Request By:
Mr. G. Anthony Mills
Attorney at Law
Rivertown Plaza
Brandenburg, Kentucky 40108
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 3, 1981, in which you seek on behalf of the city of Ekron, Kentucky, an opinion concerning the following questions:
"1. May a city of the sixth class appoint a chief of police?
"2. If so, may the chief of police also be appointed the city treasurer with authority to collect the city taxes and also may he be the Director of the City Water Department?
"3. Is it mandatory that the elected officers and the appointed officers draw a salary?
"4. If so, is there such a thing as a minimum salary such as $1.00 per year?"
In response to your initial question, S.B. 26 enacted at the 1980 General Assembly repealed the statutes governing the police departments of cities of the sixth class, namely, KRS 95.790 and 95.800. However, pursuant to the home rule authority given cities of all classes under S.B. 41, particuarly KRS 82.082, each city is authorized to establish a police department if they have not already done so by a previous ordinance in which case the said ordinance continues in existence, as does the police department.
The appointment of members of the police department is, however, no longer in the hands of the city legislative body but has been delegated in S.B. 26 to the mayor pursuant to KRS 83A.080(2). Of course, such office must be established by ordinance pursuant to KRS 83A.080(1) and any such appointment made by the mayor must be approved by the city legislative body. We might point out here that all cities of the sixth class are required to revert to the councilmanic form consisting of six members and a mayor. We have suggested in OAG 80-439, copy attached, that this transition be made this year in order for there to be an election to fill these offices at the 1981 general election which is a regular term election.
In the meantime, however, and until the city changes to the council-mayor form of government, there is no executive officer to make the appointment in question under the old Board of Trustees Act, KRS Ch. 88, which has been repealed by S.B. 26 and as a consequence the Board of Trustees would appoint the chief of police or any other nonelective officer or employee of the city until such time as it converts to the councilmanic form. Before any such appointment, however, we wish to reiterate that there must be an ordinance initially establishing the position as required by KRS 83A.080(1).
In response to your second question, the office of chief of police is considered a municipal office. See
City of Lexington v. Rennick, 105 Ky. 779, 49 S.W. 787 (1899). At the same time, a city treasurer would also be considered a municipal officer assuming that it is established pursuant to an appropriate ordinance. As a consequence no person could hold two municipal offices at the same time as that would be incompatible under the terms of KRS 61.080 and Section 165 of the Constitution. On the other hand, however, the city could under an appropriate ordinance designate the chief of police as the person required to collect city taxes. In other words, the duty of collecting city taxes could be assigned to the chief of police and made a part of his overall responsibility. This procedure was authorized incidently under KRS 92.190 which, has been repealed by S.B. 26.
Our response to your third question as to whether or not it is mandatory for the elected or appointed municipal officers to draw a salary would be in the affirmative. KRS 83A.070(1) provides that the legislative body of each city shall by ordinance fix the compensation of elected city officers not later than the first Monday in May in the year in which they are elected and such compensation shall not be changed thereafter or during the officer's term. Subsection (2) of said statute provides that the legislative body shall fix the compensation of each appointed city officer which, however, may be changed at will. Subsection (3) provides that the legislative body shall fix the compensation of all city employees in accordance with a personnel and pay classification plan which must be adopted by ordinance.
Our response to your fourth question would be in the negative. We do not believe that compensation assigned to a particular office or employment at a figure of $1.00 per year would constitute compensation within the ordinary meaning of the term. The Supreme Court declared in the case of