Request By:
Frank A. Wichmann, Esq.
City Attorney, City of Erlanger
Erlanger, Kentucky 41018
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to your letter raising questions concerning the annual leave of a police officer in a third class city under KRS 95.497. That statute provides in part in subsection (1) that, "Each member of the police department shall have an annual leave of fifteen working days with full pay."
One of the city's police officers was hired November 20, 1972, and resigned December 31, 1977. As of November 19, 1976, that officer had received all of the annual leave to which he was entitled up to that time under the statute and, at that time, he began an extended period of work-related disability which resulted in his subsequent resignation on December 31, 1977. During the time period from November 19, 1976 through December 31, 1977, the officer performed no work for the city and received no salary from the city but he did receive benefits through Workmen's Compensation, Social Security and the accident and sickness disability program of the city.
Your specific questions are as follows:
"(1) Is the Police Officer entitled to 15 days pay for the annual leave provided by KRS 95.497 for the period of November 20, 1976 through November 19, 1977?
(2) Is the Police Officer entitled to 15 days for the annual leave provided by KRS 95.497 for the period of November 20, 1977 through December 31, 1977?"
We do not know what ordinances, if any, the city has adopted in connection with the general subject matters of vacation and leave. A city of the third class may, pursuant to KRS 95.430, ordain and enforce rules for the government of the police department as it deems expedient. We also do not know the exact status of the police officer during the period of time during which he was not working and not earning a salary but receiving benefits from various sources for his disability. We would assume that he was on some type of leave from the police department during that time.
Thus, without knowing what ordinances, if any, are applicable we can only discuss your questions from the standpoint of the constitutional and statutory provisions. At this point we direct your attention to Section 3 of the Kentucky Constitution and KRS 64.410(2)(c).
Section 3 of the Kentucky Constitution provides in part that no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services. KRS 64.410(2)(c) states that no officer shall demand or receive for his services any fee for services not actually rendered. See
Ray v. Woodruff, 168 Ky. 563, 182 S.W. 662 (1916). A city police officer is, of course, a municipal officer as determined in a number of cases including
City of Lexington v. Rennick, 105 Ky. 779, 49 S.W. 787 (1899);
Arms & Short v. Denton, 212 Ky. 43, 278 S.W. 158 (1925); and
Thomas v. Thompson, 102 S.W. 849 (1907). Thus, the constitution and the statutes contemplate the use of tax money to pay public officials only for services actually rendered.
Since the police officer rendered no public service during the period of time from November 20, 1976 through December 31, 1977, as he did not work in his capacity as a city police officer, it would be our opinion that he is not entitled to paid annual leave time for that period of time on the basis of the constitutional provision and statutes we have examined. While a police officer earns fifteen working days of paid annual leave each year, we do not see how he can earn such annual leave time during a period of time he was not working. As stated previously, we do not know what city ordinances, if any, are applicable generally in the area of vacations and leave. We assume the police officer was on some type of leave but from the facts given, annual leave earned previously had been expended and any other type of leave he would have accumulated, if any, would have long since expired by the time the officer resigned from the force.