Request By:
Mr. John G. Prather, Jr.
Attorney at Law
P.O. Box 106
Somerset, Kentucky 42501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The subject matter of your request for an opinion of this office concerns a contract of employment issued by the Tourist and Convention Commission of Pulaski County, created pursuant to KRS 91A.350(2).
The Commission entered into a contract of employment with a "director" to provide listed and specific services and for a listed compensation, the term of the contract to extend for four years.
The former Commission has been replaced with new members, who question the validity of the contract.
Question No. 1:
May a Tourist and Convention Commission enter into a contract of employment for a term of four years when no member of the Commission has as much as four years remaining in his term of appointment?
(If the answer to the foregoing question is "yes" then do not respond to the following questions; otherwise please answer the following.)
See KRS 91A.360(3), relating to the three (3) year terms of the commissioners, except for initial appointments.
Subsection (4) of KRS 91A.360 reads:
The commission shall elect from its membership a chairman and a treasurer, and may employ such personnel and make such contracts as are necessary to effectively carry out the purpose of KRS 91A.350 to 91A.390. Such contracts may include but shall not be limited to the procurement of promotional services, advertising services and other services and materials relating to the promotion of tourist and convention business; Provided, contracts of the type enumerated shall be made only with persons, organizations, and firms with experience and qualifications for providing promotional services and materials such as advertising firms, chambers of commerce, publishers and printers."
In connection with the power of appointment, this is written in McQuillin, Municipal Corporations, Vol. 3, § 12.83, which reads in part:
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. Thus it has been held that a mayor whose term expires at a certain hour of a certain day has the power at any time prior to the expiration of his term to fill any position which his successor in office might fill if left vacant. So a municipal council may elect an officer before the incumbent's term has expired unless the law forbids. And where the council has power to appoint and is a yearly body, an ordinance may provide for the appointment of an officer for a term of two years. 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."
Elsewhere in McQuillin, Municipal Corporations, Vol. 10, § 29.101, we find this:
". . . . [w]here the nature of an office or employment is such as to require a municipal board or officer to exercise a supervisory control over the appointee or employee, together with the power of removal, such employment or contract of employment by the board, it has been held, is in the exercise of a governmental function, and contracts relating thereto must not be extended beyond the life of the board."
Since the director's appointment involved a governmental function, it is our opinion that the director appointed by the old Commission can only rely upon his contract during the term of the commissioners who appointed him, but no longer. Thus his contract cannot extend beyond the term of the members who appointed him. See OAG 76-156, copy enclosed. As we said, the normal term of commissioners is three (3) years.
Question No. 2:
If a Commission has entered into a contract of employment which exceeds the authority of the Commission to so cortract, what is the obligation of a subsequent Commission as regards the employee with whom the contract had been made?
The new commission, which has the power of appointment at this time, has the authority to remove the director and appoint another person for that position. See Sproles v. Mauney, 239 Ky. 138, 38 S.W.2d 969 (1931). However, the new commission could, if it chooses, reappoint the present director for a period coinciding with the term of the present commissioners.
Question No. 3:
What is the maximum period of time in which a Tourist and Convention Commission may obligate itself by contract?
We have already answered this question in terms of an employment contract.
In connection with the duration of its contracts, other than employment contracts, no definitive statement can be made. It is written that "The duration of a municipal contract is determined by a proper construction of its terms in the light of applicable legislative provisions . . . . it appears reasonable that a municipal contract may cover any length of time, provided it does not cede away control or embarrass the legislative or governmental powers of the municipality or render it unable in the future to control any municipal matter over which it has jurisdiction. But long term agreements involving expenditures of municipal funds are looked upon with disfavor, not only because they restrict and embarrass future municipal legislative and administrative officials in the efficient discharge of their public responsibilities, but also because they tend to create monopolies, and restrain competition relating to the subject matter of the contract." McQuillin, Municipal Corporations, Vol. 10, § 29.100.
Of course the function of a Tourist and Convention Commission is rather narrow. The purpose of that body is to promote recreational, convention and tourist activity in the county. KRS 91A.350(2).
Where there is no statute expressly covering this subject of contract duration, and subject to the above rule against binding successors in connection with governmental functions (e.g., employment contracts), the reasonableness of the time would be for the courts to determine. See McQuillin, Municipal Corporations, Vol. 10, § 29.100.
Remember that the Tourist and Convention Commission has rather limited powers. It is authorized to do only such things as the statutes permit or direct it to do. Taylor v. Riney, 156 Ky. 393, 161 S.W. 203 (1913). Thus persons dealing with the Commission must take notice of law and know the extent of the commission's authority in contracting therewith. Farmer v. Marr, 238 Ky. 417, 38 S.W.2d 209 (1931).