Request By:
Mr. Kenneth Isaacs
City Councilman
P.O. Box 201
McKee, Kentucky 40447
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of November 30 in which you initially raise the following questions:
"1) According to the KRS's, is the Police Chief of a fifth class city required to live within the City limits?
"1a) If not, then does the Council have the right to make that requirement?"
In response to the above questions, reference is initially made to KRS 95.710 which provides in effect that members of the police department in cities of the fourth and fifth classes must be residents of the county. This statute was last amended in 1982. Heretofore this office has taken the position in numerous opinions that by virtue of the enactment of KRS 15.335, the residency requirements of this statute as well as KRS 95.440 relating to cities of the second and third classes which contain a similar provision to that of KRS 95.710, were impliedly repealed since this statute declares that no peace officer shall be disqualified by any residency or voting requirements other than those provided in the constitution. As a result, this office has taken the position that police officers were not necessarily required to reside either within the city or county in which the city was located. However, in a very recent decision dated November 9, 1984, styled
Bogard v. Commonwealth of Kentucky, Ky., S.W.2d (1984), the Court of Appeals declared that since the referred to statutes, particularly KRS 95.440 construed in the litigation, was amended subsequent to the enactment of KRS 15.335, the amended statute repealed by implication the provisions of KRS 15.335 even though the amendment did not relate to residency. As a consequence police officers are governed by KRS 95.440 and 95.710 requiring county residency.
Thus the provisions of KRS 95.710 as well as KRS 95.440 now control the residential qualifications of police officers and require all such officers to be legal residents of the county. In view of the court decision, all prior opinions to the contrary are withdrawn.
In answer to your specific question, the statutory requirement, that of county residency for police officers in fifth class cities, cannot be altered by a city ordinance requiring city residency as such would constitute in our opinion a direct conflict. See
Commonwealth v. Do, Inc., Ky., 674 S.W.2d 519 (1984).
We regret that we cannot answer the other two questions you have presented regarding a possible debt limitation involving the city and the municipal water system since there is insufficient background information, the lack of which you have admitted.