Request By:
Mr. Johnnie L. Turner
Forester, Forester,
Buttermore and Turner
P.O. Box 935
Harlan, Kentucky 40831-0935
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
As city attorney of the City of Cumberland, you present several questions pertaining to the provisions of KRS 83A.060 relating to council meetings and KRS 83A.080 concerning the hiring of nonelected officers. Your first question is as follows:
"1. Under KRS 83A.060 when a council of seven (7) members are attending a regular meeting which has been opened by the Mayor with a prayer being said and official business beginning, a council member, immediately without asking for permission to make a motion on the floor, moves the meeting adjourned and a second council member seconds this without any discussion and without a vote, four members of the council leave the meeting and thereafter the three remaining members, along with the Mayor, continue the meeting and take such actions as the Mayor nominating and the 3 council members approving persons to agencies of the city, such as the zoning and housing authority, City Clerk and adopting, by the first reading, ordinances on behalf of the city, are such actions legal and are they offical actions of the City?"
The meeting that you describe above where four members of a seven-man council left the meeting before any business was transacted, became null and void because a quorum did not exist where only three members remained during which business was transacted. KRS 83A.060(6) provides in effect that unless otherwise provided by statute, a majority of a legislative body shall constitute a quorum and a vote of a majority of a quorum shall be sufficient for the council to take action on any matter before it. Referring to the case of Lile v. City of Powderly, Ky. App., 612 S.W.2d 762 (1981), we find a question involving a board of trustees consisting of five members, one of the members attempted to resign verbally and at a subsequently called meeting the presumed vacancy was filled. At a later meeting at which an annexation ordinance was enacted, only two members plus the newly appointed member were present. The court first declared there was no legal vacancy to be filled because of the fact that the resignation was not made in writing. Thus the fact that only two members were present such did not constitute a quorum and as a consequence the ordinance was never legally enacted and no official business was conducted at the called meeting.
Next referring to McQuillin, Mun. Corp., Vol. 4, Sec. 13.27(a) we quote the following excerpts:
"Usually, it is specified that a majority of the members shall constitute a quorum, although it may be required that two-thirds of the members, or some other specific proportion, shall be necessary to constitute a quorum. A less number than that required for a quorum cannot convene and transact business. Their acts will be considered void. . . . Where the statute or charter prescribes the number that shall constitute a quorum, it cannot be changed by the body. . . ."
Under the circumstances, whatever transactions were made at the meeting at which only three members of the sevenman council were present, which included the appointment of the city clerk, was invalid and will have to be brought before the council at a subsequent meeting and passed, before such action becomes valid.
Your second question reads as follows:
"2. Under KRS 83A.080, the Mayor of the City of Cumberland appoints non-elected City officers including the City Clerk and when doing so, is he required to advertise for position of City Clerk and during the interim period in which there is no Clerk approved by the city council, may the Mayor, by executive order, appoint an interim City Clerk, who continues as City Clerk until such time as she is approved by the City Council?"
KRS 83A.080(2) reads as follows:
"(2) All nonelected city officers shall be appointed by the executive authority of the city and, except in cities of the first class, all such appointments shall be with approval of the city legislative body if separate from the executive authority. The officers may be removed by the executive authority at will unless otherwise provided by statute."
There is no requirement under the above statute or any other relating to the Municipal Code that requires vacancies in nonelected offices to be advertised before they can be filled by appointment as provided above. Also, the mayor is not authorized to make any appointments, interim or otherwise, with respect to nonelected offices without the consent and approval of the city council. The statute appears clear that no appointment to a nonelected office becomes legally effective until approved by the council at, of course, a legal meeting. However, the duties of a clerk could in an emergency be performed by an employee of the city.
Your third question relating to the appointment of the city clerk has been answered above.
Your fourth question reads:
"(4) Under KRS 83A.060, the procedures for enacting ordinances are set forth which require an ordinance to be read on two separate occasions, unless an emergency exists, and requires publication under KRS Chapter 424, but does not specify whether an ordinance must be voted on for approval prior to or subsequent to the first reading of the ordinance and whether or not it must again be voted on at the second reading of the ordinance, and whether or not a council may vote unanimously or by majority or more at the first reading to approve the ordinance and may thereafter, subsequently, at the second reading of the ordinance, by majority vote, withdraw their approval and if so, can the Mayor veto the second vote by council? Are two votes required and can the Mayor veto a second vote by the council?"
In response to the above we are enclosing a copy of OAG 83-404 in which the position is taken that a vote following the first reading of an ordinance is unnecessary since the language in the statute in no way requires it. As a consequence, any ordinance enacted need only be voted on following its second reading.
Since only a vote is necessary following the second reading of any ordinance, your other related questions become moot. We might add that if the ordinance is passed following the second reading on separate days the mayor may exercise his veto power as provided under KRS 83A.130(6) which veto can of course be overridden by the council pursuant to this section.