Request By:
Honorable Norbert P. Gettys
Attorney at Law
N.W. Corner Third & Court
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of May 14 in which you as city attorney for Highland Heights, a city of the fifth class, raise a number of questions divided into two parts which are as follows:
PART ONE:
Council is considering the appointment from its membership various members of Council to serve as a committee chairperson supervising the various administrative departments of the City.
Questions incident to such consideration are:
1. May Council create such supervisory chairperson position from its membership?
2. If such position may be created, what administrative powers, if any, may Council delegate to such person?
PART TWO:
Council is considering the appointment of a city-coordinator with such position consisting of supervising all daily administrative affairs of the City's police department, maintenance department, and the duties of the City's clerk-treasurer.
Questions incident to such consideration are:
1. May Council create the position of city-coordinator?
2. If establishment of the city-coordinator position can be legally based, may he preside as supervisor over the affairs of the city clerk-treasurer?
We initially call your attention to the fact that the 1980 legislature enacted a comprehensive revision of the laws relating to municipal government known as Senate Bill 26. This Act will become effective on July 15, 1980 and, as a consequence, we will attempt to answer your questions in light of the new legislation rather than the present laws relating to fifth class cities.
In response to your initial question concerning the council's power to appoint, among its membership, various members to head the various administrative departments of the city, you will find under Senate Bill 26 that only those cities operating under the commission form of government [§ 14 of the Act] are authorized to make such appointments from their memberhip to head the administrative departments created by ordinance.
As for those cities operating under the mayor-council form of government [which would include cities of the fifth class] under § 2 of the Act, the mayor is declared to be the executive authority of such city as set out under § 1 (6) and § 13 (3). Subsection (3) of § 13 specifically provides that the mayor shall supervise all departments of city government and the conduct of all city officers and employes under his jurisdiction and shall require each department to make reports to him as provided by ordinance or as he deems desirable. Also, under subsection (4), the mayor shall, subject to the disapproval of the council, promulgate procedures to insure the orderly administration of the function of city government and in compliance with the statutes and ordinances.
Our response to your two questions under Part One would therefore be in the negative as it is apparent that S.B. 26 vested in the mayor the overall executive authority of the city with the specific authority to supervise all the administrative departments of city government. This would exclude such supervision on the part of the members of the city council.
In response to your initial question under Part Two, Senate Bill 26 provides in § 9 that each city may create the position of city administrative officer who shall be directly responsible to the executive authority of the city which would, of course, be the mayor as we have previously pointed out. The city administrative officer has been given certain statutory duties in addition to those duties lawfully delegated by an appropriate order issued by the mayor under subsection (2) of § 9. These duties are as follows:
"(a) Advise the executive authority of the city in policy formulation on over-all problems of the city;
"(b) Have major responsibility for preparation and administration of operating and capital improvement budgets under direction of the executive authority;
"(c) Advise the executive authority of the city in the appointment of subordinate administrative personnel if not delegated appointment authority by appropriate order; and
"(d) Have continuing direct relation ships with operating department heads on implementation and administration of programs."
In response to your second question under Part Two, we might again point out that the mayor is authorized to supervise the conduct of all city officers and employes under his jurisdiction pursuant to § 13 (3). As a matter of fact, under § 8 (2) it is provided that all nonelected city officers are to be appointed by the mayor and all such appointments shall be with approval of the city legislative body. Also, such officers may be removed by the mayor at will unless otherwise provided by law. The mayor would thus have supervisory power over the city clerk-treasurer. Subsection (3) provides that each appointed and elected city office existing upon the adoption of this Act shall continue until abolished by ordinance except that the offices of mayor and legislative body members may not be abolished.
We suggest that you, as city attorney for the city in question, obtain a copy of S.B. 26 as well as S.B. 41 [Home Rule] since these bills will shortly be in effect and will govern the various classes of cities. We might add that all of Ch. 87 KRS [fifth class cities] is repealed as of July 15.