Request By:
Mr. Earl W. Smith, Chairman
Campbell County Police Force Merit Board
67 Scenic View Drive
Ft. Thomas, Kentucky 41075
Opinion
Opinion By: [Missing Page]
This is in reply to your letter raising questions concerning the County Police Force Merit Board and, more specifically, KRS 78.410(3), as amended by the 1978 session of the Kentucky General Assembly, effective June 17, 1978, which provides in part as follows:
"The members of the county police department shall elect for a two (2) year term two (2) patrolmen of the county police department with a minimum of five (5) years service or more who shall serve as members of the county police force merit board for the purpose of deciding discipline cases only and who may vote in such cases. These members shall be elected during the month of July 1978. In case of a vacancy, a new election shall be held within sixty (60) days of the date when the vacancy occurs and the person elected shall fill the remainder of the unexpired term."
Your first question is as follows:
"Our question relates to the use of the word 'patrolmen' in the above. Are the men to be elected to come from the non ranking (patrolmen) members of the department only, or are ranking members also to be considered for election to this position?"
Neither KRS 78.410 nor any other section of KRS 78.400 to 78.480 specifically define "patrolmen" although KRS 78.400(5) states that "officer" means any member of the county police forces affected by KRS 78.400 to 78.480 and 78.980, including chiefs and assistant chiefs and all commissioned or noncommissioned patrolmen, corporals, sergeants, lieutenants and captains. Thus, while a patrolman is an officer, not all county police officers are patrolmen. The statute, by using the word "patrolmen" as opposed to the more general word "officer," which would encompass all county policemen regardless of rank, seems to be referring to only those officers holding the rank or position of patrolmen.
In addition, see McQuillin Mun. Corp. (3rd Ed.), Vol. 16, § 45.06, where the author states that, "Strictly speaking, a patrolman is a member of the police force who patrols a designated territory, commonly called a 'beat.'" Furthermore, in
Hartman v. City of Chicago, 343 Ill. App. 103, 98 N.E.2d 148 (1951), at page 152, the court said:
"The term 'Patrolman' has a definite meaning, viz., a de jure patrolman who has taken a a civil service examination, passed the same, and has been certified and appointed to the position of patrolman in the classified civil service in accordance with the Cities Civil Service Act."
Therefore, in our opinion, since KRS 78.410(3) refers to patrolmen, rather than police officers generally or officers of ranks other than patrolmen, the county police officers elected to hold the positions on the county police force merit board mentioned in the statute must come from that group of county police officers holding the rank of patrolmen.
Your second question or inquiry states:
"Also, we would presume that if a member elected to the merit board is involved in a disciplinary action, his appointment would cease and another member would be elected in his place."
The statute does not deal with the situation you have presented but if a patrolman member of the merit board is involved in a disciplinary proceeding before that board he would be disqualified from sitting as a member of the board during the consideration of his case. As to whether a permanent vacancy would exist which would require the election of some other patrolman to the board, that would depend upon the outcome of the proceedings. If the patrolman involved, for example, was convicted and left the police force, then, obviously, his position on the board would be vacant. At this point we direct your attention to 73 C.J.S. Public Administrative Bodies and Procedures § 62 (p. 389) where the following appears:
"It has frequently been held that persons whose rights will be affected by action taken by an administrative officer or agency are entitled to have such action taken by one that is impartial, free from bias, prejudice, or personal interest, and that has not prejudged the issues. Under this rule an administrative body should act without the participation of a member who is disqualified to act by reason of personal interest or prejudice; but a grant of power to several administrative officers does not become void by the disqualification of one or more of them, if there are enough left legally to discharge the duties of the office."
Furthermore, in 1 Am.Jur.2d Administrative Law § 63, it is stated that the common law rule of disqualification extends to every tribunal exercising judicial or quasi-judicial functions. An express statutory requirement of disinterestedness is not necessary to the application of the rule. See also