Request By:
Honorable Joseph A. Biagi
726 Main Street
Shelbyville, Kentucky 40065
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of July 13 relating to the City of Simpsonville which you represent and which is a sixth class city. You rolate that Simpsonville has proceeded to change its form of government to that of commission, effective the first Monday in January 1982, in order for a mayor and four commissioners to be elected at the 1981 general election. The city has also enacted an ordinance providing for nonpartisan city elections to be conducted pursuant to 83A.170. At the special city primary that was held at the regular May primary, only one person was nominated for the office of mayor and only three persons for the office of city commission. Under the circumstances you raise the following questions:
"The first question presented is whether the nominee for mayor and the three nominees for commissioners be required to be placed upon the ballot for the regular election in November.
The next question is whether a 'vacancy' exists as to the office of the fourth commissioner and, if so, would a person not nominated in the primary, receiving the highest number of 'write in' votes at the regular election be elected to the office of the fourth commissioner? This question assumes that KRS 117.265, pertaining to write in votes, would be applicable to the election in question."
Our response to your initial question would be in the affirmative. Section 160 of the Constitution and KRS 83A.040 provide in effect that in order to hold the office of mayor and membership on a city legislative body, one must be elected by the voters at a November election. In other words, the names of the unopposed candidates would have to be placed on the November ballot for the offices they seek in order for them to be elected to office.
In response to your second question, KRS 83A.170 requires a person to be nominated in the special city primary in order to hold the office to be filled in the November election. As a consequence, write-in votes cannot be cast in this type of city election, as held in OAG 81-43, copy attached. You will note where we have cited the case of
Hales v. Langford, Ky., 446 S.W. 647 (1969), in which the Court upheld a similar provision formerly found in KRS 89.440 and which has been repealed.
Since only three commissioners were nominated, only three can be elected at the November election and a vacancy will be created when the new commission members are to take office on the first Monday in January, at which time the elected commissioners would be authorized to fill the vacancy pursuant to KRS 83A.040(4). Such appointment would be subject to the provisions of Section 152 of the Constitution governing the filling of all vacancies in elective office which would require an election to be held at the next regular election in 1982, provided there is a regular election at that time embracing the area in which the municipal vacancy has occurred, in this case, of course, meaning the City of Simpsonville.