Request By:
Honorable Herschel O'Nan
Mayor
City of Morganfield
130 E. Main Street
Morganfield, Kentucky 42437
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of August 9, in which you ask that we reconsider our conclusion in OAG 82-331 to the effect that members of the city council cannot legally serve on committees appointed by executive order of the mayor to oversee the operation of various administrative branches of city government for the purpose of rendering to the mayor advice and recommendations in his administration of the affairs of the city.
There is no question that the mayor can, on an informal basis, seek the advice of members of the council, either individually or collectively, on matters affecting the operation of city government. However, in view of the separation of powers doctrine as relates to the legislative and executive branches of city government under the councilmanic form, as very clearly expressed in KRS 83A. 130(11) cited in OAG 82-331, the appointment of standing committees composed of council members to oversee and monitor the operation would violate, in our opinion, the terms of the statute which must be strictly construed as pointed out in McQuillin, Municipal Corporations, Vol. 4, § 13.03, from which we quote the following:
"The rule of strict construction must be applied in construing statutes granting powers to a city council. A local legislative body is possessed of but special powers, limited by constituti ona, statutory and charter provisions, and all acts by it in excess of its powers are simply nugatory.
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It cannot by ordinance acquire powers expressly withheld by the city charter nor extend its powers beyond the limits prescribed by the charter. "
With respect to the advice and input that you are apparently seeking concerning the operation of city government, we call your attention to KRS 83A.130(13) which gives the city council the power to investigate any and all activities of city government. This statute reads as follows:
"The council shall have the right to investigate all activities of city government. The council may require any city officer or employe to prepare and submit to its sworn statements regarding his performance of his official duties. Any statement required by the council to be submitted or any investigation undertaken by the council, if any office, department or agency under the jurisdiction of the mayor is involved, shall not be submitted or undertaken unless and until written notice of the council's action is given to the mayor. The mayor shall have the right to review any statement before submission to the council and to appear personally or through his designee on behalf of any department, office or agency in the courst of any investigation."
The investigative authority given the council by the above statute can be utilized to keep it informed of the current operation of the city and its various departments. At the same time the mayor is required to perfport to the council on the conditions and needs of the city and make recommendations for actions on the part of the council that he finds in the public interest as provided under KRS 83A.130 (3).
In view of the above, our response in OAG 82-331 to the question raised is herewith clarified and reaffirmed.