Request By:
Honorable Laurence J. Zielke
Director of Law
Department of Law
City of Louisville
City Hall
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 15 in which you initially raise the following question:
"Recently the Board of Aldermen of the City of Louisville enacted an ordinance relating to Affirmative Action in city contracting and purchasing, a copy of which is enclosed. The ordinance is not effective until January 1, 1979. Please examine this ordinance in light of the Kentucky Equal Employment Opportunity Act of 1978, Ch. 130 Kentucky Acts, 1978, and determine whether the ordinance conflicts with the statute, and if the City is pre-empted from this field of legislation."
The validity of any ordinance is of course a matter for the courts to determine. However, it would appear to this office that the Kentucky Equal Employment Opportunity Act, [Ch. 130 of the 1978 Acts of the General Assembly], relating to the awarding of all public contracts [which of course includes municipal contracts], is controlling and the ordinance in question dealing with the same general subject is in contravention thereof and is therefore invalid.
Section 3 of the Equal Opportunity Act provides in part that:
"Except in contracts exempted in accordance with this Act, all government contracting agencies of the Commonwealth of Kentucky, and county, city, town, school district, water district, hospital district, or other political subdivision of the state shall include in every directly or indirectly publicly funded contract for supplies, materials, services, or equipment hereinafter entered into the following provisions:"
Section 5 specifically exempts contractors and subcontractors otherwise subject to the Act, to any affirmative action or reporting requirements if:
"(1) The contract or subcontract awarded is in the amount of $250,000 or less, and the amount of the contract is not a subterfuge to avoid compliance with the provisions of this Act;
"(2) The contractor or subcontractor utilizes the services of fewer than eight (8) employes during the course of the contract;
"(3) The contractor or subcontractor employs only family members or relatives;
"(4) The contractor or subcontractor employs only persons having a direct ownership interest in the business, and such interest is not a subterfuge to avoid compliance with the provisions of this Act."
Ordinance No. 68 deals with the same subject, that of equal opportunity requirements for individuals and firms contracting with the city of Louisville, by requiring all such contractors to be prequalified by a local commission. At the same time, however, the ordinance appears to modify or alter the state statute by providing that no contractor shall be awarded a contract by the city requiring an expenditure in excess of $10,000 that is required to be advertised for bids under Ch. 424 KRS unless he is prequalified as an equal opportunity employer. It seems apparent that the ordinance is in contradiction to one or more of the exceptions under § 5 of the state law and is, as a consequence, more restrictive.
The general rule is that an ordinance must, in general, conform to and not be inconsistent with the public policy of the state as found in its constitution and statutes. It cannot, for example, prohibit what public policy permits or permit that which public policy prohibits. Referring to McQuillin, Mun. Corps., Vol. 5, § 15.21, we find that:
". . . Nor, under a general grant of power, can a municipal corporation adopt ordinances which infringe the spirit, or are repugnant to the policy, of the state as declared in its legislation. It follows that if the state has expressed through legislation a public policy with reference to a subject, a municipality cannot ordain an effect contrary to or in qualification of the public policy so established, unless there is a specific, positive, lawful grant of power by the state to the municipality to so ordain. "
We next refer you to the case of
City of Harlan v. Scott, 290 Ky. 585, 162 S.W.2d 8 (1942), from which we quote the following:
". . . An ordinance may cover an authorized field of local laws not occupied by general laws but cannot forbid what a statute expressly permits and may not run counter to the public policy of the state as declared by the Legislature."
We also refer you to the case of
Boyle v. Campbell, Ky., 450 S.W.2d 265 (1970), involving a Sunday closing ordinance enacted by the city of Bowling Green which the court held invalid on the ground that it conflicted with the state statute. On the question of conflict, the court had this to say:
"Secondly, a municipal ordinance is invalid if it conflicts with a state statute. As stated in 37 Am. Jur., Municipal Corporations, Section 165 (page 787):
"'It is a fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of the state. An ordinance in conflict with state law of general character and statewide application is universally held to be invalid. '
* * *
". . . It is that the City of Bowling Green simply lacks the authority by local law to amend, modify, interpret or construe a state statute. . . ."
Finally, referring to the case of
Louisville and Nashville Railroad Company v. Commonwealth, Ky., 488 S.W.2d 329 (1972), we find the Court again expressed the following principle of law:
"A conflict exists between an ordinance and a statute when the ordinance permits conduct which is prohibited by statute or prohibits conduct which is permitted by the statute. . . ."
See also
Reed v. Hostetler, 245 S.W.2d 953 (1952);
Morgan v. City of Winchester, 411 S.W.2d 682 (1967);
Hopwood v. City of Paducah, 424 S.W.2d 134 (1968); and
City of Owensboro v. Bd. of Trustees, 301 Ky. 113, 190 S.W.2d 1005 (1945).
You next relate that the ordinance places the responsibility for prequalifying contractors on the Louisville/Jefferson County Human Relations Commission created pursuant to KRS Ch. 344 though the ordinance doesn't specifically mention this particular commission. In light of this you raise the question of a possible conflict of interest that may arise from the administration of the program by said commission and the commission's statutory power under Ch. 344 KRS.
Local human rights commissions are authorized to execute the policies numerated under the federal and state Civil Rights Act. The specific powers of the commission are enumerated under KRS 344.320 and KRS 344.330. The basic power of such commission as it relates to your question is found under subsection (1) of KRS 344.330 which authorizes it to investigate and hear charges of violations of local ordinances forbidding discrimination. The commission may, of course, issue affirmative orders under the terms of KRS 344.230. However, we do not find any basic or general authority for the commission to be delegated the power to prequalify prospective contractors with the city, or, in other words, sit as an administrative agency with the power to predetermine whether a contractor is qualified to execute a contract with the city. Thus, it would appear that the local human relations commission is given authority that extends beyond its specific or implied statutory powers under Ch. 344 KRS.
Also, as you suggest, a possible common law conflict of interest may exist where the ordinance gives the commission power to prequalify a contractor where at the same time the commission is charged with the enforcement of any violation of the ordinance. In addition, there is the question of granting subpoena power to the commission if we are correct in concluding that it is acting beyond its statutory powers under the state Civil Rights Act. See OAG 78-533.
Before closing, we would like to suggest that at the time any subsequent request for an opinion is submitted to this office, you give us the benefit of whatever research your staff has made with respect to the questions presented as is required by our Regulation 40 KAR 1:010, Section 4.