Request By:
Mr. Robert E. Blanton
3641 Park Street
Catlettsburg, Kentucky 41129
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of November 14 in which you seek an opinion regarding a number of issues relating to the operation of city government. Your initial question is as follows:
"1. RE: ELECTION FRAUD
Before the General Election, incumbent Richard Hawkins had a house constructed outside of the city limits. Knowing that he would be moving and stating that he wanted to withdraw from the race in a newspaper article, was it legal for him to be, still, considered a candidate? He, also, has applied for a franchise with a Drive-Inn restaurant, which he proposed to build with municipal bonds. Is this not a disqualification?"
In response to your initial question, KRS 83A.040(3) requires each member of the legislative body to be a qualified voter in the city and reside within the city throughout his term of office. If a candidate does in fact move out of the city prior to his election, the question of disqualifying him by having his name removed from the ballot is a matter that must be determined by a Circuit Court action brought by an opposing candidate under the terms of KRS 118.176. If such action is not brought at that time, his qualifications cannot be attacked after the election in a contest suit. On the other hand, if he is not a legal resident when he enters office, he becomes a usurper subject to removal by the Attorney General under the usurpation statute, particularly KRS 415.050. Under this statute, documented evidence must be presented to the Attorney General for his consideration as to whether or not he will authorize an ouster proceeding to be brought in his name by an attorney selected by the individual or group petitioning for the removal of the officer. The Attorney General has complete discretion as to whether or not such authorization will be given. The determination of legal residence is often difficult since a person may temporarily leave his home in a particular locality with the intention of returning. In other words, two basic principles are involved, 1) the intent of the individual, and 2) factual evidence of his retaining residence in his home precinct. There are certain guidelines in determining this detailed in KRS 116.035 which we will not quote. The courts, however, have taken the position that each case stands on its own merit and the facts must be conclusive in order to disqualify a person who has been elected to public office.
Concerning the question involving a possible conflict of interest, we refer you to KRS 61.270 which prohibits any officer of the city from becoming directly or indirectly interested in any contract with the city which, of course, would include a franchise granted by the city in connection with a business in which such officer has a pecuniary interest. We might add, however, that if a contract of franchise is executed prior to the officer's term, no conflict of interest would exist.
Your second question is as follows:
"2. RE: RESIDENCE REQUIREMENTS
It is the city law that all employees must reside within the city limits. If one receives a salary from the city and is on the city payroll, does this not qualify him as an employee? Our mayor moved into a motel located in an adjacent city several months ago, after his house was damaged by a fire. He has made no effort to find lodging within the city limits. How much longer can he continue to reside outside Catlettsburg, when one employee was given five days to find a residence in the city or to be dismissed? Is this not discriminatory?"
The only officers required to reside in the city are members of the city legislative body and the mayor under the terms of KRS 83A.040 mentioned previously. Thus, there is no requirement that either nonelective city officers or employees must live within the city. As to whether or not the city can legally enact an ordinance requiring residence in the city for employees is a question for the courts to determine and would raise a constitutional issue.
The fact that the mayor's house was damaged by fire thereby requiring him to move into a motel located outside the city would not disqualify him as far as residency is concerned since it is an obvious fact that he was forced to move because of the fire and that the move is obviously temporary until his residence can be rebuilt. There is no time limit on nonresidency under the statutes. For example, there are many cases holding that a person who moves to another city for the purpose of employment, but who intends to return to his old home, retains a legal residence even though he may be absent for as long as three years. See
Everman v. Thomas, 303 Ky. 156, 197 S.W.2d 58 (1946) and KRS 116.035(1)(2).
Your third question is as follows:
"3. RE: CITY MONIES
The city uses the county prisoners for labor [from two (2) to ten (10)]. Since the county is given an allowance for food, is it legal for us to buy their lunch each day?"
Our response to the above question would be in the affirmative since we believe the county and city can make a contractual agreement whereby the city furnishes lunch to those county prisoners who are authorized to perform work for the city under the terms of KRS 441.068. This statute refers to working prisoners in community service related projects and authorizes the use of such prisoners to work for a county, a city or a special district or agency thereof.
Your fourth question is as follows:
"4. RE: TAKING SEAT AFTER ELECTION
In February, Charles Bennett was appointed to serve out the term of a candidate that had resigned. He was defeated in the primary election. His opponent, also won the general election. When does the new councilman take office?"
In response to the above question, any person appointed to fill a vacancy in the office of City Council, say in February, 1983, is entitled to serve out the remainder of the term ending on January 10, 1984. As you know, all councilmen were elected this November for regular two-year terms which do not begin until the date mentioned. See Section 152 of the Constitution.
Your fifth question is as follows:
"5. RE: PURCHASES AND ACTIVITIES OF EMPLOYEES
Does the Board of Council have a right to investigate purchases made by employees? For instance, if they purchase equipment for a Cadillac and the city has none, should they not be accountable for said action?"
In response to your last question, the city legislative body of any city has the power under KRS 83A.130(13) to investigate all activities of city government including city officers and employees. The mayor, of course, must be given written notice of the council's action. Such investigation could naturally include purchases made by city employees that may possibly involve municipal funds. Of course, if the purchases were made by the employee from his own personal funds for his own purpose, he is not accountable to the city.