Request By:
Mr. F. Dennis Alerding
City Solicitor
Fourth and York Streets
Newport, Kentucky 41071
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of September 9, in which you raise the following questions:
1. May the City Manager make temporary promotions with the police and fire departments, such as acting Lieutenant or acting assistant Chief, pursuant to the authority vested in him by KRS 83A.150 (7)(B)? If he may make such temporary promotions or appointments, what is the duration of said appointments and how often may they be renewed?
2. If a duly qualified police officer is given a temporary appointment at a higher rank or as an acting officer of a higher rank, what is the status of his pay when the temporary appointment expires and he is returned to his regular rank and duties?
You furnish the following background with respect to the above questions:
"The police department is laboring with several top management positions vacant. The police Chief indicated that he cannot adequately run his department without some assistance at supervisory positions. The City Manager proposed to make several temporary appointments within the department, such as acting assistant Chief, acting Captain, acting Lieutenant, and acting Sergeant. These promotions were in no way intended to be permanent and were not voted on by the Board as permanent promotions. No promotional exam was taken for these appointments and the intent of these appointments is to be temporary. However, the Board is concerned about the duration of these appointments and the effect on the officers' pay scale, once the temporary appointment lapses."
All legislative and executive authority under the city manager form of government is vested in the commission composed of four commissioners and a mayor pursuant to KRS 83A.150(3). The police and fire departments in cities of the second class, originally controlled by KRS 95.430 [repealed] are still under the control of the city commission from a legislative standpoint. These departments must of course be organized pursuant to an appropriate ordinance pursuant to KRS Chapter 83A., detailing the rules and regulations which should include the appointment and promotion procedure for both temporary and permanent officers and employees.
KRS 83A.150 (7)(b) authorizes the city manager to employ personnel for temporary positions. However, such positions we believe must first be established pursuant to an appropriate ordinance. You will note under KRS 83A.150(5) that the commission establishes all appointive offices and positions which would include the positions under the police and fire departments. In establishing such positions by ordinance, the compensation attached to each position should also be established, either by said ordinance or a separate ordinance dealing with compensation of all officers and employees of the city.
Assuming there is an ordinance providing for temporary promotions in the police and fire departments, the city manager then would have the authority under KRS 83A.150 (7)(b) to make such appointments for whatever duration the ordinance may provide. Also, under the established pay scale for the various ranks within the departments, it would be assumed that once the temporary appointment expires and the promoted officer is returned to his initial rank, his compensation would revert to the rate provided for said rank.
Thus, the simple answer to your questions would appear to be that the terms of the ordinance governing the police and fire departments must include the necessary provisions for authorizing temporary promotions, the duration of such promotions, and of course the pay scale attached to such position within said departments. In essence, it boils down to the fact that the city manager's power is limited in scope to those imposed upon him by ordinance under the provisions of KRS 83A.150(7).