Request By:
Mr. Ray VanHoose
Boyd County Court Clerk
Courthouse
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of August 19 in which you relate that the city of Catlettsburg will be voting in November on the question of whether or not the form of government of the city will be changed from that of councilmanic to that of commission as permitted under KRS 83A.120 and 83A.160. At the same time the city will be voting to elect members of the city council from wards for regular two year terms as required by the Constitution and the Municipal Code under KRS 83A.040. Under the circumstances, you raise the following question:
"Please advise how this will affect their city government. Will those councilmen elected be allowed to complete their term? When would the commission form go into effect?"
In response to your question, we initially refer you to the provisions of KRS 83A.160(3) which reads as follows:
"Upon the expiration of the terms of the existing legislative body members, or if terms are staggered, when the terms of a sufficient number of members have expired to achieve a correct number of members remaining, or upon election of a sufficient number of additional members at the next regular election to achieve a correct number of members, the city shall be organized and governed under the newly adopted plan as provided in this chapter and shall take action necessary to be in compliance with the chapter. In no event shall a city not be in compliance two (2) years after the adoption of the new plan by the voters." (Emphasis added.)
KRS 83A.160 authorizes any city organized and governed under the mayor-council plan, such as the city of Catlettsburg, to change its form of government to the commission or city manager plan by referendum following the procedure outlined in KRS 83A.120. We find no restriction in the statutes as to a particular November election that the referendum must be presented. In other words, it may be presented at any November election whether it be a regular election for members of the city legislative body, and/or mayor, or an off year election.
The fact that the referendum on changing the form of government from councilmanic to commission is to be voted on at the coming November election, at which members of the city council must be elected, does present the legal problem as to whether the councilman elected at the same time a favorable vote is made to switch forms of government will be entitled to take office and serve out their two year term which would delay the effective date of the city operating under the commission plan or whether their election becomes a nullity and vacancies occur under the newly adopted government.
We believe, however, that under such circumstances the city of Catlettsburg will continue to operate under the councilmanic form of government through the end of the two year period which incidentally is the maximum time for compliance found in the above quote from KRS 83A.160. You will note in the above quote the provision that upon the expiration of the term of existing legislative body members the form of government changes. True, the terms of those members of the legislative body elected this November do not begin until January 10, 1984, however they were nevertheless elected by the people at the November 8 election and thereby entitled to take office on January 10 for two year terms.
Thus, assuming that the referendum passes at the same time the incoming council is elected, we would construe the terms of KRS 83A.160(3) as requiring that under such circumstances the change in government must be delayed until January 1986. As a consequence, four city commissioners, as well as the mayor, would be elected at the November election in 1985 and the commission form would begin as we said in January 1986.
We also might mention that before the commission form of government takes effect and commissioners initially elected, the city would have to reduce its wards from six to four to represent the four commission positions as required by KRS 83A.100 which must be accomplished by ordinance at least 240 days preceding the 1985 election.
We hope the above answers your question. However, if we can be of any further assistance, please advise us.