Request By:
Hon. Robert L. Caummisar
City Attorney
City of Grayson
302 East Main Street
Grayson, Kentucky 41143
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of February 21 in which you raise the following questions:
"1) May City Council meet at ordinanced regular meeting in absence of Mayor and without prior thereto enacting of ordinance pursuant to KRS 83A.130(5) appoint one of their own members to preside at the meeting, and
2) May a Mayor pursuant to KRS 83A.130(10) appoint the City Attorney to be responsible in the Mayor's absence for the day to day functions of the Mayor's office, excepting those of presiding at meetings of City Council or approving ordinances or promulgating administrative procedures? "
Our response to your initial question would be in the affirmative. KRS 83A.130(5) provides, as you have indicated, that the mayor presides at meetings of the council and that the council may set by ordinance the manner in which one of its members may be selected to preside at meetings of the council in place of the mayor. You will note that the statute uses the word "may" with respect to the passage of the ordinance setting forth the manner in which one of its members shall preside at meetings when the mayor is absent. This term is not mandatory, but merely directory as pointed out in KRS 446.010(20). In other words, the council does not have to enact such an ordinance setting forth the procedure in order to function in the mayor's absence and may, if it fails to do so, select by motion one of its members to preside at a meeting at which the mayor is not present. This is a general rule of parliamentary procedure as pointed out in the case of Shugars, Police Judge v. Hamilton, 122 Ky. 606, 92 S.W. 564 (1906), in which the court declared and we quote:
"Under the statute (section 3634) it is the duty of the mayor to preside at meetings of the council, and he may only vote in case of a tie. In his absence, a member of the council may be chosen as mayor pro tem; but this does not deny him the right to vote as a member of the council." (Emphasis added.)
We also point out as the above quote states that the councilman chosen to serve in the absence of the mayor does not lose his right to vote as a member of the city council. See also McQuillin, Mun. Corps., Vol. 4, Sec. 13.25.
Your second question concerning the right of the mayor to select the city attorney to perform the everyday duties of the mayor in his absence should also be answered in the affirmative. KRS 83A.130(10) clearly provides that the mayor may, when he is unable to attend to the duties of his office, delegate such responsibility by executive order to a subordinate officer or employee except his responsibility to chair meetings of the council or approve ordinances or promulgate administrative procedures which can only be designated to an elected officer which can only mean a member of the city legislative body. This eliminates the possibility of incompatible offices, that of the city attorney holding the office of mayor at the same time as he is merely performing the duties of the office of mayor that have been delegated pursuant to the statute. Also there is no such office as "mayor pro tem" under the Municipal Code as we have pointed out in prior opinions and miscellaneous letters, and we do not believe such an office can legally be established in view of the present statute referred to.
Under separate cover, we will send you a copy of a response covering these and additional questions recently raised by Councilman Morris.