Request By:
Mr. Noel E. Sullivan
Councilman, City of Edgewood
516 Dudley Road
Edgewood, Kentucky 41017
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to the letter submitted by yourself and three other members of the city council concerning city council meetings. Your first question asks:
"May a mayor of a fourth class city, who, while acting as presiding officer and parliamentarian continue to possess the chair and at the same time participate in elongated and partisan discussion with members of council during councilmatic deliberation leading to a vote on an issue and following a legislative determination by council, again, while occupying the chair, give an extensive speech indicating his disapproval of previously taken formal council action?"
KRS 86.070(3) states:
"The mayor shall preside at all meetings of the council, and decide all points of order. He may vote only in case of a tie or when his vote is necessary to make a quorum."
The general rule concerning the conduct of council meetings is that the council has the inherent power to establish rules of procedure for its own government, provided such rules are not inconsistent with the Constitution, the city's charter or any state statutes. See OAG 73-368, copy enclosed. Since the charter of a fourth class city does not set forth the parliamentary procedure to be followed by the city council in the conduct of its business, the council may adopt and change its own rules of parliamentary procedure. You state that the city council has adopted Robert's Rules of Order (Newly Revised) concerning parliamentary procedure.
Chapter XII, § 42 (Rules Governing Debate), pages 333-334 (Rule Against Chair's Participation in Debate) of Robert's Rules of Order provides in part that impartiality is required of the chair in an assembly and normally the chair should have nothing to say on the merits of pending questions. To participate in debate the presiding officer must relinquish the chair and should not return to it until the pending main question has been disposed of since he has shown himself to be a partisan as far as that particular matter is concerned.
Thus, the mayor, as presiding officer at meetings of the city council, should refrain from engaging in the debate on the merits of pending questions. The mayor, as presiding officer, is directed to decide all points of order. However, under Robert's Rules of Order (Newly Revised), Chapter VII, § 24 (Appeal), pages 218-222, it is provided that where the presiding officer rules on a particular motion or matter before the body, any two members have the right to appeal from his decision on such a question. Again see OAG 73-368 (page two).
Your second question asks:
"May a Council of a fourth class city punish the presiding officer for misconduct by deposing him from that position pursuant to KRS 86.060 or Robert's Rules, Chapter 20?
If your answer is in the negative, what, if any, procedures are available to prevent such misconduct? In this question, we are not thinking of impeachment, for it is our understanding that the statutes do not provide for this remedy by the legislative body."
KRS 86.060(2) provides in part that the city council, by a vote of three-fourths of its members, may, for any good cause, expel a member. That statute, however, refers to members of the city council. The mayor is not a city councilman and, therefore, not subject to the terms and provisions of KRS 86.060(2). The city council has no statutory authority to remove the mayor from office under KRS 86.060(2) or any other statute.
Since the mayor is directed by statute [KRS 86.070(3)] to preside at council meetings and since the council has no authority to remove the mayor from office, we doubt that the city council, relying solely upon the parliamentary rules of procedure, can remove the mayor as presiding officer at council meetings against his will. If the mayor, as presiding officer, refuses to follow the parliamentary rules of procedure adopted by the city council, short of an impeachment proceeding by the Kentucky General Assembly, we can only suggest that the city council consult with the city attorney and the local prosecuting authorities to consider a lawsuit. A court of law can then determine the mayor's competence and authority to continue as presiding officer. See KRS Chapter 522 pertaining to "Abuse of Public Office."