Request By:
Hon. James L. Gay
City Attorney
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of June 22, in which you initially relate the following facts and question:
"The City of Versailles has an occupational tax which provides for an administrator. The Administrator is appointed by the Mayor, with the approval of the City Council, and qualifies as any other officer of the City. I have attached to this letter the copy of the ordinance that establishes this position.
The City has a license ordinance which designates the City Clerk as the person responsible for administering the license ordinance. The City desires to appoint the City Clerk to be the official administrator of the occupational tax as well as her other duties now covered under our City Code.
Will it be necessary for the City to amend the administrator definition of the Code to read that the City Clerk may be appointed by the Mayor with the approval of the City Council as the official administrator of the occupational tax?"
The 1982 Legislature established the office of City Clerk pursuant to H.B. 172, which has been coded as KRS 83A.085. Subsection (2) of this statute reads as follows:
"(2) The office of city clerk may be combined with any other nonelected city office by inclusion of the title and duties of such office in the ordinance establishing the office of city clerk. "
The above statute, which becomes effective July 15, provides that the office of city clerk may be combined with any other nonelective city office by the incorporation of the title and duties of such office in the ordinance that the city must enact in establishing the office of city clerk, which could, of course, include the office of tax administrator if such is in fact an office. If it is not an office, and we see no evidence of it from the licensing ordinance you have submitted, then the position of license administrator would simply be included with the duties of the clerk.
In order for the office of license administrator to be established it must follow the requirements of KRS 83A.080(1), and the mere fact that the ordinance defines the term "administrator" by indicating that it is an office and that the person appointed must qualify as any other city officer, would not establish it as a municipal office.
We also might add that any nonelective office established by the city or any position of employment may be abolished by appropriate ordinance. KRS 83A.080(3) mentioned by you refers to those city offices existing upon the adoption of this act, which was of course July 15, 1980, though it nevertheless does express the authority of the city legislative body to abolish such offices pursuant to an appropriate ordinance. Of course if the office is an elective one, other than that of mayor or councilman which cannot be abolished, the officeholder is entitled to serve out his term.