RENDERED: OCTOBER 2, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0344-MR
CHRIS NELSON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANNIE O’CONNELL, JUDGE
ACTION NO. 23-CI-001043
CITY OF SHIVELY, KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CETRULO, A. JONES, AND TAYLOR, JUDGES.
JONES, A., JUDGE: Chris Nelson appeals from an order of the Jefferson Circuit
Court granting summary judgment to the City of Shively, Kentucky (“the City”),
on claims arising from his employment with the Shively Police Department. The
central issue on appeal is whether a police officer who has completed an initial
probationary period and is later promoted to a supervisory rank may be subject to a
separate probationary period associated with that promotion, such that the officer may be returned to his former rank without a pre-deprivation hearing if the
promotion is not successfully completed.
The parties filed cross-motions for summary judgment, agreeing that
the material facts were undisputed and that the case presented a legal question
regarding the interaction between the City’s ordinances, police department
policies, and the statutory due process protections afforded to police officers under
Kentucky law. The circuit court granted summary judgment in favor of the City,
and this appeal followed.
Having reviewed the record and being sufficiently advised, we reverse
the circuit court’s judgment in favor of the City and remand for further proceedings
consistent with this Opinion.
I. BACKGROUND
The underlying facts are not in dispute. Nelson was hired by the City
as a patrol officer for the Shively Police Department in 2013, and successfully
completed a 12-month probationary period. After nearly eight years as a patrol
officer, he was promoted to sergeant in August 2021. Pursuant to standard
operating procedures of the City, Nelson was required to complete another 12-month probationary period following his promotion. Nelson did not question or
object to the probationary period at the time of his promotion. Prior to the
expiration of the probationary period, Nelson was returned to the position of patrol
-2-officer due to what the City claimed were numerous instances of poor performance
by Nelson in the role of sergeant.
The parties filed cross-motions for summary judgment, agreeing that
no material facts were in dispute and that the case turned on a question of law. The
circuit court granted summary judgment in favor of the City, concluding that
Nelson’s promotion to sergeant was subject to a valid probationary period under
the City’s ordinances and police department policies. Further, it held that because
Nelson was returned to his prior rank during that probationary period, he did not
possess a protected property interest in the rank of sergeant and was therefore not
entitled to a pre-deprivation hearing.
Nelson now appeals. On appeal, he argues that Kentucky law permits
a police officer to be subject to only a single probationary period at the time of
initial hire, and that any additional probationary period imposed upon promotion
without due process is unlawful. He contends that, having completed his initial
probationary period, the City’s action in returning him to the rank of patrol officer
constituted a demotion requiring notice and a hearing under Kentucky law.
According to Nelson, the City’s ordinances and police department policies cannot
override the statutory due process protections afforded to police officers once they
have completed their initial probationary period.
-3-II. STANDARD OF REVIEW
This appeal is taken from an order granting summary judgment. We
review a circuit court’s grant of summary judgment de novo. Patton v. Bickford,
529 S.W.3d 717, 723 (Ky. 2016); Wolfe v. Kimmel, 681 S.W.3d 7, 12 (Ky. 2023).
Summary judgment is appropriate when “there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR1 56.03; Hill v. State Farm Mut. Auto. Ins. Co., 709 S.W.3d 232, 236–37
(Ky. 2025). Because summary judgment involves no fact-finding, we afford no
deference to the circuit court’s legal conclusions. State Auto Prop. & Cas. Co. v.
Greenville Cumberland Presbyterian Church, 706 S.W.3d 35, 43 (Ky. 2024).
III. ANALYSIS
Nelson contends that his return to the rank of patrol officer constituted
a disciplinary demotion for which he was entitled to notice and a hearing under
KRS2 15.520, KRS 95.450, and KRS 90.360, and that the City’s ordinance
establishing a probationary period upon promotion is invalid because it conflicts
with those statutes. He argues that Kentucky law permits only a single
probationary period at the time of initial hire, that he acquired the status of
“Officer” under KRS 15.520 upon completing that initial probationary period in
1
Kentucky Rules of Civil Procedure.
