Request By:
Mr. O. J. Johnson
Chief of Police
City of Erlanger
505 Commonwealth Avenue
Erlanger, Kentucky 41018
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising several questions concerning annual leave and pension provisions as they pertain to members of the police department of Erlanger, a city of the third class. You state that the police department has two full-time dispatchers and one part-time clerk. The dispatchers answer the telephones and dispatch the proper units to the troubled areas. The part-time clerk, who works about thirty hours a week, types reports and correspondence.
Your first two questions ask whether the dispatchers and the clerk are members of the police department and whether they are entitled to an annual leave of fifteen working days with pay as set forth in KRS 95.497 and applicable to each member of the police department.
KRS 95.497 provides in part that each member of the police department shall have an annual leave of fifteen working days with full pay. In KRS 95.010(2)(d) "police department" is defined to mean and include all officers, policemen and clerical or maintenance employes of the police department. As set forth in KRS 95.010(2)(e) "member" includes any and all officers, policemen, clerical or maintenance employes in the police department.
However, while dispatchers and clerks are generally members of the police department, it is our opinion that for purposes of the annual leave benefits set forth in KRS 95.497, the members of the police department included therein are the permanent and full-time personnel as opposed to temporary or part-time workers. Most employe benefits in most programs are directed to full-time and permanent personnel. Since the statute only refers to an annual leave of fifteen days, it would be unfair to grant part-time workers the same annual leave benefits as would be granted to permanent and full-time workers. Furthermore, the statute makes no provision for a proportionate reduction in annual leave benefits for part-time members of the police department. Thus, the full-time dispatchers in the police department are covered by the annual leave benefits set forth in KRS 95.497 but the part-time clerk in the police department is not entitled to such benefits under the statute.
Your next question asks whether the full-time dispatchers and the part-time clerk are covered by the pension plan existing under KRS 95.520 to 95.620.
Again utilizing the definitions of "police department" and "member" set forth in KRS 95.010(2)(d) and (e), dispatchers and clerks of the police department of a city of the third class are generally members of the police department of that city. See OAG 63-629, copy enclosed. However, it is also our opinion that the pension benefits set forth in KRS 95.520 to 95.620, applicable to members of the police department, refer to permanent and full-time members of the police department rather than temporary or part-time members of the department.
Admittedly the provisions of that statute do not specifically provide that coverage is limited to permanent full-time members of the police department but most pension funds are concerned with permanent and full-time personnel rather than temporary or part-time workers. Compare the provisions of the police and firemen's benefit fund in cities of the second class, particularly KRS 95.854 which specifically limits membership in the pension fund to full-time members of the police and fire departments. In addition, since the board of trustees of the pension fund may, pursuant to KRS 95.540, make all necessary rules for its government in the discharge of its duties, we would suggest that you examine such rules to determine whether or not any provisions exist with regard to part-time personnel of the police department.
Thus, on the basis of the statutory provisions we have examined, and without knowing what rules, if any, the pension board may have adopted relative to part-time personnel, it is our opinion that the full-time dispatchers of the police department of a city of the third class are covered by the provisions of KRS 95.520 to 95.620 while the part-time clerk of that police department is not so covered.
Your next question concerns the applicability of the statute pertaining to the discipline of members, to the full-time dispatchers and the part-time clerk of the police department.
KRS 95.450 provides in part that no member of the police department in a city of the third class shall be reprimanded, dismissed, suspended or reduced in grade or pay for any reason except inefficiency, misconduct, insubordination or violation of law or of the rules adopted by the legislative body, and only after charges are preferred and a hearing conducted as provided by statute.
As previously stated, dispatchers and clerks of the police department generally are members of the police department. It is our opinion, however, that the protection afforded by the statute applies to permanent and full-time personnel. The temporary and part-time personnel serve at the pleasure of the appointing authority and cannot utilize the protection set forth in KRS 95.450. Again, however, local ordinances and rules may have a bearing on the matter as, pursuant to KRS 95.430, the legislative body may ordain and enforce rules for the government of the police department as it may deem expedient.
Thus, without knowing what rules, if any, the city legislative body may have adopted, we can only state that it is our opinion that the full-time dispatchers of the police department are covered by the provisions of KRS 95.450 while the part-time police department clerk cannot utilize the protection afforded by the statute concerning the discipline of members of the police department.
Your letter concludes with a statement that the police department does not receive paid holidays while other city employes receive five paid holidays per year. You do not raise a specific question and we can only state that holiday pay for the police department is a matter for the city legislative body to handle in its discretion.