Request By:
Ms. Sheryl G. Snyder
Attorney at Law
Wyatt, Tarrant & Combs
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of January 29 in which you request an opinion on a number of issues relating to policemen and the establishment of a police department by the city of Douglass Hills, a city of the fourth class. You refer to the repeal of KRS 95.700 relating to this class of city which provided for the creation of a police department by ordinance. The city of Douglass Hills apparently did not enact such an ordinance prior to the repeal of KRS 95.700, and the initial question is raised as to whether or not such a department can be established by executive order rather than by ordinance under the terms of Senate Bill 26.
We are of the opinion that the establishment of a police department under Senate Bill 26 is a legislative matter of a permanent nature and therefore must be accomplished by the enactment of an appropriate ordinance rather than by a legislative order which is confined to matters involving the internal operation of the city. See KRS 83A.010 (8) and (10) and KRS 83A.060 (13). This later statute, to which you refer, does not say, as you imply, that city boards and commissions may be established by municipal order but simply that members thereof over which the city has control may be appointed and removed by such orders.
It would also appear that municipal orders referred to in Senate Bill 26 were designed to take the place of resolutions referred to in the various municipal charters repealed by Senate Bill 26 which are generally considered nonlegislative actions of a temporary nature for internal use. See McQuillin, Mun. Corps., Vol. 5, Sections 15.01 and 15.04. As a consequence, we believe that the city must establish its police department pursuant to an ordinance which should set forth the number of members, qualifications, duties and powers, grades, compensation, oath, etc.
Your second question concerns whether or not police officers, including the chief, are considered employees under the Wate and Hour Law, particularly KRS 337.010 (2) (a) (ii), and our response would be in the affirmative as indicated in the attached opinions, namely OAG's 74-602, 75-607 and 80-496. The fact that these officers are considered "employees" insofar as the Wage and Hour Law is concerned does not mean that they are to be considered for all other purposes, municipal employees rather than officers. We believe that they continue to be municipal officers as held in the
City of Lexington v. Rennick, 105 Ky. 779, 49 S.W. 787 (1899). Again we should point out that the city should, in the ordinance establishing the police department, make specific reference to the chief of police and such subordinate officers as it deems proper and at the same time establish the qualifications, tenure, compensation, duties, oath of office, etc., which would meet the basis criteria for establishing an office under KRS 83A.010 (9) which simply reflects the case law definition referred to in many cases, among them being
City of Lexington v. Thompson, 250 Ky. 96, 61 S.W.2d 1092 (1933), and the later case of
Commonwealth v. Howard, Ky., 379 S.W.2d 475 (1964).
You next raise the question of whether or not KRS 15.520 affords a police officer the right to a due process hearing in view of the language found in subsection (1) (h) which uses the phrase "when a hearing is to be conducted by any appointing authority," which does not appear to mandatorily require a hearing in all cases.
We believe that KRS 15.520 when read in conjunction with the act as a whole clearly implies that police officers against whom complaints are filed are entitled to a due process hearing as therein provided though admittedly the statutory language is somewhat ambiguous.
It would seem to us that the use of the phrase mentioned above simply means that a hearing is predicated on the initial finding by the authority or body designated to take action in the matter, that the complaint is not frivolous and thus warrants a full investigation to determine its authenticity. This, we believe, is the intent of the legislature in enacting this statute.
In response to the initial part of your fourth question, we find nothing under KRS 15.520 that would prohibit a so-called ranking officer [mayor or police chief] from preferring charges against an officer arising from the same incident involving a citizen who declines to make his complaint under oath, provided sufficient evidence is deemed available relating to the incident outside of that to which the citizen has sole knowledge of, but refuses to furnish under oath.
In response to the second part of this question, and since the mayor under the councilmanic form of of government has the sole authority under KRS 83A.080 (2) and 83A.130 (9) to remove nonelected officers and employees, he, rather than the council, would have the responsibility of hearing disciplinary charges against the police officer unless he has promulgated a hearing proceeding otherwise that has been approved by the council under KRS 83A.130 (4). On the other hand, we believe that the council could, under the authority of KRS 83A.080 (2) and 83A.130 (9), enact an ordinance establishing a hearing board to hear the charges, the members of which are to be appointed by the mayor with the approval of the council under KRS 83A.080 (2).