CAMPBELL (CAROL), ET AL. VS. BRYANT (ROBERT)Annotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CAROL CAMPBELL; PATRICK NICHOLS;
SHAWN D. PECK; LEANN SHAUGHNESSY;
CARL E. WEAVER; LYLE E. YEAGER;
(INDIVIDUALLY AND IN THEIR OFFICIAL
CAPACITY AS MEMBERS OF THE LYNNVIEW
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY SHAW, JUDGE
ACTION NO. 07-CI-002949
ROBERT BRYANT, MAYOR,
CITY OF LYNNVIEW
** ** ** ** **
BEFORE: MOORE AND THOMPSON, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Members of the Lynnview City Council appeal from
an Opinion and Order of the Jefferson Circuit Court determining that an Ordinance
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky constitution and KRS 21.580.
passed by the Council seeking to establish a civil service system for the City Police
Department was invalid upon its first passage, and, though later properly passed,
was not retroactively applicable to Mayor Robert L. Bryant’s firing of the city
Police Chief upon its second passage.
FACTUAL AND PROCEDURAL BACKGROUND
The City of Lynnview is a Fifth Class city pursuant to Kentucky
Revised Statutes (KRS) 81.010(5). The City operates pursuant to the mayorcouncil plan as described in KRS 83A.130. KRS 83A.130(3) provides, in part, that
“[t]he executive authority of the city shall be vested in and exercised by the mayor.
. . . He shall supervise all departments of city government and the conduct of all
city officers and employees under his jurisdiction[.]” KRS 83A.130(9) provides
that “[t]he mayor shall be the appointing authority with power to appoint and
remove all city employees, including police officers, except as tenure and terms of
employment are protected by statute, ordinance or contract and except for
employees of the council.” Moreover, a Chief of Police is defined in KRS
83A.080(2)(d) as a nonelected city officer. KRS 83A.080(3) provides as follows:
All nonelected city officers shall be appointed by the
executive authority of the city and, except in cities of the
first class, all these appointments shall be with approval
of the city legislative body if separate from the executive
authority. The officers may be removed by the executive
authority at will unless otherwise provided by statute or
ordinance. Upon removal of a nonelected officer at will,
the executive authority shall give the officer a written
statement setting forth the reason or reasons for the
removal. However, this requirement shall not be
construed as limiting in any way the at-will dismissal
power of the executive authority.
In the November 2006 General Election appellant Robert Bryant was
elected mayor of the City of Lynnview. Prior to his inauguration, on November
27, 2006, the City Council purported to enact Ordinance No. 7, Series 2006-2007,
by application of the emergency ordinance enactment provisions contained in KRS
83A.060(7). The emergency provisions of the statute allow that an ordinance may
be enacted and immediately become effective without a second reading and the
normal publication requirements.
Following his inauguration, on February 20, 2007, Bryant sent
Lynnview Police Chief Joseph M. Cunningham a correspondence in which he
requested that the Chief bring the KRS statute books and personnel records from
the police station to City Hall, and to provide him with a key and the security code
to the police station. Cunningham responded, objecting to the requests.
Following Cunningham’s failure to timely comply with his requests,
on March 21, 2007, Bryant issued a letter purporting to immediately terminate
Cunningham from his position as Police Chief. The letter further notified
Cunningham that a hearing would be held within 60 days regarding the
termination. Cunningham, in his response, asserted that his employment was
covered by the civil service provisions alleged to have been enacted by Ordinance
7, and requested that his discharge be governed by the corresponding procedural
On March 23, 2007, Bryant filed a Petition for Declaration of Rights,
the present action, seeking to have the November 27, 2006, passage of Ordinance 7
While the present action was being litigated, on May 9, 2007, a
termination hearing, presided over by Mayor Bryant, was held on Cunningham’s
discharge. At the conclusion of the hearing Bryant upheld the termination.
On September 8, 2007, the circuit court entered an Opinion and Order
determining that the City Council’s November 27, 2006, passage of Ordinance 7
was invalid because it did not comply with the emergency provisions contained in
KRS 83A.060(7), and that the subsequent amended passage of the Ordinance on
April 23, 2007, was not retroactive so as to apply to the mayor’s termination of
Cunningham. This appeal followed.
VALIDITY OF EMERGENCY PASSAGE OF ORDINANCE 7
The City Council contends that the circuit court erroneously
determined that the November 27, 2006, emergency passage of Ordinance 7 was
invalid. It argues that it properly invoked the emergency provisions of KRS
83A.060(7). KRS 83A.060(7) provides, in relevant part, as follows:
(4) Except as provided in subsection (7) of this section,
no ordinance shall be enacted until it has been read on
two (2) separate days. The reading of an ordinance may
be satisfied by stating the title and reading a summary
rather than the full text.
(7) In an emergency, upon the affirmative vote of twothirds (2/3) of the membership, a city legislative body
may suspend the requirements of second reading and
publication to provide for an ordinance to become
effective by naming and describing the emergency in the
ordinance. Publication requirements of subsection (9) of
this section shall be complied with within ten (10) days
of the enactment of the emergency ordinance.
