Request By:
Thomas A. Nanney, Esq.
City Attorney
City of Fulton
313 Main Street
Fulton, Kentucky 42041
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the applicability of KRS 15.520, the so-called policemen's "bill of rights."
You state that the city manager is attempting to develop personnel procedures to ensure accurate documentation of employe performance. A form has been prepared on which department heads are to document in the employes' files any deficiencies in their work as well as those matters deserving favorable comment. These reports are to be used by the department heads and the city manager in determining whether an employe deserves an increase in salary.
Your concern is whether a policy of placing documentation of poor performance in a police officer's file may in some way violate the police officer's rights under KRS 15.520. Your question is whether the provisions of KRS 15.520 are applicable if the police chief uses the form prepared by the city to document the insufficiencies of his police officers.
Apparently the police officers of your city are receiving funds from the Kentucky Law Enforcement Foundation Program Fund (KRS 15.410 to 15.510 and KRS 15.990), because if they were not, the provisions of KRS 15.520 would not apply [KRS 15.520(4)].
The form which the city contemplates using states that its purposes are to notify employes that their actions in the performance of their duties have come to the attention of their supervisors and to provide documentation of those employe actions. The form includes provisions for detailing the action, obtaining the signatures of witnesses and describing the action to be taken by the department head.
The purposes of KRS 15.520 are to establish a system of professional conduct for the police officers of units of local government, to establish administrative due process rights for police officers of local units of government and to provide a means of redress by citizens for wrongs allegedly done to them by police officers. In discussing the applicability of KRS 15.520 the court in McCloud v. Whitt, Ky. App., 639 S.W.2d 375, 377 (1982), said in part as follows:
"KRS 15.520 has no application to the removal of Police Chief Whitt. That statute was enacted '[i]n order to establish a minimum system of professional conduct of the police officers of local units of government of this Commonwealth' by creating standards of conduct 'to deal fairly and set administrative due process rights for police officers. . . and at the same time providing a means of redress by the citizens of the Commonwealth for wrongs allegedly done to them by police officers [.]' To expand the application of the requirements of this statute by judicial decision would be an impermissible intrusion into the prerogatives of the legislative branch. Chief Whitt's removal was not predicated upon any complaint of professional misconduct, KRS 15.520(a), or upon any charge involving violation of any local unit of government rule or regulation, KRS 15.520(e), but resulted from action by the mayor under the discretionary power given him by KRS 82.080 (2) . . ." [See KRS 83A.080(2) rather than KRS 82.080(2)].
If the city's police officers are receiving funds from the Law Enforcement Foundation Program Fund, then those officers are entitled to the protections afforded police officers by KRS 15.520. That statute in part establishes administrative due process rights for municipal police officers charged with professional misconduct or violations of municipal rules and regulations. Thus if the city's proposed policy of documenting the work performances of its employes involves charging police officers with professional misconduct or with violations of municipal rules and regulations, the city must adhere to the provisions of KRS 15.520 requiring in part notification to the police officers of the charges and a hearing relative to those charges, assuming the city and its police officers are participating in the Kentucky Law Enforcement Foundation Program Fund.