Request By:
Mr. Charles E. Bullock
City Council Chairman
City Building
London, Kentucky 40741
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to a letter dated Feburary 17, from you and several other members of the city council of London in which you raise a number of questions relating to city government. Your initial question is as follows:
"(1) Can a 4th class city have a budget deficit in any one (1) fiscal year? "
Each city is required to adopt an annual budget under the terms of KRS 91A.010 to 91A.060. KRS 91A.030(1) provides that the city shall operate under an annual budget ordinance adopted and administered pursuant to the provisions of the budget act and no city shall expend any monies from any governmental or proprietary fund except in accordance with a budget ordinance adopted pursuant to this section. Subsection (8) provides that no budget ordinance shall be adopted which provides for appropriations to exceed revenues in any one fiscal year in violation of Section 157 of the Kentucky Constitution. Subsection (10) provides that the city legislative body may amend the budget ordinance at any time so long as the amended ordinance continues to satisfy the requirements of this statute.
It is clear from this statute that cities must operate within their duly adopted budget, which is based on the anticipated revenues to be received and no expenditures can be made by the city unless such funds are appropriated in the budget. This would eliminate in effect a city operating with a budget deficit.
Your second question is as follows:
"(2) Can a Mayor create a new job or position, hire a person to fill this position without sufficient funds to pay her or him without consulting the council?"
A mayor of a city has no authority to create any position of employment or to hire any person to a position that has not been established by ordinance. The legislative body has the sole responsibility of establishing job positions with the city and fixing the compensation, and until such is created, none legally exist. Once a position of employment is established and the compensation fixed, pursuant to KRS 83A.070(3), the mayor has the sole responsibility of hiring a person to fill such position without the approval of the city legislative body. See KRS 83A.130(9). The only instance where council approval is necessary for an appointment is in connection with the filling of a nonelective municipal office. See KRS 83A.080(2).
Your third question is as follows:
"(3) Does the Mayor have the right to hire a police officer, without the proper funding and the city council's approval. Especially since a police officer has to take the oath of office."
The position of police officer is a municipal office which must be created pursuant to ordinance, as we have previously indicated, with the compensation fixed therefor and no one can be hired as a police officer without the approval of the city legislative body since such is considered a nonelective office. See KRS 83A.080(2).
Your fourth question is as follows:
"(4) Does the Mayor have the right to fire the Clerk-Treasurer? If the answer is 'yes' can he fill this position without the council's approval? If the council will not approve his choice what position can be taken on the city clerk office?"
The mayor has the authority to remove any nonelective officer or employee without the approval of the city legislative body pursuant to KRS 83A.080(2) and 83A.130(9) unless such position is covered by civil service or unless the city has enacted an ordinance preventing the removal of the officer or employee without cause and an appropriate hearing. The previously referred to statutes so provide.
Your fifth question is as follows:
"(5) In the city clerk/ treasurer job description it does not refer to collecting money from the parking meter, however the Mayor has had this person doing such duties. Shouldn't this job be left to someone which is armed."
As chief executive of the city with the power to administer the affairs of the city, the major has the authority to delegate responsibilities to various officers and employees that have not been specifically delegated by ordinance to some other person, and this would apply to the city clerk/ treasurer with respect to the collection of parking meter funds unless the city legislative body specifically places that responsibility elsewhere by ordinance.
Your sixth question is as follows:
"(6) Does the Mayor have the authority to appoint someone to the Utility Commission?"
The answer to this question depends on the terms of the ordinance pursuant to which the city utility is operated. Certain utility systems may be established pursuant to statute which specifically provides for the creation of an administrative board and provides who shall have the appointing authority. See Chapter 96, KRS. If a utility is being operated under a general statute that does not create an operating commission, then the city legislative body may create such a commission and provide for the appointment of its members. See
Keathley v. Town of Martin, Ky., 246 S.W.2d 152 (1951).
Your seventh question is as follows:
"(7) What constitutes the removal of the Mayor from office?"
Any member of the city council or the mayor may be removed from office by the council pursuant to KRS 83A.040(6) which provides in effect that any elected official, in case of misconduct, inability or willful neglect in the performance of the duties of his office, may be removed from office by a unanimous vote of the members of the legislative body exclusive of any member to be removed who shall not vote in the deliberation of his removal. However, no elected official can be removed without having been given the right to a full public hearing with the further right of appeal to the circuit court.
We trust the above specifically answers your questions.