Request By:
Honorable Gary Hunley, Mayor
City of Catlettsburg
1446 Center Street
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of May 6, in which you first raise the question concerning whether the council or the mayor has the power to hire and fire employees of the various departments of the city established presumably by ordinance, and also the question as to who has the overall supervision of the day-to-day functions of the various departments and employees of the city.
In connection with your question you enclose a copy of an ordinance creating a department of streets for the City of Catlettsburg which includes the sewer disposal plant, floodwall, and clerical assistant. The ordinance also provides that all employees of the city are to be hired by the council for a period of two years, with the right of the council to discharge such employees. In addition, the council is given control over the operation of the newly created street department.
Under the new municipal code, effective July 15, 1980 a mayor of a city operating under the councilmanic form of government has of course 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, on the other hand, has the sole responsibility of establishing such positions with the city and fixing their compensation and duties. Once a position of employment is established and the compensation fixed pursuant to KRS 83A.130(2), the mayor has the sole power and responsibility of hiring a person to fill such position without the approval of the city legislative body. For your information in this respect we refer you specifically to KRS 83A.130(9) as amended at the 1982 session of the General Assembly which will be effective on July 15, and which we quote as follows;
"The mayor shall be the appointing authority with power to appoint and remove all city employes, including police officers, except as tenure and terms of employment are protected by statute, ordinance or contract and except for employes of the council." (1982 addition underlined.)
The above statute gives the mayor not only the power to appoint employees to established positions but also remove them at will unless their tenure is fixed by ordinance or their removal is prohibited except for cause, which also can be accomplished by an appropriate ordinance. The only instance where council approval is necessary for an appointment is in connection with the filling of a nonelective office as provided in KRS 83A.080(2). However, under this statute as also amended in 1982, the right to restrict the removal of such officers can only be accomplished by statute and the council can no longer prevent such removal by ordinance.
With respect to the day-to-day operation of city government, such is the sole responsibility of the mayor as chief executive officer of the city under the terms of KRS 83A.130(3). This subsection provides in effect that the mayor shall enforce the mayor-council form of government, city ordinances, orders, and all applicable statutes. He shall supervise all departments of city government and the conduct of all city officers and employees, and shall require each department created by ordinance to make reports to him, either as required by ordinance or as he deems desirable. At the same time the mayor must report to the council and the public on the condition and needs of city government as he finds appropriate or as required by ordinance, but not less than annually. Further, he must make recommendations for actions by the council that he finds in the public interest.
On the other hand, the duties of the city legislative body are confined solely to legislative matters as provided in KRS 83A.130(11). This statute declares that the legislative authority of the city shall be vested in and exercised by the elected council of the city, and further the council shall not perform any executive functions except those functions assigned to it by statute.
In view of the provisions above cited in the new code, the ordinance which you enclosed will have to be amended accordingly, as it is, for the most part, contrary to the present municipal code.