fifth class city is the only official statutorily authorized to command the police force in such a city and, therefore, the command of the police force in its day to day operation must be exercised by the police chief and not by the mayor or a police sergeant. See OAG's 78-196 and 76-570, copies enclosed. With no police chief you presently have a leaderless police department.
Furthermore, in our opinion, the police offices appointed by the city council, pursuant to KRS 95.700, are regular, permanent, full time and salaried officers and not volunteer or part time personnel. See OAG 77-459, copy enclosed.
The city's reorganization of its police department seems to have created several problems in that now there is no police chief to lead the police force and all but one member of the force are now part time people.