Request By:
Hon. James S. Secrest
Allen County Attorney
Box 35
210 W. Main Street
Scottsville, Kentucky 42164
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of April 18 in which you relate that the city of Scottsville, a city of the fourth class, established in 1971 a civil service program for members of the police department, and in 1972 amended the previous ordinance so as to extend civil service to all employees of the city. In June 1974 the council adopted Ordinance #508 which provides in one section that pursuant to KRS 95.761(5)(a) the positions of chief of police and assistant chief of police were thereby excluded from the classified service. Later in October 1979 the council adopted Ordinance #566 providing that pursuant to KRS 95.761(3) the city would operate its civil service program under Chapter 90 KRS, particularly KRS 90.300 to 90.420. This ordinance also provided that the position of chief of police and assistant chief of police, among other positions, were again to be included in the classified service.
Under the circumstances, you raise the following questions:
"(1) Under the Statutes and Ordinances above set forth, may the City Council abolish the position of Assistant Chief of Police?
(2) If the Chief of Police retires, is terminated, resigns, or is otherwise relieved of his duties as chief, is the City Council required, under the Statutes and Ordinances above cited, or any other statute of which you have knowledge, to elevate the Assistant Chief to the position of Chief?"
In response to your initial question, KRS 95.761(6) was added by amendment in 1982 to continue to permit the exclusion of the position of chief and assistant chief of police as was provided prior to this amendment under Subsection (5). However, Subsection (5) was amended to provide that after the adoption of civil service under Chapter 90 KRS, the city could not revoke, rescind or repeal the coverage of any employee covered thereby. Thus, since Ordinance #566 enacted in 1979 again included the position of chief and assistant chief, we believe those individuals serving in such capacity could not be excluded from civil service during their tenure by the abolition of either of these offices by subsequent action on the part of city council. Neither could Ordinance #566 be again amended to exclude from coverage the office of chief or assistant chief to be effective during the present tenure of those persons holding these positions. However, following the termination of their employment for whatever reason, Ordinance #566 could be amended, we believe, to exclude these positions and the city could by separate ordinance abolish said positions by amending the ordinance establishing them initially.
Our response to your second question would be in the negative in view of the fact that promotions under Chapter 90 KRS, particularly KRS 90.350, can only be made from the list of applicants for said positions, who have been certified by the civil service commission following their examination as required by KRS 90.320. However, this section does provide that examinations may first be given exclusively to current employees. Thus, the assistant chief serving at that time could only assume the position of chief provided he qualified for the position following his examination as previously mentioned, assuming, of course, that the position of chief continues to remain under the civil service program referred to.