Request By:
Mr. Fred Hall, Councilman
City of Cumberland
Cumberland, Kentucky 40823
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 7 in which you request an opinion concerning the following:
"Cumberland, a city of the 4th class, is having difficulty in getting a city attorney. It seems that no one in the Harlan County area is interested in a full or part time situation. The result is that we are having a backlog in civil cases. Additionally, our council meeting decisions are not, I am sure, handling the problems that arise in a correct manner. Question: What can be done in such a situation?"
In response to the above question, we refer to KRS 69.560. A '74 amendment changed the residential qualifications by permitting the city attorney to be either a resident of the city or of the county wherein the city is located. As a consequence, the city may now appoint as city attorney a qualified person who lives outside of the city but within the county.
On the other hand, if the city cannot find a qualified attorney either within the city or county to serve as city attorney, we believe it can employ an attorney, regardless of residence, on a contract basis to advise the city in legal matters and handle civil cases. In the case of City of Glasgow v. Burchett, Ky., 419 S.W.2d 544 (1967), the Court of Appeals held that a nonresident attorney employed by the city to advise it on legal matters was merely an employee rather than an officer. The question involved a possible incompatibility between the office of police judge of a third class city and the employment of the judge as an attorney to advise a fifth class city where the judge was a nonresident of said city. We also cite the case of Hopson v. Howard, Ky., 367 S.W.2d 249 (1963), where the Court held that an attorney employed by the school board to handle its legal matters was, in fact, an independent contractor.
It is questionable, however, that while serving as private counsel under a personal service contract the attorney could prosecute criminal cases in police court as pointed out in OAG 71-523, a copy of which we are enclosing.