Request By:
John J. Llewellyn, Esq.
546 Starks Building
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning disciplinary procedures applicable to a fire protection district established pursuant to KRS 75.010. You specifically refer to KRS 75.130 and 75.140 which make mention of KRS 95.450 and 95.460.
You state that the fire protection district is not part of and is not located within the boundaries of a city of the second or third class. The fire department has instituted procedures to discipline a recruit firefighter whose status at the time of the incident was a "probationary firefighter. " Under the bylaws of the fire protection district (a copy of which was not attached to your letter), a new recruit firefighter must go through a training program, pass a written and practical examination, serve as a probationary firefighter for a period of time and show an adequate degree of proficiency before being conferred with full firefighter status and membership in the fire department. The firefighters are not employees of the fire protection district during their probationary period or after being designated as members of the fire department.
Your first two questions are as follows:
"1. Does KRS 75.130(1) require application of the disciplinary procedures set forth in KRS 95.450 to fire departments or fire protection districts not located in second and third class cities?
2. Does KRS 75.130(2) designate disciplinary procedures set forth in KRS 95.450 as being the required disciplinary procedures of fire protection districts departments located within areas other than second and third class cities?"
KRS 75.130 provides as follows:
"(1) The board when disciplining members and employees of the fire protection district shall be governed by the same procedure provided for in KRS 95.450 in cases of the discipline of members of the police and fire departments in cities of the second and third classes.
Whenever KRS 95.450 uses the term 'city legislative body' in case of fire protection districts there shall be substituted 'board of trustees of the fire protection district,' when disciplinary measures are instituted under this section and when KRS 95.450 uses the term 'mayor' the term "chairman of the board of trustees' shall be substituted in this section."
In OAG 80-240, copy enclosed, at page two, we said in part as follows:
"The only disciplinary action that the board of trustees can take against firefighters of the fire protection district is that set forth in KRS 95.450 and it must be done pursuant to the bringing of charges, informing the person of the charges against him and the holding of a hearing in connection with those charges. . ."
The fire protection district with which you are concerned was organized pursuant to KRS Chapter 75 and its board of trustees must therefore follow the provisions of KRS 95.450 in connection with disciplinary matters. The size of the fire district, the area it encompasses and the physical location of the district are not factors in determining whether it applies the provisions of KRS 95.450 to disciplinary matters. Its organization as a fire district pursuant to KRS Chapter 75, rather than whether the fire district encompasses or is located in portions of second and third class cities, governs as to the application of KRS 95.450 to disciplinary matters. In connection with disciplining members and employees of fire districts organized pursuant to KRS Chapter 75, the General Assembly decided to require the application of the provisions of 95.450 to those situations, the same provisions applicable to members of police and fire departments in cities of the second and third classes and urban-county governments.
Your third question asks:
"If the provisions of KRS 75.130(1) and (2) require the application of disciplinary procedures set forth in KRS 95.450 to fire protection districts located in second and third class cities, must the disciplinary procedures set forth in KRS 95.450 be followed in the discipline of individuals who serve in the status of probationary firefighter? "
You are concerned with a fire district organized pursuant to KRS Chapter 75 and we have already attempted to explain the applicability of KRS 95.450 to disciplinary proceedings involving members and employees of such a fire district. In connection with a so-called "probationary" firefighter, we find no mention in KRS 75.130, or any other section of KRS Chapter 75 or KRS 95.450 of such a classification of personnel. Arguably, at least, it could be concluded that all personnel of the fire district including probationary persons are subject to the provisions respecting disciplinary proceedings as persons on probation are not excluded or difterentiated from other personnel groups. This is particularly true where there is no ordinance or bylaw dealing with probationary persons.
In
Rottinghaus v. Board of Commissioners of City, Etc., Ky. App., 603 S.W.2d 487 (1979), the court dealt with probationary provisions applicable to police officers in a city of the second class. It was argued that the probationary provisions, permitting the chief of police to simply dismiss an officer during the probationary period, were invalid because that procedure denied the policeman the discipline procedure protections contained in KRS 95.450. The court said the probationary provisions did not constitute a disciplinary regulation, but rather a legislative directive setting up a process for evaluation of a potential member of the police department.
We do not know what provisions, if any, the fire district has adopted concerning the evaluation of its probationary firefighters. Assuming there are no such provisions and thus no differentiation between probationary firefighters and regular firefighters, a fire protection district organized pursuant to KRS Chapter 75 probably could not discipline any of its firefighters without following the provisions of KRS 95.450.