Request By:
Mr. Guy B. Hawes, Jr.
121 Johns Hill Road
Highland Heights, Kentucky 41076
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your recent letter in which you relate that the mayor reappointed the current members of the planning and zoning commission at the first meeting in December which was approved by the outgoing city council at that time. The terms of said members under the ordinance relating to planning and zoning did not, however, expire until December 31. The question is raised as to whether or not the outgoing council had the authority to ratify the appointment of the members of the planning and zoning commission whose new terms began on January 1, the date that the incoming council is required to take office under the terms of KRS 83A.040.
KRS 100.141 provides that the mayor of each participating city appoints members of the city planning and zoning commission with the approval of the legislative body. This statute coincides with the requirement under KRS 83A.080(2) which also provides that all nonelective city officers shall be appointed by the executive authority of the city [the mayor in this instance] with the approval of the city legislative body.
To begin with, assuming that the terms of the officers in question did not expire until January 1, such vacancies normally could not be filled until that time. In other words, the old council could not anticipate the occurrence of this vacancy under the general rules of law governing the filling of vacancies. Also there is case law to the effect that the incoming council has the sole power to select officers whose terms begin during their term. In this respect we refer you to McQuillin Municipal Corporations, Vol. 3, Section 12.83, which reads in part as follows:
"Where the power of appointment exists the rule usually laid down is that, in a proper case, it may be exercised at any time during the term of the officer or the board or body authorized to act in the premises. . . . But a council not being constituted as it will be when the term of office will expire has no authority to appoint a successor of the incumbent before the expiration of the current term. It has been held that the official board or body of a municipality which is or will be in office at the time an appointee takes his office can alone make an appointment to such office, unless there be express legislative authority otherwise . . . ." (Emphasis added.)
Under the circumstances, the appointments made by the mayor to the planning and zoning commission which were ratified by the outgoing council were illegal, in our opinion, for the reasons expressed above.