Request By:
Hon. J. Chester Porter
Porter & Edison
Attorneys at Law
217 Buckman Street
Shepherdsville, Kentucky 40165
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of August 20 in which you pose the following questions relating to the election of city councilmen and mayors in cities of the fourth and fifth classes in 1985. Your questions are as follows:
"During the calendar year of 1985 when will persons running for the legislative body in fourth and fifth class cities under city council form of government be required to file the petition for office?
"During the calendar year of 1985 when are persons in fourth and fifth class cities seeking the office of Mayor of those cities under the city council form of government required to file for office?"
In response to your questions we initially point out that the 1984 General Assembly amended the provisions of KRS 118.365 which will affect the filing deadlines for independents for municipal offices depending to a large extent on the class of the city, the office to be filled, and type of government under which it operates. Subsections (2) and (6) which relate to the filing of independent candidates read as follows:
"(2) Petitions of nomination for candidates to offices which are prohibited from utilizing a primary shall be filed with the county clerk not less than seventy (70) days before the day fixed by law for the holding of regular elections.
"(6) Petitions of nomination shall be filed as required with the secretary of state or county clerk not less than ninety (90) days before the day fixed by law for the holding of primary elections. . . ." (Emphasis added.).
In conjunction with the subsections quoted above, we also refer to and quote KRS 118.105(4) which relates to nominations by political parties under the Party Primary Act:
"This section (the Primary Act) does not apply to candidates for members of boards of education, members of the legislative bodies of cities of the fifth or sixth class, or presidential electors, nor to candidates for mayor or commissioner in cities of the fourth class operating under the commission form of government and in cities of the second, third or fourth class operating under the city manager form of government. "
You will note from the quoted provisions of KRS 118.365 particularly subsection (6) that beginning in 1985 petitions of nominations by independent candidates require that such petitions be filed with the county clerk or the Secretary of State 90 days before the day fixed by law for the holding of primary elections. At the same time subsection (2) qualifies said subsection and states that petitions of nominations for candidates for office who are prohibited from running in the primary shall file their nominating petitions 70 days before the regular election. The question that follows is what candidates are prohibited from utilizing the primary insofar as those running for city office and you will note under the quoted provisions of KRS 118.105(4) the various offices, in certain class cities operating under certain forms of government that cannot be filled by party nomination.
Thus candidates running for those offices in classes of cities and types of government named in subsection (4) who are thereby prohibited from seeking party nomination, can file up to 70 days before the November election. All other candidates for those offices, classes of cities, and types of government not named in subsection (4) will have to file 90 days before the primary election.
With the above statute in mind and in response to your initial question, persons filing for city council in a city of the fourth class who desire to file as an independent or for party nomination must file 90 days before the May primary election. With respect to candidates for city council in cities of the fifth class who are prohibited under KRS 118.105(4) from seeking party nomination, they may file independent petitions up until 70 days before the general election.
In response to your second question concerning those persons running for the office of mayor in cities of the fourth and fifth classes under the councilmanic form of government, you will note that the office of mayor in these classes of cities are not prohibited from seeking party nomination under the provisions of KRS 118.105(4) and therefore they would be required to file independent petitions 90 days before the May primary.
The filing deadlines for party nomination or those independent candidates required to file before the primary for 1985 would be not later than February 27. The November filing deadlines for those candidates that cannot seek party nomination under KRS 118.105(4) would be August 27.
We also might point out that if any of the cities to which you refer are operating under the special nonpartisan cities primary act, KRS 83A.170, all candidates for office will have to file not later than the 27th of February, 1985, the same deadline for party primary candidates.