Request By:
Honorable George M. Hogg
Attorney at Law
P.O. Box 535
Railroad Street
Olive Hill, Kentucky 41164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 29 in which you, as city attorney for the city of Olive Hill [a city of the fourth class] , initially ask the question as to whether or not said city can adopt a civil service system for all city employees.
The answer to your question would be in the affirmative as we have held in OAG 71-122 followed by OAG 72-33, copies of which we are attaching. You will note that cities of the fourth class are authorized, pursuant to subsection (3) of KRS 95.761, to operate under the general civil service act, namely Ch. 90 KRS, which we pointed out in both opinions would include the right to place all city employees under Ch. 90, including the police and fire departments.
Your second question concerns the legality of a proposal that the city authorized, without charge, an individual to use its swimming pool where said individual would, in turn, charge the parents of children for swimming lessons. The city, in turn, would receive no portion of said charges. The sole benefit of the city from this arrangement would be to provide a service to the citizens of Olive Hill whereby their children could learn to swim.
In answer to your question, we do not believe that such an arrangement would be legal. On the other hand, the city could execute a lease with the individual in question for the use of the swimming pool at reasonable hours for which it would receive a reasonable compensation, or hire him as a swimming instructor [employee of the city], either to give free swimming lessons or charge a reasonable fee to be turned over to the city. Also, arrangements could be made whereby as an employee of the city he could receive a portion of the fees rather than a salary.
The city, of course, is authorized to lease municipal property to private individuals but such cannot be unconditional and without compensation. For example, a town may rent a part of its town hall and a city may lease its town hall to a private person even though the property is actually being used at the same time in a public capacity. In other words, its simultaneous use may be permitted for a private purpose which does not interfere with the public use. See McQuillin, Mun. Corps., Vol. 10, § 28.42. Also, reference is made to KRS 82.060 under which the court has held in the case of