2
Kentucky Revised Statutes.
-4-2014, and that this status entitled him to due process protections before being
demoted from sergeant to patrol officer. According to Nelson, the City’s
ordinances and police department policies cannot override the statutory due
process protections afforded to police officers once they have completed their
initial probationary period.
The City responds that Nelson was serving in a probationary capacity
in the promoted position of sergeant pursuant to its ordinance and departmental
policies, and that none of the statutes Nelson relies upon prohibit a probationary
period upon promotion or require a hearing before returning a probationary
employee to his former rank. The City argues that KRS 90.350(9) authorizes
probationary periods for promoted employees, that Nelson had no vested property
interest in the rank of sergeant during his probationary period, and that sound
public policy supports requiring newly promoted commanding officers to complete
a probationary period before obtaining permanent status in that rank. The City
further contends that Nelson retained his property interest in his position as patrol
officer and was merely returned to that position.
Resolution of this appeal turns on the scope and interaction of the
statutory scheme governing police employment and discipline and whether the
City’s ordinance is consistent with that scheme.
-5-A. Principles of Statutory Interpretation
When engaging in statutory interpretation, our goal is to ascertain and
carry out the intent of the legislature. Mr. Roof of Louisville, LLC v. Estate of
Henry, 681 S.W.3d 115, 121 (Ky. 2023); Commonwealth v. Plowman, 86 S.W.3d
47, 49 (Ky. 2002). This directive is codified in KRS 446.080(1), which provides
that “[a]ll statutes of this state shall be liberally construed with a view to promote
their objects and carry out the intent of the legislature[.]”
We begin with the plain language of the statute. Century Aluminum of
Kentucky, GP v. Dep’t of Revenue, 664 S.W.3d 546, 557 (Ky. 2022). If the
statutory language is plain and unambiguous, the legislature’s intent is derived
from the language used, and no further construction is required. Plowman, 86
S.W.3d at 49; Hughes v. UPS Supply Chain Sols., Inc., 677 S.W.3d 273, 278 (Ky.
2023). Statutory terms are given their common and ordinary meaning unless they
are technical in nature. Maupin v. Tankersley, 540 S.W.3d 357, 359 (Ky. 2018).
Statutes must be construed as a whole, with each provision given effect, and courts
should avoid interpretations that render any part of a statute meaningless or lead to
absurd or unreasonable results. Lewis v. Jackson Energy Coop. Corp., 189 S.W.3d
87, 92 (Ky. 2005); Schoenbachler v. Minyard, 110 S.W.3d 776 (Ky. 2003);
Samons v. Kentucky Farm Bureau Mut. Ins. Co., 399 S.W.3d 425, 429 (Ky. 2013).
Related statutes addressing the same subject matter should be read together and
-6-harmonized, if possible. Kentucky Bd. of Med. Licensure v. Strauss, 558 S.W.3d
443, 448 (Ky. 2018). The rule well established in Kentucky is that when an
ordinance is in direct conflict with a statute upon the same subject, the ordinance
must yield. Reed v. Hostetler, 245 S.W.2d 953 (Ky. 1952).
B. Statutory Framework Governing Police Officer Employment and Discipline
The statutes governing police officer employment and discipline in
Kentucky form a layered framework. We begin with the threshold question of
which statutes apply to the Shively Police Department and under what
circumstances.
1. General Rule: Civil Service Provisions and Police Departments
KRS Chapter 90 is entitled “City Civil Service” and applies to cities
of the Home Rule Class, including the City of Shively.3 By default, however, the
civil service provisions found in KRS 90.310 to 90.410 do not apply to police and
fire departments. KRS 90.300(2) provides: “The provisions of KRS 90.310 to
90.410 are independent of and do not affect the laws governing the police and fire
departments, nor their pension funds, as provided in KRS Chapter 95.”
Despite this general rule of independence, Kentucky law permits cities
to elect to apply civil service provisions to their police and fire departments.
3
The City’s official website indicates it is “[a] Home Rule Agency as defined by KRS 95.450.” https://shivelyky.gov/government/new-ordinances/Audit/Financial Statements & New Ordinances - City Of Shively (last visited Dec. 19, 2025).
