Request By:
Honorable Thomas L. MacDonald
City Attorney
City of Flemingsburg
105 Main Cross Street
Flemingsburg, Kentucky 41041
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of May 24 in which you raise the following questions:
"1. In light of George v. City of Lebanon, Ky., 424 S.W.2d 588 (1968), may the Mayor delegate his authority as Commander-in-Chief of the City Police to a single Councilman? (KRS 86.200 and KRS 95.700).
"2. If the answer to Question 1 is no, may a single member of the City Council be in charge of purely administrative functions with relation to the operation of a Municipal Police Department of a City of the 4th Class, and if so, to what extent?
"3. May a policeman who is seen violating Rules and Regulations promulgated by the City Council be suspended without pay by a single Councilman who may have witnessed the violation, or do such suspensions require action by the full City Council?
"4. May the Mayor suspend the officer under the facts listed in Question 3?
"5. May the Chief of Police suspend the officer under the facts listed in Question 3?
"6. Is it the position of the Office of the Attorney General that the case of Wilson v. City of Jefferson, Ky., 511 S.W.2d 115 (1974), does not require any type of due process hearing for an officer of a Police Department who has been suspended or fired in a 4th Class City where the City Government has not adopted a Civil Service Commission and Pension Plan under the provisions of KRS 95.761?"
Our response to your first question would be in the negative. The case of George v. City of Lebanon, Ky., 424 S.W.2d 588 (1968), mentioned by you, clearly indicates that the mayor, who is the head of the police department, has the sole power to issue executive orders to the department and such authority cannot be delegated to any other person, including a member of the city council, other than possibly the chief of police who is second in command. KRS 95.730.
In response to your second question, we are not sure what you are referring to when you use the phrase "purely administrative functions." Certainly the council can and should enact an ordinance setting forth the rules and regulations governing the department and appoint personel by motion or resolution to the department as authorized by KRS 95.700, and there would be no constitutional or statutory incompatibility for a member of the city council to serve in some capacity as a city employee or administrator unless a contractual relationship appears in connection with the employment pursuant to which he receives some pecuniary gain [KRS 61.270], and provided the person appointed is under the direction of the mayor.
Our response to your third, fourth and fifth questions would be in the negative as the city council has sole authority to employ and remove policemen pursuant to KRS 95.700 which would include the power to suspend. See McQuillin, Mun. Corps., Vol. 4, § 12.253. The power to remove or suspend cannot be delegated unless specific statutory authority so authorizes. Section 12.253a in part reads as follows:
". . . In the absence of law to the contrary, the power of suspension of municipal officers exists with the governing body of the municipality but such power cannot be exercised by an individual or inferior body unless it is expressly conferred. . . ."
Our response to your sixth question would be in the affirmative. The case of Wilson v. City of Jefferson, Ky., 511 S.W.2d 115 (1974), very clearly declares that where the statute does not require a hearing, none is necessary as the circuit court is the forum before which the issue is to be decided. See also Bell v. Bd of Education of McCreary County, Ky., 450 S.W.2d 229 (1970); and Fleeley v. City of Edgewood, Ky., 514 S.W.2d 689 (1974). Also, for your information, we are enclosing a copy of OAG 76-435 pertaining to this question as well as OAG 75-202 and OAG 76-80 mentioned in the initially referred to opinion.