Request By:
Hon. Frank W. Burke, Jr.
Attorney at Law
City of Shively
P.O. Box 16007
Shively, Kentucky 40216
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of December 7 in which you seek an opinion on behalf of the mayor of the city of Shively relative to his powers in matters involving city personnel. You relate the following factual situation which includes a resolution passed by the city legislative body pertaining to the assignment of duties to a reinstated police captain and are concerned as to the binding effect of this resolution. The facts in question are as follows:
"Capt. M. Donio of the Shively Police Dept. was suspended by Mayor Burks following his indictment by the Grand Jury for the U.S. District Court for the Western District of Kentucky. The Shively Civil Service Commission ordered his reinstatement after an appeal. Subsequently, at the meeting of the City Council, the enclosed resolution was passed concerning the duties of Capt. Donio and his use of a take-home automobile.
Mayor Burks' question is, 'Is the Resolution of the City Council binding upon him?'"
The resolution enacted by the city legislative body assigns the reinstated captain to duty in the Communications and Record Department.
In addition to the above facts, you related by phone that the city is operating its police department under the civil service act found in Chapter 90 KRS relating to cities of the third class. This it has the option to do under KRS 95.765.
To begin with, under the terms of KRS 90.360, particularly subsections (5) and (6), the appointing authority, in this case the mayor, under the terms of KRS 83A.130(11), is authorized where he has probable cause to believe that an employee of the department has been guilty of conduct justifying his removal or punishment, to immediately suspend the employee from duty and such employee shall not be placed back on duty until the charges are heard by the civil service commission. Although your facts do not indicate, again according to our phone conversation, the commission did in fact conduct a hearing which presumably resulted in the officer's reinstatement. Thus the procedure at this point appears to follow the terms of the civil service act.
The city legislative body has the initial power and duty under KRS 90.310 to enact a civil service ordinance establishing a commission and also creating position classifications and their general duties. This is of course a legislative act which under the 1980 Municipal Code is the extent of the authority of the council as clearly pointed out in KRS 83A.130(11). At the same time all executive authority is vested in the mayor who normally appoints all employees including police officers under the terms of KRS 83A.130(9). Thus, as chief executive officer of the city, the mayor would make the necessary appointments of police officers who are duly certified by the commission, to the various positions under the civil service program, and the city legislative body would have no authority by resolution or otherwise to assign or reassign the reinstated police officer to any duties within the department as this is purely an executive function. As a matter of fact it would appear that it would be up to the civil service commission in its order of reinstatement to designate in its findings, following the hearing, the appropriate position within the civil service program that the officer would be reassigned to as part of his punishment, such as a reduction in grade as provided in KRS 90.360(6).
In any event, it would appear that the resolution adopted by the city legislative body is in violation of not only the civil service act but also the municipal code with respect to its legislative power to which it is restricted as referred to above. Thus in our opinion the resolution is null and void.