Request By:
Mr. Bill Johnson
413 Ila Avenue, Route 5
Danville, Kentucky 40422
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to a letter dated August 18 from you and other members of the council of Junction City in which you initially relate that on August 4, 1980, four (4) members of the six (6) member council met for the apparent purpose of appointing a police officer. A motion was made to hire the individual in question, two (2) voted for and two (2) voted against, and the mayor voted to break the tie. The individual was then employed as a police officer. You refer to KRS 87.050 (1) which provides in effect that no ordinance, resolution or order shall have any validity unless passed by a vote of three (3) members of the city council. Your initial questions are as follows:
1) Does a motion for employment "die" without at least three affirmative votes?
2) Does the mayor have a vote on less than a three-three tie?
To begin with, KRS 87.050 and 95.700 [appointment of police officers] were repealed as of July 15 pursuant to the enactment of Senate Bill 26 which now governs cities of all classes. Under the new law, and particularly KRS 83A.080 (2), provision is made that all nonelective city officers [which would include police officers] shall be appointed by the executive authority of the city, which [under the councilmayor form of government] is the mayor. See KRS 83A.010 (6). However, all such appointments shall be with the approval of the city legislative body, with certain exceptions not applicable here.
It is thus apparent that the appointment of the police officer in question made at the August 4 meeting was improper and contrary to the terms of KRS 83A.080 (2). Aside from this we might point out for further clarification that KRS 83A.060 (6) provides that unless otherwise provided by statute, a majority of a legislative body shall constitute a quorum and a vote of a majority of a quorum shall be sufficient to take action. At the same time, KRS 83A.130 (5) provides that the mayor may cast a deciding vote in case of a tie.
Prior to the action taken by the city council on August 4 to appoint the police officer in question, a special meeting was held on July 14, at which all members of the council and the mayor were present. During the special meeting, the council went into executive session, at which time the question of the police officer's employment was discussed. Thereafter a vote was taken which resulted in the casting of four (4) votes in opposition and two (2) in favor of the appointment. Under the circumstances, you raise the additional two questions:
1) Is, or was, the August 4, 1980 vote legally binding upon the council, in light of the executive session vote?
2) What remedial action can be taken by the council majority to correct this situation?
The answer to the first question would be in the negative, not only for the reasons expressed in our response to your initial questions, but also because under the Open Meetings Law no final action can be taken at a closed or executive session by any public agency, including, of course, the city council. See KRS 61.815 (3). Of course, discussions that might lead to the appointment of an individual employee may be discussed at a closed session. See KRS 61.810.
Under the circumstances, the action taken by the city council in employing the individual in question at the August 4 meeting would in our opinion be of no legal effect since at that point in time the power of appointment rested with the mayor. Thus, from a legal standpoint the city must start over and follow the employment procedure outlined above.