Request By:
James F. Muse, Sr.
City of Ferguson
P.O. Box 222
Ferguson, Kentucky 42353
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 28 in which you refer to the passage of SB 295 reclassifying the City of Ferguson from a sixth to a fifth class city which of course will not become effective until July 15. You would like to know the effect of such reclassification on the governing body of the city.
In response to your questions, upon reclassification the officers in office at that time continue in office for the expiration of their term. See Tandy & Fairleigh Tobacco Co. v. City of Hopkinsville, 174 Ky. 189, 192 S.W. 46 (1917), and KRS 81.020 and 81.030. On the other hand, the Court of Appeals has said, in effect, the officers' terms continue only if there is an office under the new statute with the same or comparable duties. See City of Somerset v. Caylor, 241 S.W.2d 990 (1952); and Gilbert v. City of Paducah, 215 Ky. 160, 82 S.W. 816 (1903).
A fifth class city is governed by a city council of six (6) members. Also, a mayor is required to be elected. A city of the sixth class is governed by a board of trustees consisting of five members, and there is no provision for a mayor. Consequently, the five (5) members of the board of trustees would automatically become members of the city council on the effective date of the reclassification. Also, at that time a vacancy would automatically be created in one position on the city council as well as in the office of the mayor. These vacancies could be by the five members of the council, by appointment pursuant to KRS 87.210, subject to an election to fill such vacancies for the unexpired term pursuant to Section 152 of the Constitution.
The appointments to fill the respective vacancies made by the council would continue only until this year's November 4 election under the terms of the referred to section of the Constitution, since there is a regular election throughout the state at that time for presidential electors who are statewide officers. This constitutes a state election within the meaning of Section 152 of the Constitution.
We might also point out that those persons desiring to run for the unexpired terms of the offices in question must file an independent petition containing the names of twenty (20) petitioners on the form prescribed by the state board under the terms of KRS 118.315. These petitions must be filed with the county clerk not less than fifty-five (55) days before the election, which would be no later than September 10. The appointees to the referred to vacancies would hold office only until the November election, which means that those elected at that election will take office as soon thereafter as they receive their certificates of election and are able to take the oath of office. See Sizemore v. Jones, 117 Ky. 810, 79 S.W. 229 (1904).