Request By:
Mr. William J. Pratt
Mayor, City of Hazel
Hazel, Kentucky 42049
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that the city of Hazel, a city of the sixth class, has, at the present time, both a city clerk and a city treasurer. The treasurer will be resigning in the near future and in an attempt to limit expenditures you would like to have one person fill both positions.
Your specific question to this office is whether one person may occupy, at the same time, the offices of city clerk and city treasurer in a city of the sixth class.
Section 165 of the Kentucky Constitution and KRS 61.080 (4) provide that no person shall, at the same time, fill two municipal offices, either in the same or different municipalities. KRS 88.180, formerly applicable to cities of the sixth class but repealed effective July 15, 1980, provided in effect that the positions of city clerk and city treasurer in a sixth class city are two separate and distinct offices. See OAG 80-73, copy enclosed, at page one. Thus, a person could not, under the law formerly applicable to cities of the sixth class, serve at the same time as city clerk and city treasurer as two municipal offices were involved.
KRS 88.180 has been repealed and many of the statutes dealing with the organization of government in cities are now found in KRS Chapter 83A, effective July 15, 1980. Although a municipal "office" is defined in KRS 83A.010 (9), the Chapter does not require the establishment of any particular appointive executive offices. There is now no requirement that a city of the sixth class create the offices of city clerk and city treasurer.
KRS 83A.080 provides in part that all nonelected city offices shall be created by ordinance. However, that statute also states that each appointed office existing upon adoption of this chapter [KRS Chapter 83A] shall continue until abolished by ordinance. Thus it is presumed that the city had ordinances in effect prior to July 15, 1980 establishing the offices of city clerk and city treasurer. If such is the case those ordinances remain in effect until repealed under the new law and the offices of city clerk and city treasurer are still in existence and cannot be filled by the same person at the same time. See OAG 80-565, copy enclosed, at page one.
There is no requirement that the city retain the office of city treasurer and the city may by ordinance abolish the position. However, the financial affairs of the city should be handled by someone designated by the city governing body or by a department established for this purpose since all cities must comply with the statutory provisions relating to finances [KRS 91A.010 to 91A.060]. See OAG 80-565, at page tow. Whether the person handling the city's financial affairs under this arrangement would be considered a city officer would depend in part upon the duties, powers and responsibilities assigned to the position, whether an oath of office and a bond were required and whether the person satisfied the statutory definition of a municipal "officer" in KRS 83A.010 (9).
In conclusion, it is our opinion that if prior to July 15, 1980 the city had by ordinance established the positions of city clerk and city treasurer and if neither position has been abolished by ordinance since that date pursuant to KRS 83A.080 (3), then both positions are still in existence. Since each position constitutes a city office no person is permitted to fill both offices at the same time as no person is permitted to fill, at the same time, two municipal offices. Even if the office of city treasurer were to be abolished the person handling the city's financial affairs would be considered a city officer if he satisfied the definition of "officer" under KRS 83A.010 (9).