Request By:
Honorable John R. Cox
City Attorney
Morehead, Kentucky 40351
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 15 in which you raise the question as to whether or not the council of a city of the fourth class may remove a duly elected member of the council, pursuant to KRS 86.060, without conducting an administrative hearing thereby giving the councilman an opportunity to be heard in his own defense.
KRS 86.060 (2) reads as follows:
"The council shall judge of the eligibility and election returns of its members, adopt rules for its proceedings and government, and enforce the rules by appropriate fines not exceeding ten dollars ($10.00) for each offense. By a vote of three-fourths (3/4) of its members, it may, for any good cause, expel a member."
The case to which you refer, Wilson v. City of Jeffersontown, 511 S.W.2d 115 (1974), holds that where a statute [in this case, KRS 95.700] does not require an administrative hearing prior to the discharge of a police officer of a city of the fourth class, such a hearing is not necessary. On this point we quote the following:
"[1] One of Wilson's contentions is that the hearing held by the city council on August 27, 1970, did not afford him procedural due process. The answer is that the statute does not require a hearing. See Bell v. Board of Education of McCreary County, Ky., 450 S.W.2d 229, 231-232 (1970), pointing out that when there is no provision for an administrative hearing the circuit court is the forum and the issue is arbitrariness."
Since KRS 86.060 (2) does not require a hearing in conjunction with the removal of a member, we believe that the case of Wilson v. City of Jeffersontown and the case of Bell v. Board of Education of McCreary County, cited in the above quote, would be sufficient authority for the city council to remove one of its members without the necessity of conducting a hearing as long as the removal was based on good cause. See also Fleeley v. City of Edgewood, Ky., 514 S.W.2d 689 (1974).
As to what constitutes good cause for dismissal, we refer you to the case of Hoskins v. Keen, Ky., 350 S.W.2d 467 (1961), pertaining to the removal of a school superintendent for cause. The court in this case cited Bourbon County Board of Education v. Darnaby, 314 Ky. 419, 235 S.W.2d 66 (1950), to the effect that:
"'The word "cause" in a statute authorizing the removal of officers for cause means legal cause, and not any cause which the Board authorized to make such removal may deem sufficient. * * * It may be a cause relating to, and affecting, the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.'"