Request By:
Mr. Anthony G. Otte
Criminal Justice Specialist
Northern Kentucky Area
Development District
7505 Sussex Drive
Florence, Kentucky 41042
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of May 23 in which you relate that you are assisting a city of the fourth class in writing its rules and regulations governing the police department, presumedly established pursuant to KRS 95.700 et al. You further relate that the city has elected to operate its police department under the civil service pension program provided in KRS 95.761 to KRS 95.784. Concerning the questions you have presented, the sixth question involving hypothetical examples cannot be answered by this office pursuant to our rules and regulations, particularly Regulation 40 KAR 1:020. We will attempt to answer the other five questions, which are as follows:
"1) Does city council have the authority to repeal this Civil Service ordinance?
"2) Does city council have the authority to amend the Civil Service ordinances?
"3) KRS 95.730(1) states that the mayor is in command of the police department. In that role, what is his relation to the city council and the chief of police?
"4) Does the city council have the authority to adopt regulations for the police department? If so, a) does the mayor, as head of the police department, have to see that the police department carries out these regulations? b) how are these regulations enacted: by ordinance, or simple motion?
"5) Since the city already has regulations for non-uniformed employees and the city administrator named personnel officer with the authority to hire and fire, etc., does the city council have the authority to bring the police department in line with these regulations? i.e., revoke Civil Service and name the city administrator personnel officer for the police department? "
Our response to your initial question concerning the right of the city to repeal the civil service ordinance, enacted pursuant to KRS 95.761 to 95.784, would be in the affirmative. This act specifically provides for such repeal pursuant to KRS 95.783, which reads as follows:
"In the event that the provisions of KRS 95.761 to 95.785 are accepted and adopted by the legislative body of a city of the fourth class by ordinance, as herein provided, the repeal of such ordinance shall not become effective unless adopted by the unanimous vote of the duly elected members of such legislative body. In the event a repeal ordinance is adopted by such legislative body, all moneys or property belonging to the policemen's and fire fighter's pention fund at the time of the repeal of the said adoption ordinance shall be dissolved or liquidated by the board of trustees of said policemen's and fire fighter's pension fund and distributed by said board in the following manner: Within sixty (60) days of adoption by said legislative body of said repeal ordinance, the said board of trustees shall proceed with the liquidation of said pension funds as follows: All unexpended moneys appropriated to said pension fund out of the said city's general fund to the policemen's and fire fighter's pension fund by the said legislative body of such city and at the time of adoption of a repeal ordinance shall revert back to the city's general fund. All other unexpended moneys or property which has come into the said pension fund's hands shall be liquidated by said board of trustees in the following manner: All unexpended moneys in the said pension fund which accumulated thereto by assessments from policemen's and fire fighter's salaries and gifts, or accumulated thereto in any manner except appropriations from the said city's general fund, shall revert back to the active or retired policemen and fire fighters and dependents who have qualified under KRS 95.761 to 95.785 in such city. In the division to the beneficiaries, the board of said trustees shall use in the division of said fund the per centum of the present salaries of such members. After all disbursements have been made of said fund by the board of trustees, the said board of trustees shall file, as their last act, a complete report of same with said legislative body within thirty (30) days, and such report shall be kept in the office of the city clerk as other city records."
Our response to your second question concerning the right to amend the civil service ordinance would be in the affirmative so long as the amendment in no way alters the terms of the civil service statutes. We also call your attention to McQuillin, Mun. Corps., Vol 5, § 15.22, from which we quote as follows:
"It has been stated broadly that no municipal ordinance can go beyond, be broader than, add to, subtract from, modify or affect, limit, amend or change statutes, at least where the net result is one of conflict. Certainly an ordinance cannot impose any additional regulation in a field where, under state law and statutes, there is no room for its operation in such field, even though the particular regulation set forth in the ordinance does not directly duplicate or otherwise directly conflict with any express provision of the state law . . ."
See also
Hirschfeld v. Commonwealth, 256 Ky. 374, 76 S.W.2d 47 (1934).
In response to your third, fourth and fifth questions, we call your attention to the case of
George v. City of Lebanon, Ky., 424 S.W.2d 588 (1968), in which the court very clearly pointed out that the mayor of a fourth class city is the head of the police department with the sole authority to issue executive orders directing the operation of the department and that the city council has no authority to issue such orders though it does have the authority to establish, pursuant to ordinance, rules and regulations governing the department. The chief of police is, of course, second in command to the mayor, which means that he takes his orders from the mayor in directing the police department, and this holds true with respect to the authority of a so-called city administrator who has been named personnel officer for non-uniform employees of the police department. Here, we might also add that we seriously question the city's right to give the city administrator the power to hire and fire any city employee much less a member of the police department whether he is in uniform or not.
We might also mention that generally speaking only the city legislative body is authorized to hire and fire city personnel unless the right is conferred by statute on another body or officer. 62 C.J.S., Mun. Corps., § 704. As you know, the position of the city administrator is not a statutory position but merely created by the city legislative body, which would appear to mean his powers would be generally limited to advising the city legislative body in matters placed under his jurisdiction. See attached miscellaneous letter, Log No. 359, dated February 7, 1979, addressed to Wilbur H. Gasdorf.