Request By:
Hon. Fred S. Tarter
Mayor
City of Russell Springs
P.O. Box 247
Russell Springs, Kentucky 42642
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of March 27 in which you seek an opinion as to whether or not the following action taken by the city council was legal:
"The Russell Springs City Council recently appointed an assistant police chief from among our present police force. We did not go by seniority. We simply chose the man we felt to be best suited for the job. Of course, this has resulted in much controversy among those not chosen."
Our response to your question would be in the affirmative. The City of Russell Springs is a fifth class city that we presume operates its police department pursuant to Ch. 95 KRS, particularly KRS 95.710 to 95.761. In addition it may have adopted the civil service and pension program detailed for its police department pursuant to KRS 95.760 to 95.787. However, under neither of the referred to statutes do we find any reference to seniority insofar as appointments to fill vacant positions. Under the civil service act mentioned, appointments are made strictly from lists of qualified applicants based on competitive examination. Concerning this question we are enclosing copies of OAG 80-228 and 83-215 basically holding that absent statutory authority, members of police and fire departments have no seniority rights.
There is, however, an exception where the city has elected to operate its police department under the general civil service act, Ch. 90 KRS, which it may do pursuant to KRS 95.761(3). Under this act, particularly KRS 90.350(6) relating to appointments and promotions, it is provided that where there exists a vacancy in the classified service, the employee in such classification ranking next highest in seniority shall succeed to fill the vacancy unless charges are made that he is not qualified.
Thus, based on the bare evidence presented relating to the operation of the police department, any person may be chosen to fill the vacancy in question who is believed to possess sufficient qualifications.
It is noted that your question states that the city council appointed the assistant police chief which would be contrary to the 1980 Municipal Code in that the mayor possesses the sole authority to make such appointments pursuant to KRS 83A.130(9), this assuming, of course, that the city operates under the councilmanic form of government and not the commission form.