Thus an essential requirement to invoke the provisions of 83A.060(7)
is that the applicable emergency be described and named. The description and
naming of the existing emergency in Ordinance 7 was limited to the following. In
the preamble, the following was stated:
WHEREAS, the City Council has determined that an
emergency exists with respect to the administration of the
LPD [Lynnview Police Department].
Section 6 of the ordinance states as follows:
Section 6: For the reasons set forth above, an emergency
is hereby declared to exist and the provisions of this
Ordinance shall become effective immediately upon its
adoption by a vote of two-thirds (2/3) or more of this
The above provisions are the only sections of the Ordinance
addressing the issue of an emergency. A naked declaration that an emergency
exists which does not describe the emergency, standing by itself, does not meet the
requirements of KRS 83A.060 (7). United Dry Forces v. Citizens for a Progressive
Community, 635 S.W.2d 478, 482 (Ky. 1982). An examination of the foregoing
provisions of the ordinance which purport to invoke the provisions of KRS
83A.060 (7) discloses that, at best, the provisions are naked declarations that an
emergency exists and do not describe the emergency. As such, we are constrained
to agree with the circuit court that the original passage of Ordinance 7 was invalid.
RETROACTIVITY OF APRIL PASSAGE
Appellants also argue that the April 23, 2007, passage of the
Ordinance should be deemed retroactive to November 27, 2006, the date of the
original attempt to pass the Ordinance.
The second passage of the ordinance in April 2007 was characterized
as an amending of the original Ordinance 7 pursuant to the provisions of KRS
83A.060. The above quoted emergency provisions of the original Ordinance are
indicated as being deleted by lines being drawn through the applicable language.
The first reading is disclosed to have been on April 17, 2007, and the second
reading, and final passage, on April 23, 2007.
We agree with the circuit court that the April passage of the
Ordinance cannot be deemed retroactive to November 2006. As previously noted,
the original passage did not comply with the emergency provisions contained in
KRS 83A.060 (7), and thus the passage was invalid and void. We are unaware of
any authority, nor do the appellants cite any, under which a City Council may
retroactively breathe life into an Ordinance which was originally invalidly enacted.
Further, Section 7 of the April Ordinance provides that “[t]his
Ordinance shall be published according to law and shall take effect upon
publication.” (Emphasis added). Thus by its own terms the April passage of the
Ordinance was not contemplated to be retroactive and, moreover, this provision is
inconsistent with a retroactive application of the Ordinance.
Moreover, KRS 446.080(3) provides that “[n]o statute shall be
construed to be retroactive, unless expressly so declared.” Additionally, “[a]s a
general rule statutes operate prospectively rather than retrospectively, and they will
not be given a retroactive effect even where the Legislature has power to enact
them, unless such an intention clearly and unmistakably appears from the statute
itself.” Snyder v. City of Owensboro, 555 S.W.2d 246, 249 (Ky. 1977). It follows
that the same rationale extends to a municipality’s enactment of an ordinance
pursuant to KRS 83A.060. Again, no such retroactivity provision is included in
the April Ordinance, and thus the general rule that there is no retroactive effect is
In summary, the circuit court properly determined that the April 2007
passage of the ordinance was not retroactive to November 2006.
CORRECTION OF DEFECT
The City Council also contends that because the final hearing on
Cunningham’s termination was not held until May 9, 2007, following the passage
of the April version of the Ordinance, the civil service system enacted by the
ordinance was in effect in time to apply the termination.
As previously noted, Bryant terminated Cunningham by letter dated
March 21, 2007. As discussed in the previous section, the April 2007 passage was
not retroactive to November 2006. Because the civil service system ordinance
was not in effect at the time of Cunningham’s March 21, 2007, termination, we are
unpersuaded that it is nevertheless effective as a result of a new Ordinance having
been passed during the administrative delay period between the termination and the
final hearing on the matter.
VESTED PROPERTY INTEREST
The City Council next argues that at the time of the hearing
Cunningham had a vested property interest in his position and thus the May 9,
2007, “non-civil service termination hearing violated the Chief’s vested due
process rights and was entirely improper and void.” It further states that “the date
of the hearing itself is the date that is controlling in this case, it is not the date of
the Mayor’s ‘complaint’ as the Appellee argued to the Circuit Court and as the
Circuit Court’s Order stated.”
We first note that the City Council has not cited us to its preservation
of this issue (Cunningham’s alleged vested property interest) as required by
Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v). Nor are we able to locate
in the record the presentation of any argument by the City Council to the circuit
court premised upon Cunningham’s alleged vested property interest in his job; nor
did the circuit court address this argument.2 Accordingly, this issue is not properly
preserved for our review.
Further, whether Cunningham had a vested property interest in his position corresponds with a
wrongful termination action, and is not relevant to the present issue of whether Ordinance 7 was
In any event, this argument is, in substance, simply a reframing of the
retroactivity arguments previously discussed. Again, we are persuaded that the law
in effect on the date of the termination letter is controlling, and, further, we
conclude that the passing of the April 2007 Ordinance initiating a civil service
system was not effective retroactively to November 2006, and thus is not
applicable to Cunningham’s termination.
For the foregoing reasons the judgment of the Jefferson Circuit Court
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Garry R. Adams
Robert T. Watson
David P. Bowles