-7-Shively has exercised this option. City of Shively Ordinance §35.35 provides:
“The city has elected to establish and maintain a Civil Service Commission for the
Police and Fire Departments and hereby elects to operate the civil service system
under the provisions of KRS 90.310 through 90.400.”
Accordingly, by virtue of the City’s election, the civil service statutes
apply to Shively police officers. These include KRS 90.350 (governing
appointments and probationary periods) and KRS 90.360 (governing dismissals,
suspensions, and reductions in grade).
2. The Police Officer’s Bill of Rights
In addition to the civil service statutes, Shively police officers are also
subject to KRS 15.520, commonly known as the “Police Officer’s Bill of Rights.”
The City participates in the Law Enforcement Foundation Program Fund, as
evidenced by Ordinance §35.06. This triggers the applicability of KRS 15.520.
See KRS 15.440; Pearce v. University of Louisville, 448 S.W.3d 746, 749 (Ky.
2018).
KRS 15.520(2) states its legislative purpose as follows:
In order to establish a minimum system of professional
conduct for officers of local units of government of this
Commonwealth, the following standards are stated as the
intention of the General Assembly to deal fairly and
establish administrative due process rights in certain
disciplinary matters concerning those officers of an
employing unit of government that participates in the
Kentucky Law Enforcement Foundation Program fund
-8-administered pursuant to KRS 15.430 and, at the same
time, to provide a means for redress by the citizens of the
Commonwealth for wrongs allegedly done to them by
officers covered by this section.
This statute thus creates procedural protections designed to ensure fair treatment of
police officers while maintaining accountability to the public.
3. KRS 15.520(9): The Bifurcated Framework for Disciplinary
Actions
Critically, KRS 15.520 does not apply uniformly to all disciplinary
actions. Rather, KRS 15.520(9) creates a bifurcated framework, establishing two
distinct categories of discipline with different procedural requirements:
The provisions of KRS 90.310 to 90.410, 95.450, and
95.765 shall not apply in any proposed disciplinary
action arising from a citizen complaint made under
subsection (3) of this section or arising from any
allegation of conduct that would constitute a violation of
law enforcement procedures under subsection (4) of this
section. This section shall not be interpreted or construed
to alter or impair any of the substantive rights provided to
a city police officer under KRS 90.310 to 90.410, 95.450,
and 95.765 for any proposed disciplinary action or other
matters not arising under subsections (3) and (4) of this
section, including proposed actions involving alleged
violations of general employment policies. To the extent
that the provisions of this section are inapplicable to any
proposed disciplinary action against a city police officer,
the provisions of KRS 90.310 to 90.410, 95.450, and
95.765 shall remain in full force and effect.
-9-This subsection provides that when disciplinary action arises from (1)
a citizen complaint under subsection (3), or (2) an allegation of conduct
constituting a violation of law enforcement procedures under subsection (4),4 KRS
15.520 applies exclusively, and the civil service statutes (KRS 90.310 to 90.410)
and KRS 95.450 do not apply.
Conversely, for disciplinary actions that do not arise from citizen
complaints or law enforcement procedure violations—such as violations of
“general employment policies”—the civil service statutes do apply, and KRS
15.520 does not govern those matters. Schell v. Young, 640 S.W.3d 24, 41 (Ky.
4
This subsection provides:
(a) When an officer is accused of an act or omission that would constitute a
violation of law enforcement procedures by any individual within the law
enforcement agency employing the officer, including supervisors and elected or
appointed officials of the officer’s employing agency, the employing agency shall
conform the conduct of any investigation to the provisions of subsection (5) of
this section, shall formally charge the officer in accordance with subsection (6) of
this section, and shall conduct a hearing in accordance with subsection (7) of this
section before any disciplinary action shall be taken against the officer.
(b) The provisions of this subsection shall not prevent the employing agency from
suspending the officer, with or without pay, during an investigation and pending
the final disposition of any formal charges, except that an officer suspended
without pay shall be entitled to full back pay and benefits for the regular hours he
or she would have worked if no formal charges are brought or the hearing
authority finds the officer not guilty of the charges.
