Request By:
Honorable Robert G. Zweigart
Attorney at Law
Cochran Building
Maysville, Kentucky 41056
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter O. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 3 in which you, as City Attorney for the city of Maysville [a third class city operating under the city manager form of government] , indicate that the present city clerk is retiring on March 29 and a board of commissioners desires to appoint as clerk the present financial director who resides outside of the city. You further relate that KRS 85.260, applicable to cities of the third class operating under the councilmanic form of government, requires that the city clerk reside within the city. At the same time, you further point out that treasurers of third class cities must have the same qualifications as city clerks pursuant to KRS 92.050(1). In comparison you mention the fact that in OAG 71-458 we held that treasurers in fourth class cities were not required to reside within the city. Your question is whether or not the city clerk of a third class city can, in fact, reside outside the city limits where the city is operating under the city manager form of government.
Our response to your question would be in the negative. Though KRS 89.440 provides for the abolition of nonelective city officers as well as elective city officers following the adoption of the city manager form of government, KRS 89.400 provides that all laws applicable to and governing cities of the third class under the councilmanic form of government that are not inconsisent with the provisions of the city manager form of government shall continue to apply and govern the city.
A case in point is the qualifications required of the city attorney under the city manager form of government which the court declared, in the case of
Black v. Sutton, 301 Ky. 247, 191 S.W.2d 407 (1945), were governed by the councilmanic law even though the office was abolished and an attempt was made to re-establish it as a form of employment. As a consequence, we believe that the city clerk, established under the city manager form of government, must possess those qualifications found in KRS 85.260 which requires the clerk to reside within the city since there are no specific qualifications for the office of clerk under the city manager form of government.
The opinion dealing with the city treasurer of a fourth class city is distinguished in that there are no statutes under the councilmanic form of government requiring that the treasurer reside within the city and, in addition, he is not a constitutional officer as held in the Schindler case.