CITY OF HARRODSBURG, KENTUCKY; LONNIE CAMPBELL, INDIVIDUALLY AND AS COMMISSIONER OF THE CITY OF HARRODSBURG; JOE HOOD, INDIVIDUALLY AND AS COMMISSIONER OF THE CITY OF HARRODSBURG; JACK SPRINGATE, INDIVIDUALLY AND AS COMMISSIONER OF THE CITY OF HARRODSBURG; LORENE HEMBREE; AND ERNST R. KELTY, JR. V. JERRY ROYALTY and MAYOR CAROL DEAN WALTERS
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RENDERED: APRIL 252002
TO BE PUBLISHED
2000-SC-03964
CITY OF HARRODSBURG, KENTUCKY;
LONNIE CAMPBELL, INDIVIDUALLY AND AS
COMMISSIONER OF THE CITY OF HARRODSBURG;
JOE HOOD, INDIVIDUALLY AND AS COMMISSIONER
OF THE CITY OF HARRODSBURG; JACK SPRINGATE,
INDIVIDUALLY AND AS COMMISSIONER OF THE CITY
OF HARRODSBURG; LORENE HEMBREE; AND
ERNST R. KELTY, JR.
vs.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
2000-CA-0967 & 2000-CA-1029
MERCER CIRCUIT COURT NOS. 2000-Cl-0104 & 2000-Cl-0124
JERRY ROYALTY and
MAYOR CAROL DEAN WALTERS
APPELLEES
**********
OPINION OF THE COURT BY JUSTICE STUMBO
AFFIRMING
The City of Harrodsburg sought review by this Court of an order of the Court of
Appeals which granted CR 65.07 relief in the form of an injunction prohibiting certain
votes in the City Commission on charges of misconduct brought against the Mayor and
a member of the Commission, Commissioner Royalty. Following a number of disputes
between the Mayor and the majority of the Commission, charges were instituted against
the Mayor and Commissioner Royalty. The charges were styled as joint thereby
preventing the Mayor and Royalty from voting on the other’s charge. The Court of
Appeals held that each individual defendant could vote on the charges as they related
to the other. We affirm.
This matter arose from two sets of complaints filed against Mayor Carol Walters
and Commissioner Jerry Royalty. The City Commission held an evidentiary hearing
and, following a discussion at a subsequent meeting, drafted a complaint containing
seven separate charges against the Mayor and Commissioner jointly, two against
Commissioner Royalty alone and one against just the Mayor. The Commission also
voted to hold a hearing pursuant to KRS 83A.040(9) for the purpose of determining if
the charges were true and if so, if the charges warranted removal from office.
The Commission scheduled a hearing at which disciplinary actions against both
the Mayor and Commissioner Royalty were to be addressed. It was the Commission’s
plan that if a majority of the remainder of the Commission decided that the Mayor and
Commissioner Royalty acted jointly, as to each individual charge, then each would be
precluded from voting on the identical charge against the other. That decision was said
to be based upon an interpretation of KRS 83A.040(9) which states in relevant portion
as follows:
. . . any elected officer, in case of misconduct, incapacity, or
willful neglect in the performance of the duties of his office,
may be removed from office by a unanimous vote of the
members of the legislative body exclusive of any member to
be removed, who shall not vote in the deliberation of his
removal.
It was the contention of the Mayor and Commissioner that the joinder of the
seven charges was a tactical move by the remainder of the Commission designed to
ensure that the formal charges would result in the removal of both. By joining the
charges, neither one would be eligible to vote on the charges, thus permitting a minority
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I
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faction to remove members of the Commission.
The Commission responds that the scenario feared by the Mayor and
Commissioner are prevented by the requirements of KRS 61.805(3), which provides
that in order for a city commission to take an action, there must first be a majority vote.
“Action taken” is defined therein as “a collective decision . . . or an actual vote by a
majority of the members of the governmental body.” Therefore, the Commission
reasons, the decision to bring charges of official misconduct must have a majority vote
and no single member or minority faction of a commission could take action and bring
charges against the remaining members. In fact, that provision controlled when the
charges were first voted upon.
The Commission’s argument is correct so far as it goes. It is true that the
initialization of the charges was accomplished with the charged parties voting against
them. At that time each could vote separately as permitted by law and a simple
majority was all that was required. However, removal votes must be unanimous, with
the exception of the charged member, which guarantees that by jointly bringing
charges, a faction of the commission can eliminate a rival faction simply by joining the
charges against the members of the disfavored faction.
For the reasons set forth herein, we affirm the opinion of the Court of Appeals.
All concur.
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COUNSEL FOR APPELLANTS,
CITY OF HARRODSBURG, KENTUCKY;
LONNIE CAMPBELL, INDIVIDUALLY AND
AS COMMISSIONER OF THE CITY OF
HARRODSBURG; JOE HOOD, INDIVIDUALLY
AND AS COMMISSIONER OF THE CITY OF
HARRODSBURG; JACK SPRINGATE,
INDIVIDUALLY AND AS COMMISSIONER
OF THE CITY OF HARRODSBURG;
LORENE HEMBREE; AND ERNST R. KELTY, JR.:
Michael P. Casey
Kaplan Law Office
250 West Main Street
Suite 1910
Lexington, KY 40507
Susan L. Maines
Kaplan Law Office
250 W. Main Street
Suite 1910
Lexington, KY 40507
COUNSEL FOR APPELLEE, JERRY ROYALTY:
Richard Clay
Clay & Clay
319 West Main Street
P.O. Box 1256
Danville, KY 40422
COUNSEL FOR APPELLEE, CAROL DEAN WALTERS, MAYOR:
Kent Masterson Brown
Law Offices of Kent Masterson Brown
167 West Main Street
Suite 502
Lexington, KY 40507
Christopher J. Shaughnessy
Law Offices of Kent Masterson Brown
167 West Main Street
Suite 502
Lexington, KY 40507
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