Request By:
Mr. James Terry Hodges
City Attorney
108 North Reed Street
Columbia, Kentucky 42728
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Elizabeth E. Blackford, Assistant Attorney General
In your letter you requested the opinion of this office on the following:
1. In accordance with KRS 95.700, can the legislative body of a Fifth Class City pass an ordinance allowing the City Council to set all employee (including members of the police department) shifts, hours, and days in which the employees are to work?
2. Does the Mayor of a Fourth Class City have the authority to set the working shifts of members of the police department under KRS 86.200 or is such authority vested in the City Council as done by an ordinance as referred to in question 1?
3. What effect does a Mayor's refusal to sign an authorized check or ordinance passed by the legislative body have on the instrument? What is the City Council's recourse in such a situation?
In response to question 1, in a city having the councilman form of government the City Council is the legislative body of the city. See 87.020 and 87.030. As such it is statutorily empowered to act in those areas over which the legislature has given it jurisdiction. Pursuant to KRS 95.700 the legislature has given the City Council the power to, by ordinance, establish a police department, appoint its members, and provide for their numbers, grades and compensation. Therefore, the City Council need not pass an ordinance to enable it to set the shifts, etc., of members of the police department. It already has that power by virtue of KRS 95.700. The City Council need only pass ordinances which do set the shifts, hours, etc., of members of the police department.
In response to question 2, the power granted the mayor of a fourth class city to head the police and command them in the performance of their duty is an executive power only, and does not give the mayor the power to set the shifts, etc., of the police department.
As an executive or administrative officer of the city, the mayor is not a member of the legislative body of a fourth class city. See McQuillon, Municipal Corporations, Vol. 3, § 12.43; KRS 86.030. Pursuant to KRS 86.030 the city council is the legislative body of the city, in a councilman form of government. Pursuant to KRS 97.200 the legislative body of a fourth class city has the power, by means of ordinances, to regulate the police department. This includes the power to set the shifts the police shall work. See OAG 68-183, enclosed. Therefore, in a fourth class city the city council, not the mayor, has the power to set the shifts, etc., of the police department.
We will deal with question 3 in several parts.
In a fifth class city the failure of the mayor to sign an ordinance will have no impact on the validity and effectiveness thereof if the ordinance was passed in accord with the provisions of KRS 87.050 and published in accord with Chapter 424. Because the mayor of a fifth class city has no veto power, the signature of the mayor to ordinances is merely evidence of authenticity and is not necessary for approval of the ordinance. The act of signing is ministerial and KRS 87.050 is merely directory in this respect. Commonwealth v. Williams, 120 Ky. 314, 86 S.W. 533 (1905). Therefore, in a fifth class city, refusal by a mayor to sign an ordinance will not render the ordinance void. Foley v. Kinett, Ky., 486 S.W.2d 705 (1972).
In a fourth class city the failure of a mayor to sign an ordinance will impact upon the validity and effectiveness of a duly passed, published and recorded ordinance only if the mayor has also followed the procedure necessary to veto the ordinance. If the mayor does not veto an ordinance, it will become effective ten days after it was passed, regardless of the presence/absence of the mayor's signature thereon. KRS 86.090(3); City of Russell v. City of Flatwoods, Ky., 394 S.W.2d 900 (1965).
If the mayor of a fourth class city does veto an ordinance, the city council may pass the ordinance over the veto by a two-thirds vote of the members of the council, KRS 86.090(2).
Pursuant to KRS 92.060 and 92.070, the city treasurer of a fourth or fifth class city may only pay out city funds on warrants signed by the mayor and countersigned by the clerk of the city. It is the general rule that where the statute requires that a specific officer, in this case the mayor, shall sign a warrant, the warrant cannot be legally issued without that signature. McQuillan, supra, Vol. 15, § 42.11. It is also a general rule that the drawing and signing of a warrant is a ministerial duty, and that a municipal officer cannot refuse to issue a warrant without good cause. McQuillan, supra, § 42.08.
Pursuant to KRS 87.130 the mayor of a fifth class city "shall sign all warrants drawn on the city treasurer. . . ." The language of the statute is mandatory, not discretionary. Were this not so, the mayor would possess, in essence, a veto power arising from a "power over the purse" which has otherwise been withheld from him. Therefore, if the other conditions necessary to the issuance of a warrant have been met, the mayor cannot refuse to issue and sign the warrant. Where the mayor does refuse to issue or sign the warrant, the city council may bring an action of mandamus to compel the mayor to perform his duty.
We are enclosing a copy of OAG 64-915 which deals extensively with the immediately preceding problem on the level of a fourth class city. We have nothing further to add to this discussion except to remind you that the city council of a fourth class city may also bring an action in mandamus to compel the mayor to perform any nondiscretionary duty.