Request By:
Honorable Timothy C. Stark
Attorney at Law
227 East Clinton Street
Hickman, Kentucky 42050
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of December 5 in which you state that on December 2, 1979 the mayor of the city of Hickman resigned from office. His term will not expire until December 31, 1982. The city operates under the city manager form of government and the term of city commissioners will also expire on December 31, 1982. You further relate that after January 1, 1980 the board of commissioners will elect a mayor pro tem who will presumably fill the office of mayor until an election is held in November, 1980 to fill the remainder of the mayor's term. There seems to be some confusion concerning the proper interpretation of the various subsections of KRS 89.520, particularly with respect to the filling of the permanent vacancy in the office of mayor by the mayor pro tem. You relate the following questions:
"1. If a temporary commissioner is appointed to fill a vacancy caused by the mayor pro-tem serving in the place of the mayor who has resigned, is the temporary appointee appointed under subsection 4 (mayor pro-tem filling office of mayor for thirty days) or subsection 5 (permanent vacancy in the office of mayor filled by mayor pro-tem) of KRS 89.520.
"2. If the temporary appointee is subject to subsection 4, must the board of commissioners wait 30 days after electing a mayor pro-tem who will fill the office of mayor before they can fill the commissioners office by temporary appointment.
"3. If instead, our situation is determined to be governed by subsection 5 of KRS 89.520 (permanent vacancy in the office of Mayor filled by the mayor pro-tem) , how is the apparent conflict between subsection 3 (which allows the mayor pro-tem to resume his office as commissioner after the November 1980 election pursuant to Const. § 152), and subsection 5 (which calls for the mayor pro-tem' s commission seat to be filled at that same election) resolved."
We will respond to your questions as a group.
Subsection (3) of KRS 89.520 provides, as you know, that in case of the resignation of the mayor, the mayor pro tem shall act as mayor in his capacity as mayor pro tem until the vacancy in the office of mayor can be filled by an election ordered by the board of commissioners. The time for filling the vacancy is however controlled by § 152 of the Constitution and not by the board of commissioners as the statute provides. See Scott v. Singleton, 171 Ky. 117, 188 S.W. 302 (1916). Subsection (3) also provides that when the unexpired term of the mayor is filled at a special election, the mayor pro tem [who is serving as mayor temporarily] shall resume his duties as commissioner, if his term as such has not expired.
Subsection (5) of KRS 89.520 has nothing to do with filling permanent vacancies in the office of mayor. It only applied to permanent vacancies in the office of commissioner. Therefore, it has no application to the vacancy in the office of mayor of the city of Hickman. Thus, there is no conflict between the provisions of subsections (3) and (5), though we can readily see where you may have been confused by some of the language in subsection (5).
Subsection (4) is, of course, not applicable to the situation as it involves only temporary absences by the mayor where such is filled by the mayor pro tem for the 30-day period mentioned therein.
Under the circumstances and in view of the facts related, the mayor pro tem, when appointed by the incoming city commission, will act as mayor under his official title of mayor pro tem until the vacancy in the office of mayor can be filled by election at the November, 1980 election in compliance with Const. 152. At the same time there will be no vacancy on the commission to be filled either by appointment or election unless the mayor pro tem runs for and is elected to the office of mayor at the November, 1980 election. If the mayor pro tem is not elected mayor, then he will resume his duties as commissioner when the newly elected mayor receives his certificate of election and qualifies since his commission office will not have expired.