Request By:
Mr. Tom Dale
President/Business Agent
Louisville Professional Fire Fighters Union
3915 Taylor Boulevard
Louisville, Kentucky 40215
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that the Louisville Civil Service Board makes decisions concerning employes of the city's fire department. When such determinations are considered by your organization to be arbitrary, capricious, excessive, in violation of due process or otherwise in error, an appeal is taken. Whenever your organization receives a favorable court decision, overruling a prior adverse decision of the civil service board, the board then appeals the matter to the next higher court.
Your specific question is as follows:
"Does the Louisville Civil Service Board have the authority to automatically appeal lower courts' decisions and spend city funds and employ attorneys without receiving authority from the Legislative body, and said monies being appropriated by the city."
From the factual material you have presented, the statutory provisions applicable to such situations appear to be KRS 90.110 to 90.230, dealing with city civil service in cities of the first class. Pursuant to KRS 90.120 the civil service board in cities of the first class consists of seven members of whom six shall be appointed by the mayor. The mayor is the seventh member ex officio with no right to vote except when necessary to break a tie.
KRS 90.190 deals with dismissals and demotions and subsection (3) of that statute sets forth the manner and by whom an appeal may be taken to the circuit court. KRS 90.190(3) in its entirety states:
"Within twenty days after the order of the board has been entered under subsection (2), any employe who has been aggrieved by the order of the board, or the mayor or the appointing authority may appeal to the circuit court in the county in which the city is located in the following manner."
KRS 90.190(6), concerning an appeal to a higher court, states:
"An appeal will lie from the judgment of the circuit court to the Court of Appeals as in other cases, in any controversy arising under this section"
Thus, KRS 90.190(6) provides that an appeal is authorized from the judgment of the court in any controversy arising under that section. Note the provisions of Civil Rules 73.01, 73.02 and 73.03 of the Kentucky Rules of Civil Procedure, setting forth the procedures to follow in the appeal of a civil action to the next higher court. Civil Rule 73.02, as amended effective January 1, 1978, does not read exactly as it did when it was construed by the
Court in White v. England, Ky., 348 S.W.2d 936 (1961) and
City of Louisville v. Christian Business Women's Club, Ky., 306 S.W.2d 274 (1957). However, in our opinion, under the terms of the specific statute authorizing an appeal from the judgment of a lower court in a civil proceeding, under the civil service provisions, involving matters of dismissals, demotions and suspensions in controversy [KRS 90.190(6)], both that statute and the Civil Rules permit an appeal by any party to the proceeding in the lower court including, of course, the city.
In connection with the necessary appropriations to carry out the purposes of KRS 90.110 to 90.230, see KRS 90.230 which states:
"The legislative body of each city of the first class is hereby empowered and authorized to pass such ordinances and provide such appropriations as are necessary to effectuate the purposes of KRS 90.110 to 90.230."