Request By:
Mr. Ronald G. Combs
City Attorney
City of Hazard
P.O. Drawer 1137
Fuller-Fouts Building
Hazard, Kentucky 41701
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 31 in which you relate that a serious question has arisen regarding the manner in which the personnel of the police and fire department of the city are hired, discharged, promoted, etc. At present there exists a so-called merit board, appointed by the previous administration, whose function apparently is to review all applications for hiring or promoting members of the police and fire department as well as determine other personnel matters relating to the department.
Your basic question concerns the legality of the existence of this merit board which was established pursuant to a 1959 ordinance, a copy of which you enclose. As a matter of background, you indicate that an ordinance was passed in 1953 electing to operate under the civil service provisions of KRS 90.310 and a civil service commission was appointed pursuant to KRS 90.310; however, in 1954 the 1953 ordinance was repealed in its entirety, and the only legislation now in existence is the 1959 ordinance previously referred to, which contains no statutory reference or any other authority concerning the basis for the establishment of the "merit board". Under the circumstances, you raise the following four questions:
"1. May a city of the third class operating under the city manager form of government establish by ordinance a merit board to review applicants for employment, pending promotions, and disciplinary matters within the police and fire departments of such city and make recommendations thereon to the Board of Commissioners, and if so under what statutory authority?
"2. If the answer to question 1 be in the affirmative, is there any limitation on the number of members of which such a merit board consist?
"3. If the answer to question 1 be in the affirmative, and where the ordinance creating such a merit board fails to specify a specific term for which appointees are to serve, may the Board of Commissioners discharge or replace such members of the merit board at any time?
"4. If the answer to question 1 be affirmative, and assuming further that a city has passed an ordinance establishing such a merit board, may the city repeal such ordinance in its entirety and elect to operate under the provisions of KRS 90.300 through 90.990 as to the Police and Fire Departments only, and not as to the remaining employees of the city?"
Cities of the third class, such as Hazard, are required to establish a police and fire department under Ch. 95 KRS, particularly KRS 95.330, etc. Prior to 1966 the establishment of the police department under Ch. 95 was discretionary, however, as a result of a 1966 amendment to KRS 95.440, such establishment was made mandatory as held in OAG 73-169, copy enclosed.
The control of the police department under the terms of KRS 95.430 is vested solely in the city's legislative body as held in the case of
Schrichte v. Bornhorn, Ky., 376 S.W.2d 683 (1964). We find no provision under Ch. 95 KRS relating to cities of the third class that authorizes the establishment of a civil service commission or merit board to administer the act in place of the city legislative body. In this respect it is to be noted that a civil service commission is specifically authorized for cities of the fourth and fifth class under KRS 95.763.
We also find no authority for the city to elect to operate its police and fire department pursuant to Ch. 90 as is permitted in the cases of cities of the fourth and fifth class under KRS 95.761 (3). Concerning this point, we refer to the case of
City of Middlesboro v. Harrell, 268 S.W.2d 430 (1954), which points out with reference to Ch. 90 that the police and fire departments of cities of the third class are governed by Ch. 95 since they are excluded from Ch. 90 KRS by KRS 90.300 (2).
As you have indicated, cities possess only those powers expressly given or necessarily implied. See
Juett v. Town of Williamstown, 248 Ky. 35, 58 S.W. 411 (1933). See also McQuillin, Mun. Corps., Vol. 5, § 15.22, and the case of
Hirschfeld v. Commonwealth, 256 Ky. 374, 76 S.W.2d 47 (1934).
It thus would appear that the city of Hazard must operate its police department under the terms of KRS 95.430, etc., and any ordinance establishing a so-called merit board to administer the civil service program such as the 1959 ordinance would be invalid at least in so far as the board's establishment is concerned in the absence of specific statutory authority. In other words, the board of commissioners of the city has the full responsibility to administer the civil service act. Thus, since the board has no legal existence in our opinion, the city should either amend or repeal the ordinance in question and re-enact legislation in conformity with Ch. 95 KRS governing cities of the third class.