(c) An employing agency shall not be required to follow the provisions of this
section in addressing conduct by the officer that would constitute a violation of
the general employment policies of the employing agency.
KRS 15.520(4).
-10-App. 2021). The statute’s second sentence makes this explicit by preserving the
“substantive rights provided to a city police officer under KRS 90.310 to 90.410,
95.450, and 95.765 for any proposed disciplinary action or other matters not
arising under subsections (3) and (4).” Id.
KRS 15.520(1)(f) defines “law enforcement procedures” as:
only those policies, rules, and customs that:
1. Are specific to the conduct of officers in the exercise
of law enforcement powers and functions, including,
without limitation: use of force, conduct in the course of
pursuits, conduct during stops or detentions of citizens,
conduct in the course of interacting with, assisting, or
questioning of citizens, and investigative conduct;
2. Are carried out in the course of peace officer
functions;
3. Are not general employment policies; and
4. May exist in either written form or in the form of
unwritten standards, practices, or protocols generally
accepted and applied in the law enforcement
profession[.]
In contrast, KRS 15.520(1)(d) defines “general employment policies” as:
[T]he rules, regulations, policies, and procedures
commonly applicable to the general workforce or
civilian employees that 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[.]
-11-4. KRS 95.450: Discipline of Police and Fire Department
Members
KRS 95.450 also governs disciplinary actions against police officers
in certain cities. Shively is included in the Department for Local Government
registry referenced in KRS 95.450(9), and therefore, this statute applies to Shively
police officers. The statute provides, in relevant part:
Except as provided in subsection (6) of this section no
member of the police or fire department in cities listed on
the registry pursuant to subsection (9) of this section or
an urban-county government shall be reprimanded in
writing, dismissed, suspended, or reduced in grade or pay
for any reason except inefficiency, misconduct,
insubordination, or violation of law or of the rules
adopted by the legislative body, and only after charges
are preferred and a hearing conducted as provided in this
section.
KRS 95.450(2).
Significantly, KRS 95.450 contains its own relationship provision to
KRS 15.520: “This section shall only apply to a member of the police department
when the provisions of KRS 15.520 do not apply.” KRS 95.450(1)(b). Thus, KRS
95.450 operates as a backstop: it applies when KRS 15.520 does not.
5. Summary of the Statutory Framework
In summary, multiple statutes potentially apply to disciplinary actions
against Shively police officers:
-12-• KRS 15.520 applies to disciplinary actions arising from citizen
complaints or violations of law enforcement procedures;
• KRS 90.310 to 90.410 (including KRS 90.350 and 90.360)
apply to other disciplinary actions not covered by KRS 15.520, by virtue of
Shively’s election to adopt civil service for its police department; and
• KRS 95.450 applies when KRS 15.520 does not apply.
Which statutes govern a particular disciplinary action depends on the
nature of the conduct giving rise to the discipline. This framework is critical to
resolving the present case.
C. Interpretation of KRS 15.520
Having established the statutory framework, we turn to the
interpretation of KRS 15.520’s key provisions.
KRS 15.520(1)(h) defines “Officer” as:
[A] person employed as a full-time peace officer by a
unit of government that receives funds under KRS 15.410
to 15.510, except a state officer listed in KRS
15.420(2)(a)2.b. to f. and n., who has completed any
officially established initial probationary period of
employment lasting no longer than twelve (12) months
not including, unless otherwise specified by the
employing agency, any time the officer was employed
and completing the basic training required by KRS
15.404.
Id. (emphasis added). The critical term in this definition is “initial.”
-13-We give statutory terms their common and ordinary meaning.
