Request By:
Mr. Bruce Taber, Assistant Chief
Elizabethtown Police Department
111 West Dixie Avenue
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 31 in which you relate the following background information:
". . . Both the Chief and Assistant Chief of Police of Elizabethtown were appointed to their present positions in 1970 after having served with the police department for a number of years in different positions with the rank of Sergeant. In 1972 the City of Elizabethtown adopted a civil service system for police and firemen under KRS 90.300, a copy of the city ordinance is attached. . . ."
Your question is as follows:
". . . Giving consideration to the above situation, is the Chief and Assistant Chief protected under Sec. 17-107 of the ordinance? "
Section 17-107 of the 1972 civil service ordinance reads as follows:
"The chief of police, assistant chief of police, chief of firemen, and assistant chief of firemen are hereby specifically excluded from the above service. Any classified employees in either the fire or police departments who accept appointment as chief of police, assistant chief of police, chief of firemen or assistant chief of firemen shall be deemed to have received a leave of absence from the classified service for and during the incumbency of, any of said respective positions. Should any such chief or assistant chief cease to service as such, the same classification and rank which he had prior to said appointment shall then be restored to him or her."
Section 17-107 excludes the chief and assistant chief of police from the classified service created by the 1972 ordinance. This section also provides that any classified employees in either the fire or police department who accept appointment as chief or assistant chief of police shall be deemed to have a leave of absence from the classified service for and during the incumbency of either position. However, when such classified employees cease to serve as chief or assistant chief, the same classification and rank which they had prior to their appointments shall be restored to them.
It appears that the quoted section envisions an employee who holds a classified position created under the civil service ordinance adopted in 1972 who is promoted to the office of chief or assistant chief of police and who then is entitled to revert to his former classification when he ceases to serve in either of the two capacities. Of course, there were no classified civil service positions until the effective date of the civil service ordinance, which was October 17, 1972. As a consequence, neither the present chief nor assistant chief of police were classified employees at the time they were appointed to their respective positions in 1970. This being the case, we do not believe that the provisions of Section 17-107 restores then to their former rank when they cease to serve in their capacity as chief or assitant chief.
Ordinances speak only from the time they go into effect. McQuillin, Mun. Corps., Vol. 5, § 15.39. In other words, the civil service ordinance does not have retroactive effect unless it specifically so provides. See KRS 446.080.
Next referring to 82 C.J.S., Statutes, § 417 [which would apply equally to ordinances] , we find it again stated that retroactive legislation changing rights is not favored, and the rule that statutes and amendments are not to be construed retrospectively unless such construction was plainly intended by the legislature, applies with peculiar force.
Next referring to McQuillin, Municipal Corporations, Vol. 3, § 12.142, we quote the following:
". . . In the absence of a clear expression of intention by the legislature to the contrary, a retroactive effect will not be accorded to a pension statute, or to an amendment thereof. . . ."
There is no provision under Ch. 90 KRS dealing with this question and, as a consequence, it is purely a matter left to the city legislative body in its enabling ordinance which you have submitted. This ordinance as presently written would not, as we have stated above, pursuant to Section 17-107, protect in our opinion the prior positions of the chief and assistant chief. Of course, such protection could be given by a simple amendment to the civil service ordinance as the question would not again arise and could be designated as a "grandfather" clause.