Request By:
Honorable James Terry Hodges
City Attorney
City of Columbia
108 North Reed Street
Columbia, Kentucky 42728
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of February 9 in which you present a number of questions concerning Senate Bill 26, KRS Ch. 83A.
You initially refer to KRS 83A.080 which provides that the mayor appoints all nonelective officers with the approval of the city legislative body and with the power to remove these officers at will unless otherwise provided by law. Your initial question is in two parts as follows:
"Can a mayor now remove a city clerk, city attorney, or other 'officer' as defined in K.R.S. 83A.010 without consulting the legislative body which approved the appointment? If so, can this right or power be changed by the legislative body in the ordinance creating or setting the compensation of the officer?"
Our response to your initial question would be in the affirmative as KRS 83A.080 clearly so provides. However, the city legislative body would, we believe, have the authority to enact an ordinance prohibiting the removal of city officers except for cause and pursuant to a hearing. The phrase "unless otherwise provided by law" would, we believe, be interpreted to include a duly enacted ordinance pursuant to KRS 83A.060. The present ordinance to which you refer could be so amended.
You next refer to KRS 83A.130 (9) which gives the mayor the power to appoint and remove all city employes except as tenure and terms of employment are protected by statute, ordinance or contract, and except for employes of the council. Your initial question under this statute is as follows:
"Who are 'employes of the council' referred to in this section of the statute?"
Senate Bill 26 does not define the term "employes of the council", however, we believe that such employes would include a clerk, bookkeeper, sergeant at arms, doorkeeper, secretarial help, legislative aide, attorney etc. These employes could not of course be given any power to perform executive functions involving the day-to-day operation of the city.
Your second question in this series is of two parts as follows:
"Does this mean that the mayor now hires all employes without consulting the legislative body which only creates the positions for employment by ordinance? Can a legislative body, by ordinance, provide that their approval is necessary for employes hired or appointed by the mayor?"
The answer to the initial part of your question would be in the affirmative as KRS 83A.130 (9) clearly provides. However, as far as the removal of such employes is concerned, we believe that the city legislative body could, by ordinance, restrict their removal in the same manner as we indicated with respect to the removal of city officers, that is by an appropriate ordinance.
Your last question in this series is as follows:
"Can a city legislative body refuse to approve payment of wages for an employee appointed or hired by the mayor without approval of the legislative body? "
Our response to the above question would be in the negative. Once the compensation is fixed by ordinance and the employe is hired by the mayor and performs his duties, he is entitled to receive the compensation so fixed without the approval of the legislative body.
Your final question is as follows:
"Finally, what provisions, if any, now exist concerning appointment and duties of a chief of police in a fourth-class city since the repeal of K.R.S. 95.720 and 95.730?"
In response to the above question, the power of the city legislative body of a city of the fourth class to appoint members of the police department and control the operation of the department under KRS 95.700 has been repealed and superseded by S.B. 26. The city legislative body, however, retains the authority to establish the police department by ordinance, provide for the numbers of its members [including a chief of police], their compensation, duties and responsibilities. The appointment, however, of members of the department, including the chief, is placed in the hands of the mayor with the approval of the city legislative body pursuant to KRS 83A.080 (2) since police officers are municipal officers as held in a number of cases, among them