Request By:
Mr. William J. Feeley
Administrative Assistant
City of Edgewood
436 Dudley Road
Edgewood, Kentucky 41017
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 17 in which you relate that the city council plans to draft a resolution proposing that staggered terms for council members be submitted to a referendum as outlined in KRA 83A.120. If the vote is favorable, the city council would then like to increase the size of the council from seven (7) to eight (8) members so that an even number could be elected on alternate years. Under the circumstances, your initial question is whether the council could create this additional council seat and appoint a citizen to fill the vacancy at any time or would this position be required to be created at a subsequent regular election considering the fact that the city has adopted the nonpartisan primary procedure under KRS 83A.170.
KRS 83A.030 authorizes the council of a city of the fourth class to be composed of not less than six (6) or more than twelve (12) members; therefore, the city is authorized to increase its membership from seven (7) to eight (8) members. There is no specific statutory procedure that the city must follow in order to increase the membership of its council except under KRS 83A.030 (4) where it is required to do so as a result of the Federal census, which would not be applicable in this instance. Therefore, we believe that it can be done by an appropriate ordinance at any time but preferably before the filing deadline for the nonpartisan city election. The fact that the city has elected to operate under the special city primary statute [KRS 83A.170] would not prohibit the creation of the additional office by the legislative body at any time. Of course, the city would not want to establish this additional council seat before the passage of the referendum on the question of staggered terms which could at the earliest be determined at the coming 1981 general election. Assuming that there was a favorable vote, then the additional council seat should be established prior to the filing deadline for a possible 1982 special city primary so that candidates to fill the vacancy created by virtue of the additional office, could file for nomination pursuant to KRS 83A.170 and the office filled at the following November election, in accordance with § 152 of the Kentucky Constitution. Of course, when the additional council seat is established by ordinance, then the council could immediately proceed to fill the vacancy by appointment, subject to an election for the unexpired term as required by § 152 of the Constitution.