Request By:
Hon. Edward E. McFadden
Mayor
City of London
218 Whitley Street
London, Kentucky 40741
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of November 4 in which you raise the following question:
"Does the City Council have the authority to restrict the powers of the Mayor in appointing and removing city employees?"
With respect to the above question you enclose a copy of the personnel policies and procedures classification and pay plan currently adopted by the city council which is designed to cover city employees and is in the nature of a civil service program which appears, however, unrelated to any of the statutory civil service programs authorized for cities of the fourth class. Chapter 4 relates to the selection and appointment of employees and provides under Section 4.2 for the filling of vacancies is follows:
"Vacancies. When a vacancy occurs, the department head will send to the Mayor or Personnel Officer a request for the referral of qualified applicants together with a description of the job to be filled; and a statement of the necessary qualifications of applicants (job title and description). The Mayor or the Department Heads shall then submit the name of the qualified applicant to the Council to be approved by a two-thirds vote of the Council." (Emphasis added.)
The above section clearly restricts the appointing power of the mayor by requiring prior approval by the legislative body in violation of KRS 83A.130(9) which reads as follows:
"The mayor shall be the appointing authority with power to appoint and remove all city employes, including police officers, except as tenure and terms of employment are protected by statute, ordinance or contract and except for employes of the council."
The above statute has been construed by this office as prohibiting the city council from restricting the appointing power of the mayor with respect to all city employees unless of course they are under the civil service program requiring examination before appointment and their selection by a civil service commission as provided by statute. We are enclosing a copy of OAG 82-258 covering this question.
As also pointed out in this opinion, KRS 83A.130(9) does authorize the council to restrict the removal of employees except for cause pursuant to an appropriate ordinance unrelated to civil service. The problem presented here is the apparent attempt by the city to place all of its employees under a civil service program established by the city separate and distinct from the statutory civil service programs authorized by the legislature for cities of the fourth class, namely those mentioned under KRS 95.761 which includes the general civil service programs for all city employees under Chapter 90 KRS. See OAG 79-232, copy attached, where, of course, the city may elect to operate under either Chapter 95 with respect to its policemen and firemen or Chapter 90 with respect to all employees including policemen and firemen. The selection and removal of the employees would be governed according to the statutory provisions. However, the city cannot in our opinion establish a civil service program outside the statutory programs authorized by the legislature as such would be contrary to the municipal home rule statute, KRS 82.082(2), which reads as follows:
"A power or function is in conflict with a statute if it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes including, but not limted to, the provisions of KRS Chapters 95 and 96." (Emphasis added.)
The above section of the home rule statute permits a city to enact legislation in those fields that are not preempted by statutory law. The courts have dealt with this question many times, as for example,
City of Harlan v. Scott, 290 Ky. 585, 162 S.W.2d 8 (1942) from which we quote the following:
". . . An ordinance may cover an authorized field of local laws not occupied by general laws but cannot forbid what a statute expressly permits and may not run counter to the public policy of the state as declared by the Legislature."
See also the
City of Bowling Green v. T. & E Electric, Ky., 602 S.W.2d 434 (1980) and
City of Bowling Green v. Gasoline Marketers, Ky., 539 S.W.2d 281 (1976) and OAG 78-97, copy attached.
In view of the above it would appear that at least that portion of the ordinance in question that attempts to set up a so-called civil service program restricting the mayor's power of appointment by requiring prior approval by the council would be contrary to the provisions of KRS 83A.130(9) since in does not follow any of the statutory civil service programs authorized for cities of the authorized for cities of the fourth class. On the other hand, there is no question that the city can and should establish by ordinance positions of employment, qualifications, duties and compensation, as well as promotional procedures. However, we do not believe they can restrict the mayor's power of appointment as provided in Chapter 4, Section 4.2 of this ordinance where the employee meets the qualifications fixed by the ordinance.