Request By:
Mr. Tom Back
214 Shrewsberry Street
Monticello, Kentucky 42635
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Recently, you write, the city of Monticello [4th class city, with councilmanic government] created by ordinance the position of police commissioner. The city already had a chief of police and still does. As a taxpayer of the city of Monticello you ask if this was legal.
Under KRS 95.720 the city legislative body in a fourth class city may appoint a chief of police or provide for his election. In a fourth class city the chief of police is second in command to the mayor. KRS 95.730(1). While he has charge of the police, he and his policemen serve under the mayor. In this situation, there is no statutorily authorized offical to have command over the police department except the mayor and chief of police. Thus the attempted creating of the police commissioner post and the filling of the position were both illegal. Monticello, like all Kentucky cities, possesses only such powers as are expressly granted by the constitution and statutes of Kentucky, plus such powers as are necessarily implied or incident to expressly granted powers, and which are indispensable to enable the municipality to carry out its declared objects, purposes, and expressed powers. Griffin v. City of Paducah, Ky., 382 S.W.2d 402 (1964) 404. In the Griffin case the court held that under KRS 89.580 the city of Paducah [2nd class city] had the authority to create the position of Director Public Safety. Here there is no comparable statute giving fourth class cities the authority to create the post in question.
In conclusion, it is our opinion that the city council had no statutory authority to create the position in question. Thus the ordinance, and the filling of the position, is a nullity.