Request By:
Mr. Ronald R. Kestler
Barbourmeade Police Department
3401 Coronado Drive
Louisville, Kentucky 40222
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the operation of the Barbourmeade Police Department. Your first question asks whether a sixth class city may contract with an individual to serve as a sworn police officer for that city.
The city commission of the city of Barbourmeade is attempting to contract with individuals to serve as sworn police officers rather than hiring them as city employees. The city does not want to handle the paperwork and exercise the supervision involved with volunteer or part time personnel. The contract proposes that persons serving as police officers furnish police protection services to the city for approximately 130 hours per month. The contract also states that the persons performing police protection services shall be independent contractors and not direct employees of the city.
The term "policeman" is defined in McQuillin Mun. Corp. (3rd Ed.), Vol. 16, § 45.06 as:
". . . a person who is a member of an organized force for maintaining peace and order, preventing and detecting crime, and enforcing the law; a policeman of a city is a person who has been authorized and empowered by a city to perform duties which relate to its governmental function of maintaining peace and order. The term 'policeman' is often a comprehensive one, and generally includes every member of the police force, whatever his rank, such as the chief of police. . . ."
In 62 C.J.S. Municipal Corporations, § 568 it is stated that the office of policeman or member of a police department was unknown to the common law, and wherever it exists, it is a creation of statute or municipal ordinance. Policemen may be either officers or employees but a majority of the cases consider them to be public officers. McQuillin Mun. Corp. (3rd Ed.), Vol. 16, § 45.11. The Kentucky cases have considered city police officers to be municipal officers for most purposes. See
City of Lexington v. Rennick, 105 Ky. 779, 49 S.W. 787 (1899) and
Arms & Short v. Denton, 212 Ky. 43, 278 S.W. 158 (1925).
In OAG 81-48, copy enclosed, we said that the establishment of a city police department is a legislative matter of a permanent nature which must be accomplished by the enactment of an appropriate ordinance. The ordinance establishing the department should refer to the chief of police and such subordinate officers as are deemed proper and it should establish the qualifications, tenure, compensation, duties, oath of office, etc., which would meet the basic criteria for establishing an office under KRS 83A.010(9). Police officers are for most purposes, therefore, municipal officers hired pursuant to statutory provisions and possessing the qualifications required by the applicable statutes and ordinances.
If city police officers are to be independent contractors, as your city contemplates, then they would not be municipal officers or employees. Police officers by definition [KRS 446.010(24)], are peace officers and may exercise peace officer powers. Police officers are for most purposes municipal officers and acquire their peace officer powers by virtue of their employment with the city as police officers. Thus, we are of the opinion that a city may not confer peace officer powers on individuals and designate persons to function as municipal police officers by virtue of contracting with them individually and designating them as independent contractors.
Your second question asks if a police officer who contracts to furnish police protection as a sworn officer for a sixth class city is eligible to participate in the Kentucky Law Enforcement Foundation Program Fund.
Since we have concluded in response to your first question that a city cannot by contract confer peace officer status on a person and designate him as a municipal police officer, as the city must follow procedures set forth in the statutes and ordinances relative to the hiring of municipal police officers, there is no need to answer the question. However, even if a city could contract with individuals for municipal police services, the statutes relating to the Kentucky Law Enforcement Foundation Program Fund (KRS 15.410 to 15.510) would probably preclude such a city's police personnel from participating in the program. The program in part pertains to full time members of a lawfully organized city police department which employs one or more police officers.
Your third question asks whether a sixth class city may contract to furnish police protection to other sixth class cities who are participating in agreements executed under the Interlocal Cooperation Act.
The city of Barbourmeade has entered into several interlocal agreements over the years with nearby cities. As a general proposition, there is nothing in KRS 65.210 to 65.300 (Interlocal Cooperation Act) , which prohibits a city from entering into more than one agreement on the same subject matter (police protection services in this case). Obviously the city should keep in mind its own needs relative to police services and the ability of its police personnel to handle any increased duties. If the city is able to handle police services within its own boundaries and also has the capabilities to furnish police protection services to other cities, it can legally execute interlocal agreements with each of the other cities.
If Barbourmeade, however, is going to attempt to obtain police services for itself by contracting for such with private individuals it will be legally unable to contract with other cities to provide them with police services. It, at that point, will not have its own police department and police officers and there is nothing in the contract with the persons with whom it is contracting about them furnishing police services in other cities. Furthermore, the independent contractors who are supposed to be acting as municipal police officers do not have the authority to execute an interlocal agreement. See KRS 65.230.
Your fourth question concerns the liability of a city which is operating under an interlocal agreement dealing with police protection services. You ask whether a city is liable for the acts of its police officers who are operating in another city as authorized by an interlocal agreement, specifically KRS 65.255.
Obviously, the municipal police officer is potentially liable for his acts of negligence or intentional wrongdoing. The city can no longer use the shield of sovereign immunity and it may under certain fact situations incur liability. We have serious doubts as to the validity of attempts in various types of contracts and agreements to eliminate liability. Attempts to, in effect, legislate immunity, have not been successful. See
Happy v. Erwin, Ky., 330 S.W.2d 412 (1959). If a person or governmental entity is negligent liability will generally be incurred regardless of what the agreement says to the contrary.
Since we have not been presented with a specific fact situation we cannot say whether either or both of the cities would incur liability. We would need to know exactly what was done by the officer and the context within which it was done relative to both of the cities. Municipal liability is discussed in OAG 83-93, copy enclosed, and perhaps some of the principles discussed there would be helpful to you and your city.
Many of the interlocal agreements involving Barbourmeade provide for the creation of a "Public Safety Committee" to coordinate the administration of the agreements. Perhaps the committee could attempt to more specifically set forth the duties of the police in particular situations under the agreement in an attempt to clarify responsibility and minimize potential liability.