Could a Kentucky mayor veto a city ordinance by returning it to the city clerk instead of the council?

Plain-English summary

Somerset's city attorney asked whether the mayor had vetoed ordinances by leaving them unsigned and returning them with written objections to the city clerk. The Attorney General said no. For a city with a mayor-council form of government, KRS 83A.130(6) required return to the council with objections. The AG treated return to the clerk alone as an ineffective attempted veto, even if that had been the city's practice.

The opinion explained that an older statute had required return to the clerk, but the Legislature repealed it when adopting the current procedure. It also rejected a handbook note suggesting that delivery to the clerk was constructive delivery to the council. The cited older court decision addressed the former statute and did not establish that proposed substitute under the later law.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Was a written veto delivered to the city clerk effective?
A: The AG said no under KRS 83A.130(6). The mayor had to return the ordinance and objections to the city council.

Q: Did a local custom of delivery to the clerk change the rule?
A: No. The opinion said a practice outside the statutory procedure could not substitute for the required return to the council.

Q: Was delivery to the clerk constructive notice to the council?
A: The AG rejected that theory for the ordinance veto process, saying it could not replace the statute's express return requirement.

Q: Why did an older case mention returning an ordinance to the clerk?
A: It applied a former statute that expressly required clerk delivery. The AG said the case did not hold that clerk delivery counted as delivery to the council under the later statute.

Background and statutory framework

KRS 83A.130(6) directed a mayor who disapproved an ordinance to return it to the council “together with a statement of his objections.” The opinion contrasted repealed KRS 86.090(3), which had referred to the clerk. It concluded that the Somerset mayor's delivery to the clerk was a nullity as an attempted veto.

Citations and references

Statutes: KRS 83A.130(6); former KRS 86.090(3).

Case: City of Russell v. City of Flatwoods, 394 S.W.2d 900, (Ky. 1965).

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_c02b7002-5e56-4c65-bcb6-068f3b48cb31/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_c02b7002-5e56-4c65-bcb6-068f3b48cb31

Original opinion text

OAG 07-007
October 22, 2007
Subject:

Ordinance veto procedure - city with mayor-council
form of government

Requested by

Carrie D. Wiese, City Attorney, Somerset

Written by:

Gerard R. Gerhard

Syllabus:

Mayor’s return of ordinances, with reasons for not
signing them, to the city clerk, rather than, as required by KRS 83A.130(6), to the city council, did not constitute an effective veto of the ordinances.

Statutes construed:
OAGs cited:

KRS 83A.130(6)

None.

Opinion of the Attorney General
The principal question addressed here is whether a mayor’s return of ordinances, with reasons for not signing them, to the city clerk, instead of to the city council, constituted an effective veto of those ordinances. In our view the answer is no. The pertinent facts as related by the request for this Opinion are, in substance: The mayor “vetoed” ordinances by not signing them and by providing reasons for not doing so, and attaching the reasons to the ordinances and returning the ordinances to the city clerk. The request also indicates, in part, that it has been the custom for the Somer-

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set mayor to “return” ordinances to the city clerk rather than to the
council as a whole.
City ordinance veto procedure – KRS 83A.130(6)
Kentucky Revised Statutes (KRS) 83A.130(6), is the current law
regarding the procedure to be followed by a mayor of a city with a
mayor-council form of government, in vetoing an ordinance. It was enacted in 1980 (Enact. Acts 1980, ch. 235 § 13, effective July 15, 1980), and provides: All ordinances adopted by the council shall be submitted to the mayor who shall within ten (10) days after submission either approve the ordinance by affixing his signature or disapprove it by returning it to the council together with a statement of his objections. No ordinance shall take effect without the mayor’s approval unless he fails to return it to the legislative body within ten (10) days after receiving it or unless the council votes to override the mayor’s veto, upon reconsideration of the ordinance not later than the second regular meeting following its return, by the affirmative vote of one (1) more than a majority of the membership.
[Emphasis added.]
In KRS 83A.130(6) (above), the legislature has established a
statutory procedure to be followed by a mayor (of a city operating under the mayor-council plan) in vetoing an ordinance. A mayor, in order to veto an ordinance, is directed by clear statutory language to return the ordinance to the council together with a statement of his objections. The obvious purpose of the plain words of the statute is to ensure that the city council will be made aware of the mayor’s action so that it will have an opportunity to override the mayor’s veto. KRS 83A.130(6) is a significant change from the former statute on the same subject, KRS 86.090(3), which directed return of a veto to the city clerk. KRS 86.090 (including (3) thereof) was repealed (Acts 1980, ch. 235 § 20) in the same legislation that established KRS 83A.130(6).

