Request By:
Honorable John J. Peluso
Mayor, City of Newport
Court House
4th and York Streets
Newport, Kentucky 41071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 19 in which you request an opinion concerning the following:
"If a Resolution is passed by a majority of the Board of Commissioners, which Resolution requires the MAYOR to sign a contract, and the Mayor does not vote for the Resolution and refuses to sign the contract because he contends same is not as agreed upon, may the City Commissioners then legally sign the Resolution and the Contract on behalf of the City?
"Please bear in mind that the Resolution specifically states 'the Mayor shall sign . . .' and I wish to know whether the Resolution and the Contract are valid if signed by the City Commissioners."
Generally the power to make contracts on behalf of a municipality rests solely with the legislative body and no officer other than the legislative body has the power to bind the city by contract. The mayor has only such powers as are conferred upon him by statute or by the council. See McQuillin's Municipal Corporations, Vol. 8, § 29.15. Under the city manager form of government we next refer you to KRS 89.540 which reads as follows:
"A majority of the members of the board of commissioners shall constitute a quorum, but the affirmative vote of at least a majority of the members shall be necessary to the adoption of any motion, resolution or ordinance, the making or approval of any contract, or the passage of any measure. Upon each vote the yeas and nays shall be recorded and each motion, resolution and ordinance shall be reduced to writing and read before the vote is taken thereon. Each resolution, measure or ordinance shall be signed by the mayor or by two commissioners and recorded before it shall take effect. The mayor shall have no veto power." (Emphasis added.)
Under the above statute a majority vote of the commission is necessary to adopt a resolution or approve contracts entered into by the city. The mayor is required to sign any resolution, measure or ordinance or such measure may be signed by two commissioners. Thus, a resolution signed by two members of the commission is sufficient for its validity without the mayor's vote or signature, assuming, of course, it was initially passed by a majority vote of the commission.
Concerning the validity of the contract without the mayor's signature as required by the resolution passed by the board, we would point out that such signature is not required by KRS 89.540 with respect to the execution or approval of any contract. The board itself approves all contracts and thereby establishes their validity and the mayor's refusal to sign a contract following approval would not affect its validity in our opinion.
Besides the terms of the statute above referred to, a case similar in point is
Commonwealth v. Williams, 120 Ky. 314, 86 S.W. 553 (1905), which dealt with the question of whether or not the mayor's refusal to sign an ordinance affected its legality pursuant to KRS 87.050(3), which statute provides that every ordinance shall be signed by the mayor and published, and shall be in force subsequent to publication. The Court, in holding that the validity of the ordinance did not rest upon the mayor's signature, stated that there is a broad distinction between the requirement of the mayor's approval in order to give effect to ordinances and a mere requirement that he shall sign all ordinances, and the fact that his signature alone is required, the element of approval is absent. See also the case of
Foley v. Kinnett, Ky., 486 S.W.2d 705 (1972).
Under the circumstances, we believe the resolution to which you refer was legally enacted and the contract, which we assume was properly approved by the commission [KRS 89.540] and signed by two members of the commission, is valid.