[1996/oagheade.htm]

OAG 96-3

January 17, 1996

Subject: Constitutionality of a Local Government Suspending an Employee With Pay During an Inquiry.

Written by: Gerard Gerhard

Requested by: Bruce Ferguson, Commissioner, Department of Local Government

Syllabus: A local government may suspend an employee with pay, without offending sections 3 and 171 of the Constitution of Kentucky. To minimize the possibility of an assertion that such action is unlawful, we believe a governmental agency should have a uniformly applied written policy in such regard. In our view the policy must provide, at a minimum, 1) that such suspension will be utilized only where justified from a public policy perspective, 2) that the term of suspension may not exceed such time as is reasonably required for appropriate investigation and resolution of the circumstances justifying the suspension, and 3) that within a reasonable time following imposition of the suspension, the employee must be either returned to active service, or the employee's pay lawfully terminated.

OAGs cited: 84-2.

Statutes construed: KRS 15.520(1)(b); 15.520(1)(d); 68.005(1)(c); 83A.070(3); 95.450(5).

Constitutional provisions cited: Sections 2, 3, and 171.

OPINION OF THE ATTORNEY GENERAL

The following question, in substance, has been presented:

Given Section 3 of the Constitution of Kentucky, banning exclusive separate public emoluments except in consideration of public services, may a local government lawfully suspend an employee with pay while an investigation into alleged wrongdoing is being conducted?

Findings in Brief

In our view, a local government may suspend an employee with pay, without offending sections 3 and 171 of the Constitution of Kentucky, if it does so in accordance with a uniformly applied written policy, providing, among other things, that such leave will only be utilized where justified from a public policy perspective, and that such leave does not exceed a reasonable period of time necessary to determine either that the employee should be returned to active service, or that the employee's pay may be lawfully terminated.

Section 3 of the Constitution of Kentucky

Section 3 of the Constitution of Kentucky provides:

All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services; but no property shall be exempt from taxation except as provided in this Constitution, and every grant of a franchise, privilege or exemption, shall remain subject to revocation, alteration or amendment.

Public Purpose as Affecting Suspension With Pay

In Barnes v. Adams, Ky., 305 S.W. 2d 754 (1957), Kentucky's then highest court reversed a lower court ruling authorizing a state employee to receive leave with pay while attending school. The Court indicated:

We must reverse the judgment because sections 3 and 171 of our State Constitution prohibit the expenditure of public funds for private purposes. We conclude that Joan Adams would be benefitted by her attendance at school. Nevertheless, the benefit the people of this Commonwealth would reap from this particular venture would be so remote it would be unreasonable to hold that the expenditure is for a “public purpose” within the meaning of sections 3 and 171 of our Constitution.

The question here, of course, does not involve “leave with pay” for a private purpose such as obtaining education, but the legal considerations are comparable: May a governmental unit lawfully pay an employee's salary when the employee is not actively performing services for the government, as might be said to be the case where an employee is under suspension?

Several provisions of Kentucky's statutes make specific reference to suspension with pay. KRS 15.520(1)(b) and (d) recognize that leave with pay may be imposed in relation to certain police officers. KRS 95.450(5) recognizes such procedure in relation to members of police or fire departments in cities of the second and third classes or urban county governments. See Opinion of the Attorney (OAG) 84-2 (copy enclosed).

The suspension addressed here is one imposed upon an employee by the governmental unit prior to a determination of an employee's culpability in connection with some matter or matters for which an employee might be penalized. Indeed, such culpability might not be present. Such a suspension is understood to be levied for a limited period of time, with the employee remaining subject to immediate reinstatement or recall to active service during the period. Such suspension may be viewed as necessary to assure public confidence in governmental oversight of the actions of governmental employees, when an event or events raise questions, or, as necessary to assure that the presence of an employee will not interfere with the conduct of an inquiry.

In our view, from a legal perspective, a governmental employee, against whom the employing unit imposes a suspension with pay prior to a determination of culpability for which an employee might be penalized, is performing public services during such suspension. Those services are: (1) The employee is acting at the direction of the governmental unit in furtherance of a legitimate governmental purpose, and, (2) the employee must remain available for immediate recall or return to active service. In such circumstance we do not believe a suspension with pay would be violative of either section 3 or section 171 of the Constitution of Kentucky.

Barnes Case (above) Distinguished

Unlike the circumstance in Barnes (above), there is a relatively direct benefit to the public where a governmental agency, through a suspension with pay procedure, has a mechanism to aid in promptly addressing circumstances where questions have been raised about the actions of governmental employees, while at the same time, the morale of public employees is protected against the damage that might result from the possibility of their penalization without a determination of culpability.

Written Policy Should be in Place

We believe that a governmental unit which utilizes a suspension with pay procedure should have a written policy in such regard. This is necessary, in our view, to minimize the likelihood of an assertion that such action is arbitrary, in violation of section 2 of Kentucky's Constitution, is violative of sections 3 and 171 as discussed above, or is otherwise unlawful as without legal basis. Kentucky's statutes envision that cities and counties will have written policies regarding personnel matters. See, for example, KRS 83A.070(3) (city personnel plan), and, KRS 68.005(1)(c) (county administrative code/personnel administration). And see, OAG 84-2. In our view, a written policy concerning suspension with pay should contain, at a minimum, provisions assuring: (1) that such suspension will be levied only under circumstances where there is a justifiable need for it (see the discussion above); (2) that it will be imposed for a period not to exceed a reasonable time necessary to determine whether the employee should be returned to active service or that the employee's pay may be lawfully terminated; (3) the policy is uniformly applied; (4) an employee so suspended shall remain available to immediate recall to active service; and, (5) there is proper administrative approval and documentation of action taken.

A.B. CHANDLER III

ATTORNEY GENERAL

GERARD R. GERHARD

ASSISTANT ATTORNEY GENERAL