Request By:
Jim Short
Mayor, City of Olive Hill
P.O. Box 460
Roger Patton Drive
Olive Hill, Kentucky 41164
Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your letter concerns the city ordinance, enacted in January or February of this year, which created the office of city attorney. You question the validity of the ordinance because the compensation for the office is set at an hourly rate rather than at a fixed annual sum.
This office has, in several prior opinions, including OAG 84-294 and OAG 84-125, copies of which are enclosed, said that the compensation of a nonelected city officer is required to be fixed at a specific amount by ordinance pursuant to KRS 83A.070(2).
Prior to its amendment by the 1992 Regular Session of the General Assembly, KRS 83A.070(2) provided that, "The legislative body of each city shall fix the compensation of each appointed city officer in the ordinance that creates the office and may change it by ordinance. " KRS 83A.070(2) was amended, effective July 14, 1992, to state that, "The legislative body of each city shall fix the compensation of each appointed city officer by ordinance and may change it by ordinance. "
KRS 83A.070(2) continues to use the phrase "fix the compensation of each appointed city officer." This has been construed by this office in its prior opinions to require a city, by ordinance, to set compensation in a specific amount. Normally this specific amount would be calculated on an annual basis since most city positions are filled on a full time basis and the city could more easily incorporate the annual compensation figures into its annual budget. Note, however, that another 1992 amendment to KRS 83A.070 has added to that provision a subsection (5) which states that, "The legislative body of each city may, by ordinance, establish the compensation for any elective or appointive city office on a salaried or per diem basis."
It is our understanding that, like many smaller towns, your city needs legal representation and advice but either does not need or cannot afford a full-time salaried attorney. A reasonable alternative is to provide for legal services on a part-time or as-needed basis. For whatever reason, your city has decided to make its legal representative a part-time municipal officer rather than contracting with a private attorney on a city-independent contractor basis as many smaller cities do.
Most nonelected municipal officers hold full-time positions with a city and perform clearly defined duties. Your city attorney serves only as a part-time officer and is compensated in a manner traditionally associated with attorneys, a specified hourly rate for services actually rendered. The ordinance as it relates to the office of city attorney cannot reasonably be expected to set a fixed annual salary for a part-time position where the number of hours to be worked annually is unknown at the start of a fiscal year.
Thus, in our opinion, the hiring of an attorney as a municipal officer on a part-time or as-needed basis at a specified hourly fee satisfies the provisions of KRS 83A.070 as the city ordinance has fixed the compensation at a specific amount even though it has not been calculated on an annual basis.