Request By:
Honorable Mark Fitzgerald
State Representative
62nd District
P.O. Box 313
Cynthiana, Kentucky 41031
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of September 21 in which you pose the following questions relating to city attorneys in cities of the fourth class operating under the commission or city manager form of government with particular reference to KRS 69.560:
"1. Can a fourth class city operating under the commission form of government employ or appoint a city attorney?
"2. If such a city can employ or appoint a city attorney,
"(a) is the city attorney an 'officer' or 'official' of the city under KRS 89.100 or Ky. Const. § 234?
"(b) how may the city attorney be compensated?
"(c) are there minimum and/or maximum limits on such compensation?
"(d) must the city attorney reside in the city?
"(e) is there a minimum and/or maximum time limit on the attorney's term of appointment or employment?
"(f) after January 1, 1978, will such city attorney have a duty to serve as prosecutor for any criminal offenses alleged to have occurred in such city?"
Our response to your initial question would be in the affirmative and we refer you to OAG 62-865 [copy enclosed]. This opinion cites the case of Black v. Sutton, 301 Ky. 247, 191 S.W.2d 407 (1945), in which the court stated that the statutes declaring that the office of city attorney is abolished under the commission or city manager form of government abolished such office in name only, and where the city employed or appointed a city attorney under its general powers, he was an officer of the city, subject to the qualifications and duties enumerated in KRS 69.480 relating to city attorneys in cities of the third class. This case would equally apply to KRS 69.560 relating to cities of the fourth class as pointed out in said opinion.
The reference to § 234 of the Constitution as controlling residential qualifications of the city attorney is no longer applicable since he is not a constitutionally named officer as held in the case of Board of Education of Graves County v. De Weese, Ky., 343 S.W.2d 598 (1961); and Newport v. Schindler, Ky., 449 S.W.2d 17 (1969). As a consequence, reference must be made to KRS 69.560 as amended in 1976 which provides that the city attorney must be a resident of the city or of the county wherein the city is located. Concerning the residential qualifications of the city attorney, we are also enclosing a copy of OAG 77-91.
Concerning the compensation of the city attorney, reference is again made to the case of Black v. Sutton, supra, wherein the court pointed out that the statutory provisions [KRS 69.560] controlled the qualifications, duties and compensation of the city attorney. This statute specifically states that the city legislative body shall fix the city attorney's compensation by ordinance before his appointment or election. Since he is not a constitutional officer, his compensation would not be governed by § 246 of the Constitution. As a consequence, there would be no limitation on the amount of such compensation except as determined by the board of commissioners.
Concerning the term of the city attorney, KRS 69.560 simply says that he shall hold office for a term of two (2) years, subject to removal at any time for good cause by the city legislative body.
With respect to the appointment of officers generally, we refer you to McQuillin, Mun. Corps., Vol. 3, § 12.83, which reads in part as follows:
"Where the power of appointment exists the rule usually laid down is that, in a proper case, it may be exercised at any time during the term of the officer or the board or body authorized to act in the premises. . . . But a council not being constituted as it will be when the term of office will expire has no authority to appoint a successor of the incumbent before the expiration of the current term. It has been held that the official board or body of a municipality which is or will be in office at the time an appointee takes his office can alone make an appointment to such office, unless there be express legislative authority otherwise. . . ." (Emphasis added).
Our response to your last question, concerning the duty of the city attorney to serve as prosecutor in criminal cases occurring in the city, would be in the negative. As you know, police courts are abolished as of January 1, 1978 and all litigation stemming from cities will be vested in the new district courts at that time. Also, the office of city prosecutor in the various class cities, including cities of the fourth class, has been abolished, effective January 1, 1978. At that time, the county attorney [pursuant to KRS 15.725(2)] will have the duty of handling prosecutions of all violations of criminal and penal laws within the jurisdiction of the district court, which would, of course, include violations occurring within the various cities. Subsection (2) reads as follows:
"(2) The county attorney shall attend the district court in his county and prosecute all violations of criminal and penal laws within the jurisdiction of said district court."