Request By:
Ms. Pauline S. Hunt
City Treasurer
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of April 23, in which you relate that the City of Catlettsurg, a city of the fourth class, is operating under the councilmanic form of government, composed of eight councilmen. However, the city is divided into four wards, and the question is raised as to whether or not the city can continue to legally operate indefinitely in this manner by virtue of an ordinance enacted in August 1980 so declaring.
Our response to your question would be in the negative. KRS 83A.020(2) provides in effect that the present structure of each city remains in force until changed by the municipal code and all ordinances presently in force in each city not in conflict with the provisions of the code remain in force until changed.
KRS 83A.030, dealing with the organization of cities, requires that cities of the fourth class have not less than six nor more than twelve members. The City of Catlettsburg is in compliance with this statute which further contains the provision under subsection (3) that before the expiration of the term of the present legislative body members, meaning those in office on the effective date of the act, July 15, 1980, each city must take the necessary action to be in compliance with this section but in no event shall the city fail to be in compliance within two years from the effective date of the act, July 1982. Compliance can be compelled by injunction in circuit court.
On the other hand, KRS 83A.100 authorizes the city to be divided into wards; however, if it is so divided, there shall be the same number of wards as there are members of the legislative body. It further provides how members of the legislative body are to be elected, one from each ward. This statute provides for no waiting period except that the city cannot legislate an elected member of the council out of office. In OAG 80-645, copy attached, we pointed out that the City of Glasgow, back in December, 1980, was in fact in violation of the new code because of the fact the city had twelve councilmen but only four wards and should therefore take the necessary steps to be in compliance for the following year's primary and general elections, which was the regular election year for municipal offices.
You next point out that the office of city treasurer and city attorney are elective offices, having been made so by virtue of previous statutory authority so permitting, and there has been no attempt on the part of the city to make these offices appointive by the amendment or repeal of ordinances so providing. The question is raised as to whether or not these positions automatically become appointive rather than elective by virtue of the repeal of the related statutes by the enactment of the municipal code.
Our response to your question would be in the negative. We assume that the offices of city treasurer and city attorney were made elective by an appropriate ordinance adopted pursuant to KRS 92.060 and 69.560 which were repealed by the 1980 municipal code.
KRS 83A.080 (3) and (4) read as follows:
"(3) Each appointed and elected city office existing upon adoption of this chapter shall continue until abolished by ordinance, except that the offices of mayor and legislative body members may not be abolished. No abolition of any elected office shall take effect until expiration of the term of the current holder of the office. No ordinance abolishing any elected office shall be enacted later than two hundred and forty (240) days preceding the regular election for that office, except in the event of a vacancy in the office.
(4) No city may create any elected office. Existing elected offices may be continued under provision of subsection (3) of this section, but no existing elected office may be changed."
You will note from the above statute that each elected city office existing upon the adoption of the municipal code shall continue until abolished by ordinance. However, no abolition of an elective office can take effect until the expiration of the term of the current holder of the office, and, further, no ordinance abolishing an elective office can be enacted later than 240 days preceding the next regular election for the office, except in the event of a vacancy.
In view of the clear language of KRS 83A.080 (3) and (4), the offices of treasurer and attorney continue to be elective offices until the ordinance so providing is repealed in accordance with the terms of these sections.