Request By:
Marcus A. Hanna, Esq.
14 West Fourth Street
Newport, Kentucky 41071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter presenting a question concerning a pension or annuity. The present city treasurer of Bellevue, a city of the fourth class, has held that office for over twenty-two years. Since 1969 she has also held the position of city clerk, pursuant to a municipal ordinance and KRS 86.060. The city desires to establish some type of pension for the lady in recognition of her long tenure and service to the city. You cite Section 161 of the Kentucky Constitution prohibiting any change in the compensation of any city officer during his term of office.
Your specific question is what form of pension or annuity, if any, may be established for the city treasurer or the city clerk during the present terms of office.
KRS 92.060 provides in part that the city council of each city of the fourth class shall elect a competent person as treasurer of the city, or, if the city council so provides by ordinance, the voters of the city shall elect the treasurer. The treasurer is required to take the constitutional oath and execute bond. Pursuant to KRS 86.060, the council may, by ordinance, confer the function of clerk of the council upon the treasurer to be performed in addition to the duties prescribed by KRS 92.060. If said function is not conferred upon the treasurer, a clerk of council shall be elected by the council or by the voters if so prescribed by an ordinance properly enacted. Pursuant to the above-mentioned statutory provisions as well as the definition of an officer, as expressed by the courts, a city treasurer, a clerk of the council, and the treasurer-clerk are municipal officers rather than municipal employes. See OAG's 76-16 and 75-721, copies enclosed.
KRS 79.080(2) provides in part as follows:
"Cities of all classes, counties and urbancounty governments and the agencies of cities, counties and urban-county governments are authorized to establish and operate plans for the payment of retirement, disability, health maintenance organization coverage, or hospitalization benefits to their employes, and health maintenance organization or hospitalization benefits to the immediate families of their employes. . . ."
The statute does not mention or include municipal officers and this office has concluded in a number of opinions that such officers are excluded from the coverage authorized by the statute. See OAG's 75-470, 73-283 and 70-720, copies of which are enclosed. A municipal officer could participate in a group pension plan, under KRS 79.080, along with the city employes, so long as that officer paid the required amounts due form his own personal funds.
Thus, in answer to your specific question, the city, under the existing statutory provisions, is not authorized to establish a pension program for municipal officers. Municipal officers, such as the treasurer-clerk, could only participate in a municipal employes' pension plan if those officers paid all required premiums from their own personal funds.