Request By:
Requested By:
State Senator Tim Shaughnessy, District 19 (Jefferson)
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Scott White, Assistant Deputy Attorney General
Subject: City of Louisville and Jefferson County government
Written By: Scott White, Assistant Deputy Attorney General
Syllabus: 1. The General Assembly may create a new municipal office, "city - county mayor executive," and assign all executive power of the Jefferson County judge/executive and mayor of Louisville to that new office.
2. The office "mayor of Louisville" may be abolished by the General Assembly.
3. An Act of the General Assembly is required to effect the creation of the new municipal office, and reassign and assign duties to that office.
4. The General Assembly may prescribe method by which city and county must divide revenue from occupational license fees.
Statutes Cited: 67.080(3), 67.710, 68.180, 79.310, 79.315, 79.325, 81.410, 83.430, 83.530, 83.580, 83A.160 and 91.200
Constitutional Provisions Cited: 59, 60, 91, 99, 107, 144, 156a, 160, 180 and 181
Opinion of the Attorney General
We have been asked four questions by Senator Tim Shaughnessy pertaining to the municipal government of the city of Louisville and Jefferson County. Presently, certain aspects of the governance of our largest city and county are based upon a compact due to expire in July, 1998. In anticipation of that event, as well as the recent (1994) amendments to our Commonwealth's Constitution relating to local government, Senator Shaughnessy has proposed a possible new framework for the exercise of executive power and allocation of collected occupational license fees in Louisville - Jefferson County. He asks our opinion as to whether this proposal is constitutional and, if so, the method by which the proposal can be put into effect. We answer these questions in accordance with KRS 15.025(2) -- public questions of law posed by a member of the Legislature. To our knowledge, there have been no appellate decisions construing the constitutional provision we interpret here, and this is the first Opinion of the Attorney General analyzing its effect.
The proposed plan
Senator Shaughnessy has proposed a new plan of government for the city of Louisville and Jefferson County (the "proposal"). In essence, he proposes the abolition of the office of mayor of Louisville, and the reassignment of that executive power to a new office 1, as well as the reassignment of the executive power of the Jefferson County judge/executive to that new office. The legislative power of the city would remain with the Board of Aldermen; and, the legislative power of the county would remain with the fiscal court. The county judge/executive would remain a member of the fiscal court, and, as any other member, be permitted to vote. 2 Since both the city and county would each retain separate legislative powers, then this is not a merger. The city-county mayor executive would be elected for a four-year term by the registered voters of Jefferson County. See, Ky. Const. Sec. 160 (terms for mayors) and Sec. 99 (terms for county judge/executives). As to budgets, the city-county mayor executive would propose a separate budget for the city and county to be approved by their respective legislative bodies, and a third budget, to be approved by each legislative body, on the disposition of the occupational tax revenue collected by each political unit. 3
Analysis
We believe that the creation of a new municipal office is permitted under new Sec. 156a. It provides "The General Assemble may provide for the creation, . . . functions . . . and officers of cities." Id. (emphasis added). Thus, the General Assembly has the power to create, and prescribe the duties of, a new city-county mayor executive.
The General Assembly already has the power to prescribe for the executive power of counties. The powers and duties of a county judge/executive are limited to those enumerated in the Constitution and those prescribed by the
General Assembly. Bath Co. v. Daugherty, 113 Ky. 518, 68 S.W. 436, 437 (1902). The only power/duty conferred by the Constitution is that the county judge is a member, with voting power, of the fiscal court. Ky. Const. Sec. 144; Bath Co., supra; and,
Breathitt Co. v. Hagins, 211 Ky. 391, 277 S.W. 469 (1925). The powers and duties of fiscal court members are limited to those conferred by the General Assembly since the Constitution confers none.
Hogge v. Rowan Co. Fiscal Court, 313 Ky. 387, 231 S.W.2d 8 (1950). Thus, the General Assembly is well within its power to remove all the powers, except membership on the fiscal court, from the Jefferson County judge/executive, and reassign them to the new office. 4
Likewise, the powers and duties of a mayor derive from the General Assembly. There is no constitutional provision setting out any power or duty of a mayoral office. As such, it is for the General Assembly to provide them. Ky. Const. Sec. 156a; and, see,
Brown v. Barkley, 628 S.W.2d 616, 621-622 (Ky. 1982) (court held that powers of Sec. 91 state constitutional officers with exception of attorney general, could only be provided by General Assembly since no powers were enumerated) .
