Request By:
Hon. Frank W. Burke, Jr.
Burke, Schuhmann & Burke
1234 One Riverfront Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
As special counsel for the City of Shively, you seek our opinion with respect to the following stated facts and questions:
"The scenario is as follows: the former Shively City Council took office on Monday, January 4, 1982, as per KRS 83A.040, which provides for a term of two (2) years and until his successor qualifies. The 1982 Session of the Kentucky General Assembly passed a law [Ky. Acts, Chapter 434, 10, effective July 15, 1982, now KRS 83A.040(3)] stating that each newly elected city Councilman's term of office shall begin on January 10, and shall be for two (2) years.
On Tuesday, January 3, 1984, the former Shively City Council gave a second reading to and approved City of Shively, Kentucky, Ordinance #19, Series 1983, establishing the office of Shively City Clerk. Said ordinance was published on Friday, January 6, 1984. Also, on January 3, 1984, at the same regular meeting of the Council, Municipal Order #1, Series 1984, appointing John Haywood as Shively City Clerk, effective January 7, 1984, was introduced and approved by the former Shively City Council.
On Monday, January 16, 1984, Municipal Order #3, Series, 1984, (a copy of which is enclosed) repealing Municipal Order #1, Series 1984, was introduced and approved by the newly elected Shively City Council. Said Municipal Order #3, Series 1984, was subsequently vetoed by the Mayor of the City of Shively on Monday, January 23, 1984.
This sequence of events leads up to the following questions which I seek your opinion on:
1. Were the actions of the former Shively City Council on Monday, January 3, 1984, valid or had their term of office expired?
2. Does the Shively City Council have the power to remove a city employee, as attempted by Municipal Order #3, Series 1984, or is such power exclusively executive in nature and thus, only vested in the Mayor as per KRS 83A.130(9)?
3. Can the Mayor of the City of Shively veto a Municipal Order?"
In response to the initial question concerning the validity of the actions taken by the old council on January 3, 1984 we refer to Section 160 of the Constitution which provides that the terms of members of the legislative boards shall be two years. In construing this provision, the court in the case of Byrne and Speed Coal Co., v. City of Louisville, 189 Ky. 346, 224 S.W. 883 (1920) declared that the term of councilmen cannot be extended by the Legislature by providing that they shall hold over until their successors have been elected and qualified or beyond the term fixed by the Constitution. Section 161 also provides that after a city officer is elected, the term for which he was elected cannot be extended.
The councilmen elected in 1981 took office on the first Monday in January 1982 which was January 4. Their term was for two years which would normally have ended at midnight January 1, 1984 as the council elected in 1983 would ordinarily have gone into office beginning January 2, 1984. The 1982 Legislature amended KRS 83A.040(3), as you have indicated, changing the date that councilmen elected in 1983 and thereafter would take office, to January 10 thereby apparently leaving a hiatus of some eight days during which the city would appear to have no legally constituted council. This, of course, is based on theory that the 1982 councilman's term could not be extended by the legislative amendment in view of the referred to sections of the Constitution and case law relating thereto. However, this question is obviously subject to litigation as it relates to the 1982 amendment and it could be argued that the council meeting on January 3 was technically within a two-year term which began on January 4, 1982.
Irrespective, however, of the question of whether or not the January 3 meeting of the old council was valid, we do not believe it is particularly material in answering two other questions raised, since the action taken by both the old and the new councils is legally questionable. The 1982 General Assembly created the office of city clerk pursuant to KRS 83A.055 and mandated that the city establish the office by ordinance. However, neither this statute nor any other section of the Municipal Code authorizes the council to fill nonelective positions including, of course, the office of city clerk. Thus Municipal Ordinance #1 issued by the old council making the appointments was of no legal effect since only the mayor is authorized to make appointments to fill nonelective offices pursuant to KRS 83A.080(2). This must be done by executive order though such appointments must be approved by the council.
At the same time the new council's action on January 16 in enacting Municipal Order #3 that repealed Municipal Order #1, which removed the city clerk, was likewise without legal effect since only the mayor has such authority under the terms of KRS 83A.080(2). We might add that the mayor also has the sole appointing and removal authority over all employees unless, of course, they are covered by civil service or are otherwise restricted as declared in KRS 83A.130(9).
With respect to the establishment of the office of clerk and assuming that the action by the old council was illegal, the new council would nevertheless have to establish or reestablish said office so as to be in compliance with KRS 83A.055.
In response to your last question, the mayor has no veto power over municipal or legislative orders. His veto power is restricted to municipal ordinances under the terms of KRS 83A.130(6).