Request By:
Mr. Virgil H. Marlow
1101 Fifth Street
Dayton, Kentucky 41074
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letters and a letter submitted by Mr. James W. Rogers concerning the qualifications required of a police chief of a city of the fourth class.
The City of Dayton recently hired a police chief from Felicity, Ohio. The man involved has assumed the duties of police chief of Dayton, Kentucky, although he continues to live in Ohio. Apparently he stays in Dayton, Kentucky, during the week and returns to Ohio on weekends. You ask what the statutes require, what can be done and what this office will do about the matter.
KRS 95.710, dealing with the qualifications of police officers in a city of the fourth class, provides in part that such persons must be residents of the county containing the city in which they serve. However, in view of the provisions of KRS 15.335 and the case of
City of Newport v. Schindler, Ky., 449 S.W.2d 17 (1970), residential qualifications required of police officers have been removed. Thus, a city may hire a police officer, even though he does not reside within the city or the county. See OAG's 76-416 and 73-461, copies enclosed.
While a police chief of a fourth class city need not reside within the city or the county, he would have to reside within the Commonwealth of Kentucky. KRS 95.760 requires that all members of the police force of a fourth class city take an oath to faithfully perform the duties of their office and that they possess the required qualifications. The constitutional oath prescribed in Section 228 of the Kentucky Constitution imposes upon "all officers" the duty to support the Constitutions of the United States and Kentucky and to be faithful and true to the Commonwealth of Kentucky so long as they continue to be citizens of Kentucky. Therefore, Kentucky citizenship would in part require residency in Kentucky.
Legal residence is sometimes difficult to determine but it is primarily based upon intent and the factual evidence as held in the case of
Nunn v. Hamilton, 233 Ky. 663, 26 S.W.2d 526 (1930). Legal residency usually refers to permanent residency rather than temporary residency. In connection with determining residency, see OAG 74-536, copy enclosed.
KRS 95.720(3) provides:
"In cities of the fourth and fifth classes a chief of police appointed by the city legislative body 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 by the city legislative body. "
As stated in OAG 74-536, residential disqualification would be sufficient cause to remove a nonresident officer. In connection with the removal of a police officer or a police chief, see OAG 76-435, copy enclosed.
As another alternative with respect to the removal of a city officer (a police chief is a police officer and a city officer) who becomes disqualified and thereby a usurper, the Attorney General is empowered to authorize an ouster proceeding, upon proper petition with documented evidence, to be brought in his behalf for the removal of such officer. However, where the General Assembly has provided the city council with the power to remove a disqualified police chief as set forth in KRS 95.720 (3), it has been the policy of this office to refrain from authorizing ouster proceedings which is purely discretionary in any event pursuant to KRS 415.050. See OAG 76-14, copy enclosed.
Thus, a police chief of a fourth class city in Kentucky need not be a resident of the city he works in or the county containing that city, but he must be a resident of the Commonwealth of Kentucky. If the chief is not, in fact, a legal resident of Kentucky and refuses to resign from his position, the city legislative body may remove him pursuant to KRS 95.720 (3). The Attorney General's Office generally refrains from authorizing an ouster proceeding pursuant to KRS 415.050 where the General Assembly has provided the city council with power to remove a disqualified officer.