Maupin, 540 S.W.3d at 359. “Initial” is defined as: “of or relating to the
beginning” and “placed at the beginning: first.” Initial, MERRIAM-WEBSTER.COM
DICTIONARY, https://www.merriam-webster.com/dictionary/initial (last visited
Aug. 7, 2026). The plain meaning of “initial” signifies a one-time event at the
beginning of employment, not a recurring condition. The legislature’s choice of
this word indicates that a police officer completes one probationary period at the
outset of employment, and thereafter possesses the rights afforded to “Officers”
under KRS 15.520. Had the legislature intended for officers to be subject to
multiple probationary periods—such as upon each promotion—it could have used
different language, such as “each applicable probationary period” or “who is not
currently in probationary status.” It did not. The statute asks a backward-looking
question: Has this person “completed” an “initial probationary period”? If the
answer is yes, the person is an “Officer” entitled to the protections of KRS 15.520.
The legislature’s use of the term “initial probationary period” in
defining “Officer” reflects a deliberate policy choice. Once a police officer has
demonstrated basic competence and fitness by successfully completing the initial
probationary period, that officer acquires a professional status that warrants
procedural protections. This makes sense for several reasons.
-14-First, “Officer” under KRS 15.520 is best understood as a professional
status, not a rank. Like a licensed attorney, a certified teacher, or a board-certified
physician, an “Officer” is someone who has met certain threshold qualifications
and is entitled to certain protections. The status does not change based on the
officer’s current rank or position within the department.
Second, disciplinary actions against police officers create permanent
records that have consequences far beyond the immediate employment decision. A
finding that an officer violated department policies—particularly policies
governing law enforcement procedures such as interaction with crime victims and
investigative conduct—becomes part of that officer’s permanent employment
record. Such findings can affect future employment opportunities with other law
enforcement agencies, impact professional reputation within the law enforcement
community, affect pension eligibility, influence certification or licensing decisions
by the Kentucky Law Enforcement Council, and potentially be used against the
officer in civil litigation or criminal proceedings.
Because of these far-reaching consequences, KRS 15.520 ensures that
officers have an opportunity to contest the factual findings and legal conclusions
underlying disciplinary actions before such findings become permanent. The
hearing requirements serve not only to protect the officer’s immediate employment
-15-interests but also to ensure the accuracy and fairness of determinations that will
follow the officer throughout his or her career.
It is undisputed that Nelson was hired as a patrol officer in October
2013 and completed a 12-month probationary period in October 2014. He is
therefore an “Officer” within the meaning of KRS 15.520(1)(h).
KRS 15.520(1)(c) defines “Disciplinary action” as: “termination,
demotion, a decrease in pay or grade, suspension without pay, and a written
reprimand[.]” (Emphasis added.)
Nelson’s return to the rank of patrol officer after having been elevated
to the rank of sergeant constitutes a “demotion”—a decrease in grade. The City
characterizes this action as “reinstatement to his former rank” or a determination
that Nelson did not complete his probationary period as sergeant. But substance
controls over form. The objective effect of the City’s action was to reduce Nelson
from a higher rank (sergeant) to a lower rank (patrol officer). This is a demotion
under the plain language of the statute, regardless of how the City chooses to
characterize it.
KRS 15.520(7) establishes the procedural requirements when
disciplinary action is taken against an officer. Subsection (7)(h) provides:
Unless waived by the charged officer in writing, a
hearing shall be conducted by the officer’s appointing
authority to determine whether there is substantial
evidence to prove the charges and to determine what, if
-16-any, disciplinary action shall be taken if substantial
evidence does exist.
Id.
The statute uses the mandatory term “shall,” indicating that a hearing
is required, not discretionary. The statute further specifies the minimum due
process rights that must be afforded, including at least twelve days’ written notice,
the right to counsel, the right to cross-examine witnesses, and the right to present
evidence. KRS 15.520(7)(a)-(g).
D. Application of KRS 15.520(9) to Nelson’s Demotion
Having interpreted the key provisions of KRS 15.520, we must
determine which statutory framework applies to Nelson’s demotion under the
bifurcated structure established by KRS 15.520(9).
According to the City, Nelson was returned to patrol officer status due
to substantial performance deficiencies during his probationary sergeant period,
including unacceptable ratings in multiple critical areas (attendance, attitude,
judgment, decision-making, and knowledge), a failure to properly supervise that
compromised a homicide crime scene, and policy violations stemming from an
Internal Affairs investigation where he used profane language toward an assault
victim, acted unprofessionally, failed to investigate properly, and did not file a
required report.
