Request By:
George M. Hogg
Attorney at Law
P.O. Box 535
Olive Hill, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 11 in which you as legal representative of the City of Olive Hill, a city of the Fourth Class, indicate that said city operates its police and fire departments under the provisions of KRS 95.700, et seq., but has not adopted a civil service program under the provisions of KRS 95.761 to 95.784. Your questions are as follows:
"My question simply is, does KRS 95.765 apply to all cities of the fourth class or does it apply only to those cities who have adopted a civil service commission? If the answer to the above question is that this statute does not apply unless a civil service commission has been adopted, then does the mayor of a city of the fourth class have the authority to completely discharge a police officer or member of the fire department for inefficiency, misconduct, insubordination or violation of a law or rule adopted by the department."
In connection with your question you further relate that a discharged member of the police department is in the process of requesting a hearing pursuant to KRS 95.765.
Unless a city of the fourth class elects to adopt a civil service program pursuant to KRS 95.761 to 95.784, the terms of KRS 95.765 requiring the preferring of charges and the holding of a hearing prior to the removal of a member of the police or fire department, would not be applicable. This means that the city will operate its police department pursuant to the terms of KRS 95.700 and in this respect we refer you to subsection (2) which reads as follows:
"Except in cities of the fourth class which have accepted and adopted KRS 95.761 to 95.784, the terms of office of members of the police department appointed by the city legislative body shall not exceed two (2) years. The city legislative body shall reappoint to their office, members of the police department who have not yet reached the age of retirement unless sufficient cause be shown for the failure to reappoint them. They shall be subject to removal for cause." [Emphasis added].
Under the above statute a member of the police department who is appointed for a term of years can only be removed for cause. However, the Supreme Court of Kentucky has declared in the case of
Wilson v. City of Jeffersontown, Ky., 511 S.W.2d 115 (1976), that such removal may be made without a hearing. In this case the court based its conclusion on the fact that the statute does not require a hearing and therefore none was necessary in that the circuit court is the forum and the issue is arbitrariness. In connection with this question we are also enclosing copies of three opinions, namely: OAG 75-202, 76-80 and 76-435.
We also might point out that a police officer can only be removed by a city legislative body pursuant to its basic authority under KRS 95.700. Thus the mayor has no authority to discharge such officer or for that matter a member of the fire department.