Request By:
Mr. Frank A. Wichmann
Attorney at Law
710 Coppin Building
Seventh & Madison Avenue
Covington, Kentucky 41011
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
Your letter of June 13 relates that the City Council of Edgewood is presently composed of seven members and it is contemplated that the membership will be increased to nine. As attorney for the City of Edgewood, under the circumstances you raise the following questions:
"If the Edgewood City Council increases the membership of the City Council from seven (7) to nine (9) by ordinance pursuant to KRS 83A.030(1)(b), can the ordinance provide that the Edgewood City Council be composed of nine (9) members only after January 1, 1986;"
"Will there be two vacancies in the Edgewood City Council after January 1, 1986 which must be filed by the City Council within thirty (30) days thereof pursuant to KRS 83A.040(4);"
"Must the terms of the two new members of the Edgewood City Council be for periods of two (2) years from January 1, 1987; or may the terms be staggered for one (1) and two (2) years between them since staggered terms for members of the Edgewood Council have been established pursuant to KRS 83A.110 with three (3) members elected in even numbered years and four (4) members elected in odd numbered years."
In response to your initial question, reference is made to KRS 83A.030(1)(b) which authorizes the establishment by an ordinance of not less than six nor more than twelve members of the legislative body in cities of the second, third and fourth classes. Edgewood being a city of the fourth class is entitled to operate under the referred to statute and can, we believe, pursuant to ordinance increase its membership from seven to nine and at the same time provide that said ordinance shall not become effective until a future date such as January 10, 1986, the beginning of the new legislative term or any other date that appears feasible.
With respect to the right to provide a prospective effective date in the ordinance establishing two additional legislative seats, we refer to McQuillin, Municipal Corporations, Vol. 5, Sec. 15.39 from which we quote the following excerpts:
"Ordinances speak only from the time they go into effect. The common rule in regard to legislation is that it shall take immediate effect unless otherwise provided, and this rule is applicable to ordinances. . . .
"Where a definite time is prescribed before an ordinance shall take effect or go into force, the ordinance is effective from the expiration of the time prescribed, which may be called the 'effective date' or the 'date of operation,' and not from the date of its passage. . . ."
Under the circumstances, we see no legal objection to providing that the two additional legislative seats shall be effective at the beginning of the next regular term which will be January 10, 1986 pursuant to KRS 83A.040(3).
In response to your second question, if the additional legislative seats become effective on January 10, 1986, two automatic vacancies are created which will be filled by the remaining seven of the legislative body who assume the office on that date. Such members would have 30 days within which to fill the vacancies pursuant to KRS 83A.040(4) after which time the Governor assumes such authority in the event said vacancies are not filled by the legislative body.
In response to your third question where the city has established staggered terms by referendum pursuant to KRS 83A.110 and 83A.120, the question voted upon as provided in the statute includes the fact that half of the legislative body will serve two-year terms and half will serve one-year terms. Thus, we believe the establishment of staggered terms by prior referendum would necessarily include the two additional members. When the vacancies are filled by appointment those selected must draw in the manner provided in KRS 83A.110 to determine who will serve a two-year term and who will serve only a one-year term. This would keep the legislative body membership in proper balance as the statute requires. We might add that the member drawing the two-year term would have to run for the one-year unexpired term at the November 1986 election, as required by Section 152 of the Constitution. The member drawing the one-year term would have to run for a regular two-year term at the November 1986 election.