Request By:
Mr. Frank M. Mattone
Chief Administrative Officer
Lexington - Fayette Urban County Government
The Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether a member of the police department or fire department of the Urban County Government who has had criminal charges filed against him, may be suspended from duty without pay, without disciplinary charges being filed against him, pending final disposition of the criminal charges.
KRS 95.450, dealing with the disciplining of members of the police and fire departments in cities of the second and third classes or urban county government, provides in subsection (1) as follows:
"Except as provided in subsection (5) of this section no member of the police or fire department in cities of the second and third classes or urban-county government 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 in this section."
Subsection (5) of KRS 95.450 states:
"When the appointing authority or the head of the department has probable cause to believe a member of the police or fire department has been guilty of conduct justifying dismissal or punishment, he or it may suspend the member from duty or from both pay and duty, pending trial, and the member shall not be placed on duty, or allowed pay, until the charges are heard. If the member is suspended, there shall be no continuances granted without the consent of the member accused."
The 1980 session of the General Assembly enacted legislation which appears as KRS 15.520 and it deals with complaints against police officers and the manner of investigating and hearing those complaints. The statute provides in part in subsection (1)(b) that no threats, promises or coercions shall be used at any time against a police officer while he is a suspect in a criminal or departmental matter. Suspension from duty with or without pay during such period shall not be deemed coercion.
KRS 15.520(1)(c) states in part that no police officer shall be subjected to interrogation in a departmental matter involving alleged misconduct on his part until 48 hours have expired from the time the request for interrogation is made in writing to the accused officer. KRS 15.520(1)(d) provides that if a police officer is under arrest, or likely to be arrested, or a suspect in any criminal investigation, he shall be afforded the same constitutional due process rights that are accorded to any civilian, including but not limited to the right to remain silent, the right to counsel and he shall be notified of those rights before any questioning commences. Nothing in this section shall prevent the suspension with or without pay of such police officer pending disposition of such charges.
KRS 15.520(1)(h) sets forth the administrative due process rights afforded a police officer when a hearing is to be conducted by any appointing authority or legislative body. KRS 15.520(3) provides in part that the provisions of this section do not limit or in any way affect any rights previously afforded to police officers by statute, ordinance or working agreement. Finally, KRS 15.520(4) states that the provisions of this section shall only apply to police officers of local units of government who receive funds pursuant to KRS 15.410 through 15.992 (The Law Enforcement Foundation Program Fund).
After examining and considering the statutory provisions noted above, it is our opinion that the only action the city is authorized to take against members of its police and fire departments, in regard to reprimanding, dismissing or suspending them or reducing them in grade or pay is that set forth in KRS 95.450. Generally this action can be taken only after charges are preferred and a hearing conducted. The only exception is when the appointing authority or head of the department has probable cause to believe a member of the police or fire department has been guilty of conduct justifying dismissal, the policeman or fireman may be suspended prior to the hearing by the city legislative body. However, written charges are still required, the policeman or fireman still must be served with a copy of the charges and a statement of the day, place and hour at which the hearing will begin and a hearing must be held by the city legislative body.
While KRS 15.520 provides in part that suspension from duty with or without pay shall not be deemed coercion and that nothing in that particular section prevents the suspension with or without pay of a police officer, pending disposition of charges brought against him, KRS 15.520(3) specifically provides that nothing in that statute shall be construed to limit or in any way affect any rights previously afforded to police officers by statute. Thus, the rights afforded firemen and police officers of an urban county government pursuant to KRS 95.450, relative to the procedures and requirements which must be followed if such persons are to be reprimanded, dismissed, suspended or reduced in grade or pay, have not been abridged, modified or affected by, nor are they inconsistent with, the provisions of KRS 15.520.
In conclusion, it is our opinion that members of the police and fire departments of an urban county government who have had criminal charges filed against them cannot be suspended from duty by the appointing authority or the head of their departments pending final disposition of the criminal charges, without following the procedures and requirements set forth in KRS 95.450 which require that charges be preferred and hearings conducted by the legislative body in connection with the persons whose suspensions are sought or who have been suspended.