Request By:
Hon. John S. Smith
City Attorney
City of Lebanon
P.O. Box 125
Lebanon, Kentucky 40033
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of December 21 in which you initially present the following facts and question:
"Lebanon, a fourth class city, desires to place on the ballot the question of staggered terms for members of the City Council as authorized by KRS 83A.110. The procedure for placing that question on the ballot is outlined in KRS 83A.120.
At its last meeting, the Council adopted the attached Resolution. In your opinion, does the question comply with the requirements of 83A.120 to the effect that the Resolution . . . 'shall set out in full the matter to be considered.'"
As you indicate, KRS 83A.110 authorizes the establishment of staggered terms for members of the city legislative body by referendum in the manner provided under KRS 83A.120. Thus the question of staggered terms for members of the legislative body may be presented for vote by the resolution of the legislative body or by petition, meeting the requirements of KRS 83A.120. This statute provides in effect that a proposal must be drafted in such a way that a vote in favor of adoption shall be a vote in favor of the effect of the proposal. This requires, we believe, that the resolution specify the wording of the proposal to be voted upon as in the case of a proposal that is initiated by petition under subsection (2). It must, of course, be filed with the clerk as required under subsection (6).
The resolution you have presented appears to contain sufficient information except that the form of the question is awkward and should, we believe, be revised to some extent. The form of the question found in the resolution reads as follows:
"Are you in favor of the proposal entitled
'A PROPOSAL TO ESTABLISH STAGGERED TERMS OF OFFICE FOR MEMBERS OF THE LEBANON CITY COUNCIL AND PROVIDING FOR ONE-HALF OF ITS MEMBERS ELECTED AT THIS ELECTION TO SERVE TWO-YEAR TERMS AND FOR THE REMAINING ONE-HALF OF ITS MEMBERS ELECTED AT THIS ELECTION TO SERVE ONE-YEAR TERMS SO THAT THEREAFTER ONE-HALF THE MEMBERS OF THE LEBANON CITY COUNCIL WILL BE ELECTED ANNUALLY AT THE REGULAR ELECTION HELD IN THE CITY.'"
We therefore suggest that the question in the resolution be phrased as follows:
"Are you in favor of establishing staggered terms of office for members of the Lebanon City Council and providing for one-half of its members elected at this election to serve two-year terms and for the remaining one-half of its members elected at this election to serve one-year terms (initial terms to be determined by lot), so that one-half of the members of the city council will be elected annually at a regular election held in the city."
You next raise the question as to whether or not the referendum concerning staggered terms can be presented to the voters at the May 1983 primary election.
Our response to the above question would be in the negative for several reasons. KRS 83A.120(6) specifically requires that the question be presented at the next regular election which can only mean the general election in November. Aside from this, Section 148 of the Constitution prohibits any election to be held at a time other than the November election with four exceptions, none of which are applicable to the question of staggered terms. We are enclosing a copy of OAG 82-602 citing the case of