Request By:
Mr. Terry Roberts
Boone County Judge Executive
50 East Washington Square
Burlington, Kentucky 41005
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns the relationship between the Fiscal Court of Boone County and the County Police Merit Board. Your county has a police merit system and merit board organized under KRS Chapter 78, which board operates in relation to the county's twenty-four (24) member police force.
Your first question concerns KRS 78.440(1), which reads:
"(1) Every county police force merit system board created hereunder shall make, promulgate, and when necessary, amend rules for the qualifications, original appointment, promotion, demotion, transfer, layoff, reinstatement, suspension, fine and removal of the officers and employes covered by KRS 78.400 to 78.460. The board shall publish its rules and any amendments thereto by supplying a certified copy thereof to the county judge/executive, the fiscal court and the chief, and by posting a copy thereof conspicuously in the office or place where the headquarters of the county police is maintained. Said rules and amendments thereto shall be published in the manner prescribed within three (3) days after the adoption thereof."
Question No. 1 reads:
"If the county police merit board makes, promulgates, and amends these rules, whose responsibility is it to implement and administer these rules, the chairman of the merit board, the police chief, the judge/executive, or someone else?"
Clearly the merit board has the authority to promulgate rules and regulations governing the classification, qualification, examination, appointment, promotion, demotion, fine, suspension and other disciplinary action within the Merit County Police Force. KRS 78.405 and 78.440.
The initial implementation of the disciplinary rules takes the form of disciplinary action by the chief of police under KRS 78.445 and disciplinary action by the board under KRS 78.450. Any officer or employe of the county police force may be removed, suspended, laid off, reduced in grade, or fined by the chief for any cause which will promote the efficiency of the service. Under KRS 78.445 any citizen may make written charges of misconduct concerning a member of the police force. The chief of police shall determine what action, if any, shall be taken against the officer. The citizen may appeal the determination of the chief of police to the merit board.
Pursuant to KRS 78.450, the merit board has the right to remove, reduce, suspend, lay-off, fine or discipline any officer or employe of the merit system on written charges of misconduct preferred on its own initiative or the initiative of any citizen under certain circumstances. A full public hearing by the merit board is provided. See Redmon v. McDaniel, Ky., 540 S.W.2d 870 (1976) 871.
Under KRS 78.455, in all cases provided for in KRS 78.445 and 78.450, the action of the chief of police or the merit board shall be final except in the specific situations outlined in KRS 78.455. The exception is that every action in the nature of a dismissal, suspension, reduction or fine made by the chief shall be subject to a review by the merit board at the request of any officer or employe affected by KRS 78.400 to 78.460. Every action in the nature of a dismissal, suspension, reduction or fine made by the merit board shall be final, except that any person aggrieved thereby may appeal to the circuit court, and finally to the Court of Appeals. See Duvall v. Helm, Ky.App., 623 S.W.2d 234 (1981).
The implementation of the nondisciplinary rules would be by the merit board generally.
Question No. 2 reads:
"Our question here is this: In order to create unity and harmony among our workforce, may a fiscal court adopt personnel policies for all county employees including the police? These policies would, of course, defer to merit board regulations created by ordinance and within the scope of the aforementioned statute. They would, however, provide equal treatment for all county employees including the police in areas not covered by statute."
The basic powers of the merit board are set forth in KRS 78.440. However, the promulgation by the board of various rules does not include such general employee matters as hours in a work week, sick leave, other leaves, compensatory time, fringe benefits etc. In addition, the chief of police and assistant chiefs are not included in the merit system. KRS 78.428.
Thus the fiscal court by ordinance may adopt general county employee personnel policies embracing such nondisciplinarian matters as work week hours, sick and other leaves, and fringe benefits, as authorized generally by statute, which personnel policies would apply to all county employees, including the policemen. Of course we are referring to personnel areas not covered in KRS 78.440. Such an approach would be unified and equitable.
Question No. 3:
"May a county merit board create a system of seniority for police officers that would force a county fiscal court to pay an officer more than budgeted for?"
KRS 78.440 vests in the merit board the authority to establish rules relating inter alia to classification, promotion, and seniority. The board has the authority by the strongest implication to implement such personnel actions. These are specific statutes relating to a police merit system, and there is no mention of the fiscal court's implementation of such rules. Long v. Mayo, 271 Ky. 192, 111 S.W.2d 633 (1938).
The fiscal court has the responsibility of administering the fiscal affairs of the county under a uniform budget system. KRS 68.220 and 68.240. The fiscal court is required to consider and finally adopt a county budget, subject to the supervision of the State Local Finance Officer. KRS 68.250, 68.260 and 78.270.
The answer to this question is that any promotions or pay increases for members of the police force, as may come about under the rules promulgated by the merit board, must be taken into account by the fiscal court in the formulation of the county budget. See KRS 68.240; and Tierney v. Pendleton, Ky., 253 S.W.2d 376 (1952). The county police are subject to the rules of the merit board and the promotion procedure (oral examination and promotional tests), as outlined in KRS 78.440, administered by the merit board. As we said above, we find no statutory mention of the fiscal court's participation in the promotion procedure. In this salary situation, both the merit board and fiscal court must work together closely and reasonably, such that the reasonable personnel salary program of the merit board can be adequately funded under the county budget.
Question No. 4:
"Our fourth question is, who appoints police officers? KRS 78.440(1) explains that the police merit board makes rules for qualifications and appointments, but it does not say who appoints them. We are assuming that the Judge/Executive appoints them with the approval of the fiscal court. Is that assumption correct?"
The general law, KRS 67.710(7), provides that the county judge executive, with the approval of the fiscal court, shall appoint, supervise, suspend, and remove county personnel, unless otherwise provided by state law. The answer is that KRS Chapter 78 is silent as to who appoints the county police, except that the county judge executive appoints the chief of police and the assistant chiefs, which officers are not a part of the merit system. KRS 78.428(1). Since there is no law to the contrary, the county police, who are under the merit system, are appointed by the county judge executive, with consent of the fiscal court, pursuant to KRS 67.710(7).
Question No. 5:
"Finally, is there any statute forbidding entry into the police department at ranks above police officers and excluding chief? For example, if a police department needs to fill a captain's position, may the force recruit from outside the department with the understanding that the candidate, of course, would have the training, education, knowledge, skills, and abilities required by the position?"
The filling of a vacant position in the merit system would be made by the appointing authority (county judge executive, with consent of fiscal court) under the rules of the merit board, which rules would cover the matter of filling such position by appointing an officer already within the system or some qualified person outside of the system.