Request By:
Ms. Ruth J. Downs
City Clerk
Flatwoods, Kentucky 41139
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of September 8, in which you request an opinion concerning a procedural problem before the city council of the City of Flatwoods. The facts and question are as follows:
"I am writing you in regards to the legality of a Mayor Pro-tem, City of the Third Class, stepping down from his seat while presiding over a council meeting and appointing another council member to chair the meeting, thereafter voting on a motion which has been made, seconded, and a roll call vote taken by those present with the Mayor Pro-tem voting last, tieing the vote five (5) to five (5).
This is in reference to the appointment of a council member to fill the un-expired term of a council member who has recently resigned. I am enclosing a copy of the minutes of this meeting together with a copy of the swearing in of this person to the council."
Each member of a city council present at a meeting where a quorum exists, is entitled to vote on any matter presented on motion and seconded. KRS 83A.130(5) provides that the mayor shall preside at meetings of the council but shall not have a vote except in case of a tie. This statute also contains the following provision:
". . . The council may set by ordinance the manner in which its member may be selected to preside at meetings of the council in place of the mayor. . . ."
Referring to the case of
Shugars, Police Judge v. Hamilton, 122 Ky. 606, 92 S.W. 564 (1906), the Court declared and we quote:
"Under the statute (section 3634) it is the duty of the mayor to preside at meetings of the council, and he may only vote in case of a tie. In his absence, a member of the council may be chosen as mayor pro tem; but this does not deny him the right to vote as a member of the council." (Emphasis added.)
The above-quoted excerpt of the Shugars case clearly states that a member of the city council chosen to serve as mayor pro tem in the absence of the mayor does not lose his right to vote as a member of the city council. See also McQuillin, Municipal Corporations, Vol. 4, § 13.25.
Under the circumstances, the councilman selected as mayor pro tem at the September 3rd meeting mentioned in the attached minutes had the right to vote on the selection of an individual to fill an unexpired term resulting from the resignation of one of the members of the council. The fact that he stepped down from his chairmanship in order to vote would be of no legal significance, in our opinion. As a consequence, the tie vote resulting from the mayor pro tem's vote against the nominee simply means that the vacancy was not legally filled at said meeting.