Request By:
Honorable James F. Dinwiddie
Attorney at Law
80 Public Square
Leitchfield, Kentucky 42754
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of May 28 in which you raise a number of questions involving cities of the sixth class that are now required to operate under the commission form of government. Your initial question is as follows:
"Please give me your opinion as to the interpretation of KRS 83A.030(1)(c), as it relates to 83A.020, the former provision indicating that sixth class cities are organized under a mayor-council plan, which by definition is excluded under the latter provision, which states that sixth class cities are under the city commission plan. "
We see no conflict between the referred to provisions. KRS 83A.030(1)(c) refers to those cities that organize under the mayor-council plan. This simply means that if and when a city of the sixth class that formerly was operated under the trustee form of government but now required to operate under the commission form of government elects to convert to the councilmanic form of government, it will be governed by six members of the city council and a mayor. Such a change must be by referendum as provided in KRS 83A.160 and 83A.120.
KRS 83A.020(1), on the other hand, declares that all sixth class cities formerly governed by KRS Chapter 88 are presently required to be organized and governed under the commission plan. This in effect is an automatic requirement and as a consequence the provisions of KRS 83A.030(1)(c) would not become effective until the city votes to change its form of government to that of the mayor-council plan.
You next relate the following facts and questions:
"Further, I am having trouble reconciling KRS 83A.010 with 83A.030(2). KRS 83A.010 defines 'legislative body member' as a city commissioner in a commission plan-city organization. However, KRS 83A.030(2) states that 'each city organized and governed under the commission plan of the city manager plan shall have a legislative body composed of a mayor and four (4) commissioners.' My question is whether the mayor is a city commissioner also, under the first-stated definition?"
In response to your question, the mayor is a voting member of the commission. You will note that KRS 83A.030(2) provides that each city organized and governed under the commission plan shall have a legislative body composed of a mayor and four commissioners, though technically the term "legislative body member" refers to the commission as noted in the definitions section, namely KRS 83A.010.
Next, referring to KRS 83A.140, governing the commission form of government, you will note under subsection (2) that each city operating under the commission form of government shall be governed by an elected officer called the mayor and by elected legislative body members called city commissioners, which together shall be known as the city commission. Subsection (4) provides that the mayor shall preside at all meetings of the commission and may vote in all proceedings.
You next relate the following facts and questions:
"Further compounded is a decision as to what would constitute a quorum under KRS 83A.060(6) which states 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.' Does the mayor count as a member of the legislative body for purposes of determining a quorum and taking a vote?"
The answer to your question would be in the affirmative as indicated by the above referred to statutes. The mayor is a voting member of the commission and as a consequence his vote is effective in determining a quorum. We refer you specifically to KRS 83A.030(2) which refers to the legislative body being composed of mayor and four commissioners as well as KRS 83A.140 referred to above.
You next relate it is to be assumed under KRS 83A.060(2) that the mayor can no longer issue municipal orders. On this premise you raise the following question:
"Is he considered a member of the legislative body and required to issue municipal orders only through official meetings, said orders to be in writing and maintained in an official order book?"
Under the commission form of government the mayor does not act as the executive head of the government as is the case under the councilmanic form of government. The city commission itself possesses all executive as well as legislative authority under KRS 83A.010(6). The commission also supervises all departments pursuant to KRS 83A.140(3) and appoints all nonelective officers pursuant to KRS 83A.080(2). Thus, all municipal orders are to be issued by the commission of which the mayor is considered a member, as we have previously pointed out. Of course the commission could, we believe, delegate the actual drawing up of the legislative or executive order to the mayor and authorize him to sign the order in its behalf following its enactment.
Since the mayor is a voting member of the commission and has no individual executive powers, his duties and powers are limited accordingly. You will note under KRS 83A.140(6) the power of this city commission to establish an administrative officer pursuant to KRS 83A.090 to supervise all administrative departments that are required to be established by this subsection and headed by a commission member.
You next raise the question as to whether the commission fills all appointive positions rather than the mayor. The answer would be in the affirmative, as we pointed out above, citing KRS 83A.080(2) since the executive authority is vested in the commission.
Your last question concerning the mayor's right to vote and creating a tie would be in the affirmative since he is a voting member of the commission.