Request By:
Mr. David L. Van Zant
Attorney at Law
P.O. Box 844
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of February 1, in which you, as Chairman of the Elizabethtown Civil Service Commission, relate that it is the desire of the commission to make the age requirements for applicants for policemen and firemen more stringent than those provided for under KRS 90.330, which places the age of employment between eighteen (18) and forty-six (46) years. The desire of the Commission is to provide that a policeman must be between the age of twenty-one (21) and forty (40) and firemen between eighteen (18) and thirty-five (35). The question is raised as to whether or not this can legally be done.
Our response to your question would be in the negative. Where a statute details the qualifications required of a particular office or employment, such qualifications cannot be reduced or enlarged or, in other words, changed in any way, by ordinance. See Hirschfeld v. Commonwealth, 256 Ky. 374, 76 S.W.2d 47 (1934). Also reference is made to McQuillin, Municipal Corporations, Vol. 5, Section 15.22, from which we quote the following:
"It has been stated broadly that no municipal ordinance can go beyond, be broader than, add to, subtact from, modify or affect, limit, amend, or change statutes, at least where the net result is one of conflict. . . ."
Again, in the case of Louisville & Nashville Railroad Company v. Commonwealth, Ky., 488 S.W.2d 329 (1972), we find the Court declaring that "a conflict exists between an ordinance and a statute where the ordinance permits conduct which is prohibited by statute or prohibits conduct which is permitted by state. . . ."
It is a fundamental principle that municipal ordinances are inferior to statutes and subordinate to the laws of the state and any ordinance in conflict with the state law is universally held to be invalid. Boyle v. Campbell, Ky., 450 S.W.2d 265 (1970). See also City of Bowling Green v. T & E Electrical Contractors, Ky., 602 S.W.2d 434 (1980), and City of Bowling Green v. Gasoline Marketeers, Inc., Ky., 539 S.W.2d 281 (1976).
There is one exception to the strict compliance with the age qualifications in KRS 90.330 and that pertains to the maximum age limitation must give way to the requirements of the Kentucky Civil Rights Act, Chapter 344 KRS, and particularly KRS 344.040, which prohibits any discrimination between the ages of forty and seventy. In OAG 74-138 we held that the forty-five (45) age maximum limitation found in KRS 90.330 was modified by the Civil Rights Act and extended to sixty-five (65), which has been subsequently extended to the age of seventy (70) by a 1980 amendment. For your information we are enclosing a copy of said opinion which will be modified by the statutory amendment enacted subsequent to the issuance of this opinion. See also 74-539.
We also call your attention to Administrative Regulation 104 KAR 1:040 relating to job discrimination advertising under the Civil Rights Act which permits an employer to make application to the Commission on Human Rights for a "bona fide occupational qualification" exemption pursuant to Section 3 which could, if approved, reduce the maximum age protection referred to above.
Under the circumstances, the age qualifications set out in KRS 90.330 as modified in the Civil Rights Act cannot be deviated from by ordinance.