Request By:
Mr. James L. Hughes
291 Tangley Way
Lexington, Kentucky 40503
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of recent date in which you raise the following questions:
1. If a city of the fourth class which is under the city commission form of government, has a commissioner to resign before he has completed his elected term, can the remaining three commissioners, and mayor appoint someone to fill the vacancy for the completed term.
2. If not, what procedure must be followed.
3. The appointment which I am inquiring about was appointed in June, 1979 because of the resignation of a city commissioner. Can a citizen file for the vacancy in November of 1980 under the new law of the no partisan act which takes effect in July, 1980 of this year? Note (the appointment was made in June of 1979). Does the time lapse make a difference.
4. Can a citizen file the correct commission papers before the May election in 1980, turn the papers in to the county clerk and have his name written in at the ballot box.
In response to your initial question, a vacancy created in the office of city commissioner under the commission form of government is required to be filled by the remaining members of the board of commissioners [which includes the mayor] pursuant to KRS 89.140 (5). This appointment, however, will hold only until an election can be held for the unexpired term under the terms of § 152 of the Constitution. We also might point out that under Senate Bill 26, § 4, subsection 4, [effective July 15], it is also provided that if a vacancy occurs in a legislative body [the board in this instance], the remaining members of the body shall fill said vacancy, with the additional provision that if the legislative body fails to fill the vacancy within thirty (30) days after it occurs, the governor shall promptly fill the vacancy by appointment. See also subsection (5).
Your second question has been answered above.
In response to your third question where a vacancy occurred in June, 1979 and no election was or could be held that November under Constitution § 152, the vacancy would have to be filled at the November, 1980 general election since we are electing presidential electors who are classified as state officers. McCreary v. Williams, 153 Ky. 49, 154 S.W. 417 (1913).
Under the present law governing the selection of city commissioners in a fourth class city operating under the commission form of government, only those persons nominated in a special city primary are entitled to be elected to office in November. See KRS 89.060. However, as of July 15, this statute is repealed by virtue of Senate Bill 26, § 20. As of July 15, § 5 of the Act provides that except in cities of the second class operating under the city manager form of government, which must continue to hold special city primaries, the election of all city officers shall be governed by the general election laws unless the city legislative body prescribes, by ordinance, not later than 240 days prior to a regular election in which any city office is to be filled, that the city offices shall be filled pursuant to a nonpartisan city primary and general election law as provided in § 17 of the Act.
This apparently means that the special city primary required for cities of the fourth class operating under the commission form of government [KRS 89.140] will no longer be in effect as of July 15, and at that point in time the city will automatically operate under the general election laws that simply require the filing of an independent petition [KRS 118.315]. This being the case, we believe that any person interested in becoming a candidate for the vacancy in question could file an independent petition under the terms of KRS 118.315 not later than fifty-five (55) days before the general election or not later than September 10. See KRS 118.365.
Of course, a problem is created if in fact candidates have filed for the office under the present law for the special nonpartisan primary on May 27. If such is the case, the effect of Senate Bill 26 could be to nullify the result of such a nomination and require all candidates, whether so nominated or not, to file independent petitions for the November election in the manner mentioned above. This question must necessarily be answered by the courts.
Your fourth question has been answered above.