-17-KRS 15.520(1)(f) defines “law enforcement procedures” to include
policies that “[a]re specific to the conduct of officers in the exercise of law
enforcement powers and functions, including, without limitation: use of force,
conduct in the course of pursuits, conduct during stops or detentions of citizens,
conduct in the course of interacting with, assisting, or questioning of citizens, and
investigative conduct[.]” KRS 15.520(1)(f)1. (emphasis added).
The conduct identified in the Internal Affairs investigation—using
profane language toward a crime victim, acting unprofessionally toward a victim,
failing to investigate to identify suspects, and failing to write an incident report—
involves core law enforcement functions. These are not matters of general
workplace conduct applicable to all City employees. They are specific to the
exercise of peace officer authority and law enforcement responsibilities, and fall
squarely within KRS 15.520(1)(f)’s definition of “law enforcement procedures.”
The alleged violations concern how Nelson, as a peace officer, interacted with a
citizen who reported an assault and how he conducted (or failed to conduct) the
investigation of that reported crime. These are matters “carried out in the course of
peace officer functions” and are not “general employment policies.” See KRS
15.520(1)(f)2.-3.
-18-Because Nelson’s demotion arose, at least in part, from an allegation
of conduct constituting a violation of law enforcement procedures under KRS
15.520(4), the first sentence of KRS 15.520(9) applies:
The provisions of KRS 90.310 to 90.410, 95.450, and
95.765 shall not apply in any proposed disciplinary
action arising from a citizen complaint made under
subsection (3) of this section or arising from any
allegation of conduct that would constitute a violation of
law enforcement procedures under subsection (4) of this
section.
The statute is unambiguous: When a disciplinary action arises from a
violation of law enforcement procedures, the civil service statutes (KRS 90.310 to
90.410, which include KRS 90.350) and KRS 95.450 “shall not apply.” Only KRS
15.520 governs such disciplinary actions.
This has critical implications for the City’s defense. The City relies
heavily on KRS 90.350(9) to justify its imposition of a probationary period upon
Nelson’s promotion to sergeant. But KRS 90.350 is within the range of statutes—
KRS 90.310 to 90.410—that KRS 15.520(9) expressly excludes from application
when the disciplinary action arises from violations of law enforcement procedures.
Because the Internal Affairs investigation found that Nelson violated
department policies governing interaction with crime victims and investigative
conduct—matters that constitute “law enforcement procedures” under KRS
15.520(1)(f)—and because Nelson’s demotion was based at least in part on these
-19-findings, KRS 90.350 does not apply to this disciplinary action. Consequently, the
City cannot invoke KRS 90.350(9) to establish a probationary period that
eliminates Nelson’s hearing rights under KRS 15.520.
E. The City’s Ordinance and Policy Cannot Override KRS 15.520
It is well established in Kentucky that when an ordinance is in direct
conflict with a statute upon the same subject, the ordinance must yield. Reed, 245
S.W.2d at 953. A city ordinance or policy cannot override state statutory
requirements.
Shively Police Department Policy 400.50 provides:
Policy
The probationary period shall be an essential part of the
staffing process and shall be utilized for the most
effective adjustment of new employees and for the
retention only of those employees whose performance
meets the required standards of performance and
professionalism.
As prescribed by K.R.S. 90.350(90), the probationary
period shall be twelve (12) months, after which regular
appointments shall be given to all probationary
employees who are deemed to be satisfactory by the
respective appointing authority.
Probationary period for newly promoted staff
The probationary period for newly promoted command
positions, such as sergeants, shall also be (12) twelve
months.
-20-If at any time during the probationary period, the Chief of
Police determines that the services of an employee are
unsatisfactory, the employee may be separated from his
position with or without reasons for the separation.
Policy 400.50 seeks to eliminate the hearing requirement established
by state statute. This it cannot do. To the extent that Policy 400.50 purports to
authorize demotion of an “Officer” without a hearing in circumstances where KRS
15.520 applies, the policy is invalid and unenforceable.
