Request By:
Mr. Thomas M. Bertram, II
City Attorney
317 Second Street
Vanceburg, Kentucky 41179
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of November 8 in which you enclose a copy of a payroll ordinance enacted by the city and initially request our opinion as to its legality.
The legality of any ordinance, of course, is a matter for the courts to determine; however, the city of Vanceburg has the authority pursuant to KRS 92.281 and Section 181 of the Constitution to enact a so-called payroll ordinance such as the one you have presented. The validity of such an ordinance has been upheld in the case of Kohler v. Benchart, 252 S.W.2d 854 (1952). Only sixth class cities are prohibited from enacting payroll ordinances under the terms of the above referred to statute.
You next relate the following facts:
"This ordinance was first read on October 6, 1980, at the regular meeting, no vote was taken. It was published the week of October 20, 1980. The second reading was at an adjourned meeting, October 23, 1980, wherein the vote was as follows:
"1 - abstain
2 - voted no
3 - voted yes
The mayor voted yes - assuming that the abstaining vote would be counted as a 'no' vote.
"The ordinance was again published the week of October 27."
The above vote count on the adoption of the ordinance indicates that said ordinance was duly enacted without the mayor voting on the question. The abstaining vote where the vote count is 2 "no" and 3 "yes" must be counted with the majority, which in this case would be the "yes" vote. See KRS 83A.060(2), (4), (5), and (9). See also the case of Payne v. Petrie, Ky., 419 S.W.2d 761 (1967).
We might point out in connection with the enactment of the ordinance in question that the publication between readings was not required so long as there were two readings on separate days and provided the ordinance was published in full. See KRS 83A.060(4) and (9).