Request By:
Hon. Edward D. Hays
Sheehan, Barnett & Hays
114 South Fourth Street
Danville, Kentucky 40422
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
As legal counsel for the city of Danville, you seek an opinion concerning the proper and preferred policy which should be employed by a police department relating to the suspension of a police officer either with or without pay following a criminal charge or an allegation of misconduct. You particularly request that we develop for the city a set of rules or guidelines which should be followed by the department in related situations.
To begin with, this office is not in a position to compose a set of rules or guidelines with respect to the procedures to be followed relative to the suspension or removal of police officers. This is an administrative matter. We are only authorized to answer specific legal questions involving actual factual situations.
On the other hand, you refer to KRS 95.450(5) which authorizes the suspension of a police officer from duty or from both pay and duty pending trial. However, this statute requires a hearing within three days. At the same time you point out that KRS 15.520, the Police Officer's Bill of Rights, allows 60 days for a hearing which we have previously declared in OAG 81-134 to be applicable because of the later enactment of KRS 15.520. You further relate that whereas the suspension of an officer without pay is acceptable under KRS 95.450 requiring the hearing within a three-day period, a serious question is raised concerning the legality of such suspension without pay for a period as long as 60 days.
Both KRS 15.520(1) (b) (d) and KRS 95.450(5) authorize suspension with or without pay which we must assume legally authorizes the suspension of an officer for the maximum period of 60 days although we would assume the hearing would normally be held prior to such time limit. Of course the decision as to whether or not the officer should be suspended with or without pay is entirely up to the local authorities who are authorized to adopt appropriate rules and regulations. See McQuillin, Mun. Corps., Vol. 4, Sec. 12.184, and City of Monticello v. Tate, 296 Ky. 569, 178 S.W.2d 27 (1944).
Referring to Sec. 12.184 of McQuillin, it is noted that where an officer is legally suspended or removed he cannot recover the salary for the period of the suspension or between the time of suspension and removal unless otherwise provided by law. At the same time it is pointed out that even though an employee is eventually discharged, such employee suspended without pay in excess of the statutory maximum period may recover wages for the excess period provided the delay in the disposition of the charges is not occasioned by the employee's fault.
We hope the above will be of some assistance to you.