Request By:
Honorable William D. Probus
City Attorney
City of Cynthiana
P.O. Box 227
Cynthiana, Kentucky 41031
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of May 30 in which you refer to the filling of a vacancy on the board of commissioners in the city of Cynthiana, a fourth class city operating under the commission form of government. You relate the following facts and question:
"Commissioner Marshall Bell passed away on April 20, 1980. On May 28, 1980, the Board of Commissioners, acting under the authority of KRS 89.140 (5), appointed Charles S. Brunker to fill the unexpired term of Commissioner Bell, which will run through December 31, 1981.
"The next regular primary for city officers will be held in May, 1981, with the election of city officers to follow in November, 1981. Other than the presidential and congressional offices to be filled this fall, the only local officer to be elected in November, 1980, is a school board member, who is elected by, and represents, only a portion of the city.
"My question is this:
"In view of the above, and based on Section 152 of the Kentucky Constitution, as well as KRS 89.140 (5) and 89.060 (11), will it be necessary for Commissioner Brunker to file a petition and stand for election in November, 1980, for the remaining year of Commissioner Bell's term?"
The vacancy on the board of commissioners created on April 20, 1980 must be filled at the coming November election under the terms of § 152 of the Constitution irrespective of the provisions of KRS 89.140. Under this section of the Constitution [which of course supersedes any statute to the contrary] all vacancies must be filled at the next regular election embracing the area in which they occur if three (3) months intervene. Scott v. Singleton, 171 Ky. 117, 188 S.W. 302 (1916). Presidential electors will be elected at the November, 1980 election and they are considered statewide officers. See Hancock v. Queenan, 294 S.W.2d 92 (1957); and Smith v. Ruth, 308 Ky. 60, 212 S.W.2d 532 (1948).
Aside from the above, we want to call your attention to the fact that KRS 89.140, previously referred to, as well as KRS 89.060, governing special city primaries in cities of the fourth class, have been repealed by Senate Bill 26 as of July 15, 1980. As a matter of fact, all of Chapter 89 KRS, with two exceptions not pertinent here, has been repealed by Senate Bill 26 and superseded insofar as the commission form of government is concerned by KRS 83A.140 and the general provisions of the Act.
Senate Bill 26 has also removed all cities of the fourth class operating under the commission form of government and cities of the third and fourth class operating under the city manager form of government from the requirement of having special city primaries. As a consequence, on July 15 and thereafter these cities will be governed by the general election laws as they relate to the filling of all elective offices unless these cities declare by ordinance that they wish to select their officers in a special city primary. Such an ordinance however must be enacted not less than 240 days before the regular election of any such officer. The new provision governing special city primaries has been coded as KRS 83A.170. For your information, we quote the following excerpt from KRS 83A.050:
"(1) Except in cities of the second class which operate under the city manager form of government pursuant to Section 15 of this Act, election of city officers shall be governed by general election laws as provided in KRS Chapters 116 through 125 unless the city legislative body prescribes by ordinance, not later than two hundred forty (240) days prior to a regular election in which any city office is to be filled, that election of city officers shall be under nonpartison city election laws as provided in Section 17 of this Act. City officers of each city of the second class operating under the city manager form of government pursuant to Section 15 of this Act shall be elected in non-partisan elections as provided in Section 17 of this Act."
Under the circumstances, since there must be an election this fall to fill the vacancy on the city commission and since the city will be operating under the general election laws as of July 15, any candidate desiring to run for the unexpired term must file an independent petition on the form prescribed by the State Board of Elections and KRS 118.315. This petition must be filed not less than fifty-five (55) days before the November election pursuant to KRS 118.365 (2). The last day to file would be September 10.