Request By:
Mr. Richard A. Jarvis
Assistant City Solicitor
City of Newport
Fourth and York Streets
Newport, Kentucky 41071
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of March 20 in which you relate that you are having a problem with time constraints imposed with respect to hearings under KRS 15.520 and 95.450.
KRS 95.450 (3) [pertaining to the discipline of police officers] provides that a hearing is to be held within three (3) days after the charges have been filed with the legislative body, and at least two (2) days before the hearing, the accused member shall be served with a copy of the charges together with the time and place at which the hearing will be held. KRS 15. 520 (1) (h) sets forth the procedure for conducting a hearing with respect to complaints against police officers governed by the law enforcement fundation fund and provides that the minimum rights afforded any police officer charged with misconduct shall be, among other things, that the accused officer be given at least seventy-two (72) hours notice of any hearing and also furnished copies of the charges not less than twenty-four (24) hours prior to the hearing.
It is noted form reading the above two statutory requirements that police officers must be given a minimum of seventy-two (72) hours notice of any hearing under KRS 15.520 whereas under KRS 95.450 he is to be given at least two (2) days notice before the hearing which must be held within three (3) days after the charges have been filed. The difference in the time that notice must be given before the hearing must, we believe, be resolved in favor of the minimum requirements set forth under KRS 15.520 which requires a seventy-two (72) hours notice before the hearing. This is a later enacted statutory requirement than that found under KRS 95.450 and must prevail under the general rules of statutory construction to the effect that when there exists a conflict between the two acts, the later act prevails. See Shannon v. Burke, 276 Ky. 773, 125 S.W.2d 238 (1939); and Head v. Commonwealth, 165 Ky. 603, 177 S.W. 731 (1915).
Also, the requirement that the hearing be held within three (3) days after charges have been filed with the legislative body under KRS 95.450 would be superseded by the provisions under KRS 15.520 to the effect that the hearing hearing must be held within sixty (60) days following the filing of any charges against a police officer.
On the other hand, since KRS 15.520 appears to be silent as to the person with whom the charges are to be filed, the requirement under KRS 95.450 that such charges be filed with the clerk of the legislative body would prevail, which means that the time period would begin with the filing of the charges with the clerk of the legislative body. This answers one of the questions you initially raised.
You also relate the following facts and questions:
"Recently, charges were preferred against an officer on a Friday, but we scheduled the hearing on the following Tuesday. We made no records as to when the individual Board members were notified of the pending charges. The policeman's defense attorney objected, insisting that we should have counted Saturday and Sunday. A subsidiary issue arose as to whether the three-day requirement of KRS 95.450 (3) began to run when charges were filed with the Clerk, or when the charges were filed with the legislative body (i.e. when the individual Board members were served with copies of the charges against the police officer) . In view of KRS 95.450 (2), I believe I know the answer, but I want to hear it from you.
"At any rate, the Board dismissed the then pending charges against the officer over and against the objections of the City's Attorney. The same charges were preferred a second time; however, a majority of the Board failed to arrive at the scheduled time, and as a result, the charges were dismissed a second time.
"I have four questions:
"1) Do we include Saturdays and Sundays in our time computations?
"2) Does the three-day requirement of KRS 95.450 (3) begin to run when the charges are filed with the Clerk, or otherwise?
"3) How do we best resolve the requirements of KRS 95.450 -- 'within three days' -- and the requirements of KRS 15.520, Section 1, Subsection h, (1) -- 'at least 72 hours' --?
"4) May we prefer charges against the officer a third time in an administrative hearing? (By comparison, Civil Rule 41 would seem to indicate that the second dismissal was with prejudice.)"
In response to your Questions 1 and 2, we refer you to the computation of time statute, namely KRS 446.030 (1) (a), which reads as follows:
"In computing any period of time prescribed or allowed by order of court, or by any applicable statute, the day of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, a legal holiday, or a day on which the public office in which a document is required to be filed is actually and legally closed, in which event the period runs until the end of the next day which is not one of the days just mentioned. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. "
You will note from the above statute that when the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays and legal holidays must be excluded in the computation. At the same time the day of the act [which would be filing of the complaint] after which the designated period of time begins to run is not to be included but the last day of the period is to be included, unless it falls on a Saturday, Sunday or legal holiday, or a day on which the public office in which the document is required to be filed, is actually and legally closed, in which event the period runds until the end of the next day which is none of those days. Thus, the answer to Questions 1 and 2 would be in the negative.
Our response to your third question for the reason previously mentioned, is to the effect that the 72-hour notice requirement prior to the hearing under KRS 15.520 would prevail over the two (2) day notice requirement under KRS 95.450.
Our response to your fourth question would be in the affirmative since the charges were never heard for technical reasons. In any event the Rules of Civil Procedure would not govern the conduct of this type of administrative hearing in absence of the referred to statutes so requiring, which they do not. The hearing body adopts its own rules of procedure whioch are generally not as formal as those of the court. See Bandeen v. Howard, Ky., 299 S.W.2d 249 (1957), cert. den. 355 U.S. 813, 2 L.ed 2d 31, 78 S. Ct. 13 and 2 Am.Jur. 2d, Adm. Law, Sections 340, 342 and 344. Of course, the Rules automatically govern appeals pursuant to KRS 446.190, unless the controlling statute provides otherwise.