Wilson v. Bureau of State Police

669 S.W.2d 18, 1984 Ky. App. LEXIS 490
CourtCourt of Appeals of Kentucky
DecidedFebruary 24, 1984
StatusPublished
Cited by4 cases

This text of 669 S.W.2d 18 (Wilson v. Bureau of State Police) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Bureau of State Police, 669 S.W.2d 18, 1984 Ky. App. LEXIS 490 (Ky. Ct. App. 1984).

Opinion

GUDGEL, Judge:

This is an appeal from an order entered by the Franklin Circuit Court in consolidated appeals which stemmed from an order entered by the State Personnel Board (board) in a disciplinary proceeding. The board modified the penalty assessed by the appointing agency from outright dismissal to a 30-day suspension without pay. Appellant, the disciplined employee, contends that the circuit court erred in failing to set aside the order disciplining him and in failing to award him back pay, costs and attorney’s fees. We disagree with his contentions. However, because the court made none of the specific findings required by KRS 18A.100(5), no statutory basis existed for the court to order this case remanded to the board. Therefore, we affirm so much of the court’s order as finds that appellant’s suspension was justified and reverse the portion which remands this case to the board. The net effect of our decision is to affirm the board’s order in all respects.

In April, 1982, appellant, a vehicle enforcement officer, received a written administrative order from appellee, the Bureau of State Police, which directed him not to issue any traffic tickets to the operators of vehicles other than those defined by law as private or for-hire carriers. This order effectively rescinded an earlier order which had permitted him to write such tickets. On April 27, appellant intentionally violated the order by issuing a speeding ticket to the driver of a private passenger automobile.

On May 6, 1982, the commissioner of State Police notified appellant that he would be dismissed from employment on May 20 for three reasons: unsatisfactory job performance, insubordination, and conduct unbecoming an officer. He appealed to the State Personnel Board, and the matter was assigned for an evidentiary hearing before a hearing officer. On September 17, 1982, the hearing officer filed Findings of Fact, Conclusions of Law and a Recommended Order. The hearing officer recommended that appellant’s dismissal be set aside and that he be reinstated to a like position with back pay. Exceptions to the hearing officer’s findings and recommended order were filed, and thereupon the board, at its meeting of October 15, entered a final order. In that order, the board affirmed all the findings of fact of the hearing officer but declined to adopt his recommended order. Instead, the board found that appellant’s conduct did not justify dismissal but did justify the imposition of a suspension without pay. Therefore, the board ordered appellant suspended without pay for 30 days but also ordered that he be reinstated to his former or a like position. Neither party was satisfied with the board’s decision, and each perfected an appeal to the Franklin Circuit Court. The appeals were consolidated for [20]*20hearing. Appellant argued that the board erred because it failed to reinstate him without penalty and award full back pay, costs, and attorney’s fees. Appellee argued that the board erred in failing to affirm its decision to dismiss him.

In the proceedings below, appellant maintained that KRS 281.765 imposed an absolute duty on him to enforce the traffic laws against the operators of all vehicles so that, if he knowingly failed to do so, he could be prosecuted under KRS 522.030 for the offense of misconduct in the second degree. Hence, he urged that the administrative order which limited his right to issue traffic tickets was invalid because it compelled him to ignore his statutory duty and therefore that he was not required to obey it. Appellee, on the other hand, argued that KRS 281.770, not KRS 281.765, governed the scope of appellant’s duties as a vehicle enforcement officer. The latter statute would authorize appellant only to enforce the provisions of KRS 281 (the chapter of the Kentucky Revised Statutes relating to motor carriers) and “all the statutes and regulations relating to motor vehicles operated as private or for-hire carriers.” KRS 281.770(1). The hearing officer found that appellant’s duties were governed by the provisions of KRS 281.765 and thus concluded that the commissioner’s April, 1982 administrative order was illegal. Although the board agreed with this finding of the hearing officer, it nevertheless concluded that some disciplinary action was justified. The circuit court found that KRS 281.770, not 281.765, is applicable to appellant. The court, therefore, found that the commissioner’s administrative order was legal and remanded the case to the personnel board with directions to enter an order in conformance with this view. This appeal followed.

The critical issue is which statute governs the scope of appellant’s duties to enforce the traffic laws: KRS 281.765 or KRS 281.770, In order to resolve this issue, we must determine the legislative intent embodied in these statutes.

The predecessors to the present KRS 281.765 and 281.770 were enacted simultaneously in 1950. KRS 281.765 conferred powers and imposed duties on several different types of law enforcement officers enumerated in that statute. KRS 281.770 provided that “in addition to all other enforcement agencies” the Departments of Transportation and Revenue were authorized to issue commissions to their employees as law enforcement officers “and such employees when so commissioned shall have all the powers of peace officers in respect to the enforcement of this chapter and all the statutes relating to motor vehicles.”

At the time KRS 281.770 was enacted, the legislature must be presumed to have been cognizant of KRS 281.765. Cook v. Ward, Ky., 381 S.W.2d 168 (1964). As enacted, KRS 281.765 not only conferred powers on law enforcement officers but also imposed duties on them. KRS 281.770, however, only conferred enforcement powers. It did not impose any duties.

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Cite This Page — Counsel Stack

Bluebook (online)
669 S.W.2d 18, 1984 Ky. App. LEXIS 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-bureau-of-state-police-kyctapp-1984.