Request By:
William G. Francis, Esq.
City Attorney, City of Prestonsburg
Box 31
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether the city of Prestonsburg, a city of the fourth class, may provide fire protection services to all city employes and their immediate families who live outside the city limits as a fringe benefit. You also ask whether the city can be charged with discrimination by city employes residing within the city if the city can provide such service as a fringe benefit; whether the city can incur liability for property damage, injuries or deaths that may occur on a fire run to assist city employes residing outside the city, whether the provisions of KRS Chapter 75 will protect the city (apparently you are referring to KRS 75.070 which attempts to protect fire departments organized under that chapter and their personnel from liability and treats them as agents of the Commonwealth in some situations).
The proposed fringe benefit, which would only be available to those city employes and their immediate families who live outside the city limits, involves, of course, public funds and public employes. The proposed benefit constitutes a bonus or extra compensation and would be in violation of Sections 3 and 171 of the Kentucky Constitution. Section 3 provides in part that no grant of exclusive, separate public empluments or privileges shall be made to any man or set of men, except in consideration of public services. Section 171 prohibits in part the expenditure of public funds for private purposes. See OAG 73-436, copy enclosed, and the authorities cited therein, including
Barnes v. Adams, Ky., 305 S.W.2d 754 (1957). In that case the Court rejected the continued payment of a salary to a state employe, who was on a leave of absence in order to attend school so that she would become better qualified to perform her duties, and cited Sections 3 and 171 of the Kentucky Constitution in support of its decision. Note also that KRS 64.580 requires the legislative body of each city to fix the compensation of all city officers and employes.
While extra compensation may be allowed in some cases for the performance of additional services, the general rule as to the granting of extra compensation is set forth in McQuillin Mun. Corp. (3rd Ed.), Vol. 4, § 12.193, as follows
"Where an officer performs duties imposed by law he is entitled to the compensation fixed by law and no other. He is not entitled to extra compensation for services performed in the line of his official duty. The same rule has been applied to municipal employees. Extra compensation is compensation over and above that fixed by contract or by law when the services were rendered. . . ."
* * *
"Extra compensation to the incumbent of an office or position in the municipal service cannot be based on a promise, contract, custom or usage, services pertaining to the duties of the office or employment, doubtful implication, implied contract or estoppel, or by indirect methods, although provided by statute, charter or ordinance. . . ."
Finally, as set forth in numerous cases, including
Juett v. Town of Williamstown, 248 Ky. 235, 58 S.W.2d 411 (1933) and
City of Horse Cave v. Pierce, Ky., 437 S.W.2d 185 (1969), a city has only such powers as are expressly or impliedly given it by the General Assembly and any doubt concerning a particular municipal power is resolved against its existence.
Therefore, on the basis of the circumstances set forth in your letter, it is our opinion that the city cannot legally provide fire protection services only to those city employes and their immediate families who reside outside the city limits, as a fringe benefit, as such services constitute a bonus or extra compensation and are prohibited by Sections 3 and 171 of the Kentucky Constitution.
Since we have concluded that the city cannot legally furnish the proposed fire protection services to those city employes residing outside the city limits, we will not answer your other questions, all of which are based on an initial premise that such services could be provided. We would point out, however, that even if such services could be provided and even if we were dealing with a fire department organized pursuant to KRS Chapter 75, KRS 75.070 which attempts to render such fire departments and their personnel immune from tort liability due to negligence is probably unconstitutional. See OAG 76-582, copy enclosed, at page two. See also KRS 95.830 concerning the use of fire apparatus outside the city limits pursuant to reasonable terms and regulations prescribed by the city legislative body.