Request By:
Ms. Christine Berkley
City Clerk and Treasurer
500 Wurtland Avenue
Wurtland, Kentucky 41144
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of July 22, in which you present the following facts and question:
"The Mayor who ran for office last November, 1981, resigned March 1, 1982. The City Commission of this Sixth Class City appointed a member of the present Commission, Mr. Raymond Hanshaw, to the Office of Mayor March 24, 1982. This city needs to know when our present Mayor has to run for the Office of Mayor again."
The vacancy created in the office of mayor on March 1, 1982, in the City of Wurtland, a city of the sixth class, was properly filled by appointment; however, the office must be filled by an election for the unexpired term under the terms of Section 152 of the Constitution. This section requires all vacancies occurring more than three months prior to the succeeding November election to be filled at said election provided there is a regular election to be held at that time that embraces the area in which the vacancy has occurred, which, in this case, would be the City of Wurtland. 1982 is an off-election year; however, there are regular school board elections to be held in every county throughout the Commonwealth though these elections embrace only parts of each county. Thus, if there is a regular school board election that embraces the City of Wurtland to be held at the coming November election, the vacancy in the office of mayor must be filled at that time. The only other regular elections in Kentucky that qualify are elections for Supreme Court justices; however, they cover only certain areas of the state. These elections embrace only the first, second, fourth and sixth Supreme Court districts, which do not include Greenup County in which Wurtland is located as this county is in the seventh district.
The facts presented also indicate that a member of the city commission was appointed to fill the vacancy in the office of mayor which would mean that there is, at the same time, a vacancy on the commission which must also be filled for the unexpired term at the same time the office of mayor is filled and for the same reasons. Thus, the city has two vacancies that may or may not be required to be filled in the November 1982 general election, and in order to find out whether or not a regular school board election embraces the City of Wurtland this fall, you should contact the county clerk.
If the vacancies in question must be filled at the coming November election, the candidates to fill said vacancies may file independent petitions containing a minimum of twenty names of qualified voters in the city, not later than fifty-five (55) days before the November election, the deadline being September 8.
If there is no qualifying school board election, the appointees will continue to hold office until the following November election, at which time said vacancies must normally be filled because it is a statewide election. However, only the office of mayor would be filled at that time since the commissioner's term expires next year, at which time there is a regular election for city commission for the ensuing two-year term. The office of mayor, of course, is a four-year term office.
Back to the question of a vacancy on the commission, we might also add that though one of the commissioners is required to be appointed mayor pro tem pursuant to KRS 83A.140(4), he can only serve as such and in the place of the mayor when the mayor is unable to attend to the duties of the office. As a consequence he cannot serve as mayor pro tem when a vacancy has occurred, which is the case in this instance. This leads to the fact that when a member of the commission is appointed to fill the office of mayor, he automatically vacates his position on the commission as no person can hold two municipal offices at the same time under Section 165 of the Constitution and KRS 61.080.