Request By:
Honorable Carl Howell, Jr.
Attorney at Law
31 Public Square
Hodgenville, Kentucky 42748
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 15 in which you request an opinion concerning the following:
"1. Is the city attorney of a fourth class city a 'city officer' or 'officer' within the meaning of KRS 86.230?
"2. In a fourth class city, does the city council elected at the November election have the sole authority (as contrasted to the outgoing council) to appoint the city attorney who shall take office in January of the following year in accordance with KRS 86.230 where the present city attorney's two-year appointed term expires in January following the November election and the city council has in prior years appointed the city attorney biennially and has not provided by ordinance that the city attorney be elected by the qualified voters of the city in accordance with KRS 69.560?
"3. In a fourth class city, does the city council elected at the November election have the authority by virute of KRS 86.230 to dismiss without cause a person appointed by the outgoing city council to the position of city attorney for a period to begin in January following the November election where the terms of the outgoing city council along with the term of the city attorney expire in January following the November election? "
In response to your questions we initially refer to KRS 86.230 which provides as follows:
"All city officers, including members of the city council, shall take office on the first Monday in January following their election or appointment. Any officer appointed by the city council shall be appointed by the council elected at the November election preceding the commencement of his term."
KRS 69.560 creates the office of city attorney and provides for his appointment in the following manner:
"The legislative body of each city of the fourth class, except those operating under the commission or city manager form of government, as soon as it is organized or as soon thereafter as practicable, and biennially thereafter, may appoint a city attorney, . . ."
The above statute also provides for the election of the city attorney, however, you have indicated in your second question that he is appointed. There is no question but the position of city attorney, established by KRS 69.560, constitutes a minor city office within the meaning of KRS 86.230.
In addition to the statutes cited above, which clearly indicate that the incoming city council has the sole power to select the city attorney whose term begins on the first Monday in January following his appointment, we refer you to McQuillin, Municipal Corporations, Vol. 3, § 12.83, which reads in part as follows:
"Where the power of appointment exists the rule usually laid down is that, in a proper case, it may be exercised at any time during the term of the officer or the board or body authorized to act in the premises. . . . But a council not being constituted as it will be when the term of office will expire has no authority to appoint a successor of the incumbent before the expiration of the current term. It has been held that the official board or body of a municipality which is or will be in office at the time an appointee takes his office can alone make an appointment to such office, unless there be express legislative authority otherwise. . . ." (Emphasis added).
It is obvious from the above cited provisions of McQuillin when read in conjunction with the language expressed in KRS 86.230 and KRS 69.560, that the city council elected at the November election will have the sole authority to appoint or reappoint, as the case may be, the city attorney for the ensuing two-year term, beginning in January.
Since the incoming council appoints the city attorney for its ensuing term, we believe it has the authority to dismiss without cause any city attorney appointed by the outgoing city council to hold office beyond its term ending on the first Monday in January. Referring to the case of Sproles v. Mauney, 239 Ky. 138, 38 S.W. 969 (1931), we find the court declaring that the city clerk and tax collector appointed by the city legislative body could be removed at its pleasure though the prior legislative body had attempted to fix a definite term for said offices.