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We find no basis for suggesting that a mayor may satisfy a statutory requirement by following a procedure not provided for by law, such as returning an ordinance to the city clerk, rather than to the council. In our view, if a mayor does not comply with the statutory procedure for disapproval of an ordinance, his attempted disapproval or veto is ineffective, and, in relation to the disapproval or veto of an ordinance, is a nullity. In accord with this view see 62 Corpus Juris Secundum (CJS) Municipal Corporations § 270 (a): “Statutory requirements as to the manner of exercising the veto power must be complied with; otherwise the attempted exercise of the power is of no effect.” Other questions The request for this opinion also asked, in substance, when, if ever, is “constructive service/notice” to the council proper in connection with a mayor’s attempted veto of an ordinance, and (again in substance) whether City of Russell v. City of Flatwoods, 394 S.W.2d 900, (Ky. 1965) “is still good law,” since that case construed, in part, KRS 86.090(3), and not the current law (KRS 83A.130(6)), regarding the veto procedure. “Constructive service/notice” not a substitute for actual notice “Constructive service/notice,” here meaning for the mayor to provide to the city clerk, instead of to the council itself, an ordinance together with the mayor’s grounds for disapproval, is not in compliance with KRS 83A.130(6), and is not proper to constitute a mayor’s veto of a city ordinance. In our view, purported “constructive service/notice” to the city clerk of a mayor’s veto of a city ordinance would never be a proper substitute for return to the city council, specified in KRS 83A.130(6), of a mayor’s veto of a city ordinance. “Note” in City Officials Legal Handbook erroneous

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The request for this opinion indicates that the 2007 edition of the
City Official’s Legal Handbook, published by the Kentucky League of
Cities, contains a note at page 179 stating that the mayor may satisfy
the return requirement (meaning return to the city council of a
mayor’s veto of an ordinance) by returning the unsigned ordinance and
explanation to the city clerk, and that doing such is considered constructive service under City of Russell v. City of Flatwoods, 394 S.W2d 900 (Ky. 1965). We believe the note is erroneous. The Handbook (above), at page 179, indicates in part: b.

The mayor may veto the ordinance by returning it to
the legislative body unsigned with a statement of the
reasons for the veto within ten (10) days of receiving
it.
NOTE: The mayor may satisfy the veto requirement
by returning the vetoed ordinance to the city clerk.
This has been held to constitute constructive delivery
to the legislative body. City of Russell v. City of Flatwoods, 394 S.W.2d 900 (Ky. 1965).

Upon review of the case cited in the “note,” we do not see any
language in that case that would support the conclusion set forth in the
“note.”
The language of the Court, upon which the “note” in the Handbook is apparently based (there being no other language in the case that might apply), states, at page 902: It is contended that, even though the mayor of Russell signed the contract with Flatwoods, this was ineffectual since the city ordinance authorizing Russell’s mayor to sign the contract was not signed by him. The short answer to this is that the ordinance was validly enacted without the mayor’s signature since he did not return the ordinance to the city clerk with his written objections within ten days af-

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ter its passage. KRS 86.090(3). It is our opinion that the
ordinance was lawfully enacted.
In our view, this language stands for the proposition that where a
mayor did not follow the veto procedure then provided by KRS
86.090(3), there was no veto, and therefore, an ordinance challenged
as not effective because not signed by the mayor, was effective. It
was effective because, in the absence of a veto consistent with statutory procedure (KRS 86.090(3)), it became effective without the mayor’s signature, in keeping with the statute then in effect. “Constructive delivery” to the legislative body was not mentioned or at issue in the case. KRS 86.090(3), which was repealed in 1980 (Acts 1980, ch. 235,
§ 20), provided, at the time City of Russell was decided:
If the mayor fails to sign any ordinance or resolution,
or to return it to the city clerk with his written objections,
within ten days after its passage, the ordinance or resolution shall take effect without his signature.
[Emphasis added.]
Under the law in effect when City of Russell was decided in 1965,
a mayor’s veto was to be returned to the city clerk, as was then provided for by KRS 86.090(3). “Constructive delivery to the legislative body” was not an issue in City of Russell. There is no holding or discussion in the case that might be properly construed as a holding of the court that return to the city clerk constitutes constructive delivery to the legislative body. We believe the proper conclusion to be drawn from the text quoted above from City of Russell is that, in matters involving passage and possible veto of a city ordinance, statutorily specified procedure must be followed. For the reasons indicated, we believe the note at page 179 of the 2007 edition of the City Officials Legal Handbook is erroneous.

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KRS 83A.130(6), as noted previously, was enacted in 1980, well
after City of Russell. The statute specifically provides that if a mayor
disapproves of an ordinance, he shall “. . . disapprove it by returning it to the council with a statement of his objections.” [Emphasis added.] Where a mayor in a city with a mayor-council form of government returns ordinances together with a statement of his objections to the city clerk, rather than the city council, his action does not constitute a veto of the ordinances involved, and, insofar as purporting to veto the ordinances, is a nullity. KRS 83A.130(6).

GREGORY D. STUMBO
ATTORNEY GENERAL

Gerard R. Gerhard
Assistant Attorney General
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