Request By:
Mrs. Janice E. Harris
City Councilman
806 East Main Street
Greenup, Kentucky 41144
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of December 2 in which you raise a number of questions regarding the authority of the mayor and city council of a city of the fifth class. Your initial question is as follows:
"1. Does a Mayor have the authority to refuse to permit a City Council to appoint new members to replace one who has resigned and one who has abandoned his office?"
All vacancies occurring on the city council must be filled by the city council pursuant to KRS 87.210 and, of course, the mayor has no authority in this matter whatsoever.
Your second question reads as follows:
"2. Can a City Councilman remain on the Council after selling his property (within city limits) and moving his residence to another state? One of our members did this in July and our Mayor still contends a person does not have to own property to serve on the City Council or as Mayor."
KRS 87.160 requires members of the city council to legally reside and be qualified voters in the city. This statute also requires councilmen to own at least an interest in real property. Thus, if a member of the council moves outside of the city and sells his property within the city, he becomes disqualified, subject to removal by the appropriate authorities; however, until he is removed, he acts as a de facto officer and his acts are valid. Commonwealth v. Winstead, Ky., 430 S.W.2d 647 (1968). Removal proceedings can be initiated by any citizen of the city, including members of the city council by petitioning the Attorney General for authority to file an ouster proceeding in his behalf and under the terms of KRS 415.050. Documented evidence, however, must be presented to the Attorney General concerning his disqualification by a legal representative of the petitioner. The Attorney General may, within his discretion, authorize the ouster suit to be brought in his name by the attorney, if he feels that the evidence justifies.
Your third question is as follows:
"3. Can a Mayor hold a City Council meeting with two or three members present? He contends that since two of our six elected councilmen have vacated their seats, which leaves four, that two or three present makes a quorum out of the four."
Legal meetings of the city council can only be conducted when a majority of the total membership of the council is present. This is required in order for a quorum to exist under the terms of KRS 87.030. In determining a legal quorum where vacancies have occurred, the total number entitled to membership must be counted and not merely the remaining members. Reference McQuillin, Mun. Corps., Vol. 4, § 13.27 b. Thus, four (4) members of the city council must be present at a meeting in order for it to conduct business regardless of the fact there are two (2) vacancies on the council.
Your fourth question reads as follows:
"4. Does a Mayor have the authority to make decisions on any matters he wishes, carry them out, and pay for those decisions without those matters being brought before full council in an official meeting and without being voted on by the council?"
The city council is the governing body of the city, under the terms of KRS 87.020, and not the mayor who simply acts as the chief executive officer of the city whose powers are limited to those specifically delegated to him under the terms of KRS 87.130 and those delegated to him by the city council by appropriate order, resolution or ordinance.
Your fifth question is as follows:
"5. Does a Mayor have the authority to hold an official secret City Council meeting with two government agencies (in his home) without the knowledge of three councilmen and without asking their attendance?"
All meetings of the city council are public as required by KRS 87.030. Special meetings may be called at any time by the mayor or by three (3) members of the council pursuant to written notice delivered at least three (3) hours before the time specified for the proposed meeting. Any special meeting conducted contrary to the provisions of KRS 87.030 would be illegal.
Your sixth question is as follows:
"6. Does a resignation have to be presented and voted on at an official council meeting to be legal?"
All resignations of members of the city council must be presented to the council in writing and accepted by the council and recorded in the minutes of the meeting in which the resignation is considered and accepted. See KRS 63.010 governing resignations.
Your seventh question is as follows:
"7. Can a Mayor proclaim himself to be total manager and make all decisions on matters of water and sewer? When there is an ordinance on record since 1951 (when original water department was purchased) which set up a permanent water commission (consisting of three commissioners) to manage and oversee matters pertaining to water. Then in 1963 another ordinance was enacted to supplement the 1951 ordinance combining the water and sewer to form the Greenup Water and Sewer Commission. These ordinances have never been changed or repealed and the water and sewer has always been run this way until the past few months."
As we have pointed out, the mayor's powers are limited by statute, except those delegated by an appropriate order, resolution, or ordinance. Certainly, where a water commission has been created to govern the city water system pursuant to ordinance, said commission controls and operates the system, not the mayor. The city may, however, abolish the utility commission where it is not required by a specific statute authorizing its creation in the first place as held in the case of City of Elizabethtown v. Cralle, Ky., 317 S.W.2d 184 (1958).
Your last question is as follows:
"8. What can a councilman or private citizen do in a situation like this to correct this matter?"
The city council, being the governing authority, controls the operation of the city, and should take appropriate steps to correct any unauthorized actions taken by any city officer, including the mayor. As an alternative, an action can be filed in court to restrict any officer from performing an act outside of his legal authority.
We suggest in the future that you initially consult with your city attorney concerning questions pertaining to the operation of the city government as he is your legal advisor. We will, of course, be glad to render any assistance to him or to you when such is deemed necessary.