Request By:
Ms. Gretchen Kaiser
City Clerk
City of St. Matthews
P.O. Box 7097
St. Matthews, Kentucky 40207
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 27 in which you relate that the city of St. Matthews, a city of the fourth class, has a councilmanic form of government composed of eight (8) members elected at large. A vacancy now exists in the council by reason of the resignation of one of its members. Under the circumstances, you raise the following question:
"May the City legally pass an Ordinance reducing the council to a total of 7 members and in so doing eliminate the vacancy? "
In response to your question to initially refer to KRS 86.030, which reads as follows:
"The legislative power in cities of the fourth class not having the commission or city manager form of government shall be vested in a city council having not less than six (6) nor more than twelve (12) councilmen, the number to be fixed by ordinance. Whenever the size of the city council is changed, the city clerk shall, within ten (10) days, notify the county clerk in writing for purposes of placing the proper number of offices on ballots for future elections." (Emphasis added).
The above statute clearly authorizes the city to determine by ordinance the size of the city council that may range from six (6) to twelve (12) members. It also clearly authorizes the council to change the membership either by increasing or diminishing the number within the minimum and maximum number provided therein. It is a general rule, as expressed in McQuillin, Mun. Corps., Vol. 3, § 12.118, that where a municipal corporation, pursuant to its charter, has the power to establish by ordinance an office, it also has the power to abolish it. This of course must be done by ordinance.
Therefore, in view of the fact that a vacancy now exists on the 8-man council, we believe that the city can, pursuant to ordinance, abolish this office effective immediately, thereby leaving a 7-man council.