Request By:
Mr. Roy Wilder
City Councilman
P.O. Box 58
Middlesboro, Kentucky 40965
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of March 1, in which you indicate that the city council of Middlesboro is proposing, pursuant to the enclosed ordinances and resolution, to provide for the election of its members at a nonpartisan election as provided in KRS 83A.170; provide that the council be reduced from twelve to ten members [the number was fixed at twelve on March 3, 1981]; and provide for a referendum on the question of staggered terms for members of the council.
There appears to be disagreement, however, among some of the officials to the effect that none of the three proposals can be accomplished for a period of five years following the fixing of the council membership at twelve on March 3, 1981. You seek our advice as to the applicable law involved in answering these questions as well as the validity of the enclosed ordinances and resolution.
First, concerning the adoption of a nonpartisan election pursuant to KRS 83A.170, reference is made to the provisions of KRS 83A.050(1) and (2). Under this statute the only restriction with respect to the adoption of the nonpartisan election procedure is the fact that the ordinance so providing must be adopted not later than 240 days prior to the next regular election for which municipal offices are to be filled. It is further provided that once this type of election is adopted, it cannot be changed earlier than five years from the last change in the election procedure. No referendum is required in order for the city to adopt this type of election.
Next, concerning the reduction of the number of council members from twelve to ten, you will first note that KRS 83A.030 authorizes the City of Middlesboro, a city of the third class, to have a council composed of not less than six nor more than twelve members as prescribed by ordinance. Such membership may be changed without a referendum on the question; however, no city can abolish an elective office, which would be the case in this instance, later than 240 days preceding the regular election to fill said office except in the event of a vancancy in the office, as provided in KRS 83A.080(3). We find no five-year limitation imposed on the city from changing its membership following a previous change.
Next, the city's right to provide for staggered terms for its council members is covered by KRS 83A.110 which provides that staggered terms may be established or abolished only by popular vote as provided in KRS 83A.120. However, once established, staggered terms cannot be abolished under subsection (4) for five years from the effective date of the last change. In other words, no city which changes either to or from staggered terms can again change sooner than five years from the last change.
Based on the above response to the three proposals, the two ordinances and resolution dealing first with the reduction in the number of members from twelve to ten, irrespective of the initial ordinance dated March 3, 1981, fixing the number at twelve, would appear to be valid provided it is adopted not later than 240 days preceding the next regular election for city officers unless, as the statute provides, a vacancy occurs in one of the council seats. The next regular election for city council members will occur in November of 1983.
The second ordinance, proposing to change the election of city officers to nonpartisan pursuant to KRS 83A.170, appears to be appropriate provided it also is adopted not less than 240 days before the 1983 regular election. However, once the change is made, the procedure cannot be changed for five years.
The resolution providing for an election on the question of adopting staggered terms for the city legislative body appears to follow the requirements of KRS 83A.110. However, once staggered terms are established, they cannot be abolished for five years as provided in subsection (4) of KRS 83A.110.