Request By:
Honorable Phillip Bruce Leslie
Attorney at Law
Corner of Main & Harrison Streets
Greenup, Kentucky 41144
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of December 6 in which you, as city attorney for the city of Greenup [a city of the fifth class], raise the following questions:
"1. Do the above two statutes [KRS 87.160 and 87.170] require the City Attorney to be a city resident, and, if so, is the City Council required pursuant to these statutes to hire a resident attorney if one is available and applies for the job?"
"2. If no attorney is a resident in the City, and if such residency is an absolute requirement, can the City Council then hire someone who resides outside the City?"
Our response to both questions would be in the affirmative. The position of city attorney is a municipal office under the terms of KRS 69.580 and particularly under KRS 87.170 (2) which provides that the city council shall appoint a city attorney for a term of two (2) years. KRS 87.160 provides that no person shall be eligible to hold any office in the city unless he is a resident and qualified voter in the city and has resided in the city for one (1) year next preceding his election or appointment. As a consequence, the city is required to appoint a legal resident of the city as city attorney if one is available.
On the other hand, if no attorney is available for appointment that resides in the city, the city can, we believe, employ by a personal service contract a nonresident attorney to advise the city on legal matters. The city obviously must have legal counsel. In the case of City of Glasgow v. Burchett, Ky., 419 S.W.2d 544 (1967), the Court of Appeals held that a nonresident attorney employed by the city to advise it on legal matters was merely an employee rather than an officer. The question involved a possible incompatibility between the office of police judge of a third class city and the employment of the judge as an attorney to advise a fifth class city where the judge was a nonresident of said city. We also might cite the case of Hopson v. Howard, Ky., 367 S.W.2d 249 (1963), where the Court held that an attorney employed by the school board to handle its legal matters was, in fact, an independent contractor. We also might mention the provision of KRS 69.580 with respect to the employment of outside counsel.