Request By:
Mr. Fred Goins
305 8th Street
Corbin, Kentucky 40701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of March 22, in which you state that the City of Corbin has for many years been a third class city under the city manager form of government. Under the circumstances you relate the following facts and questions:
"Our new mayor, apparently unhappy with the $4,000.00 maximum annual salary as provided under KRS, requested and received from the city commission an annual allowance of $3,600.00 for travel expenses.
The city manager's resignation was accepted by the mayor effective January 1, 1982 and the city has operated without a regular city manager since that time.
The mayor has publicly stated that he does not favor the city manager form of government, however, when it was brought to his attention during a recent city commission meeting, our city clerk was appointed acting city manager.
Since the city clerk has a full time position, the mayor, has in effect, usurped the duties of the city manager.
Two questions arise here:
1. Is there any limitation on how long a city manager form of government can function without employing a bona fide city manager?
2. Is it legal to provide the mayor with a $3,600.00 annual travel expense allowance without him furnishing a detailed account of actual expense or would this be considered an illegal means of increasing the salary limit for the mayor from $4,000.00 to $7,600.00 annually?"
Since the City of Corbin is operating under the city manager-commission form of government, the new municipal code enacted in 1980 requires all such cities to operate under the provisions of KRS 83A.150 as well as the general provisions of the code not in conflict therewith. Pursuant to KRS 83A.150(7) a board of commissioners composed of four commissioners and a mayor, is required to create the office of city manager by ordinance, which office carries with it the duties and responsibilities therein designated and those that may be given to it by the board in accordance with KRS 83A.080. The establishment of the office of city manager is mandatory on the part of the commission and it must be filled as soon as it is possible to find a qualified individual.
Pursuant to KRS 83A.150(2) and (3) the office of city manager can be filled only by the commission itself of which the mayor is a voting member. The commission possesses all legislative and executive authority under the city manager form of government and the mayor has no appointive power or regular administrative duties. Pursuant to subsection 7(b) of the referred to statute it specifically provides that no officer or employee of the city shall be appointed or removed except through the action of the board of commissioners. Thus, the mayor has no individual say-so as to who will fill the office of city manager or when it is to be filled. This is purely a matter for the commission itself to determine. Of course any undue delay in filling this position could subject the commission to a mandamus action by any citizen to carry out the mandate of the statute. See McQuillin, Municipal Corporations, Vol. 17, § 51.29.
In response to your second question, lump sum expense accounts for municipal officers are illegal under the terms of KRS 64.710, which provides in effect that no public officer or employee shall receive or be allowed or paid any lump sum expense account for personal or official expenses except when specifically authorized by statute. Thus, the annual lump sum allowance of $3600 for travel expenses for the mayor is illegal. Public officials and employees are of course entitled to travel expenses but only in response to detailed evidence of the actual expenses incurred. See Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) and McWhorter v. City of Richmond, Ky., 514 S.W.2d 678 (1974).
We also might point out that the maximum compensation that a constitutionally named municipal officer such as the mayor can receive is $7200. Said compensation must be fixed not later than the first Monday in May of the year in which he is elected, as required by KRS 83A.070. Also, the cost of living index cannot be applied to municipal officers since the state legislature has not acted in this field. We are enclosing a copy of OAG 80-79 together with a miscellaneous letter addressed to Mayor M.J. "Pat" Cooper, dated February 16, 1982, pertaining to this question.