Request By:
Mr. Gibson G. Gosser
News Director
WSFC/1240 & WSEK FM 96.7
Box 740
Somerset, Kentucky 42501
Opinion
Opinion By: Robert F. Stephens, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested an opinion of the Attorney General as to whether the common council of the City of Somerset, a Third Class City, may take a vote by secret ballot on the question of hiring a city administrator. You state that the Personnel Committee Chairman announced that the members had earlier agreed to do this and each councilman then wrote his choice for the position on a piece of paper and handed it to the city clerk. There was no accounting of how each individual councilman voted on the matter.
The answer to your question is provided by the general statute pertaining to the organization and government of cities of the third class. The Kentucky Open Meetings Law or "sunshine law", KRS 61.805 to KRS 61.850 has no bearing on the question since the specific statutes pertaining to cities prevail.
KRS 85.080(6) reads as follows:
"The vote on all questions coming before the common council shall be viva voce. In the case of elections by the common council, the roll shall be called, and every member present shall be required to vote unless previously excused by a vote of the common council. In voting on other questions, the roll shall be called if any member requests it, and the yeas and nays shall be entered upon the journal."
The foregoing statute clearly requires an oral vote and rules out a vote by secret ballot. An additional statute, KRS 85.110, provides in three places that when taking a vote the yeas and nays shall be called and entered upon the journal. McQuillin's Municipal Corporations, 1968 Revised Volume, indicates that statutes and charters of cities generally provide that whenever a vote is taken on a certain proposition or a resolution or contract for work, the yeas and nays must be taken and recorded. McQuillin, Vol. 4, § 1344, p.556. Under another section pertaining to the reason for this rule, § 1345, McQuillin says:
"The inhabitants of the municipality are, as of right, entitled to know clearly the act and vote of every member, of their agents and servants, on every proposition relating to public duties, and a record of such acts and votes should be plainly made in a permanent form so that every inhabitant may have definite information."
It is therefore the opinion of the Attorney General that a city council of a Third Class City cannot take a secret ballot vote on the hiring of a city administrator.