February 20, 2019

How do you fill a vacancy on a city legislative body?

The first step is to determine whether a vacancy exists. Specific causes of vacancies may include but are not limited to death, resignation, failure to qualify (or to remain qualified), conviction of crimes, acceptance of an incompatible office, or removal.

One of the most common causes of a vacancy is resignation of an elected officer. In order for a resignation to become effective, the member must submit a written notice specifying the date of his or her resignation to the legislative body. However, the resignation will not become effective until the occurrence of the next special or regularly scheduled council/commission meeting following the date of resignation specified in the written notice. Once the resignation is effective, it may not be withdrawn.

Once it has been determined that a vacancy in an elected city office exists, the Kentucky Constitution and statutes set forth the requirements and procedures for filling the vacancy. All vacancies in elected city offices are filled initially by appointment. Depending upon the time frame, a subsequent election may be required to fill the office for the remainder of the unexpired term.

If a vacancy occurs in the office of mayor, the legislative body must fill the vacancy by appointment within 30 days. Likewise, if a vacancy occurs in a legislative body office, the remaining members of the legislative body are required to fill the vacancy by a majority vote within 30 days. Under KRS 83A.040(5), as long as at least one member of the legislative body remains, the responsibility of filling vacancies resides with the legislative body. If more than one vacancy exists, the vacancies must be filled one at a time, so that each new appointee has the opportunity to act to fill the remaining vacancies.

If the legislative body fails to fill a vacancy within 30 days from the date on which it occurs, the power to fill the vacancy is affirmatively shifted to the Governor by operation of law in accordance with KRS 83A.040(6). If all seats on a city legislative body become vacant, the Governor is mandated to fill, by appointment, a sufficient number of seats to constitute a quorum. The remaining vacancies are then filled by the legislative body one at a time as mentioned above.

When a vacancy occurs, both the county clerk and the Secretary of State must be notified immediately in writing.

This issue is discussed at length in the City Officials Legal Handbook