Request By:
Mrs. Elizabeth A. Mink
P.O. Box 233
Livingston, Kentucky 40445
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 3 in which you raise the following questions:
1. I would like to know if the city marshal of Livingston must be appointed or hired to a certain term, and if he should live within the city limits to be legal.
2. I would like to know if the mayor or one of the other city council members can also hold the office of city-clerk-treasurer or if someone not elected to the city council should be hired.
In response to your initial question concerning the selection and term of the city marshal of the city of Livingston, a city of the sixth class, we refer you to KRS 95.790 (1) and (2), which read as follows:
"(1) The board of trustees in cities of the sixth class may appoint a city marshal, or, by ordinance enacted not less than sixty (60) days previous to any November election, provide for his election by the voters of the city.
"(2) The city marshal shall hold office, when appointed, for a term of not longer than two (2) years, and until his successor is appointed and qualified. He shall be subject to removal at any time for good cause by the board of trustees. "
As the above statute indicates, the city marshal may either be appointed or elected. If elected, it would be for a four (4) year term as required by the Constitution, and, if appointed, he serves a term of two (2) years as subsection (2) indicates.
Though the city marshal is an officer of the city, he would not be required to reside within the city as we have held in a number of opinions, among them being OAG 70-3, copy attached. Thus, in spite of the fact that KRS 88.170 requires the marshal to be a bona fide resident of the city as explained in the attached opinion, the enactment of KRS 15.335 (1968) removes the residential qualification by providing, in effect, that no person shall be disqualified from holding the position as a peace officer by reason of his residence or voter eligibility except as provided in the Constitution. With regard to the Constitution, the Court of Appeals has declared that a city policeman is not a constitutional officer and, therefore, the constitutional residential requirements [§ 234] would not apply. See City of Newport v. Schindler, 449 S.W.2d 17 (1970).
In response to your second question, the positions of city clerk and city treasurer of a sixth class city are two separate and distinct offices under the terms of KRS 88.180 (2) which provides, in effect, that the treasurer and clerk shall be appointed by the board of trustees for a term of two (2) years. KRS 88.210 also requires the clerk and the treasurer to execute separate bonds before entering the duties of their respective offices.
Since the offices of city clerk and city treasurer are separate and distinct city offices, no person can, at the same time, hold either of these offices and another city office, such as that of city councilman, in view of § 165 of the Constitution and KRS 61.080. These sections prohibit a person from holding two municipal offices at the same time. As a consequence, the city council must select someone other than another city officer to serve as either city clerk or city treasurer.