Request By:
Honorable Robert M. Westrick
Carroll County Judge/Executive
Carrollton, Kentucky 41008
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of April 12, in which you question the legality of the procedure followed in filling vacancies in the governing body of the City of Prestonville, a city of the sixth class operating under the commission form of government. You relate that a mayor and only one commissioner were elected at the regular election in November, 1981. On February 28, 1982, the duly elected mayor died, leaving the one commissioner. On March 19, the commissioner held a meeting at which the following procedure was followed to fill the vacancies on the legislative body:
"On March 19, 1982 Louis Spencer an elected member to serve on the Board of Commissioners for the Town of Prestonville, Kentucky, appeared before me. At this meeting Louis Spencer appointed James Burgin to serve on the Board of Commissioners for the Town of Prestonville, Kentucky. Mr. Burgin took the oath of office at this time. Mr. Burgin appointed Charles Perry to serve on the Board of Commissioners for the Town of Prestonville, Kentucky. Mr. Perry took the oath of office at this time. The entire board, Louis Spencer, James Burgin and Charles Perry appointed Mr. Johnny Stewart to serve as Mayor of Prestonville, Kentucky. Mr. Stewart took the oath of office at this time."
The filling of vacancies on a legislative body are governed by KRS 83A.040, which reads in part as follows:
"(2) If a vacancy occurs in the office of mayor, the legislative body of the city shall fill the vacancy within thirty (30) days.
(4) If one (1) or more vacancies on a legislative body occur in a way that one (1) or more members remain seated, the remaining members shall within thirty (30) days fill the vacancies one (1) at a time, giving each new appointee reasonable notice of his selection as will enable him to meet and act with the remaining members in making further appointments until all vacancies are filled.
Thus, under the above statute, the one remaining commissioner had the power to appoint an additional commissioner and these two in turn had the power to select additional commissioners, one at a time, so that each could vote for the remaining commissioners, and finally vote to fill the vacancy in the office of mayor. It is therefore not necessary that a quorum exist in order for vacancies on the board to be filled under the peculiar circumstances related in your factual situation. See also the case of
Douglas v. Pittman, 239 Ky. 548, 39 S.W.2d 979 (1931).
The statutory procedure for filling vacancies on the legislative body was followed with the possible exception where it is mentioned that the first appointee appointed the third member as this third member should have been appointed by the two members present at the time. Another discrepancy in the factual situation presented is that there remains one vacancy on the commission as it must be composed of four members, together with the mayor, making a five-man board as required by KRS 83A.030.
Your question concerning the legality of the procedure also raises the possible involvement of the Open Meetings Act, which you mentioned on the phone. However, there is a serious question in our mind as to whether or not the Open Meetings Act would be involved since no quorum existed until the filling of the vacancy in the office of mayor. As a consequence, prior to this event, there was no "action taken" by a majority of the members of the governmental body as the phrase is defined in KRS 61.805. Therefore the meeting did not constitute a public meeting under the Act at which a quorum of the legislative body must be present. Even in the event a portion of the meeting at which the mayor was selected constituted a special public meeting at which the notice requirements of KRS 61.825 were not followed, such action taken by the board at that time would not be void but merely voidable under the terms of KRS 61.830 and as held in the case of
Stinson v. State Board of Accountancy, Ky. App., 625 S.W.2d 589 (1981).
Under the circumstances we must presume that the appointments made on March 19 to fill the various vacancies were valid until the court declares otherwise, and such officers must at least be considered de facto officers serving under color of title and their acts as board members would be valid. In this respect we refer you to the cases of