Request By:
Mr. Brad Hughes
Director of News
Radio Stations WKCT and WDNS-FM
P.O. Box 930
Bowling Green, Kentucky 42101Whayne C. Priest, Jr., Esq.
City Solicitor for Bowling Green
1110 College Street
P.O. Box 449
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to your letters concerning whether the City of Bowling Green, a city of the second class operating under the city manager form of government, is required to appoint an auditor pursuant to KRS 92.080. At the present time the city has not appointed such an officer although it has created a Finance Department which has auditing responsibilities, headed by a Director of Finance who is subject to the supervision of the city manager.
Mr. Hughes only asks whether such an appointment is required. Mr. Priest maintains that a second class city operating under the city manager form of government (KRS 89.390 to 89.990) is not required to appoint an auditor and that such an appointment would be inconsistent with the statutory provisions applicable to a city operating under the city manager form of government. He cites KRS 92.010, 89.390, 89.400, 89.420 and 89.580 in support of his contentions.
KRS 92.080 provides in part that the mayor of each city of the second class shall appoint an auditor who shall serve at the pleasure of the mayor. KRS 92.090 sets forth the auditor's duties, including the provision that he shall be the general accountant of the city and shall exercise a general superintendence over the fiscal affairs of the city, including the collection and disbursement of funds and the protection and disposition of city property and claims.
KRS 92.010 states:
"The provisions of this chapter shall apply to cities operating under the commission or city manager form of government to the extent that such provisions do not conflict with the statutes providing for those forms of government. When any officer or employe is provided to be elected or appointed by the provisions of this chapter, he shall not be elected or appointed in those cities operating under the commission or city manager form of government unless the statutes providing for those forms of government so contemplate, and the duties and functions imposed by this chapter upon such officer or employe, or upon any city department, shall be performed by the appropriate department, officer or employe provided for under those forms of government."
KRS 89.400 provides in part that all laws applicable to cities of the second class and not inconsistent with the provisions relating to the city manager form of government shall continue to apply unless otherwise provided by law. KRS 89.420 states in part that all nonelective city offices are abolished in a city adopting the city manager form of government. KRS 89.560 deals with the appointment, qualifications, term, compensation and removal of the city manager while KRS 89.570 sets forth the duties of the city manager. KRS 89.580 provides for the creation of administrative departments of the city by the board of commissioners.
After examining the statutory sections pertaining to the city manager form of government we can find no provision dealing with an auditor or providing for the performance of those duties required to be performed by the auditor pursuant to KRS 92.090. We see no conflict or inconsistency with the requirement for an auditor and those provisions dealing with the city manager form of government.
In Black v. Sutton, 301 Ky. 247, 191 S.W.2d 407 (1945), the Court dealt with a city attorney in a city operating under the commission form of government. While the statutes pertaining to the city commission form of government abolished the office of city attorney, no provision was made for a city attorney and nothing was done which affected the duties of the city attorney as they were not mentioned. Had the intention been to abolish the qualifications and duties of the city attorney, the General Assembly could have enacted such a provision.
The Court further said that the General Assembly abolished the office of city attorney in name only. A public office is created by law and unless the General Assembly subsequently abolishes an office it has created, the powers conferred and the duties to be performed must be continuing in their nature and not occasional or intermittent. An office has not been legally abolished when the duties and qualifications associated with that office remain in effect.
We cannot find a reported Kentucky case dealing with the office of auditor in a second class city which operates under the city manager form of government. However, after considering the statutory provisions applicable to the city manager form of government and the court's handling of the city attorney in the Black v. Sutton case, supra, it is our opinion that a second class city operating under the city manager form of government is required to have an auditor pursuant to KRS 92.080 who performs the duties set forth in KRS 92.090.