Request By:
Hon. Gary Hunley
Mayor
City of Catlettsburg
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of January 13 in which you relate that the position of assistant fire chief is under civil service and is apparently vacant. It is also apparent that the civil service commission, which we presume was set up under KRS 95.763 relating to fourth class cities, administers a civil service examination of applicants resulting in you, as Mayor, being referred a list of the three individuals having the highest score. The question is raised as to whether or not the mayor, as chief executive, or the city legislative body, has the power to appoint a person from the civil service list to the position of assistant fire chief.
Prior to the 1980 Municipal Code, the city legislative body appointed all policemen and firemen in cities of the fourth class pursuant to the terms of KRS 95.700 and the general charter relating to fourth class cities. The 1980 code repealed KRS 95.700 as well as the charter and enacted, insofar as the appointment of employees is concerned, KRS 83A.130(9) which gives the mayor or chief executive officer the exclusive power to appoint all city employees including police officers, the latter by a 1982 amendment. In addition, non-elective offices which must be established as such in the manner described in KRS 83A.080 are also to be appointed by the mayor or the chief executive officer, but only with the approval of the city legislative body.
However, KRS 95.764, a part of the civil service act referred to, under which the city is presumed to operate remains in effect and provides that the three highest scores for a particular position that is vacant is to be referred to the city legislative body to make appointments thereform. However, because of the repeal of KRS 95.700, together with the charter of fourth class cities and the specific designation of the mayor as the appointing authority under KRS 83A.130(9) without any restrictions, we believe that the mayor rather than the city legislative body makes the selection to the vacant civil service position. It is a rule of statutory construction that statutes must be read and construed as a whole, and after a comprehensive review if confusion and ambiguity exists it should be corrected to obtain uniformity as such would be the legislative intent. May v. Clay Gentry - Graves T.W. Co., 284 Ky. 502, 145 S.W.2d 84. Also, when the statutes are repugnant to each other it is the general rule that the latter would prevail. Head v. Commonwealth, 165 Ky. 773, 125 S.W.2d 238.
Thus assuming that the position is merely a form of employment and since KRS 83A.130(9) was enacted subsequent to KRS 95.764 and since KRS 95.700 was repealed by the 1980 Municipal Code, we believe that it is the intent of the legislature to vest in the mayor rather than the council the authority to make civil service appointments from the list submitted by the civil service commission under the terms of KRS 95.764.