Discipline Under the Police Officer Bill of Rights
Law enforcement discipline is multifaceted, and agency executive staff should ensure they fully understand the provisions of Kentucky’s Police Officer Bill of Rights before acting on any allegation.
In Board of Regents v. Roth, 408 U.S. 564 (1972) and Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the United States Supreme Court held that the due process clause of the Fourteenth Amendment provides protections to public employees who can identify a statute or ordinance, such as a civil service system, that creates a property interest in the public employment.
Accordingly, any public employee's discipline, including law enforcement officers, constitutes an adverse action against an established property right. As Roth and Loudermill provide substantive and procedural due process rights to public employees in disciplinary proceedings, it is critical to understand the statutory discipline process.
KRS 15.520
Kentucky law contains numerous statutes that govern the law enforcement disciplinary process. The Police Officer Bill of Rights, codified in KRS 15.520, is the most significant disciplinary statute. KRS 15.520 applies to complaints filed by citizens and alleged misconduct concerning a law enforcement procedure that arises from an internal complaint.
KRS 15.520(1)(f) defines a law enforcement procedure as written and unwritten policies, rules and customs carried out in the course of peace officer functions. These are specific to the conduct of officers in the exercise of law enforcement powers and functions without limitation: use of force, conduct in the course of pursuits, during stops or detentions of citizens, and in the course of interacting with, assisting or questioning of citizens, and investigative conduct.
KRS 15.520(1)(f)(3) specifically states that law enforcement procedures are not general employment policies.
Under KRS 15.520(1), “general employment policies” consist of the “rules, regulations, policies and procedures commonly applied to the general workforce or civilian employees. These are not unique to law enforcement activities or the exercise of peace officer authority, regardless of whether those rules, regulations, policies and procedures exist or appear in a departmental manual or handbook that is solely applicable to a law enforcement department or agency within the unit of government employing the officer.”
Significant Distinction
The distinction between law enforcement policies and general employment policies is significant because law enforcement agencies must not utilize KRS 15.520 to address internal complaints that constitute violations of general employment policies. Internal complaints of misconduct that include general employment policy matters are typically addressed under other statutes, notably KRS Chapter 90, KRS Chapter 95 and KRS Chapter 70.
Under the procedural requirements of KRS 15.520(5), an officer may be suspended with or without pay but must be notified in writing of the reasons for the suspension within 24 hours. KRS 15.520(5) further requires agencies to notify officers no less than 48 hours before any interrogation occurs concerning a complaint in writing via personal service or certified mail, return receipt requested. A written statement regarding the reason for interrogation must accompany the notification to interrogate.
KRS 15.520(5) further requires this interrogation to occur while the officer is on duty. The officer can be told they will be disciplined if they refuse to cooperate or provide a statement. Still, before that can occur, the officer must be informed that any statement made cannot be used against the officer in any subsequent criminal investigation, according to Garrity v. New Jersey, 385 U.S. 493 (1968).
If it is a criminal investigation, KRS 15.520(5)(e) requires the officer be advised of his or her Miranda rights. KRS 15.520(5)(d) also permits agencies to require an officer to submit a written report of the alleged incident no later than the end of the subject officer's next duty date, during which the employing agency initially was made aware of the complaint.
Filing Charges
KRS 15.520(6) dictates the procedure for filing a charge. Under KRS 15.520(6), a statement of charges against an officer must be written and specify the nature and circumstances of the allegations. Statements should also refer to the rules, regulations and law allegedly violated, provide a recommended disciplinary action, be signed by a representative of the employing city or county and be served on the officer by personal service or certified mail receipt requested. The charges must also be filed with the clerk of the city or county.
Concerning a hearing, KRS 15.520(7) requires the hearing to occur before the appropriate appointing authority. KRS 15.520(7) further requires the hearing to occur within 75 days of the date an officer was suspended or the filing of written charges, whichever occurs first. All evidence, including exculpatory evidence, must be served on the officer no less than 12 days before the hearing's date. KRS 15.520(7)(k) permits the hearing to be conducted in a closed session unless the officer requests an open hearing at least 72 hours before the start of the hearing.
Agencies should also be aware of two significant provisions of KRS 15.520. First, KRS 15.520(6)(c) prohibits public statements by the employing agency or the charged officer concerning the alleged violation until the charges have been resolved. Second, KRS 15.520(10)(a) does not “limit or to in any way affect any rights previously afforded to officers of the commonwealth by statute, collective bargaining or working agreement, or legally adopted ordinance.” Accordingly, collective bargaining agreements and other statutes may provide officers with additional due process protections in disciplinary proceedings.
The Police Officer Bill of Rights is designed to establish administrative due process rights in disciplinary matters concerning officers who participate in the Kentucky Law Enforcement Foundation Program fund. It also provides a means for redress by citizens for wrongs allegedly done to them by officers.
KRS 15.520 provides the necessary balance for law enforcement agencies to investigate citizen complaints and internal complaints that involve law enforcement procedures while adhering to Fourteenth Amendment due process requirements. As always, agencies should consult with appropriate legal counsel concerning the impact and applicability of any disciplinary statute when such issues arise.
