Request By:
Mr. William Hartman Brammell
Attorney at Law
P.O. Box 361
Court Street
New Castle, Kentucky 40050
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of February 15 in which you, as city attorney for the city of Eminence, relate the following questions and facts:
"QUESTION 1: Does the a) mayor, b) police chief, c) police commissioner, and/or d) city council have the authority to suspend and/or discharge a member of the City Police Force?
QUESTION 2: What degree of cause, if any, must be proven to discharge or suspend a city police officer?
QUESTION 3: What procedure, if any, must be followed in order to discharge or suspend a city police officer?
My questions refer to a city which has not adopted a civil service and police pension plan, apparently leaving KRS 95.765 inapplicable; after repeal to KRS 95.700, there seems to be a gap in the statute. Please furnish your opinion on our legal rights in this regard as soon as possible as a present situation is dependent upon resolution of this uncertainty."
In response to your initial question, we refer you to KRS 83A.130(9) which, pursuant to a 1982 amendment (underlined), reads as follows:
"The mayor shall be the appointing authority with power to appoint and remove all city employes, including police officers, except as tenure and terms of employment are protected by statute, ordinance or contract and except for employes of the council."
The above referred to statute clearly authorizes the mayor to remove any member of the city police force unless he is, of course, under a civil service program which you indicate is not the case. There has been a recent case covering this point styled
McCloud v. Whitt, Ky. App., 639 S.W.2d 375, (1982), concerning the question of the mayor's right to remove the chief of police as well as the chief of the fire department without first holding a due process hearing. This decision came prior to the 1982 amendment but dealt with KRS 83A.080(2). The court declared that no such hearing was required in absence of a civil service requirement, even under the terms of KRS 15.520 which is a the policeman's so-called "bill of rights" statute that is a part of the Law Enforcement Foundation Program Fund Act (KRS 15.410 to KRS 15.510). The court did point out that if the chief's removal was predicated upon a complaint of professional misconduct in violation of KRS 15.520, then the procedure under this statute would have to be followed. Otherwise, the mayor could remove the police chief as well as the fire chief at will.
Your second and third questions have been answered above unless the police officer is under a civil service program or under KRS 15.520 that require a hearing. Such statute sets forth the grounds and procedures for removal. We might add that KRS 83A.130(9) does authorize the city legislative body to enact an ordinance prohibiting the removal of any city employee except for cause. See OAG 82-258.