The General Assembly also has the power to abolish the office of mayor of Louisville. The office of mayor is not a constitutionally required office. Ky. Const. Sec. 160. 5 That section does, however, clearly envision that a city would have a mayor or "chief executive. " Thus, it is unlikely that, even under Sec. 156a, the General Assembly could simply abolish the executive power of a municipality. Moreover, KRS 83.430, a part of the Home Rule legislation of 1972, requires an executive department for cities of the first class (of which Louisville is the only one). 6 But this is not what Senator Shaughnessy suggests. Rather, he suggests the consolidation of the executive power of the city and county. Since there would be a "chief executive" wielding the city's executive power, we believe any requirement for an executive city office has been satisfied.
Sec. 156a, by its plain language, provides the General Assembly with the power to prescribe the powers and duties of the newly created office of city-county mayor executive. As noted in footnote 6, this will require amendments to the pertinent revised statutes.
Senator Shaughnessy's proposal only deals with Louisville-Jefferson County, and does not intend to create a law of general applicability Commonwealth-wide. This proposal necessarily abolishes one municipal office, mayor of Louisville, and strips another office, Jefferson County judge/executive, of executive power. This raises the specter of Sections 59 and 60 -- constitutional provisions prohibiting special or local legislation. That is, is it constitutional for the General Assembly to consolidate the executive power of a county, exercised through its county judge executive, with that of a city in a newly created municipal office that is allowable only in one county and city? The answer is yes. 7
In
Jefferson Co. Merit Bd. v. Bilyeu, 634 S.W.2d 414 (Ky. 1982), the Supreme Court, in an opinion authored by Chief Justice Stephens, held that the exemption of counties with a population in excess of 600,000 from aspects of an otherwise statutorily required police merit system for all counties did not violate sections 59 and 60 of the Constitution. The court noted that the purpose underlying these two sections was to ". . . require that all laws upon a subject shall operate alike upon all individuals and corporations." See also,
Tri-City Turf Club v. Cabinet, 806 S.W.2d 394 (Ky. App. 1991), and
Miles v. Shauntee, 664 S.W.2d 512 (Ky. 1983). The court, in its analysis, extended the rule that local legislation dealing with the government of cities is constitutional under sections 59 and 60 to counties. 8 As the court said:
If a questioned statute deals with a particular classification of a governmental entity based on population alone, it is constitutional under Sections 59 and 60 if (1) it deals with the organization or incidents of government, or (2) it bears a reasonable relation to the purpose of the Act. (Citations omitted). If the statute complies with either requirement, it is constitutional.
634 S.W.2d at 416 (emphasis supplied). Since the consolidation of executive power into a new office deals with the organization of government it is constitutional under Sections 59 and 60. 9
As noted throughout this Opinion, the method to effect these changes will need to be through an Act of the General Assembly since it involves the creation of a new municipal office and the consolidation of executive power amongst a city and a county. Sec. 156a plainly grants this power only to the legislature, or where the power is delegated by the General Assembly to local governments. Ky. Const. Sec. 60, and
Payne v. Davis, 254 S.W.2d 710 (Ky. 1953). See, e.g., KRS Chapter 67A "Urban-County Government," KRS 81.410 et. seq. "Merger of Cities" and KRS 83A.160 "Change in Form of Government." Since the General Assembly has not delegated the power to create a new office and the consolidation of executive power to local entities, then it is only the General Assembly that can effect this proposal.
