Request By:
Mr. Paul D. Gallion
City Councilman
Route 1, Box 101
Jenkins, Kentucky 41537
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of March 29, in which you allege that the former mayor authorized the payment of some $44,000 to city employees in excess of their wage agreement approved by the Jenkins City Council. Under the circumstances you raise a number of questions, the first of which is as follows:
"Since their wage increases were not approved by council, were their salaries paid legally? Would the city have grounds for a suit in an effort to recover some of the money? Could Mr. Tackett possibly be prosecuted?"
The compensation paid city employees may be increased during their tenure at will so long as such increase does not violate the ordinance fixing salaries, which of course can be amended from time to time to permit additional compensation. All such increases must of course be approved by the city council pursuant to an appropriate ordinance. In addition, the money under the new municipal code must be budgeted as required by Chapter 91A KRS governing city budgets. In addition, under the new code, enacted in July 1980, the council must fix all salaries of employees pursuant to an ordinance detailing the pay schedule for employees, in accordance with KRS 83A.070(3). Any city funds paid city employees that have not been duly and appropriately authorized as we have indicated, would be illegal and such funds may be recovered. The primary responsibility for the recovery of municipal funds illegally appropriated rests with the municipality itself, and before a taxpayer suit may be maintained, the appropriate officers of the city must be requested to act in this manner. See Wagner v. Wallingford, 257 Ky. 477, 78 S.W.2d 326 (1935).
Your next question is as follows:
"Should the hiring of a city councilman's family member be done in a closed meeting without that councilman being there? Can a councilman legally vote on the hiring of a relative? Can he vote on the wage or pay rate of a relative? Is a councilman allowed to vote on any business concerning a relative who is employed by the city or the council?"
Under the present municipal code city employees are hired by the chief executive officer of the city, which is the mayor, without the approval of the city legislative bydy, provided of course the position of employment has been duly established by ordinance. See KRS 83A.080(9). On the other hand, though the mayor has the power to also hire nonelective officers of the city where the office has been duly established, the council must approve such appointments under the terms of KRS 83A.080. Assuming that the person to which you refer is to fill a nonelective office, such appointment must be approved by the council at a regular or special meeting that is of course required to be open to the public under the Open Meetings Act. Such person cannot be legally hired at a closed meeting. See KRS 61.805 to 61.850.
Concerning the question of a councilman's right to approve the appointing of a member of his family to a nonelective office, the answer would be in the negative. He must refrain from participating in and voting on this matter. Of course, he has no vote on hiring employees. He also should refrain from voting on any ordinance authorizing a wage increase, we believe, that involves a member of his family, regardless of whether it involves an office or employment, because of self interest and in view of the decision in the case of Springfield v. Haydon, 216 Ky. 483, 288 S.W. 337 (1926). See also McQuillin, Municipal Corporations, Vol. 3, § 13.35. Of course the same rule concerning voting would apply to any contract executed between the city and relatives of the councilman.
Your third question is as follows:
"What are the procedures for filling a vacancy on the city council? If the vacancy is to be filled by the brother of a councilman, can that councilman legally vote in this instance?"
Any vacancy occurring on the city council must be filled by the other members of the city council within thirty days; otherwise, the governor has the power to fill such position. See KRS 83A.040. We have already answered your question concerning voting by members of the city council for appointment or employment of members of a councilman's family.
Your last question that has not been answered above involves the right of a councilman, who is considering resigning, to vote on his replacement. The answer is of course in the negative. The vacancy does not exist until after the resignation of the councilman has been received and accepted by the other members of the council by a majority vote. See KRS 63.010. Thus, after the resignation has been accepted, the councilman is out of office and has no voting rights.