Request By:
Hon. Patricia M. Summe
Summe & Summe
Attorneys at Law
203 Scott Street
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of June 17 in which you as city attorney for the city of Fort Wright, Kentucky relate that the mayor of this city resigned effective April 16, 1983 thereby creating a vacancy which was filled by council appointment pursuant to KRS 83A.040. You further relate that the city has elected by appropriate ordinance to operate its elections under the special city primary act, namely KRS 83A.170. The question raised concerns the appropriate method of filling this vacancy in November in view of the provisions of the special city primary statute. This statute requires, in effect, that any person elected to city office must first be nominated in the special city primary. More specifically, we quote the following excerpts from Subsections (1) and (2) to wit:
"(1) In any city which has under the provisions of KRS 83A.050 required nonpartisan city elections, or in any city of the second class operating under the city manager form of government pursuant to KRS 83A.150, no person shall be elected to city office except as provided in this section.
(2) No person shall be elected to city office without being nominated in the manner provided in this section at a nonpartisan primary election to be held at the time prescribed by law for primary elections generally. . . ."
KRS 83A.170 is very similar to KRS 89.440 repealed in 1980 which governed cities operating under the city manager form of government. Both statutes are identical insofar as requiring a person to be nominated in the primary before he can be elected to any city office. This requirement was litigated in a number of cases, the last in point of time is styled Hales v. Langford, Ky., 446 S.W.2d 647 (1960). The question involved was whether or not this statute prohibited the casting of "write-in" votes which normally is considered a constitutional right in all elections. The court in finally deciding the constitutional aspect of the matter which was not dealt with in the initial case of Whitely v. Skinner, 190 Ky. 804, 241 S.W. 350 (1922), declared that no "write-in" votes could be cast since the Legislature was empowered by Section 160 of the Constitution to subject candidates for municipal office to qualifications that they must be nominated in the primary election as provided in KRS 89.440 before they could be elected to office. True, this case did not deal with Section 152 of the Constitution governing the filling of vacancies in all elective offices. However, based on the constitutional authority enunciated by the court in the Hales case (Section 160), we believe that the legislative directive in KRS 83A.170 would govern. The Legislature could and probably should have considered the possibility that vacancies could occur after the filing deadline or following a nomination made by the primary and inserted in the statute exceptions to the normal method of nomination so that the voters could have the opportunity to vote for a candidate whose name is not on the ballot. This was done, incidentally, in subsequent amendments to KRS 89.440 particularly after the primary date was moved from September to May.
We are also enclosing a copy of OAG 81-263 in which the question was raised concerning nominations for the office of city commission made pursuant to KRS 83A.170 where only three persons were nominated leaving the question of whether or not a vacancy existed that could be filled by subsequent nomination before the November election in order that at least four candidates would be listed on the ballot where the commission is composed of four members, not including the mayor, under the commission form of government. This office took the position that since only three commissioners were duly nominated in accordance with the provisions of KRS 83A.170 only three could be elected in November citing the lack of statutory authority covering such a vacancy as well as the decision in the Hales case.
This meant, of course, that following the election a vacancy would automatically be created on the commission which would be filled temporarily by appointment by the commission, in this case the new commission taking office in January. However, under your factual situation, and assuming that our analysis is correct, the vacancy in the office of mayor should be filled immediately after the election by the present council (as the term extends two more years), either by reappointing the person now serving or appointing someone else that is qualified.
Such appointee would serve until the November election in 1984 at which time the vacancy must be filled for the unexpired term as normally required by Section 152 of the Constitution. This would permit candidates to run in the special city primary which incidentally beginning January 1, 1984 is moved from May to the fourth Tuesday in August. See KRS 118.025. As you know, of course, next November is the Presidential election and Presidential electors are considered state officers. Therefore this election would constitute a qualifying election under the terms of Section 152 of the Constitution.