Request By:
Ms. Irene Pigman Long
Attorney at Law
Bedford, Kentucky 40006
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of May 24 in which you ask us to reconsider OAG 82-207 in view of the fact that said opinion was based on incomplete facts. The question raised deals with the filling of certain vacancies in the office of city commission and mayor of the City of Prestonville, and in this respect you relate the following additional facts:
"In the November election of 1981, one Raymond Whitaker was elected Mayor and one Lewis Spencer elected City Commissioner. On or about January 4, 1982, these gentlemen agreed that the vacancies for the other City Commissioners would be filled by the appointment of Messrs. Kindoll and Miller, and these agreed on one Johnnie Stewart as the fourth Commissioner. Apparently this was done informally but, as you state in your opinion, the requirements of the Open Meetings Act are not necessarily material. These three men (Miller, Kindoll and Stewart) were all sworn in on January 4, 1982, by Judge Westrick and attended the meetings of the City Commission in January, February and March of 1982, and the minutes of the meetings reflect that they were present and acting. The Mayor, Raymond Whitaker, died on February 28, 1982. It was only after there was a two-two stand off at the March meeting with the four Commissioners in the attempt to appoint a mayor that Mr. Lewis Spencer went to the County Judge and attempted to fill the claimed vacancies under KRS 83A.040."
If the above facts are correct and following entry into office on January 4, which was the beginning of the regular term of the newly elected officers pursuant to KRS 83A.040, the duly elected commissioner and mayor proceeded to appoint the two commissioners mentioned and they in turn appointed a fourth commissioner, all of whom were sworn in by the county judge, we believe that the provisions of KRS 83A.040 were substantially complied with, irrespective of the fact that the appointments were not made one at a time as the statute requires. Also, such appointments would of course have been made within the 30-day statutory requirement.
On the other hand, and as the county attorney points out in his memorandum, irrespective of the fact that the initial appointments may not have been valid, certainly the alleged appointments to the commission [two in number] on March 19 by Spencer were made beyond the 30-day statutory period beginning January 4 under the required terms of KRS 83A.040 and were therefore invalid. This being the case, Spencer's attempt on March 19, along with the commissioners he appointed on that date to fill the vacancy in the office of mayor occurring on February 28th, which can only be done with a valid quorum present pursuant to KRS 83A.040(2), must be considered invalid. Also, in view of the unsuccessful attempt to fill the mayor's vacancy at the March meeting by the commissioners appointed in January because of the two-two deadlock, the mayor's office remained vacant. This of course means that the position of mayor is legally vacant and can only be filled by the governor.
Of course if the January appointments of commissioners were invalid and this can only be determined by litigation, then there are also three commission vacancies and the governor will have to appoint commissioners sufficient to create a quorum in accordance with KRS 83A.040(4). The mayor is of course a voting member of the commission.
Section 152 of the Constitution would require that three vacancies in the office of commission, together with that of mayor, be filled at the November 1982 election provided there is a regular election at that time embracing the city, which is, incidentally, the case since in Carroll County, in which Prestonville is located, there will be held a regular election for Supreme Court Justice embracing the Sixth Supreme Court District. See KRS 21A.010(6). Those individuals elected at the November election will take office immediately after they receive their certificate of election and execute the oath of office.
Sizemore v. Jones, 117 Ky. 810, 79 S.W. 229 (1904).
In view of the additional facts furnished by you, OAG 82-207 is modified accordingly.