The next issue raised by Senator Shaughnessy pertains to the appropriation of the occupational license fees collected by both the city and the county. In KRS 68.180, the General Assembly allowed counties with a population in excess of 300,000 to impose license fees on occupations 10; and, in KRS 91.200 the same power was granted to cities of the first class (again, Louisville being the only one). In 1986, the General Assembly enacted a statutory scheme which required cities of the first class and counties containing such cities, i.e. Louisville and Jefferson County, to enter into a "compact" to ". . . provide a framework for cooperation between the city and the county . . . ." KRS 79.310(1). 11
Pertinent to our analysis is that certain matters were required to be agreed upon and made a part of the compact. KRS 79.315. One of these was the disposition of the occupational license fees collected by the city and county. Id. at (2). KRS 79.325 sets forth the required manner in which the collected occupational license fees are to be allocated to the city and county for their appropriation. Thus, at present, the General Assembly has provided for both the collection of these fees and the manner in which they are to be divided amongst the two municipal governments.
We believe that, as it did in KRS 79.325, the General Assembly can provide the manner in which the collected occupational license fees are to be allocated. Ky. Const. Sections 156a, 180 and 181. We see no obstacle to the proposal's plan to have the city-county mayor executive submit a budget for this fund to both the Board of Aldermen and fiscal court for their approval. Sen. Shaughnessy has indicated that the purpose for this is to enable the development of a single vision for the expenditure of these funds to benefit the county and the city. This is certainly in the tradition of KRS 79.310. Of course, the statutory scheme embodying this proposal will need to provide a mechanism by which disagreements are resolved.
Conclusion
To summarize, it is the opinion of this Office that the proposal of Senator Shaughnessy to consolidate the executive power of the mayor of Louisville and Jefferson County judge/executive into one new office, abolish the office of mayor, retain the judge/executive only as a voting member of fiscal court and retain the legislative bodies of the city and county with separate budgets and a joint occupational license fee budget is constitutional and can only be made effective via an Act of the General Assembly.
Footnotes
Footnotes
1 To be called "city - county Mayor Executive."
2 Note KRS 67.080(3) -- a fiscal court cannot exercise any executive power unless given by statute.
3 As a general statement it can be said that the authority under which the proposal is made is quite broad. New Sec. 156a of the Kentucky Constitution provides "The General Assembly may provide for the . . . government . . . of cities." Thus, it is with this level of power that we begin our analysis.
4 Moreover, Sec. 107 provides the General Assembly the power to create other county offices for a term not to exceed four years. This would also implicitly include the ability to set out the powers and duties of the new county office.
5 Contrast Sec. 160 with Sec. 99 which requires the election of a judge of the county court. There is no comparable language for a mayor in Sec. 160. As noted earlier, the office of county judge executive is retained in the proposal, although it would have no executive powers.
6 KRS 83.530, enacted in 1972 - prior to the adoption of Sec. 156a - vests the executive power of cities of the first class in a mayor. Due to this, it is our opinion that in order for the proposal to be clear and not in conflict with existing statutes, this would have to be repealed. As will also be seen on reallocation of powers, KRS 67.710 "Powers of County Judge Executive" and KRS 83.580 "Powers of Mayor (Cities of First Class) " will likewise require amending.
7 Of course, Sec. 156a requires all legislation to apply equally to all cities of a given class. Thus, the proposed legislation will need to pertain to cities of the first class and counties in excess of a particular population. The legislation simply cannot name Louisville and Jefferson County -- but, rather, cities of the first class and counties in excess of a particular population.
8 Local legislation dealing with city government was first allowed in Mannini v. McFarland, 172 S.W.2d 631 (Ky. 1943).
9 Cf. Miles v. Shauntee, supra, where court ruled that the application of the Uniform Residential Landlord and Tenant Act to only Jefferson and Fayette counties violated Sections 59 and 60. This did not deal with the "organization or incidents of government."
10 In Kupper v. Fiscal Court, 346 S.W.2d 766 (Ky. 1961), this statute was deemed constitutional and not violative of Sections 59 and 60. The court relied on Sims v. Bd. of Ed. of Jefferson Co., 290 S.W.2d 491 (Ky. 1956), which held that a similar fee scheme was in essence a tax which was authorized by Sec. 181 of the Constitution, and did not violate Sections 59 and 60. See also, City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248 (1948) (Sections 59 and 60 not implicated since tax power was given to all classes of cities).
11 This statutory scheme sunsets in July, 1998.