Request By:
Mr. Michael H. Morris
Mr. Mark Allen Hatter
Radio Stations WFKY and WKYW
Capital Communications, Inc.
Capital Plaza
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to your letter concerning appointments to the Frankfort Electric and Water Plant Board. You state that on October 9, 1978, at the regular meeting of the Frankfort City Commission, the mayor submitted to the city commission the name of Mr. Paul Sullivan for reappointment to the Frankfort Electric and Water Plant Board for a four-year term. The city commission, by a vote of three to two, failed to reappoint Mr. Sullivan.
The mayor has stated that he will not nominate anyone to fill the post Mr. Sullivan has been holding. In your opinion, such inaction nullifies the commission's vote until the mayor's term of office expires and Mr. Sullivan remains as a member of the Frankfort Electric and Water Plant Board.
You request an opinion from this office as to whether the mayor must submit another name to the city commission, and to continue doing so, until the commission, by majority vote, approves a replacement.
Before we proceed to discuss your specific question we need to determine whether Mr. Sullivan has the authority to hold over, that is, to remain as a member of the Electric and Water Plant Board, until his successor is nominated by the mayor and confirmed by the city commission, since the four-year term to which he had been appointed has apparently expired.
In connection with the Electric and Water Plant Board, Frankfort, which is now a city of the second class, had elected to operate its electric and water system within the provisions of KRS 96.172 to 96.188 while it was a city of the third class. When its classification was changed from that of a third class city to that of a city of the second class, KRS 96.165 continued in force the status of the Board and authorized the city to continue to operate its electric and water system under the provisions of KRS 96.172 to 96.188. Thus, those statutes continue to govern the operation of the Frankfort Electric and Water Plant Board. See
McIntosh v. Electric & Water Plant Bd. of Frankfort, Ky., 394 S.W.2d 471 (1965).
Many of the constitutional and statutory provisions dealing with the terms of office of various state, county and city officers provide that such officers may hold over after their fixed terms have expired and until their successors are elected and qualified. Section 160 of the Kentucky Constitution deals with municipal officers but that provision has been interpreted to mean that members of city councils may not hold over after their fixed terms have expired and until their successors are elected and qualified. See
Booth v. Board of Education, 191 Ky. 147, 229 S.W. 84 (1921).
Section 160 of the Kentucky Constitution, in dealing with city officers other than mayors and members of legislative boards, also provides:
". . . but other officers of towns or cities shall be elected by the qualified voters therein, or appointed by the local authorities thereof, as the general assembly may, by a general law, provide; but when elected by the voters of a town or city, their terms of office shall be four years, and until their successors shall be qualified. . . ."
As you will note, such other officers as are elected are permitted to hold over until their successors shall be qualified. However, there is no such provision for those other officers who are appointed. Members of the Electric and Water Plant Board are, of course, appointed rather than elected. Furthermore, in
Byrne & Speed Coal Co. v. City of Louisville, 189 Ky. 346, 224 S.W. 883 (1920), the Court said that the provision as to officers holding over cannot be applied to members of the Legislature or members of legislative municipal boards, such as city councils, because the Constitution has prescribed the terms of office for those persons. It would not be competent for the General Assembly to extend their terms by providing they should hold over until their successors are elected and qualified.
Section 160 of the Kentucky Constitution also states that the General Assembly shall prescribe the qualifications of all officers of cities and towns, the manner and the causes for which they may be removed, and how vacancies in such offices may be filled. In connection with the appointment of the members of the Electric and Water Plant Board, KRS 96.172 states in part that the mayor or chief executive of the city shall, with the approval of the governing body of the city, appoint a board of public utilities, consisting of five citizens, taxpayers, voters, and users of electric energy or water. KRS 96.172(8) provides:
"The original appointees shall serve two for one year, one for two years, one for three years and one for four years, respectively, from the date of their appointment, as the mayor or chief executive officer of the municipality shall designate. Successors to retiring members so appointed shall be appointed for a term of four years in the same manner, prior to the expiration of the term of office of the retiring members. Appointments to complete unexpired terms shall be made in the same manner as original appointments. "
Thus, neither the Kentucky Constitution nor the statutory provisions provide that a member of an electric and water plant board may hold over after his term expires. Such a person cannot remain as a member of the board, until his successor is appointed by the mayor and the city commission, after the four-year term to which he had been appointed has expired.
In connection with the mayor's obligation to submit another name to the city commission for its approval after the commission has rejected his initial nomination, we first direct your attention to McQuillin Mun. Corp. (3rd Ed.), Vol. 3, § 12.87. The author discussed those provisions which require that an appointment be approved or confirmed by a body or board such as a city council:
". . . No reason need be given to the appointing officer for refusal to confirm, though the law requires the use of good faith in refusing to confirm. Upon failure of confirmation, the appointing officer must submit with convenient dispatch another nomination. . . ."
In
Broadwater v. Booth, W.Va., 180 S.E. 180 (1935), the Court said in part as follows:
". . . Upon failure of confirmation of an appointment the Governor with convenient dispatch, must submit another nomination - a different individual from the one rejected. A similar duty devolves upon the mayor of Belington . . . ."
In 62 C.J.S. Municipal Corporations § 473 (p. 910), the following appears in connection with appointments by the mayor and confirmation by the council:
". . . An announcement by the mayor that he will make no appointments but will allow present appointees to hold over will not have the effect of extending the term of an incumbent . . . ."
Finally, in 67 C.J.S. Officers § 32 (p. 161), it is stated:
"Where there is a failure to confirm on the part of the confirming body, it is the duty of the nominating power to make a new appointment . . . ."
Thus, where a statute requires, in effect, the joint approval of the mayor and the city commission in connection with appointments to the Electric and Water Plant Board, and where the commission refuses to confirm a person nominated by the mayor, the mayor must nominate someone else and must continue to do so until the city commission agrees with his selection.