F. The City’s Arguments
The City raises several arguments in defense of the circuit court’s
judgment. We address each in turn.
The City argues that Nelson had a vested property interest in his
position as patrol officer, which he retained upon demotion, but had no such
interest in the rank of sergeant during his probationary period. The City relies on
cases such as Louisville Professional Fire Fighters Association v. City of
Louisville, 508 S.W.2d 42 (Ky. 1974), which held that a firefighter’s promotion
was “based not upon right, but upon privilege[,]” and therefore the city could
demote him without violating his rights. This argument fails for two reasons.
First, the analysis is misplaced. This case does not present a
constitutional due process question requiring us to determine whether Nelson
possessed a “property interest” that would trigger Fourteenth Amendment
protections. Rather, this is a case of statutory interpretation. The question is not
-21-whether the federal or state constitution requires a hearing, but whether KRS
15.520 requires a hearing. The statute itself creates the procedural right to a
hearing for “Officers” facing “disciplinary action.” We need not engage in a
separate property interest analysis when the statute expressly confers the right.
Second, Louisville Professional Fire Fighters was decided in 1974,
six years before the enactment of KRS 15.520 in 1980. It reflects the common law
rule that existed prior to the statute. But the General Assembly, by enacting KRS
15.520, changed that common law rule. The legislature created statutory due
process protections for police officers, establishing “administrative due process
rights” and a “minimum system of professional conduct.” KRS 15.520(2). Prestatutory common law cases do not control when the legislature has subsequently
enacted a statute addressing the same subject matter.
The City’s next argument is that KRS 90.350(9) authorizes
probationary periods for promoted employees. However, the statutory language
belies this assertion. This subsection provides:
The appointing authority may provide that all
appointments for initial permanent employment may be
probationary appointments for a period of not more than
twelve (12) months, after which probationary period
regular appointments shall be given to all probationary
employees who are deemed to be satisfactory by the
respective appointing authority.
-22-Id. (emphasis added). As previously explained, use of the term “initial” suggests
that an employee should not be subjected to successive probationary terms.
Moreover, even assuming KRS 90.350(9) would otherwise authorize a
probationary period upon promotion, the statute does not apply here because of
KRS 15.520(9). As explained above, KRS 15.520(9) provides that “the provisions
of KRS 90.310 to 90.410 . . . shall not apply in any proposed disciplinary action
arising from . . . any allegation of conduct that would constitute a violation of law
enforcement procedures.” Because Nelson’s demotion arose, at least in part, from
an Internal Affairs investigation that concluded he violated law enforcement
procedures, KRS 90.350 is excluded from application by operation of KRS
15.520(9).
Moreover, even if KRS 90.350(9) did apply, the statute does not say
that promoted employees may be demoted without a hearing. It refers only to an
initial probation of not more than twelve months. The statute does not specify the
consequences of that probationary period or create an exception to the hearing
requirements found in other statutes. When multiple statutes address the same
subject matter, they must be read together and harmonized. Kentucky Bd. of Med.
Licensure, 558 S.W.3d at 448. Reading KRS 90.350(9) together with KRS 15.520
(and, in cases where KRS 15.520 does not apply, with KRS 90.360 and KRS
95.450), the statutes can be harmonized as follows: Promoted employees may be
-23-evaluated during a probationary period, but if they are to be demoted—a form of
disciplinary action—a hearing is still required under the applicable statute.
The City cites Bunch v. Personnel Board Commonwealth of Kentucky,
719 S.W.2d 8 (Ky. App. 1986), arguing that the case supports probationary periods
when an employee takes on a different job with different responsibilities.
The City’s reliance on Bunch is misplaced. In that case, a state park
employee who had been working full-time hours as a part-time employee was
formally reclassified as a full-time employee and placed on a new probationary
period. This Court acknowledged that “the probationary period is necessary in
order to gauge a new employee’s ability to adequately perform a job” and that this
rationale holds true “when a new employee is hired or a present employee is
transferred to perform a different job than he had done previously[.]” Id. at 9-10.
