Request By:
Honorable Byron Lee Hobgood
City Attorney
City of Madisonville
P.O. Box 195
Madisonville, Kentucky 42431
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of January 21 in which you, on behalf of the city of Madisonville, a city of the fourth class, raise the following question:
"My question is, if the City has elected to operate under civil service and all employees of the Police and Fire Departments are contributing to the Policemen's and Firemen's Fund, are contributions to the fund mandatory?"
Cities of the fourth class have the option of operating their police and firemen's pension fund plan under various statutory methods pursuant to KRS 95.761. You do not indicate what method has been adopted, therefore, we will assume that the city is operating under the method specifically provided for cities of the fourth class pursuant to KRS 95.762 through KRS 95.785.
Assuming the above to be the case, KRS 95.768 provides, pursuant to subsection (1) (c), that the police and firemen's pension fund shall consist of assessments which the board of trustees of the pension shall make upon each member of the police and fire departments of not more than three and one-half percent (3 1/2%) of his salary. The term "shall" as used in this statute is mandatory and would require the city to make such deductions for all members of the police and fire departments except those that may be excluded thereunder [KRS 95.761 (5) (a)] which does include the chief of police. The word "shall" is defined to be mandatory under the terms of KRS 446.010 (29).
We assume however from your letter that the chief of police has been placed under the classified service and, as a consequence, neither he nor the city would have any choice on the question of whether or not be contributes to the pension fund.