Request By:
Mr. Thomas L. MacDonald
City Attorney
City of Flemingsburg
Flemingsburg, Kentucky 41041
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of May 3 in which you relate that a separation of powers issue has been raised between the city council and the mayor as to which has the authority to determine whether the city administrative officer moves his office from the upstairs floor of the city hall to the first floor. More specifically, your question is as follows:
"In a fourth class municipality with a Mayor-Council form of government, can a City Council direct the Mayor the move certain city offices from one city location to another city location, or does such a directive infringe upon the executive powers of the Mayor?"
The office of city administrator has been established by ordinance which is permissive pursuant to KRS 83A.090. This statute provides in effect that the officer appointed thereto is directly responsible to the chief executive officer of the city, in this case the mayor. At the same time, the mayor, under the councilmanic form of government, is the chief executive and administrative officer of the city and is given the responsibilty of supervising all departments and the conduct of all officers and employees of the city. In addition he is responsible for providing for the orderly continuation of the functions of city government. See KRS 83A.130.
On the other hand, the city council is prohibited, under KRS 83A.130 from performing any executive or administrative functions. As a consequence the municipal code has clearly restricted the council to legislative functions in the conduct of city government and given the mayor as chief executive officer complete responsibility in the administration of city government. Thus we are faced with the question of determining whether the designation of where and what office space a particular officer or employee shall occupy at any given time is a legislative or executive function, and we have concluded that it is executive and thus lies within the exclusive jurisdiction of the mayor.
In the case of
Vanmeter v. City of Paris, Ky., 273 S.W.2d 49 (1954), the court disclosed that it is often difficult to determine whether the exercise of a power concerning a given subject matter is legislative in character or administrative, but the rule is that the power to be exercised is legislative if it prescribes a new policy or plan and it is administrative if it merely pursues a plan already adopted by the legislative body or some power superior to it, in this case the state legislature. See also
Plageman v. City of Covington, Ky. App. 569 S.W.2d 191 (1978).
Referring next to McQuillin Mun. Corps., Vol. 2, Sec. 10.06, it is pointed out that if it can be shown that a particular act could not have been done without a law or ordinance, such act is considered legislative. However, such is not the case here since it seems clear that the determination of the particular office in which an officer or employee performs his duties as prescribed by statute or by ordinance falls in the field of office management which is certainly an executive or administrative function as pointed out in the case of
City of Newport v. Gugel, Ky., 342 S.W.2d 517 (1961) from which we quote the following:
"Personnel administration is primarily an administrative matter, at least as far as concerns the details of management. . ."
We are, therefore, of the opinion that the determination of the office location of city officers and employees (including, of course, the city administrative officer) , is purely an executive and administrative function which lies exclusively within the jurisdiction of the mayor under the councilmanic form of government.