However—and critically—this Court rejected the second probationary
period as invalid. We held that because the employee had already been performing
the same duties for years, and because the statute authorized only a probationary
period for “initial permanent employment,” the second probationary period was
arbitrary and capricious. Id. The case stands for the proposition that a
probationary period is valid only if authorized by statute, and that an employer
cannot impose additional probationary periods beyond what the statute permits.
-24-Applying Bunch to this case supports Nelson’s position, not the
City’s. KRS 15.520(1)(h) defines “Officer” based on completion of an “initial
probationary period”—singular, at the beginning of employment. Nothing in the
statute authorizes additional probationary periods upon promotion. And as
explained above, KRS 90.350(9)—the statute the City relies upon—does not apply
here because of KRS 15.520(9)’s exclusion.
The City also relies on Throneberry v. City of Audubon Park, No.
2007-CA-001033-MR, 2008 WL 4530917 (Ky. App. Oct. 10, 2008). That case
involved an officer who had been employed part-time and was then hired fulltime—a new hiring for full-time employment. The probationary period was
properly characterized as part of his initial full-time employment. Here, by
contrast, Nelson was hired as a full-time patrol officer in 2013, completed his
initial probationary period in 2014, and was promoted within that same full-time
employment in 2021. His promotion to sergeant was not a new hiring; it was an
advancement within his existing full-time employment. Throneberry does not
address the question presented here.
We do not dispute that sergeant is a different position with different
responsibilities. The question, however, is not whether a probationary evaluation
makes practical sense, but whether the statute authorizes demotion without a
hearing during such a probationary period. Policy arguments, however persuasive,
-25-cannot override statutory text. If the legislature had intended to create an
exception to the hearing requirement for officers in promoted positions, it could
have done so explicitly. It did not. Our role is to interpret the statutes as written,
not to rewrite them based on policy preferences.
The City argues, citing Rottinghaus v. Board of Commissioners of
City of Covington, 603 S.W.2d 487 (Ky. App. 1979), that public policy favors
allowing cities to evaluate commanding officers without “too much red tape.”
Rottinghaus addressed the initial hiring of police officers and the necessity of an
initial probationary period to evaluate new hires. The Court recognized that
“[h]iring a police officer must be viewed differently from hiring any other city
employee” and that “[n]o amount of pre-employment interviewing, testing, or postemployment history will satisfactorily show ability in the field.” Id. at 489. The
Court concluded it was “sound public policy to give broad powers to determine
eligibility of appointees to serve as police officers.” Id.
Rottinghaus, like Louisville Professional Fire Fighters, was decided
before the enactment of KRS 15.520 and reflects the common law that existed at
that time. More importantly, Rottinghaus addressed the initial hiring of officers,
not the demotion of officers who have already completed their initial probationary
period and achieved “Officer” status under KRS 15.520.
-26-The City’s public policy argument also overlooks an important point:
requiring a hearing does not prevent the City from demoting Nelson. It merely
requires that the City afford him due process—notice, an opportunity to respond,
and a fair hearing—before doing so. KRS 15.520 strikes a balance: it protects
officers from arbitrary action while preserving the City’s authority to take
disciplinary action when justified. The City retains full authority to demote
officers who are not performing adequately in promoted positions; it simply must
provide a hearing first.
IV. CONCLUSION
For the foregoing reasons, we conclude that Nelson, having completed
his initial probationary period in 2014, is an “Officer” within the meaning of KRS
15.520(1)(h), and that his demotion from sergeant to patrol officer constituted
“disciplinary action” within the meaning of KRS 15.520(1)(c). Because his
demotion arose, at least in part, from violations of law enforcement procedures,
KRS 15.520 applies exclusively, and KRS 15.520(7)(h) required the City to
conduct a hearing before demoting him. The City did not conduct such a hearing.
The circuit court therefore erred in granting summary judgment to the City. The
judgment of the Jefferson Circuit Court is REVERSED, and this matter is
REMANDED for further proceedings consistent with this Opinion.
ALL CONCUR.
-27-BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Garry R. Adams Matthew A. Piekarski
Louisville, Kentucky John F. Parker, Jr.
Sean Ragland
Louisville, Kentucky
-28-