Request By:
Mr. Carroll M. Ewing
Mayor, City of Florence
7431 U.S. Highway 42
Florence, Kentucky 41042
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter presenting the following question:
"Is it legal, by ordinance, to create a position that is not provided for under a specific statute or are there any statutes enabling the Common Council of a city of the third class by ordinance to legislate administrative powers to anyone other than the duly elected mayor?"
Cities possess only such powers as are expressly given, or necessarily implied, in statutes constitutionally enacted, and, if there is a fair and reasonable doubt of the existence of the power, it should be resolved against the city. See
Juett v. Town of Williamstown, 248 Ky. 235, 58 S.W.2d 411 (1933). The general powers of the common council are set forth in KRS 85.120 while the duties and powers of the mayor are listed in KRS 85.250.
You have not detailed the position which is to be created nor have you set forth the precise powers and duties which will be delegated. However, we direct your attention to KRS 85.280, which provides in part as follows:
"In addition to the officers provided for by statute, the common council may provide by ordinance for the appointment or election of such others as are necessary to carry into effect the provisions of the laws relating to cities of the third class, and may prescribe their duties and powers, not to conflict with the duties and powers of any officer provided for by statute. . . ." (Emphasis added.)
Thus, the common council has the authority to create minor offices, if such are necessary, and those minor offices may constitute public offices of a civil nature if the possess the five indispensable elements set forth in
Howard v. Saylor, 305 Ky. 504 204 S.W.2d 815, 817 (1947). See also OAG 77-369, copy enclosed, stating that cities have the general power to establish minor city positions and offices.
In addition, the city legislative body may under its general powers create committees and commissions of an advisory nature only to the council. See OAG 76-163, copy enclosed. However, neither advisory committees and commissions nor persons holding minor city positions and offices created by the common council can exercise the general powers and duties granted by statute to the mayor or the common council. Again see KRS 85.280.
In connection with the delegation by the city legislative body of its administrative powers, see OAG 77-371, copy enclosed, where we said in part:
". . . [T]he city council is vested with the administrative powers of the city, which includes the power to hire and fire city employes as well as supervise their employment activities. Such supervision could, however, be delegated to other officials, including the mayor. See
Griffin v. City of Paducah, Ky. 382 S.W.2d 402 (1964), and OAG 67-536. . . ."
In
Griffin v. City of Paducah, Ky., 382 S.W.2d 402, 404 (1964), the Court said in part:
"We have recognized and approved the delegation of ministerial and administrative functions to subordinate officials, even though, nominally, all administrative powers are vested in the municipal legislative body.
Kohler v. Benckart, Ky., 252 S.W.2d 854."
Although your letter is not specific as to the position to be created and the powers to be delegated, we will, by way of summary, state the applicable principles involved:
1. The city legislative body may create committees and commissions of an advisory nature only and may establish minor city positions and offices but none of these committees, commissions, employes or officers may exercise the general powers and duties granted by statute to the mayor and common council.
2. The common council, vested with the administrative powers of the city, may delegate its administrative and ministerial functions to other city officials, including the mayor, but the common council may not delegate the powers and duties of the mayor to other officials.