Request By:
Honorable Edward C. Keeton, Jr.
City Attorney
Commercial Bank Building
West Liberty, Kentucky 41472
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You state that West Liberty is a fifth class city and that as City Attorney, you need an interpretation of KRS 95.720 and OAG 73-25.
From a telephone conversation, you specifically want to know whether the police chief is covered by the minimum wage law and would he have to be paid overtime pursuant to that law.
OAG 73-25 determined that overtime would not have to be paid a police chief. Of course, that opinion was based on law then in effect. The present Kentucky minimum wage law was not enacted until 1974.
KRS 95.720 provides that in fourth class cities, a police chief may be appointed or be elected. In fifth class cities, he shall be appointed. In both classes of cities, he may be paid either by fees or salary or both. However, in cities of the fourth class, the salary must be fixed by ordinance prior to the election or appointment. The implication there is that the time of fixing the salary prior to the appointment would not apply to fifth class cities.
KRS 337.010 (2) omits from minimum wages and overtime coverage under (ii) as employees those individuals employed in an executive, administrative, supervisory, or professional capacity (among others) as such terms are defined by administrative regulation of the commissioner [of Labor].
Accordingly, the Department of Labor has promulgated 803 KAR 1:070 to define individuals employed in a bona fide executive capacity as any employee:
1. whose primary duty consists of management of the enterprise or the department,
2. who regularly directs two or more other employees,
3. who has authority to hire or fire or to have input into the hiring or firing of other employees,
4. who regularly exercises discretionary powers,
5. who does not spend more than 20 percent of his workweek time in performing the same duties as those he supervises,
6. and who is compensated at least $155 per week. If he receives at least $250 per week, supervises two or more employees and whose primary duties consist of the management of the "enterprise", he need not meet the other criteria.
Thus, if your police chief of a fifth class city meets all six criteria heretofore set out, he is not an employee under the Kentucky minimum wage law and need not be paid overtime pay. If he does not meet that criteria, he would be subject to overtime. In the latter case, he would not be exempted as employed in an "executive capacity".
Therefore, OAG 73-25 is modified as it applies to fifth class cities.
A different question may arise as to fourth class cities, but that question is not presented in this case.