Request By:
Deborah G. Roher, Esq.
Northeast Kentucky Legal Services
P.O. Box 1573
Ashland, Kentucky 41105-1573
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning a city's anti-nepotism ordinance.
A person who had applied for a position as a city firefighter and who had passed the qualifying examination was subsequently rejected because his brother-in-law was already working for the fire department. The city of Ashland's antinepotism ordinance provides in part as follows:
"No person shall be employed by the city for work to be performed within any of the various departments wherein the applicant for employment is related by blood or marriage to a then existing employee within the department in any of the following degrees, viz, husband, wife, father, mother, son, daughter, brother, sister, father-in-law, mother-in-law, sister-in-law or brother-in-law. "
You refer to OAG 74-198, KRS 95.440, dealing in part with the qualifications of members of the fire department of a city of the second class, and KRS 95.470(2), providing in part that a fireman's job shall depend solely on his ability and willingness to enforce the law and comply with the department's rules and not as a reward for political activity or political donations.
You also refer to specific ordinances relating to the city's fire department which set forth enumerated qualifications and "such other qualifications as may be prescribed in this section, amendments thereto, or other provisions of this Code, or ordinances or regulations which may be passed or adopted, or as provided in the law governing fire departments or fire divisions in cities of the second class in the state."
Your specific question concerns the validity of the above-quoted ordinance of the city of Ashland as it pertains to the applicant for a position as a city firefighter.
While we do not helieve that KRS 95.470(2) is applicable to the fact situation you have presented, KRS 95.440 is pertinent, particularly subsections (1) and (2) which provide as follows:
"(1) The legislative body in cities of the second and third classes and urban-county governments shall require all applicants for appointments as members of the police or fire departments to be examined as to their qualifications for office, including their knowledge of the English language and the laws and rules governing the duties of the position applied for.
(2) Each member of the police or fire department in cities of the second and third classes and urban-county governments shall be a qualified voter in the county containing the city of employment, able to read, write and understand the English language, and have such other qualifications as may be prescribed. No person shall be appointed a member of the police or fire department unless he is a person of sobriety and integrity and is and has been an orderly, law abiding citizen. In a city of the second class or urban-county government no person shall be appointed a member of either of such departments if he is over fifty (50) years of age." (Emphasis added.)
While OAG 74-198, copy enclosed, did refer to firemen and KRS Chapter 95 it dealt primarily with an anti-nepotism ordinance in relation to a city of the second class operating under a civil service system. That opinion concluded that the city could enact a reasonable anti-nepotism ordinance but it would be limited to those city employees not governed by civil service laws with respect to their employment.
Anti-nepotism statutes have generally been sustained as valid exercises of the police power. See 67 C.J.S. Officers § 23, 63 Am.Jur. 2d Public Officers and Employees § 97, 88 A.L.R. 1103 and the case of
Barton v. Alexander, 27 Idaho 286, 148 P. 471 (1915), quoted in part in OAG 74-198 at page two. Furthermore, in a recent annotation, "Validity, Construction, and Effect of State Constitutional or Statutory Provision Regarding Nepotism in the Public Service, " 11 A.L.R. 4th 826, 831 (1982), it was stated that, "The courts have generally recognized or assumed that legislation may be legitimately aimed at discouraging, minimizing, or eliminating the practice of nepotism in the public service, as a proper exercise of the police power. "
Obviously a municipal ordinance dealing with antinepotism or any other subject cannot contradict or conflict with a state statute dealing with the manner of qualifying for municipal employment. See McQuillin Mun. Corp. (3rd Ed.), Vol. 5, § 15.22. A municipal ordinance is invalid if it conflicts with a state statute.
Boyle v. Campbell, Ky., 450 S.W.2d 265 (1970) and
Franklin County v. Webster, Ky., 400 S.W.2d 693 (1966). However, the statute setting forth the qualifications of firefighters in cities of the second class provides in part that firefighters must possess certain enumerated qualifications and "have such other qualifications as may be prescribed. "
Thus a city may enact a reasonable anti-nepotism ordinance and the general ordinance in question would probably be applicable to firefighters in a city of the second class because KRS 95.440(2) provides that members of the fire department must possess certain enumerated qualifications and "have such other qualifications as may be prescribed. " Since, however, the city's authority to enact an anti-nepotism provision which applies to firefighters depends upon statutory authority to prescribe "such other qualifications" for those firefighters, we would suggest that the specific ordinances applicable to firefighters be amended to include the provision relating to anti-nepotism to clear up any problems as to its applicability to firefighters.